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Hyde Housing Association Limited (202017292)

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REPORT

COMPLAINT 202017292

Hyde Housing Association Limited

10 August 2021


Our Approach

 

  1. 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.

 

  1. 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:

 

  1. The landlord’s response to the resident’s reports of a broken fence.
  2. The landlord’s handling of the complaint.

 

Background and Summary of Events

 

 

  1. On 27 December 2020, the resident advised the landlord that her fence had broken in a storm. She was told that it was her responsibility to have this repaired. The resident disagreed with this, and raised a complaint about the matter.

 

  1. There was further correspondence between the resident and the landlord in respect of the fence. On 12 January 2021, the landlord said the dividing fence would remain the resident’s responsibility and that her tenancy would advise her that the landlord was only responsible for a boundary fencing leading to a public footpath. The resident disagreed with this.

 

  1. On 30 January 2021, the resident again complained to the landlord. She said her tenancy agreement stated that the landlord had agreed to keep in good repair the structure and exterior of the premises, including boundary walls and fences. She explained that she lived in a ground floor flat which had a private garden that was enclosed on three sides by boundary fences. She said that she had not been made aware when signing the tenancy agreement that she would be responsible for the fences. She thought the landlord was attempting to alter the terms and conditions of her tenancy agreement without taking the required legal steps to do so.

 

  1. The landlord responded on 1 February 2021 to advise the resident that a stage one complaint had already been raised.

 

  1. There was some further discussion between the two parties about the resident’s complaint. The landlord said that, due to unexpected staff shortages, it was taking longer to acknowledge complaints, but it would be in touch as soon as possible to discuss the matter.

 

  1. On 15 March 2021, the landlord acknowledged the resident’s complaint about the fence. It said it would aim to respond by 29 March 2021, but if it could not do so, it would keep her updated.

 

  1. The landlord wrote to the resident on 29 March 2021 to confirm it needed some more time to check the details of her complaint. It said it hoped to give a full reply by 12 April 2021.

 

  1. On 12 April 2021, the landlord provided its stage one complaint response. It made the following points:

 

  1. It offered her £50 for the delay in acknowledging her complaint.
  1. On 27 December 2020 the resident had advised it that her fence had been damaged in a storm. She then made a formal complaint and pointed out that her tenancy agreement did not state that residents were responsible for fences between premises.
  2. The resident then chased the landlord on several occasions about her complaint in January and February 2021.
  3. The landlord’s tenancy department had requested the resident send in photos of the damaged fence, and the resident said that she had. The landlord had called the resident on 9 March 2021 to discuss the issue and to find out if it was a dividing fence between the resident and her neighbour. The resident was frustrated by the phone call.
  4. The landlord arranged for a contract manager to attend the property on 11 April 2021 and they confirmed that the fence was not the landlord’s responsibility. It said that this was in line with its tenancy handbook which states that it does not maintain dividing fencing.
  5. It reassured the resident that training would be carried out regarding the landlord’s responsibility regarding fencing. It also said that it had spoken to its contractor about the poor communication the resident had received from them.

 

  1. The resident responded to the landlord on 10 May 2021. She said the landlord had failed to deal with her stage two complaint. The resident explained she did not want £50 compensation, and instead wanted the landlord to adhere to a legal document as a “responsible landlord”.

 

  1. On 20 May 2021 the landlord said it had considered the resident’s latest email, but had decided not to escalate her complaint to stage two of its complaints process. It instead referred her to this Service. 

 

Tenancy Agreement and policies

 

  1. The resident’s tenancy agreement says the landlord agrees:

 

  1. “To keep in good repair the structure and exterior of the Premises including… (vii) boundary walls and fences”

 

  1. The landlord’s website sets out repair responsibilities, though it says that the tenancy agreement should be checked for full details. It then lists the repair responsibilities for tenants and the landlord, and the tenants’ responsibilities include “maintain dividing fences between you and your neighbour”. The landlord’s repair responsibilities include the installation of communal and boundary fencing to public or adjoining private land (not dividing fences between homes).

 

  1. The landlord’s compensation policy says that consideration should be given to recognise time and trouble the resident has incurred in pursuing a complaint. It says the maximum payment for this is £50.

 

  1. The landlord’s complaints policy says that it operates a two-stage complaints process. A stage one complaint will be formally acknowledged within two working days. The landlord will then aim to respond within ten working days, though if it needs extra time to complete the investigation, it will explain this to the resident and give a date for its response, which will be no later than a further ten working days.

