Camden Council (202213793)

REPORT

COMPLAINT 202213793

Camden Council

16 December 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of:
1. The resident’s enquiries about ownership of and access to the back garden, and the use of the external spiral staircase.
2. The resident’s reports of antisocial behaviour and noise nuisance.
3. The associated complaint and level of compensation.

Background

The resident is a secure tenant of the landlord who is a local authority. Her tenancy began on 8 April 2019. The property is a 2 bedroom flat located on the ground and lower ground floor of a converted house, which is divided into 2 flats. The resident shares the property with her son. The landlord has said that it has a record that the resident has several health conditions.
The resident’s tenancy agreement has a short section headed garden access. This provides detail for both the front and rear gardens. It lists 2 options of either shared or sole use for the garden. On the agreement the landlord has underlined the option for “shared use whole/part” for both garden areas. The resident confirmed that when she moved into the property the rear garden was subdivided by a fence across its width.
The second property within the converted house is a 2 bedroom flat on the first and second floor. This was sold through the right to buy scheme; the sale having completed on 24 October 1994. The resident has advised that there have been 3 separate owners of the upstairs flat since she moved in. Her current neighbour bought the property in June 2021. This flat has no ground floor access to the garden.
The resident first contacted the landlord on 2 September 2019 raising concerns about the use of the rear garden following an approach by her neighbour. She asked why the landlord had not clearly separated the garden and why the fire escape from the upstairs flat had not been repositioned. She said that this had an impact on her privacy as it passed close to her windows and ended by the rear door to her property. She included details about the property that other neighbours had given her. She said that she believed that the garden had not previously been shared and had been for the sole use of the previous occupant of her flat. She highlighted the lack of access, other than the fire escape, from the upstairs flat to the garden. She also set out that within the row of houses only the rear garden of her home had been divided. She asked the landlord to find a resolution to this issue. The landlord emailed the resident on 16 September 2019 and spoke with her on 28 October 2019. In this correspondence the landlord advised the resident that if she were adjusting the pathway in the garden, this should remain the same width as the staircase to allow reasonable access for the upstairs neighbour.
On 5 January 2022 the resident called the landlord about her upstairs neighbour’s use of the rear garden. She asked for clarification of the garden boundaries and asked that the fire escape be moved. She followed up this contact with an email on 12 January 2022. Through internal communication the landlord’s leasehold department confirmed that the landlord had included a section of the rear garden within the legal transfer of the upstairs flat when this was sold in 1994. There was internal discussion around how the garden was laid out and if clearly defined boundaries should have been put in place. There is no evidence that the landlord communicated this to the resident.
On 24 January 2022 the resident contacted her local councillor about her concerns about the garden. In April 2022, the landlord recorded that it had agreed to arrange a visit to see the layout of the garden and the stairs.
The resident contacted the landlord again on this issue on 20 June 2022. She once again raised the issue of the shared garden and reported noise nuisance from her neighbour. She said that there had been late night parties, items dropped from the window, and she was concerned about the number of people living in the property. In reply on 21 June 2022 the landlord said that while it was unable to provide a full response to her enquiry, it confirmed that the lease plan showed that the garden had been divided. It further asked her to stop her partner accessing the rear section of the garden. In a direct reply the resident said she had asked her partner to weed the rear section of the garden as these were protruding through her fencing. She again raised the issue of the fire escape and a breach to her privacy. She said that she had erected fencing to prevent intrusion by estate agents and prospective buyers before the current owner of the upstairs flat bought it 11 months previously. She again queried the shared nature of her garden. Further she reported that her neighbour had held 5 parties into the early hours since moving in.
The landlord responded to the resident on 1 July 2022. It provided a copy of her tenancy agreement which it said showed that the garden was shared, together with a plan of the building and garden. This plan showed a pink zone at the far end of the garden and included a blue line to the right of the boundary of the garden. The landlord said that this confirmed that the rear section of the garden was owned by the upstairs flat. Further, it said that this showed the walkway to access the far end of the garden. This was to be 9.5 meters as marked on the plan. It confirmed that it had met with the resident and that it had spoken with her neighbour on 6 May 2022. It believed there had been no further issues with noise nuisance. It directed the resident to its mobile patrol team to report any future incidents and said that the neighbourhood officer would continue to monitor the situation.
