Gateway Housing Association Limited (202110301)

REPORT

COMPLAINT 202110301

10 May 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 handling of:

a) The resident’s request to increase the height of the boundary fence.

b) The associated complaint.

Background

2. The resident is an assured tenant of the landlord. The property is a ground floor flat within a building comprised of similar properties.
3. The resident contacted the landlord regarding heightening the boundary fence on 22 April 2021. He stated his request was to stop passers-by jumping over his fence and stealing items from his garden. He contacted the landlord a further three times about the fence on 1 June 2021, 21 June 2021 and 24 June 2021.
4. The resident approached this Service on 03 August 2021 and stated that the landlord had refused his request to heighten the fence. He was advised by the Service to raise a complaint to the landlord through its internal complaint procedure.
5. The landlord issued a stage one complaint response on 12 October 2021. It advised that it was not able to increase the height of the fence as there were no repairs required. The landlord stated it could only undertake works to the fence if it was related to a repair or defect – however, if a repair was required it would not necessarily involve an increase in height. The landlord stated that the resident had been advised that he could undertake the works to the fence himself with its permission. It advised the resident to request permission in writing if he wished to proceed.
6. On 14 October 2021, the resident requested that the Ombudsman escalate his complaint to stage two on his behalf as he remained dissatisfied with the landlord’s stage one response
7. The landlord issued a stage two response on 05 November 2021. It advised that the outcome of its stage one response was in line with the tenancy agreement. It explained that increasing the height of the fence was deemed as an improvement and that it was not responsible for improvements.
8. The resident escalated his complaint to this Service on 1 December 2021, as he wanted the landlord to heighten his fence. He stated that items of furniture had been stolen from his garden and that he did not feel safe.

Assessment and findings

Policies and procedures

9. The tenancy agreement states that the landlord is responsible for repairs to the structure and exterior of boundary walls and fences belonging to it.
10. The tenancy agreement also states that the tenant is entitled to make improvements, alterations and additions to the premises including external decorations, additions or alterations provided the resident has obtained written permission from the landlord. The landlord states it would not unreasonably withhold its consent but may consider requests conditional upon the work being carried out to a certain standard.
11. The landlord’s repair policy states that emergency repairs should be attended to within four hours. Urgent repairs should be attended to within seven days and routine repairs should be completed within 30 days.
12. According to the landlord’s repair policy examples of improvements are those such as, but not limited to: fixed playground equipment in communal areas, garden furniture, fences and gates (but not to individual dwellings), new refuse or recycling bin enclosures and works to design out anti-social behaviour.

