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Stevenage Borough Council (202307782)

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REPORT

COMPLAINT 202307782

Stevenage Borough Council

15 January 2025


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 report that her neighbour had moved a boundary fence.
  2. The Ombudsman has also investigated the landlord’s complaint handling.

Background

  1. The resident has held an assured tenancy with the landlord at the property since 24 April 2019. The property is a 2-bedroom house.
  2. The resident first told the landlord that her neighbour had moved the boundary fence between the properties on 4 June 2020. She contacted the landlord twice more in 2020 and explained that this meant that she had lost more than a metre square from the corner of her garden. She said that the neighbour had told her that they moved the fence while the property was empty before the resident moved in. However, she noticed it when she removed 3 large trees from the area.
  3. The resident contacted the landlord a further 3 times in 2021 before logging a complaint on 16 June 2021. The landlord provided a stage 1 complaint response on 28 July 2021. It said a housing officer would visit within the week. On 17 September 2021, it confirmed that it would ask the neighbour to move the fencing to the “correct location”.
  4. The resident called the landlord 6 more times in early 2022 to ask for an update. On 7 June 2022, the landlord logged another complaint. It provided another stage 1 complaint response. However, it has advised this Service that it is unable to provide a copy because it changed computer systems in November 2022 and could only access the information on the old system for 1 year. It noted that it wrote to the neighbour on 7 June 2022 and asked them to re-erect the fence to the correct boundary by 5 July 2022.
  5. The resident called the landlord for an update on 23 September 2022, and on 7 October 2022, she asked it to escalate the complaint.
  6. The landlord provided a stage 2 complaint response on 14 October 2022. It acknowledged that the resident had first contacted it about the issue in June 2020 and had been contacting it since that time with no resolution. It upheld the complaint and apologised for the service she had received. It said that it had not followed up actions promptly, its communication had not been to the expected standard, and there were lessons it could learn. It said that her housing officer would contact her within 10 working days to confirm next steps and offered her £100 compensation as a gesture of goodwill.
  7. The landlord made further enquiries about the situation following its final complaint response. On 26 March 2024, it gave the resident a copy of the plan of the property and said that the neighbour had purchased a strip of land in 1974 which included a corner of the garden. However, this was sold with the understanding that the resident, along with any other residents of the property, had a right of access over this strip to get to the area at the rear. As she had an alternative gate to access the area of land at the rear, it saw no reason to pursue this further unless she advised them there was an issue.
  8. The landlord has advised us that, although the fencing put in place by the neighbour did not allow a right of way for the resident to access the area behind the properties, there is an alternative gate for her to access this. Therefore, it does not intend to ask the neighbour to change the position of the fencing and is not going to pursue the right of way.

Assessment and findings

Scope of investigation

  1. What we can consider is called the Ombudsman’s jurisdiction and is set out in the Scheme. Paragraph 42(f) of the Scheme says that the Ombudsman may not consider complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
  2. The Ombudsman does not have authority to make legally binding decisions about boundaries and legal rights of way, or to determine where they should be. As such, this investigation has not sought to make a finding about this. Rather, we have focussed on the landlord’s response to the resident’s reports about the boundary and whether it followed a reasonable process and was fair with the actions it took. The resident can take legal advice regarding this should she wish.

Boundary fence

  1. The resident first reported the issue with the boundary fence in June 2020. The landlord should have provided a meaningful response to this enquiry within a reasonable timeframe. However, in this case it did not. Over a year later, in September 2021, it told her that it would ask her neighbour to move the fencing. This was an unacceptable delay which caused the resident distress and inconvenience.
  2. However, despite the long delay in reaching this conclusion, the landlord did not monitor the outcome of its request which meant that the resident had to call it for updates. There is evidence that she called 6 times but we have seen no evidence that the landlord returned these calls. This cost her time and trouble.
  3. The landlord asked the neighbour to move the fence again in June 2022 but it did not monitor the outcome of its request again. This further failing led to the resident chasing the landlord 3 more times, costing her further time and trouble and causing her further distress and inconvenience.
  4. There is evidence that the landlord investigated the situation fully after the stage 2 complaint response. This led to a change in its response. It discovered that the neighbour purchased a piece of land years previously and a plan forwarded to the resident indicates that this included a corner of her garden. However, the resident should have right of way across the section of the garden to access the area at the back of the properties.
  5. A more thorough investigation at the time of the resident’s initial enquiry would have shown that the land was sold in 1974. However, this did not happen, and instead it took almost 4 years for the landlord to communicate this to the resident. This unacceptable delay cost her considerable time and trouble. It also raised her expectations because the landlord told her that it would ask the neighbour to re-instate the fence to the correct position. However, this did not happen. This caused her distress and inconvenience.
  6. Once the landlord understood the situation, it communicated this to the resident and gave reasoning for its decision. It decided that, as there is an alternative gate for her to access the area behind the property, it would not be proportionate to enforce the right of way. It was reasonable for the landlord to have kept the resident informed about its position and its consideration of the detriment caused by the fence. It was also appropriate that it informed the resident that it would discuss any further concerns she had.
  7. The resident has advised this Service that she wishes to purchase the property but will not do so as the situation stands. Therefore, a recommendation has been made for the landlord to contact the resident to clarify its decision regarding enforcement of the right of way and to confirm which area of land has been sold.
  8. Due to the landlord’s failure to follow up its original promises, the long delay in providing a meaningful response, and it raising the residents expectations due to a lack of investigation at an earlier stage, there has been maladministration in its handling of her report that a neighbour had moved a boundary fence.
  9. The landlord offered £100 compensation as a goodwill gesture. However, this was not proportionate to the distress and inconvenience and time and trouble experienced by the resident because of the landlord’s failings. An order has therefore been made for it to pay a total of £500 compensation to reflect this. This is in accordance with the Ombudsman’s remedies guidance.

