Stonewater Limited (202233580)
REPORT
COMPLAINT 202233580
Stonewater Limited
20 September 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 concerns about:
- A data breach.
- How it treated her during a boundary dispute.
Background and summary of events
- The resident is an assured tenant of the landlord. She lives in a 2 bedroom house that she has occupied since August 1995. The resident is recorded as being elderly with physical vulnerabilities. The records also state that she has been recovering from cancer.
- After receiving a complaint, the landlord sent the resident a letter on 8 July 2021. It stated that, following an inspection, it had reason to believe she had “unlawfully” extended her rear boundary. It advised her that, if she was unable to provide proof of written consent to do this, she had to reinstate the original boundary within 28 days of the letter. It sent a further letter on 21 September 2021 stating that, following a second inspection, it could not see that the boundary had been returned to its “legal” position. It said it would consider taking further action if the resident failed to contact it within 14 days.
- The resident contacted the landlord on 24 September 2021 to say she had not received the first letter sent on 8 July 2021. She said she was unhappy with the “threatening” tone of the second letter. Between this date and 25 December 2021, there followed further correspondence about the boundary. The landlord offered, as a “gesture of goodwill”, to fund the necessary works to reinstate the boundary to its intended position. It told the resident that it had contacted all residents who had extended their boundaries without prior consent. The resident, however, told the landlord that, after speaking to her neighbours, she believed she was the only resident the landlord had pursued about her boundary. As a result, she felt “victimised and harassed”. She added that she would be happy to accept the landlord’s offer only when it had contacted all 4 properties that had extended their boundaries. Following 25 December 2021, it is not clear from the records whether the landlord took any further action until 15 February 2023.
- On 15 February 2023, the landlord sent the resident a letter. It stated that:
- It had contacted her “multiple times” regarding the “unlawful extension” she had taken from her neighbouring property.
- The “unlawful boundary extension” had been confirmed both by the land registry and its surveyor.
- It had previously issued her with 2 previous warnings but she had failed to act on its request for her to return her boundary to its former position.
- By extending her boundary without permission, she had breached the terms of her tenancy agreement.
- This was her third and final warning to reposition her boundary line and it was providing her with a further 14 days in which to do this.
- Failure to act would give it no option but to refer the case to its solicitors and she could be at risk of losing her home for breach of tenancy.
A copy of the letter was also sent to the resident’s neighbour, in error.
- During a telephone conversation with the resident, on 20 February 2023, the landlord acknowledged it had been at fault for copying the letter to the resident’s neighbour. It said it had referred the matter to its data protection team for investigation and told the resident to disregard the deadline it had given in its letter. On 28 February 2023, the resident called the landlord to raise a stage 1 complaint. She stated that her neighbour had been sent a copy of a letter that contained her personal information. She said it was “completely wrong” to have done this and that she was “absolutely furious”. She wanted the landlord to send a letter to her neighbour “rescinding” the previous one and a full apology, along with compensation. The landlord acknowledged the complaint on the same day. On 14 March 2023, it wrote to her again to advise that it needed more time to investigate her complaint and would issue a response by 27 March 2023.
- The landlord issued its stage 1 response on 21 March 2023. It stated that:
- It was clear it had made a mistake in copying her final warning letter to her neighbour. It had reported the matter internally to its data protection team, who had confirmed it was a data breach.
- It recognised that being asked to correct the boundary issue could have made her feel targeted if other neighbours had not received the same requirements. It recognised that it had “clearly” made a mistake in sending the letter to her neighbour.
- The need to resolve the boundary issue remained and it would carry out “a full case review”, including an inspection to determine the next steps. It would provide her with an update on the process by 24 March 2023.
- There were lessons to learn from how it had managed the case and the staff member involved had committed in future to fully understand cases before taking action.
- In acknowledgement of the data breach and the “stress and upset caused”, it wanted to offer the resident £200 compensation.
