NSAH (Alliance Homes) Limited (202109051)

REPORT

COMPLAINT 202109051

NSAH (Alliance Homes) Limited

04 January 2022

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 concerns the landlord’s decision to decline the resident’s request to replace the garden fence.

Background and summary of events

Background

2. The resident is an assured tenant of the landlord, which is a housing association. The property is a bungalow. Both the resident and her daughter have corresponded with the landlord and this Service during the period of the complaint. For reasons of clarity, the resident and her daughter have been collectively referred to as “the resident” within this report.
3. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.

Summary of events

4. The landlord’s maintenance logs state that on 29 October 2019, the boundary wall for the resident’s boundary wall was inspected as part of ongoing planned maintenance to maintain the walls and fences of the landlord’s properties.
5. The notes of the inspection stated that there was some minor damage to the bricks in the wall and that no movement of the wall was observed. No replacement or repairs to the resident’s boundary wall was recommended.
6. On 20 March 2020 the resident wrote to the landlord and requested the installation of a higher fence between her and her neighbour’s garden to provide privacy. The resident explained that during the national lockdown as a result of the Covid-19 pandemic, she was using the garden more often and did not feel comfortable that her neighbour was able to see her.
7. The landlord arranged an inspection of the current garden fence for 27 May 2021. Following the inspection, the landlord contacted the resident and informed her that it would be willing to replace two side panels and two rear panels of the boundary fencing.
8. The resident declined this offer and requested to raise a complaint on the grounds that the operative who undertook the inspection had agreed with her request to replace the existing link fence with a wooden fence, which other nearby properties used.
9. The landlord sent a stage one complaint response to the resident on 22 June 2021. The landlord informed the resident that the operative who attended the property had no recollection of the conversation described by the resident relating to the replacement of the fence.
10. The landlord further explained that the decision to replace the fence would not have been made by the operative and would have first needed to be raised internally.
11. The landlord then explained that it used link fencing as its preferred material for boundaries as it was more durable than wood. It informed the resident that it was still willing to replace the four panels and believed that as the panels were six foot in height this would provide adequate privacy. It also informed the resident that it would not comment on the types of fencing other landlords used in their properties and would not make decisions based on the policy of another housing association.
12. On receipt of the complaint response, the resident requested an escalation of the complaint on the ground that she disputed the landlord’s description of the conversation she had with the operative and that allowing the neighbour a view of her in the garden left her anxious. The resident also described issues with litter from the neighbour being left in her garden.
13. The landlord called the resident to discuss the outstanding issues of the complaint and then sent a stage two complaint response on 9 July 2021.  The landlord informed the resident that:
    1. It stood by its position as set out in the stage one response that it would replace four panels in the existing fence to provide privacy to the garden, but that it would not install a new wooden fence.
    2. It apologised for the confusion caused by discussions with its operative during the 27 May 2021 inspection. It confirmed that the operative would not be able to make the decision to replace the fence without the matter being raised internally. It also stated that it had not meant to suggest that the resident had lied about the conversation with the operative and that it valued her as a tenant.
    3. It noted that if the resident did not want the panels replaced, she could replace the fence herself as part of its home improvement policy.
    4. It recognised the issues the resident raised relating to her neighbour and recommended mediation as a method of resolving the issues.
14. The landlord concluded the response by informing the resident that she had exhausted its internal complaints process and advised her on the steps to take to bring her case to this Service should she remain dissatisfied.
15. In an email sent to this Service on 14 July 2021 and during a telephone conversation on 31 August 2021 the resident described the outstanding issues of the complaint. She was dissatisfied that during the inspection held on 27 May 2021, and during her correspondence in the two weeks following the inspection, the landlord did not properly explain that the existing fence was fit for purpose as per its policies. As a resolution to the complaint, the resident requested that the landlord install a six-foot high wooden fence in the garden.

