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Sandwell Metropolitan Borough Council (202315368)

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REPORT

COMPLAINT 202315368

Sandwell Metropolitan Borough Council

29 November 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

  1. The complaint is about the landlord’s handling of the resident’s:
    1. reports of boundary issues with her neighbouring property.
    2. associated complaint.

Background

  1. The resident holds a secure tenancy that began in May 2021. The property is a terraced house, and the neighbouring properties are also tenanted and owned by the landlord. The landlord was aware that the resident suffers with mental health issues, and that her young children suffered with conditions including autism and attention deficit hyperactivity disorder (ADHD). The resident said that she moved into the property on medical grounds, as her son needed a safe space.
  2. From June 2021 the resident reported garden boundary issues to the landlord. She asked that the landlord establish the boundary line as her neighbour had extended their shed and garden across it. She later said that the corrugated metal dividing fence was not suitable for her children to play in the garden. The resident continued to report these issues to the landlord over the following 2 years. On occasions she did this via her Member of Parliament (MP), and she expressed her frustration at the landlord’s lack of progress and contact throughout.
  3. The Ombudsman has not seen a copy of the resident’s original complaint, but the landlord issued its stage 1 response to her on 21 June 2023. It stated that she was dissatisfied that the boundary with her neighbour had not been restored. The landlord’s key points were as follows:
    1. It said that it had given the resident’s neighbour a 28 day notice period to move their shed and restore the boundary before it considered enforcement action (this appeared to have been in June 2022). It apologised that it had not kept the resident updated after the 28 days had expired, and “partly upheld” her complaint on that basis.
    2. It stated that in September 2022 it identified that only a small part of the resident’s garden was affected by the boundary issue. It said that it had provided a skip to the resident to assist with the clearance of her garden, and issued her a £150 voucher.
    3. It said that in May 2023 it determined that the boundary breach was minor, and would not prevent use of the resident’s garden. It said that it had since left messages for the resident to arrange a further visit, and would consider legal options once this was completed.
  4. The resident escalated her complaint to stage 2 of the landlord’s process on 27 June 2023. Her key points were as follows:
    1. She complained that after 2 years her garden boundary had still not been restored. She said that she had spent £500 on fencing, and disputed that the landlord’s £150 voucher had been in resolution of this.
    2. She stated that the landlord’s skip had arrived 2 days late and was taken away before her garden was cleared. She said that the landlord’s housing officer had failed to contact her.
  5. The landlord issued the resident its stage 2 response on 19 July 2023. It repeated its stage 1 findings, and partly upheld the resident’s complaint on the same basis. It accepted that the issues had been outstanding for a protracted period without clear progression. It agreed to further pursue the matter with the neighbour. It said that it had not upheld the resident’s complaint that its housing officer had failed to contact her, as both parties had “provided a different account of events”. The landlord’s evidence detailed its contacts with the neighbour from August 2023 to July 2024. The neighbour expressed various concerns but indicated their general willingness to move their shed and restore the boundary.
  6. During this investigation the landlord advised that its record on 1 November 2024 stated that the only outstanding matter was concrete posts near the boundary that needed to be moved, and that it would close the case once this was confirmed. The resident said that the neighbour had moved their shed, but had left the concrete posts for her to deal with. She detailed the costs she had incurred doing this, as well as on fencing and ancillary items on both sides of her garden. She emphasised the impact on her mental health issues that pursuing the garden and boundary issues had had since the start of her tenancy.