- On 24 March 2023, the landlord wrote to the resident to say it was not previously aware a number of properties had extended their rear boundaries. It added that, due to the complexity of the issue, it wanted to arrange for its surveyor to visit the estate so it could assess the work it needed to carry out. The resident responded on the same day to say that, as its surveyor had inspected the site the previous year, she could not understand how the landlord was unaware other properties were involved in the boundary issue. She added that, while she accepted its apology, she could not accept that it had sent the letter in error, as it had been “directly” copied to her neighbour.
- On 12 April 2023, the resident told the landlord she was unhappy with the outcome of her stage 1 complaint and asked for it to be escalated. She stated that she:
- Was upset that none of the other properties had been asked to move their boundary fences.
- Wanted the landlord to send her neighbour a letter revoking the previous one.
- Felt that copying the warning letter to her neighbour was a data breach.
- Was unhappy with the tone of the final warning letter.
- The landlord acknowledged her escalation request on the same day and issued its response on 26 April 2023. It stated that:
- It agreed it had not acknowledged the poor level of communication she had received.
- Since she had raised her concerns, it had investigated the matter further and would take the necessary steps to look into any other potential tenancy breaches.
- It was not appropriate for it to comment on her neighbours’ cases but encouraged her to work with it to resolve any possible breaches to her own tenancy agreement.
- It would not rescind the previous letter but would speak to all parties involved, clarify its position and consider all points of view fairly.
- It reiterated what it had said in its stage 1 response about the data breach. It added that it had spoken with her neighbour to explain the situation and ensured all its employees received appropriate training.
- It recognised that she felt “very unhappy” with the letter she received because her neighbours had not received the same for similar issues. It understood the tone was not welcomed by residents but that there was a balance between ensuring it addressed potential tenancy breaches in a way that allowed it to take appropriate action.
- It wanted to make an increased offer of £350 compensation, which it broke down as follows:
- £100 in recognition of the data breach.
- £100 for the stress and upset caused by the data breach.
- £150 for the distress and inconvenience caused by its poor communication.
- The resident contacted the Ombudsman on 12 June 2023 to say that the landlord had “constantly lied” to her about the letter that was copied to her neighbour. She said that it had always said it was an “error” and that her neighbour had not been “driving the complaint”. She added that, following her subject access request, it was clear her neighbour had been “driving this from the start”, which was why the landlord had copied the correspondence to them.
- It is noted that on 14 July 2023, the landlord wrote to the resident to give her retrospective permission to extend the boundary of her garden. In addition, it had arranged to have the rear fence post and two rear panels replaced between her and her neighbour’s properties. The records show that this work was completed on 23 August 2023.
Assessment and findings
Policies and procedures
- The landlord’s neighbourhood management policy states that it aims to prevent avoidable escalation of issues and detrimental impact to its residents. It also states that all residents must make sure that any repairs or changes made to their fences comply with the existing boundaries and seek advice if they are unsure.
- The landlord’s compensation policy states that discretionary payments will be dependent upon the severity of any failure and the associated impact on the resident. It follows the Ombudsman’s guidance on remedies to calculate the compensation payable. However, it will apply “discretion and flexibility”, which will mean that payments may diverge from the amounts suggested in the guidance.
Scope of investigation
- This report has not assessed the landlord’s handling of the resident’s personal information and its own data. The Information Commissioner’s Office (ICO) is an independent body, which has the power to investigate data breaches and to assess whether an organisation has failed to comply with the relevant data handling provisions. If the resident remains unhappy with how the landlord responded to her concerns about its data breach, she should refer the matter to the ICO accordingly. While we have not investigated the data breach itself, we have assessed how the landlord responded to the resident’s concerns of a breach, and if it acted reasonably in the circumstances.
