Sandwell Metropolitan Borough Council (202100012)

REPORT

COMPLAINT 202100012

Sandwell Metropolitan Borough Council

22 June 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

The complaint is about the landlord’s handling of the resident’s concerns regarding:
1. the conifers her neighbour planted on the boundary of their gardens;
2. the landlord’s installation of a fence panel between the two gardens.

Background

The resident holds a secure tenancy that began on 21 July 2014. The property is a three bedroom semi-detached bungalow and the landlord is a local authority.
An ASB risk assessment completed by the landlord stated that the resident suffered with a heart complaint and depression, and that her daughter is disabled. The resident has said that her daughter is a wheelchair user, deaf, partially sighted and has complex needs and health issues, including respiratory problems.
The neighbour referred to in the report is also a tenant of the landlord, and their property is adjoined to the resident’s. The two properties originally had a shared communal garden. The landlord gave the neighbour written permission to divide the communal garden with a fence in August 2019. The permission was given with a series of conditions, one of which was that the fence could be no more than one metre high.
It is assumed that the neighbour would be subject to the same tenancy agreement conditions as the resident. The resident’s tenancy agreement states that it is a tenant’s responsibility to maintain their garden to an acceptable standard. It also states that tenants have the right to apply for permission to the landlord to erect a garden fence. The tenancy agreement does not refer to the planting of trees, but the landlord has confirmed that tenants do not have to seek its permission to plant trees.
Prior to, and at the time of, the resident’s complaint, there were separate issues between the resident and her neighbour that were being handled by the landlord’s antisocial behaviour (ASB) team.

Complaint policy

The landlord’s policy states that it operate a two stage complaint process. It states that complaint responses are sent to residents within 10 and 20 working days at stage one and two of the process respectively.

