Stevenage Borough Council (202318596)

REPORT

COMPLAINT 202318596

Stevenage Borough Council

28 November 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:
   1. handling of fence repairs.
   2. response to the resident’s concerns about a structure in a neighbouring garden.

Background

2. The resident is a secure tenant. She has lived at the property since 2012. The property is a one bedroom bungalow. The resident suffers from mental health issues, including anxiety and depression.
3. The resident raised concerns with the landlord on 25 February 2021 about the size of a structure that a neighbour had recently built in their garden. The resident sent the landlord photographs. She asked if it had given the neighbour permission to build the structure. She also reported that some fencing in her garden had fallen down.
4. The landlord responded to the resident on 4 May 2021. It told her it had written to the neighbour about the structure. It said it would keep her updated once further information was known.
5. A month passed and the resident received no update from the landlord. She submitted a formal complaint on 4 June 2021. The landlord told her it would respond by 17 June 2021.
6. The resident chased a response to her complaint 3 times between 18 and 28 June 2021. The landlord issued its stage 1 response on 8 July 2021. It said:
   1. it had raised a repair order for the fencing.
   2. it was unable to confirm when the works would happen as it was working through a backlog of repairs due to material shortages.
   3. it was unable to divulge specific information regarding the neighbour’s structure but it was taking the matter “very seriously”.
   4. it was sorry it had not provided the resident with an update sooner. It would keep her updated going forward.
7. The resident contacted the landlord on 19 February 2023. She said she had not received any further updates from it about when it would carry out the fence repairs or about its investigation into the neighbouring structure.
8. The landlord responded to the resident on 1 March 2023. It made no reference in its response to the structure in the neighbour’s garden. It said her property was on its fencing repairs programme. It explained that due to the COVID-19 pandemic, there was a backlog of fencing repairs across its portfolio. The fencing programme would attend to all of these. It anticipated the programme would last 18 months. It said it would contact the resident once its contractor was ready to inspect her fencing.
9. The resident submitted a formal complaint on 25 April 2023. She complained that:
   1. she had been waiting over 2 years for the landlord to carry out the fence repairs.
   2. since her initial reports of disrepair, strong wind had caused further fence panels and posts to fall down.
   3. the landlord had not responded to her concerns about the size of the structure in the neighbour’s garden.
   4. she had sent the landlord photos of the structure and asked it to view it from her garden. It had not done so. She said, “all I can see from my house is this structure.”
10. The landlord issued its stage 1 response on 11 May 2023. It said:
    1. it had committed in the stage 1 response issued in July 2021 to keep the resident updated about the fencing repairs and the structure. It acknowledged it had not done so.
    2. it was sorry it had not yet completed the fencing repairs. It explained this was due to the COVID-19 pandemic and a global shortage of construction materials creating a backlog of repairs.
    3. it had included the resident’s property in the programme of work it had developed to address the repairs backlog. It would survey her fencing in November or December 2023 and would start the repair work in January 2024.
    4. it apologised for the lack of updates in relation to her concerns about the structure in the neighbour’s garden. It explained COVID-19 and difficulties in obtaining information contributed to the delay. It acknowledged it should have escalated any problems in progressing its investigation to a manager and it should have kept the resident updated.
    5. it would be visiting the neighbour’s property that week to inspect the structure. Following this, it would update the resident by the end of the month on its findings.
11. The resident contacted the landlord on 31 May 2023. She advised that she had not yet received an update in relation to the neighbouring structure. The landlord apologised for the delay in updating her. It said it would carry out an inspection of the neighbouring property the following week.
12. The landlord attended the neighbouring property on 7 June 2023. It inspected the structure, which was a shed with pergola attached. It was satisfied that the structure complied with planning regulations.
13. The landlord did not contact the resident following the inspection. She therefore emailed it on 23 June 2023 and asked for an update. She said the structure impacted her enjoyment of her garden as it was all she could see when she looked out her back. She explained, “I have lost all interest in the garden, which is one of the reasons I was happy to be here.” She asked the landlord “to actually stand in my kitchen or rear garden to look at it.”
14. In response, the landlord attended her property on 28 June 2023. It viewed the structure from her garden. It advised her it was satisfied that the structure could remain in place.
15. The resident emailed the landlord on 3 July 2023 and asked to escalate her complaint. In doing so she queried whether the structure required planning permission due to its height. She also asked why the surveyor who conducted the inspection of the neighbouring garden on 23 June 2023, did not also view the structure from her garden. Two housing officers, rather than the surveyor, carried out the visit to her property on 28 June 2023.
16. The landlord issued it stage 2 response on 17 July 2023. It said:
    1. it permitted the structure in the neighbour’s garden to remain in place.
    2. if the surveyor had viewed the structure from the resident’s garden, this would not have changed the outcome.
    3. the service it provided to the resident had “fallen short” of what it would usually expect. It acknowledged it had delayed in providing her with updates, including following the stage 1 response. It apologised for this. It offered her a £150 discretionary payment in line with its compensation policy.
    4. it would learn lessons from the complaint in terms of case management and communication.
17. The resident was unhappy with the landlord’s response. She referred the complaint to the Ombudsman. She asked us to consider the landlord’s handling of the fence repairs and its response to her concerns about the structure in her neighbour’s garden.

