Leeds City Council (202101774)

REPORT

COMPLAINT 202101774

Leeds 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 complaint is about:
   1. The landlord’s handling of repairs to the front garden wall.
   2. The landlord’s handling of reports of anti-social behaviour.

Background and summary of events

2. The property is a three-bedroom house held under a secure tenancy.
3. On 15 May 2019, while inspecting the property for damp, the landlord’s technical officer noticed that stones in the wall at the front garden were loose. Because of this, the wall was inspected on 13 June 2019. The inspection found the wall to be in disrepair, so a repair order was raised on 17 June 2019.
4. On 23 September 2019, a contractor attempted to repair the wall and install a new gate, but the resident refused to have the work completed because she wanted the height of the wall increased. So, the job was marked as cancelled due to no access.
5. On 12 December 2019, the landlord completed an annual inspection of the property and noted outstanding repairs that needed to be completed, including the repairs to the front wall.
6. This Service has not been provided any further correspondence between the parties until August 2020.
7. On 22 August 2020, the resident contacted the landlord to discuss outstanding repairs and report that she had been experiencing anti-social behaviour (ASB) caused by local university students. She explained that the existing wall failed to stop people from entering her front garden or providing privacy, contributing to her experiencing ASB.
8. The landlord acknowledged that the outstanding repairs should have been completed before and during the Covid 19 pandemic and suggested that the resident directly chase up repairs with its contractors. It also agreed that the resident should contact her housing officer if there were any further incidents of ASB. Further, it explained how the resident could complain if the anti-social behaviour continued and helped her join the local tenant’s association for additional support.
9. In October 2020, the landlord visited the property to inspect the wall and discuss the planned repairs. The resident asserts that the landlord initially agreed that she required privacy and stated that during the repair a gate would be installed, and the height of the wall would be increased to provide this.
10. However, she explained that on a later unspecified date in October 2020 the landlord changed its stance and suggested that she cover the associated cost because it was not responsible for increasing height of the wall or erecting a new fence.
11. The landlord raised the repair order on 22 October 2020 for the wall to be rebuilt like for like, new posts, and a gate to be fitted.
12. On 2 November 2020, the resident complained about how long it had taken for her front garden wall to be repaired.  Further, she explained that her current wall offered no privacy and that she had experienced numerous ASB issues that could have been prevented if her wall had been higher.
13. The resident also asserted that she disagreed with the landlord’s comments on its responsibilities around the repairs because the landlord had a duty to provide her privacy and ensure that her wall matched other properties on the street. In addition, she could not understand why the wall could not be rebuilt higher, given its current state of disrepair.
14. On 5 November 2020, the landlord issued its stage 1 response as follows: –
    1. While its comments may have caused distress, it maintained that it had no obligation to build the wall higher than it currently was or erect new fencing as this would be considered a resident’s personal choice, which they could undertake should they wanted to.
    2. It confirmed the scope of the repair order raised on 22 October 2020. However, it explained that it could not offer any timescales for the completion of the repairs as it was still working through the backlog created by the first lockdown and was now heading into a second lockdown which would impact the service it was able to provide.
    3. Due to data protection, it was unable to comment on whether other properties on the street walls had been built higher, but it confirmed that this was incredibly unlikely to have been approved and authorised by the Council.
    4. It urged the resident to contact her housing officer if she was suffering from ASB, or possibly even the police if she felt that it would be warranted.
    5. It apologised that the repairs department could not offer further assistance on the matter.
15. On 30 November 2020, the resident escalated her complaint to stage 2. In her response she stated follows: –
    1. Her main issue with the repair order was that without the height of the wall increasing, she would not receive privacy, security, or separation. Also, she reiterated that her request was not cosmetic but help to stop ASB.
