Orbit Group Limited (202211662)

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REPORT

COMPLAINT 202211662

Orbit Group Limited

10 January 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 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 of broken fence posts.

Background

  1. The resident is a tenant of the landlord of a mid-terrace house.
  2. The resident reported to the landlord on 8 December 2021 that her garden fence was broken and had fallen in the wind, being propped up as this was in danger of collapse. Its operative attended the property on 5 January 2022 and found that two fence posts were rotten but that the fence panels were fine.
  3. The resident reported that the landlord then attended the property again on 24 January 2022, when it informed her that she was responsible for the repair of the fence as this was over six feet as per her tenancy agreement. She also reported, however, that its previous property manager had told her at the time that it was responsible for repairing this under the agreement as a boundary fence, and to complain to it as it would not do so.
  4. A stage one complaint was therefore raised on 25 January 2022 because the resident was dissatisfied with the landlord’s decision that the fence was her responsibility to repair. She also said that another fence on the other side of her property was similarly broken two to three years earlier and it had repaired this, and so it should repair the currently rotten fence posts. The resident believed that, as per the tenancy agreement, the landlord had a responsibility to repair the fence as a boundary fence, and she wanted it to do so.
  5. The landlord’s stage one complaint response of 28 January 2022 explained that its current property manager had confirmed that the resident was responsible for the repair to the fence as a dividing and not a boundary fence, with it only being required to replace the first six feet of the privacy panel. It apologised that its previous property manager had told her that it was responsible for the repair, and it stated that they had misinterpreted the tenancy agreement. The landlord therefore partially upheld the complaint because of this confusion and offered the resident £35 as a goodwill gesture for this service failing.
  6. The resident then escalated her complaint to the final stage of the complaints procedure and, on 4 February 2022, she explained that this was because she was dissatisfied with the landlord’s decision, and she did not agree with its interpretation of the word boundary in the tenancy agreement. She instead suggested that this covered boundaries between two private spaces, as well as between private and public spaces, and so she declined the compensation offered and asked that this be used to offset the cost to repair the fence.
  7. The resident subsequently chased the landlord on 11 March 2022 for an acknowledgment of her complaint escalation, which it gave on 21 March 2022, writing to her again on 13 April 2022 to ask for a ten-working day extension to provide the final stage complaint response by 29 April 2022.
  8. The landlord’s final stage complaint response of 4 May 2022 maintained its previous decision that it was not responsible for the repair. It outlined the difference between a boundary fence and a dividing defence as that between fencing falling between a property and public land and between two properties, respectively, and its responsibility to repair the former but not the latter.
  9. The landlord further apologised for its previous failure of service, and for providing the resident with incorrect information, for which it continued to partially uphold her complaint. It also acknowledged that its response to her final stage complaint was outside of its timescales, and offered her a further £50 compensation for the delay.
  10. The resident subsequently complained to this Service as she was dissatisfied with the landlord’s decision that it is not responsible for the fence post repair. She sought for it to complete the repair, in accordance with its previous similar repair and her above interpretation of her tenancy agreement, and she reported that she was having to prop the fence up, while her neighbour’s carpark boundary fence was also now in danger of collapse.

