Clarion Housing Association Limited (202207167)

REPORT

COMPLAINT 202207167

Clarion Housing Association Limited

19 January 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 resident’s complaint is about:
1. The landlord’s handling of a dispute over a garden fence.
2. The landlord’s handling of the resident’s management transfer.
The Ombudsman has also considered the landlord’s complaint handling while investigating this complaint.

Background

The resident has a joint assured tenancy with her husband, which commenced in 2004. Their daughter is listed as an occupier. The landlord has told this Service that the resident is recorded as having a disability but that they are ‘not vulnerable’.
This Service has seen evidence that the resident is in dispute with her neighbour. The landlord agreed to arrange a management transfer to a suitable alternative 2 bed property in a specific geographical area after the resident made a formal complaint about how the dispute had been handled. The resident was placed on the management transfer list in January 2016.
The resident and the neighbour both have gardens provided by the landlord. Both gardens share a border with a fence separating the two.
On 1 July 2019, the landlord agreed to continue to review the resident’s management transfer status and for the next offer of accommodation to be the next available 2 bed house in the resident’s preferred area. To date, the resident has turned down all properties offered as part of the management transfer for a variety of reasons.
On 29 November 2019, the landlord informed the Ombudsman that it would arrange for the resident to have 2 named contacts who would manage offers from the management transfer list, that the resident had requested a transfer to an area of high demand with little housing stock owned by the landlord, and that it had offered properties in the resident’s preferred area which had been turned down. This contact was in connection to a previous complaint which was investigated by this Service. It stated an out of area offer had been made in October 2019 but this had also been turned down by the resident. The landlord had agreed with the resident to extend the preferred area to cover a nearby town, but also noted that town was also an area of high demand with little housing stock owned by the landlord.
On 25 June 2021, the landlord gave the neighbour permission to replace the wire border fence with a 5 foot high wooden fence. This permission was given on the condition that the neighbour must agree with other neighbours if existing fencing was to be removed and a new fence erected, with both parties having to agree on where the boundary between the two gardens lay. The permission letter stated that if there was no agreement, the existing fence should be left and any new fence erected within the neighbour’s garden alongside the existing fence.
On 4 February 2022, the landlord provided a stage 1 response to the resident’s complaint about its handling of an alleged breach of tenancy by the neighbour and a general lack of communication by the landlord. The landlord agreed there were delays in its response about tenancy breach issues, arranged for a member of the neighbourhood response team to visit the resident and agreed to pay £100 compensation.
On 30 March 2022, the resident reported noise nuisance from the neighbour’s property and an incident where someone had come out of the property with no top on and needing medical attention. The resident told the landlord she was not comfortable with using her garden because of the ongoing issues with her neighbour.
On 8 July 2022, the resident requested escalation of her stage 1 complaint.
On 8 August 2022, the resident told the landlord that the neighbour had been aggressive towards her and that she wanted the landlord to handle the situation. She also said that she felt the neighbour was actively trying to annoy her and that she felt bullied and harassed, getting no sleep on nights when the neighbour was causing a disturbance.
On 30 August 2022, the Ombudsman wrote to the landlord and requested that the resident’s complaint be escalated to stage 2 with a response within 20 working days or in accordance with the landlord’s complaints procedure. The landlord acknowledged the escalation request on 7 September 2022.
On 9 September 2022, the landlord stated it was still committed to offering the resident first refusal on any 2 bed houses which became available in her areas of preference, although it also noted the resident had recently declined 2 offers.
On 24 October 2022, the Ombudsman wrote again to the landlord, asking that a complaint response be given within 5 working days and that copies be sent to the resident and the Ombudsman.