    2. She detailed the ASB issues she experienced including bricks thrown at her window, rubbish dumped in her front garden and her bin being stolen. She also explained that she had dates of all the crimes committed against her. 
    3. She explained that the repair had been poorly recorded and did not reflect the conversation she had with the technical inspector in October 2020. Where she asserted it was agreed that a two-meter-high fence could be erected on top of the existing wall once it has been repaired.
    4. The lack of help provided by the staff members had exacerbated health problems.
16. On 18 December 2020, the landlord’s contractor attended the property to complete the required work. However, the resident refused access because she felt the work order was not appropriately recorded as a fence would not be installed and the wall’s height would not be increased. The repair was cancelled due to no access.
17. On 21 December 2020, the landlord and resident discussed the wall repair and installation of a new fence. The resident asserts that she requested a two-meter-high fence be fitted on top of the wall once it was repaired and in response the landlord explained that regulations only allowed it to install a 1-meter-high fence on top of the wall. Based on this understanding the resident has stated that she was happy for the repair to proceed.
18. On the same day, the landlord issued its stage 2 response as follows: –
    1. It was responsible for the structure of the property and the means of access to it.
    2. It only provided a relatively basic maintenance service for existing boundaries with any improvements or replacements either being undertaken as part of a planned replacement scheme or falling under a tenant’s responsibility.
    3. It was not obliged to provide privacy screening for residents, and it does not install new fencing to a boundary where there has been none previously.
    4. While the resident had suggested that every other property on the street had a higher boundary, because it did not own these properties, it could not comment on the decision taken by private parties.
    5. The decision to repair the wall rather than make it higher was based on the technical inspector’s findings. Thus, it felt that the repair order raised was sufficient and in line with its obligations.
    6. The existing wall in the front garden needed to be repaired and the loose bricks and top stones secured because of health and safety reasons.
    7. It had agreed to install a gate to provide an element of separation between the property and the street, which it was not obliged to do.
    8. In response to the resident reports of ASB it had consulted with colleagues in both its ASB Team (ASBT) and her local Housing Office, and it had been confirmed that she had raised concerns over the behaviour of some residents and visitors in the street.
    9. It apologised that the resident was experiencing these issues but as the perpetrators were not its tenants, it explained that the action it could take was ‘extremely’ limited. However, it explained that the housing office had agreed to support her with future reports and file a complaint on her behalf to the ASBT, which was better placed to act.
    10. It apologised that it did not properly address the concerns raised over the behaviour of her neighbours in its stage one response. It acknowledged that the resident was not given sufficient information on reporting measures available and included details on how she could report any ASB concerns.
    11. It apologised that the communication received had fallen below the standards that she would normally expect. It acknowledged that the resident continually had to chase further information regarding repairs to the wall and despite its promises to provide her a reply.
    12. While it asserted that a fence might not prevent some of the issues the resident was experiencing, having considered the surrounding area, it acknowledged that a higher boundary may discourage people from entering her front garden and help make her feel more secure.
    13. It confirmed that because the existing wall was not a flat surface repairs order would be raised for 1-meter-high fence to be erected and sit on the inside of it. It asserted that this decision was taken considering the resident’s comments about other properties on the street.
19. On 19 March 2021, the landlord’s contractor attended the property to complete the required work, but the resident denied access because she felt the work order did not reflect the conversation she had on 21 December 2020. She asserts that the contractor was going to remove part of the wall, which had not previously been agreed. Further, instead of fitting the fence on top of the wall it stated it would be fitted inside of it. Because of this, she contacted the landlord and asserts that it denied agreeing to installing the fence on top of the wall in December 2020 and explained that wall could only be 1 meter in height in total so installing a fence on top of the existing boundary would exceed the limit.

