Hammersmith and Fulham Council (202103713)

REPORT

COMPLAINT 202103713

Hammersmith and Fulham Council

15 June 2022

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 positioning of fencing between the resident’s property and a neighbour.

Background and summary of events

2. The resident is an Arabic speaker and is represented by her daughter who is hereafter also referred to as ‘the resident’.
3. The resident lives in a four bedroom house with a garden. The resident says that there are two and a half panels of the fence at the end of the garden which are not in a straight line. It is a shared boundary where both tenants have the same landlord.
4. The resident has provided Ordnance Survey information, as well as information available to the public from the landlord’s planning website which shows the boundary between her house and the neighbour as a straight line. The resident would like this portion of the fence moved as resolution to her complaint.
5. The resident says that the fence became loose and collapsed due to the installation of a ‘shed’ by the neighbour and many items being stored in the shed. Photographs show this structure is not a traditional garden shed, but a large structure covering almost all of the neighbour’s garden. 
6. The fallen fence was removed by the landlord in February 2020 and the first record of the resident expressing concern about the position of the new fence is from April 2020. The resident felt it was unfair that the size of her garden should be reduced as a result of the fence collapse which she said was the neighbour’s fault.
7. In August 2020, following the ease of Coronavirus restrictions, contractors attended to erect a replacement fence. The landlord says that the resident ‘prevented the work from taking place’ as she was not satisfied with the position of the fence. This is disputed by the resident.
8. There is some evidence of a survey occurring in September 2020, but it is unclear if the surveyor was working on behalf of the landlord. The document mentions the need for a party wall surveyor to attend to determine the exact location of the fence and the resident has said this did not occur. The landlord has not referred to this event in any of its complaint responses or internal communications.  
9. The resident contacted the landlord on 27 November 2020 and made a complaint about the proposed position of the new fence. The landlord replied on 18 December 2020. In this response, the landlord said that the neighbour would need to remove the shed from their garden before the fence could be erected. The landlord said a repair appointment would be made once this happened. Repair records confirm that works started on the fence in the rear garden on 23 November 2020 but were ‘put on hold’ due to a neighbour dispute on 19 January 2021.
10. On the 25 January 2021, the resident escalated her complaint and said there were several errors in the landlord’s response. The resident said that the response had been sent to her sister’s email address and not to her which was a breach of confidentiality. The complaint also covered other issues not specifically related to the fence to do with alleged anti-social behaviour and electricity wiring.   
11. On 5 February 2021, the landlord provided a stage 2 response with corrections to the previous response and apologising for sending it to the incorrect email address. Its position on the fence did not change and said it was trying to arrange a repairs appointment when possible.
12. On 20 April 2021, the landlord sent the resident a warning letter. This letter advised that an appointment had been made for repair work on the fence for the following day and said that ‘further action will be taken against your tenancy if there is any further obstruction’ to the fence going up.
13. On 21 April, the resident made another complaint about the fence. The resident said that they were advised of the appointment without sufficient notice. The resident also complained that she had previously been told that work would only start on the fence once the neighbour’s shed had been removed and it had not been removed.
14. On 21 April 2021, a site visit took place which included the resident’s housing officer who had sent the letter on the previous day. Although the starting point of the fence was initially disputed, the landlord said that following discussions, the starting point of the fence was ‘agreed by all’. The landlord said that work could be done by removing one or two panels from the shed and without the need to remove the entire shed.
15. However, on 23 April 2021, contractors left the site and discontinued the work on the fence. The landlord said that the resident ‘pulled at clothing’ and prevented the work taking place. This is disputed by the resident who supplied video evidence that the contractors left for other reasons to do with payment. The evidence seen by this service suggests that the resident did make her strong views about the position of the fence known to the contractors, and work ceased because of the risk of confrontation with the resident.  
16. The landlord responded to the resident’s complaint of 21 April 2021 on 13 May 2021 at stage one. The complaint was partially upheld. The landlord acknowledged that it should have told the resident the neighbour’s shed would not need to be removed and also apologised for the short notice of the repair appointment. The landlord offered the resident access to a floating support service on 14 May 2021 partly due to her stress and anxiety about the fence issue.
17. On 9 June 2021, the landlord issued a final stage complaint response after being prompted by contact with this service on 24 May 21. The landlord said the fence would be placed on the same boundary it was originally on.
18. On 15 June 2021, this service wrote to the landlord and informed them that the resident had agreed to participate in mediation with her neighbour regarding the fence issue. The purpose of the mediation was to agree the boundary of the fence before it was erected.
19. On 16 June 2021, the resident was visited by a housing manager. Photographs were taken of the site and the manager raised queries with the contractor regarding the position of the fence, its starting point, and the proximity of the neighbour’s shed. The evidence from communications between the landlord and contractors indicates that the landlord intended the fence to be both ‘on the original boundary and in as straight a line as possible.’ 
20. Following the contact from this service and the home visit on 16 June 2021 a decision was made to postpone the scheduled repair appointment for the fence of 17 June 2021. The landlord arranged a meeting to discuss the issue further with the resident firstly on 24 June and then on 7 July 2021. Neither of these meetings took place as the resident advised that members of the household were displaying symptoms of Coronavirus. A zoom meeting was proposed by the landlord but was declined.
21. The resident claims the landlord ‘suspiciously cancelled’ an appointment with a party wall surveyor at the beginning of July 2021.
22. The landlord acknowledged the contact from the Ombudsman on 16 June but did not formally reply to this service until 28 July 2021 regarding the offer of mediation through this service. The response did not clarify whether the landlord agreed to a mediation process but indicated that it had arranged a meeting on 7 July. Following this, the case was progressed to full investigation by this service.
23. A new works order to erect the fence was made in September 2021 following a complaint from the resident’s neighbour about delays in repairing the fence. The fence was completed by 30 September 2021 under supervision from the housing manager in case of any further issues arising.
24. A Complaint Handling Failure Order was issued by this service on 16 September 2021 for delay in supplying information to this service by the landlord.
25. The landlord has confirmed that the new fence was installed after ‘extensive consultation’ with both the resident and her neighbour. The landlord is unwilling to adjust the position of the fence further and says it is now set in concrete. In an internal email of 30 June 2021, the landlord summarised its position when it said that ‘as freeholder of the land it is ultimately our decision where the fence should be erected.’  

