Magenta Living (202113308)

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REPORT

COMPLAINT 202113308

Magenta Living

5 April 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 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 response to the resident’s reports about repairs to her dividing fence.

Background

  1. The resident is a tenant residing in a three-bedroom house owned by the landlord.
  2. The correspondence between the landlord and the resident showed that, between 2017 and 2021, she had raised complaints about the dividing fence which separates her and her neighbour’s properties. Its records showed that, when she raised concerns in May 2017 regarding the condition of the fence, it had explained to her that it was her responsibility to maintain this. The landlord also provided photographs which had been taken during the void period in 2015, when the resident moved into the property, which showed that there were no issues identified with the fence.
  3. The landlord’s tenancy records, dated 27 October 2017, showed that an inspection had been carried out of the resident’s property, and that the property was deemed to be in good order by it, as there appeared to it to be “no real issues with fencing and all cosmetic”. However, she complained about the dividing fence in the rear garden as being in need of repair. The resident was informed by the landlord that the matter was between her and her neighbour, as it was her responsibility to maintain the fence.
  4. The landlord and the resident have not provided evidence of subsequent contact between them regarding the above matter until 12 February 2021, when she called it to explain that the fencing in the rear garden could no longer be maintained and was leaving the property insecure. It acknowledged the stage one complaint raised by her about this via a letter dated 15 July 2021, and a request for further information from her was also made. This was followed by another letter to the resident on 22 July 2021, to inform her that investigations were still being undertaken due to the complexity of the case.
  5. The landlord provided the resident with a response to her stage one complaint on 23 July 2021, and it explained that the repairs and maintenance guidance states that the dividing fence is her responsibility. It stated that, even though she had mentioned that replacement of the fence was agreed when she moved into the property, there was no documentary evidence to show that it had agreed to this. The landlord’s call logs showed that the resident contacted it on 6 and 9 August 2021 to chase up responses from it following her appeal of its decision.
  6. The resident further complained on 11 August 2021 that the landlord had partially carried out some work to the fence. It had replaced 16 meters of the fence, but 9 meters of this were outstanding. It reiterated that she was responsible for the dividing fence, and that it had no documentation regarding its replacement of this. The landlord sent its final stage complaint response to the resident on 26 August 2021. She was advised that her complaint would not be investigated any further, as there was no visible damage to the dividing fence and insufficient evidence to investigate the complaint any further, which was based on its photographs of this from 2015 and its inspection in 2017.
  7. The resident then contacted the landlord to express her dissatisfaction that the neighbour’s dog had access to her garden from the “rotted” fence, and that she had to clean up after the dog. She also expressed concern about the children next door getting hurt by the “dangerous” trip hazards and missing boards from the “structurally unsafe” fence.
  8. The resident subsequently referred her case to this Service, as she remained dissatisfied that the landlord had advised her that she was responsible for the replacement or repair of the fence. She explained it had partially replaced the fence, and that it had verbally agreed at the commencement of the tenancy that it would repair the fence. The resident maintained that the fence was in a bad condition, and she wanted the fence on the right-hand side to be either repaired or replaced.
  9. The landlord’s repair logs later showed that there was a planned repair for the fence by it, as this had been reported as damaged and needed to be made safe. On 28 November and 4 December 2021, the fence was recorded by it as having been made safe, and the work as having been completed by it on the same day on both dates. This was after the landlord was contacted by this Service on 1 December 2021, regarding an inspection of the fence and an update on this. On 7 December 2021, the landlord provided confirmed that it was unlikely to replace or repair the dividing fence, which it reiterated after inspecting the storm-damaged fence post and panels on 4 January 2022.

Assessment and findings

Scope of investigation

  1. While the resident complains about the landlord’s response to her reports about repairs to the dividing fence in 2017 and about it verbally agreeing to repair this in 2015, the scope of this investigation is limited to the events in her case in 2021. This is because, under the Housing Ombudsman Scheme, this Service can only investigate complaints about issues that were brought to the landlord’s attention as a formal complaint within a reasonable period, which is usually within six months of the matter arising.
  2. However, the resident complained the landlord on 15 July 2021 that she was unhappy that only one side of the fence was being repaired, instead of within six months of the events in her case in 2015 and 2017. This investigation will, therefore, be limited to considering its response to her reports about the repairs to her dividing fence reported in 2021, as it had the opportunity to respond to these at the time under each stage of its complaints procedure.