On 25 October 2022, the landlord provided a stage 2 response to the resident’s complaint. It acknowledged there were issues with a neighbourhood officer knocking on the resident’s door shortly after speaking with the neighbour due to the ongoing dispute, and that the resident did not get called back by customer services despite the resident’s request. However, it did not agree that the neighbour’s new fence was over the boundary line between gardens. The landlord also confirmed the resident was still on the management transfer list and it remained committed to offering the resident first refusal on 2 bed house in the areas of preference, although it reiterated that she had refused a number of offers and implied this was the primary reason for the delay in the move. It offered the resident a total of £150 in compensation for its failings: £50 for failing to communicate effectively, £50 for failure to pass relevant information between teams, and £50 for delays although the landlord did not explain whether compensation was being offered for delays in the transfer or in its complaint response.
The resident raised further noise complaints and concerns about the neighbour in December 2022. The landlord agreed to investigate, asking the resident to pass on any crime reference numbers where incidents had also been reported to the police and to take recordings of the noise with a noise recording app. The landlord explained in writing that it needed these reference numbers so it could get more information from the police about the reported incidents, also recommending that the resident approached her local authority to potentially take action about noise nuisance.
In January 2023, the resident reported that the neighbour was causing a noise nuisance and that she believed the neighbour had installed wooden flooring, which was making the noise worse. She asked at this point that any officers handling the issue refrain from knocking on her door at the same time as the neighbour’s as she was worried this may make things worse.
In February 2023, the landlord closed the case about the neighbour’s alleged breach of tenancy. It wrote to the resident stating it did not believe the installation of hard flooring was a breach of tenancy as the neighbour lived below her and it did not believe this would cause noise transference upwards. The resident made a fresh complaint about the landlord’s handling of her reports shortly after this.
On 21 March 2023, the landlord wrote to the resident following a peer review into her complaint made in February 2023 about neighbour nuisance. It agreed that there had been issues with the way in which the case had been managed, although it did not explain what the issues were, but said that it could not take further action and the case would be closed.
On 19 April 2023, the landlord’s customer services team reviewed photographs of the wooden fence. This team stated it appeared the resident was correct that the neighbour had taken part of the resident’s garden by erecting the fence over the boundary line. This Service has seen evidence from the landlord that states the issue should have been picked up earlier and it needed to be remedied before investigation by the Ombudsman.
This Service has seen evidence that the landlord reviewed the resident’s management transfer status on 20 April 2023 and it stated all attempts to remove the resident from the transfer list after the resident had been made offers of alternative accommodation had been ultimately unsuccessful.
Between 24 and 25 April 2023, the landlord reviewed the antisocial behaviour incidents logged in its records following complaints by the resident and the reports of tenancy breaches. It noted there were 4 antisocial behaviour incidents logged since 19 December 2022 and the resident had not provided any noise app recordings. It also noted there had been 3 alleged tenancy breaches on record for the neighbour but that no breach had been found after investigation.
On 9 May 2023, the landlord confirmed to the Ombudsman that the resident’s complaint about antisocial behaviour was being handled under stage 2 of its complaints policy. On the same day, it wrote to the resident to follow up on the stage 2 decision in October 2022 and explained it now believed the wooden fence erected by the neighbour had encroached on the resident’s garden. However, it advised there was no formal boundary between the gardens, allocation of gardens was at the discretion of the landlord, and the resident’s own garden was untidy. The landlord stated it would only take action against the neighbour for breach of tenancy if the resident cleared her own garden and abided by the terms of her own tenancy agreement. A further £150 was offered in compensation for having provided misleading information.
On 12 May 2023, the resident responded to the landlord’s letter. She challenged the landlord about its conduct regarding the alleged tenancy breaches by the neighbour, telling the landlord it had previously agreed the resident did not have to tidy her garden at a panel hearing in 2015.
The resident has raised a separate complaint about the landlord’s handling of allegations of antisocial behaviour from the neighbour. This complaint is currently being considered by the landlord and does not form part of this investigation.

