East Midlands Housing Group Limited (202228179)

REPORT

COMPLAINT 202228179

East Midlands Housing Group Limited

30 April 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 concern that the original chain-linked boundary fence separating his and his neighbour’s rear gardens had been removed.

Background

2. The resident holds an assured tenancy and has lived in his 2-bedroom house since December 2010.
3. The landlord erected a timber fence between the resident’s and his neighbour’s (Mr D’s) rear garden around or prior to 2018. The timber fence was installed on the resident’s side of the original chain-linked boundary fence.
4. In early August 2022 the resident told the landlord that during a previous visit, a housing officer had told him that the original chain-linked boundary fence would not be removed. However Mr D had removed it and was now encroaching on his property.
5. The landlord carried out an inspection on 27 September 2022. It noted the outcome of the inspections as follows:
   1. the timber fence was the new boundary which was a “good quality” 6ft fence.
   2. it had seen remnants of an “old fence” which was approximately 20cm away from the new one.
   3. the resident had raised his concerns that Mr D had removed the original boundary fence without its permission. It had informed the resident that it would not be reinstalling the chain-linked fence which was now in Mr D’s garden.
6. On 26 October 2022 the resident made a complaint. He said:
   1. the landlord had erected a new fence in front of the original chain-linked fence instead of removing it and replacing it.
   2. Mr D had removed the original chain-linked fence without permission from the landlord. He said that he should have been consulted and his permission sought before it was removed. He explained that now the “true” boundary had been lost and Mr D had gained some of his garden.
   3. he wanted the original fence to be reinstalled. He was prepared to reinstall it at his own cost, as he wanted “peace of mind” that the original boundary was in place.
   4. he had Crohn’s disease and the situation was making it worse. He said that he didn’t feel safe with the neighbour if the chain-linked fence was not also in place as the neighbour could be “violent.”
7. The landlord issued its stage 1 response on 15 November 2022. It said:
   1. as it owned both properties, it had the right to alter the boundaries between them“slightly” and confirmed that this was what had happened when the timber fence was erected.
   2. as the chain-linked fence was now within Mr D’s garden, he had the right to remove it and he did not need to seek its permission to do so.
   3. it had acknowledged the resident’s medical condition and that he felt unsafe without chain-linked fencing. It said that it had given him permission to erect his own fencing on his side of the garden.
8. In mid-February 2023 the resident escalated his complaint. He said that the original boundary should have been kept and he wanted the original fence reinstalled on the original boundary line.
9. On 22 February 2023 the landlord issued its stage 2 response. It said:
   1. its records showed that the timber fence was erected approximately 5 years or more ago. It had considered that the length of time that had passed since the fence was erected and advised that it was unable to conduct an effective review of its actions taken at that time.
   2. it was unable to determine what agreements the resident and Mr D had in place with regards to the retention of the original boundary fence, which now sat on Mr D’s side.
   3. due to the passing of time, it was unable to consider the above elements of the resident’s complaint any further. It said this was in line with its complaint policy which stated that it would not consider complaints where a six-month period had elapsed between the cause of the complaint and it being brought to its attention.
   4. it would not erect a secondary boundary fence on Mr D’s side of the timber fence as it was not a service that it provided.

Assessment and findings

10. When the resident raised his concerns to the landlord in early August 2022, the evidence available demonstrates that the landlord did not respond to him, nor does it show that it took appropriate steps to investigate his concerns. In addition, in early September 2022 the resident had to chase the landlord to inspect the boundary as he had not heard back from it. It is unclear why the landlord did not respond appropriately to the resident’s initial contact. However, that it did not was inappropriate. The landlord’s lack of response and action caused the resident time and trouble.
11. It was reasonable for the landlord to carry out an inspection in September 2022. However, it did not address the resident’s concerns that he was told by the landlord that the original boundary fence would remain. In the circumstances, it would have been appropriate for the landlord to have investigated the matter and provided a response at that time. This would have demonstrated that it understood the resident’s concerns and was trying to resolve the matter.
12. In its stage 1 response the landlord told the resident that as it owned both his and Mr D’s property, it had the “right” to alter the boundaries slightly. While the Ombudsman empathises with the resident, the landlord’s response was reasonable. As the freeholder, the landlord has the right to alter the boundaries of its properties, within reason. As a tenant, the resident has the right to occupy and use the garden; however, the tenancy agreement does not specify any boundaries. Furthermore, there is also no evidence to suggest that the altering of the boundary caused a detrimental impact on the resident’s enjoyment of his home. However, it would haven reasonable for the landlord to have addressed the resident’s concern that Mr D had “gained” land within his side of the garden. This may have provided the resident with reassurance that, while its position on the matter may not have changed, the landlord understood his complaint. The landlord also explained that as the chain-linked fence was now in Mr D’s garden, he had the right to remove it without its permission. This was response was also reasonable.
13.  The landlord also acknowledged the resident’s comments around his medical condition and that he felt unsafe without the chain-linked fence. In response, the landlord agreed that he could erect a chain-linked fence on his side of the timber fence, which again was reasonable.
14.  However, it appears there was a misunderstanding around the permission. The resident understood that the landlord had granted him permission to reinstall a chain-linked fence on the original boundary line, which was now in Mr D’s garden. However, it gave him permission to erect an additional fence within his own garden. When the misunderstanding came to light in February 2023, the resident escalated his complaint and said that the original boundary should be kept and that he wanted the original fence reinstalled on Mr D’s side.
15. The landlord explained in its stage 2 response, that it would not reinstall a secondary boundary fence on Mr D’s side as it was not a service that it provided. This stance was reasonable as the landlord has no obligation to do so. The landlord had already inspected and stated that the timber fence was in good condition, which provided a good physical boundary. However, it would have been reasonable for the landlord to have addressed the resident’s concerns that the “true” boundary had been lost
16. The landlord told the resident in its stage 2 response that it was unable to conduct an effective review of its actions taken at the time it erected the timber fence due to the length of time that had passed. Given the passage of time, this was not unreasonable. However, it then went on to say that it also could not consider the complaint further because the cause of the complaint [the erection of the timber fence around 2018] had occurred more than 6 months prior to the resident’s complaint, which was in line with its complaint policy. The landlord is entitled to limit its investigation into complaints where the matter occurred more than 6 months ago. However, given that it had already responded to the resident’s concerns in its stage 1 response, it is unclear why the landlord referred to its policy and “complaints that will not be considered” at stage 2. In the circumstances, as the landlord had already accepted the complaint, and issued the stage 1 response, it would have been reasonable for it to have fully reviewed the complaint at stage 2. This would have meant that the resident would have had his complaint fully heard and responded to.
17. While the resident’s concerns are acknowledged, there was no failure by the landlord with regards to the installation of the timber fence. However, the landlord failed to investigate and respond to the resident’s initial concern about the loss of the boundary line in a timely manner.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s concerns that the original boundary had been lost between his and his neighbour’s rear garden.

Orders

19. Within 4 weeks of the determination of this report, the landlord should pay the resident £60 for the distress and inconvenience caused by its dissatisfactory handling of his concerns about the loss of the original boundary between his and his neighbour’s rear garden.