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St Albans City and District Council (202227257)

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REPORT

COMPLAINT 202227257

St Albans City and District Council

31 October 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:   
    1. The resident’s concerns about ownership of land between her property and a neighbour’s.
    2. The resident’s reports of antisocial behaviour by the neighbour.
    3. The associated formal complaint.

Background

  1. The resident is the secure tenant of the property owned by the landlord, a local authority.
  2. On 8 December 2021 the resident informed the landlord that her neighbour had told her that the land between her and her neighbour’s property which she believed was communal was part of the neighbour’s boundary. She asked the landlord to look at the land plans. The landlord did so and informed the resident, on 16 December 2021, that it believed the land was the neighbour’s.
  3. The neighbour erected a fence on the land in February 2022. On 27 April 2022 the resident emailed the landlord stating that although she had been told by another department of the landlord and later by a head of service that the land was communal and despite her being aware the neighbour had been informed, the fence remained in place, and she would consider legal action if the landlord took no action. The landlord considered that to be a complaint by the resident.
  4. The landlord issued a stage 1 response on 20 May 2022. It stated it did confirm it had told the resident after further guidance that the land was communal land. It admitted incorrectly advising the neighbour that the piece of land was within their boundary. It was an error and apologised to the resident. It offered 1 week’s rent credit of £160.44 in recognition of the distress caused. It also confirmed the neighbour had been advised of its error, and it had requested that arrangements were made to remove the fence. However, the neighbour was disputing ownership of the land. It advised her if the neighbour did not cooperate with its request to remove the fencing to reinstate the area as communal land, then it would have to take legal action.
  5. On 27 May 2022, the resident reported antisocial behaviour (ASB) stating the neighbour shouted abuse, caused damage to property belonging to her and made reference to not expecting the landlord to do anything about the garden/fencing. The police had been called and the neighbour arrested. The resident also reported the neighbour was smoking cannabis from June 2022. Further reports of verbal abuse, cannabis use and a car regularly visiting the neighbour’s property were made by the resident in July 2022.
  6. The landlord informed the resident on 23 June 2022 that it would require the neighbour to remove the fence by the end of July 2022. The fence was not removed at the end of July 2022 and the landlord informed the resident it would consider legal action to ensure removal of the fence to return the land to communal use. In October 2022 the landlord’s records show the fence had been moved but it still remained on the communal land and it had referred the matter to its external solicitors. The landlord repeated that it would consider legal action in correspondence with the resident in March 2023 as the fence remained in place.
  7. The landlord issued a stage 2 response on 3 May 2023 after contact was made by the Ombudsman. The landlord provided a response to the disputed land and the ASB reports. In relation to the disputed land, it had apologised to the neighbour for its error and in advice given on the boundary. It had offered to reimburse the costs of the fence and of relocating it to the correct position. It was considering what next steps it could take to bring the issue to a conclusion as it remained unresolved.
  8. In relation to the ASB the landlord stated it offered to reimburse the resident £80 for damaged to her property by the neighbour’s partner, despite it not being obliged to do so. It had given the neighbour “words of advice” following an incident of verbal abuse of the resident by the neighbour. It had investigated her allegations that the neighbour smoked cannabis, but no evidence was found. The resident had passed details of vehicles to it and the police, but it had no legal authority to check DVLA databases.
  9. Following further reports by the resident, the landlord advised that a new position had been agreed for the fence with the neighbour and it would be moved by 30 September 2023. On 29 September 2023 it wrote to the resident and said it had concluded that the original boundary was incorrect. As a result, the current fence line that was in situ would remain and form the correct boundary to the property.