Assessment and findings

16. Under the terms of the tenancy (Section 2.2, repair of structure and exterior), and in accordance with Section 11 of the Landlord and Tenant Act 1985, the landlord is obliged to keep in repair the structure and exterior of the building. The landlord’s tenant welcome pack describes what repairs are the responsible of the tenant and what are the responsibility of the landlord. This states that it is responsible for the repair and upkeep of boundary fences and fences that divide properties.
17. The landlord’s maintenance logs state that an inspection in 2019 found the boundary walls of the resident’s property fit for purpose. Following the completion of the complaint process, a further round of inspections of boundary walls took place in September 2021. This found that while the boundary wall at the resident’s property did not require replacing, repairs were required to the brickwork. This was recommended to be added to the landlord’s upcoming planned programme of work.
18. The landlord has therefore followed its obligations as stated in the tenancy agreement by arranging regular inspections of the fences in the property to ensure they are up to standard and raising work to complete repairs when needed.
19. When the resident requested a higher fence, the landlord arranged an inspection of the current fence. There is a dispute as to what information was provided to the resident by the operative during the inspection. The resident has stated that the operative had agreed with her request for a replacement wooden fence to be installed. The landlord has maintained that the operative did not have the authority to agree to replace the fence and had only recommended the replacement of four fence panels.
20. No evidence has been provided by either party to support their version of events. In conducting its investigations, the Ombudsman relies on contemporaneous documentary evidence from the time of the complaint to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances of the case. In the absence of any notes, emails or call logs to document the 27 May 2021 inspection, it is not possible to state with any certainty what was discussed between the resident and the operative.
21. The landlord’s correspondence relating to the September 2021 inspections showed that once a recommendation was made to undertake repairs to the brickwork of the resident’s boundary wall, the matter was then raised internally, and the decision made by a manager in the repairs team as to whether the work would go ahead.
22. It is therefore reasonable to assume that the same decision-making procedure would have taken place in relation to the resident’s request for a replacement garden fence and the landlord was correct when it stated that the operative who attended would not have had the authority to make that decision on their own.
23. It should also be noted that the landlord did not dispute the resident’s version of the discussions with its operative. It accepted that there had been confusion caused by the information provided to the resident and apologised for the inconvenience this had caused. This was an appropriate response by the landlord as it also had no evidence of what exactly transpired during the inspection and could only advise the resident about its policies and procedures regarding this type of request.
24. Although the landlord declined the resident’s request to replace the fence, it informed her that she could arrange to have the work done herself. This is in line with section 4.5 of the tenancy agreement (right to make improvements), which states that a tenant may make “improvements, alterations and additions to [the] home …. provided that you have first obtained our written consent and all other necessary approvals (for example, planning permission or building regulations approval). [The landlord] shall not unreasonably withhold consent but may make it conditional upon the works being carried out to a certain standard.”
25. Section 5.6 of the tenancy agreement goes on to state that a tenant has the right to claim compensation for certain improvements made to the property at the end of the tenancy.
26. In her email to this Service sent on 14 July 2021, the resident expressed her dissatisfaction that the landlord had suggested mediation as a resolution to the issues she had described with her neighbour rather than replacing the fence. Mediation is voluntary and the resident and her neighbour are both entitled to decline to participate. However, it was reasonable for the landlord to offer mediation as it can be helpful in resolving neighbour disputes in some cases.
27. Therefore, there was no evidence of service failure by the landlord when it made its decision to decline the resident’s request to replace the garden fence.

Determination (decision)

28. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its decision to decline the resident’s request to replace the garden fence. 

Reasons

29. The landlord has provided evidence to show that it had undertaken regular inspections of the fences and walls at the property to ensure they were fit for purpose.
30. As the garden fence was in a good standard of repair, a complete replacement of the fence would be considered an improvement and therefore the landlord was under no obligation to agree to the resident’s request.

Recommendations

31. The landlord should consider reviewing its record keeping practices to ensure that property inspections and other communication are properly recorded as this ensures that there is a reliable audit trail and could be useful for clarifying any arising issues.