Notting Hill Genesis (202009202)

REPORT

COMPLAINT 202009202

Notting Hill Genesis

19 April 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 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 condition of the resident’s kitchen.
2. The landlord’s handling of repairs to the resident’s fence.

Background and summary of events

The resident is an assured tenant of the landlord. The resident’s garden adjoins on both sides to neighbouring gardens, separated by boundary fencing.
In October 2019 the resident contacted the landlord in relation to the condition of her kitchen having discussed this in previous years. She asked the landlord to confirm when her kitchen would be upgraded. Further conversations took place into November 2019 and the landlord confirmed that the resident’s kitchen had been assessed and was due to be reviewed in two years’ time in the 2021-22 financial year, as it was not in a poor condition.
The resident contacted the landlord in October 2019 to advise that her neighbour on the left side of her garden was having new boundary fences erected. She advised that she had not been made aware that this work was due to take place and that there had been no fencing on the left side of her garden for two nights, leaving her property vulnerable. The landlord responded at the time and advised that it was carrying out work to renew her neighbour’s fences following damage from a bamboo plant in the resident’s garden. It had asked its contractor to ensure that no damage was caused to the resident’s garden and apologised for not notifying the resident of this work.
On 31 October 2019 the resident expressed dissatisfaction that she had not been told that this work to her boundary fence was due to take place. She was also unhappy that the fence between her garden and her neighbour on the right–hand side was in poor condition and had not been replaced despite her requests. She also advised that the protective covers for her outdoor dining set and plants had been moved by the landlord’s contractors during the works.
On 4 November 2019 the landlord emailed the resident and again apologised that she had not been notified of the works due to take place. It advised it would communicate with its contractors in relation to the protective covers being moved and asked the resident to provide photographs of the damaged fence on the right side of her garden so that it could look into this matter further. It confirmed that it had raised for a repair to take place and would look to identify any issues with the fencing.
On 7 November 2019 the landlord’s contractors attended the property and confirmed that the damaged fence would need to be replaced. A temporary fix was put in place at this stage.
Contractors attended the property on 22 November 2019 with a view to replace the fence panels. This job was cancelled on the day by the resident as the colour of the new panels did not match her current fence and she wanted a fence of the same height as her neighbour’s.
The resident emailed the landlord on 25 November 2019 to confirm her request for the new fence to match the fence which had recently been erected on the left side of her garden. The landlord responded and advised that it would query this internally.
On 29 November 2019 the landlord confirmed that the full fence did not require renewal and only the damaged panels would be renewed. The resident responded the same day and asked why this decision had changed as she had been previously advised that the full whole fence needed to be replaced. The landlord confirmed that it would seek full justification from its contractors and update the resident as soon as possible.
The landlord confirmed on 11 December 2019 that the fence panels needed to be changed but the resident had requested that her fence be increased in height in order to align with the existing fence. The landlord confirmed that increasing the height of the fence was not part of its repair work. If the fence was damaged, then it would review this. The resident responded the same day and asked for a manager’s details as she wished to take the matter further. The landlord then sent further information about its complaints procedure to the resident.
On 8 January 2020 the landlord asked the resident to provide a photo of the fence with the repair works she required in full detail.
The Ombudsman has not seen evidence of any further correspondence between the resident and the landlord concerning the fence until August 2020, as set out below.
The resident emailed the landlord on 17 July 2020 and advised that one of her kitchen cupboard doors had fallen off onto her foot and that this had broken two of her toes. She advised that she had spent a number of years requesting a new kitchen and had either been ignored or told that the kitchen was not in a poor condition. She asked for the kitchen to be renewed as soon as possible as she was worried that other sections of her kitchen would fall and cause injuries.
The landlord emailed the resident on 17 July 2020 and apologised for what had happened. It explained that the resident’s kitchen was due for a review in 2021, although there may be a delay to this due to Covid-19. It asked the resident if, in the meantime, she would like a repair arranged for her kitchen unit doors. The resident responded on the same day and confirmed that she wanted her units to be repaired as there were other units which were rotten. She explained that it was the cupboard door with only one hinge which had fallen. She asked for more information about the landlord’s policies in relation to kitchen renewals.
