East Riding of Yorkshire Council (202205112)

REPORT

COMPLAINT 202205112

East Riding of Yorkshire Council

18 May 2023

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:
1. Decision to remove bollards installed by the resident and her husband at the end of her driveway.
2. Communication with the resident and her husband in dealing with this matter.

Background

The resident is a secure tenant of the landlord. The tenancy is a joint tenancy with her husband which commenced on 4 April 2011.
The property is a two bedroom semi-detached bungalow. It benefits from a driveway that was installed by the resident and her husband after the landlord granted them permission in 2012.
On 2 December 2019, the resident wrote to the landlord to request permission to install three drop down parking bollards at the bottom of the driveway. She stated these were required in order to prevent people parking across the drop kerb obstructing her access to the driveway. The resident provided a diagram showing the proposed location for the bollards.
On 16 December 2019, the landlord gave permission for the resident to install the bollards on condition that the work was carried out by a competent tradesman and the bollards were installed so as “not to cause a nuisance/problem for fellow parkers”.

Scope of the investigation

The local authority’s highways department was involved in both the decision to remove the bollards, and in communicating with the resident about this. It is not within the remit of the Housing Ombudsman to consider the actions of the highways department, as this Service can only investigate complaints about local authorities in connection with their provision and management of housing.
Complaints related to the actions of a local authority’s highways department may be considered by the Local Government and Social Care Ombudsman (LGSCO). Any reference to the actions of the highways department within this report will therefore serve only as factual context with no associated assessment.
The Housing Ombudsman also may not consider matters which have not exhausted the landlord’s own internal complaints procedure. The resident has expressed ongoing dissatisfaction with the landlord’s conduct in attempting to remove the bollards, including an incident on 15 July 2022 where operatives attended to do so and a vehicle was allegedly damaged. As the landlord’s final complaint response was issued on 28 January 2022, this report will be unable to consider events subsequent to that date, except those relating to the offer of compensation made during the complaints process.

Summary of events

On 30 June 2021, the landlord wrote to the resident and her husband. It stated that the highways department had informed it that the bollards were an obstruction of the public highway and needed to be removed. The landlord said it had reviewed the permission given in December 2019 and that this had been granted in error, as it did not have the authority to give permission for installations on a public highway. It apologised for the error and inconvenience and asked for the bollards to be removed within 21 days. It requested that the resident and her husband advise it of the costs incurred in the installation and removal of the bollards.
On 4 July 2021, the resident and her husband wrote to the landlord. They said that two people claiming to be from the local authority had visited their home on 29 June 2021 and accused them of illegally installing the bollards at the end of the drive. They wrote that they had been given written permission to install the bollards after experiencing issues with accessing the driveway due to people parking over the drop kerb and were refusing to remove them as the local authority had not presented an alternative solution.
Between 15 July 2021 and 20 August 2021, the resident and her husband were in contact with the highways department which also confirmed that it required the bollards to be removed.
On 23 August 2021, the resident and her husband wrote to the highways department. They said they had repeatedly demonstrated permission for the bollards and suggested that the local authority resolve the matter internally as it was causing them “alarm, harassment and distress”. They requested to make a formal complaint about “bullying and harassment” from the local authority.
On 7 September 2021, the landlord wrote to the resident and her husband providing a stage one complaint response. The landlord acknowledged that it had given permission in error for the bollards to be located on land that was not under its management, and stated that lessons had been learnt from this. It apologised for the trouble the resident and her husband had gone through in installing the bollards, and any distress caused by the situation.
The landlord requested that the bollards be removed by the end of the month. It asked the resident and her husband to advise it of costs incurred in the purchase, installation and removal of the bollards, or alternatively offered to arrange for removal of the bollards itself.
On 23 November 2021, the landlord wrote to the resident and her husband advising that it had not heard from them since its letter of 7 September 2021 and was aware that the bollards were still in place. It said that it had now instructed a contractor to remove the bollards as soon as possible, and that its offer to reimburse them for the cost of the bollards and installation still stood.
On 28 November 2021, the resident’s husband emailed the landlord. He stated that it was causing him “alarm, harassment and distress” and obstructing his ability to access his property. He asserted that the landlord had given him permission to install the bollards at that location and described the local authority’s subsequent behaviour as bullying and discriminatory against his disability. He requested for the matter to be escalated and an immediate, permanent solution provided.
On 20 December 2021, the landlord provided a stage one complaint response to the resident’s husband under a new complaint reference number. The landlord:
1. Acknowledged the distress and alarm the situation had caused and apologised for this;
2. Reiterated that permission for the bollards was given in error, as the land in question was not under the landlord’s ownership, and said that it had previously acknowledged and apologised for this;
3. Assured the resident’s husband that he was not being bullied or discriminated against, but that it was acting on the advice of the highways department who had advised that the bollards needed to be “re-sited”;
4. Apologised for any inconvenience caused and encouraged the resident’s husband to contact it should he wish to discuss the matter further.
The resident’s husband responded by email on 21 December 2021. He expressed dissatisfaction that he felt the landlord had not answered his questions or provided a suitable alternative to the bollards. He requested that his complaint be escalated.
On 28 January 2022, the landlord provided its final response to the resident’s husband’s complaint. It stated that:
1. It again recognised the impact of the matter and wished to apologise for this;
2. It had previously acknowledged his comments regarding permission being given for the bollards, explained how this had been done in error and offered its apologies;
3. It recognised his needs, but was also responsible for ensuring the safety of other residents;
4. It had received complaints from other residents regarding the bollards, and had been told by the highways department that they needed to be moved;
5. It had not seen any evidence of the alleged bullying behaviour from any of its staff;
6. Having looked at all options and considered all information, the only viable solution was the removal of the bollards;
7. Its offer to remove the bollards, at no cost to him, remained open.
On 14 June 2022, the resident referred the complaint to this Service. She advised she remained dissatisfied with the landlord’s bullying behaviour and its final response, which left several of her questions unanswered and it had not provided an alternative solution to the parking issues.

