Vivid Housing Limited (202114858)

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REPORT

COMPLAINT 202114858

Vivid Housing Limited

9 March 2022


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 response to the resident’s request to install a dropped kerb and driveway at the property.

Background and summary of events

Background

  1. The property is a ground floor flat with one other flat above. The resident’s lease began in 2001.

Summary of events

  1. On 15 December 2020 the landlord has a note that the resident made contact to request turning the front garden into a parking space for herself and the flat above. The resident questioned whether she needed permission (from the local authority) to drop the kerb or whether she needed to ask the landlord.
  2. On 21 December 2020 the resident completed an online form saying that the parking was terrible in her street and that she had had enough of paying out on repairs on her car due to thugs who were damaging cars. The landlord responded that it could not enforce or change parking if it was not a car park that it owned and that the resident would need to speak to the local authority regarding any concerns about on road parking.
  3. The landlord has provided an internal email dated 29 December 2021. It noted that the resident had approached it requesting permission for a driveway and had already paid a small amount to the local authority to get things going. The resident had advised that her and her neighbour would be doing this jointly so that they both had off road parking. The concern was that as it was a flat and not a house, the front garden was most likely not allocated.  This could lead to issues as to what belongs to who, and who has the right to use it. It requested that some more investigation was done before granting permission.
  4. There was more internal communication the same day confirming that the relevant area was a communal front garden with a path leading to both flats. The landlord said that it currently maintained the grassed area. The landlord expressed that, although the resident and her neighbour were in agreement currently, potential issues might arise in the future as a result of the area not being demised to either property.
  5. On 30 December 2020 the landlord provided a formal response to the resident, declining permission for the works. It said this was because the resident did not have a dedicated garden area accessible from the road. It said it appreciated that the resident was working with her neighbour so that both had access to parking, but even with that agreement, it was unable to grant permission.
  6. On 4 January 2021 the resident called the landlord saying that she thought it had misunderstood her situation. On 6 January 2021 the resident emailed the landlord saying that she had paid the £153 fee (to the local authority) and that she had received permission for this work before. She also said that the front garden had belonged to the downstairs flat since the properties were built. Also, they could not be shared gardens because it was not allowed for people to stand in front of other people’s windows. Other people had dropped kerbs and drives, and it was disgusting that she had been refused. The resident also said that she wanted compensation for maintaining the front garden for over 15 years, as well as reimbursement of the £153.
  7. From the evidence available, it looks like the landlord visited the site on or around 8 January 2021. It then told the resident that it had reviewed her request but could not grant permission as the land was communal and not individually associated to the resident’s home.
  8. As the resident continued to dispute the situation, the landlord double-checked its information. On 11 January 2021 the Grounds Supervisor confirmed that the maps he consulted showed the land as communal. The landlord later confirmed to the resident that its decision remained unchanged. It also said that it always asked tenants to ensure that its permission was received prior to that of the local authority to prevent any financial implications to its customers.
  9. The resident sent further emails to the landlord and on 18 January 2021 the landlord confirmed that her request had been escalated to management level.
  10. On 28 January 2021 the landlord contacted the resident with its further response. It said that it had liaised with the neighbourhood team who had confirmed that the garden was shared and there was no private garden referred to in the resident’s tenancy agreement. It’s internal mapping system also showed the area as shared. Therefore, it was still not able to grant permission for a driveway.
  11. The landlord has noted that a further complaint was raised on 29 January 2021. The Ombudsman has not had sight of the contents of this complaint.
  12. On 1 February 2021 the resident emailed the landlord to say that she had not heard anything more about her request. She said that a lawyer had told her that the landlord could not take the front garden away from her as she moved into the property having sole use of it and that she had tended to it. The lawyer had also said that other tenants were not permitted to undertake activities in front of her lounge and bedroom windows. She reiterated that other residents had dropped kerbs and drives.
  13. On 15 February 2021 the landlord re-sent the resident its earlier letters, as she said she had not received them.
  14. On 17 February 2021 the resident emailed the landlord again. She reiterated much of what she had already said but added that there had never been a service charge. She therefore asserted that it was incorrect to say that it was a communal garden.
  15. On 15 March 2021 the landlord sent an email to all tenants on the street asking their views about the area so that it could work to make improvements. The landlord said that it was hoping to build a more in-depth picture of local issues.
  16. On 26 March 2021 the landlord provided its stage 2 complaint response to the resident. It said that it had already recognised at stage 1 of the complaint that it could have kept the resident better informed about the progress of her application for a dropped kerb and driveway and had already processed £30 compensation for that issue. It said that its investigation had also identified that it should have raised the formal complaint on 6 January 2021 when the resident had expressed her dissatisfaction that her application had been declined. In recognition of this, the landlord was offering an additional £50 compensation. It also said that it would be picking up this learning with the relevant staff members involved. The stage 2 response then went on to address each of the resident’s particular complaint points.
  17. It said it was sorry that there had been confusion about the ownership of the front garden. Normally front gardens in that type of property would be shared between the flats. Having checked the title plan and land registry for the property, there was nothing to indicate that the front garden had been allocated to a specific flat. This was consistent with its own mapping data that showed the land as being communal. The landlord said it had also reviewed the versions of the tenancy agreements that were in place when the resident moved in in 2001 and had been unable to find any terms explicitly referring to ownerships of the front gardens for flats. A review of tenancy records and archives had also not found anything to show that the front garden formed part of the resident’s home. It thanked the resident for also looking and was sorry that she was unable to find anything. The landlord said that standard practice would be for communal gardens to be maintained by the landlord and the cost recovered through service charges. However there had historically been occasions under former landlords where customers have been made responsible, either informally or in accordance with their tenancy, for the maintenance of communal gardens and not charged a service charge. The landlord said that it did not encourage this practice due to the potential for disputes between neighbours and in ensuring the space was maintained to a required standard. As such, when it had identified communal land that it had not been maintaining, it had been working to start implementing ground maintenance services. The landlord apologised if it had not made the resident aware of this at the time. So far this service had been provided at no cost but, moving forward, the resident and her neighbour would be contacted about setting up the required service charge.
  18. With regard to others on the street already having dropped kerbs and drives, the landlord said that it would normally only give permission to use the shared areas in very few cases and these were done on a case by case basis considering the applicant’s personal circumstances and the procedures in place at the time. Having reviewed its archive, the landlord had seen evidence confirming that exceptions were made for those tenants, the details of which could not be shared due to data protection.
  19. In response to the resident saying that she had previously been granted permission for the work, the landlord said that it could not find anything on her tenancy record granting formal permission for a driveway. It had been able to locate an application that had been made in February 2008, however this had been closed in May 2008 after not receiving any of the documents that it had requested from the resident.
  20. With regard to the resident’s point about the road being terrible for parking, which had resulted in disagreements between neighbours and damage to her car, the landlord said it appreciated that parking could be an emotive matter. It said that it was aware that the resident had spoken to the Neighbourhood Officer about the issue and that the officer was continuing to deal with any neighbourhood nuisance complaints. There was a consultation being progressed with tenants about how a nearby area could be used and the landlord asked the resident to respond with her views.