The landlord emailed the resident on 20 July 2020 and advised that it had raised a repair in relation to her kitchen unit doors and hinges. The landlord booked an appointment to repair the resident’s kitchen unit doors and hinges on 13 August 2020.
The resident emailed the landlord on 7 August 2020 to request an update on when her right-side garden fence was going to be repaired. The landlord advised that it had asked its contractor to attend, repair the fence, and report back any further works needed. The resident expressed dissatisfaction that this needed to be done as this review had already been completed. She maintained her position that the entire fence needed to be replaced and she wanted a fence the same height as her neighbour’s replacement fence. The landlord has confirmed that the fence was reviewed on 10 August 2020 and was not in need of a full replacement.
On 18 August 2020 the resident received confirmation that an appointment had been arranged for 24 August 2020. The resident emailed the landlord the same day to confirm the reason for this appointment.
The landlord emailed the resident on 19 August 2020 and advised that the appointment had been arranged to attend and repair the fence. It noted that it would only carry out a like-for-like renewal if the fence required this. It confirmed that if the resident wished to raise the height of her fence, then she would need to complete a home improvement form and undertake this work herself after obtaining permission from the landlord.
The resident raised two separate complaints with the landlord on 24 August 2020. The first was in relation to the fence in her garden: she was unhappy that her neighbour’s fence had been replaced at no cost to them and that if she wanted the same type of fencing, she would need to organise and pay for this herself. She argued that her neighbour received preferential treatment from the landlord and asked for an explanation as to why this was the case.
Her second complaint related to the condition of her kitchen. She advised that a cupboard door had fallen off in her kitchen on two separate occasions and she expressed dissatisfaction that the landlord had previously advised her kitchen was ‘not in a poor condition’. She said that her previous request for her kitchen to be replaced had been denied by the landlord, but no one had visited the property to inspect it. She said it was not good enough that her kitchen was due to be renewed in the 2021 period and wanted this done as soon as possible.
The landlord emailed the resident on 24 August 2020 to acknowledge her complaints and confirmed that she would receive a response within ten working days.
The landlord’s records show that a repair for the kitchen unit cupboard was raised on 25 August 2020 and an appointment took place on 4 September 2020. The contractor refitted the base unit doors with new hinges and no other repairs were reported.
The landlord provided its stage one complaint response to the resident on 4 September 2020 and advised the following:
1. It confirmed the details of the resident’s initial complaint and explained that it could not disclose the reason why the neighbour had been provided with a fence of an increased height but assured her that any home improvements including extending the height of a fence needed to be approved by the landlord.
2. It confirmed that on 22 November 2019 it carried out an appointment to renew the resident’s fence, although this did not go ahead as the resident had refused the work to take place. On 16 December 2019 it submitted a request to review the condition of the fence and the request for a height extension. On 10 August 2020 this was reviewed, and it confirmed that if the resident wished to increase the height of her fence, she would need to carry this out herself through the landlord’s home improvement process.
3. It confirmed that it could send the resident a form if she wished to raise the height of her fence. It apologised that the resident felt she was being discriminated against and advised that it took this matter seriously. It advised that it treated all residents equally and residents have different needs. It assured her that it made its decisions in line with its policies.
4. In relation to the resident’s second complaint related to the condition of her kitchen, the landlord advised the resident to seek medical advice should her injury worsen. It confirmed that it had arranged an appointment to take place that day in order to secure the kitchen unit doors.
5. It had queried why the resident’s kitchen did not require renewal on 21 November 2019 and confirmed that the surveyor had advised that the kitchen was in a fair, but not poor, condition and did not meet the threshold for renewal. The surveyor advised that the kitchen would be reviewed in two years and if the condition deteriorated further then it would recommend for the kitchen to be renewed. It noted that even if a kitchen was recommended for renewal, it could not guarantee that this would be done straightaway.
6. The landlord advised that due to the impact of Covid-19, its yearly kitchen and bathroom programme had been delayed and some of the properties on its current programme were pushed back. It had requested for the resident’s kitchen to be included in its 2021 renewal programme; in the meantime, it would carry out any repairs needed in order to maintain the kitchen’s condition.
The resident emailed the landlord on 7 September 2020 as she remained dissatisfied, and explained the following:
1. She advised that she did not feel that Data Protection guidelines should be used as an excuse to explain why the landlord would provide a taller garden fence to one tenant with no extra cost to the tenant and advise a different tenant that if they wanted a taller garden fence, they would need to purchase this and gain consent from the landlord. She did not understand why the landlord would provide one type of fence to one tenant and not to another and accused the landlord of being discriminatory. She also said that this was not treating all tenants equally.
2. She advised that the landlord had failed to mention that the resident had called whilst the contractors were at the property on 22 November 2019 and advised that the height and colour of the fence that was due to be installed did not match the other panels on the left of her garden. The landlord had advised her to ask the contractors not to do the work and that it would look into the matter. She needed to follow up on this matter as she had not received a response and it had set up another repair review of the fence. She had advised that this had already been completed and the landlord had advised that if the resident wanted a taller fence, she would need to pay for this herself. She confirmed that she did not refuse to have a new fence.
3. She explained that a number of appointments for the fence had been made and then cancelled. The last appointment which was cancelled was for 4 September 2020. She advised that she wanted the fence to be the same colour as the other fences but no longer wanted the stress associated with seeking a taller fence.
4. She advised that she had sought medical advice about her injured ankle from a nurse and had not made the treatment up. She asked when a surveyor had come to her property to review her kitchen as she had not met the individual the landlord had mentioned.
5. She asked the landlord to provide further information about the threshold for a kitchen renewal. She had been advised that this had previously been 10 years, but she had lived in the property for 25 years and the kitchen had never been reviewed or renewed. She acknowledged that her kitchen was due to be reviewed in the 2021 programme but explained that due to the injuries she had sustained, there was a need for prevention before further injuries occurred.
The landlord responded on 9 September 2020 and asked the resident what the ideal outcome to her complaint would be. It also asked the resident who she would like to review the complaint. The resident responded the following day and advised that she had already provided this and did not mind who reviewed the complaint as she had lost confidence in the landlord.
The landlord acknowledged the resident’s escalation request on 11 September 2020 and confirmed that the resident should receive a response by 8 October 2020.
On 8 October 2020 the landlord provided its stage two complaint response to the resident and advised the following:
1. It confirmed that it had acted in line with its repairs procedure and that it did not replace fences with a higher fence in normal circumstances as part of its repair obligations. It confirmed that the decision to replace the neighbour’s fence was a discretionary decision outside of its normal obligations. It was not able to disclose the reason for this due to data protection regulations.
2. It confirmed that it could ask its contractors to colour match the panels and install fencing of the same height as the current panels as it understood that having a fence of varying height and colour would be unsightly. The landlord confirmed that it could proceed to repair the fence panels once it had received confirmation that the resident would like to go ahead with the repair.
3. In relation to the resident’s kitchen, it confirmed that it had followed the correct procedure for kitchen replacement considerations. It understood that the resident was not happy as no one had attended the property to assess her kitchen and explained that this was carried out via a desktop assessment which was the landlord’s normal practice. It had completed an assessment in late 2019 and added the resident’s kitchen to the 2021-22 replacement programme.
4. The landlord confirmed that it had followed its repairs procedure and a repair to the kitchen unit doors had taken place on 4 September 2020. Due to the incidents that had been reported, it would arrange for a surveyor to attend the property to assess the kitchen in person and inspect the units. It confirmed that it would arrange to carry out temporary repairs prior to the kitchen being replaced if needed.
The resident responded to the landlord on 14 October 2020 and expressed further dissatisfaction about the way these matters had been handled. She advised that another cupboard door had fallen off but that she had not sustained any injury on this occasion. She maintained her position that she wanted a higher fence erected and believed her kitchen to be in need of renewal.
The landlord raised a repair for the kitchen unit door and asked for the kitchen to be inspected due to the number of repairs which had been raised in relation to the kitchen historically. A repair took place on 16 October 2020 and the kitchen was reviewed on 4 November 2020. The landlord has advised this Service that it has reviewed the photos of the kitchen taken following the repair works to the units and did not feel a survey was needed at this stage as the kitchen appeared to be in a fair condition. It has confirmed that the kitchen will be considered in the 2021 programme and the resident would be contacted during the next financial year to arrange an inspection to determine if a replacement is required at this time.
The landlord’s records show that some works were completed on the fence on 26 October 2020. On 4 November 2020 the fence was reviewed, and the contractor found no damage; they noted that the resident still wished to have a higher fence erected.