The resident’s request to increase the height of the boundary

13. The evidence indicates that the resident first raised his concerns regarding the fence in April 2021 and raised a formal complaint to the landlord in August 2021.
14. In response to the resident’s complaint, the landlord referred to the tenancy agreement. It explained that the increase in height to the fence was deemed to be an improvement, as the fence was in good state of repair and it was only responsible in maintaining its repair, as per the tenancy agreement. It explained that the height of the fence matched that of his neighbours and any changes to the height would impact the quality of the resident’s home and potential future letting of the property. The policies provided for this investigation support the landlord’s standing, both in the tenancy agreement and the repair policy. For this reason, its response to the complaint in which it declined the resident’s request to heighten the fence was reasonable.
15. In its final response to the complaint, the landlord advised the resident that he could undertake the improvements to the fence himself and provided him with its relevant procedures. It was appropriate for the landlord to do so as residents are entitled to make improvements, with the landlord’s permission so it was appropriate for the landlord to make the resident aware of this option.
16. According to the landlord’s internal communications, it stated it had raised the fence for the adjacent property for reasons of anti-social behaviour. Landlords may decide to raise the height of a fence in cases of severe anti-social behaviour such as, threats of violence, or actual violence. However, the circumstances surrounding the landlord’s reasons for heightening the adjacent fence has not been made known to this Service, nor the resident. The landlord would not be able to disclose the details of that case to the resident due to confidentiality reasons as it would involve discussing personal details of the resident’s neighbours and the ASB they experienced.  The Ombudsman would not expect a landlord to divulge information regarding its other tenants. However, it is recommended that the landlord offer a more detailed explanation regarding its position to the resident such as details of the nature of the ASB, without compromising confidentiality, to ensure he has a full understanding of the reasons for its decision.
17. The evidence shows that the resident’s reason for requesting his fence to be heightened was to stop his garden being broken into and prevent any further acts of anti-social behaviour. It is understandable that the thefts from the garden would have caused significant distress to the resident and the Ombudsman has not disregarded this in our investigation. However, it is our role to assess whether the landlord acted in line with its legal obligations, its own policies and procedures and industry best practice.
18. It would have been appropriate for the landlord to log or investigate the resident’s reports of anti-social behaviour, however there is no evidence to suggest that it did so. The Ombudsman recognises investigating the ASB would not have necessarily changed the landlord’s position regarding the fence at this stage as a landlord requires corroborative evidence of the alleged behaviour to support formal action. Also, the landlord can only take action against individuals who are its tenants and the landlord is limited in the actions it could take following ASB by non-tenants. However, it would have been appropriate for the landlord to open an ASB case following the resident’s reports, in order to establish if it could reasonably take action. It would also have been helpful for the landlord to advise the resident to report the thefts in his garden to the police. At present, there is a lack of evidence regarding the allegations of anti-social behaviour that would merit the landlord to undertake the improvement to the fence. However, if multiple reports of ASB occur in the future, it would be appropriate for the landlord to reconsider its position in heightening the boundary of the fence.
19. As part of his submissions to the Ombudsman, the resident has provided photographs which he says show the height of the boundary fence serving his property compared to the neighbouring fence, which is higher. The landlord has not disputed that the neighbouring fence is higher. As abovementioned, details of the landlord’s decision to raise the fence on the adjacent block have not been provided to this Service.  Nevertheless, the raising of the adjacent fence would not necessarily constitute an automatic heightening of all its residents’ fencing to match, this decision would be actioned on a case-by-case basis depending on the individual circumstances. Therefore, the landlord’s position in this case is reasonable based on the evidence which is currently available.

The landlord’s handling of the associated complaint.

20. The landlord’s complaints policy states that it has a formal complaints process consisting of two stages. It states that it will investigate and respond to stage one complaints within 10 working days, and should a resident remain dissatisfied with the stage two response, it would give a response within 20 working days. This Service expects that if at any stage, there is likely to be a delay, the landlord would contact the resident to explain the reason for the delay and provide a new timescale in which the resident could receive a response.
21. The evidence suggests that the initial complaint was received in April 2021. The resident contacted this Service on 03 August 2021 and stated the landlord had not responded to his complaint regarding the height of the fence and requested the landlord explain the reason for its delays and consider raising the height of the fence. The resident contacted the landlord three more times regarding the matter before raising a formal complaint, as advised by this Service, at the beginning of August 2021. The landlord did not issue its stage one response until 12 October 2021, which was several weeks outside of its published timescale.
22. In accordance with the landlord’s complaints policy, the landlord should have kept the resident informed of any delays and managed the resident’s expectations accordingly, setting clear timescales in which the resident was likely to receive a response, rather than the resident having to chase the landlord. However, there is no evidence to suggest that it did so. Therefore, the landlord failed to comply by its obligations set out in its complaints policy. The landlord issued a stage two response on 05 November 2021 which was within its published timescales.
23. The landlord’s compensation policy states it would consider awarding financial compensation in instances where it had failed to respond to a complaint within its published timescale. It would have been appropriate for the landlord to consider compensation for the resident in this case. The landlord should offer £150 compensation to the resident in recognition of the inconvenience caused by the delay in responding to the resident’s complaint and its poor communication. This is in line with the Ombudsman remedies guidance (published on our website) which suggests that we may make awards ranging from £50-£250 for failures by the landlord such as: repeated failures to reply to letters or return phone calls, not having regard to a complainant’s preferred method of contact or contact requirements and failure to meet service standards for actions and responses but where the failure had no significant impact.

Determination (decision)

24. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in the way it handled the resident’s request to heighten the boundary of the fence.
25. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Orders

26. The Ombudsman orders the landlord is to pay the resident £150, in recognition of the distress and inconvenience caused by its delayed response and poor complaint handling.

27. The payment should be made within four weeks of the date of this decision.

Recommendations

28. It is recommended that the landlord respond to any further reports of ASB and notify the resident if its position regarding the fence changes, in response to any further ASB reports.

29. It is also recommended that the landlord conduct a review of its complaint handling processes to ensure that it has timely communication with a resident related to their complaint.