Clarion Housing Association Limited (202100430)

REPORT

COMPLAINT 202100430

Clarion Housing Association Limited

18 October 2021

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 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 refers to:
1. The landlord’s handling of repairs needed to the resident’s fence following damage caused by a neighbour.
2. The landlord’s handling of the resident’s associated complaint.

Background and summary of events

The resident is a tenant of the landlord. The property is a house, the resident’s neighbour lives at the adjoining property.
The resident initially reported to the landlord that damage had been caused to her fence on 4 March 2020, and she provided it with photos of this. She said that her garden was no longer secure at the front of the property, and that a tree had been removed with a saw by her neighbour.
The Ombudsman has not been provided with evidence that showed any further communication between the parties regarding the above fence damage until July 2020.
The landlord’s records showed that the resident asked for a stage one formal complaint to be raised on 21 July 2020, as she reported that there had been a lack of action by the landlord regarding the damage caused to the boundary fence between her garden and the public footpath by a neighbour. She advised that she had called the landlord several times, and that the issue had been ongoing since March 2020. The records showed that the resident was not satisfied with the way the call was handled by a member of its staff at this stage, and that she asked for the call to be listened to by it.
The landlord called the resident on 24 July 2020 to gain a further understanding of the complaint. She explained that, when her neighbour had moved into their property, they had placed a new fence there, but had cut away the bush that was in place. The gap was now making the resident’s front garden insecure. The resident emailed the landlord again to provide photographic evidence of the damage on that day.
The landlord wrote to the resident’s neighbour on 28 July 2020 and advised that they were in breach of their tenancy agreement. It asked the neighbour to rectify the damage caused to the resident’s garden, when they had removed part of her hedge to place their new fence there, within 14 days. It confirmed that it had booked a visit to ensure this was completed within the 14-day timeframe.
The landlord issued its stage one complaint response to the resident on 31 July 2020 and explained the following:
1. It acknowledged that the resident’s neighbour had removed a bush in the resident’s front garden when replacing their fence, which left her garden insecure. The landlord had discussed this internally and found this to be a tenancy breach by the resident’s neighbour. It confirmed that it had written to the neighbour advising them that they had 14 days to rectify the damage, or it would consider pursuing legal action against them.
2. With regard to the resident’s concern about the previous telephone call that she had made to a member of staff at its contact centre, the landlord advised that it had shared the resident’s concerns with the staff member’s manager, who would deal with this matter in the appropriate way. It explained that, due to data protection requirements, it was unable to inform the resident of how this process would progress.
3. It confirmed that it had not met its commitment to the resident in its communication and said that her complaint was upheld. The landlord apologised to the resident for any inconvenience caused by this. It advised that the resident could escalate her complaint to stage two of its complaint process, if she remained dissatisfied.
The resident responded to the landlord on the same day, and she said that she was unable to consider the matter closed until the repair to her fence had taken place. She was concerned as to whether the damage would be rectified and whether this would offer the same level of privacy and security as before. She had additional concerns about the landlord’s internal communication and the clarity of information that it had recorded, as she had needed to explain the situation to it again in a telephone call on 28 July 2020. The landlord responded to the resident on the same day and explained that it had closed the complaint as per its policy. It advised the resident to make contact with it if the fence repairs were not carried out within 28 days.
The resident called the landlord again on 12 August 2020, as the above fence repairs had not been completed by her neighbour. At this stage, she said she was informed that the replacement of the tree which had been removed by her neighbour would be a civil matter, and that she would need to seek legal advice on pursuing this further. The resident had asked for a call-back from the member of staff involved in the case, but it is unclear as to whether this happened.
The resident emailed the landlord on 21 September 2020 and confirmed that no repair to her fence had taken place, and added that she had not received any further contact from the landlord regarding this issue. She said that the information she had been provided on 12 August 2020 regarding the tree replacement being a civil matter was contradictory to the landlord’s previous stage one complaint response. The resident also raised concerns about the landlord’s handling of her various other concerns not related to the fence. The landlord responded to her on 23 September 2020 and said that it had raised a stage one complaint to investigate the matters she had raised.
The landlord issued a further stage one complaint response to the resident on 8 October 2020, in which it discussed various concerns including the issues with the repairs to her fence. It acknowledged that the resident had said that she was told on 12 August 2020 that the repair issue would be a civil matter and she would need to take independent legal advice. It confirmed that, since the resident’s neighbour had not responded to its warning letter, it would now pursue a legal injunction against the neighbour.
