Karbon Homes Limited (202113542)

REPORT

COMPLAINT 202113542

Karbon Homes Limited

1 August 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 is about the landlord’s:
   1. response to the resident’s queries regarding the level of his rent;
   2. request that the resident remove a fence at his property;
   3. complaints handling.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. Paragraph 39(g) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

g) concern the level of rent or service charge or the amount of the rent or service charge increase.

4. The resident has raised concerns with the landlord that he is paying a greater amount of rent than his neighbour. The landlord subsequently advised that the resident’s property was rented on an ‘affordable rent’ basis, which meant it assessed the market rent in the local area and charged up to 80% of this amount. It advised that the other tenants were charged ‘social rent’, and that the calculation for this amount was different.
5. After carefully considering all the evidence, in accordance with paragraph 39(g) of the Housing Ombudsman Scheme, the complaint relating to the resident’s queries about the level of his rent is outside of the Ombudsman’s jurisdiction.
6. Complaints that relate to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The resident should seek independent legal advice should he wish to pursue this element of the complaint.

Background

7. The resident has been an assured tenant at the property of the landlord since 8 May 2017. The landlord is a registered provider of social housing.
8. The landlord carried out an estate inspection in or around September 2021. During the inspection, the landlord noted a fence surrounding the front and rear of the resident’s property. After speaking to the resident and establishing that written permission had not been formally granted for the installation of the fence, it informed the resident that the fence would need to be removed from the property.
9. On 16 July 2021, the resident raised a formal complaint. He advised that upon signing his tenancy agreement, he received verbal permission to install the fence. The resident advised he had requested the installation of a fence due to people knocking on his windows late at night. The resident also advised that he was not informed at any stage that he required formal permission for the installation of the fence and that he felt let down by the landlord’s poor communication. He also noted that other residents had fencing, and felt that the landlord had “one rule for one, but another rule for others.” He noted the landlord’s intention to remove the fence, and so requested compensation of £575 to cover the costs spent on the fence. He also requested for the landlord to install a ‘deflector fence’ to the side of his property to stop people banging on his windows.
10. Following the landlord’s stage one response, on 25 October 2021, the resident requested his complaint be escalated. The resident advised that he felt the landlord was “out of order” for not compensating him for the fence. The resident reiterated that he has been provided with verbal permission on 5 May 2017, and was not informed about putting the fencing request in writing. The resident further advised that to deter passers-by from knocking on his windows, he needed to leave lights on in the property which was an added expense.
11. The landlord provided its stage two response on 11 March 2022. The landlord advised that prior to making any improvements, residents must seek written permission. The landlord noted that the tenancy agreement stated that verbal consent will not be given for any improvement and it is the resident’s responsibility to seek written consent. It apologised if the verbal permission was given at time of sign-up. It advised that if permission is given to erect fencing in ‘open plan’ spaces, it could affect the ground maintenance of the estate. It acknowledged that some properties were granted permission to erect fences prior to 2017, but that once the tenancies for those properties ended, the fencing would be removed and reverted to ‘open plan’ spaces.
12. The landlord also advised that if anti-social behaviour (ASB) continued (i.e. knocking on windows), the resident should report this so an investigation can be opened. The landlord concluded that the resident’s complaints were not upheld. It did, however, offer compensation of £25 as a good will gesture in recognition of the length of time taken to provide the resident with a stage two response.
13. The resident has advised this service that he never received a copy of his tenancy agreement and therefore did not see the terms relating to permission. The resident has also advised that he should have been informed at time of sign-up that written permission would be needed to erect the fence. The resident stated he felt “misled and bullied” by the landlord. As a resolution, the resident would like to keep the fence erected, but if not possible then he would like compensation.

Assessment and findings

Policies and procedures

14. The tenancy agreement states that additions and alterations can occur, provided that the resident has first obtained the landlord’s written permission. It also states that verbal consent will not be given for any improvement and in the case of any dispute regarding whether consent has been given, it is the resident’s responsibility to provide the landlord with evidence of its written consent. Without evidence, the landlord will assume that consent was not given.
15. The landlord’s communal area policy states that residents must not fence in or erect any structure such as sheds or greenhouses on open plan communal areas. The landlord will not give consent for residents to erect fencing on these areas.
16. The policy also states that the landlord recognises that some residents have been given permission for fencing and other structures on open plan areas prior to April 2017. Any existing fences can remain in place for the duration of the individual resident’s tenancy, however, once that tenancy comes to an end, the enclosed area will be returned to open plan land.
17. The landlord’s complaints policy states that its stage one and stage two complaint responses will be provided within five working days, unless there are mitigating reasons to extend this.

