Leeds City Council (202118186)

REPORT

COMPLAINT 202118186

Leeds City Council

31 May 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:
1. The landlord’s response to the resident’s report of an unsafe garden wall and its handling of the associated repairs.
2. The landlord’s handling of the resident’s complaint.

Background and summary of events

The resident is a secure tenant of a local authority and lives in a four bedroom house. His tenancy started on 25 February 2013, the landlord has no recorded vulnerabilities against the tenancy, although it’s noted children live in the property.
The landlord’s repairs and maintenance handbook states, subject to the fencing policy criteria, fences, are a responsive repair which is the landlord’s responsibility.
The landlord has four repair priorities.
1. Emergency repairs, to be attended to within three hours and the repair completed within 24hours.
2. Priority repairs, it will carry out the repair within three or seven working days.
3. General repairs will be carried out within 20 working days.
4. Batched repairs, which includes minor repairs to external walls and fences, will be completed within 60 days.
The landlord’s fencing policy states fencing does not fall under the landlord’s repair responsibilities in accordance with section 11 of the Landlord and Tenant Act. It goes on to state that it will consider individual circumstances when dealing with any fencing repair requests.
Section 3.1 states the landlord will replace boundary fencing which meet the below criteria and is beyond economical repair:
1. “Where a garden adjoins a busy road and there are young children or vulnerable adults living as registered household members, where failure to replace the fence or gate would allow free and unrestricted access onto the road;
2. where differences in ground levels pose a risk to health and safety;
3. to remove other health and safety risks to householders and members of the public; or
4. to prevent damage occurring to personal possessions or property”.
The policy states anything outside the above criteria to be the tenant’s responsibility and the landlord “will not replace or upgrade dividing fences between properties”.
The tenancy agreement terms and conditions provided to this service were dated 2019 and within these there is no mention of fencing being the responsibility of the tenant.
The landlord has a two stage complaints policy, responses can be provided by letter, email, face to face or by telephone. Both stage one and stage two complaints are responded to within 15 working days and at both stages if a response cannot be made within this time, its policy states the landlord will provide regular updates at least every two weeks.