Assessment and findings

The landlord’s response to the resident’s reports of broken fence posts

  1. The resident’s tenancy agreement states that the landlord is responsible for repairing boundary fences when they were provided or put up at the property by it prior to the start of the tenancy or subsequently, or where the fence adjoins a public footpath or public open space. She is obliged by the agreement to keep her property’s garden fencing in good condition. Furthermore, the landlord’s repair responsibilities document states that it is responsible for repairing boundary fences which are next to public rights of way, and that residents are responsible for dividing fences which are between properties, except for one privacy panel.
  2. It is reasonable that the landlord attended the property on 5 January 2022 to investigate the resident’s report of the broken fence posts. This was within 28 days of her report to it of this on 8 December 2021, which is in line with its responsive repairs policy’s 28-calendar-day timescale for routine repairs, had the repair been determined to be its responsibility. During the visit, it was established that the fence posts in need of repair were neighbouring a property, and not a public right of way, making these part of a dividing fence in accordance with the landlord’s repair responsibilities document.
  3. On 24 January 2022, the resident reported that she was informed by the landlord during its second attendance for the broken fence posts that it was her responsibility to maintain the fence. There is no explanation for the cause of the delay between it identifying that she was responsible for the fence and it informing her of this, but it is not unreasonable that it took some additional time to clarify its findings in line with its repair responsibilities document and inspect the fence again.
  4. It was also appropriate that the landlord informed the resident of her responsibility to repair the fence, as outlined in the tenancy agreement for her to keep this in good condition as well as that it was not responsible for non-boundary fences, so that she was able to action a repair to this herself. It therefore acted in line with its agreements, procedures and policies in doing so, and communicated these clearly to her when it informed her of this.
  5. However, during January 2022, the resident was also communicating with the landlord’s previous property manager, who agreed that the tenancy agreement outlined that it was responsible for the fence post repair and suggested that she raise a complaint if it would not do so. In its stage one complaint response, it therefore apologised for the incorrect information given to her by the previous property manager, and explained that they had misinterpreted the tenancy agreement. The landlord acknowledged this had been a failing of service on its part, and it awarded the resident £35 compensation as a gesture of goodwill to recognise this.
  6. The landlord’s compensation policy and procedure do not include recommended compensation amounts, and instead consider the circumstances and distress and inconvenience experienced by the resident. While the initial offer of £35 compensation is less than the amount recommended by this Service’s remedies guidance of compensation from £50 for such distress and inconvenience and delays in getting matters resolved, it took mitigating steps for this.
  7. These included apologising to the resident, and providing her with an explanation for the mistake in the landlord’s previous property manager’s incorrect information to her about her fence, before ensuring that it communicated its repair responsibilities to her clearly. Moreover, the offer of redress to her was made reasonable by its final stage complaint response offering her a further £50 compensation for its delay in issuing this, which was also proportionate to recognise the distress, inconvenience and delays that she experienced from the incorrect information, with a total of £85 compensation.
  8. When a landlord is at fault, it needs to put things right by acknowledging its mistakes and apologising for them, explaining why things went wrong and what it will do to prevent the same mistake from happening again. The landlord appropriately apologised to the resident, explained the cause of the mistake and offered her compensation in recognition of this, however it failed to show how it will prevent future mistakes. Therefore, it has been recommended below to review its staff’s training needs to ensure that it communicates clearly and accurately with its residents at the earliest opportunity regarding their and its respective fencing repair responsibilities, and any further actions that it will or will not take for these.
  9. Following the landlord’s stage one complaint response, the resident argued that the broken fence posts were part of a boundary fence, marking the boundary of her and her neighbours’ gardens, therefore making it responsible for this. She argued that the repair responsibilities document was created after she had signed her tenancy agreement, and so was not valid in relation to that agreement. In its final stage complaint response, however, the landlord accurately explained that it is considered that a fence is a boundary fence if this neighbours public land. It further accurately explained that it had no responsibility to repair or replace dividing fences between two properties, in accordance with the tenancy agreement and repair responsibilities document.
  10. It was reasonable of the landlord to arrive at this conclusion, and appropriate that it explained this to the resident. It recognised its repair responsibilities and made clear steps to communicate this to her. Although the landlord could have offered more clarity in its explanation to the resident at an earlier stage to try and resolve her complaint sooner.
  11. In line with its complaints policy and this Service’s complaint handling code, the landlord is expected to respond to stage one complaints within 10 working days, and to a final stage complaint within 20 working days of the complaint being escalated. The policy sets out that, if a complaint requires more investigation, it may extend the timescales initially by a further 10 working days, and that it will contact the customer to discuss this and explain the reasons why.
  12. During stage one of the complaints process, the landlord followed its complaints policy’s timeframes. Following the resident’s complaint escalation on 4 February 2022, it would have been appropriate for it to have acknowledged the escalation request within the policy’s three-working-day timescale for it to do so, and to then respond to this appropriately. When she received no such acknowledgement or response from the landlord, however, she chased it on 11 March 2022, for which it acknowledged her complaint escalation on 21 March 2022.
  13. The resident had to chase the landlord for her final stage complaint acknowledgement and response, and therefore it would have instead been more appropriate for it to have provided confirmation to her of its receipt of this as per its complaints policy. This is in order to set her expectations of its complaints handling correctly, and to prevent the unnecessary time and trouble experienced by her in chasing it.
  14. On 13 April 2022, the landlord wrote to the resident to explain that it needed to extend the final stage complaint response deadline by ten working days until 29 April 2022, in order to provide her with the correct and best possible outcome. It is appropriate that it communicated this delay to her to manage her expectations. The final stage response was sent on 4 May 2022, which was after the extension deadline, and there is no suggestion that the landlord communicated the additional delay to the resident, which would have been appropriate for it to have done.
  15. The landlord’s final stage complaint response was therefore sent to the resident after a total of 60 working days following the complaint escalation, which was 30 working days outside of the appropriate 20 and 10-working-day response and extension timescales for final stage complaint handling. This is as per its complaints policy, and the timescales given by this Service’s complaint handling code. This delay was a failing on the part of the landlord, as it is expected to respond to complaints in a timely manner to minimise the time, trouble, distress and inconvenience to residents.
  16. The landlord’s final stage complaint response nevertheless recognised that this was outside of its timescales and offered a further £50 compensation to the resident for the delay, which was in addition to the £35 already offered to her for its service failing in respect of the fence. While its compensation policy and procedure do not include suggested compensation amounts, the amount offered was within the range of compensation recommended by this Service’s remedies guidance from £50 for such failures that adversely affected her. This offer of compensation therefore amounted to reasonable redress in the circumstances, as this was proportionate to recognise the length and effect of the delay.
  17. While the landlord acted appropriately in offering compensation to the resident, however, it has not shown that it has taken any steps to address the issue of its delayed final stage complaint response and lack of communication about this to prevent a similar situation from occurring again in the future. A recommendation has therefore been made below that it review its staff’s training needs regarding their application of its complaints policy, and this Service’s complaint handling code, in order to ensure that these are followed to prevent the delays in her case from occurring again in the future.
  18. Moreover, while the landlord made an appropriate offer of financial compensation to the resident, it failed to apologise for the delay that she experienced in receiving its final stage complaint response and any unnecessary time and trouble that she experienced in chasing it for this. It is therefore recommended below that it apologise to her for the complaint handling delay that she experienced from it, and any resulting time, trouble, distress and inconvenience that she experienced from this, as well as to re-offer her the compensation that it previously awarded her, if she has not received this already.

Determination

  1. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

  1. It is recommended that the landlord:
    1. Contact the resident to apologise to her for its delay and lack of communication in responding to her final stage complaint, and any time, trouble, distress and inconvenience that she may have experienced from this, as well as to re–offer her the £85 total compensation that it previously awarded her, if she has not received this already.
    2. Review its staff’s training needs to ensure that it communicates clearly and accurately with its residents at the earliest opportunity regarding their and its respective fencing repair responsibilities, and any further actions that it will or will not take for these.
    3. Review its staff’s training needs regarding their application of its complaints policy, and this Service’s complaint handling code at https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/, in order to ensure that these are followed to prevent its complaint handling delays in the resident’s case from occurring again in the future.