Summary of events

On 24 November 2020, the resident called the landlord. She reported that her neighbour was in the process of having conifers planted in their garden along the line of the dividing fence. She explained this would cause issues to her partially sighted daughter. The landlord raised a call back task for its tenancy management team to discuss this with the resident. The record showed that the task was completed the same day but provided no further details.
On 27 November 2020, the resident contacted the landlord using its online portal. The landlord’s internal email showed that the resident’s portal message was passed on to its housing officer who was dealing with the resident’s previous contact about the same matter. The key points of the resident’s portal message were as follows:
1. She stated that her bungalow shared what was meant to be a communal garden, which the neighbour had divided with a three foot fence. She said that the neighbour had now planted seven conifers along the garden boundary, which she had not been notified was happening.
2. She explained that her daughter was disabled with only partial sight, respiratory issues, and profound deafness.
3. She stated that the conifers would block light from entering her property, impacting further on her daughter’s health and limited vision. She said that the pollen from the conifers could also be a danger to her daughter.
4. She provided a photograph depicting the conifers, and asked that they be removed.
On 8 December 2020, the landlord’s housing officer called the resident. The landlord’s call notes mainly concerned the separate ASB and police matters that were also ongoing.
On 17 December 2020, the landlord sent an internal email that summarised the findings of its site visit to the resident’s and neighbour’s gardens. The key points of the internal email were as follows:
1. It asked that the communal garden be formally redesignated as two exclusive gardens. It suggested that with hindsight, things would have been easier if that had been done when the dividing fence was agreed to, and erected, in 2019.
2. It asked that the tradesmen who were due to install a single six foot fence panel at the bungalow end of the boundary between the two gardens, undertake the work exclusively from the neighbour’s side.
3. It suggested that the erection of the fence panel be discussed with the resident, and that she be advised that it was also for her benefit. It asked that the resident be told that she could not legally prevent the fence panel from being erected, and action would be taken against her if she further prevented the work.
4. It expressed its concern that all the materials for the fence panel installation were on site, and were at risk of being stolen.
On 18 December 2020, the landlord sent a response to its internal email from the previous day. It provided an update of its discussion with the resident. It said that the resident had ‘point blank’ refused to allow the fence panel to be put up. It said that she became very upset and that she had said she could provide evidence from the hospital that her daughter needed the light that the fence would block. The resident had said she would email the landlord further details.
On 18 December 2020, the landlord’s customer service team emailed its housing team regarding a call from the resident. The email stated that the resident had said the landlord’s operatives were there erecting the fence panel, and that the work needed to stop immediately as it was putting her daughter’s health at risk.
On 18 December 2020, the landlord’s housing officer called the resident to discuss the fence panel. The landlord’s records noted stated that the resident was not happy and asked that the housing officer call another member of her family, which he did. The notes said that the family member he spoke to also became irate and that the call did not go well. It said the housing officer advised of the right to make a complaint to the landlord.
On 30 December 2020, the resident emailed the landlord a copy of a letter from her general practitioner (GP), which was passed to her housing officer. The GP’s letter explained why access to sunlight, including when she was inside the property, was of particular importance for the resident’s daughter’s health. It asked that if the fencing was blocking light from entering the resident’s property, the landlord review the case again.
On 4 January 2021, the resident emailed photographs of the neighbour’s conifers to the landlord’s housing officer.
On 7 January 2021, the resident emailed the landlord’s housing officer to ask for an update of what was going on with the neighbour’s conifers. She explained the impact that she believed that they were having on her daughter. The housing officer replied and said he would discuss it with the resident when he called her that afternoon. The resident sent the housing officer further emails the same day that concluded with her stating that she thought the landlord should take her to court over the matter so that she could get a fair hearing, and that she would stop any works until that happened.
On 1 February 2021, the landlord’s manager emailed the resident and advised that the resident’s dissatisfaction would be investigated as a stage one complaint. It stated that it was aware that whilst discussing her potential complaint the previous week, the resident had advised that she would like all communications with the landlord to be by email. It said it would respect this but was also happy to discuss the complaint by telephone if the resident wanted to. The email described the landlord’s understanding of the resident’s complaint, and asked her to confirm that it was accurate.
On 2 February 2021, the resident replied to the landlord’s email. She said that she was happy for the landlord to carry out its investigation. She advised that she was also discussing matters with her solicitor.
On 4 and 5 February 2021, the landlord exchanged internal emails that discussed the process of getting the resident’s and neighbour’s garden formally redesignated from communal, to two exclusive gardens.
On 12 February 2021, the landlord sent its stage one response to the resident’s complaint. It said that it had agreed with the resident that the scope of its complaint investigation would include its proposed erection of a six foot fence panel between her and her neighbour’s properties in what was previously the communal garden. It explained that the resident had said that the fence panel would reduce the light into her property, and that the landlord had also allowed the neighbour to plant trees. The resident had said that this would negatively impact the health of her daughter. The key points of the landlord’s stage one complaint response were as follows:
1. It stated that it had not yet erected the fence panel, as the work had been stopped due to the resident’s dissatisfaction.
2. It explained that investigations with its occupational therapist (OT), and potentially the resident’s GP, were ongoing to establish any health impact to the resident’s daughter.
3. It said that as this was still ongoing, it could not offer a definitive finding to this aspect of the resident’s complaint, but that it was satisfied that it was taking a considered and evidence based approach.
4. It explained that the garden was no longer considered communal, as it had been divided to allow each tenant to enjoy their own garden. It said that the boundary had been based on an existing picket fence.
5. It stated that all tenants have the right to enjoy their gardens by planting trees and hedges, provided that they do not damage the structure of the property. It said it would assess the neighbour’s trees to check this point.
