Network Homes Limited
22 August 2023
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 is about the landlord’s response to the resident’s concerns about a boundary fence.
- The resident is an assured tenant at the property of the landlord. The landlord is a registered provider of social housing. The property is a house with a rear garden. There is a dividing fence between the resident’s and her neighbour’s rear gardens.
- It is evident that prior to June 2022, the resident reported concerns about the state of repair of the dividing fence. The landlord carried out an inspection of the fence on 15 June 2022. It is not evident that it provided any follow on correspondence to the resident about its inspection.
- On 1 August 2022, the resident queried the outcome of the landlord’s inspection. She chased an update again on 13 August 2022.
- The landlord replied on 15 August 2022. It advised that the upkeep of the dividing fence was the neighbour’s responsibility as per their tenancy agreement. It also advised that it would contact the neighbour to remind them of this responsibility.
- Following further concerns from the resident, the landlord’s neighbourhood officer attended the neighbour’s property to inspect the fence on 7 September 2022. They concluded that the fence was not in the best condition but did not believe it to be a health and safety issue and was still fit for purpose. The landlord also conducted an inspection of the fence from the resident’s property on 20 October 2022, which concluded that the fence was fit for purpose as a dividing fence.
- The resident made a formal complaint on 8 November 2022. She disputed the landlord’s conclusion that the fence was fit for purpose and not a health and safety issue. She contended that the photos she had sent to the landlord made it clear that the fence had sharp points and was dangerous.
- The landlord provided its stage one response on 11 November 2022. It noted that it had attended twice to inspect the fence and had also reviewed photographs. It had subsequently determined there was no risk, and therefore no further action would be taken. It also advised that the fence was not its responsibility and that it was not in a state whereby it could enforce tenancy action against the neighbour to carry out any repairs. It did, however, say that it would send another letter to the neighbour to ask if they would consider looking into a replacement, but that this would not be enforced unless the fence became unfit for purpose.
- The landlord did, however, acknowledge that there had been poor communication, which meant that the resident had to chase it for updates. The landlord apologised and offered £65 compensation for the resident’s time and trouble spent pursuing a response.
- The resident escalated her complaint on 1 December 2022. She disagreed with the landlord’s position and maintained that the fence was a hazard and dangerous, especially for young children. She added that the fence was sharp, bowed, rotting, broken, had parts that were not even attached, did not sit in the concrete posts, and she could put her hand right through each of the three fence panels. She queried why other fence panels had been replaced, yet these ones were not.
- The landlord provided its final response on 5 December 2022. It reiterated its position that it did not consider the fence was dangerous and that it was the responsibility of the resident’s neighbour to fix it. It did add that the resident could, if she so wished, put up her own fence on her side of the boundary.
Assessment and findings
Scope of Investigation
- It is noted that the resident also raised issues regarding another neighbour’s dog, and there are mentions of previous complaints made about the neighbour’s fence, which resulted in the replacement of some of the fence panels. For clarity, as these issues did not form part of the present complaint, this report will focus solely on the issues raised on 8 November 2022.
- As per the landlord’s repairs policy, tenants are responsible for their own fences, and it is not disputed by either party that the responsibility for the repair and maintenance of the fence lay with the resident’s neighbour. However, there is a dispute regarding whether or not the fence was a health and safety hazard and, if so, would require an intervention by the landlord.
- There is a difference between a health and safety hazard, and a fence that is in a poor state of repair. In order for a landlord to establish whether the fence was indeed a health and safety hazard, a landlord should conduct an inspection. In this case, several inspections were carried out, occurring in June 2022, September 2022, and October 2022. The outcome of each inspection was that the landlord did not consider the fence to be a health and safety issue and that it was fit for purpose as a dividing fence. In addition, the landlord sought the opinion of a technical surveyor who viewed photographs of the fence and agreed with this assessment.
- When making a decision on how best to proceed, it was reasonable for the landlord to rely on the conclusions of its appropriately qualified staff and contractors. Because there were no health and safety issues identified, the responsibility for repairing and/or replacing the fence panels would therefore remain the neighbour’s. Thus, the landlord’s approach thereafter to not enforce tenancy action and to write to the neighbour to ask that they consider repairing the fence was appropriate in the circumstances. It would have been helpful, however, had the landlord clarified when it considered a fence to be a health and safety hazard. A recommendation has been made below for the landlord to advised the resident of the standards it uses to assess for a health and safety hazard.
- Regarding the landlord’s communication, the landlord acknowledged there had been an unreasonable delay between the resident’s requests for updates and its responses, which would have caused her inconvenience. The landlord appropriately apologised for the impact this had on the resident and offered £65 compensation. In the Ombudsman’s opinion, this offer was proportionate and amounted to reasonable redress for its poor communication in the circumstances.
- In accordance with paragraph 53(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.
- The landlord is to contact the resident within four weeks of the date of this determination and set out its process for assessing whether a fence is a health and safety hazard.