Hyde Housing Association Limited (202200699)

REPORT

COMPLAINT 202200699

Hyde Housing Association Limited

24 November 2023

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

The complaint is about:
1. The landlord’s handling of repairs to the resident’s fence.
2. Information provided by the landlord in relation to responsibility for fence repairs.
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Scope of the investigation

The resident’s initial concerns about the landlord’s handling of fencing repair date back to 2016-17 (complaint A) and therefore fall beyond the scope of this investigation but will be referred to for context. The matter arose again for the second time in 2020-21 and this investigation is focussed on the resident’s complaint about the handling of fencing repairs at this time (complaint B). The resident made a further complaint after the issues of repairs to fences arose for the third time in February 2022 (complaint C) – this complaint has been investigated separately by the Housing Ombudsman Service (the Service) under the reference 202206410 and shall therefore not be revisited. However, again it has been referred to for context.
The resident reports she has assisted other residents with their complaints about fencing repairs at their properties and feels the landlord should offer compensation for all her time and trouble over the years the issue has arisen. The Ombudsman normally investigates complaints that concern a resident’s reports about their own property. We may deviate from this if a complainant is an authorised representative for other individuals’ complaints which have exhausted a landlord’s complaints procedure. This is not applicable here as other residents must individually refer their complaint to the Service, for separate investigation. Therefore, the resident’s time and trouble assisting other residents is not considered within this investigation. However, this investigation does consider the wider issue of the responsibility of fencing repairs across the estate.

Background

The resident is a secure tenant of a 2-bedroom ground floor flat. She entered into a tenancy agreement with her previous landlord in December 2008. In March 2016 the estate in which the flat is situated was transferred to her current landlord. The resident’s tenancy agreement states that the landlord is obliged to “keep in good repair the structure and exterior of the Premises including… (viii) boundary walls and fences”.
The landlord’s Complaints Policy defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by Hyde, our staff, or those acting on our behalf, affecting an individual resident or group of residents. The policy sets out that it has a 2 stage complaints procedure. Stage 1 commits the landlord to acknowledging the complaint within 2 working days with a full response within 10 working days. If the resident remains dissatisfied, they can request escalation of their complaint to stage 2. A senior manager review should then take place with a response being given within 20 working days. At both stages, if the landlord requires further time to respond, it should inform the resident and send the response within a further 10 working days.
The Complaints Policy states that “compensation payments may be paid at the discretion of the investigating manager, in line with this policy and to reflect the circumstances of each case.”
The landlord’s Responsive Repairs Procedure sets out its approach to repairs. It states that non-emergency repairs are categorised as “anytime repairs” and it commits to carrying them out in 20 working days. It states that its call handlers should check whose responsibility the repair is and refer it to another team who will investigate in the event of any “uncertainty”. The procedure notes that sometimes a pre-inspection with a surveyor may be required. The landlord’s Pre and Post Inspection Procedure states that this should happen within 10 days of the visit being requested. Neither policy confirms whether the 20-day timescale includes or is additional to this 10-day period.
The landlord’s Fencing and Boundary Wall Procedure (March 2020) states that “existing fences separating gardens from a neighbour’s garden are the resident’s responsibility to maintain, unless stated otherwise in the tenancy or lease agreement” and “this procedure should be read in conjunction with the resident’s individual occupancy agreement…”. The Responsive Repairs Procedure also states that “Garden Fences including repair and replacement” are the responsibility of the customer.
The property has a rear garden with wooden fencing that separates the garden from the neighbouring gardens. Not long after the transfer, the question of repair responsibilities for the fence arose (complaint A). The landlord advised that internal boundaries such as dividing fences are for tenants to maintain as stipulated in its policies and procedures. In an exchange of correspondence from 30 October 2016, the resident questioned this on the basis that her tenancy agreement with her previous landlord stated that it would keep all boundary walls and fences in good repair.
The landlord referred the issue to its legal team which confirmed it was responsible for such maintenance. On 22 February 2017 the landlord advised the resident “I can now confirm that we are contractually bound to maintain existing boundary walls and fences where it is outlined in the tenancy agreement as part of landlord’s responsibilities.”

