Stonewater Limited (202321409)
REPORT
COMPLAINT 202321409
Stonewater Limited
12 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
- The complaint is about the landlord’s handling of the separation of the communal garden by a boundary fence.
Background
- The resident has an assured shorthold tenancy at the property which is a 1 bedroom flat. He has lived there since 2020. The landlord has a record that the resident, at times, struggles with his mental health.
- On 8 June 2023 the resident advised the landlord that there was an issue between him and his neighbour about the garden. He stated that the issues would be improved if the communal garden fence was reinstated so that each had their own part of the garden.
- A surveyor attended the property on 14 June 2023 and noted that the resident, who had a dog, had requested the majority of the garden. It advised that the garden was covered in dog faeces. It asked the landlord how the garden was to be split. The landlord checked the deeds for the property the following day and noted that it contained no information on the division of the garden. The landlord’s surveyor stated that it would attend the following week and would discuss the placement of the fence with both the resident and the neighbour before carrying out the work.
- It is not clear when the fence was installed, however, the resident submitted a complaint on 3 August 2023. He stated that due to the placement of the new fence, his neighbour had the bigger portion of the garden. He stated that he should have been consulted and that he had suffered a “breakdown”.
- After advising the resident that it required additional time to respond to the complaint, it responded at stage 1 on 29 August 2023 and stated as follows:
- It had wanted to discuss the changes with the resident prior to the works going ahead. Its surveyor had tried to call him and had knocked on his door but had been unable to make contact.
- Its surveyor had determined that it was best to split the garden down the middle. This gave the resident privacy and the bigger share of the garden for his dogs and shed.
- It apologised for the distress caused and offered £250 compensation to acknowledge this, and for the resident’s time and trouble.
- The date is not clear, but the resident escalated his complaint, which the landlord acknowledged on 11 September 2023. It responded at stage 2 on 19 September 2023 and stated as follows:
- It apologised that the resident had not been consulted on the split of the garden. It had tried to contact him but had not been able to speak to him.
- There had been a large amount of dog faeces in the garden, which limited the neighbour’s use of the garden. In order to ensure reasonable access to the garden, it had decided to install a dividing fence.
- It reiterated its offer of £250 compensation.
- The resident advised the landlord that the offer of compensation was an “insult” and referred his case to this Service on 20 September 2023.
Correspondence following the referral to this Service
- On 24 May 2024 the landlord advised the resident that in preparing the case for the Ombudsman, it had carried out a further review. It acknowledged that there had been a lack of consultation with the resident and that it should have communicated with him more. It acknowledged that this had caused inconvenience and frustration. As such, it offered an additional £250 compensation, bringing its total offer of compensation to £500.
- The landlord advised this Service that it had taken the following learning from the resident’s complaint:
- Communication to all effected parties should have been delivered more effectively. It would improve its communication where issues impacted multiple residents. If communication was not successful during site attendance, it would follow this up with a letter or text message, in line with a resident’s communication preferences.
- In future, it would look to conduct consultation with the effected parties prior to commencing works.
- Since the complaint it had implemented case processing for surveyors to better manage complex matters and matters involving more than one department. In future, it would open a case, record correspondence and share this with other departments.
Assessment and findings
Scope of investigation
- It is noted that within the resident’s complaint to the landlord, he queried the placement of the fence. This Service cannot make a decision in respect of where a boundary should be as that would be a matter for a Court to decide. This investigation will therefore focus on the landlord’s handling of the installation of the fence and its response to the resident’s complaint.
The landlord’s handling of the separation of the communal garden by a boundary fence
- It is apparent from the resident’s correspondence with the landlord in June 2023 that there had been issues between him and his neighbour over the use of the communal garden. The resident requested that the fence should be reinstated to resolve the issue. (It is not clear where the fence had been placed previously or why or when it had been removed).
- The landlord took the resident’s concerns and suggestion seriously and sent its surveyor to inspect the garden. This found that the whole garden area had been impacted by dog faeces. The landlord appropriately checked the deeds for the property. As this did not specify the division of the garden, the landlord decided to split the garden lengthways, to enable both parties to be able to use a part of the garden. This rationale was fair and reasonable to use in the absence of a specified boundary in the property deeds.
- It is noted by this Service that the resident’s tenancy agreement states that it does not allow dogs in blocks of flats which have shared gardens, unless it is an assistance dog to support a visual or hearing impairment. Despite this restriction on the ownership of dogs, the landlord did not enforce this and instead sought to accommodate the requirements of both parties. This demonstrated a resolution focused approach.
- The landlord acknowledged throughout it internal complaints procedure that it had not consulted the resident on the position of the fence prior to its installation. It is clear, however, that its surveyor did try to speak to the resident both by telephone and in person prior to the installation, but had been able to do so. It acknowledged that this had caused distress to the resident and it offered £250 compensation in recognition of its lack of consultation.
- When a failure is identified, as in this case, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
- The Ombudsman encourages landlord’s to take resolution focussed action, irrespective of the stage at which a case is at. However, the main focus for a landlord should always be to ensure that a case in dispute progresses to a fair resolution during its internal complaints process.
- It was not until the resident referred his complaint to this Service, that the landlord conducted a further review of the case and concluded that it should have consulted with the resident before works took place. It advised the Ombudsman of the learning it had taken from the case and how it would handle such a matter differently going forward. Whilst this learning was encouraging, a referral to the Ombudsman is not meant as another opportunity for the landlord to consider its handling of the complaint, as this should have been fully investigated during the internal complaints procedure.
- Although the landlord indicated a willingness to learn, in line with the Dispute Resolution Principles, there was little evidence of this at the time of the original complaint investigation. Nevertheless, the landlord did acknowledge that it had not spoken to the resident and it appropriately considered financial redress during its internal complaints procedure for the impact this had on the resident.
- Following the involvement of the Ombudsman, the landlord offered a further £250 compensation, bringing its total offer to £500 compensation. This Service has not seen any evidence of the landlord’s decision making in respect of how it determined this amount of compensation. However, the amount offered was within a range the Ombudsman would recommend where a resident had been adversely affected by a failure of a landlord.
- Although additional compensation can be said to have put things right for the resident, this could have been offered at an earlier stage and during the internal complaints procedure. It is unclear why the landlord sought to increase its offer following the involvement of this Service. The Ombudsman’s outcomes guidance is clear that a finding of reasonable redress is less likely to be determined under such circumstances. As such, in its handling of the resident’s complaint the landlord failed to effectively consider the impact on the resident and put things right during the internal complaints procedure. The landlord also missed the opportunity to learn lessons from the outcome of the complaint at the time of its original investigation. The landlord missed an opportunity to learn from the circumstances of this case at the material time. This was a missed opportunity to put process in place for the future, to ensure effective communication with residents over issues which impact their use of a shared space. As such, the landlord did not act in line with the Dispute Resolution Principles and maladministration has therefore been found with the landlord’s handling of the separation of the communal garden by a boundary fence.
Determination (decision)
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the separation of the communal garden by a boundary fence.
Order
- Within 4 weeks of the date of this report, the landlord is ordered pay the resident its revised offer of £500 compensation, if this has not already been paid. Evidence of compliance is to be provided to this Service.