The landlord also noted that, on 28 July 2020, the resident had advised that she wanted the neighbour to replace the tree they had removed with one exactly like the one they had taken down. She was advised that once the neighbour had repaired the fencing, they would no longer be in breach of their tenancy agreement and the landlord would not be able to force them to replace the tree. This matter would then be classed as a dispute between neighbours and would therefore be a civil matter, for which she was advised to seek legal advice.
The resident responded to the landlord on 12 October 2020 and advised that she had not asked for the neighbour to repair the fence by replacing the tree with one exactly like the one that had been taken down. She had asked for the same level of privacy and for the property to be secured to the same level as before and meet the height of what was removed. This was because the garden ran along a public footpath.
The resident had also not been given a rough timeline of how long the legal process would take and expressed dissatisfaction about the landlord’s overall communication. She reiterated that she had been unable to use the garden since the damage was caused. The landlord responded on that day and confirmed that her comments had been passed to the person managing the legal process.
The resident emailed the landlord again on 9 November 2020, as she had not heard anything from the landlord regarding the “vandalised” fence, and it had been around a month since the previous correspondence. The landlord responded on the following day, and it confirmed that an injunction against the resident’s neighbour was being put together and was due to be sent to its legal team that week. It advised that it was unable to provide a timescale for how long this may take.
The resident sent a further email to the landlord on 23 December 2020, and she said that she had not had any form of communication regarding her fence. She acknowledged that the landlord may not be able to give her a timeframe, but she asked for information on the process and a brief update. The landlord responded to her on 12 January 2021, and it advised that the staff member she had contacted had been absent due to illness. It advised that the resident would need to call its contact centre for matters such as this and it hoped that the issue had now been resolved. The resident responded to the landlord on the same day and said that she had not heard from the landlord’s contact centre and that the work to her fence had not been completed.
The resident enquired with the landlord about the outstanding repair issues at her property on 23 February 2021. She advised that she was still awaiting the repair to her fence.
Following contact from the resident, the Ombudsman wrote to the landlord on 28 April 2021, and we asked it to address the resident’s concerns in relation to her garden fence and separate issues under its formal complaints procedure. The landlord confirmed that a stage two complaint was raised for her concerns regarding the fence on 30 April 2021.
The landlord’s records showed that it called the resident on 7 May 2021 to discuss her concerns in more detail. The resident’s concerns regarding her property were discussed, as well as the ongoing fence issue. She advised that she had not received a response from the landlord regarding the gap in her front garden boundary, and she added that she had been unable to use the space for around a year, as this was unsecured, and she had two puppies as well as her child. The resident was dissatisfied with the lack of communication from it regarding this issue, but she explained that none of the other issues detailed in the landlord’s previous stage one complaint responses to her on 31 July and 8 October 2020 needed further investigation.
The landlord emailed the resident on 27 May 2021 and confirmed that it would now repair the fence. It advised that its repairs team would be in touch to arrange an inspection prior to the repair.
The landlord issued its stage two final complaint response to the resident on 3 June 2021 and explained the following:
1. It acknowledged that the resident remained dissatisfied, as she had not received an update regarding her neighbour rectifying the gap in her garden fencing, which she was advised would be handled as a tenancy breach. She was also dissatisfied that her front garden boundary still had a gap, making this insecure.
2. It confirmed that it had written to the resident’s neighbour, asking them to rectify the damage. However, the landlord had not investigated the matter correctly prior to sending the neighbour the letter, nor did it follow-up to ensure that the fence repair was completed. It advised that it had discussed the errors in its handling of the complaint internally to improve the service and management of such cases in future. The landlord apologised for any inconvenience caused and the time and trouble the resident had spent pursuing an update.
3. It confirmed that it had arranged for the gap in the fence to be repaired by its repairs service, and it said that its repair team would be in touch in the next week to arrange an inspection of this. In recognition of the landlord’s failure to follow process and the distress caused to the resident, it offered her £150 compensation.
The resident subsequently referred her complaint to this Service to consider, as she remained dissatisfied that her fence had not been repaired and she deemed that she had not been able to use her garden for over a year. She added that she was dissatisfied with the landlord’s communication over this period and its overall handling of her complaint.
The resident then contacted the Ombudsman on 18 August 2021 to provide additional information related to her complaint. She advised that she had not received any further correspondence from the landlord regarding the fence repair.
The landlord subsequently provided this Service with information relevant to the resident’s complaint on 10 September 2021, and it identified that it had not followed-up on actions promised in its stage two response. It offered an additional £100 compensation to the resident for the delay in progressing the fence repair and failure to keep the resident informed about this. The landlord also confirmed that it was now making arrangements to repair the fencing in the resident’s garden “imminently”.