Assessment and findings

Boundary issues

  1. The landlord provided the Service with a single signed page from the resident’s tenancy agreement, and directed us to the tenancy conditions page of its website. Those conditions state that the landlord was “not responsible for any dividing fences between you and your neighbour…”. It further stated that “we may ask you to remove any fencing or boundary structure you have erected if in our opinion it… encroaches onto another property. If you do not remove it we may do so and charge you a reasonable cost”. With regard to gardens, the tenancy conditions state that they were the responsibility of the resident to maintain to an acceptable standard.
  2. On 1 June 2021 the resident told the landlord that her neighbour had asked her to stop cutting back trees, as the neighbour believed that they were within their garden. The resident asked the landlord to contact her to discuss the boundary, and 1 week later the landlord asked her to send it photographs. Over the following weeks the resident chased the landlord for updates. The landlord’s internal discussions said that it was likely that the resident’s neighbour had previously extended their garden beyond the boundary. However, the landlord failed to demonstrate that it kept the resident informed, nor that it responded to her in a timely manner.
  3. On 3 August 2021 the resident complained to the landlord that she had not heard anything for several weeks and raised additional concerns about the condition of her dividing fence. She emphasised the importance of her garden with regards to her children’s ADHD, and the impact of them being unable to use or enjoy it. She expressed her dissatisfaction and said that she was considering taking the matter to her MP.
  4. The next record seen by the Ombudsman was the landlord’s response on 10 September 2021 to the MP’s enquiry. The response stated that the landlord had made unsuccessful attempts to engage the resident’s neighbour. It further stated that it would be issuing the neighbour a formal warning “to ensure that the boundary is returned to its original position”.
  5. The first record of the landlord completing a visit to assess the resident and neighbour’s boundary was not until 2 weeks after its response to the MP, on 24 September 2021. This was also 3 months from when the resident first raised the matter. The attending officer reported back that the resident believed that the landlord was looking into replacing the corrugated metal sheets that made up her dividing fence, but it appears not to have fully considered the impact of the boundary encroachment on the resident and her household. This contrasted with the statement expressed to the MP regarding returning the boundary to its original position.
  6. As such, it was understandable that the resident expressed her confusion in her call with the landlord on 4 October 2021. The resident referred to the advice stated in a letter that she said she had received from the landlord on 29 September 2021 (it is unclear whether this was the response to the MP or a separate communication). She said that the letter contradicted what the landlord had told her at its visit with regards to the boundary, and asked for clarification. The landlord’s associated internal communications also demonstrated uncertainty with regards to the contents of its own letter and its position regarding the resident’s boundary. The landlord’s lack of clarity would have added to the resident’s distress.
  7. It was unreasonable that the resident needed to again chase the landlord for a response 2 weeks later, when she said that she had heard nothing further. The landlord told the resident that it had passed her enquiry to its new officer who had taken over her area. It is further unreasonable that this was the last record of the matter provided by to us by the landlord until the following year. The landlord’s apparent lack of action and updates, following its promises regarding the neighbour, would have added to the resident’s time, trouble and frustration.
  8. The next information seen by the Ombudsman was the landlord’s record of fencing issues logged at an inspection of the resident’s property in January 2022 (the resident subsequently stated that the corrugated metal fence had been damaged during a December 2021 storm). The landlord received a further enquiry from the MP on behalf of the resident on 29 March 2022.
  9. A few days later the resident explained to the landlord that it had been 10 months since she first reported the issues, with no progress made. She said that her contacts to the landlord had been ignored, and again emphasised the impact on her children as well as her own mental health. It was understandable that she felt that the landlord was now only responding to her because the MP was again involved.
  10. It was inappropriate that it appeared to be another month before the landlord took any further action. In early May 2022 its internal communications asked for a quotation to replace the resident’s fence. It was unclear from the records at that time why the landlord wanted the quotation, as it was undisputed that it was not responsible for the dividing fence. Indeed, its internal email on 16 May 2022 provided the quotation but stated that “repairs will not pick up the cost”.
  11. Its response to the MP in mid-June 2022 stated that it had unsuccessfully applied to a local “problem solving budget”. However, it is unclear what, if anything, the landlord communicated to the resident during this time. The landlord has therefore failed to demonstrate any efforts to manage the resident’s expectations regarding her dividing fence.
  12. The landlord called the resident on 31 May 2022, when it is reasonable to conclude that it told her that it would not be replacing her dividing fence. The landlord’s email to the resident later that day referred to the call. It took a somewhat resolution focused approach by providing the resident with application details for a grant towards the cost of the fencing. It was appropriate for the landlord to apologise to the resident for the delays in dealing with the boundary encroachment issue, and to promise her an update about it soon.