6. It asked that the resident await the outcome of both its health and tree investigations, and that it would share the results with her.
7. It advised that it had not upheld the resident’s complaint, but that the resident could request it be escalated to stage two of its process.
Over the remainder of February 2021, the landlord exchanged a number of emails, both with the resident and internally, mostly regarding the separate ASB matters but that also made reference to the fence panel and conifers.
On 22 February 2021, one of the landlord’s internal emails stated that it had attended the gardens and could confirm that the neighbour’s conifers would not currently impact on the level of light available to the resident’s property. It said that that may not continue to be the case if the conifers were allowed to grow excessively high. It suggested that the neighbour be written to and told that the conifers were not to be allowed to get above six feet high. It stated that as long as the neighbour observed this, it would give both the resident and the neighbour privacy whilst not impacting light levels to the resident’s property.
On 22 February 2021, the resident emailed the landlord to advise of the medicine that the GP had prescribed her daughter for her allergy and respiratory problems that she said were being caused by the conifers.
On 23 February 2021, the landlord sent an internal email following what it said was two telephone discussions with the resident’s husband regarding the conifers and fence panel. It stated that the resident’s husband had asked why the landlord had not consulted with their GP. The landlord’s internal email queried whether this was something it should do. The subsequent internal replies stated that, as the resident’s issue had now moved from the conifers blocking light, to the conifers emitting allergens, the landlord would further involve its OT. It said that the OT could then provide advice as to whether the landlord needed to contact the resident’s GP.
On 4 March 2021, the landlord’s call notes stated that it held a lengthy call to the resident and her husband to discuss the fence panel and conifers. The key points of the landlord’s call notes were as follows:
1. It said it had explained to the resident that it could not force the neighbour to remove the conifers, and that if she wanted to pursue this it would have to be as a civil legal matter. The notes stated that the resident had understood this, but that she had said she would only allow the landlord to erect the fence panel if the conifers came down.
2. It said it had told the resident that it would ask the neighbour if he would consider removing the conifers. It stated that the resident had said she would consider moving home if the neighbour would not remove the conifers, as she felt that they would continue to impact her daughter’s health.
3. It stated that the resident had said that her doctors could not say whether her daughter’s health issues were being worsened by the neighbours conifers, the trees across the road, or trees at all.
4. It said that it had asked that the resident consider mediation with the neighbour, but the resident had been unsure about it.
On 5 March 2021, the landlord called the neighbour and asked if he would consider removing the conifers. The call notes said that the neighbour had declined this, citing the separate ASB issues. He also felt that matters had gone too far for mediation.
On 9 March 2021, the landlord emailed the resident and notified her of the outcomes of its discussion with the neighbour. The resident replied and reiterated her position that if the conifers came down, the fence could go up.
On 30 March 2021, the resident emailed this Service to complain that the landlord was not assisting her in getting the neighbour’s conifers removed, which were badly affecting her daughter. She said that her daughter had been rushed to hospital two weeks after the conifers had been planted, after she had suffered a reaction in her eyes. She explained that her daughter had needed eye drops and further medical appointments. She provided photographs that showed her daughter with inflamed eyes, and stated her belief that this was being caused by the conifers. She further explained that her daughter’s respiratory issues were worse, which she also believed was due to the conifers.
On 26 April 2021, this Service emailed the landlord to highlight the issues that the resident had raised, and ask for confirmation of the status of her complaint.
On 10 May 2021, the landlord emailed this Service. It provided a copy of its stage one complaint response to the resident, and advised that it had escalated it to stage two of its process.
On 11 May 2021, the landlord sent an internal email to draw attention to a screenshot of its computer records from 10 May 2021. The screenshot stated that the resident had registered her dissatisfaction with the landlord’s stage one complaint response.
On 4 June 2021, the landlord sent the resident its stage two complaint response letter. The landlord referred to the contact it had received from this Service, and its call to the resident to discuss her complaint on 27 May 2021. It explained that it had reviewed its stage one response along with all of its relevant records and correspondence, and discussed the matter with various managers from its housing and ASB teams. The key points of the landlord’s stage two complaint response were as follows:
1. It noted that the resident had not previously raised her concern that the conifers were causing issues to her daughter’s eyes, and so this had not been addressed in its stage one response sent on 12 February 2021.
2. It further noted the resident’s comment that the conifers had been planted on 24 November 2020, and her daughter had visited hospital with a severe eye infection on 3 December 2020.
3. It stated that it had no record of the resident previously reporting this issue, and that her complaint up until that point had concerned the conifers blocking daylight to her property, and potentially impacting her daughter’s respiratory function.
4. It said that the resident had confirmed that her daughter’s consultant had not linked her eye infection to the conifers, either verbally or in writing.
5. It stated that it had suggested to the resident that she arrange an allergy test for her daughter, but that she had been unwilling to do so. It advised that there was currently no medical or other evidence to support the resident’s complaint, and that it was her responsibility to provide this.
6. It said that it had viewed photographs of the trees and properties, and that it was clear that they do not obstruct natural light from the resident’s windows or garden.
7. It advised the trees were dwarf conifers that the neighbour would be expected to maintain in line with the tenancy agreement. It offered its assurance that it would take action if the neighbour failed to do this.
8. It explained that it was the view of the landlord’s OT that the conifers were not reducing light to the resident’s property and would not negatively impact her daughter’s health or wellbeing.
9. It said that based on the advice of the OT, it did not intend to seek further advice from the resident’s GP, but urged the resident to provide any relevant evidence she obtained from a medical professional.
10. It stated that since it had sent the resident its stage one response, the fence panel had been erected, and reiterated that the garden was no longer considered ‘communal’.
11. It advised that it had been unable to uphold any element of the resident’s complaint, and referred her to this Service if she remained dissatisfied.