Assessment and findings

The landlord’s handling of a dispute over a garden fence

This Service recognises that boundary disputes are a common cause of tension between neighbours. The landlord has provided evidence that there is a history of significant tension and dispute between the resident and the neighbour before and after the fence was erected, which is why the resident had been approved for a management transfer in 2015. It is concerning that the landlord permitted the neighbour to erect a new fence despite this history as it was likely there would be further disputes over this issue without careful management and handling of the resident’s and the neighbour’s expectations. The landlord’s subsequent failure to actively manage issues with the fence in light of the history of dispute between the neighbour and the resident has, in the Ombudsman’s opinion, risked intensifying the dispute.
Conditions in the letter giving the neighbour permission to erect a new fence explicitly state the neighbour and any other affected residents must agree to a new fence being erected and that they must also agree on where the boundary lays between gardens. The conditions also state that in the absence of any agreement, the original fence must remain in place and the new fence erected behind the original fence and located within the boundary of the garden. It is unsatisfactory that the landlord included these conditions, given what it already knew about the relationship between the resident and her neighbour. These conditions were not realistic in these circumstances and it was unreasonable for the landlord to have made them. No evidence has been provided that the neighbour has kept to the conditions set out in the permission letter or that there has been any agreement between the neighbour and the resident over the boundary line between gardens. Photographs of the new fence show the old fence has been removed entirely.
The landlord has provided limited evidence that it monitored whether the neighbour kept to the conditions set out in the permission letter. This Service has seen evidence that the landlord made limited attempts to address this issue in February 2022 but no evidence has been provided that any further efforts were made. Inaction by the landlord led the resident to make a formal complaint about what she saw as a breach of tenancy by the neighbour.
There is limited evidence that the landlord sufficiently considered whether the fence encroached on the resident’s garden during the initial complaints handling process. It is only after the complaint was escalated to this Service that this point was examined in detail, leading the landlord to agree with the resident that the fence did in fact encroach on her garden.
This Service acknowledges that the landlord may well be correct in its letter dated 9 May 2023 that there is no formal boundary line between the two gardens. However, it has consistently referred to boundary lines in the initial permission letter to the neighbour and in chasing them about addressing issues with their garden and fence, and in subsequent correspondence with the resident. This would have created an expectation from the resident and the neighbour that there is a boundary line and that the landlord would be likely to intervene if there was a substantial dispute. A consistent approach on this point from an early stage would have helped set expectation for both parties and clearly established what steps, if any, the landlord would take over the dispute.
The landlord was unreasonable in its letter dated 9 May 2023 by refusing to take any action about the fence unless the resident tidied her own garden. The fence and the condition of the resident’s own garden were separate issues and it was unreasonable for the landlord to conflate the two in this way. It should have reviewed any decision previously made about the maintenance of the resident’s garden, the history of dispute between the resident and the neighbour, and the reports that the resident has made about being uncomfortable going in her garden due to the ongoing dispute. It was also unreasonable to place conditions on the resident on whether it would intervene in the dispute. The landlord should have considered the resident’s disability and whether this would have an impact on her ability to maintain the garden. It should also have given due regard to its duties under the public sector equality duty to consider whether its decision has met the need to eliminate unlawful discrimination, advance quality of opportunity between people who share a protected characteristic and those who do not, and to foster or encourage good relations between people who share a protected characteristic and those who do not.
Due to the lack of consideration of the history of dispute between the resident and her neighbour before granting permission for a new fence, the failure to ensure that the fence was compliant with the conditions set in its permission letter, the failure to adequately investigate whether the fence was over the boundary line until escalation to this Service, and the landlord’s unreasonable refusal to take any action over this dispute, this Service has found maladministration and has ordered the landlord to address these points.

The landlord’s handling of the resident’s management transfer

The landlord’s Management Transfer Policy states that management transfers will only be granted in limited circumstances, where a tenant is facing serious antisocial behaviour, harassment, or domestic abuse which is or could be putting their life at risk. This Service acknowledges that management transfers are typically used by social landlords as a tool to move tenants into alternative accommodation when there is an urgent need to move, as per the circumstances outlined in the landlord’s policy.
Due to the nature of a tenant’s urgent need to move and the circumstances in which a management transfer is usually agreed, it is reasonable to expect that an offer of alternative accommodation will take place promptly after a transfer is approved. It is therefore of concern that the resident has had a ‘live’ management transfer for over 7 years at the date of this report.
Paragraph 3.3 of the Policy sets out conditions which apply to all management transfers. These include that a management transfer will place a tenant in the landlord’s urgent band and an autobidding system set up to help the first suitable property which meets the tenants needs, only one offer of a ‘like for like’ property will be made unless the tenant is under occupying their home, that the need for a transfer will be regularly reviewed if a suitable property is not readily available, and that the landlord can withdraw the management transfer if it decides there is no ongoing need for a transfer after a review.
The landlord has provided evidence that a very limited area of preference was granted to the resident, and that several properties have been offered to the resident while the management transfer has been active. It has explained to the Ombudsman that the primary reason why the resident has not yet moved is because they have refused offers of suitable alternative accommodation. No evidence has been provided that the need for the resident’s transfer has been regularly reviewed while the transfer has remained ‘active’.
When handling the management transfer, the landlord has not followed its own policy and has allowed the resident to have ‘first refusal’ on properties in her area of preference rather than making sure that she receives one offer of a ‘like for like’ properties. By not following policy, the landlord has failed to adequately manage the resident’s expectations and has not effectively managed the management transfer. However, as the landlord has demonstrated significant flexibility towards the resident by departing from the ‘one offer’ rule and allowing the resident first refusal on properties in a very small area, this Service is not satisfied that this failure has had a detrimental impact on the resident. For these reasons, the Ombudsman has found no maladministration.