Assessment and findings

Scope of investigation

The resident has advised that she had been injured by the falling kitchen unit doors. The Ombudsman does not doubt the resident’s comments regarding her health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. The resident therefore may wish to seek independent legal advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. It is noted that the landlord has said it has referred the resident to its liability insurers but it has not received a claim from the resident to date.
The resident has also accused the landlord of being discriminatory by not providing her with a fence the same height as her neighbour’s. This Service cannot determine whether discrimination has taken place, as this is a legal term which would be better suited to a court to decide. This is in accordance with paragraph 39 (i) of the Housing Ombudsman Scheme which states that we will not investigate matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. However, we can look at whether the landlord responded fairly and appropriately to the resident’s request for a taller fence and the subsequent complaint handling in line with its obligations.

Kitchen

This Service has a very specific role in considering whether a landlord has met its obligations to the resident in line with any relevant policies and procedures and taken reasonable steps to resolve the complaint. It is not the role of this Service to decide whether the kitchen at the property requires replacement, but rather to determine whether the landlord responded to the resident’s reports of problems with the kitchen in a reasonable manner.
The landlord’s kitchen and bathroom renewal procedure states that a provisional programme of works would be created based on the data held about a property including the age of the kitchen or bathroom. An assessment would then take place to determine whether a kitchen or bathroom qualified for replacement. The landlord should verify the condition of the kitchen and bathroom either by a desktop assessment or by visiting the property. This would then determine whether a kitchen or bathroom should be added to the renewal programme in future years. The landlord’s Repairs Policy states that routine (non-emergency) repairs should be completed within 20 working days of the report.
The landlord has confirmed that a desktop assessment took place in 2019 which found that the resident’s kitchen was in a fair and not too poor condition. This led to the resident’s kitchen being added to its planned kitchen renewal programme for the 2021-22 financial year. This desktop assessment was in line with the landlord’s process for determining which kitchens should be considered for renewal and was reasonable at this stage.
Following this the resident had asked about the renewal of her kitchen and had reported that multiple kitchen unit doors had become loose and fallen off, causing injury on two separate occasions. The landlord has acted appropriately and in line with its repair obligations on each occasion and had repaired each kitchen unit within 20 working days of receiving a report.
The resident argued that due to the poor condition of her kitchen it should be replaced sooner. The landlord has acted fairly by confirming its obligations to repair the existing structure where needed until the 2021 renewal programme. It has also inspected the kitchen and sought advice from its qualified staff to determine whether the kitchen should be replaced sooner, outside of this programme of works. The landlord has concluded that the kitchen, following a recent cupboard repair, did not need to be renewed urgently, outside of its programme of planned works. This was reasonable as the landlord has relied on the findings of its qualified staff and contractors when making this decision which it is entitled to do. In view of this, it is recommended that the landlord includes the resident’s kitchen on its 2021 replacement programme and keeps the resident updated on any planned works as agreed. It is accepted that there may be delays to the landlord’s replacement programme in view of restrictions due to Covid19.

