Notting Hill Genesis (202123670)

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REPORT

COMPLAINT 202123670

Notting Hill Genesis

23 June 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 garden fence repairs.

Background

  1. The resident is an assured tenant of the landlord. The property is a semi-detached house with a garden. On 25 February 2020, the resident reported to the landlord that her garden fence had been damaged. A repair order was raised and on 4 March 2020, the landlord’s contractor attended the property. The contractor advised in its report that the panels were beyond repair and the fence needed replacing. After viewing the report, the landlord identified that the fence was on the right-hand side (if viewing the property from the front) of the resident’s property and explained that this part of the fence was not the landlord’s responsibility to repair.
  2. The resident was unhappy with this, as she stated that the landlord had repaired the fence before. The landlord looked further into the issue and checked a boundary map of the property. The map was not clear as to who was liable for the fence and therefore the landlord did not accept responsibility. It stated that it was only responsible for the left side of the fence. On 1 September 2020, the resident asked again to have the fence replaced. The request was denied again. However, after correspondence between the resident and the landlord, and following a visit on 24 February 2021, the decision was made to replace the fence. This was relayed to the resident in the landlord’s stage one response (26 February 2021). It also offered £50 as a gesture of goodwill for the ‘overall delay’ in resolving the matter. After delays in completing the work, it was finished in September 2021. Just previously, on 8 September 2021, the resident advised that a tree had fallen onto the rear fence and this needed fixing also. A job was raised for this.
  3. The resident requested the escalation of her complaint on 25 October 2021, explaining that she was dissatisfied with how long it had taken to fix the right-sided fence, and that the rear fence was still not fixed. The landlord issued its final response on 12 November 2021. It apologised for the delay and inconvenience caused and offered a total of £350 compensation. This was in acknowledgement of the delay and inconvenience caused, and also as a gesture of goodwill for the effort of the resident liaising with the landlord. This was later increased to an offer of £600 on 6 December 2021 following further correspondence with the resident. This was broken down to £350 for the delay in repairing the fence and £250 for the inconvenience of pursuing the complaint. The resident remained dissatisfied with the offer as she wanted a payment of £5,389. Additionally, the resident wanted the landlord to confirm who the fence belonged to.

Assessment and findings

Policies & Procedures

  1. Section 5.0 of the landlord’s Repairs Policy states that routine repairs are to be ‘completed within 20 working days from date of report’.
  2. Appendix A of the Repairs Policy states that the landlord is responsible for repairing fences ‘except where they are the neighbouring property’s responsibility’.
  3. The landlord’s Complaints and Compliments Policy states that at stage one, ‘[the resident’s] complaint will be handled by [the resident’s] local officer’.
  4. The Complaints and Compliments Policy states that the landlord should provide a ‘formal written response within 20 working days’ for a resident’s stage two complaint.
  5. Section 4.0 of the landlord’s Compensation and Goodwill Gestures Policy states that goodwill gestures ‘will not exceed £50 in value. In exceptional circumstances, these can be made alongside compensatory payments’.
  6. Section 5.0 of the landlord’s Compensation and Goodwill Gestures Policy states that ‘Where [the resident experienced] distress or inconvenience following a service failure [the landlord] can make a discretionary payment of up to £250’.
  7. Section 2(4) of the tenancy agreement states that it is the landlord’s obligation to ‘maintain in a safe condition all fences’.

Scope of investigation

  1. The resident has said that the landlord’s handling of the garden fence repair had impacted her mental health and wellbeing. This Service cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing in relation to a member landlord’s acts or omissions. This would be more usually dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. This is in accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says that the Ombudsman will not investigate complaints which concern maters 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.