Summary of Events

The landlord first raised an order to “demolish the wall” on 12 March 2021 in response to the resident reporting the single skin wall was now unsafe following a shed being removed at a neighbouring property backing onto the resident’s rear garden. The landlord’s contractors removed the shed during void works after the neighbours moved out. The landlord’s repair logs show this job as being completed the next day and that children lived at the property.
On 15 March 2021, a surveyor called at the property and confirmed the wall to the right hand side of the rear garden was “in fact wobbling”, requested the works order be a priority due to children being at the property. The works order says this wall was “in danger of collapse”.
The landlord’s repair logs show an order raised on 25 June 2021 to “renew random palings fence damaged on 1 panel”. This job was marked as cancelled with no explanation.
In an internal email the landlord confirmed the order for the damaged fence had been cancelled due to no access on 20 July 2021 with the operative noting “no access to back garden and no answer to phone call left message”.
According to the landlord’s resident contact log the resident made a service request for a surveyor to “inspect damage to the fence” on 5 August 2021. This log then had a further update on 3 September 2021 which stated, “spoke to tenant advised that a TO was visiting today, no further action required”.
The landlord recorded a stage one complaint on 13 August 2021. The complaint was taken via the phone and summarised as, following the shed behind being removed and leaving an unstable wall, numerous people had visited, a skip had been delivered then removed but no work had actually taken place. It also noted the resident was not being kept up to date. Within this record it states, “they also reported the fence and said they came and nobody did”.
The landlord provided a stage one response to the resident’s complaint on 20 September 2021 via email. It confirmed “demolition works had taken place”, rubble had been removed and contractors would be attending on 22 September 2021 to “remove the remaining retaining wall for clearance”. In this email the landlord advised the resident that the operatives that attend his property would update him on any further works required.
In an update to this service the landlord confirmed it demolished the final sections of the wall on 22 September 2021.
The resident contacted the landlord on 23 September 2021 to advise the wall had been taken down but the rubbish behind the wall was still there. The resident advised in this email he “had been told both walls would be taken down” but only one had been.
Within an internal email dated 23 September 2021 the landlord confirmed the retaining wall was demolished on the 22 September 2021 and the resident wanted the boundary wall taken down which the landlord advised it would not do.
According to the landlord’s contact record log the resident rang chasing a call back on 24 September 2021.
In an update to this service the landlord confirmed garden waste was removed by a contractor on 5 October 2021.
The landlord recorded and acknowledged a request made by the resident for his complaint to be escalated to stage two on 7 October 2021 via the phone. Within his complaint, the resident:
1. Advised the rubbish which remained in his garden caused a health and safety hazard which prevented his grandchildren from using the garden.
2. Contractors did not turn up to appointments but would turn up the day after.
3. Contractors advised removing the rubble was a bigger job than expected so they would say they would return the next day, which they did not.
4. Contractors turned up without notice on 4 October 2021 even though the resident had advised previously that appointments needed to be made for access due to work commitments.
5. He was having to wait on hold on the telephone on average between one and two hours to chase the work which was not resolved.
Within this record of the complaint the landlord highlighted a message from 23 September 2021 requesting a call back, which states “there seems to be confusion over the extent of the work required” referring to a side wall in addition to another wall.
In an update to this service the landlord confirmed it attempted to gain access to the property on 8 November 2021, but it was not successful, it is not clear what this attempted access was for. The landlord attended again on 9 November 2021 and 11 November 2021, no evidence has been seen as to what these visits were for or what works were carried out.
An internal email dated 9 November 2021 states the order to remove one wall due to safety was completed straight away, however upon doing this the landlord noted the other block walls were in a bad state of repair. It was agreed that the rest of the walls would be removed, the garden cleared and a fence reinstated to cover what had come down.
Within an internal email it is noted the landlord gained access on the 11 November 2021 and advised the resident what works would be taking place, yet these were not detailed.
In an update to this service the landlord confirmed a garden clearance took place on 15 November 2021, it then met with a fencing contractor on site on 17 November 2021. The landlord has stated this being the first time the side fence was mentioned.
The landlord provided its stage two response on 15 November 2021, it also tried to contact the resident on this day. Within its response it included the following as the key issues of the complaint:
1. The resident had been chasing work to the wall in the garden for a long time and was unhappy with the service received.
2. The resident had several missed appointments to collect the waste material and operatives turned up without notifying in advance.
3. The resident had not been updated on the repairs and when chased it took up to 1-2 hours on the phone with no resolution.
4. The resident wanted to know when the replacement fencing would be fitted.
Within its response the landlord acknowledged:
1. It had taken “too long to resolve” the issue and apologised for the delays, the landlord advised this was due to the lack of available operatives.
2. It also advised that external works “would not always have been pre-arranged” however the process had been changed since the resident’s complaint and “all visits to a property are booked in and a mutually agreeable appointment date and time is agreed”.
3. It apologised for its call waiting times.
4. It advised the existing rubble was required to be removed before the fence could be fitted and it expected the fence to be completed by 19 November 2021.
The landlord also noted it had tried to contact the resident to ensure he was happy with the “proposed work” and provided a direct contact. It apologised for the delay in responding to the complaint and agreed it could have made more attempts to update him about the progress of the works. The landlord offered £150 to apologise and for the time and trouble in chasing works.
An internal email dated 16 November 2021 shows the landlord clarifying the issue with “another wall and fence”, it agreed to look at this other section and if anything was needed to be done it would rectify within usual timescales as a new job, as it was not aware of this wall being mentioned previously.
In an update to this service the landlord confirmed the fencing contractor installed a new 1.8m high picket fence to the rear of the property in November 2021.
In an update to this service on 29 January 2022, the resident advised he was told by an officer that all the works would be done. He then made a further call to chase the remaining works to then be told the landlord would not repair the fence at the side as this was his responsibility as per his tenancy agreement. The resident disputes it is in his tenancy agreement. The resident advised he had left numerous messages for a call back from his landlord and none had been returned. He advised the following jobs he believed to be outstanding were:
1. Filling gaps between the fences
2. Making the wall safe as it had been left with a jagged edge which sticks up.
The resident advised this service, the landlord had previously replaced a boundary fence which had fallen down without question. The resident does not see why he should replace the fence and states his neighbour’s children had broken it by kicking balls at it.