Complaint handling

  1. The Housing Ombudsman’s complaint handling code (the Code) says that “a full record must be kept of the complaint, any review, and the outcomes at each stage. This must include the original complaint and the date received, all correspondence with the resident, correspondence with other parties and any reports or surveys prepared.”
  2. The landlord’s retention schedule says that all records relating to complaints should be retained for 3 years from the date the complaint is resolved.
  3. The landlord informed us that it is unable to provide a copy of the stage 1 complaint response for the complaint of 7 June 2022 due to a change in computer system. It is essential that landlords maintain accurate records to effectively manage issues raised by residents. The landlord’s failure to follow the Code and its retention schedule has impacted our ability to carry out a thorough investigation of the issue.
  4. The Code says that at each stage of the complaints process complaints handlers must:
    1. give the resident a fair chance to set out their position; and
    2. consider all relevant information and evidence carefully.
  5. The landlord had already answered a complaint from the resident about the same subject at stage 1 over a year before this complaint was logged. At that time, its remedy to put things right was that a housing officer would visit within the week. Following another stage 1 response, the remedy it gave to put things right at stage 2 was again that a housing officer would contact the resident in the next 10 working days. It is not evident that it sought to discuss the resident’s complaint with her prior to its response on either occasion.
  6. The complaints process is an opportunity to put things right but in this case the landlord missed the opportunity. Had it followed the Code, spoken to the resident, and carried out a more thorough complaint investigation, it could have offered a different and more meaningful remedy to the complaint. This failing caused the resident distress and inconvenience because no progress had been made in over a year despite her complaining more than once.
  7. The Code also says that “outstanding actions must still be tracked and actioned expeditiously with regular updates provided to the resident.”
  8. The landlord then did not track and action its offer at stage 2. While it called the resident to say that a surveyor would attend the property, this did not happen for another 4 months. The landlord then failed to tell the resident the outcome of this visit, or of any other investigations it was carrying out. This led to her completing a third complaint form in June 2023. This communications and complaint handling failure cost the resident further time and trouble because she contacted the landlord again and escalated the issue to this Service for investigation.
  9. Due to the failings identified above there has been maladministration in the landlords handling of the resident’s complaint. An order to pay £100 compensation for the time, trouble, distress, and inconvenience caused has been made.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s:
    1. Handling of the resident’s report that her neighbour had moved a boundary fence.
    2. Complaint handling.

Orders and recommendations

Orders

  1. The landlord must apologise in writing to the resident for the failings identified within 4 weeks of the date of this report.
  2. The Ombudsman orders the landlord to pay compensation of £600, comprising:
    1. £500 for the distress, inconvenience, time, and trouble caused by its failures in handling the resident’s report that a boundary fence had been moved.
    2. £100 for the time and trouble caused by its complaint handling failures.
  3. This replaces the landlord’s previous offer of £100 which should be deducted from the total if already paid. This must be paid within 4 weeks of the date of this report.
  4. Due to its failure to comply with the Code the landlord must complete a review of how and why the complaints records were deleted when a new computer system was commissioned. Use findings from the review to ensure that a similar thing does not happen when it commissions any new IT systems in the future. This to be completed within 12 weeks of the date of this report.

Recommendations

  1. Contact the resident to discuss clarify its decision regarding enforcement of the right of way and to confirm which area of land has been sold, to better inform her decision.