Tendring District Council (202213548)

REPORT

COMPLAINT 202213548

Tendring District Council

24 January 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 handling of the resident’s concerns related to a boundary dispute and parking issue.

Background

2. The resident is a secure tenant of the landlord. The neighbouring property is privately owned. Between the two properties there is a pathway where the neighbour parks, and the resident can access the back of her property. The resident’s son is a wheelchair user.
3. In 2019, the resident queried the boundary line of the pathway. The landlord agreed to visit the property, and the resident has informed this Service that during the visit, the landlord informed her that the neighbouring property had taken over some of the pathway which was within her boundary.
4. On 11 July 2022, following further queries from the resident, the landlord stated that it had discussed the boundary with its assets management and legal team, and both teams had found the boundary to be correct. Due to this, it denied the resident’s request to install a fence within the neighbour’s boundary line. The landlord explained that only the footpath was allocated to the resident’s property, as the neighbour had historically purchased a larger percentage of the pathway. The landlord apologised if the resident had been informed incorrectly previously, but stated it would not take further action as it was satisfied the boundary was correct. However, it provided the resident with information on how she could apply to move properties if she wished to.
5. On 25 July 2022, the resident raised a complaint. She believed that she had been misinformed that the pathway was a shared area between the two properties, but had now been told that she only had a small footpath. She stated that the situation had worsened her son’s health, and that her husband was now also ill. The resident also stated that the neighbour driving and parking on the pathway posed a risk to her family, as she had nearly been knocked over twice. She was seeking for a fence to be installed between the boundaries.
6. The landlord issued its final response on 14 September 2022. It provided the resident with images of the properties and stated that the neighbour had historically purchased the vehicle driveway which leads up to their garage, and the resident’s boundary begins along the side of the garage, and the pedestrian footpath. It stated that the actual boundary line belonged to the neighbour, but that the resident could apply to erect a fence, as long as it was within her boundary. However, it informed her that this may narrow her pathway further. It informed the resident that any use of the driveway would need to be an agreement between the resident and the neighbour. It apologised if the resident had been informed incorrectly, but stated that the notes from a former staff member at the time the resident moved in to the property showed that the boundary was listed correctly. In addition, it stated that the resident could apply for a further Occupational Therapist assessment if she believed further adaptations were needed.
7. The resident escalated her complaint to this Service on 26 September 2022. She stated that her son was disabled, and required access to the back via the pathway. She also informed this Service that she had checked with the land registry, and believed the neighbour was using some of her property. The resident is seeking for a fence to be installed along the boundary which she actually owns, as she believes it is dangerous that the landlord allows the neighbour to park there.

Assessment and findings

Scope of Investigation

8. The resident has also referenced how the situation has impacted the health of her son and husband. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. This is an accordance with paragraph 42(g) of the Housing Ombudsman Scheme which says the Ombudsman may not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.

The complaint is about the landlord’s handling of the resident’s concerns related to a boundary dispute and parking issue.

9. The tenancy agreement states that a resident must not remove, alter or replace any fencing or boundary without getting the landlord’s written permission first.
10. It should be noted that it is not within the expertise of this Service to determine the boundary line between two properties. Therefore, this investigation will focus on the landlord’s response to the resident’s concerns.
11. The resident has stated that following her initial concerns in 2019, a member of the landlord’s staff visited the property, and informed her that her neighbour had taken some of the pathway which was within her boundary. Based on this, the landlord acted appropriately and investigated her concerns further before concluding that the current boundary was correct. In addition, it stated that records provided by another member of staff from the time where the resident moved in to the property had shown that the resident had been informed of the boundaries correctly. Nonetheless, the landlord acted appropriately by recognising that a potential miscommunication would have impacted the resident, and it apologised in view of this.
12. Although the landlord had confirmed its position on the boundary dispute, the resident disagreed. The landlord had taken appropriate action by liaising with its legal and assets management teams about the boundary dispute. It is reasonable for a landlord to rely on the conclusions of its appropriately qualified staff. In this case, both its legal and assets management team concluded that the boundary was correct. It was therefore reasonable that the landlord decided there was no further action it would take.
13. Nevertheless, the landlord recognised that the resident may be disappointed with its conclusion due to her concerns about not being able to access the back of her property with her, son due to his wheelchair. It was appropriate for the landlord to consider any vulnerabilities, and in view of this, it suggested that the resident could book an appointment with an occupational therapist to see if there were any further adaptations which may be appropriate. The Ombudsman recognises that the resident also has concerns about her safety due to the neighbour’s access to drive and park on his pathway. It is therefore recommended that the landlord considers any temporary or short-term improvements which could be made, prior to an official assessment from an occupational therapist. For example, installing a security light on the pathway may increase visibility when the resident is walking on the pathway.
14. In addition, it stated that the resident could also apply to move to another property on its website, if she wished to find a property which she believed was more suitable. This is evidence that the landlord wanted to assist the resident with finding an appropriate alternative if possible, despite it being satisfied that the boundary was correct.
15. The landlord also stated that it would not object to the resident having a fence installed, on the basis that the fence would need to be inside of her boundary. Although, it did inform her that this may restrict the size of her pathway further. It is noted that the resident wished for the fence to be installed to divide the boundary, based on the boundary that she perceived to be correct. However, as the landlord does not own the neighbouring property, it would not be entitled to permit the resident to construct a fence on land which was within the neighbour’s boundary. Likewise, the landlord would not be entitled to advise the neighbour that he is unable to park on land which is included within his boundary. Due to this, it was reasonable for the landlord to inform the resident that any use of the pathway within the neighbour’s boundary would need to be a separate agreement between the resident and the neighbour.
16. The resident informed this Service that she had checked the Land Registry, which confirmed her suspicions. However, no evidence was provided to this Service of the documents from the land registry. In addition, the resident believed that the landlord had chosen to sell some of the pathway to her neighbours, which is why the boundary dispute had occurred. The landlord confirmed that in 2002, during the neighbouring property being sold, the neighbour purchased the additional boundary in order to create a driveway. However, it should be noted that this was prior to the resident’s tenancy beginning in 2017. Therefore, it is possible that the resident may have been reviewing older documents held by the Land Registry.
17. Overall, the evidence has shown that the landlord took reasonable steps to investigate the boundary dispute, before concluding that it was correct. In addition, it had considered alternative solutions available to the resident, which were appropriate when considering any vulnerabilities. It had also acted appropriately by apologising to the resident for any potential misinformation that was provided, as it recognised that this may have impacted the situation. Ultimately, there was no maladministration by the landlord in respect of its handling of the resident’s concerns.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s handling of the resident’s concerns related to a boundary dispute and parking issue.

Recommendations

19. It is recommended that the landlord continues to support the resident with any occupational therapist assessment that may take place, and considers whether any temporary solutions may be beneficial, such as; a security light on the resident’s pathway to increase visibility.