Wigan Metropolitan Borough Council (202217665)

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REPORT

COMPLAINT 202217665

Wigan Metropolitan Borough Council

31 May 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:
    1. The landlord’s handling of the resident’s right to buy (RTB) application.
    2. The landlord’s response to the resident’s erection of a garden fence.
    3. The landlord’s response to the residents erection of an outhouse and its use as a business premises.

Background

  1. The resident held a secure tenancy with the landlord. The tenancy began in November 2019. The property was a 3 bedroom house with 4 occupants in total.
  2. Following a report of the erection of a fence, a planning enforcement officer conducted a visit to the resident’s property on 15 June 2022. As part of its consideration for subsequent actions regarding the fence, the officer made an internal note that the fence exceeded the maximum height of 2 meters by a very small amount, and that enforcement action could be unreasonable. The officers considerations also noted that the look of the fence could be improved.
  3. The landlord conducted a visit to the resident’s property on 21 June 2022 and noted that the fence measured at 2.3 meters and it was made of poor materials. The landlord also noted that the resident and his partner had stated they were repurposing a garden building for the resident’s business. The landlord informed them that permission may be required to do this.
  4. The landlord sent a letter to the resident on 22 June 2022 stating that the resident was not permitted to attach anything to his neighbours fence as the neighbour was a private owner and therefore was responsible for their own fence. The landlord stated that there was evidence to suggest screws had been attached to the neighbours fence which the resident was told to remove  immediately, as this could be a form of trespass which could lead to a civil action if the neighbour decided to pursue criminal proceedings against the resident. 
  5. The landlord sent a further letter to the resident on 4 June 2022 referring to a site visit in connection to an unauthorised change of use of land from ‘summer house’ to ‘business location’. The landlord requested for the resident to arrange for a retrospective planning application for continuation of the building’s present use, or arrange to cease unauthorised use within 28 days.
  6. The resident was in the process of buying the property via the Right to Buy Scheme and informed the landlord that he believed the neighbour’s fence fell within the boundary of his property. The evidence shows the landlord sought legal advice following the resident’s report and the resident was advised to seek independent advice regarding the boundaries.
  7. Following further legal advice, the landlord sent a letter to the resident on 29 June 2022 detailing planning control breaches that it believed had occurred. In summary, the landlord stated the following:
    1. As the resident’s fence exceeded 2 meters in height it was not a permitted development and planning permission was required. The resident was advised to remove the fence or replace it with a “purpose built” fence.
    2. Planning permission was required if the resident wanted to run a business from the outhouse as this constituted a ‘material change’ to the use of the building. The resident was advised that the local authority could support an application to continue running the business from the property and invited the resident to submit a retrospective planning application.
    3. The erection of a “garden building” to facilitate the running of a business also requires planning permission. The resident was encouraged to submit a retrospective planning application to be considered by the local authority.

The resident was advised that failure to take any action would result in a planning contravention notice (PCN) which was a pre-requisite to enforcement action, and this would be registered as a charge on the property.