Events since complaint referred to this Service

On 17 August 2022, the resident’s husband provided the landlord with evidence of payment of £157.42 for the purchase of the bollards in 2019. He advised that he had also purchased cement, tarmac and a chisel for the works, but had paid cash for these so was unable to provide evidence.
On 21 September 2022, the landlord offered the resident and her husband £307 compensation composed of £157 for the cost of the bollards and £150 for distress and inconvenience.
On 27 January 2023, the landlord made payment of an increased compensation offer of £400 which the resident had accepted.
In February 2023, the landlord arranged removal of the bollards.

Assessment and findings

Decision to remove bollards

According to its letter of 30 June 2021, the landlord was alerted to an issue with the position of the bollards by the highways department, which advised it that they needed to be removed. As the bollards were located on land under the management of the highways department, and not the landlord, it was appropriate for the landlord to act upon this instruction.
The landlord acted appropriately in reviewing its records, prior to contacting the resident and her husband, and establishing that it had erroneously granted them permission to install the bollards in 2019.
The letter of 30 June 2021 apologised to the resident and her husband, explained the situation and error and gave a reasonable deadline for the bollards to be removed. The landlord also appropriately offered to reimburse the costs of the installation and removal of the bollards.
Although this Service has seen no evidence of the landlord responding to the resident and her husband’s letter of 4 July 2021, this letter appears to have been sent prior to them having received its letter of 30 June 2021, as it makes no reference to said letter and raises several points which the letter had already addressed.
The resident and his wife made their formal complaint on 23 August 2021, and the stage one response was issued by the landlord ten working days later (7 September 2021). Although the complaint was originally submitted to a member of the highways department, it would have been reasonable for either they or the landlord to respond due to elements of the complaint being relevant to each.
In the stage one response, the landlord again explained the situation regarding permissions being incorrectly given, offered an apology for the error and inconvenience, and repeated its offer to reimburse the resident and her husband for costs incurred. The landlord gave a second deadline for the bollards to be removed and made a reasonable offer to carry out the work itself.
Having acknowledged and apologised for the inconvenience caused to the resident and her husband, it would have been appropriate for the landlord to offer some redress for this. However, this is something that does not appear to have been considered during the landlord’s complaints process.
After the landlord’s second deadline for removal of the bollards passed, it wrote to the resident and her husband on 23 November 2021 to advise that it had instructed a contractor to remove them. This was nearly two months after the deadline had passed, which was above and beyond the time it would be reasonable to allow. As the bollards were located on the highway, and their removal would not require access to the property or its demised land, it was reasonable for the landlord to make such a decision without consulting the resident and her husband.
The resident’s husband emailed the landlord on 28 November 2021 to express his dissatisfaction and request the matter was escalated. This resulted in a new complaint being raised. The matter of complaint was close enough in nature to that responded to on 7 September 2021 that it could potentially have been dealt with by escalating to stage two of the complaints process. However, there is no evidence that addressing it as a new complaint caused detriment to the resident and her husband.