Assessment and findings

Scope of the Investigation

  1. The evidence provided to this Service shows the issues involving the boundary and fencing continued beyond the landlord stage 2 response including the landlord making a new decision on the boundary position. It is also noted that the resident continues to have concerns regarding the neighbour and use of cannabis. The Ombudsman cannot investigate aspects of a complaint which have not exhausted the landlord’s complaint procedure. This is because the landlord has not had an opportunity to investigate and respond to any complaint which may be raised by the resident in respect of those events. The resident will need to contact the landlord and, if appropriate, raise a separate complaint regarding any action or decisions it has made in relation to the boundary or cannabis use that have occurred after the landlord issued its stage 2 response to get those matters investigated

Ownership of land

  1. The Ombudsman cannot make a finding about where the boundary line should lie. This is a legal matter that should be properly determined by inspection of the land and with reference to any documents held by the Land Registry. Further, this would be a matter for the landlord to raise, given that it owns the freehold title for the property. It follows that the Ombudsman cannot determine whether the landlord reached the correct conclusion with regards to the boundary line. However, the Ombudsman has assessed how the landlord dealt with the matter, and what steps were taken to investigate matters relating to the boundary line.
  2. It does not appear disputed that the landlord initially informed the neighbour the land was within their boundary in December 2021.
  3. A fence was then erected by the neighbour in February 2022 which prompted the resident to recontact the landlord. The landlord’s records show on 28 February 2022 it noted that the resident had maintained the land for over 40 years as she was told it was communal. The neighbour had moved, its officers had looked at Right to Buy plans and confirmed that the land was in the neighbour’s boundary. However, the resident had recently found a map on its website with a line going through the land, so was disputing that. The landlord asked internally if someone could have a look and confirm who the area of land belonged too.
  4. It was right of the landlord when presented with information that may have affected the decision it had made to consider the new evidence and make further enquiries. There was however no evidence provided of any further decisions made by the landlord at that time, prompting the resident to chase it on 22 March 2022 and 4 April 2022 for an update.
  5. In an email to the landlord on 4 April 2022, the resident stated she had been told in an email by the landlord’s green spaces department, on 16 March 2022, that the land was communal. A copy of the email stated was not provided to this investigation by the landlord. The resident also stated in an email to the landlord on 27 April 2022 that it had confirmed the land was communal and that the neighbour had been notified, however the fence erected by the neighbour had not been removed. The resident informed the landlord she would consider legal action if the situation was not resolved within 14 days.
  6. The landlord’s stage 1 response acknowledged the error it had made, offered redress to the resident, and informed her of the action it would be taking to put things right. However, it is noted that at the time the stage 1 response was issued it had been around 6 months from when the issue was first brought to the attention of the landlord. The offer of 1 week’s rent was not a reasonable award of redress to the resident given the landlord had initially made the mistake and the issue was yet to be rectified.
  7. The next update evidenced by the landlord was on 10 June 2022 when it emailed the resident regarding her concerns about the condition of a hedge on the land and informed her that negotiations continued. Although the landlord stated it was making some progress, it did not elaborate on that to the resident. There is also no evidence provided to the Ombudsman of what actions the landlord had taken during this period.
  8. The landlord did write to the resident on 21 June 2022, confirming that the information was given to the neighbour verbally, it could not find any record of a letter sent and its priority was to remedy the mistake. The resident was told by the landlord that it had to give the neighbour the opportunity to remove the fencing before it could escalate it to legal action to remove it. It had met with its legal department and estates team, a process had been agreed in taking that forward, and it would be in contact with her that week with further details. The landlord did not supply to the Ombudsman any correspondence it had with its legal department or estates team in relation to the process that was agreed.
  9. On 23 June 2022, the landlord informed the resident her neighbour would be given a reasonable amount of time to remove the fence, and it anticipated that should be removed by the end of July 2022. If the fence remained after the end of July 2022, it would update her further regarding its next course of action. Once removed, the land would remain communal land. However, the landlord’s records show that at the end of July 2022 the fence remained.
  10. On 10 October 2022, the landlord issued a further letter to the resident and stated that the fence had been moved but it had made it clear to the neighbour that it was not in the correct position and needed to be removed. Having exhausted all internal escalation procedures, it had referred the matter to its external solicitors who would manage the case until conclusion and it would be unable to provide her with any further updates regarding the progression of the case.
  11. In the same letter, the landlord referred to the resident raising concerns about the location of bins. It had inspected the area, and on the day of inspection the bins were placed on the edge of the communal land and near the fence and gate of the neighbour. It did not see another area suitable to house the bins near the neighbour’s property and on that basis decided that the bins could remain on the communal land and written permission would be granted confirming the location. As it had addressed all issues raised via her complaint it was closing her complaint.