The resident wrote to the landlord’s complaint email box on 11 July 2022. In this she detailed her concerns and queries around the shared garden and access to it. She said that there had been an issue over 3 years and that the property has been sold several times. She questioned the use of the fire escape to access the garden, particularly given the position of this and that it allowed views into her home. She said that her tenancy agreement did not say that she must give right of way or access through her garden, and she felt that the arrangement was totally unacceptable. She said that she wanted the landlord to undertake an assessment of the situation to address the conflict it caused. She provided plans that she had drawn of the garden area showing the space. She forwarded her email to both her local councillor and MP on 26 September 2022.
The resident wrote again to the landlord on 30 September 2022, heading her letter formal complaint. Within this she:
1. repeated her concerns about her neighbour accessing the garden area via the fire escape and said that this was an infringement of her privacy.
2. complained of antisocial behaviour (ASB) caused by her current neighbour in the form of parties and gatherings at unsocial hours, together with noise caused by the regular use of the fire escape.
3. said that she was unhappy with the responses she had received from the landlord’s various departments over the preceding 3 years.
4. outlined that she had been told that the garden area had always been shared and that it had been suggested that she curtain her windows.
5. said that she had installed fencing, with the agreement of her housing officer, to the side of her garden to prevent intrusions into her garden space.
6. said that the landlord’s leasehold department had told her that the fire escape should only be used in an emergency.
7. raised the landlord’s failure to follow up on actions discussed with her in May 2022 to measure the garden area.
8. set out why she believed that the garden should not be divided and gave a history of the property. She further said that she believed that estate agents had mis-sold the upstairs flat with the garden space.
On 6 October 2022 the resident’s MP raised an enquiry with the landlord on her behalf. He asked for a clear statement about access arrangements to the rear garden, who was responsible for the fire escape and whether there were any restrictions on its usage.
Having received no reply to her complaint, the resident contacted the Service on 10 November 2022 and asked for help in getting a resolution to her complaint.
The resident wrote to the landlord on 25 November 2022 following a telephone conversation. She had obtained the title plan for both properties via the land registry. She once again challenged the ownership of the garden area and the use of the fire escape to access this. She said that there was no right of way through her section of the garden. She also highlighted that the blue line on the plan provided previously by the landlord was located within the boundary of the neighbouring property.
The landlord provided its stage 1 complaint response on 3 February 2023. It said that it was writing following the resident’s contact with the Ombudsman and apologised for the delay in sending a formal reply. It set out that her complaint was about 3 specific issues. These were its failure to resolve the issue with the shared rear garden and that this was infringing on her privacy; that her neighbour should only use the spiral staircase as a fire escape and not as a means of access to the garden; and that there was ongoing noise nuisance affecting her and her family. In reply it said that:
1. it was partly upholding her complaint because of the time it has taken to respond. It offered her £100 compensation for the time and trouble caused to her in having to pursue a complaint.
2. her tenancy agreement specified that the garden was shared.
3. the upstairs flat had been sold under the right to buy in 1993 [sic]. At the time the garden was shared and had been split in two. It confirmed that it remained the freeholder of the property.
4. further, the lease for the upstairs property included a clause permitting access across the resident’s garden. It included the detail of this within the letter.
5. this confirmed that her garden was shared, allowing her upstairs neighbour to cross it to access their own section of the garden. It said that the landlord had previously confirmed this when it wrote to her on 1 July 2022. It further said that an access path had been in place prior to the resident moving in.
6. on 6 May 2022 it had agreed that her fence could remain. It had however said that it needed to ensure this was of a correct size and that the pathway may need widening. It had photographs which showed the width of the pathway prior to the resident moving into the property and had recorded that she had removed this. It would be visiting her neighbour to measure the area and would then advise if she should move her fence.
7. its internal advice had confirmed that her neighbour could use the spiral staircase for access to the garden, as well as a means of escape. It was arranging for its fire safety advisor to visit her neighbour and carry out an inspection.