Assessment and findings

Repairs to the front garden wall

20. The landlord’s repairs policy defines a batch repair as ‘non-urgent repairs and items that may require a pre-inspection.’ For example, minor repairs to external walls or minor repairs to fences and gates. The policy also states that non-urgent repairs should be completed within 60 calendar days from the report.
21. While the scheduled repair was unable to proceed on 23 September 2019, the landlord attempted to complete the repair according to the deadlines set out in its repairs policy.
22. There is limited information showing whether the resident and landlord had any further communication about the wall between September 2019 and August 2020. Nevertheless, the landlord’s records show it was aware that there were outstanding repairs after completing an annual inspection of the property in December 2019. The landlord raised repairs for other issues, but it did not do so for the wall in the front garden, which was unreasonable because the wall repair had been outstanding since June 2019.
23. Although the resident previously rejected the repair, there would be an expectation for the landlord to contact her to discuss her reasons behind denying the contractor access in order to progress the required repairs. This is especially as it later stated that the existing wall in the front garden needed to be repaired and secured for health and safety reasons.
24. However, this Service has not been provided any evidence that suggests the resident was chasing repairs between December 2019 and August 2020. The available information demonstrates that once the resident contacted the landlord in August 2020, it took reasonable actions to address the outstanding repair. It was proactive in arranging a further wall inspection and arranging the required repair in October 2020. The landlord’s attempts to address the repair within 60 days were reasonable because this Service accepts that landlords will have experienced challenges in delivering services considering the challenges posed by the pandemic. The timeframe was in line with the repairs service a resident could expect before the pandemic. Thus, this was an appropriate response to its previously failure to rebook the wall repair in September 2019.
25. This Service acknowledges the detriment the resident has said this ongoing situation has caused to her mental health. However, this Service cannot determine matters of causation and liability in terms of how a landlord’s actions might have impacted a resident’s health and well-being. Such issues would be better dealt with as a personal injury claim through the courts, where appropriate professional medical evidence can be reviewed appropriately and relied on.
26. It was reasonable for the landlord to send a technical officer to inspect the wall and discuss its intentions for repair in October 2020, given  the resident’s objections in September 2019. The resident asserts that the technical officer initially agreed to increase the height of the wall to provide needed privacy, but as there were no records of this conversation, the Ombudsman cannot prefer one account over another. However, given the resident comments, it was reasonable for the landlord to speak to the technical officer as part of its investigation into the resident’s complaint.
27. Under the terms and conditions of the tenancy agreement, the landlord is responsible for the structure of the property and the means of access to it, which includes maintenance for existing boundaries. The landlord has accepted that it was responsible for repairing the wall and has attempted to undertake this repair, thus acting in line with its conditions. Increasing the height of the wall would be considered an improvement, which the landlord’s policy stated would either be undertaken as part of a planned replacement scheme or fall within a tenant’s responsibility. Thus, the landlord is not obliged to increase the height of the wall.
28. The landlord’s fencing policy states the following:
    1. 1.5 – Legally it is a Tenant’s responsibility to provide, repair and maintain and replace fencing and gates to their homes, however, the council will consider individual circumstances when dealing with fencing requests.
    2. 6.2- Each case will be assessed on its own merits. However, the Council will use the following guidelines to help officers with the decision making process. We will consider carrying out discretionary fencing and gates repairs and replacements if the work will help enhance security, protect against or reduce the impact of anti-social behaviour or harassment
    3. 7.1- The installation of fencing or gates must be carried out in line with local planning guidance rules with regards to height, appearance and materials used. Local planning guidance can be found on the Council’s website.
    4. 7.2- The maximum heights apply to new/replacement fences and gates (including the height of any gravel boards / plinths etc) in the following locations:
       • 1 metre high to the front;
       • 1.5 metres high to the side;
       • 1.8 metres high to the rear.
29. The landlord’s fencing policy states that it is not responsible for erecting a fence, so its offer in response to the resident’s ASB reports was fair. This decision demonstrated that it considered how the resident’s circumstances impacted her request for a higher boundary.
30. In light of the landlord’s policy, it was reasonable for it to deny the resident’s request for a 2-meter-high fence to be installed on top of the existing boundary. Also, this Service is satisfied that the landlord considered the relevant policy when deciding that the 1-meter-high wall would need to be installed inside of the existing boundary to comply with the relevant regulations. Nonetheless, it was within its discretion to decide not to install the fence, thus, its decision to do so is considered by this Service as an offer of resolution which fully redresses its delays repairing the wall. If the resident wants the fence to be installed on top of the existing boundary or higher than 1 meter in total, she will need to get planning permission at her own cost.
31. To date, no work to the wall or fencing has been carried out despite the landlord raising orders and operatives attending the property to carry out the work. There is an ongoing issue over the scope of the works, resulting in the resident denying access to contractors. While the resident has raised multiple concerns about the repair orders not being sufficient. The scope of the work was agreed upon based on the recommendations of appropriately qualified operatives and staff. The Ombudsman has no basis for arriving at a contrary conclusion on how the wall should be repaired as the expert personnel made their finding after conducting physical inspections of the property.
32. Also, while the resident asserts that the scope of works was not sufficient, she has not provided any evidence to support the assertion that the scope of works would not restore the wall to a satisfactory condition. Further, there is no evidence that suggests the scope of the works does not reflect the conversations between the landlord and resident. All the written correspondence supports the conclusion that the landlord’s position around the fence and wall has been consistent throughout the complaint.
33. At this stage, the landlord has agreed to repair the wall and install a fence, but without the resident giving access, it may need to consider whether it can take further action under the tenancy agreement. Alongside the landlord’s apology in its stage 2 response, it has made a reasonable offer to resolve the complaint by offering to install a fence outside of its legal obligations.