  12. It is not clear why the landlord had closed the complaint at this stage as the issue remained outstanding. Although the landlord had passed the enforcement to its solicitors it was ultimately still responsible for resolving the resident’s concerns.
  13. Although the landlord stated to the resident in its correspondence with her that it was in contact with the neighbour and its legal team, no evidence was provided to this Service regarding what contact it had and what advice or recommendations had been made. In the absence of such evidence the Ombudsman therefore cannot establish the landlord did the actions it stated it would do or if it appropriately acted on any advice given.
  14. The resident questioned the landlord’s decision regarding the bins and why the matter had had been referred to an external solicitor rather than the landlord’s internal legal team. The landlord confirmed it was its intention to grant a temporary licence for the bins to remain on the edge of the communal land and it could not comment on its internal decisions regarding the legal action. Its actions resulting in the decision to grant the use of communal land for the neighbour’s bins were not evidenced by the landlord.
  15. No further evidence was provided by the landlord for any actions that took place until it issued a letter to the resident on 31 March 2023.The letter stated a new neighbourhood officer, had taken over the management of the case and the officer and a manager had taken consideration of legal steps, visited the site to take measurements and met with the neighbour. There was an indication that the neighbour was in agreement to bring the matter to an end and agreed that the fence could be reinstated back to the position it had been when the tenancy had started. It had written to the neighbour and advised it would be arranging the work, give the neighbour an appropriate period to respond to the letter and then instruct contractors. Should any further obstruction or objection arise from the neighbour it would revert to legal action with them. It did recognise the distress that had been caused to her over the previous 18 months and it apologised.
  16. The landlord repeated the commitment for legal action to the resident, however, it failed to provide any update regarding if it had progressed the legal action it referred to in October 2022, the outcome of that or why it needed to be rereferred to legal services. The resident would understandably be concerned that the landlord did not appear to be following through on commitments it had previously made and that the matter had been ongoing for an increasing amount of time.
  17. The resident contacted the Ombudsman which subsequently made contact with the landlord on 31 March 2023 asking it to respond to her concerns. The resident also emailed the landlord on 17 April 2023 and stated she was frustrated with its handling of the matter from November 2021 and was still sending out paperwork that was incorrect. She had suffered 18 months of distress. The neighbour had over a year to put the fence back to the correct place. The resident asked that a ‘Licence to cross’ issued by the landlord be cancelled as the land had always been amenity land therefore anyone could walk on it and she was being victimised by having the document as no one else had one. The landlord’s records show on the same day it noted that it had 3 different versions of the boundaries for the affected properties.
  18. The landlord’s stage 2 response to the resident on 3 May 2023 stated that, following its initial approach the neighbour relocated their fence, but it remained on the amenity land and encroached by approximately 5-6 square metres. It contacted the neighbour again and told them that the fence was still not in the correct position and that it needed to be relocated. It offered to do the work, but the neighbour continued to resist its request. It assured the resident that it would continue to pursue legal action as necessary to relocate the fence but for reasons it could not divulge without breaching the neighbour’s data protection there was likely to be some degree of encroachment on the land in excess of the original location of the fence. It was not averse to legal action and any costs of legal action were not a consideration. At best, it could improve the situation which would involve having to make allowances for her neighbour’s personal circumstances. This was why the action it was taking appeared protracted and may not give the final outcome she wished for as it would likely involve compromise on both sides. There was however no firm commitment by the landlord regarding when the issue would be resolved for the resident.
  19. Ultimately, the issue regarding the disputed land progressed for a significant period of time which would have caused distress and inconvenience to the resident. There is no dispute the issue was brought to the attention of the landlord at least in December 2021 and at the time the stage 2 response in May 2023 was issued, the dispute over the land had not been resolved. Although the fence had been relocated within the land, it still remained. This was a period of over 17 months. The landlord stated in the stage 2 response that this was due to the neighbour’s circumstances but failed to provide any further context.
  20. It is acknowledged that a dispute over land can take time to resolve. Nonetheless, the landlord has not evidenced it was appropriately managing the issue regarding the disputed land. It has not evidenced the actions it stated it was taking during the period covered in this investigation and not provided evidence of its contact with the neighbour or legal services. It has not clarified why it did not proceed with legal action once it became clear the fence had not been removed within the timescales provided to the neighbour, or why in the stage 2 response it felt some of the land may need to have been used by the neighbour. This was maladministration by the landlord.