Complaint handling

The landlord has provided evidence that the resident made her initial complaint on 1 February 2022 and it acknowledged this by telephone the following day. The stage 1 response was provided on 4 February 2022, 3 working days after the initial complaint. This is well within the timescales set out in the landlord’s complaints policy and the Ombudsman’s Complaints Handling Code.
The request to escalate the complaint to stage 2 was sent on 8 July 2022 but no response or acknowledgement was given. The resident had to ask this Service to intervene to force the landlord to accept escalation of her complaint, and for this Service to intervene to obtain a stage 2 response. This would have been time consuming and frustrating for the resident.
A stage 2 response was given on 25 October 2022, a day after this Service’s second request that the landlord respond to the resident was sent. This is 76 working days after the resident’s initial request for escalation. The Ombudsman’s Complaints Handling Code states that stage 2 responses must be sent to residents within 20 working days of the escalation request.
The letter sent to the resident on 21 March 2023, following a peer review of the resident’s complaint about the landlord’s handling of reports of noise nuisance made on in February 2023, is unclear and contradictory. It acknowledged failings in the handling of the case but did not state what they were and refused to take any further action. This is not in line with the Ombudsman’s Dispute Resolution principles to be fair, put things right, and to learn from mistakes.
The ‘addendum’ sent to the resident on 9 May 2023, 134 working days from the date of the stage 2 response and 210 working days from the date of the escalation request, essentially overturns the landlord’s initial stage 2 response and offers further compensation. This ‘addendum’ was sent following contact between the Ombudsman and the landlord regarding the resident’s complaint. This shows a breach of the Complaints Handling Code – the landlord has failed to apply the Ombudsman’s dispute resolution principles to be fair, put things right, and learn from mistakes during the complaints process. It has only acknowledged its mistakes at ‘addendum’ stage and offered redress at this point, although there are issues with the ‘addendum’ response too as mentioned in previous paragraphs of this report.
Due to the landlord’s failure to acknowledge a request for escalation of the resident’s complaint, the lateness of the stage 2 response and that this only came after the intervention of this Service, and the ‘addendum’ response failing to resolve issues, the Ombudsman has found maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Maladministration in the landlord’s handling of a dispute over a garden fence.
2. No maladministration in the landlord’s handling of the management transfer.
3. Maladministration in the landlord’s complaints handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this report, the landlord must:
1. Review the conditions set out within the letter granting permission for the neighbour to replace the fence and determine whether these have been breached. This review must also remove the requirement that the resident tidies her garden before it will consider taking action against her neighbour regarding the fence. The landlord must provide this Service and the resident with an action plan following the outcome of the review.
2. Pay the resident £750 compensation comprising of:
  1. £500 for inconvenience and distress caused by the landlord’s poor handling of the dispute over the garden fence.
  2. £250 for the inconvenience, distress, time and trouble caused to the resident by poor complaints handling.
  3. The above sum is less the offer of £300 compensation if payment has been made to the resident.
Within 8 weeks of the date of this report, the landlord must:
1. Review its policies and procedures for granting permission to erect fencing and ensure there are adequate provisions for where there are ongoing disputes between neighbours. A copy of this review must be provided to this Service.

Recommendations

The landlord should review how it approaches complaints handling. This review should carry out a skills and training audit of its complaints handling staff, play close attention to the landlord’s complaints responses, and ensure that responses adequately address all issues identified a complaint. A copy of this review should be provided to this Service.
The landlord should review the resident’s management transfer status and decide whether this is the best way to help the resident resolve her current housing situation. The resident should be informed in writing of the outcome of the review.