8. it noted she had previously reported the condition of the spiral staircase and it was following this up with its repairs colleagues.
9. as to her privacy, it would speak to her neighbour reminding them that they should only use the stairs for access and not for spending time on. Further it recommended that she consider privacy screening for her windows.
10. during a visit to her in November 2022 she had asked officers to listen to recordings of noise caused by her neighbour. At the time it had advised that while the recordings captured noise these were not conclusive as to the source of the noise. Further it had discussed this with her in May and July 2022 and provided advice that she should report further incidents directly to her housing officer. It acknowledged that there had been changes in staff which had led to delays in dealing with the issues she had raised. For this it apologised and reconfirmed its offer of compensation.
11. she did not have sole access to the rear of the garden. This was shared with her neighbour who had a right of access through it to their own section of the garden. It would provide further follow up advice once it had visited her neighbour.
The resident made a request on 24 February 2023 for the landlord to review her complaint. She said that the landlord had failed to address her concerns. She did not accept that her garden could be shared while the far section remained private. She further said that she believed that her neighbour was renting the garden space for £10 as set out within the lease documents. She said that she had been “harassed, bullied, and victimised in my own garden… I have been fobbed off by the housing department who have given me nothing but false information, I feel strongly that I am being discriminated against…”. She provided a history of events since moving into the property, including damage caused to her home by unauthorised alterations carried out to the upstairs property by a previous owner. Further she said that she and her family had “endured, consistent inconsiderate and at times dangerous behaviours” by her current neighbour. She reported that over the preceding weekend the police had removed two men she believed were associated with her neighbour from the property. They had been trespassing within the garden of her property and that of two neighbouring homes. She set out her wish for peace, privacy and to feel safe in her home.
The resident pursued a response to her complaint both with the landlord and through contact with the Service in April and May 2023. The landlord wrote to the resident on 5 May 2023 apologising for the delay in responding to her complaint. It confirmed that this had been allocated to an investigating officer who would contact her.
The landlord provided its stage 2 complaint response on 12 May 2023. In this it confirmed the basis of her complaint and said that it had partially upheld her complaint due to the delay in its response. It reoffered the resident £100 compensation for the delays that had occurred through its complaint process. In its response it said that:
1. the leaseholder was not paying a fee for the use of the garden. It confirmed that the landlord had sold the rear section of the garden to the leaseholder. It said that there was no evidence to support this part of her complaint.
2. it noted that she had raised concerns for her privacy due to the location of the staircase. As this was the neighbour’s route to access their garden, the landlord could not stop this being used and it would be unreasonable for it to ask that they did so. Its housing team would speak with the neighbour to remind them of good neighbourly relations and ask that they only use the staircase for access to the garden.
3. as to her concerns around privacy it repeated its previous advice around privacy screening for her windows in the form of net curtains or blinds.
4. its officer had given her advice about how to report incidents of noise and ASB. Further it had met with her neighbour to discuss the issues she had raised, and they had made counter allegations of ASB. The neighbour would be reporting these to the police.
5. through its investigation it had found no evidence of discrimination.
The resident confirmed to the Service on 16 May 2023 that she wished it to investigate her complaint. She set out the details of her complaint and presented the information she had gathered around the use and division of the rear garden of her property. She said that the landlord’s leasehold department had told her on several occasions that her neighbour “had not purchased any part of the freehold land attached directly to her council home”. Further she provided details of the ASB caused by her neighbour and reported that this was ongoing.
The resident has shared further communication between the landlord and herself about the ongoing dispute with the neighbour. This included a notice of seeking possession sent to the resident by the landlord on 17 October 2024 and a formal complaint raised by her on 29 October 2024. The landlord provided a stage 1 complaint response on 13 November 2024. The resident is continuing to pursue this separate complaint with the landlord. As this has yet to complete the landlord’s complaint procedure the content of this complaint is outside the scope of this investigation.