The resident’s reports of ASB

  1. When it receives any reports of ASB, the landlord would require evidence to fully investigate the reports made, come to a conclusion and, if required, take appropriate action. For the landlord to be able to take any enforcement action it would require evidence of any breaches of the tenancy agreement or its ASB policy.
  2. The landlord’s ASB policy states it will complete a witness risk assessment for all new cases. The policy also states that once sufficient information is received, it will explain to the witness the proposed course of action, outlining clearly the actions it can and cannot take based on the available information. The actions it can take include contacting the alleged perpetrator via letters, telephone calls and interviews which it states in a large proportion of cases does resolve the matters. It may also use processes including but not limited to mediation, acceptable behaviour contracts, surveillance, and injunctions.
  3. The landlord’s ASB policy refers to the tenancy conditions that cover the main forms of ASB, noting that section 5.7.5 of the tenancy agreement states harassment or antisocial behaviour is any act or failure to act which interferes with the peace and comfort of other residents or any other member of the general public. This includes being violent or threatening violence, being abusive or using insulting words or behaviour, being offensive and damaging, or threatening to damage, someone else’s property.
  4. The resident’s complaints about her neighbour centred on her reports the neighbour had committed ASB by shouting abuse and had caused damage to her personal property along with allegations of smoking cannabis and drug dealing.
  5. The resident reported ASB to the landlord from the neighbour on 27 May 2022. She stated that the neighbour stood outside around midnight shouting abuse, caused damage to property belonging to her and made reference to not expecting the landlord to do anything about the fencing. Following the resident’s reports to the landlord, it would be expected to follow its ASB policy to complete a risk assessment, discuss an action plan and investigate the reports.
  6. The landlord’s records show the police was visiting the resident later that day to take a statement and the incident was witnessed by other neighbours who may have also filmed it. The landlord asked if the resident could take any photos of the alleged damage and to ask the police if they could provide any pictures they had. It asked its community protection team to follow up and make enquiries as a result of the arrest. These were appropriate actions taken by the landlord.
  7. The landlord has evidenced through internal emails that it spoke to the resident on 30 May 2022 regarding her reports and that it was provided with a crime reference number by her. It emailed her the same day and said it would contact another neighbour who witnessed the incident. It also evidenced it spoke to her on 7 June 2022 to obtain more information. The resident said the neighbour was arrested and released pending further enquiries.
  8. A letter was issued to the resident by the landlord on 21 June 2022. It informed her that the Community Protection Team was its key liaison with the police. They would be working with her neighbour and obtaining information from the Police in respect of the incident outside her home on the night of 26/27 May 2022. It did not yet know what action the Police would be taking following the incident.
  9. On 23 June 2022, the landlord emailed the resident and stated its Community Protection Team had investigated the report and an injunction warning had been issued. However, the landlord provided no evidence of its investigation into this incident. There were no copies of the injunction warning letter provided or evidence that the landlord made the enquiries it stated it was going to do including contacting other neighbours.
  10. The landlord stated in the stage 2 response that the neighbour’s partner had been charged with criminal damage and public order offences which was pleaded guilty to and ordered to pay a fine including £50 compensation to the resident. The landlord’s records are not clear on when that verdict was made in relation to its own investigation or the injunction warning letter it had issued to the resident.
  11. Given, the landlord’s ASB policy and tenancy agreement states in section 5.7.6 “You must not commit, or allow anyone who lives with you to commit, an arrestable offence in the area your home is in.” The landlord has not evidenced that following the conviction that it considered if the incident warranted a breach of the tenancy and if any further action was required.
  12. The resident informed the landlord on 7 June 2022 that she was smelling cannabis from the neighbour’s property and had done so for a while. She reported it due to the persistence of the incidents. The landlord’s records show it told the resident she would be updated once an action plan was in place. There was no evidence an action plan was produced or provided by the landlord.
  13. On 9 June 2022, the resident provided an update to the reports of cannabis smells stating she could smell it on 7,8 and 9 June 2022. The landlord acknowledged those reports and informed the resident it would be discussing those with the neighbour and for her to continue to report the incidents to the police. This was positive and appropriate action by the landlord as the police are best placed to deal with incidents involving criminal activity. Gathering evidence is critical to resolving ASB cases and demonstrated the landlord was being fair and impartial in its approach.