Fence

18. It is not disputed that the resident erected a fence in the open plan communal area surrounding his property.
19. The tenancy agreement states that written permission must be obtained in order to erect a fence. It is not disputed that the resident did not obtain written permission. The resident has advised that the landlord should have made it clear that written permission was required and that he was not provided with a copy of his tenancy agreement, however, this service has been provided with a copy of the tenancy agreement which has been signed by the resident. The tenancy agreement also included a statement which read that “by signing this agreement you are confirming that you have read, understood, and accept as fair and reasonable the terms and conditions of this tenancy.” This indicates that the resident had the opportunity to review the tenancy agreement, including the term requiring written permission for a fence. It was therefore reasonable for the landlord to rely on this term and for it to request that the fence be removed based on the lack of permission. The Ombudsman notes that the resident does not agree with this position. The Ombudsman does not have jurisdiction to make decisions on challenges to the interpretation of the terms of a tenancy agreement. This is more suited to the courts. Should the resident wish to challenge the interpretation of the term requiring written permission, he should seek further legal advice.
20. The resident has advised that he was given verbal permission to erect a fence at the time he signed the tenancy agreement. The Ombudsman does not dispute that this conversation occurred, but was not present at the time, and has not been presented with any corroborating evidence regarding the verbal permission. The tenancy agreement states that verbal permission is not sufficient to be considered permission. The tenancy agreement also states that in the case of any dispute regarding whether consent has been given, it is the resident’s responsibility to provide the landlord with evidence of its written consent. Without evidence, the landlord will assume that consent was not given. As noted above, it is evident that the resident had the opportunity to review these terms. In the absence of any corroborating evidence, it was reasonable for the landlord not to consider the verbal permission to be valid permission for the fence.
21. As part of his complaint, the resident highlighted that other residents had been given permission for fences. In its formal responses, the landlord advised that its current policy is that no permission will be granted, and that the existing fences will be removed when possible. The resident has expressed his dissatisfaction that the other existing fences are allowed to remain but his is to be removed. Given, however, that the landlord gave formal permission for the other fences, but does not consider that formal permission was given to the resident, it is reasonable to seek the removal of the fence, in line with its policy.
22. The resident also requested compensation for the cost of the fence materials. Given that the landlord had not granted permission for the installation of the fence, it was reasonable for it not to offer compensation.
23. The Ombudsman has not been provided with any evidence to suggest the landlord is obligated to install a deflector fence. Following the resident’s request that the landlord install a deflector fence, it was reasonable that the landlord requested that in the first instance, he should report the instances of people knocking on his windows as ASB. This will allow the landlord to assess the ASB in line with its policy and subsequently take appropriate action.
24. In summary, while it would be understandably frustrating for the resident to have to remove the fence, especially given his position that verbal permission was granted, it was nevertheless reasonable for the landlord to consider that no valid permission was given and for it to request it be removed, in line with its policies.

Complaints handling

25. The resident attempted to escalate his complaint on 25 October 2021 and 29 November 2021. However, the landlord did not escalate the resident’s complaint until 28 February 2022, when the resident again requested his complaint be escalated.
26. As per the landlord’s complaints policy, a response at both stages of the complaint process should be provided within five working days. However, the landlord did not provide a stage two response until 99 days after the resident requested an escalation. The landlord did not provide a reason for this delay, and there is no evidence that it contacted the resident to inform him there would be a delay to its response. Therefore, the landlord has not acted in line with its policy.
27. The delayed response would have caused distress for the resident and caused him to expend time and trouble in chasing up the complaint response on several occasions. While the landlord appropriately acknowledged the delay and offered compensation of £25, in the Ombudsman’s opinion, this was not sufficient to represent the multiple instances the landlord failed to respond to the resident’s requests that his complaint be escalated. In the circumstances, this delay amounts to service failure. An amount of £100 compensation is appropriate to reflect this service failure and the impact it had on the resident. This amount is in line with the Ombudsman’s remedies guidance, as set out above which suggests awards of £50 to £250 for cases where the Ombudsman has found that there has been service failure by the landlord but where the failure is not likely to have affected the overall outcome for the complainant.

Determination

28. As noted above, in accordance with paragraph 39(g) of the Housing Ombudsman Scheme, the complaint relating to the resident’s queries about the level of his rent is outside of the Ombudsman’s jurisdiction.
29. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response regarding the resident’s concerns about a fence at his property.
30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord regarding its complaints handling.

Orders

31. The Ombudsman orders the landlord to pay compensation of £100 for its ineffective complaints handling.
32. This replaces the landlord’s previous offer of £25. This amount must be paid within four weeks of the date of this determination.