Assessment and findings

Jurisdiction

18. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
19. Paragraph 42.a of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a landlord’s complaints procedure. This is because the landlord should have the opportunity to fully investigate and respond to the resident’s concerns. There is an exception to this if there is evidence of a complaint handling failure and the Ombudsman is satisfied that the landlord has not acted within a reasonable timescale.
20. Part of the resident’s complaint submitted on 25 April 2023 was that she had been waiting for 2 years for the landlord to repair her fence. The landlord acknowledged and apologised for the delay in attending to the repair in its stage 1 response issued on 11 May 2023. It told the resident the work was included in a wider fencing repairs programme and that it was scheduled to be carried out in January 2024.
21. The resident’s complaint also included concerns about a structure in her neighbour’s garden. When the resident asked to escalate her complaint on 3 July 2023, she indicated she was not satisfied with the landlord’s response to her concerns about the structure. This is assessed below.
22. The resident did not indicate in her escalation request that she was not satisfied with the landlord’s stage 1 response to her complaint about the fence repairs. The landlord therefore reasonably limited its stage 2 response to her outstanding concerns about the structure.
23. As the complaint about the fence was not addressed by the landlord at stage 2, it did not exhaust the internal complaints process. We are satisfied that there was no complaint handling failure by the landlord. On that basis, and in accordance with paragraph 42.a of the Scheme, the complaint about the landlord’s handling of fence repairs is outside the Ombudsman’s jurisdiction.