Assessment and findings

The landlord’s response to the resident’s report of an unsafe garden wall and its handling of the associated repairs.

The unstable wall was a direct result of the landlord’s actions, whilst the property backing onto the resident’s rear garden was void its contractors removed a shed and failed to make sure the remaining wall was in a state of good repair and posed no health and safety issues. An order was only raised when the resident contacted the landlord to advise he felt the single brick wall was unsafe. The landlord referred to the wall on 15 March 2021 as “actually wobbling”. It is not clear from the evidence provided when this wall was removed as an internal email on 9 September 2021 states it was done straight away but left other “block walls” in a bad state of repair which it agreed needed to be taken down also. It did not remove these further walls until 22 September 2021, and it is not clear what the reason for this was although it mentions “a low number of operatives” who could complete this type of work it’s complaint response to the resident. No evidence has been seen to show the landlord struggled to obtain operatives to carry out these works, or that the delay in completing the works was otherwise explicable.
The landlord acted appropriately in line with its responsibility to remove health and safety risks to householders, in removing the dangerous walls and replacing with a fence, however the delay in doing this cannot be reasonably explained. It took from March 2021 to November 2021 for the landlord to complete the works and install a fence. The landlord noting the wall was “actually wobbling” and “in danger of collapse” can be reasonably understood to be a concern for safety. resident was left with an area of his garden which posed a health and safety concern for a period of eight months which, with children at the property is not reasonable.
The landlord, although it took time, acknowledged the multiple missed appointments to the property in it’s stage two response. It advised of a recent policy change to appointments for external works which would have been the reason for the missed appointments in this case. It is good that the landlord has understood that unannounced visits to a property can cause distress alongside the importance for the resident to know who is due to the property and when.
The landlords fencing policy states fencing does not fall under the landlord’s repair responsibilities and it therefore does not have a legal responsibility to provide, repair and maintain or replace fencing unless there is a health and safety concern. Although it is acknowledged that the resident had requested the fence to the side of his property be repaired it was reasonable and in line with it’s fencing policy that it did not repair the side fence as it is not obliged to repair dividing fences and there was no evidence of a health and safety risk in relation to this fence.
The tenancy terms and conditions implemented in 2019 provided to this service do not detail responsibility on the boundary walls or fencing.
The landlord provided repair and customer contact logs which showed very little information however on request has provided this service with a list of dates when the property was attended to. It is important that clear, concise and collated records are kept for all communications with residents and repair requests which are accessible to relevant members of staff. This will help a landlord understand the condition of a property and effectively meet its repair obligation at any given time and evidence it has complied with its repair obligations under section 11 of the Landlord and Tenant Act 1985. Moreover, the resident advised this service on 29 January 2022 that the wall was left “with a jagged edge which sticks up”. No evidence has been seen that the landlord post inspected the work to ensure it was completed to a good standard and no health and safety issues prevailed.
In summary, it is reasonable to conclude that the landlord was aware of the potential health and safety implications the sections of wall in the rear garden posed, yet it did not treat the repair as a priority and failed to follow it’s policy timescales. This significant delay and surrounding poor communication caused the resident avoidable time, trouble and loss of enjoyment of an amenity of his home. Taking the above into account a finding of service failure has been made in respect of the landlord’s response to the resident’s report of an unsafe garden wall and its handling of the associated repairs.