The landlord’s handling of garden fence repairs

  1. Following a visit to the property by the landlord’s contractor on 4 March 2020, with an intent to inspect the broken fence, the landlord was made aware that it may not be responsible for the repair as it was believed by the landlord’s repairs team that it was the neighbour’s responsibility. The landlord believed it was only responsible for the left side of the fence and that the right side of the fence was the neighbour’s responsibility. As fence disputes can often be complicated, it was reasonable for the landlord to conduct an investigation into its obligations and repair responsibilities.
  2. Appendix A of the landlord’s Repairs Policy states that the landlord is responsible for repairing fences ‘except where they are the neighbouring property’s responsibility’. Additionally, Section 2(4) of the tenancy agreement states that it is the landlord’s obligation to ‘maintain in a safe condition all fences’. However, the term ‘all fences’ is only in regard to fences owned and within the boundary lines of the landlord. The dispute was not whether the fence needed repairing, but whether the fence was owned by the landlord, and thereby within its jurisdiction to repair. As the responsibility for the fence was unclear, it was fair and reasonable for the landlord to look further into the issue.
  3. The landlord investigated its responsibility to repair the fence by checking the boundary map of the property and also the land registry. Although the investigation took some time, it was appropriate for the landlord to do so as it would not be expected to make the repair if it was not liable. As the contractor’s report stated that the fence needed replacing rather than just repairing, it would be unfair to the landlord for it to incur the cost if it was not its responsibility.
  4. As seen from the landlord’s internal emails throughout its investigation into the matter, multiple agents and departments within the landlord’s staff reviewed the boundary map but were unable to determine who had ownership of the fence. Additionally, even though the resident’s neighbour insisted that it was the landlord’s responsibility, neither the neighbour or her own landlord were able to prove this. On 20 August 2020, the landlord informed the resident that it was not responsible to repair the fence and that ‘the general rule of thumb’ was that the landlord was only responsible for the left side and rear of the fence. Due to the lack of evidence, and the lack of clarity from the boundary map, it was reasonable for the landlord to determine that it was not responsible for the repair.
  5. On 7 October 2020, unsatisfied with the landlord’s verdict, the resident contacted the landlord again and asked for dates of when that part of the fence had been repaired in the past. The resident insisted that the landlord had ‘always’ repaired that side of the fence. The landlord advised that since it had merged with another housing association, a lot of historical records were not on file. However, the landlord did confirm that work had been carried out in 2017. It should also be noted that the landlord did advise the resident during a call on 19 March 2020 that although repairs had been carried out in the past, since the merging of the two associations, the landlord worked under different guidelines.
  6. Even though the landlord had determined that it was not liable for the fence, it did agree to a 50/50 split of the cost with the neighbour’s landlord to repair the fence, if it was willing to. Although this offer was declined by the neighbour’s landlord as confirmed in an email on 16 February 2021, it was more than reasonable for the landlord to offer this solution. The landlord’s offer of a 50/50 split showed that it held a proactive stance on resolving the issue for the resident, and that it was willing to be cooperative in achieving a resolution. Additionally, as the responsibility of the fence could not be determined by either party, it was reasonable for the landlord to expect the neighbour’s landlord to cover the other 50% of the costs to maintain/repair the fence.
  7. Following internal legal advice, the landlord attended the property to assess the fence on 24 February 2021. After inspecting the fence, it advised that it should do something about the repair.
  8. The landlord’s stage one response was issued on 26 February 2021. The landlord apologised to the resident for the inconvenience caused and offered a goodwill gesture of £50 for the delay in resolving the matter. This was in line with the landlord’s Compensation and Goodwill Gesture Policy as it states in section 4.0 that goodwill gestures ‘will not exceed £50 in value’. Additionally, it confirmed with the resident that it was willing to carry out the repair. Given that the landlord had not been deemed liable for the repair, it is commendable that the landlord agreed to do it. By agreeing to do so, the landlord had gone above and beyond for the resident, and had exceeded its repair responsibilities.
  9. Although it was positive that the landlord had agreed to repair the fence, there was service failure by the way in which it approached this. Following the landlord’s confirmation that it would make the repair, there were significant delays in finishing the work. The fence repair was finally completed on 17 September 2021, almost seven months after the landlord’s initial agreement to do the work, and more than a year and a half after the resident’s initial reports. Although many of the effects of COVID lockdowns and measures may have had an impact on the landlord’s ability to sufficiently carry out work, it was not specified at any point by the landlord that it was a factor in the delay. Nonetheless, this has been taken into consideration as the Ombudsman appreciates the impact COVID had on landlord’s service delivery, particularly in relation to non-essential repair works such as this. It is also of concern that there was an apparent lack of communication with the resident during this time, including failures to update the resident regarding the delays and progress in fixing the fence.