ASB reports

34. The landlord has explained that it has received 23 ASB reports since February 2021, but the resident did not make any reports of ASB to her housing team before her complaint in November 2020. This Service cannot investigate the landlord’s response to ASB reports in February 2021 because the resident has not raised a formal complaint about this. However, the landlord’s response to the resident informing it that she had been a victim of ASB in November 2020 can be considered.
35. In her stage one complaint, she reported people accessing her garden, which she believed was because the wall to the front of her property was too low. The landlord has asserted that because the resident felt this could be resolved by having a higher boundary at the front of her property, an ASB case was not opened at the time. In the circumstances, this was reasonable because, in response to the resident’s concerns, it then offered to install a fence to help prevent future occurrence of ASB.
36. As the students are not residents of the landlord, this Service must acknowledge that the landlord is limited in the actions it can take to prevent ASB. Further, if a resident does not know who the alleged perpetrators are or cannot provide any identifying details, it is very difficult for the landlord to open an ASB case to carry out an investigation. Based on the information available provided to this Service the resident had not reported specific incidents of ASB, named any perpetrators, or provided evidence or records to the landlord prior to its discovery of the issues with the fence. The information available suggests that the resident has not been reporting ASB to her housing officer and because of this her landlord was unable to assist her under its policy before November 2020.
37. The landlord has admitted in its stage one response that once it became aware that the residents was the victim of ASB it failed to address her concerns appropriately and accepts that it should have given the resident more information on reporting measures available and included information on how she could report any ASB concerns. An apology alongside its offer to install a fence is sufficient in the circumstances because of the importance the resident placed on a fence being erected to help prevent ASB.

Determination (decision)

38. In accordance with paragraph 55(b) of the Scheme, the Ombudsman is satisfied that the member has offered the resident redress prior to investigation which, in the Ombudsman’s opinion, resolves the concerns regarding it’s handling of repairs to the front garden wall.
39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of reports of antisocial behaviour.

Reasons

40. The landlord has acted in line with the relevant policies and regulations when explaining why it would not increase the height of the wall and why a fence could not be installed on top of the existing boundary. While there was a delay in the repair being rebooked, the landlord made reasonable efforts to address the outstanding repair promptly during the pandemic once the resident contacted it.
41. In response to the resident informing that she was a victim of ASB, the landlord investigated her reports and considered her opinion on how it could be stopped before ultimately offering to install a fence outside of its obligations.

Recommendations

42. The landlord should contact the resident to repeat its offer to repair the front wall and install a fence.
43. The landlord should write to the resident and set out the work it will be carrying out as part of the wall repair and fence installation.
44. The landlord should ensure the resident is aware of how she can report ASB in the future.
45. The landlord should remind employees of the importance of clear record-keeping following phone communication with residents.