Assessment and findings

26. Case law has determined that the boundary line shown on a title plan or map is considered to be a ‘general boundary’ but that this does not determine the exact line of the legal boundary which ultimately can only be determined by the courts.
27. Furthermore, Government guidance explains in regard to title plans based on large scale Ordnance Survey maps that the information is ‘generalised’ and ‘may not show small juts in the boundary or bay windows’.  
28. However, this Service does not have sufficient authority to make legally binding decisions about boundaries or to determine where they should be. As such, this investigation has not sought to make a finding on this part of the complaint. Rather, the focus has been on the landlord’s response to the resident’s reports about the boundary and whether it followed a reasonable process and was fair overall with the actions it took in response.  
29. The resident has said she is dissatisfied that a small portion of the fence at the rear of the garden is not in a straight line as indicated on planning documents and ordnance survey maps. As set out above, this is in itself not evidence that the actual boundary is incorrect.
30. However, there is evidence that the landlord has endeavoured to place the fence in ‘as straight a line as possible’. There is also evidence that the landlord has attempted consultation with both sides regarding the position and starting point of the fence. These were reasonable steps to take and as such the landlord’s decision as to where the fence should go was made after following a fair process.   
31. The landlord has described this consultation as ‘extensive.’ The process that the landlord followed was reasonable and did provide the resident with the opportunity to put forward her views and opinions. However, the landlord should note as learning for future cases that the use of an independent surveyor or boundary determination may have provided greater transparency, and led to a more impartial assessment of the situation. This may have also resolved the dispute sooner.     
32. There is no evidence that the current positioning of the fence causes significant detriment to the resident. Neither is there evidence to support that the fence should not remain in its current position. However, there were a number of service failures by the landlord in carrying out the fence repair and in responding to the resident’s complaint and overall concerns.
33. Firstly, the landlord did not engage with this service effectively at the triage and mediation stage. In addition to the failure to provide information to this service in a timely fashion that led to the issue of a Complaint Handling Failure Order, the landlord did not respond appropriately to the offer of mediation by this service.
34. While it is noted that the landlord did meet with the residents and tried to arrange its own discussion meetings, it did not respond to this service in the prescribed manner as set out in the invitation to mediation letter sent by this service on 15 June 2021. The landlord should have indicated if it intended to go ahead with mediation or wanted to propose another form of resolution. An opportunity was thereby missed which could have led to a more satisfactory outcome for the resident as well as her neighbour and the landlord.
35. Secondly, the letter sent to the resident on 20 April 2021 was not appropriate since 24 hours was not reasonable notice to the resident of the fencing work starting. Given the history of objection to the work, the landlord should have ensured that more notice was given.
36. Similarly, the landlord did not advise the resident that it had taken the decision to go ahead with the works without removal of the neighbour’s shed – this should have been clarified prior to the warning letter. It was reasonable for the landlord to warn the resident that disrupting the fence repair would be considered a breach of tenancy, but the landlord should have engaged further with the resident about their concerns on site before issuing the letter.
37. The landlord has offered no form of redress for the disruption and inconvenience caused to the resident by being without fencing from February 2020 until September 2021. However, the period from March until July 2020 was unavoidable delay due to Coronavirus restrictions in place at the time.
38. It is noted that the landlord was initially prepared to carry out the fence repairs in August 2020 but that following the resident’s reports, there was also a need to consult with the resident and her neighbour to try and resolve the dispute. Although this is a mitigating factor in the repair delay, it was not reasonable that it took a further 13 months from the resident’s first reported concerns about the fence until it was installed by the landlord at the end of September 2021.
39. The landlord has responded to several complaints and apologised for miscommunication such as sending a response to the wrong email address or inaccurate dates in their responses, but again there has been no redress offered for these failings.
40. Taking in to account the above service failures, an order has been made for the landlord to provide financial compensation to the resident of £180. This is for the distress and inconvenience caused to the resident by the avoidable delays in completing the fence repair and its communication failures identified within its own complaint responses.

Determination (decision)

41. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was service failure in the landlord’s handling of the complaint about the positioning of the fence between the resident’s property and a neighbour.

Reasons

42. Although this Service is not able to determine the line of the boundary fence, the landlord followed a fair process when trying to do so. However, there was a significant delay in carrying out the fence repair and several communication failures by the landlord. The landlord also did not engage effectively with this service in particular the offer of mediation.

Orders

43. It is ordered that the landlord pay the resident £180 compensation minus any compensation already paid within four weeks.