The landlord’s handling of the resident’s complaint

The landlord failed to follow its own policy in responding to the resident’s stage one complaint. It should have provided a response in 15 working days, it took 26 working days and made no reference to this delay in its response, no evidence has been seen to suggest the resident was advised of this delay as per its policy. Moreover, it did not acknowledge all of the points of the resident’s complaint. The resident made reference to multiple visits to his property with no work being completed, a skip being delivered and then collected empty and a lack of call-backs. In particular no mention was made of the detriment to the resident and the fence that he had mentioned when he first complained.
The landlord’s stage two response was also delayed and following contact of this service it provided a response 12 working days outside of its policy timeframe of 15 working days. Within this response the landlord acknowledged the residents’ concerns about several missed appointments and advised that external works did not always have pre-arranged appointments. It advised of a review and that all external works would now have an appointment booked in. Although it isn’t clear if this is in direct correlation to this complaint it is good that the landlord saw this as an issue and amended its procedure accordingly.
The landlord should have been clearer in its handling of the resident’s complaint raised 13 August 2021 and clarified in the initial stages of the complaint exactly what the resident was unhappy about and what works would be done including what walls would be removed and any subsequent fencing repairs. It was an oversight by the landlord to not do this as the resident had mentioned fencing when he first complained. This was a missed opportunity to understand the issues that the resident considered unresolved and to put things right. It was not clarified and the subsequent works fell short of what the resident had understood to be agreed by the landlord. As a result, the resident has remained unsatisfied, experienced further frustration, expended further time and trouble, and caused them to approach this service.
Whilst an offer of £150 was paid for the delay in responding and the time and trouble in chasing the repair work was reasonable, it did not go far enough to provide an adequate remedy for the resident. This is because the purpose of a complaints procedure is to provide a framework and process for landlords to resolve complaints. However, in this case, it has not considered all the points of the resident’s complaint, which led to landlord not recognising the resident’s experience since the repair was first reported and which also led to the resident being uncertain about how the landlord was seeking to resolve the ongoing repair issues raised or acknowledged the impact that this had on the resident.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s report of an unsafe garden wall and its handling of the associated repairs.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s handling of the resident’s complaint.

Reasons

The delay in completing the work resulted in the resident having part of his garden posing a potential health and safety issue for a number of months, even though the landlord had requested the work be done as a priority due to children being present. The landlord also failed to communicate effectively and keep the resident updated with progress of this work which resulted in him having to chase the landlord and subsequently complaint to get the work completed.
Whilst it is acknowledged the landlord is under no legal obligation to repair the side fence it did not communicate this to the resident clearly and it failed to acknowledge this part of the resident’s complaint.
There were unnecessary delays in the landlord’s complaint responses at both stages, it failed to ensure it understood the resident’s complaint in full and did not acknowledge all of the issues raised. It also failed to acknowledge the detriment these delays had caused to the resident.

Orders and recommendations

Orders

The landlord is ordered to inspect the property to confirm no health and safety issues are present with the rear wall or fencing.
The landlord is ordered to pay the resident in total £450, to include:
1. £200 for the time and trouble experienced by the resident in this matter.
2. £250 for it’s poor complaint handling.
The landlord is ordered to review its published and supplied information given to residents to ensure respective responsibilities for fencing are clear. The landlord should advise this service of its intentions in this respect.
The landlord should provide evidence to this service that it has compiled with the above orders within four weeks of this determination.
The landlord is ordered to review and consider the learning from this case, so it clearly understands what went wrong and put in place any actions required to prevent further failings. Within the review it must consider:
1. Its intentions to ensure that it adequately captures and responds to all the detail and elements of a residents complaint effectively and accurately
2. Its intentions in respect of enhancing its oversight and ensuring that residents are adequately updated on timelines for completion of repairs where multi trades or visits are required to effect an overall resolution.
The landlord must provide its intentions following this review, to this service within six weeks of this determination.

Recommendations

It is recommended that the landlord investigate the residents claims that damage was caused to the side fence by a neighbouring household and take further action to address this if confirmed.
It is recommended that the landlord publish its self-assessment against the Housing Ombudsman complaint handling code on its website, so it is easily accessible and transparent.
The landlord should confirm its intentions in relation to the above recommendations within four weeks of the date of this determination.