Birmingham City Council (202100448)

REPORT

COMPLAINT 202100448

Birmingham City Council

17 December 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

1. The resident complains about the fence replacement the landlord carried out at his property, and its response to his subsequent formal complaint about the matter.

Background

2. The landlord’s repairs policy says that for fences between gardens, a 2.0m run of privacy fencing should be used, at 1.8m high. It then goes on to say under the heading ‘All Other Rear Fencing’: ‘It is vital that the type of fence offered here is consistent and the same type. Tenants who wish to erect their own fence must do so at their own expense, but this should be agreed and approved by the City Council.’
3. It says that where complete renewal or an entirely new fence is being considered, then chain link fencing on concrete posts should be used of 1.0m height. Where the general condition of the fence is sound, it would repair to match existing.
4. The landlord’s complaint policy says that it will fully investigate complaints, and sets out a three-stage procedure. Stage one is where a complaint can be resolved immediately. If this is not possible, it would be logged at stage two ‘Investigating the complaint.’ The department that provided the service complained about will investigate and respond.
5. If the resident was unhappy with the stage two response, they could ask for this to be reviewed. An independent officer would then consider the complaint.

Summary of events

6. The resident reported that fencing in the back garden had been damaged. The landlord’s contractors attended to address this on 5 January 2021.
7. On 22 February 2021 the resident contacted the landlord to complain that the contractors had replaced the 6-foot fence that had been damaged with a three-foot fence. He was planning to get a large dog and so required the 6-foot fencing to be reinstated.
8. On 26 February 2021 the landlord contacted the contractor that had carried out the work and asked why a three-foot fence had been used. In response, the contractor said that the fence in question was a dividing fence between gardens, with a six-foot privacy panel followed by three–foot fencing. It said ‘…so the repair is in spec and satisfactory.’
9. The landlord sent a stage one complaint response to the resident on 26 February 2021, saying that it would not replace the existing chain link style 900mm fencing as this would be deemed and improvement. It concluded ‘You can provide your own improved fencing at our expense subject to written approval.’
10. The resident contacted the landlord again soon after and explained that three-foot fencing was installed when his damaged fence was replaced, whereas it had been six-foot previously. He wanted the six-foot fencing reinstated.
11. On 10 March 2021 the contractor noted that policy and procedure had been followed, that it could not provide six-foot fencing, saying ‘It is only like for like.’
12. The landlord sent a stage three reply which was dated 18 February 2021 (it is assumed this date was incorrect) which said ‘The operatives who attended your property to repair the boundary fencing, noted that that there was a change in height from 6 foot, to 3 foot further down the garden. As part of BCC repairs policy fencing is only replaced like for like and therefore 6 foot fencing, would not be fitted along the whole length.’ It concluded that if the resident wanted to replace the fencing at his own expense, he would need to ask permission from the Local Housing Team.

Assessment and findings

13. When investigation complaints the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process.
14. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes
    2. Put things right
    3. Learn from outcomes
15. The resident has explained to the Ombudsman that he is unhappy with the fence replacement, saying that he would like to get a dog but cannot with the low fence currently in place.
16. The landlord’s repair policy specifically states that where a fence is being entirely replaced (rather than just repaired) then one-metre high fencing should be used. While the resident’s disappointment with the situation is understandable given that he had six-foot fencing previously, the landlord acted in line with its policy when replacing the fence at the property and so can be said to have ‘followed fair processes’. No failing is found here.
17. However, while the landlord’s complaint policy states that complaints would be fully investigated, there is no indication that this occurred in the resident’s case. The landlord appears to have misunderstood what the resident was complaining about in its stage two response, saying that it would not replace the existing chain link fencing as this would be deemed an improvement. The resident was not asking for fencing to be replaced in the way that the landlord understood here, rather, he was complaining that the fencing that had already been replaced in January 2021 had been replaced with a different type. He was asking for the original type to be reinstated.
18. The resident again made this clear in his request for review. The landlord’s stage three response again appears not to have understood the complaint, this time stating that its policy meant that fencing was only replaced ‘like for like’: This was essentially what the resident was asking for, and so it is unclear what point the landlord was trying to make with this comment.
19. Further, in the information that the landlord has provided to this Service it has stated ‘The Council fits privacy panels from the beginning of the property, after a certain distance, only a three feet fence line can be used. This is to highlight the boundary line. The Council is not responsible for improving the style or height.’ Again, the resident was not asking for an improvement, but rather a ‘like for like’ reinstatement of what had been in place originally.
20. Given that the landlord had not understood the complaint being made, it cannot said to have ‘fully investigated’ it in line with its complaint policy. Very little investigation or consideration of the matter appears to have taken place. This is further evidenced by the fact that the landlord’s stance that fencing was only replaced ‘like for like’ appears to contradict its very clear policy on the matter, which says total fence replacement (as opposed to a repair), would always be 1m high chain link.
21. In addition, the responses that were provided gave conflicting information regarding the resident making changes to the fencing himself, firstly saying he could do so subject to written approval, and the landlord would pay for it, and then stating that he would have to pay for it himself (which is what the policy states). No explanation was provided for this change of position.
22. This Service has investigated other complaints about the landlord from a similar period, which identified the same issues of inadequate investigations and responses, suggesting that these were not one-off failings. However, the landlord has recently confirmed that it has now completed the Housing Ombudsman’s Complaint Handling Code self-assessment: The Complaint Handling Code sets out how the Ombudsman expects landlords to handle complaints, setting out good practice that will allow landlords to respond to complaints effectively and fairly. The Ombudsman is satisfied that this action, and following the Code, should help to ensure that in future the landlord provides satisfactory responses to all complaints, and the failings identified here are not repeated.
23. However, this does not address the adverse effect the poor complaint handling had on the resident. His disappointment at the fence replacement has been exacerbated by the response to his complaint, which raised his expectations by telling him initially that the landlord would pay for the fence to be replaced, and also that it replaced fences ‘like for like’.
24. In addition, the poor response to the issues raised was frustrating for the resident. This also led to the time and trouble that he has taken in pursuing this matter through to the Ombudsman, which could have been avoided had the landlord undertaken a satisfactory investigation and provided a better response.

Determination (decision)

25. In accordance with section 54 of the Scheme, there was:
    1. No maladministration in the landlord’s fence replacement.
    2. Maladministration in its response to the formal complaint.

Reasons

26. The decision to replace the damaged six-foot fencing with three-foot fencing was in line with the landlord’s policy. However, the landlord’s response to the complaint failed to address the issues raised and was confusing and contradictory.

Orders

27. By 21 January 2022 the landlord should pay the resident £175 for the raised expectations, frustration, time and trouble experienced.

Recommendations

28. The landlord should carry out regular self-assessments of its complaint handling against the Code to ensure compliance, and also ensure that all relevant staff are aware of the Code and the importance of following this.
29. The landlord should inform the Ombudsman by 21 January 2022 whether it intends to follow this recommendation.