Waverley Borough Council (202413277)

REPORT

COMPLAINT 202413277

Waverley Borough Council

12 March 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

The complaint is about the landlord’s response to the resident’s request for use of her garden.
The Ombudsman has also considered the landlord’s complaint handling and record keeping.

Background

The resident is a secure tenant. Her tenancy began on 12 September 2022. The property is a ground floor flat. The upstairs flat is occupied by another tenant of the landlord (the neighbour).
The resident viewed the property before signing her tenancy agreement. The landlord told her at the viewing that half of the rear garden came with her property. At that time the neighbour occupied and used the whole garden. There was no dividing fence in place. The landlord verbally assured the resident at the viewing that it would install a boundary fence.
The landlord carried out a “7 month new tenant visit” on 18 April 2023. During this visit the resident asked it to reinstate the boundary so she could use the garden. In a follow up letter sent later that month, the landlord said it was “taking longer than anticipated” to reinstate the boundary due to “circumstances beyond [its] control”. It apologised and thanked the resident for her “continued patience”.
On 14 September 2023 the resident sent a letter to the landlord. She said:
1. she had contacted the landlord “numerous times” over the past year to report that she was experiencing issues with her neighbour. It had not called her back or visited her. This had led to a “deterioration in [her] physical and mental health”.
2. her issues with the neighbour had arisen due to the landlord not dividing the garden prior to the resident moving in.
3. she made the landlord aware prior to signing the tenancy agreement that her acceptance of it was dependant on having a garden. The landlord assured her before she signed that the property came with a garden. It sent her a garden plan. It said it would put a boundary in place by Spring 2023.
4. shortly after she moved in, the neighbour told her that she had an agreement with the previous tenant of the resident’s property. The agreement was that the neighbour would have sole use and occupation of the whole garden.
5. the landlord was aware of the agreement between the neighbour and former tenant but failed to advise the resident of this when it discussed the garden with her during sign up. It was also aware that the neighbour could be “difficult”.
6. the resident tried to sit in the garden but the neighbour verbally abused her. She had therefore stopped sitting outside.
7. her relationship with the neighbour had deteriorated further. This had impacted her health and ability to work.
8. she wanted the landlord to fulfil its “promise” and reinstate the original garden boundary without any further delay.
On 18 December 2024 the resident wrote to the landlord again and raised the same concerns. She said it was “incredibly frustrating” that the landlord had not yet reinstated a garden boundary. She said she had been subjected to verbal abusive and passive aggressive comments from her neighbour. She outlined the distress this caused her.
The landlord recorded this correspondence as a formal complaint. It provided its stage 1 complaint response on 5 January 2024. It said:
1. it accepted that it advised the resident when she viewed the property that it came with a portion of the rear garden and that it would reinstate the boundary.
2. it told the resident during the 7 month visit in April 2023 that there were some “complexities” with the matter but the plan remained to reinstate a garden boundary.
3. it had written to the resident on 8 November 2023 and advised a contractor would start work to put a boundary fence in place on 15 January 2024. It had made the neighbour aware of this.
4. as a “gesture of goodwill” for the delay, it was offering the resident a £209 credit to her rent account. This was equivalent to 2 weeks’ rent.
On 15 February 2024 the resident asked the landlord to escalate her complaint. She said:
1. the work to reinstate the boundary had not commenced despite the landlord indicating in the stage 1 response that it would start in mid January.
2. she had tried to call the landlord on a “dozen occasions” since then to seek an update but it had not responded to her.
3. she was already under “immeasurable stress” due to the conflict with her neighbour. The lack of communication from the landlord had made it worse.
4. she wanted the landlord to confirm the date it would carry out the work.
5. she wanted it to pay her back a portion of her rent to reflect that she had not had full use of her property.
The landlord issued its stage 2 response on 12 March 2024. It said:
1. it offered its “sincere apologies” that the resident had been unable to use her garden for so long.
2. that although there was a previous “informal agreement” between the neighbour and former tenant, it still intended to proceed with dividing the garden.
3. it would erect a chain link fence to divide the garden. Its contractors would visit the resident the following week to measure and cost up the work.
4. it hoped to have the fencing in place by the end of April 2024. If there was a change to the timescale, it would let the resident know.
5. in addition to the £209 rent credit offered in the stage 1 response, it offered the resident £150 in cash which it hoped would help her buy new plants for the garden.
By the end of April 2024 the landlord had not made any progress with dividing the garden. The resident asked it for an update. It advised her that the delay was because it was trying to arrange a home visit with the neighbour before starting the work to install the fence.
The resident continued to seek updates from the landlord. On 1 May 2024 she asked if she could rejoin the housing register. She said even if it resolved the boundary issue, her relationship with the neighbour had become “strained beyond repair”. The landlord considered her request but decided she was not eligible to rejoin the housing register. It told her this was because it hoped to resolve the boundary issue within the next 4 to 6 weeks. In recognition of the ongoing delay, it increased the £150 cash compensation offered in the stage 2 response to £500.
By July 2024 the landlord had still not installed the fence or otherwise divided the garden. It told the resident this was due to a “lack of engagement” from the neighbour and that it was seeking legal advice. However, the resident was unhappy that the matter remained unresolved. She therefore referred her complaint to the Ombudsman. She told us the outcome she sought was for the landlord to divide the garden. She said she also wanted financial compensation for her loss of use of the garden.
Over the next 7 months the resident continued to seek regular updates from the landlord. It told her that although it still wished to reinstate the boundary, “legal complications” were preventing it from doing so. In February 2025 it advised her that due to the lack of progress in resolving the issue, it had agreed to allow her to rejoin the housing register. As at the date of this report, the garden remains undivided.