 

  1. The landlord’s complaints policy also says that if a resident is not satisfied with its stage one complaint response, they can ask for it to be reviewed at stage two of its process. It says that in most cases it will agree to look again at its decision, though there are circumstances when it would not do this, for example where its decision is based on published service standards and policy.

 

Assessment and Findings

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

  1. The resident has asserted that the landlord is responsible for the repair of her broken fence under the tenancy agreement, but the landlord disagrees and says the resident is responsible for the fence because it is a dividing boundary.

 

  1. As set out in point 18 above, the tenancy agreement says that the landlord is responsible to keep in good repair the boundary walls and fences. It is reasonable to say that the boundary is what separates the property from another. The tenancy agreement does not distinguish between a boundary between neighbouring properties or adjoining public or private land.

 

  1. Although the landlord’s repair responsibilities guidance on its website says that tenants would be responsible for maintaining dividing fences between them and their neighbour, that is not reflected in the tenancy agreement. The tenancy agreement includes a separate section which sets out the resident’s responsibilities. There is no mention of the resident being required to keep fences between homes in good repair.

 

  1. It is understood that the tenancy agreement was put in place with a previous landlord, and therefore may include different terms to those included under a tenancy agreement written by the current landlord. This would account for the conflicting information in the resident’s tenancy agreement and the repair responsibilities on the landlord’s website.

 

  1. However, the resident agreed to abide by the terms set out in the tenancy agreement, and by taking over the existing tenancy agreement, the landlord also agreed to those terms. This appears to be acknowledged by the landlord because the information relating to repair responsibilities on its website states that the tenancy agreement should be checked for full details.

 

  1. It was therefore unreasonable for the landlord to refuse to repair the fence, as this was not the resident’s responsibility, according to the tenancy agreement.

 

  1. Given the length of time that the fence has been broken, it is considered the resident has experienced unnecessary inconvenience as a result of this. It would be appropriate for the landlord to pay the resident £150 compensation to reflect this.

 

The landlord’s handling of the complaint.

  1. The resident initially complained to the landlord on 30 December 2020. According to the landlord’s complaints policy, the resident ought to have received a formal acknowledgement within two working days, and a response within ten working days. However, the landlord did not formally acknowledge the complaint until 15 March 2021, and did not provide its response to her complaint until 12 April 2021.

 

  1. It is apparent that the resident was frustrated by the landlord’s delay in dealing with her complaint. She contacted the landlord several times about the matter before she received a formal acknowledgement.

 

  1. The landlord was aware that it had not responded to the resident in line with its published timescales – the reason given for that was staff shortages. It recognised the resident had spent time and trouble pursuing her complaint and offered her £50 compensation, which was the maximum available under its compensation policy. This was reasonable. The Ombudsman notes that although the landlord was delayed in offering its responses, it did signpost that it was experiencing delays and when the resident could expect to hear from it.

 

  1. Although the resident was frustrated that the landlord decided not to provide her with a stage two complaint response, according to its complaints policy, it was not required to do so.

 

Determination (decision)

 

  1. In accordance with paragraph 54 of the Scheme, there was service failure in respect of the landlord’s response to the resident’s reports of a broken fence.

 

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

 

Reasons

 

  1. The resident told the landlord that her fence panel had broken in a storm. The landlord said that this was the resident’s responsibility because the fence divided her and a neighbouring property, which was in accordance with its published repair responsibilities guidance. However, the resident disputed this and referred to her tenancy agreement which stated the landlord was responsible for boundary walls and fences. Despite this, the landlord did not accept that it had responsibility for the broken fence.

 

  1. Although the landlord has published repair responsibilities guidance, this does not supersede the terms included within the tenancy agreement. The tenancy agreement says that the landlord is responsible for the repair of boundary walls and fences, and does not say that this would not be the case if the fence divides homes. Therefore, the fence repair is the landlord’s responsibility.

 

  1. The landlord failed to acknowledge the resident’s complaint and provided its stage one complaint response in line with its published timescales, which led to the resident chasing it several times about the matter. However, it explained to the resident that its responses were delayed, and it offered her £50 compensation. This was the maximum redress under its compensation policy and was reasonable in the circumstances. Although the resident was frustrated that the landlord did not provide her with a stage two complaint response, it was not required to under its complaints policy.

 

Orders and recommendations

Orders

  1. The landlord to repair the fence and pay the resident £150 compensation for the inconvenience she has experienced as a result of the delay.
  2. The landlord should contact this service within four weeks to confirm that it has complied with the above order.

Recommendation

  1. The landlord to pay the resident £50 compensation already offered in respect of its handling of the complaint, as the finding of reasonable redress has been made on that basis.