Response to the resident’s concerns about a structure in a neighbouring garden

24. The landlord confirmed to the Ombudsman that it was a tenant who built the structure in the neighbouring garden. The landlord’s standard tenancy conditions require tenants to seek permission before building any structures, including sheds and pergolas, in their garden. Even if tenants do not seek advance permission, the landlord’s policies enable it to grant retrospective permission.
25. The ‘Residential Property Alterations and Improvements Procedure’ states that the landlord would not unreasonably withhold consent where a tenant sought permission. The procedure provided that it could, however, refuse permission if one or more of a list of specified circumstances were applicable. These circumstances included that the proposed works would not comply with planning, building or other regulations, that the works would decrease the value of the property, or that there would be an adverse environmental impact.
26. The landlord delayed in initially responding to the resident’s concerns about the structure. She reported the issue in February 2021. The landlord wrote to her about it in July 2021 as part of its response to a formal complaint. In its response, the landlord committed to investigate the structure and keep the resident updated. The resident received no further updates.
27. The resident contacted the landlord in February 2023 and asked for an update on its investigation into the structure. The landlord provided her with an update in March 2023 about the fence repairs, but did not refer to the structure. It was only once the resident submitted a further formal complaint, that the landlord provided the update.
28. In its stage 1 response, issued on 11 May 2023, the landlord appropriately apologised for the lack of updates about the structure. It explained this was originally due to COVID-19 restrictions limiting home visits during 2021. It then experienced difficulties in obtaining information about the structure. It acknowledged it should have escalated any problems to a manager and it should have kept the resident updated. It said it would be visiting the neighbour’s property that week to inspect the structure. It committed to update the resident by the end of the month on its findings.
29. This was a reasonable response from the landlord. However, it did not follow through with its commitment to update the resident by the end of the month. This meant the resident had to go to the time and trouble of chasing the landlord for an update on 31 May 2023.
30. The landlord carried out the inspection of the neighbouring property on 7 June 2023. It did not promptly update the resident on the outcome of its visit. Over 2 weeks passed and the resident heard nothing. She then asked the landlord for an update on 23 June 2023. Given the landlord had acknowledged the previous month in its stage 1 response that it had failed to keep the resident updated about its investigations, it was unreasonable that it continued to do so.
31. The landlord visited the neighbouring property on 7 June 2023 to assess the structure. A qualified surveyor carried out the inspection. He was satisfied the height of the structure meant it did not need planning permission. It was reasonable for the landlord to rely upon the professional opinion of its surveyor.
32. Following the inspection, the landlord determined the structure could remain in place without alteration. Its records indicate that it made its decision based upon two factors. Firstly, that the structure complied with planning regulations. Secondly, that it was appropriate to grant permission in light of the circumstances of the tenancy at the neighbouring property. It appropriately did not provide any information regarding the tenancy considerations to the resident due to data protection restrictions.
33. The landlord advised the resident during a home visit on 28 June 2023 that it had decided the structure could remain in place. When the resident escalated her complaint on 3 July 2023, she indicated that the 2 housing officers who visited her said they did not know what the planning rules were in relation to height restrictions. She outlined her understanding that planning rules required garden structures to be under 8 foot in height. She said that the neighbouring structure was “just over” 8 feet. She therefore asked the landlord to clarify if it required planning permission. She also complained in her escalation request that the landlord did not ask the surveyor to view the structure from her garden.
34. In its stage 2 response, the landlord confirmed that it was satisfied that the shed and pergola were permitted. It said that if the surveyor had viewed the structure from the resident’s garden, “this would not change the outcome” and therefore it did “not consider a further visit to be appropriate.”
35. Given the resident had specifically stated her view that the height of the structure meant it required planning permission, it would have been reasonable for the landlord to address this more directly in its response. It could have clarified what was permitted by planning and confirmed what height the structure was. Instead it simply provided a blanket response by stating it was “permitted”.
36. Similarly, the landlord could reasonably have explained why the outcome would not have changed even if the surveyor visited the resident’s property. The landlord’s approval of alterations is not simply predicated upon compliance with planning regulations. It must take other factors into consideration. The resident asked it a number of times to inspect the structure from her garden. She explained the impact it was having on her mental health and enjoyment of her garden. Although the landlord sent 2 housing officers to attend the resident’s property on 28 June 2023, this was after it had already made the decision the structure could stay. The landlord should therefore have addressed this more fully in its complaint response. It could reasonably have explained the factors it did consider when reaching its decision, such as those set out in its ‘Residential Property Alterations and Improvements Procedure’. It could have explained if the impact on her garden was not a material consideration in accordance with the procedure.
37. That the landlord did not provide a fulsome response to the resident’s concerns about the structure, was service failure. It was not in keeping with the Ombudsman’s Complaint Handling Code which requires landlord to fully respond to all aspects of a complaint.
38. In line with our remedies guidance, we order the landlord to pay the resident £50 compensation for the distress and inconvenience caused by the service failure to fully respond to her concerns.
39. It is our understanding that the landlord conducted its inspection of the structure in its capacity as a landlord, rather than as the local planning authority. Therefore, if the resident is of the view that the structure does require planning permission due to its height, she could report it to the local authority planning enforcement team for consideration.
40. In its stage 2 response, the landlord appropriately acknowledged and apologised for all of its delays in investigating the structure and updating the resident. It said its service fell below the standard it would usually expect and that it would learn from this. It offered her £150 for her time and trouble in pursuing the matter, and the inconvenience caused, in line with its compensation policy. We are satisfied that in line with our remedies guidance, this was a reasonable offer of compensation for the delays and failure to provide updates in relation to the structure. We therefore do not make a further compensation order in relation to those failings. We understand the landlord has now paid that compensation to the resident.

Determination

41. In accordance with paragraph 42.a of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of fence repairs is outside the Ombudsman’s jurisdiction.
42. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s concerns about a structure in a neighbouring garden.

Orders

43. Within 4 weeks of the date of this report, the landlord should:
    1. apologise to the resident for the service failure identified in this report. The apology should follow the best practice set out in the Ombudsman’s remedies guidance.
    2. pay the resident £50 compensation for the distress and inconvenience caused by the service failure in its response to her concerns about a structure in a neighbouring garden.