Decision : Not upheld
Decision date : 26 Nov 2018
The Ombudsman's final decision:
Summary: There is no fault in the Council’s investigation of an anti social behaviour complaint against a neighbour. The Council has proposed mediation and to pay the partial costs of a fence to prevent access to a private driveway. The Council’s management of its rental housing, including tenancy breaches and position of paths/rights of way is outside the Ombudsman’s jurisdiction.
- The complainant, whom I shall refer to as Mrs B, complains the Council has not investigated her complaint about how Wolverhampton Homes handled her anti social behaviour (ASB) complaint.
- I have investigated events from June 2017 to June 2018. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I read the papers submitted by Mrs B.
- I considered the Council’s comments about the complaint and any supporting documents it provided.
- I gave the Council and Mrs B the opportunity to comment on my draft decision.
What I found
- Mrs B owns her property. Her neighbours are tenants of Wolverhampton Homes and have lived there for over 5 years. Wolverhampton Homes is an Arms Length Management Organisation (ALMO) which manages homes on behalf of Wolverhampton Council (the Council).
- Mrs B’s house joins onto the neighbour’s house. To get to both houses there is one path. On one side of the path is a hedge and the neighbours garden. On the other side of the path is Mrs B’s open plan private driveway, with no dividing fence.
- The neighbours have no separate path to their property. The neighbours have a right of way over the path, but not over Mrs B’s drive
- There is an alleyway between the two houses on the ground floor. The alley is owned by Mrs B but the neighbours have a ‘right of way foot only’ down the alley to their rear garden.
- In July 2017 Mrs B complained about a number of issues to Wolverhampton Homes (stage one complaint) including that her neighbour was walking on her drive, rather than the shared path, the neighbour had failed to cut the hedge, the neighbour’s behaviour was unacceptable and that her neighbour was leaving her bins in a way that blocked Mrs B’s driveway.
- Officers visited Mrs B at the beginning of July 2017. Mrs B made a formal complaint on 12 July 2017 and another officer visited her at the beginning of August 2017.
- Wolverhampton Homes sent a response to Mrs B’s stage one complaint on 4 August 2017. It said that it had spoken to the neighbour. It had told the neighbour:
- To cut back the overgrown hedge near the path.
- Not to block the path with bins.
- Not to park (or allow visitors to park) on Mrs B’s drive.
- That she had a right to walk on the path and alleyway but not Mrs B’s drive.
- The Council would arrange for a white ‘H’ marking to be painted on the road.
- The overgrown hedge would be cut back.
- The Council would assess the cost of an independent path.
- The Council would offer Mrs B and her neighbour mediation, as it did not consider any further legal action could be pursued against the neighbour as there is no evidence encroachment onto the drive was deliberate.
- The anti social behaviour team understood that people walking across Mrs B’s drive, parking slightly over the H marking or cars stopping in the road was annoying her. But the Council had no evidence it was being done deliberately to cause harassment and intimidation. There was no independent evidence to support her allegation about a racial incident that was reported to the police. So, the anti-social behaviour team did not intend to take further action, other than the offer of mediation.
- The Council would offer to pay half of the cost of fencing and driveway gates as shown in a diagram.
- Mrs B first complained about her neighbours in 2013. The Council closed the complaint and Mrs B did not pursue the matter then. If Mrs B was dissatisfied at the time, she could have made a complaint to the Ombudsman. I see no reason to investigate matters that occurred 5 years ago now.
- Mrs B complains that matters are still ongoing. However, I am not able to investigate the Council’s day to day running. So, I am investigating events up until June 2018, when the Council sent me information about the complaint.
- The Council’s anti social behaviour policy defines anti-social behaviour (ASB) as:
- Conduct that has caused, or is likely to cause harassment, alarm or distress to any person;
- Conduct capable of causing nuisance or annoyance to a person in relation to that persons occupation of residential premises
- Conduct capable of causing housing-related nuisance or annoyance to any person.
Location of the fence and path
- Mrs B would prefer her neighbours to have a separate pathway entirely. She would like the Council to remove its tenants right of way over the path and alleyway. The Council has said that it does not intend to do this as the tenants, the Council and any future occupiers would lose the right of access to the rear garden without going through the house.
- The Ombudsman does not have jurisdiction over the Council’s management of its housing stocks, so cannot investigate the placement of the path or management of rights of way. Different officers mentioned the possibility of a separate path to Mrs B at different times, which did lead to some confusion and perhaps raised her expectations but the Council has now clearly set out its decision.
- I have completed my investigation of the complaint. This complaint is not upheld.
Parts of the complaint that I did not investigate
- I have not investigated Mrs B’s complaint about the Council’s investigation of her complaint in 2013. Mrs B has not complained about this issue until now to the Ombudsman. This is a late complaint and I have seen no good reason to accept it for investigation now.
Investigator's decision on behalf of the Ombudsman