Assessment and findings

The landlord’s handling of repairs needed to the resident’s fence following damage caused by a neighbour

The landlord’s website confirms that it would be responsible for repairs needed to boundary walls and fencing. The resident would be responsible for garden maintenance and repairing the dividing fences between properties. Where damage is caused by a neighbour, it is reasonable for the landlord to hold the neighbour responsible for the damage and ask them to carry out the repair in the first instance. A landlord may pursue formal action against the perpetrator where appropriate.
It is not disputed that there was a significant delay in the landlord acting on the resident’s reports of damage caused to her fence and tree between March and July 2020. Following this, the landlord acted reasonably by attempting to take enforcement action against the neighbour. Its stage two final complaint response acknowledged on 3 June 2021 that it failed to follow-up on the tenancy breach letter it had sent to the neighbour on 28 July 2020, and that there had been errors in its communication with the resident during this period, for which it offered her £150 compensation.
The landlord also acted appropriately by agreeing to do the resident’s fence repair itself on 27 May 2021, given the length of time that had passed since the resident’s initial report to it of the damage to this. It is noted that there was a further delay to the repair, and the resident reported on 18 August 2021 that she had not had any further communication with the landlord regarding the repair it had agreed to. The landlord acted reasonably by then acknowledging that it had not completed the repair, as it previously said it would in its stage two final complaint response to her, and so it offered her £100 additional compensation for the delay and lack of communication regarding this on 10 September 2021, bringing the total offer of compensation to £250.
It should be noted that the landlord would only be responsible for arranging the repairs needed to the fencing in line with its above repair responsibilities from its website. Any damage the neighbour had caused to the tree in the resident’s garden would be a civil matter between neighbours, better suited for the courts to decide upon, according to the advice that the landlord had received about this that was reasonable for it to follow. This was because the landlord explained on 28 July 2020 that it would not have the authority to force the neighbour to replace the resident’s tree, and so it gave her appropriate advice that the resident would need to seek her own independent legal advice if she wished to take this matter further.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in all the circumstances of her case. In this case, the landlord acted fairly in acknowledging its above mistakes regarding its repair delays and lack of communication, and by apologising to the resident for these. The landlord also offered her compensation that was proportionate to the distress and inconvenience experienced by the resident by these failings on its part.
This is because the amount of £250 total compensation awarded by the landlord to the resident was in line with the Ombudsman’s remedies guidance, which states that amounts in this range may be used for instances of failure resulting in some impact on the resident but where there may be no permanent impact. For example, failure to meet service standards for actions and responses but where the failure had no significant impact, or a resident repeatedly having to chase responses and seek the correction of mistakes, necessitating unreasonable level of involvement by that resident.
For the reasons set out above, the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint about its handling of repairs needed to her fence following damage caused by a neighbour satisfactorily. The measures taken by the landlord to remedy what went wrong were proportionate to the impact that its repair delay and communication failures had on the resident. If it has not already done so, it has therefore been recommended below that the landlord arranges for the repair work to the resident’s fence to be carried out, and that she be re-offered the £250 compensation that it previously awarded her, within the next four weeks.

