Midland Heart Limited (202205442)

REPORT

COMPLAINT 202205442

Midland Heart Limited

23 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

1. The complaint is about the landlord’s decision not to renew the resident’s garden fence.

Background

2. The resident is a tenant of the landlord and occupies a house (the property). The property’s rear garden shares a boundary with her neighbour, who is also a tenant of the landlord.
3. The resident contacted the landlord in June and October 2021 to request that it replace her garden fencing as it had fallen down. It advised her that maintenance of garden fences was a resident’s responsibility.
4. The resident raised a complaint with the landlord on 15 June 2022 as she was unhappy that the landlord had refused her repeated requests to replace her fence. She said that she could not afford to replace the fence herself. The resident highlighted that the damaged fence posed a hazard to her child who could access neighbouring properties and get into the street. She also pointed out that the landlord had replaced a fence for another of her neighbours after they had persistently requested it.
5. The landlord’s stage one complaint response, on 30 June 2022, relayed that it had inspected the gardens for hazards and was satisfied that the gate leading to the street was secure. It reiterated that the upkeep of the garden fence was the resident’s responsibility and confirmed it had referred the resident to a money advice service for support with her finances. The landlord said it could not comment on the circumstances of the other property the resident had mentioned, which it said it did not own.
6. The resident escalated her complaint, on 5 July 2022, as she said the landlord had referred to the wrong neighbour in its response. She said that her security concerns lay with her next door but one neighbour’s garden and gate, whose garden could be accessed by her child as there was another broken fence between them. The resident said that, in any event, the landlord would need to replace the fence when a new tenant moved in.
7. The landlord’s final response to the resident, on 1 August 2022, clarified both parties repairing responsibility for garden fencing. It offered £35 compensation to her for quoting the wrong house number in its stage one response and confirmed that the fence replacement at the neighbouring property had been carried out in error. The resident responded to this on 3 August 2022 to say that she remained dissatisfied with its decision not to replace the fencing and said that her financial circumstances had meant she could not eat. The landlord replied the next day to offer low-cost fencing alternatives and refer her again to a money advice service due to her financial circumstances.

Assessment and findings

8. The landlord’s tenancy agreement with the resident forms the legal contract between the parties which defines their obligations. This agreement confirms that it is the resident’s responsibility to “keep boundary fences in the garden of the Property (if any) in good repair”. This, therefore, means that there was no legal obligation on the landlord to renew the resident’s boundary fence.
9. The resident highlighted that the landlord had renewed fencing for a neighbouring tenant. This alone did not change the landlord’s obligations towards the resident. The landlord explained that it had renewed the fencing for another tenant in error. When the landlord has made an error which benefits one resident, it is not obliged to repeat this error to the benefit of other residents. This would not alter the terms of the tenancy agreement which places the responsibility on the resident to maintain the fence. The landlord, therefore responded reasonably by stating that this error did not change the repairing responsibility for the resident’s fence.
10. The landlord appropriately confirmed this in both its stage one and final stage complaints responses. It is concerning to note that the collapsed boundary fence was creating a potential security risk for the resident’s household. However, the landlord responded reasonably to this by inspecting the resident’s and neighbour’s properties to identify hazards. This demonstrated that it took the resident’s concerns seriously and made reasonable efforts to identify and mitigate any potential danger to the resident or her family. It is noted that the resident was concerned with her child accessing her next door but one neighbour’s garden. The landlord’s records indicated that this was not its property and therefore, it had no control over the condition of that property.
11. The landlord also responded reasonably when the resident made it aware that her financial difficulties prevented her from repairing the fence. It made two referrals to the money advice service; once when she said that she could not afford to repair the fence and again when she said her financial difficulties meant she was skipping meals. The Ombudsman understands that the resident has since been referred to the local authority’s household support fund. This again demonstrated that the landlord paid due consideration to the resident’s circumstances and made reasonable efforts to support her.
12. While it was evident that the fence divided two properties occupied by the landlord’s tenants, the evidence it submitted to the Ombudsman did not explicitly clarify that the resident was solely responsible for the maintenance of that specific boundary fence. While it was not disputed that the fence was the resident’s, it may have been helpful for the landlord to clarify whether it was specifically the resident or her neighbour who was responsible for that boundary fence, or whether it was a shared responsibility. Whether or not it was the resident’s fence to maintain or her neighbour’s, it remained that the landlord was within its rights not to renew the fence, as stated in the tenancy agreement. However, confirmation of which resident was responsible for the upkeep of the fence may have provided clarity to the resident on her options, such as perhaps making an arrangement with her neighbour.
13. The landlord reasonably acknowledged it error in its stage one complaint response which referred to an incorrect property, and offered the resident £35 compensation for this. Given that the error may have caused inconvenience to her in escalating the complaint, but did not affect the overall outcome for her, this was a reasonable amount to recognise the likely inconvenience she experienced.

Determination

14. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its decision not to renew the resident’s garden fence.

Recommendations

15. The landlord should:
    1. Write to the resident to confirm if she is solely responsible for the maintenance of the fence or if she shares responsibility for this with her neighbour.

2. Continue to support the resident and signpost her to appropriate support agencies if she continues to experience concerns about hazards in the garden or her financial situation.