Incommunities Limited (202120438)

REPORT

COMPLAINT 202120438

Incommunities Limited

13 April 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

1. The complaint is about the landlord’s response to the resident’s request for permission to erect fencing, due to his concerns about antisocial behaviour.

Background

2. The resident is a tenant of the landlord, and lives in a house with a front and rear garden.
3. The resident contacted the landlord in January 2021 and requested permission to extend the perimeter of his rear fence, so that it encompassed a small area of land that bordered his rear-garden and a public pathway. He described this area as being frequented by individuals who committed crime and behaved antisocially. It is understood that the resident believed that the landlord owned this land, and wanted it to gift or sell this to him. He believed that this would be the best course of action to prevent antisocial behaviour (ASB) from recurring. At that time, he also advised the landlord that he had previously installed a fence around his front garden in order to protect his property and to prevent similar issues.
4. In response, the landlord advised the resident that he would need to request written permission for any works he proposed to do, as well as for any that had been carried out without its consent. It signposted him to information on its website, which detailed what it expected from residents in relation to making alteration requests. It also confirmed it would consider the resident’s request to enclose the area to the rear of the property but any decision on this would take time due to lockdown and the need to consult various different departments.
5. Following further discussion, the landlord inspected the front garden fence in March 2021 and determined that it was not adequately built and positioned. It wrote to the resident in May 2021, formally instructing him to take the fence down. It said that the fencing enclosed a public street lamp, that fence posts had been set into the pavement outside of the boundary of the property, gateposts had been left approximately six feet high, and the gates were excessive in size and posed a safety risk. It described in detail how it expected the resident to return the property and surrounding area to its original condition.
6. The resident appealed the landlord’s decision on 23 June 2021. He did not dispute that he had installed the front fence without permission. He said that he had made several efforts to contact the landlord prior to installation to seek its permission, but received no response. He did not dispute any of the specific conditions set out in the landlord’s instructions, but he described various incidents of crime and ASB he had experienced since 2017, which he said had all ceased since at the front of his property since he had erected the front fence. He highlighted that that he was still waiting for a decision in regards to his rear fence.
7. The landlord formally responded to the resident’s appeal on 8 July 2021. It said that while it appreciated the resident’s reasons for installing the fence, it was unable to uphold his appeal and expected the fence to be removed, in line with the expectations it had previously set out. The resident escalated the matter as he was dissatisfied with the landlord’s response. He said he wanted the issue of the rear fence to be actioned due to ongoing ASB in the area, and his front fence to stay.
8. During August 2021, the landlord advised the resident that it was not looking to incorporate the land to the rear of the property into the resident’s garden as it believed that this was not the most appropriate option. It said that the area was too narrow for it to successfully enclose, because the internal space would require gated access in order for it to be maintained, and this would not prevent people from climbing into the area due to the low factory wall adjacent.
9. In August 2021, the local council advised the landlord that it was close to adopting the highway (the process by which it takes ownership of a road), on which the resident’s fence was built. It said that before it could do this, it required the resident’s fence to be positioned behind the adoptable highway and streetlight, and that any damage to the highway must be rectified to its satisfaction. It also noted that the gates must be set back and not open onto the highway.
10. The landlord issued its final response in September 2021 and confirmed that it did not uphold the resident’s request for the front fence to remain. In relation to the land to the rear of the property, it proposed to plant this area with prickly bushes in an attempt to deter people from loitering there. In addition, it said it would work with the police to try and reduce the levels of ASB, although it said it could not eliminate nuisance from unknown persons in public areas.
11. The resident referred his complaint to this Service as he believed that the landlord’s instruction to remove the front fence was unreasonable. He said that he understood that there would be challenges in obtaining permission, but that due to his historical experience with ASB at the front of his property, he went ahead with installing the fence because “self and property protection superseded the request”. To resolve the matter, he wanted to be allowed to keep the front fence and make any alterations for the council to adopt the highway as needed, and to “move forward” with the rear fence.