Summary of Events

At the end of 2020 / early 2021 the question of repair responsibility for fences arose again following Storm Bella. The resident has stated that she supported 4 neighbours making complaints after the landlord told them it was their responsibility to carry out fencing repairs.
On 14 April 2021 the resident wrote to the landlord, copied to her old landlord, the government and the Service. She complained that residents on the estate routinely were being given incorrect information by the landlord, namely that it was their responsibility to repair or replace damaged fencing. She advised that she and at least 6 other residents had been refused fence repairs. She asked the landlord to ensure that it and all residents held the correct tenancy agreement, it provide correct information to all residents and take all responsibility for all damaged fencing reported to it. The resident did not receive a response from the landlord.
On 31 May 2021 the resident wrote to several staff and board members at the landlord again, chasing a response to her email of 14 April 2021. In response, on 9 June 2021 the landlord advised that it had registered a stage 1 complaint (complaint B) and asked the resident if she any further comments to add. Also, on 9 June 2021 the landlord phoned the resident to advise her that it would be inspecting her fence on 11 June 2021.
On 11 June 2021 the landlord with its contractor inspected the resident’s fence and carried out garden fence surveys on the whole estate.
On 11 June 2021 the resident wrote to the landlord:
1. She stated she would like compensation for:
  1. the stress and inconvenience of having to bring the matter twice to the landlord’s attention.
  2. for having to give support to other residents who the landlord had given legally incorrect information to.
  3. having to escalate the matter the senior staff, the Board, the regulator and the Service.
2. She reiterated that she wanted it to repair all damaged fencing that it had previously failed to repair.
3. She also asked again the landlord to explain:
  1. how it would ensure that it had tenancy agreements for all 105 properties on the estate and each resident also had their own agreement.
  2. how it would ensure it would not give residents legally incorrect information about the repair or replacement of all damaged garden fences.
4. She suggested it write to all residents enclosing the tenancy agreement with a covering letter confirming the position and asking them if any fencing works were required or had been completed by them.
On 16 June 2021, the landlord provided the stage 1 response to the complaint:
1. It agreed that it had provided information based on its policy and not what was written in the tenancy agreement. It should have referred to the agreement before responding to the resident’s request to repair the garden fence.
2. It apologised for the fence repair being challenging and difficult for the resident and offered compensation of £150 which comprised:
  1. £100 for the distress and inconvenience caused by pursing her complaint and for complaining twice about garden fence repairs.
  2. £50 for the delay in responding to the complaint.
3. It could not compensate the resident for her time in pursuing complaints for her neighbours on this issue; however, other residents could approach it separately.
4. It had agreed to replace fence panels between the resident’s garden and her neighbour.
5. It had agreed to look at the whole estate to ensure that garden fences were all in order. Its contactor had surveyed garden fences on 11 June 2021. It would repair or replace garden fences where this was required.
6. It would put a note on the files of all stock transfer tenants to ensure that staff looked at the tenancy agreement before responding.
On 28 June 2021 the resident requested her complaint be escalated to stage 2. She stated that it had not gone far enough to acknowledge the frustration, stress and inconvenience caused to her and other residents. On 2 July 2021 the landlord responded stating it was sorry that the resident felt it had not gone far enough in acknowledging the resident’s stress and inconvenience, but it had apologised, offered compensation and outlined how it would put matters right, which was in line with its complaints procedure. It would not escalate the complaint as there was no new information.
On 12 July 2021 the resident again asked for the landlord to escalate her complaint stating:
1. it had not referenced the outcome of the first complaint from 2016-17 in responding
2. other residents had asked for assistance after Storm Bella
3. it had not responded to her complaints of 14 April 2021 and 31 May 2021
4. it should have put a note advising of the need to look at the tenancy agreement of transfer tenants after the complaint on 2016-17.

She also again suggested that the landlord write to all ground floor transfer tenants to inform them that it was responsible for all garden walls and fences.

On 20 July 2021 the landlord responded to the resident’s complaint escalation. It advised that it had reached a decision on her complaint based on information she had provided, conversations with people involved and relevant policies and procedures. It stated that it had responded to all points made and made a fair offer of compensation. The resident had provided no new information therefore it would not change its decision. The landlord also stated that this was the final response to the complaint, therefore the complaints process had ended.
On 4 August 2021 the landlord wrote to the resident advising that the repair or replacement of fencing on the estate would commence on 20 September 2021 and that she would be contacted nearer the time. The landlord’s repair records do not confirm exactly when the resident’s fence was fixed.
On 22 August 2021, the resident referred her complaint to the Service. However, her correspondence was added to another existing case, in error, which caused a delay by the Service in considering the correspondence. In February 2022, further fencing repairs were required following Storm Eunice. The landlord disputed responsibility for the repairs again, and so the resident raised a further complaint (complaint C). The resident also contacted the Service and confirmed that her correspondence of August 2021 was not related to the existing complaint we had open. Following the resident’s clarification, we wrote to the landlord on 17 May 2022 and asked it to escalate the resident’s complaint (complaint B) to stage 2 of its process.”
The landlord then reopened the complaint and provided a stage 2 response dated 24 June 2022 which combined complaint B and complaint C. As noted above, complaint C has been investigated separately by this Service and therefore shall not be revisited by the Service within this investigation.
In the response of 24 June 2022, the landlord:
1. stated that it had taken the action agreed in the response of June 2021. It had repaired the resident’s fence and had successfully added an alert to its system to ensure that it would not make the same errors about responsibility of all future repairs.
2. noted that it had formally ended the complaints procedure in 2021 but reversed the decision after it was contacted again, escalating the complaint in the process. It accepted and agreed that it had failed to correctly enforce its internal complaints process and considered it appropriate to award some further compensation to make up for the resident’s experience with regards to its complaint handling specifically.
3. awarded £125 compensation which comprised:
  1. £50 for the poor communication, and time and trouble.
  2. £25 for the distress and inconvenience caused.
  3. £50 for the complaint handling failures.