  14. The resident also reported the cannabis smells to the police on 15 June 2022 and 22 June 2022 and informed the landlord she had done so. The police contacted the landlord on 23 June 2022 asking it if it was aware of the reports and taking any action. The landlord confirmed it had received the reports, but it was hard to prove it was happening. Its officer had visited recently and could not smell any cannabis. It said it would be helpful if an officer on patrol could pass by on occasion and notify it if they smelt any cannabis from the property. The police confirmed it was only the resident who had made a report to it and the landlord confirmed there would not be enough evidence to constitute a breach of the tenancy.
  15. Without any evidence the landlord would have been restricted in the options it had available. In this case there was no evidence provided that the landlord received any further evidence from the police or any other neighbours. It is therefore reasonable that the landlord could not take any further action at that time.
  16. The landlord provided updates to the resident on 23 June 2022 and 8 August 2022. These updates included that it had discussed the allegations with her neighbour who denied that anyone was using cannabis, however, it had sent a warning letter to her neighbour stating that if any incidents had occurred in the past they should cease immediately. It clarified that the police had not indicated that they were able to take any action against the neighbour regarding the cannabis incidents and suspected drug dealing. It also stated that, during its investigation, it had spoken with council staff, contractors and a local councillor who had either visited the property or visited nearby in the previous few months. They were asked if they had seen any evidence of cannabis use and the response was that they had not. It had visited the property unannounced to speak with the neighbour and found no evidence of the use of cannabis. Smelling it and suspected use of cannabis, was not sufficient for it to prove a breach of tenancy had occurred.
  17. The letter on 8 August 2022 also stated the neighbour had denied that they smoked cannabis, and should they continue to deny any cannabis use, it was likely it would have to close its investigation. The landlord would continue to monitor the reports received and could reopen its investigation if necessary. It was sorry to hear that the neighbour had been verbally abusive and had made negative uninvited comments to the resident following its communication. It had written to the neighbour regarding those allegations and once it had a response to them, it would decide the appropriate next steps.
  18. The complaint was not responded to as a stage 1 response but was responded to as part of the stage 2 response the landlord issued regarding the disputed land. The response in relation to the reports of ASB stated the incidents which were reported to the police had been dealt with. The criminal damage incident in May 2022 resulted in a fine for the neighbour’s partner. The incident involving her neighbour shouting abuse in July 2022 resulted in the police giving the neighbour “words of advice”.
  19. In respect of the resident’s allegations that the neighbour smoked cannabis, it had been thoroughly investigated by both the landlord’s staff and the police but on no occasion did it notice a smell of cannabis. The police told it they would increase patrols in the area, but they had not reported anything to it. It did not know what action the police had taken in respect of her reports of vehicles attending the neighbour’s property but they had not passed anything onto it which it could use to evidence drug use or dealing at the property.
  20. Throughout the period covered in this investigation, the landlord has stated the action it took and those would be considered appropriate in the circumstances. However, it has not evidenced the majority of the actions it stated it did. Although there was some evidence provided of emails between the police and the landlord regarding the reports of ASB made by the resident, there was no evidence of any formal ASB cases being opened by the landlord.
  21. There was no evidence of when or how often the landlord had visited the neighbour’s property, its contact with contractors, or copies of the warning letters issued to the neighbour. There was also no evidence of the landlord speaking to the neighbour regarding the allegations. The stated actions would be considered appropriate actions for it to take and would be inline with its ASB policy. But the lack of evidence has limited the Ombudsman’s investigation as we cannot establish the extent of any investigations the landlord had taken.
  22. It is acknowledged the tenancy agreement states in section 5.7.7 that the property must not be used for any illegal activity which includes selling or taking drugs. It is also acknowledged that the use of cannabis is difficult for the landlord to take action without sufficient evidence. In this case there was no evidence the police provided information to the landlord that would have allowed it to take any further actions under a breach of the tenancy.
  23. Without sufficient evidence it would have been difficult for the landlord to take any formal action. However, the landlord has not evidenced the actions it stated it took itself to the reports of ASB from the resident or that it followed its ASB policy in completing risk assessments and action plans. These failures result in a finding of service failure by the landlord.