Assessment and findings

Scope of investigation

In her complaint correspondence the resident said the unresolved garden boundary issue had negatively impacted on her mental and physical health. The Ombudsman can consider the likely distress and inconvenience any identified failings may have caused, but we cannot determine liability for personal injury. We are not qualified to make an assessment as to how the landlord’s actions, or lack of action, might have caused a medical condition or resulted in a deterioration of an existing condition. Any such claim would be more appropriately progressed through insurance or as a civil action. If the resident wishes to pursue a personal injury claim, she should seek independent legal advice.

Response to the resident’s request for use of her garden

There were numerous failings by the landlord in its response to the resident’s request for use of her garden. These failings included:
1. it did not take action during the void stage to divide the garden. If it was unable to divide it at that time, it should not have included it in the tenancy offer to the resident. It was inappropriate that it offered her a garden but could not ensure she was able to use it.
2. it failed to provide the resident with proactive updates about its plans to divide the garden in the 15 months prior to her formal complaint. Instead the resident spent avoidable time and trouble pursuing it for updates
3. it did not consider the resident’s reports of her neighbour’s threatening behaviour in line with its antisocial behaviour (ASB) policy and procedure. There is no evidence that it:
  1. acknowledged or responded to the concerns raised by the resident in her letter of 14 September 2023. She specifically referred to the landlord’s ASB procedure within this letter but it failed to pick up on this prompt.
  2. spoke to the neighbour about her behaviour.
  3. considered whether it should offer mediation or any other intervention to resolve the tension between both parties.
4. it failed to reinstate the garden boundary despite assuring the resident repeatedly, including in its complaint responses, that it would do so.
It is evident there has been a seriously detrimental impact on the resident due to the above failings. She has not had use of a garden to which she is entitled under her tenancy agreement for the entire period of her tenancy. She has paid full rent throughout. She has been unfairly placed in the centre of a dispute that is between the landlord and the neighbour, and which should have been resolved by the landlord during the void period. She explained how this has led to a breakdown “beyond repair” in her relationship with the neighbour. She said in her complaint correspondence that the landlord added to her distress due to its poor communications and its failure to resolve the matter.
Overall the Ombudsman finds that there was severe maladministration in the landlord’s response to the resident’s request for use of her garden. That it offered her a property with a garden, without first ensuring that she would be able to use it, was a significant failing. It has had a seriously detrimental and lasting impact on the resident’s enjoyment of her home, resulting in her seeking to move.
In line with our remedies guidance, we order the landlord to pay the resident £600 compensation. This is for the distress and inconvenience she has suffered due to the severe maladministration. It is also intended to compensate her for the time and trouble she has spent asking the landlord for updates about the garden.
In addition to this, we consider it fair that the landlord pays the resident rent based compensation for loss of use of the garden. It does not dispute that she has been unable to use the garden for the duration of her tenancy. Given this, we order it to pay her compensation based on 10% of the rent she paid from the start of her tenancy (12 September 2022) to the date of this report (12 March 2025).
We have calculated this as being £1,388. This is comprised of:
1. 10% of 29 weeks rent at £101 per week during 2022-23 = £293
2. 10% of 52 weeks rent at £105 per week during 2023-24 = £546
3. 10% of 49 weeks rent at £112 per week during 2024-25 = £549
If the landlord has already paid the resident the £500 compensation for delays it offered in May 2024, this may be deducted from the compensation we have ordered. We have not included the £209 rent credit in our calculations as the landlord indicated this was a “goodwill gesture” rather than compensation for its failures.
We have not ordered the landlord to carry out a senior manager case review of this complaint. This is because it has already reviewed the case and acknowledged its failings in a letter to the Ombudsman on 11 February 2025. The letter was sent by a senior manager. In the letter the landlord said:
1. it had “not handled this case well from the outset”.
2. it should have known at the start of the tenancy that dividing the garden would “be difficult to implement”.
3. it should have offered the resident the option of a transfer sooner.
4. the case identified the need for it to provide residents with regular updates on action it was taking to resolve ongoing issues.
5. it has put in place a policy which addresses the allocation of garden space for residents who live in flats.
We are satisfied that the landlord has learnt from this case and has taken reasonable steps to prevent a similar situation arising in the future. We acknowledge that this does not resolve the situation for the resident. She remains unable to use her garden. However, we are unable to order the landlord to reinstate the boundary. It has appropriately obtained legal advice and it is reasonable for it to act in accordance with that advice.
We are unable to order the landlord to reduce the rent. Disputes about the amount of rent payable fall within the remit of the First Tier Tribunal (Property Chamber). However, we recommend that it considers applying a 10% discount to the rent from the date of this report until such time as the garden is divided or the resident moves out. If it decides not to do so, or if the resident is unhappy about the amount of rent payable, she may refer the matter to the Tribunal.