- In her correspondence with the Ombudsman, the resident raised a number of new concerns, one of which related to outstanding roof repairs . The serious nature of these concerns is acknowledge. However, as they did not from part of the formal complaint to the landlord, this Service cannot investigate those matters at this stage. This is because the landlord needs to first be provided with the opportunity to investigate and respond. Should the resident remain unhappy about those issues, she may wish to consider contacting the landlord so that it may open a new complaint. In the event that she exhausts the landlord’s complaints procedure and remains unhappy, the resident may then refer the matter back to us as a new complaint.
Data breach
- The evidence shows that, following the resident’s report of a data breach, the landlord took reasonable and proportionate action in response. The member of staff concerned promptly reported the error to their manager, and the matter was referred to the landlord’s data protection team to investigate. The landlord also contacted the resident to acknowledge the error and apologise. It explained in its stage 2 response that all its employees received training in data protection, and gave the resident details of the learning the member of staff concerned had taken from the complaint. Furthermore, it offered the resident £200for the data breach and the upset caused by it, which was reasonable.
- In the circumstances, it would have been appropriate for the landlord to have signposted the resident to the ICO if she remained unhappy about how it had handled the data breach. That it did not do so was a shortcoming and the Ombudsman will make a recommendation that it signposts residents to the ICO in future if they raise complaints about data breaches.
- The resident’s concerns about the landlord’s handling of information relating to her are noted. From the evidence that is available, we are satisfied that the landlord took appropriate action once alerted of the situation. It also took proportionate action to try to put things right with the resident. It follows that the landlord has offered redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
Unfair treatment in a boundary dispute
- There is no evidence to show that the landlord took any steps to discuss the boundary issue with the resident prior to issuing its first 2 warning letters. It is unclear why it did not. The records show that the resident did not receive the first letter, which would have explained why she had not acted on it.
- It is unclear why the landlord did not take steps to speak with the resident prior to issuing its warning letters. It would have been reasonable for it to do so. Furthermore, had it done so, it would have gained a better understanding of the situation. For example, it could have established how long the new boundary had been in situ and whether the boundaries for neighbouring properties had been extended too. That it issued tenancy breach warning letters before speaking with the resident to understand the situation, and trying to resolve the matter informally was heavy handed. It would also have negatively impacted the relationship between the landlord and resident from the outset. This was a missed opportunity for the landlord to try and resolve the issue amicably and in a timelier manner.
- It is unclear whether the landlord had sought any legal advice regarding the boundary extensions before writing to the resident. The landlord has informed this Service that it was not relying on any guidance around managing boundaries at the time. Given that the landlord was considering tenancy enforcement action, it would have been reasonable for it to seek legal advice to help determine the best way to deal with the matter. While there was no obligation on the landlord to take such action, it would have been reasonable for it to seek guidance given the absence of any internal policies or guidance in relation to the matter.
- It is recognised that the tone of warning letters can come across as threatening. However it is also accepted they are written in order to achieve a specific outcome and are often based on specific templates. It is noted that the landlord did explain to the resident on 24 September 2021, after she had received the second warning letter, that it was not intended to be “threatening” and that it was “templated”.
- However, the records show that, in November and December 2021, the landlord and resident were in discussions about moving the boundary and finding a solution. It is therefore unclear why no further discussions took place between 25 December 2021 and when the landlord issued its third and final warning letter in February 2023. There is evidence the resident was prepared to discuss the matter over the telephone but there are no records to show the landlord had followed this up. Furthermore, the final warning letter makes no acknowledgement of the fact it had been sent so long after the second one.
- Issuing the third letter over a year later would therefore have come as a shock to the resident, particularly as it suggested the possibility of eviction. The letter would understandably have caused the resident some distress. There are internal records to show the landlord had questioned the appropriateness of sending the letter after such a lengthy gap. However, there is no evidence it had properly explored those reservations before issuing the letter.
- The resident is vulnerable and she was recovering from cancer at the time. It would have been reasonable for the landlord to have therefore made further attempts to resolve the matter informally before sending a final warning letter. That the landlord has not provided evidence it had tried to take a stepped and proportionate approach before issuing its final warning demonstrates poor communication and amounts to a failing.