The landlord’s stage one response issued on 20 December 2021 largely repeated what was advised in its previous stage one response, which was reasonable considering the situation had not changed since this had been issued. It did however state that lessons had been learnt from the permissions error, although it did not expand upon these in any detail.
The stage two response did likewise, although it did acknowledge the resident’s husband’s request for a solution to the issues with the obstruction of the driveway, and confirm that it had looked at all options and removal of the bollards was the only viable solution.
A solution to problems with drivers parking in a manner which obstructs a dropped kerb is outside of the remit of a landlord. Such an issue would be for the highways department to consider which, as already clarified, is outside the remit of this Service to investigate.
The landlord’s initial offer of compensation of £307 in September 2022 was calculated based on the purchase cost of the bollards and an award for distress and inconvenience. Although this Service has not seen the breakdown of the increased offer of £400 which was accepted by the resident in January 2023, this is reasonable compensation for the materials paid for in cash during the installation of the bollards, based on the evidence the resident provided.
This is in keeping with the Ombudsman’s dispute principle to “put things right” by restoring the resident and her husband to the position they had been in prior to the permission for the bollards being erroneously given as well as making an award in recognition of the distress and inconvenience experienced.

Communication with the resident and her husband

The resident and her husband have accused the landlord of “bullying”, causing them “alarm, harassment and distress”, during communications about the removal of the bollards.
During the relevant period considered by this report (30 June 2021 to 28 January 2022), this Service has seen no evidence of the landlord contacting the resident or her husband other than in writing.
The resident and her husband describe being visited on 29 June 2021 by two employees of the local authority, however they were unable to ascertain which department they were from and, as this visit is not referenced in the landlord’s letter sent the following day, it is likely they were not representatives of the landlord.
The evidence seen by this Service shows the landlord wrote to the resident and her husband on five occasions over the seven month period, three of which were complaint responses. This is not conduct which could reasonably be described as harassment.
In its letters, the landlord repeatedly offered its apologies for both the error in granting permission for the bollards and distress and inconvenience caused by requiring their removal. There is no language, turn of phrase or threat present which could reasonably be construed as bullying.
The resident has alleged the landlord’s decision to remove the bollards was taken without due consideration for her disabilities and use of its discretion. However, the decision to remove the bollards was not made by the landlord and it was not within its gift to use such discretion over land not within its ownership and control.
Whilst this Service does not doubt the resident and her husband’s assertions that they felt bullied, harassed and distressed, it is difficult to see how the landlord could have approached the situation in such a way as not to engender this given the clearly contentious subject matter and emotive impact of the wider parking concerns on the resident.

Determination (decision)

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about its decision to remove the bollards.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s communication with the resident and her husband.

Reasons

The landlord acted appropriately in requiring the removal of the bollards as instructed by the highways department. It appropriately communicated the necessity for this to the resident and her husband, acknowledged its error in originally granting permissions and made a reasonable offer of compensation.
The landlord’s correspondence with the resident did not evidence any inappropriate communication or conduct and showed understanding of the distress and inconvenience caused, offering appropriate apologies.