Assessment and findings

Scope of investigation

It is the role of the Ombudsman to take an ‘inquisitorial’ approach, rather than an ‘adversarial’ one. In practice, this means that we act impartially whilst investigating disputes rather than taking up one side of the dispute or another. This approach means that we do not act like a court, considering opposing positions or stances on a matter or providing answers to all the issues and questions raised by a resident. It is not our role to weigh or compare different positions to decide who is right or wrong. We aim to resolve disputes and make an objective determination on the cause of landlords’ and residents’ disagreements. Where we find mistakes, we aim to find ways to put things right, create opportunities to learn and improve landlords’ services in the future for all tenants.
Within the context of the resident’s complaint the Ombudsman is unable to make a definitive statement as to the legal position of all parties. This investigation has considered the legal documentation provided and included detail of these within the assessment. This is not presented as a definitive legal position. Paragraph 42.f. of the Housing Ombudsman’s Scheme says that the Service may not investigate matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal, or procedure. Should the parties disagree with the assessment they may wish to seek further legal advice on this matter.
The Service acknowledges that the noise the resident has reported has had a profound impact on her. However, when considering complaints relating to noise nuisance, it is not the role of the Service to reach a decision on whether the incidents themselves have occurred. Instead, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.

The resident’s enquiries about ownership of an access to the back garden and the use of the spiral staircase.

Through her contact with the landlord the resident has set out her belief that the rear garden to the property should not be shared and should be for the sole use of her property. She has spoken with neighbours and passed to the landlord information given to her about the history of the property and the garden space. She has also obtained copies of the land registry documents relating to both properties. She has set out her specific concerns about the impact on her privacy and feeling of safety within her home.
The lease agreement for the upstairs property includes a section of the rear garden as part of the transferred property. This section is shaded in pink on the land registry title and the lease describes this as the ‘private garden’. The landlord has said that it included this rear section of the garden when it sold the property under the right to buy legislation. Further sales of the property have then correctly included this section of the rear garden. The resident has continually challenged that the landlord had sold any part of the rear garden and has said that she has received conflicting advice from members of the landlord’s staff. Through its correspondence with the resident the landlord has appropriately informed her about the legal framework in place and said that the upstairs neighbour owns the rear section of the garden. The landlord’s written correspondence has been consistent in this advice.
The resident’s challenge to the landlord was based on information that her neighbours had given her about the history of the property and the use of the garden. In the context of her complaint, the critical point is the date when she moved into the property and the situation with the garden at that time, alongside the information provided by the landlord. The evidence presented shows that the garden was subdivided by a fence and that there was a pathway to the right hand side of the garden, providing a route to the rear section of the garden.
The resident’s tenancy agreement has the underlined statement that the rear garden is “shared use whole/part”. While the garden was divided when she moved in, without the exclusion of the word ‘whole’ the tenancy agreement provides a lack of clarity. In completing the tenancy agreement, the landlord should have been clear, striking through the word that did not describe the garden. This would have given the resident a clear position on her right to the garden. It also had the opportunity to explain to the resident’s the access rights that were in place for the upstairs neighbour and to discuss any concerns that this may cause her. That it did not do so was a missed opportunity to provide clear information to the resident at an early stage about the use of and access to the rear garden.
The landlord has acknowledged that several officers have been involved through the period of the resident’s tenancy. This has led to a lack of clarity in the verbal advice, that the resident has said that, the landlord’s officers had given her. Further, the landlord has acknowledged that it may have made general statements about the sale of a property and associated gardens. The landlord has not provided records of telephone conversations or home visits carried out with the resident. It would have been reasonable for the landlord to have kept fuller records of its contact with the resident. This would ensure that it had a clear audit trail of the advice given to her by different officers. It would ensure that the landlord was able to give the resident consistent advice on the matter and be able to provide a contemporaneous record for independent review. That it had not done so demonstrates poor record keeping and is a failing.
As set out above it was incumbent on the landlord to make the situation clear to the resident when she moved into her home. As it did not do so the resident has been left increasingly frustrated by what she believed to be infringements on her own privacy by her neighbours, estate agents and prospective buyers as all accessed the garden space closest to her home.
Further the landlord took no steps to mediate between the two parties to find a way forward in the sharing of the garden space, or even to implement clear boundaries within the garden space. There was a lack of ownership in the handling of this matter. It would have been appropriate for the landlord to meet with both the resident and her neighbour to set out clearly the boundaries within the shared space. While the landlord approved the resident’s own installation of a fence, it would have been more appropriate for it to have set the boundaries and installed fencing while the property was empty. Having approved the resident’s fencing it has since asked that she remove this. It should now look to offer mediation to both parties and arrange for new boundary fencing to be put in place.
The resident has highlighted concerns about the regular use of the spiral staircase by her neighbour. She has said that this is a source of noise within her home and an intrusion on her privacy as it passes her window and rear door. Further she has highlighted safety concerns about the age and condition of the stairs. These are the only access route that the leasehold flat has to the garden space as it has no rear ground floor access. Within its stage 1 complaint response the landlord advised that it had raised the resident’s concerns with its fire safety and maintenance teams. There is however no evidence that this action was progressed. The landlord should arrange to carry out a fire safety assessment of the spiral staircase and assess the potential for noise transference within the resident’s home caused by its regular use.
Furthermore, the landlord should consider the impact on the resident’s privacy by the location of a staircase when regularly used, so close to her windows and door. A recommendation has been made that the landlord consider the installation of frosted or privacy glass to improve this situation for the resident.
There has been a failure by the landlord to ensure that the resident fully understood the legal position around the garden and to find a mediated solution to the shared nature of the garden space. This amounts to a service failure by the landlord. A series of recommendations have been made to support the landlord in finding a solution acceptable to the resident.