Summary of events after the landlord’s complaint process had concluded

On 14 November 2022, the landlord advised this Service that, subsequent to the resident’s complaint, the neighbour had removed the conifers and erected a six foot fence the length of the garden, which the landlord had given its permission for.
On 19 November 2022, the resident advised this Service the same. She further advised that the neighbour had planted smaller conifers behind the new fence. She said that although the new conifers could not be seen, they could still impact her daughter’s respiratory issues. She stated that the fence was also causing her to have to switch her lights on earlier, and was negatively impacting her daughter’s partial sight and access to vitamin D.
In June 2023, the landlord emailed this Service and confirmed that the neighbour had planted conifers behind his fence, but that it had still not received any medical evidence that the conifers were impacting the resident’s daughter’s health. It stated that the resident had requested permission to install her own six foot fence parallel to the neighbour’s, which the landlord had agreed to.

Assessment and findings

The information above is focused on the key events and contacts relevant to the resident’s complaint. However, the Ombudsman acknowledges that there was considerably more contact occurring between the landlord, resident and neighbour over this same time period regarding matters related to, but not the subject of, this complaint.
The Ombudsman acknowledges that the resident’s daughter suffers with significant health issues and has complex needs. This would have made the resident understandably concerned by any external events that she thought could negatively impact her daughter, whose wellbeing would have been her primary concern. Nevertheless, it is the view of the Ombudsman that the landlord did, in the main, appropriately handle the resident’s reported concerns regarding the conifers and fence panel, and that, as such, there was no maladministration.