The landlord’s response to the resident’s reports about repairs to her dividing fence

  1. Following the resident’s reports from February 2021 onwards about the fence being partially replaced, the landlord took appropriate action when it explained in its complaint responses in July and August 2021 that dividing fences are the responsibility of the resident. It acted reasonably, and in line with its repairs and maintenance guidance, when it advised her that it was her responsibility to replace the fence. As stated in its repairs and maintenance guidance, the landlord is only responsible for boundary fences bordering onto public spaces and unsafe garden walls and fixtures, while the resident is responsible for dividing fences.
  2. The landlord also initially demonstrated that it had taken the time to consider the concerns raised by the resident and that it had prioritised the matter. It did so when it kept her updated and informed on 22 July 2021, as the issue was being investigated further due to this being complex. The landlord additionally showed that its response was reasonable, as it sought to ensure that it fully investigated the matter as shown in its internal communications, when it explained that there was no paper trail to show that it had verbally agreed to repair the fence. This demonstrates that there were ongoing discussions with it about how to resolve the complaint fully and address this.
  3. There is, however, no evidence to show that the landlord carried out an inspection of the fence after the concerns raised by the resident from 12 February 2021 onwards, about this being insecure. Following her complaints about this on 15 July and 11 August 2021, it instead provided evidence associated with its historic photographs of the fence in 2015 and its inspection report of the fence in 2017. This is inappropriate as the landlord is responsible for keeping up with its service standards and carrying out health and safety checks, together with repairing unsafe garden walls and fixtures, in line with its repairs and maintenance guidance.
  4. The landlord should have instead arranged for an inspection of the fence to be carried out in early 2021, following the concerns about the health and safety implications of the condition of this that were raised by the resident, in order to address these. This would have ensured that it complied with its obligation, in the repairs and maintenance guidance, to check for unsafe fixtures such as the fence in this case. This, however, would not mean that the landlord should replace the dividing fence, as this remains the resident’s responsibility as stated above, and so it has been ordered below to re-inspect and complete any outstanding works to make safe the fence and recommended to review its relevant staff training needs.
  5. Nevertheless, the landlord later took action to make safe the fence, as evidenced in its repair logs dated 28 November and 4 December 2021. This was following intervention from this Service after the resident had raised safety concerns, when her case was referred to us for investigation. This is inappropriate, as it exacerbated her concerns and frustration. It is expected that the landlord should have done all that it could have to proactively ensured that a health and safety inspection was carried out without intervention from this Service.
  6. However, further scheduled work to make the fence safe after storm damage, following the landlord’s inspection of this on 4 January 2022, did not take place. The notes on the repair log showed that its staff did not complete this as it was a dividing fence. This is of concern, as it is reasonable for the resident to expect the landlord to take action to put things right by making the fence safe to address concerns raised about safety.
  7. In accordance with the landlord’s compensation policy, it has discretion to offer goodwill gesture payments to recognise poor service. It is, therefore, reasonable that it should have offered compensation in recognition of its failure to carry out a health and safety inspection of the fence at the time that the resident reported this in early 2021. This is because she was caused distress, inconvenience, time, and trouble by having to pursue the landlord for responses to this. It has, therefore, been ordered below to pay the resident compensation of £150. This is in line with this Service’s remedies guidance’s recommendation for considerable failures that have not had a permanent impact on the resident, including her having to repeatedly chase responses for an inspection from it.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s reports about repairs to her dividing fence.

Orders and recommendation

  1. The landlord is ordered to:
    1. Pay the resident £150 compensation within four weeks to recognise the distress, inconvenience, time, and trouble caused to her by its failure to carry out a health and safety inspection of her dividing fence.
    2. Contact the resident within four weeks in order to arrange an inspection of and to complete any outstanding works to make safe her dividing fence.
  2. It is recommended that the landlord reviews its staff’s training needs with regard to their application of its repairs and maintenance guidance in relation to health and safety inspections of unsafe garden fixtures in order to seek to prevent a recurrence of its failings in the resident’s case.
  3. The landlord shall contact this Service within four weeks to confirm that it has complied with the above orders and whether it will follow the above recommendation.