  13. Nevertheless, it was again understandable that the resident expressed her intense frustration to the landlord the following day. She highlighted that she would have to wait 10 weeks for a decision on the grant, the impact of her children being unable to use her garden, and her feeling that “I’ve been fighting this now since June 2021”. The landlord’s record from the same day only stated that it had told the resident that she still had an open MP enquiry, and it would reply shortly. The evidence suggested that the MP enquiry was the one made in March 2022. As such, it would have further added to the resident’s time, trouble, and distress that the landlord did not issue its response to the MP enquiry until 16 June 2022.
  14. The landlord’s response to the MP enquiry was sent directly to the resident. It confirmed that it was not responsible for her dividing fence, which was in line with the conditions of the resident’s tenancy. It reiterated the support it had offered her to apply for the grant. It stated that it was aware that the resident’s neighbour had extended the boundary without its consent. It advised that it would give the neighbour 28 days to resolve this, and would consider enforcement action if they did not.
  15. It was therefore again unreasonable that 70 days later, on 25 August 2022, the resident found it necessary to chase the landlord for an update having heard nothing further. The landlord’s internal email on 8 September 2022 referred to the actions that it took in response. Its housing officer (HO) said that it had agreed with the resident to deal with the boundary encroachment as a separate matter, which it had advised may yet still take some time to resolve. It said that regarding her dividing fence, it had agreed to provide her with a £150 store voucher. It further stated that it had agreed to provide her with a skip in early October 2022 to assist with her clearing her garden. The landlord’s subsequent records suggested that these actions were completed.
  16. The next information seen by the Ombudsman was the resident’s complaint made to the landlord on 2 March 2023. She said that she had felt mislead by the landlord regarding the grant application for her dividing fence, which had been rejected. She referred to the landlord’s advice regarding enforcement action against her neighbour, which she said had come to nothing. She again highlighted her frustration, and described the profound impact of not having a “safe space” regarding her children’s conditions. It was unreasonable that it appeared to take the landlord 3 weeks to get back to the resident, when she repeated her concerns.
  17. The landlord called the resident and relayed the HO’s belief that matters associated with the dividing fence had been resolved in September 2022. It told the resident that the £150 voucher and skip arrangement had been in resolution of her fence concerns. It referred to the resident confirming her written agreement and understanding of this in September 2022. However, the landlord has failed to evidence this to the Ombudsman and the resident disputed it.
  18. The resident told the landlord that the voucher had represented £10 per month compensation for the 15 months of delays that she had experienced up to that point. She later highlighted that the voucher was only valid for decorative materials when she had needed a fence. The resident asked the landlord why it had taken no enforcement action following the 28 day notice it had given to her neighbour.
  19. On 3 May 2023 the landlord left a voicemail for the resident that reiterated that it considered the matter of her dividing fence to be resolved. It said that it would take time to resolve the separate boundary matter, and the neighbour’s encroaching shed. The landlord did then demonstrate a more proactive approach in its efforts to address the matter with the resident’s neighbour. However, this was now around 2 years since the resident had first reported the issues. It was therefore understandable that she continued to express her frustration over the remainder of May and early June 2023, including her plea to the landlord to “stop ignoring me”.
  20. The landlord completed a visit to the neighbour on 12 June 2023. Its associated record stated that the neighbour was willing to move their shed if necessary, but that its decision regarding the boundary was pending the outcome of the resident’s complaint (the landlord subsequently stated that the resident made her complaint on 15 June 2023, but the Ombudsman has not seen a copy of it).
  21. The landlord issued its stage 1 complaint response to the resident on 21 June 2023. The landlord’s complaint handling has been separately assessed below.
  22. The landlord’s stage 1 response did not refer to its 2021 investigation of the matter, and its associated advice to the MP that it would issue a formal warning to the neighbour and take enforcement action if necessary. It did refer to its 2022 and 2023 investigations, but described the breach of the boundary as “minor”. However, it concluded that it was still investigating the matter and “would then consider the legal options available […] to ensure that the boundary lines are restored”.
  23. The landlord issued its stage 2 complaint response to the resident on 19 July 2023, but offered no definitive position regarding the boundary. However, the landlord’s separate records 2 days later stated that its complaint decision was that the resident’s neighbour must move their shed or the matter would be treated as a breach of tenancy. The record further evidenced the landlord’s attempt to relay this information to the neighbour on 26 July 2023, but failed to demonstrate that it kept the resident appropriately updated or informed.
  24. The landlord evidenced its updates to the resident on 6 and 13 September 2023. Nonetheless, on 14 November 2023, she found it necessary to chase the landlord, and stated that she again felt ignored by its lack of response to her email 1 month earlier.
  25. The landlord’s visit to the neighbour in April 2024 confirmed that their shed had been moved but recorded that there were still tree stumps on the boundary. Its further visit 3 months later confirmed that the tree stumps had been removed and that some of the dividing fence installed. As above, the resident highlighted the expense that she had incurred on fencing and associated materials and works. While it was understandable that the resident felt aggrieved at this cost, the landlord’s position that it was not responsible for it was in line with her tenancy conditions.