Complaint Handling

The landlord’s complaint policy defines a complaint as being “an expression of dissatisfaction however made, about the standard of service, actions or lack of action”. This is in line with the Ombudsman’s Complaint Handling Code (the Code) which states that a resident does not have to use the word ‘complaint’ for it to be treated as a complaint.
In its letter to the Ombudsman on 11 February 2025, the landlord referred to the resident’s letter of 14 September 2023. In that letter she raised concerns about its handling of her request for use of the garden. The landlord acknowledged to us that it should have treated the letter as a formal complaint. We agree. That it did not meant it failed to adhere to its complaints policy and the Code. Had it done so, it would have investigated her complaint at least 3 months sooner than it did. The resident would have then been in a position to refer it to us for investigation sooner.
We have found that there were also failures in the landlord’s complaint handling once it was processing her concerns as a formal complaint.
The Code recognises that landlords will not always have completed all outstanding actions by the time a complaint response is issued. We advise that in such cases, the complaint response should contain an action plan with timelines. The landlord should monitor the action plan and keep the resident updated on the progress of any outstanding actions until they are completed. The landlord failed to do that in this case.
It said in the stage 1 response that it would proceed with dividing the fence but provided no timeframe for doing so. It did not carry out the work and provided the resident with no further updates until it issued its stage 2 response 2 months later. The resident then spent further time and trouble in seeking updates when it did not complete the work within the timeframe suggested in the stage 2 response. It was unreasonable that she had to do so and that the landlord did not proactively update her, particularly as it had acknowledged its delays to date in its complaint responses.
The Ombudsman also finds that the landlord could reasonably have sought legal advice sooner in this case. When the resident’s complaint was made, the circumstances that had previously prevented the landlord from reinstating the boundary continued to exist. Given this and the fact the tenancy rights of two individuals – the resident and the neighbour – were engaged, it would have been reasonable for the landlord to seek legal advice during its complaint investigation. This may have enabled it to provide a complaint response that better managed the resident’s expectations. Instead, it provided an assurance in both complaint responses that it would take action despite not being in a position to follow through on that commitment.
The Ombudsman finds overall that there was maladministration in the landlord’s complaint handling. In line with our remedies guidance, we order the landlord to pay the resident £250 for the distress and inconvenience caused by this and for her time and trouble in pursuing the complaint.

Record Keeping

There was service failure in the landlord’s record keeping. When providing evidence to the Ombudsman, it told us that:
1. it had no record of a garden boundary map being provided to the resident when she signed the tenancy agreement.
2. the sign up documentation was no longer stored on its database.
3. it had no other records to evidence the discussion it had with the resident during the initial viewing regarding the use of the garden and whether a fence would be installed. It instead relied during its complaint investigation on the recollection of the housing officer who attended the viewing.
The landlord acknowledged in its letter to us on 11 February 2025 that “more needs to be done to improve record keeping”. It said it was “difficult to evidence all the actions taken in response to the resident’s complaint”. It advised us it was providing training to its housing officers on accurate record keeping. Its new policy on the allocation of garden space requires it to include a garden plan with each new tenancy agreement specifying the areas allocated for the resident’s use.
Given this, we have not made any orders in relation to the record keeping service failure. We are satisfied that the landlord has appropriately recognised its failings and has taken steps to address this.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Severe maladministration in the landlord’s response to the resident’s request for use of her garden.
2. Maladministration in the landlord’s complaint handling.
3. Service failure in the landlord’s record keeping.

Orders

Within 4 weeks of the date of this report, the landlord should:
1. Apologise to the resident for the failures identified in this report. The apology should follow the best practice set out in the Ombudsman’s remedies guidance. It should be made by a senior officer.
2. Pay the resident £2,238 compensation broken down as follows:
  1. £600 for the distress and inconvenience, and time and trouble, caused by the severe maladministration in its response to the resident’s request for use of her garden.
  2. £1,388 for the loss of use of the garden between 12 September 2022 and the date of this report.
  3. £250 for the distress and inconvenience, and time and trouble, caused by the maladministration in its complaint handling.
3. If the landlord has already paid the resident the £500 compensation it previously offered in May 2024, it may deduct this from the £2,238 ordered.

Recommendation

We recommend that the landlord considers applying a 10% discount to the resident’s rent from the date of this report until such time as the garden is divided or the resident moves out. If it decides not to do so, or if the resident is unhappy about the amount of rent payable, she may refer the matter to the First Tier Tribunal (Property Chamber).