Assessment and findings

  1. Following a detailed review of the evidence submitted by both parties, the Ombudsman’s investigation has considered the action taken by the landlord in response to the resident’s application for a dropped kerb and driveway at the property. The Ombudsman has also considered whether it followed its own policies and procedures, kept to the law and acted reasonably and proportionately in the circumstances.
  2. The grassy area of the front garden lies entirely in front of the resident’s property. There is a path to the side that both the resident and her upstairs neighbour use to access their flats. The resident says she would not have done an exchange and moved to the flat if she had thought that the front garden was not hers. There has been an assumption over the years that the garden was assigned to her property, which is not unreasonable given the layout of the area. In practice the upstairs neighbour would have no reason to use the grassy area and has allegedly not done so. However, all of the available evidence confirms that the front garden is shared. It is not demised to the resident as part of her lease and the mapping data, title plan and land registry all show the area as non-demised to the property.
  3. The landlord’s policy with regards to improvements is that it will not unreasonably withhold permission. Its online application portal states that: ‘We’ll want to say yes where we can but sometimes there are good reasons for us to say no.’ The landlord’s internal communications show that it gave proper consideration to the resident’s request before deciding to decline it. The Ombudsman considers that the front garden not being allocated to the property is a legitimate reason to decline the resident’s request for a driveway. There are no exceptional circumstances to suggest that the landlord should have come to a different decision.
  4. The landlord has further explained, as much as it is able without breaching data protection laws, why it is that other properties in the street do have dropped kerbs and driveways.
  5. The lack of street parking and the congestion that has created, is not directly a matter for the landlord. The landlord has correctly signposted the resident to the local authority to deal with such issues. Furthermore, the landlord’s neighbourhood officer will look into any neighbour disputes such as alleged vandalism to cars. The landlord has also consulted on how a nearby area could be used in the future.
  6. The landlord’s online application portal states: ‘Don’t start any work or book anything in until we’ve said yes. If you do, you might have to pay for things to be put back again.’ It was the resident’s responsibility to ensure that she had permission from the landlord for the driveway before paying out a fee to the local authority for the dropped kerb. Therefore, the Ombudsman does not consider that the landlord should reimburse the resident for the fee that she paid.
  7. In identifying whether there has been any maladministration, the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make any findings of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress.
  8. When investigating her complaint, the landlord identified that it could have kept the resident better informed about her application and offered her £30 compensation. At stage 2 of the complaint process the landlord also concluded that it should have identified at an early stage that the resident was making a complaint and it offered her an additional £50 compensation. The landlord has also undertaken to learn from the complaint by speaking to the members of staff involved. The Ombudsman considers this to be a proportionate and reasonable response to the failings that occurred.

Determination (decision)

  1. In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint.

Reasons

  1. The landlord’s decision to decline permission for a dropped kerb and driveway was reasonable given that the front garden is not demised to the resident’s property. The landlord has acknowledged some failings in the way that it communicated with the resident and how it progressed her complaint and has offered an appropriate level of redress for those issues.

Recommendations

  1. The landlord should pay the resident the additional compensation awarded at stage two (£50) if it has not already done so. The finding of reasonable redress has been made on this basis.