Assessment and findings

The landlord’s handling of repairs to the resident’s fence

The landlord’s repair records do not confirm when the resident first reported a repair to her fence after Storm Bella. This lack of a record is a failing on the part of the landlord as repair records assist the landlord in fulfilling its repair obligation. Therefore record keeping and management is a core function of a repairs service. Accurate and complete records ensure that the landlord has a good understanding of the condition of the property and external areas, and enable outstanding repairs to be monitored and managed.
The resident’s email of 14 April 2021 indicates she had reported the fence repair by that point in time. As the resident was pursuing the fence repair the landlord had a responsibility to respond, confirming responsibility for the repair as necessary. However, it failed to do. This was particularly unreasonable as the resident had specifically directed it to look at the tenancy agreement.
The landlord did not agree to the repair until 9 June 2021, when it agreed for a surveyor visit. Ultimately, the landlord did not complete the repair after 20 September 2021, as confirmed by its correspondence of 4 August 2021. The landlord was required to complete the fencing repair within 20 working days as stated in the Repairs Procedure. Although the exact dates of when the resident first reported her fence repair and when the works were completed cannot be confirmed, the landlord took considerably longer to complete the works, with a delay of at least 4 months. Even if a further 10 days is allowed for the surveyor inspection, the length of the delay is not significantly shortened. The lack of a record confirming exactly when the resident’s fence was repaired and the works carried out is another record keeping failure.
When investigating complaints, the Service considers whether a landlord has put things right and resolved the complaint satisfactorily in the circumstances by offering redress. In doing so, the Ombudsman considers whether the offer of redress was in line with our Dispute Resolution Principles to Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies. In this case, the landlord has not offered compensation specifically for the distress and inconvenience caused by the outstanding repair to the resident’s fence, for the full duration. As such, the Ombudsman has made a series of orders aimed at putting things right.

Information provided by the landlord in relation to responsibility for fence repairs

Over and above the handling of her fence repair the resident complained about the information provided by the landlord in relation to the responsibility for fence repairs. Incorrect information prompted the resident to write to the landlord on 14 April 2021 and 31 May 2021. The landlord in responding to the resident’s complaint accepted that it had given incorrect information to the resident and her neighbours as it had not referred to the tenancy agreement. The tenancy agreement is the contractual agreement between the landlord and its residents, and should be referred to in the first instance. Moreover, the landlord had not followed its Fencing and Boundary Wall Procedure which states that it should be read in conjunction with the tenancy agreement.
While accepting that it had provided incorrect information, the landlord did not investigate why this has happened and provide an explanation to the resident. This was particularly unreasonable given that the resident had complained before in 2016-17 and had a reasonable expectation she and other residents would not need to further dispute the responsibility for fence repairs with the landlord. Moreover, the resident specifically stated she was unhappy about raising the matter for the second time. The prior complaint was in effect an aggravating factor, therefore it was unreasonable that the landlord did not take this into account and investigate why it had continued to provide incorrect information about fence repairs. This may have included considering why it had not previously put on a note that staff should look at the tenancy agreements for stock transfer tenants.
The resident on several occasions suggested ways to prevent the situation arising again. She suggested that the landlord proactively ensure all parties had access to the tenancy agreement and confirm to residents in writing its responsibility for fencing repairs. While the landlord was not obliged to take this action, it gave no good reason why it would not. The resident’s suggestion was pragmatic insofar as all parties would be clear on the responsibility for fence repairs. It was unreasonable that the landlord overlooked this aspect of the resident’s complaint and in doing so it missed an opportunity to put matters right.