- The landlord acted reasonably when it offered to meet the cost of works to move the resident’s boundary, and then to carry out fence works after the boundary issue had been settled. It is also positive to note that the landlord exercised its discretion by granting retrospective permission to extend as a way of resolving the matter. However, the delay of over a year between December 2021 and February 2023 in settling the issue could have been avoided had the landlord continued to work with the resident before sending her the warning letters.
- Following her complaint, the landlord told the resident to ignore the deadline in its warning letter. This demonstrates that it had sent its letter in haste and failed to sufficiently consider whether it was appropriate to issue the warning at that time. It was also a departure from the aim of its neighbourhood management policy in preventing avoidable escalation of issues and detrimental impact to its residents.
- The Ombudsman recognises that, when residents believe they are being treated differently to others, this could make some feel they are being victimised. However, it is accepted it would have been inappropriate for the landlord to have discussed any actions it was taking with regard to neighbouring properties. This would have compromised their confidentiality. Furthermore, as each resident’s circumstances would have been different, the landlord was under no obligation to approach the boundary issue in the same way for each property. Although it was understandable the resident may have felt unfairly targeted, the Ombudsman has found no evidence to show the landlord had victimised or treated her unfavourably her in any way. However, the records show that its communication with the resident was at times contradictory. This would have only served to increase her concerns she was being singled out.
- In an email to the resident, dated 18 November 2021, the landlord told her it had contacted all residents who had extended their boundaries without prior consent. However, the evidence shows that it was not until 14 July 2023 that the landlord first contacted the other properties about the issue. This was only after it has reached a resolution with the resident and granted retrospective permission for all the concerned properties to extend their boundaries.
- Furthermore, there is internal correspondence to show the landlord was aware from August 2021 that other properties had also extended their boundaries. It is therefore unclear why it told the resident on 24 March 2023 that it was not aware that a number of properties had extended their rear boundaries. It is recognised that, with a change in staff, those who are new to a case would be unfamiliar with the details. However, in these instances proper handovers should take place. Staff should ensure they carry out adequate background checks before taking specific actions. The landlord’s failure to carry out the proper research, along with its conflicting communication would have only served to compound the resident’s impression she was being unfairly targeted. The landlord’s poor communication with the resident in handling the boundary dispute issue and the avoidable distress and inconvenience it caused her amounts to maladministration.
- The landlord has made some reasonable attempts to put things right. It has acknowledged its poor communication, provided an apology and given details of how it would learn from the failings it had identified. Furthermore, it offered £150 compensation in recognition of the distress and inconvenience caused by its poor communication. However, it has not acknowledged the delay between when it issued its second and third warning letters, the inappropriateness of sending the third letter and the impact this would have had on the resident. For this reason, the Ombudsman feels the offer the landlord has made does not sufficiently recognise the distress and inconvenience caused. We will therefore make an order of further compensation in order to put things right.
Determination (decision)
- In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord had made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the resident’s concerns about its handling of a data breach.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concerns about how it treated her during a boundary dispute.
Orders
- Within 4 weeks of the date of this report the landlord must:
- Pay the resident compensation of £600, calculated as follows:
- £200 the landlord offered in its stage 2 response in recognition of the data breach and upset caused.
- £400 in recognition of the distress and inconvenience caused by its poor communication.
- Pay the resident compensation of £600, calculated as follows:
This replaces the landlord’s total offer of £350 compensation it made in its stage 2 response.
- Provide a written apology to the resident from a senior member of staff. This should focus on its failure to discuss the boundary issue with the resident before sending warning letters. In addition, to apologise for the excessive delay between when it issued its second and third letters. The landlord should refer to the Ombudsman’s apologies guidance.
Recommendations
- The landlord to remind its complaint handling staff that, when residents raise concerns about data breaches, they are signposted to the ICO if they remain unhappy with how the landlord had handled their concerns.