Fencing

The landlord’s Repairs Policy confirms that the landlord would be responsible for repairs needed to garden walls and fences. As such, any repairs to these should be carried out within 20 working days in line with the landlord’s obligations for routine repairs. The Tenancy Agreement confirms that the resident is not to make any alterations or additions to any part of the property without first obtaining written permission from the landlord, which should not be unreasonably withheld.
Once the landlord received photos of the damaged fence on 4 November 2019, it arranged for works to proceed. The contractors attended on 7 November 2019 and the fence panels were due to be replaced on 22 November 2019 which was within the landlord’s 20 working day timescale for routine repairs. The repair was not carried out on the day due to the resident expressing concern that the fence panels chosen to replace her fence were not appropriate and did not match the height of her neighbour’s newly installed fence. She expressed further concern that the landlord had not acted fairly or treated her equally in stating that if she wanted a different fence, she would need to arrange this herself, despite providing this for her neighbour at no extra charge.
It is clear that this matter has caused the resident some distress and it is understandable that the resident may feel this decision to be unfair. However, the landlord has provided this Service with information concerning the reasons why it erected a higher fence in the neighbour’s garden. These details cannot be disclosed to the resident due to data protection guidelines which mean the Ombudsman is unable to share personal information about other residents without their consent. The landlord has provided a satisfactory explanation to the Ombudsman concerning the reasons why it did not agree to replace the resident’s fence with a similar, higher fence, as the resident’s circumstances were different from their neighbour’s in this regard.
In line with its obligations for maintaining the property, as set out in the tenancy agreement, the landlord would only be obliged to replace a fence with a like-for-like replacement. It would not be obliged to carry out improvements to the current fencing in place. It was therefore reasonable for the landlord to replace the fence with 4ft panels as these were the same as the original panels, which had been damaged. The landlord would not be obliged to place a higher fence as this would be considered an improvement. The landlord also advised that it would take steps to colour-match the panels with the current fence to prevent an unsightly appearance following the resident’s concerns about the colour, which was a reasonable response under the circumstances.
There has been a delay in replacing the panels on the resident’s fence for multiple reasons. The main aspect of this delay has been the discrepancy over the type of fencing due to be installed. The landlord has explained its position to the resident on several occasions throughout December 2019 and the associated complaints process. Ultimately, the resident is entitled to refuse the works if she would prefer a higher fence, although the landlord is not obliged to provide this. A further delay is likely to have occurred in regard to replacing the fence panels and communication from March 2020 due to the impact of Covid-19, where it was reasonable for the landlord to prioritise emergency repairs only, in line with government guidance at the time. Any delay at this stage would have been outside of the landlord’s control.
In summary, the landlord’s choice to replace the resident’s current fence panels with similar 4ft panels was reasonable as the landlord would only be obliged to carry out a like-for-like replacement on the current fencing. As the landlord is responsible for repairing and maintaining the boundary fences in the resident’s garden, the landlord has discretion on the style of fencing supplied. The Ombudsman notes the resident’s comments about the choice of fencing, although we have not been provided with supporting evidence to show that the 4ft replacement fencing is unsafe or unusable. If the resident would prefer different fencing, she could undertake this change herself as the landlord is not obliged to do so. The resident should discuss any proposed change to the fencing with the landlord in advance, in line with her obligations under the tenancy agreement to seek permission before carrying out any improvements to the property.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of repairs to the resident’s kitchen.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of repairs to the resident’s fence.

Reasons

The landlord has acted appropriately by completing repairs needed to the resident’s kitchen within its published timescales for routine repairs and referring the resident to its insurers if she wished to make a compensation claim in relation to the injuries she had sustained. The landlord has followed its process in relation to adding the resident’s kitchen to the proposed plan of renewal works in the 2021-22 financial year and has acted appropriately by completing a further investigation following multiple repair issues affecting the kitchen. This investigation did not find any evidence to show that the kitchen needed a replacement more urgently. The landlord would therefore not be obliged to replace the resident’s kitchen at an earlier date.
The landlord has taken steps to repair the resident’s fence within its published timescales. There has been a delay to this work as there remains a dispute about the type of fence supplied by the landlord as a replacement. The landlord is unable to share information as to why it replaced the neighbour’s fence with a taller fence, although the Ombudsman is satisfied with the reasons provided and can confirm that the circumstances are different in the resident’s case. The landlord would not be obliged to make improvements to the existing fence as part of its repair works and therefore its decision to replace the fence panels with ones of a similar size and colour is reasonable.

Orders and recommendations

It is recommended that the landlord includes the resident’s kitchen on its 2021 replacement programme and keeps the resident updated on any planned works as agreed.