  1. After conducting his own research, the resident informed the landlord that he did not believe he required planning permission for the outhouse and business. The resident explained that he felt he was being treated unfairly as he was aware of other tenants who had businesses and erected fences which he did not think were up to standard. The resident stated he would not be applying for planning permission and that he felt the landlord was threatening him as enforcement action could have impacted his RTB application.
  2. The resident made a formal complaint to the landlord on 4 July 2022. The resident was unhappy with the landlord’s conduct during the visit in June 2022 and he did not believe he had broken any regulations by erecting a fence. The resident felt the letter he received following the visit was threatening and would have preferred a conversation with the landlord before the letter was sent.
  3. A stage 1 response was issued on 8 July 2022. The landlord apologised for upsetting the resident with the letter, however, it maintained that the letter was “factual and to the point”. The landlord investigated the matter and noted that the resident had been given permission to erect the outhouse via text by a member of staff. The landlord stated that this was not normal practice and apologised for standard procedure not being followed.
  4. The landlord’s internal emails indicate that during its visit on 8 July 2022 it noted that the resident had taken the fence down and replaced it with a fence that was the correct height and no longer attached to the neighbour’s fence.
  5. The resident escalated his complaint on 28 July 2022. The resident felt the landlord had not investigated the boundary line and he felt the letter was written in a “bullying manner”. The resident also informed the landlord that he had previously been told by his neighbour that he could do what he wanted with the fence as it did not belong to them. The resident also raised concerns about his RTB application being put on hold due to the issues with the fence.
  6. The resident chased the landlord for a stage 2 response on 19 August 2022. The landlord responded stating that it required longer than 15 working days to respond to the resident and that it would aim to respond by 5 September 2022. The landlord issued a stage 2 response on 9 September 2022, it stated the following in the response:
    1. The landlord maintained that it was accepted practice to write to the resident and make him aware of any potential enforcement action.
    2. The landlord acknowledged that the resident had been given permission to erect the outhouse albeit outside of standard practice. The landlord cited the tenancy agreement to support its statement that the resident required written consent from the landlord before erecting an outhouse.
    3. The landlord noted that a senior estates officer confirmed that the fence was attached to the neighbour’s fence, when the relevant visit was conducted. The landlord also stated that the neighbour had given permission to the resident to do what he wanted with the fence prior to purchasing the property.
    4. The landlord informed the resident that while his RTB application was put on hold on 8 July 2022, the hold was “promptly” removed and documentation was issued to the resident’s solicitor on 18 July 2022.
  7. The resident referred the complaint to this Service on 9 November 2022. He explained that the ongoing issues had an impact on his mental health and contributed to a more hostile relationship between himself and his neighbour. The resident stated he would like the landlord to apologise, accept that it should have investigated the matter before writing to him, and compensate for the rent costs during the 4 week hold on his RTB application.

Jurisdiction

The landlord’s handling of the resident’s right to buy (RTB) application.

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or aspects of a complaint, will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 42(j) of the Housing Ombudsman Scheme (the Scheme), the complaint about the resident’s Right to Buy (RTB) application is outside of the Ombudsman’s jurisdiction.
  3. Paragraph 42(j) of the Scheme states that ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body’. In this case, the resident’s landlord is a council, providing functions as both a landlord and as a local authority. Complaints about a RTB process concern the disposal of property by the Council in its capacity as a local authority and complaints about the actions of a local authority are a matter for the Local Government & Social Care Ombudsman (LGSCO). Therefore, the Ombudsman cannot consider this aspect of the complaint. Any reference to the RTB process within this investigation report is included for contextual purposes only.

Assessment and findings

The scope of the investigation

  1. Paragraph 41(d) of the Scheme precludes us from considering complaints about a council where it is not acting as a landlord. Part of the resident’s complaint relates to the grant of planning permission. The council’s planning department is responsible for making decisions regarding planning permission as this this in the performance of its statutory planning functions and not as a landlord. This aspect of the complaint is therefore out of scope under paragraph 41(d) of the Scheme. This also includes the council’s handling of reports of breaches of building regulation consent. Should the resident want this element of the complaint investigated, he should make contact with the LGSCO.
  2. The Ombudsman can consider how the landlord responded to the resident’s concerns which will be the focus of this investigation.

The landlord’s response to the resident’s erection of a garden fence against a boundary fence.