  10. It is important for a landlord to keep its tenants informed regarding repairs to a property as this helps to maintain the tenant/landlord relationship and provides reassurance. If the resident trusts the landlord to keep her informed about the work, and to finish the work within a reasonable time and to a good standard, it can prevent further stress and inconvenience for the resident. This should always be the priority for the landlord.
  11. The resident stated in her stage two escalation request (25 October 2021) that she had not been informed of outcomes after visits, and that she had ‘continuously’ had to chase the landlord to find out information. The resident said that this had caused her ‘significant inconvenience’. She also stated that she would like £5,389 in compensation. This was calculated to be 50% of the rent she had paid for the time period in which the fence was in disrepair. The resident’s concerns are appreciated, including her evident frustration in pursuing the matter over an extended period. However, significant awards of compensation such as that requested by the resident would typically be paid out by landlords in cases where the property itself was significantly affected, with all or large parts of it rendered uninhabitable.
  12. This Service’s remedies guidance states that examples of service failure that include the resident ‘repeatedly having to chase responses’ and ‘failure over a considerable period of time to act in accordance with a policy – for example to address repairs’ would warrant a payment of between £250 to £700. The landlord’s revised offer of compensation was in line with this guidance. On 12 November 2021, the landlord issued its final response. The landlord offered £250 in recognition of the delay and inconvenience caused and also offered a further £100 as a gesture of goodwill. The total of £350 was a reasonable offer to the resident regarding the guidance set out by this Service, the severity of the impact on the resident as a result of the service failure, and the length of time that the issue remained unresolved.
  13. Regarding the delay in repair, the landlord’s final response (12 November 2021) noted that it had been let down by its contractors in trying to finalise and complete the work. Although this may be the case, it is still the landlord’s responsibility to manage its contractors and to assign work to the correct contractors who have the capability to carry out the work. The landlord noted that on 15 April 2021, the job had to be issued to a different contractor as the current contractor was unable to make fence repairs. The landlord was advised that the job required a fencing contractor to complete the work. Mistakes such as this are avoidable, and had the landlord issued the work to the correct contractor in the first place, the delay may have been significantly shortened.
  14. Additionally, at times, the work was only partially completed and then left for a period of time without communication with the resident. For example, on 31 July 2021, contractors attended to replace several panels in the fence, but it was left incomplete. The contractors advised the landlord that additional works needed to be carried out. The resident contacted the landlord on 4 August 2021 to enquire about the unfinished work as nothing had been communicated to her. Eventually, on 19 August 2021 the follow–up work was raised.
  15. The delay in raising the new work order was unacceptable as the landlord had been made aware of the need for additional work before the resident had contacted it. The order should have been raised in the days following the contractor’s advice that more work was needed. Additionally, no explanation was given as to why the order took two weeks to be raised. Given that the work had already been delayed since February, the landlord should have prioritised the completion of the repairs.
  16. Prior to the completion of the work, the resident advised the landlord on 8 September 2021, that a tree had fallen on to the rear fence of the property. Once the substantive fence repair issue had been completed on 17 September 2021, the landlord raised a job to fix the rear fence. This job was raised on 20 September 2021 but was cancelled due to the need for the tree to be removed in order to carry out the repair. At the time of the resident’s stage two complaint, the repair to the rear fence had not been completed, and the landlord has since not made clear whether the work remains outstanding.
  17. Following the landlord’s final response, the resident contacted the landlord on 3 December 2021 to express her dissatisfaction at the outcome and the landlord’s decision. The resident did not believe that the compensation offered was a true reflection of the delay in repair, stress, and inconvenience caused. The resident noted that due to her ill health and disability, her garden had played an important part of her mental health wellbeing.
  18. The landlord apologised that the resident was not happy with the response and acknowledged that the fence repair had taken ‘unusually long’. The landlord increased the compensation offer further. It offered £350 for the delay in repairing the fence, and £250 for the inconvenience and effort of pursuing the complaint. The total offer of £600 compensation constitutes reasonable redress by the landlord. As well as completing the work when it was not necessarily its responsibility to do so, it acknowledged its service failure, apologised and offered a significant payment in recognition of the resident’s expressed concerns. The offer of compensation is on the high end of what this Service would expect a landlord to pay given the extent of the service failure. Additionally, the landlord had gone beyond its own compensation policy which states in section 5.0 that ‘Where [the resident experienced] distress or inconvenience following a service failure [the landlord] can make a discretionary payment of up to £250.

Determination

  1. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Orders and recommendations

Recommendations

  1. It is recommended that the landlord conducts a review of its communication process in order to keep residents informed of any potential developments or delays regarding repairs/works to their property.