The landlord’s handling of the resident’s associated complaint

The landlord’s complaints policy states that it has a two-stage complaints procedure. At stage one, a response should be provided by the landlord within ten working days. If the resident remains dissatisfied, she can escalate her complaint to the final stage two. At stage two a final response should be provided within 20 working days. If, at any stage, there is likely to be a delay, the landlord should contact the resident to explain the delay and provide a new timeframe for when she would receive a response. It is a requirement of the Ombudsman’s Complaint Handling Code that the resident does not have to expressly use the word “complaint” for this to be treated as such, which is instead an expression of dissatisfaction, however made.
The landlord provided its stage one complaint response of 31 July 2020 to the resident within a reasonable timescale of her stage one complaint to it of 21 July 2020 in line with its complaints policy’s above ten-working-day timescale. Following this, it was reasonable for the landlord to handle the resident’s new concerns of 21 September 2020 under stage one of its complaints procedure on 8 October 2020. However, it would have been appropriate for the landlord to have escalated the resident’s complaint about her fence to the final stage two of the procedure at this time, as a stage one response had previously been issued on 31 July 2020. This error extended the timeframe of the complaint for the resident, which is likely to have caused her some unnecessary inconvenience.
Following this response, the resident continued to express dissatisfaction from 12 October 2020 onwards that her fence had not been repaired, and that the landlord had not communicated effectively with her about this. While the resident did not expressly ask for her complaint to be escalated to stage two, it would have been appropriate for the landlord to acknowledge her dissatisfaction as such at an earlier stage, prior to the Ombudsman’s involvement in April 2021. The stage two complaint was issued within a reasonable timeframe of 24 working days by the landlord on 3 June 2021 following the Ombudsman’s communication to it about this on 28 April 2021. However, this was approximately ten months since the resident initially raised her outstanding concerns, which was significant.
In summary, there was service failure by the landlord in respect of its handling of the resident’s associated complaint. The landlord did not satisfactorily followed its complaint procedure by escalating the resident’s dissatisfaction with its stage one complaint responses to the final stage of the procedure, which she expressed to it on 21 September and 12 October 2020. It also extended the timeframe of the complaint by unnecessarily issuing two stage one complaint responses to her in respect of her fence repair complaint.
This was likely to have caused some inconvenience to the resident, as she had not been able to try and resolve her fence repair with the landlord at the final stage of its complaints procedure, or pursue the matter with this Service, at an earlier date. In view of this, the landlord should have offered additional compensation to the resident for its above complaints handling failures, but it failed to do so and so it has been ordered to pay this to her below, in line with our remedies guidance. It has also been recommended below that the landlord reviews carrying out staff training to ensure that complaints are dealt with at the correct stage of its complaints procedure.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident in respect of its handling of repairs needed to her fence following damage caused by a neighbour prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
This decision is dependent on the below recommendations being followed.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s associated complaint.

Reasons

The landlord took reasonable steps to acknowledge its errors in communication and failure to take follow-up action regarding the resident’s fence repair. The landlord has offered compensation which was proportionate to the level of inconvenience experienced as result of these failings to the resident.
The landlord provided two stage one complaint responses in relation to the resident’s concerns about her fencing, and it delayed escalating her complaint to the final stage of its complaints procedure by approximately ten months until it was contacted by the Ombudsman, for which it did not offer her a separate remedy. This is likely to have caused inconvenience to the resident, as it had lengthened the overall timeframe of the complaint significantly.

Order and recommendations

The Ombudsman orders the landlord to, within four weeks, pay the resident £100 further compensation in recognition of the inconvenience caused to her by its poor handling of her formal complaint.
It is recommended that the landlord:
1. Pay the resident the £250 compensation that it previously agreed to, if it has not already done so, as the above finding of reasonable redress was made on this basis.
2. If it has not already done so, arranges for the repair work to the resident’s fence to be carried out.
3. Reviews carrying out staff training to ensure that complaints are dealt with at the correct stage of its complaints procedure.
The landlord shall contact this Service within four weeks to confirm that it has complied with the above order and whether it will follow the above recommendations.
The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.