The resident’s reports of antisocial behaviour (ASB) and noise nuisance

The resident first reported ASB from her upstairs neighbour in her written correspondence in June 2022. She highlighted that her neighbour had held several late night parties that had carried on into the early hours. She also reported that items, including a wine bottle and cigarettes, had been thrown from the window. She said that she had been disturbed by the constant use of the spiral staircase, by door slamming and other noise from her neighbour. There is however little evidence presented by the landlord as to the actions it took to address the resident’s concerns.
The landlord’s ASB policy says that it will “manage and address ASB in a fair, reasonable, proportionate and transparent way putting residents at its heart”. This encourages residents to report unreasonable noise and promotes early interventions including mediation. Further, its says that it will carry out a risk assessment which will be used to inform any action plan and that it will use a range of tools to address reported ASB. In line with best practice, it would have been appropriate for the landlord to carry out a risk assessment and draw up an action plan with the resident. This would enable it to consider the impact of the ASB on the resident as well as provide her with reassurance that it had taken her complaints seriously. That it did not do so was a shortcoming in its handling of this matter.
It provided the resident with broad advice about reporting incidents in the future directly to her housing officer or through its out of hours noise team. Having been presented with recordings of the noise, the landlord said that these could not be used in evidence. The landlord did not offer any alternative to the resident in gathering such evidence. There is no record that it discussed the use of the Noise App or similar with her, in line with its guidance. This was a missed opportunity to support the resident and to try to resolve the ongoing ASB at the earliest opportunity.
Later, when the resident reported that she had called the police to deal with trespassers in the rear garden which were associated with her neighbour, there is no evidence that the landlord took steps to follow up with the resident, the police, or her neighbour. This was a significant failure by the landlord in its handling the resident’s reports of ASB and a failure to act in accordance with its own policy and procedure. This amounts to maladministration.
The landlord said within its stage 2 complaint response that it had spoken with her neighbour about the reports of ASB. At this time her neighbour had then made counter allegations. There is no record that it arranged a follow up with the resident to discuss the issues raised. Evidence has been provided that the landlord issued the resident with a warning letter about her behaviour and it is noted that it later issued a notice of seeking possession.
The landlord did not offer mediation at any stage of the complaints raised by the resident, either about the ASB or the shared use of the garden. It has said that it did not do so as it did not feel that either party would have been receptive to this. This was inappropriate in the circumstances as the landlord should have made the offer and allowed each party to decide on their participation. Mediation can be an extremely effective method of conflict resolution, especially in cases involving lower-level nuisance and lifestyle differences. The process can help to bring together all parties and can prevent an issue or disagreement from escalating into a more serious dispute. It is most effective when offered early in disputes. As such, the landlord’s decision not to offer mediation was a significant failure.
Overall, the landlord did not appropriately address the resident’s reports of ASB caused by her neighbour. This amounts to maladministration in its handling of her reports of ASB. In line with a wider order previously made in case reference 202219932 the landlord must carry out a review of its handling of ASB and the support provided to its residents. Further, it is recommended that it engage with the resident and her neighbour to work towards a mediated solution to what has become a protracted dispute.