  1. The resident’s tenancy agreement states that he must not carry out any alterations or improvements to the property without prior written consent from the landlord and any necessary approvals (e.g. planning permission or building regulations approval). The erection of a fence is included under ‘alterations or improvements’ covered by the clause in the tenancy agreement.
  2. Once the landlord became aware that the resident had potentially erected a fence without its permission, it was reasonable for the landlord to carry out a visit to identify whether there had been a breach of the tenancy terms. The landlord appropriately followed up on its visit with a letter to the resident explaining that he could not attach anything to his neighbour’s fence. It was reasonable for the landlord to write to the resident to explain; that while he was entitled to a fence, it could not be attached to his neighbour’s property.
  3. The landlord and the resident were in dispute over whether there were screws attached to the neighbours fence. In the absence of photographic evidence, the Ombudsman is unable to comment with certainty on whether the incident occurred. While the landlord relied on the notes of its staff member who stated they had seen the screws, it would have been reasonable for the landlord to have taken photographs of the screws, as evidence to rely upon in its subsequent course of action, and to ensure that it had sufficient evidence to substantiate its position before informing the resident that the presence of screws may have amounted to a case of trespass on his neighbour’s property.
  4. The resident was informed by the landlord that the fence exceeded the maximum of 2 meters in height and it was not a permitted development. Given that the landlord had identified a breach, it was not unreasonable in its role as a landlord (and not the planning authority) for it to advise the resident to either remove the fence or replace it with a more suitable fence in accordance with its policy, which states a resident must get any necessary approvals before carrying out an alteration to their property.
  5. The landlord’s internal notes highlight it had concerns regarding the look of the fence, as well as observing that its height was above 2 meters. It had concerns around how the fence was affixed and the presence of screws attached to the neighbour’s property. It was therefore proportionate for the landlord to write to the resident to inform him of the potential planning breaches and other concerns that it had regarding the fence, and the potential ramifications as it interpreted these to be at the material time.
  6. However, the landlord conveyed to the resident that the presence of the screws could amount to a trespass. As the resident disputed the landlord’s interpretation of how the fence was attached, the lack of photographs showing the presence of the screws as part of the landlords case was unreasonable, as the burden of proof rested with the landlord. The lack of evidence created the opportunity for dispute, and as such, was a service failure by the landlord. The landlord should award £50 compensation in recognition of its failure.

The landlord’s response to the residents erection of an outhouse and its use as a business premises.

  1. The resident’s tenancy agreement states that he must not erect any shed, greenhouse or other structure without prior written consent from the landlord and any necessary approvals (e.g. planning permission or building regulations approval).
  2. The tenancy agreement also states that the resident must not without prior written consent form the landlord use the property or any part of it for any trade or business or permit the property or any part of it to be used for any trade or business.
  3. During the visit on 21 June 2022, when the landlord became aware of the resident’s intentions to potentially run a business from the outhouse, the resident was appropriately and promptly advised that permission was likely to be required to facilitate this change in use.
  4. Following the landlord’s visit in June 2022, it confirmed to the resident via letter that planning permission was required to erect a “garden building” for the purposes of running a business. The evidence shows that the landlord did look through its internal records to identify whether permission had been granted. However, as the landlord did not have any record of such permission in its files, it consequently wrote to the resident inviting him to make a retrospective planning application.
  5. Given the evidence the landlord had available, and there was no record of permission being granted, it was reasonable for it to have written to the resident requesting a planning application. In regards to the fairness of its actions, the landlord did not request for the resident to take the building down or completely cease the running of the business, and allowed time for the retrospective planning permission to be made. The landlord’s request for a retrospective planning permission was in accordance with its policy and fair to the resident under the circumstances.
  6. As part of the landlord’s stage 1 and stage 2 response, it was ascertained that permission was granted for a building to be erected for business use via text message from the landlord, to the resident. The landlord acknowledged it had not acted within its own policies in doing so.
  7. The landlord accepted the text message was sufficient evidence to show permission had been granted. It is understandable that the resident may have felt frustrated and inconvenienced when he received a letter alleging that he had not been given permission, when this was not the case.
  8. It is the landlord’s responsibility to ensure that its staff are aware of correct procedures and to ensure that the procedures are followed appropriately following a resident’s request. The landlord apologised to the resident for its error, however, it did not offer any compensation in recognition of the distress and inconvenience caused to the resident by its mistake, which would have been reasonable in the circumstances. 
  9. Overall, there was service failure by the landlord in asking for permission when the resident had already obtained permission, and a failure to compensate for its error. The landlord is ordered to pay £50 to the resident in acknowledgement of the distress and inconvenience caused by its failing. 

Determination

  1. In accordance with paragraph 42(j) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of the resident’s RTB application is outside the Ombudsman’s jurisdiction.
  2. In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure by the landlord in its response to the resident’s erection of a garden fence.
  3. In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure by the landlord in its response to the resident’s erection of an outhouse and its use as a business premises.

Orders

  1. The landlord shall take the following action within 4 weeks of the date of this report and provide the Ombudsman with evidence of compliance with these orders:
    1. Apologise to the resident for the failings identified in this report.
    2. Pay the resident £100 compensation made up of the following:
      1. £50 for the service failure identified in relation to the landlord’s response to the erection of a garden fence.
      2. £50 for the service failure identified in relation to the landlord’s response to the erection of an outhouse and its use as a business premises.