Six Town Housing Limited (202225898)

REPORT

COMPLAINT 202225898

Six Town Housing Limited

27 February 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 complaint is about the landlord’s response to the resident’s request for part of the communal garden to be separated for their sole use.

Background

The resident holds a secure tenancy with the landlord in a 3-bedroom ground-floor flat within a block. The tenancy commenced on 9 July 2021. There is a communal grassed area at the back of the property which is shared by another block which is also owned by the landlord. The resident’s son has learning disabilities, which the landlord is aware of.
On 19 August 2022 the resident requested sole use of a part of the communal garden for her son. She stated that her son needed access to a garden due to his needs and asked the landlord a series of questions about how it intended to meet these. In response, the landlord asked her to complete an alteration request form. It added that as it was a communal garden it was standard procedure to refuse these requests.
On 4 October 2022 following advice from its legal team, the landlord refused permission to fence off part of the communal area. It stated that the property was deemed suitable for the resident and her family when it was allocated and that under the Equality Act it did not have a legal duty to make reasonable adjustments to the common part of a let residential premises. It advised her to discuss her son’s needs with an occupational therapist (OT) to explore what options may be available, including a move to an alternative property. The next day the resident raised a formal complaint. She said that she did not agree with the decision and that she was upset with the outcome. She added that she should not need to move from her home to enable her son’s needs to be met.
On 19 October 2022 the landlord responded to the complaint at stage 1 of its complaint process. It did not uphold the complaint. In summary, it said:
1. That the local authority assessed the property as suitable for the resident’s household needs when she moved in.
2. She was advised correctly that it would not be possible to fence off the communal space for private use as the area was designated for the use and enjoyment of other tenants and was not part of her tenancy.
3. It had reviewed its reasonable adjustment policy and had agreed to arrange for fencing to be installed along the grass edge, including a suitable gate for access for its contractor.
4. That the space would remain for the use of all residents and the gate should always remain accessible.
On 20 October 2022 the resident asked to escalate her complaint. She was concerned about the proposed location of the fence. She explained that as it was still a communal area, she would have no way of stopping dogs fouling on the grass, which was already an issue. She was also concerned about the type of lock on the gate as the proposed bolt was not suitable for her son’s safety. As an outcome she wanted the landlord to provide her with sole use of part of the communal garden.
On 4 November 2022 the landlord issued its final response. It did not uphold the complaint and reiterated its position in its stage 1 response. In addition, it said that it believed the solution to erect a fence was reasonable and informed the resident that if she wanted to reconsider its offer it would arrange for the works to be completed.
The resident referred her complaint to this Service on 25 January 2023. She said that not having a garden had put a strain on the whole family and left her feeling severely stressed. She added that the bolt on the gate was not appropriate as her son would be able to open it. As an outcome she wanted the landlord to section off part of the communal garden for the sole use of her son.

Assessment and findings

Scope of investigation

Within the resident’s complaint to the landlord, she indicated that she felt discriminated against. This Service cannot determine whether discrimination has taken place in a legal sense in terms of alleged breaches of the Equality Act, as this is better suited to a court to decide. However, this Service can look at whether the landlord responded fairly and appropriately to the resident’s request for part of the communal garden to be separated for their sole use, including whether a landlord has properly considered its duties under the Equality Act.

The landlord’s response to the resident’s request for part of the communal garden to be separated for their sole use

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right.
3. Learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
The resident’s tenancy agreement confirms that a shared area is a part of a building that all residents can use – this includes communal shared gardens. There is currently no legal duty upon landlords to make reasonable adjustments to common parts which include outside areas.
The landlord’s reasonable adjustments policy states that it will signpost residents to the local authority’s disability assessment team where residents advise that their property may not be suitable in relation to their disabilities. It adds that it is committed to tailoring services to meet its residents’ particular needs. The policy also states that when deciding whether an adjustment is reasonable it will consider the effectiveness of an adjustment in preventing or reducing the disadvantage for the disabled person.
Following the resident’s August 2021 request to have sole use of part of the communal garden for her son, the landlord acted reasonably by providing the resident with an alteration request form. In addition, it managed the resident’s expectations appropriately by explaining that it was standard procedure to refuse these types of requests.
The landlord’s records indicated that on receipt of the completed alteration form it sought advice from its legal team. Given the nature of the request and the series of questions raised by the resident including the landlord’s duty to meet the resident’s needs and its obligations to provide reasonable adjustments, this was an appropriate step to take. Further, this demonstrated that the landlord was carefully considering its duties under the Equality Act. Its response stated that it did not have a duty to consider whether to make a reasonable adjustment as the request related to the common parts of let premises and it subsequently signposted the resident to her OT. While its response could have shown more empathy for her family’s situation, its response was accurate and professional, and it acted in line with its policy by signposting the resident.
Following the resident’s formal complaint, the landlord met with the resident to fully understand her request. It subsequently proposed to install a small fence along the grass edge of the communal garden, so that her son could use the space safely. In addition, it agreed to install a gate so that its ground maintenance team could gain access to maintain the shared garden. Its stage 1 response also clearly informed the resident that this area would need to remain useable for all residents and that the gate should always be accessible.
While the landlord was not obligated to install a fence, its proposal demonstrated that it was taking a customer-focused approach and that it was willing to tailor its services to meet the resident’s needs. Furthermore, by meeting with the resident to agree on the proposal it showed consideration to the effectiveness of the adjustment in line with its policy. It was also appropriate for the landlord to inform the resident that this area would remain shared and would need to be accessible as outlined in the resident’s tenancy agreement.
At the end of October 2022 after a visit from the landlord to view the proposed location of the fence, the resident declined its offer. She felt there were safety concerns relating to bushes, dog fouling and the type of lock to be used on the gate. She subsequently asked the landlord again to provide her with sole use of a part of the communal garden. The landlord responded promptly and reiterated that it could not provide her with sole use but that its proposed solution was still available to her. It also responded to her points about the dog fouling and said that it could help make referrals to the environmental health team and take action against any identifiable owner. In addition, it explained that it would not agree to a lock on the gate as the area needed to be easily accessible to other residents. The landlord responded adequately to the resident’s concerns and clearly explained its position. Furthermore, it was appropriate for the landlord to keep its proposed offer open for the resident.
Overall, the landlord acted fairly and reasonably in response to the resident’s concerns. Its responses were accurate, and it communicated its position clearly. Moreover, it demonstrated flexibility in its approach by reviewing the resident’s request and agreeing to a proposal that it believed would be effective in meeting the resident’s needs. This demonstrated that it was taking its duties under the Equality Act seriously and that it was committed to following its policy even though it was not obligated to offer reasonable adjustments in this case. In view of this, the Ombudsman has made a finding of no maladministration in the landlord’s response to the resident’s request for part of the communal garden to be separated for their sole use.
It is noted that in June 2023 the resident agreed to the landlord’s proposal and the work was carried out on 14 August 2023. The landlord’s records indicated that the resident was subsequently provided with a garden for her and her family’s sole use. While its records indicated that she was happy with the outcome, she informed this Service in October 2023 that the garden was unusable as it was waterlogged and there was no drainage system. A recommendation has been made below in respect of this.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s request for part of the communal garden to be separated for their sole use.

Recommendation

The landlord should inspect the garden area and consider what steps it can take to resolve the drainage issue.