The associated complaint and level of compensation.

The landlord has a 2 stage complaints procedure. This says that it will acknowledge complaints within 2 days of receipt and respond at stage 1 within 10 working days. Where a resident is dissatisfied with the landlord’s initial complaint response, they can escalate their complaint, and the landlord will respond at stage 2 within 25 working days.
The resident first contacted the landlord’s complaints team via email on 11 July 2022. She them sent a letter headed ‘formal complaint’ on 30 September 2022. In the interim she also raised enquiries via her local councillor and MP. The Service has not seen responses provided to these elected representatives. The landlord has further provided no evidence that it acknowledged the resident’s complaint, despite the clarity with which she headed her communication in September 2022.
The landlord provided a stage 1 complaint response on 3 February 2023, 6 months after she first raised her complaint. The response was only provided following the resident’s contact with the Service, which was acknowledged in its opening paragraph. A further 55 days elapsed before the landlord provided its final stage 2 complaint response. There was a significant failure in its handling of the resident’s complaint and the timeliness of its responses.
The landlord has failed at both stages to adhere to either its own complaint’s policy or the timescales set down within the Service’s Complaint Handling Code (the Code). The Code sets out the importance of early and local resolutions to effective complaint handling. Its failure to respond within the time set within its own policy allowed the resident’s complaint to go unaddressed for a significant period. Over this time the dispute between herself and her neighbour persisted. That it required an escalation to the Service for the landlord to consider the resident’s concerns within its formal complaints process was a significant failure that amounts to maladministration.
The landlord made an offer of £100 compensation in its stage 1 complaint response, which it then reoffered at stage 2. Given the significant delays in its complaint handling and the other failures identified through this report an order for compensation has been made based on this Service’s guidance on remedies.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s enquiries about ownership of and access to the back garden, and the use of the external spiral staircase.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour and noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s complaint and the level of compensation.

Orders and

Within 6 weeks of the date of this report the landlord must:
1. Provide the resident with a written apology for the failings identified within this report. This should be in line with the Service’s guidance on remedies.
2. Pay the resident a total of £650 compensation. This has been calculated as follows:
  1. £100 for the distress caused to the resident by the landlord’s failure to respond effectively to the resident’s enquiries about the ownership and use of the shared garden space.
  2. £250 for the distress and inconvenience caused to the resident by the failures in the landlord’s handling of her reports of ASB.
  3. £300 for time and trouble, distress, and inconvenience in relation to its handling of the associated complaint. This replaces the £100 offered by the landlord through its complaint process. If it has already paid this amount to the resident, it may deduct £100 from the final total of £650.

Recommendations

It is recommended that the landlord fully review the legal position regarding the leasehold and the land. Further it should consider providing the resident with a clear boundary section of the garden, installing the appropriate fencing. It should also consider the installation of privacy glass to the windows overlooked by the spiral staircase.
The landlord should engage with the resident and her neighbour to work towards a mediated solution to what has become a protracted dispute.
A wider order was issued to the landlord on 28 August 2024 as part of case 202219932, in which it was to review its handling of report of ASB and the support provided to its residents. The findings in this case should be considered as part of this review.
A recent special investigation carried out by the Service into the landlord’s services made recommendations that it should review its complaint handling processes and complaint handling training to ensure compliance with the Complaint Handling Code. The landlord should include the learning and action points arising from this determination.