Complaint handling

  1. The landlord considered the resident’s email from 27 April 2022 to be a formal complaint. It issued an acknowledgment of the complaint on 5 May 2022. This was 6 working days later and beyond the 3 working days required under its complaints policy.
  2. It provided a response date of 19 May 2022 to the resident. Although the stage 1 response was issued on 20 May 2022 this would not have caused a significant impact to the resident. The stage 1 response informed the resident how to escalate the complaint if she wished to do so and the landlord reiterated the option to escalate the complaint to stage 2 on 21 June 2022. There is no evidence the resident formally requested the complaint be escalated to stage 2.
  3. However, the resident made a further complaint on 7 November 2022. The resident’s complaint included the reports about the neighbour, following them being informed that the disputed land was their garden. The resident asked that the landlord investigate that complaint as it had done nothing.
  4. Although the scope of that complaint was mainly regarding the ASB she had suffered from the neighbour, given the issue regarding the fence remained and the resident had stated she was not happy with the actions of the landlord, this was an opportunity for the landlord to speak to the resident and establish if a new complaint was to be raised or to move her previous complaint to stage 2. The landlord however has not evidenced it did either of those options and the complaint did not progress. It instead informed the resident on 29 November 2022 that it believed that all the matters that she had raised had been responded to.
  5. It is also noted that although the stage 1 response stated an escalation needed to be made within 35 days, the landlord’s complaints policy does not state any timescale for an escalation to be made.
  6. The landlord responded on 29 November 2022 and informed the resident the complaint had been reviewed by officers who had involvement in the case and had been in contact with her. It believed that all the matters she raised had been responded to. However, if any issues occurred in the future those should be reported directly to her Housing Officer. In addition, due to data protection legislation it was unable to share with her any actions that it had taken in respect of her neighbour.
  7. This response was not appropriate as the resident had clearly made a complaint regarding ASB. The landlord would therefore, be expected to formally respond to this. Further to that, the landlord should have considered if the resident’s complaint was regarding issues that arose after it had issued the stage 1 response as those would be new issues for it to consider.
  8. The resident had clearly stated she was not happy with the landlord’s handling of the situation. While it may have been correct that it had responded to the issues she had raised, the complaint was about her dissatisfaction with how it handled those reports. As such, it should have responded formally to the complaint. 
  9. Although the landlord did issue a response regarding the handling of ASB in the stage 2 response it issued to the resident in May 2023, by including the ASB at this stage, and not issuing a formal stage 1 response, it deprived the resident of the 2 stage complaint process. Overall, the landlord’s handling of the resident’s complaint amounts to service failure.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme:
    1. There was maladministration by the landlord in its handling of the resident’s concerns about ownership of land between her property and a neighbour’s
    2. There was service failure by the landlord in its handling of the resident’s reports of ASB.
    3. There was service failure by the landlord in its handling of the resident’s complaint.

Orders

  1. Within 4 weeks of the date of this report the landlord must:
    1. Provide the resident with a written apology for the failures identified in this report.
    2. Pay the resident £250 for the distress and inconvenience in its handling of the resident’s concerns about ownership of the land. This compensation is to be paid to the resident and not offset against her rent account.
    3. Pay the resident £100 for its handling of the resident’s reports of ASB. This compensation is to be paid to the resident and not offset against her rent account.
    4. Pay the resident £50 for its handling of the resident’s complaint. This compensation is to be paid to the resident and not offset against her rent account.

Recommendations

  1. It is recommended that the landlord reviews its record keeping practices to ensure that it keeps a record of all correspondence acquired during ASB investigations.