Conclusions

  1. There was maladministration in the landlord’s handling of the boundary issue because:
    1. The landlord was aware from June 2021 about the issues.
    2. It was also aware of the vulnerabilities of the resident’s household, and the distress that the matter caused her.
    3. Its records evidenced that it first stated its intention to enforce the tenancy conditions in September 2021, but that it took around 2 years for resolution.
    4. During this period, the resident often had to chase the landlord for updates.
    5. The landlord did not manage the resident’s expectations in its handling of the fence.
  2. It was around a further year before the resident was able to get her garden to a condition that her and her children could enjoy. While this latter delay was not solely attributable to the landlord, it has failed to demonstrate that it learnt from the resident’s complaint and kept her appropriately updated.
  3. Our Remedies Guidance recognises the fact that ‘aggravating factors’ will make the emotional impact experienced by an individual unique to them. The resident and her children’s vulnerabilities significantly worsened the impact of the landlord’s failings, and is reflected in the compensation order below.

Complaint handling

  1. The landlord’s policy said that it had adopted the definition of a complaint stated in the Ombudsman’s Complaint Handling Code (the Code), which is as follows:

“An expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents”.

  1. The policy stated that the landlord operated a 2 stage process, with responses issued within 10 and 20 working days at stages 1 and 2 respectively. It explained that it distinguished between a complaint and an MP enquiry made on a residents’ behalf. It said that the latter would not be handled through its complaint process.
  2. The Code in effect at the time of the resident’s complaint stated that “landlords must address all points raised in the complaint and provide clear reasons for any decisions…”. The Code was updated in April 2024. It is noted that the landlord has since completed a self-assessment against the now statutory Code, and updated its processes. The Ombudsman has made a recommendation concerning this.
  3. The landlord failed on multiple occasions to recognise the resident’s expressions of dissatisfaction with its service as a formal complaint. When it did accept her complaint, some 2 years after the matter began, it responses failed to address all the points that she had raised. The Ombudsman has therefore made a further finding of maladministration in the landlord’s complaint handling.
  4. The resident’s first expression of dissatisfaction to the landlord seen by the Ombudsman was on 3 August 2021, which was 2 months after she had first reported the boundary issues. As was the case on numerous occasions over the following 2 years, she complained that the issues had not been addressed and that she had not heard from the landlord. She made her dissatisfaction with this clear, and stated that she was considering contacting her MP.
  5. It would have been appropriate for the landlord to recognise the resident’s contact as a complaint or, at the very least, make her aware of its policy and her right to make a complaint. The landlord’s policy excluded MP enquiries from its complaint process. This meant that if the resident addressed the matter via her MP, she would be deprived of the right to escalate her complaint if she remained dissatisfied.
  6. As such, it would have been further appropriate for the landlord to clearly explain this, which would have allowed the resident to make an informed decision. In failing to do any of this the landlord failed to act in line with either its own policy or the Code. It is reasonable to conclude that if the landlord had handled the matter in line with the Code, it would have increased the likelihood of it achieving a satisfactory, or at least timelier, outcome. It also would have afforded the resident the opportunity to bring the matter to the Ombudsman far sooner. The landlord’s failure to demonstrate that it appropriately advised the resident about its complaint process was therefore unreasonable.
  7. This same situation continued over the next 2 years with the resident repeatedly expressing her dissatisfaction at the lack of progress or updates from the landlord. In both September 2021 and June 2022, the landlord issued responses to the MP’s associated enquiries. However, it is a significant failing that the landlord has failed to demonstrate that it any point advised the resident of her right to make a complaint.
  8. The landlord’s stage 1 complaint response to the resident was issued on 21 June 2023. It referred to the resident having made her complaint on 15 June 2023, but the landlord has provided no record of this. As is considered in the assessment above, the responses offered little in the way of resolution.
  9. The resident’s escalation request 6 days later further expressed her dissatisfaction with the landlord’s handling of the matter over the previous 2 years. She also complained about the lack of contact from the landlord, and raised a range of issues regarding its previous provision of a skip and store vouchers. The landlord issued its stage 2 complaint response on 19 July 2023, which was within the timeframe of its policy. However, its failure to address all the issues raised by the resident was not in line with the Code.
  10. As it had at stage 1, the landlord ‘partly upheld’ the complaint on the basis that it had not kept the resident updated after the expiry of its 28 day notice to the neighbour the previous year. It further accepted that the matter had “been continuing for an excessive amount of time, without any clear progression of the agreed enforcement action”. However, beyond this, it offered no response to the 2 years of chasing and feeling ignored that the resident had experienced, other than to state that it had not upheld her complaint about the lack of more recent contact from its housing officer.
  11. The landlord also failed to offer any explanation as to why it had taken 2 years to recognise the resident’s expressions of dissatisfaction as a complaint, nor offer redress for this failing. As such, the Ombudsman has found maladministration in the landlord’s complaint handling, and made a further compensation order concerning this.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the resident’s reports of boundary issues with her neighbouring property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the resident’s associated complaint.

Orders

  1. The Ombudsman orders the landlord must, no later than 6 January 2025:
    1. Write to the resident to apologise for the further failings identified in this report.
    2. Pays the resident £850 compensation, made up of:
      1. £600 for the time, trouble, and distress caused by the failings identified in its handling of the resident’s boundary reports.
      2. £250 for the time, trouble and distress caused by the failings identified in its complaint handling.

The Ombudsman’s compensation order is separate from any existing financial arrangement with the resident and must be paid directly to her.

  1. The landlord must evidence compliance with these orders to the Service by 6 January 2025.

Recommendations

  1. The Ombudsman recommends that the landlord incorporates the findings of this report into its ongoing work to comply with the statutory Complaint Handling Code.