Conifers

The resident first reported to the landlord that the neighbour was in the process of planting the conifers on 24 November 2020. She discussed this with the landlord’s customer service team and it was appropriate for it to pass the matter to a housing officer to follow up. It would have been reasonable for the landlord’s records to record the outcome of its follow up. Nevertheless, the landlord’s records did state that the resident was called back the same day.
As explained above, there was at this time various contact and activity by the landlord concerning the resident and the neighbour relating to ASB matters, and this continued into December 2020. It was not clear from the information provided precisely when the visit occurred, but it was appropriate for the landlord to attend the properties during the first half of December 2020. This demonstrated that the landlord was taking the matter seriously, and would have allowed it an opportunity to view the conifers first hand.
The resident’s GP wrote to the landlord on 30 December 2021. The GP’s letter only made specific reference to the impact on the resident’s daughter if the fence panel restricted daylight to her property. Nevertheless, it was appropriate for the landlord to also consider this with reference to the conifers, and to discuss the resident’s concerns with her on 7 January 2022.
The matter remained unresolved and so it was appropriate for the landlord to consider investigating the resident’s concerns via its complaint process, and to discuss this with the resident towards the end of January 2022. It was reasonable for the landlord to respect the resident’s wish to limit its contact with her to email, and to confirm via that method its understanding of her complaint, which it did on 2 February 2021. This would have ensured it could appropriately investigate and respond to the resident’s complaint.
The landlord sent its stage one complaint response on 12 February 2022. Whilst its investigations were still ongoing, it explained that tenants have the right to enjoy their gardens by planting trees, and the use of its OT to assess any health impact. This demonstrated that the landlord had appropriately considered the resident’s concerns and was using an evidence based approach to inform its actions.
It was appropriate for the landlord to visit the resident’s garden to specifically assess any potential for the neighbour’s conifers to restrict sunlight. It reported back on 22 February 2022 that, providing the conifers were not allowed to grow excessively high, they would not impact the level of sunlight to the resident’s property.
On the same day, the resident reported her further concern that the conifers were causing allergic and respiratory issues to her daughter, and it was therefore reasonable for the landlord to seek further guidance from its OT. It was also reasonable for the landlord to discuss the matter at length with the resident and her husband on 4 March 2021. This again demonstrated that the landlord was taking the matter seriously and handling it empathetically. The landlord told the resident it could not force the neighbour to remove the conifers, but it was reasonable for it to agree to ask the neighbour if he would consider it.
Following the resident’s continued dissatisfaction, it was appropriate for the landlord to escalate her complaint to stage two of its process. It was also appropriate for the landlord to again take an evidence based approach to its findings. It highlighted that there was no medical advice or evidence that the conifers were impacting the resident’s daughter, but it was appropriate to encourage the resident to provide any such evidence if she obtained it. It was also appropriate for it to rely on the qualified advice of its OT, when it assessed that it had no basis to insist that the neighbour remove the conifers.

Fence

The landlord has separately confirmed to this Service that it took the decision to install the six foot fence panel at the bungalow end of the boundary between the resident and neighbour’s garden, as part of its efforts to alleviate the ASB and neighbour dispute issues that it was separately dealing with. It is not clear why the landlord chose to make no reference to this in either of its complaint response letters to the resident. However, the Ombudsman does recognise that the circumstances were extremely sensitive, and it was appropriate for the landlord to use its judgement and knowledge of the situation to avoid inflaming it further.
The landlord’s internal emails on 17 and 18 December 2020 demonstrated that it had appropriately considered what the resident’s reaction might be to the fence panel being installed, and how it should best communicate to address her concerns.
It was appropriate for the landlord’s housing officer to explain the situation to the resident on 18 December 2020, and to listen to and discuss her concerns about the potential impact on her daughter if the fence panel restricted daylight to her property. When the extent of the resident’s dissatisfaction became apparent, it was also appropriate for the housing officer to make the resident aware of her right to make a formal complaint.
The landlord considered the resident’s concerns about the potential for the fence panel to restrict light to her property at the same time as it considered her same concerns about the conifers, as described above. It was again reasonable for the landlord to take an evidence based approach, and to deal with the resident’s concerns empathetically.
The landlord has advised this Service that the ASB and neighbour dispute issues continued after the resident’s complaint had concluded, and that the neighbour removed the conifers and was, at some point, given permission to install a six foot fence the full length of the boundary between the two gardens. The landlord has further advised that the resident has sought, and been given, its permission to install her own six foot fence. As such, it is reasonable to conclude that the resident’s concerns that a fence might restrict daylight into her property have to some extent lessened.
The resident has advised this Service that the neighbour has replaced the larger conifers that he removed, with smaller ones that are out of sight behind his fence. Nevertheless, she remains concerned that they may be causing negative health affects to her daughter. To date, there has been no medical advice or evidence that would suggest this to be the case, but it was reasonable for the landlord to commit to reviewing the situation should this change.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s concerns regarding:
1. the conifers her neighbour planted on the boundary of their gardens;
2. the landlord’s installation of a fence panel between the two gardens.

Reasons

The Ombudsman fully acknowledges the extent of the resident’s daughter’s health issues and complex needs, and the challenges this must create for their family. It is entirely understandable that any external change that the resident suspects would negatively impact her daughter, would create considerable worry, and that her daughter’s welfare would be her primary concern. Nevertheless, it is the view of the Ombudsman that the landlord has evidenced its empathetic but evidence based approach to handling the resident’s concerns, and as such there was no maladministration.