Assessment and findings

12. In January 2021, the landlord signposted the resident to the home alterations section of its website. This sets out that residents are able to make some alterations to their home, provided certain conditions are met and the landlord gives permission for the works. If a resident does not obtain written permission, then the landlord may ask for the property to be returned to its original state and the resident will have to pay for this work. In relation to requests for fences, the relevant factsheet (published on this section of the landlord’s website) states that the maximum height of fencing in front gardens should be one metre tall, that fences must be within the property’s boundary, and that any gates must open inwards.
13. The resident believes that the landlord acted unreasonably by asking him to take down the fence he installed around the front of the property. Although the resident’s reason for installing a fence in this area is understandable, this would not override any health and safety requirements or the legal boundary of the property. It is not disputed that the fence had been installed without permission, elements of the installation were in excess of one metre high, the fence was erected on land beyond the boundary of the property, and the gates opened outwards. In addition, the landlord detailed that the housing development was an open plan site and the style and type of fencing installed by the resident was not in keeping with this. Therefore, the landlord gave valid reasons for requesting the removal of the fencing and in doing so it acted in line with its policy on alterations and fencing.
14. It is noted that the resident says he went ahead and installed the fence to the front of the property because the landlord had not responded to his initial enquiries. While the landlord acknowledged that the resident made enquiries in 2020 about installing fencing, it also says it told the resident he would need to obtain its permission first. The evidence provided for this investigation does not show that the resident made repeated enquiries about the matter at this time, and ultimately, he was required to obtain permission before carrying out the works. Therefore, there is nothing to suggest that the resident had a right to carry out the works in the absence of permission from the landlord.
15. It is not disputed that the area of land that the resident wished to fence off at the rear of the property did not fall within the property’s boundary. As such, when the landlord initially said that it would consider if it could enclose the area or grant or sell this land to the resident, it took an approach that is above and beyond what it is required to do. Therefore, any decision that it made as a result would be done so at its discretion.
16. It is acknowledged that it took the landlord seven months to confirm its position on fencing off the area to the rear of the property and that the resident had to chase the landlord for a response during the intervening period. It is understandable that this would have been frustrating for the resident. However, the landlord took reasonable steps to manage the resident’s expectations at the outset as it told him that any decision on this matter would take time. It also explained to the resident when providing an update that it had to obtain confirmation of who owned the land before it was able to consider the options available to it.
17. The landlord eventually clarified that it was not looking to incorporate the land into the resident’s existing rear garden and explained why it had made this decision. While it is understandable that this decision was disappointing for the resident, ultimately the landlord was under no obligation to enclose this area. The landlord did however take reasonable steps to address the resident’s concerns about ASB. It proposed to plant prickly bushes on the land in order to deter youths from loitering and said that it would continue to work with the police in relation to ASB in the area.
18. It is noted that after the prickly bushes were planted, the resident reported that they had been destroyed, and that previous vegetation planted in this area had also been removed or damaged. In March 2022, the resident requested again that the landlord consider fencing off this area. It is not known if any further action has been taken to address the resident’s concerns since this time and it is therefore recommended that the landlord considers if there are any other ways it can deter people from loitering in this area. The resident has emphasised that much of the ASB arises from people sitting on the wall that backs onto the factory, therefore, it is recommended that the landlord gives consideration to installing a fence adjacent to this wall (but without enclosing the grassed area so it can still maintain this area).
19. It is also understood that since the complaint was referred to this Service, the resident and landlord have been in ongoing correspondence about alterations to the front fence as part of his right to buy application. This Service cannot make a decision on matters that have occurred since the end of the landlord’s complaints procedure as the landlord should be provided with the opportunity to address those concerns first. Therefore, if the resident has concerns about the landlord’s handling of matters since issuing its final response, he can raise a new complaint concerning the landlord’s actions after that time.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request for permission to erect fencing.

Recommendation

21. If the landlord is still receiving reports about ASB occurring on the land to the rear of the resident’s property, then it is recommended that it considers whether there are any other actions it can take to deter people from gathering in this area. It is recommended that the landlord confirms its position on this to the resident within the next four weeks.