Complaint Handling

The resident expressed dissatisfaction with the landlord’s handling of her reports of fencing repairs in her email of 14 April 2021. The landlord failed to follow its complaints procedure by not registering a formal complaint at this point. In fact, if failed to respond. After the resident wrote again on 31 May 2021 the landlord registered a complaint, although it did not meet the 2 working day timeframe. The landlord acknowledged the delays and offered £50 compensation in the stage 1 response of 16 June 2021. This was a discretionary offer in line with the landlord’s Complaint Policy and provided proportionate redress.
The resident sought to escalate her complaint on 28 June 2021 and 12 July 2021. The landlord declined to do so. The Service’s Complaint Handling Code in effect at the time stated, “landlords should not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action.” The landlord did not provide adequate reason for not escalating the complaint as it did not address the points that resident had raised, but summarily stated it had considered all information. As a result, the landlord did not handle the resident’s complaint fairly.
The landlord in the stage 2 response accepted that it should have escalated this complaint and offered £50 compensation for complaint handling failures. The Service’s investigation of complaint C under the reference 202206410 noted the response of 24 June 2022 also covered the handling of the third complaint and ordered the landlord to pay a further £50 specifically for failings in the handling of the third complaint. Regardless, given that the resident twice sought to escalate this complaint and had to contact the Service to pursue it the landlord’s offer remains disproportionate. We have therefore made an order for further compensation of £50.
Taking the stage 1 and 2 responses together, the landlord offered a total of £175 for the resident’s distress and inconvenience and her time and trouble, £100 at stage 1 and £75 at stage 2. The landlord recognised that the resident had complained twice about garden fence repairs but the distress caused to her increased with the repeat of the issue, and her confidence in the landlord’s ability to administer repairs in line with the tenancy agreement was not restored. In particular the landlord did not confirm that it or its contractor would refer, or even have the means to refer to, the tenancy agreement.
The stage 2 compensation award of £75 was also intended to reflect the resident’s time and trouble and distress and inconvenience arising from the landlord’s handling of the complaint C. The investigation under 202206410 ordered the landlord to pay this award plus added redress for the handling of the third repair. Considering that the stage 2 award of £75 has not been used for redress for this single complaint, the Service has found that the landlord did not offer adequate redress which adequately reflected the failings in this complaint.
The stage 2 response of 24 June 2022 conflated the complaint B and complaint C. This was unreasonable as the complaints concerned distinct reports of repairs to fences made separately in different years. In conflating the complaint, the landlord did not demonstrate that it had fairly considered the full circumstances of each complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of repairs to the resident’s fence.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the information it in relation to responsibility for fence repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaints handling.

Reasons

There was a significant delay in the repair of the resident’s fence. The landlord has not offered compensation specifically for the distress and inconvenience caused by the outstanding repair to the resident’s fence, for the full duration.
While accepting that it had provided incorrect information about responsibility for fencing, the landlord did not investigate why this has happened and provide an explanation to the resident. It was also unreasonable that the landlord overlooked the resident’s suggestions to prevent the situation from arising again.
While the landlord accepted there were failings in its complaint handling and in its handling of the substantive repair issue, taken altogether, including the conflation of complaint C, it did not offer adequate redress which adequately reflected all the failings in this case.

Orders and recommendations

Orders

The landlord should apologise to the resident for the failures identified in this report.
The landlord should pay the resident £425, which comprises:
1. £75 for the distress and inconvenience caused to the resident by the delay to the repair of her fence.
2. The £50 offered for the delay in dealing with the resident’s complaint at stage 1.
3. £50 specifically for the resident’s time and trouble caused by the failure to escalate the complaint in 2021.
4. £250 for the resident’s distress and inconvenience in pursuing her complaint twice about garden fence repairs and her time and trouble.
5. The landlord may deduct the sum of any payments of compensation already made to the resident that were offered in the complaint responses of 16 June 2021 and 24 June 2022.
The landlord to review the alert on the resident’s file to ensure it works as intended, and to consider any appropriate action if it does not. As part of this it should carry out a test of the alert to ensure that the alert works appropriately when raising a repair, particularly a fence repair.

Recommendations

The Ombudsman recommends:
1. the landlord to consider taking steps to ensure that its staff and contractors are aware it may have different repair obligations for the resident’s estate, such as via an alert that appears when raising repairs for any properties on the estate.
2. the landlord to consider taking steps to ensure that residents at the complex are aware that their tenancy agreements may give it obligations for repairs such as fences.
3. the landlord to consider investigating if any other residents have paid for fencing repairs which it is responsible for under their tenancy agreement, and to offer reimbursement, if it has not already done so.
4. the landlord to review the way it records requests for fence repairs and the action taken in response to ensure that there is a full audit trail that can be accessed and followed.