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Leeds City Council (202303630)

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REPORT

COMPLAINT 202303630

Leeds City Council

30 July 2024


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 response to the resident’s request for a new garden fence.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is a secure tenant. Her tenancy commenced on 8 July 2022. The property is a 2 bedroom house with front and rear gardens. The resident is disabled and suffers from osteoarthritis and bipolar disorder.
  2. On 9 July 2022, the resident asked the landlord if a works order had been raised for a fence to be installed in her front garden. A fence was previously in place along the front boundary of the property but was removed by the landlord during the void period due to the fence posts being damaged. The landlord advised her that a works request had been raised for some garden maintenance to be carried out, but that a new fence would not be provided. It said this was in compliance with its fencing policy.
  3. The resident asked the landlord to install a fence on 2 further occasions in July 2022, including via an elected representative. She said it was the landlord’s responsibility to replace what it had removed. She explained that she looked after her 1 year old grandchild 3 days a week and had 2 small dogs. The garden was therefore unsuitable for her needs as it was not secure. The landlord explained in response that its fencing policy contained criteria that needed to be met before it would consider installing a fence. The criteria had not been met in this case. It advised the resident that she could seek permission if she wanted to purchase and install her own fence.
  4. On 5 September 2022, the resident emailed the landlord to complain about various repair issues and its communications with her in relation to these. She also complained that the landlord removed the fence without replacing it at a time when “the property was empty and there was no one to complain.” She stated that all the issues she raised had caused her “a great amount of stress” and that she was “already vulnerable with having a mental health condition as well as physical disabilities.”
  5. The landlord acknowledged the resident’s correspondence as a stage 1 complaint. Between October 2022 and February 2023, it carried out garden maintenance as well as some repairs inside the property. It did not however install a fence. On 9 February 2023, the landlord emailed the resident to advise that as all the outstanding repair work had been attended to, it would close her complaint. It said that its position remained that it would not install a new fence as the criteria in the fencing policy was not met. It asked the resident to confirm if she was happy with the email, which was not drafted as a formal complaint response, or if she would prefer “a formal letter” was issued.
  6. In April 2023, the resident contacted the Ombudsman to complain that the landlord would not install a fence in her front garden to replace the one it had removed. She said that she could not let her granddaughter or dogs into the front garden due to safety concerns. Other people’s dogs were defecating in the garden and she was unable to store anything of value into it such as play equipment or furniture. The Ombudsman referred this complaint to the landlord and asked that it formally respond.
  7. The landlord issued a stage 1 complaint response on 21 August 2023. It addressed all the issues raised in the resident’s original complaint on 5 September 2022. In relation to the fence, it said that it assessed it as being damaged during the void period. It made the decision to remove it without replacement in line with its lettable standard and its fencing policy.
  8. The resident was unhappy with the landlord’s response in relation to the fence and asked to escalate that aspect of her complaint.
  9. The landlord issued a stage 2 complaint response on 18 September 2023. It said that the decision not to install a new fence at the time the old fence was removed was taken in line with its fencing policy. It set out the relevant extracts of the policy within the response. It highlighted that as the fence was removed during the void period, it was not there when the property was offered to the resident. The landlord maintained its position that it would not install a new fence.
  10. The resident remained unhappy with the landlord’s refusal to provide a new fence and referred the matter to the Ombudsman.

Assessment and findings

The landlord’s response to the resident’s request for a new garden fence

  1. In line with its ‘Letting Standard’, the landlord provided the resident with an opportunity to view the property before she accepted it. The viewing took place on 5 July 2022. The resident’s Occupational Therapist was present to ensure it was suitable for her needs and to advise the landlord of any adapations required. It would have been evident during the viewing that no fence was in place given it had already been removed by the landlord during the void period. There is no evidence that any issue was raised in relation to the removed fence during the viewing and no suggestion that the landlord indicated it would be replaced. On 9 July 2022, which was the day after the tenancy commenced, the resident contacted the landlord to enquire when a new fence would be installed. The landlord adopted a clear stance from the outset that it would not be installing a new fence. In doing so, it relied on its ‘Fencing and Gates’ policy.
  2. The ‘Fencing and Gates’ policy outlines that the landlord is under no statutory obligation to provide, repair or maintain fencing and gates. However, in accordance with its policy and the tenancy agreement, the landlord will carry out minor repairs to fences and gates that it installed or that existed at the start of a new tenancy. Prior to a new tenancy starting, the landlord will ensure that any existing fencing and gates are functional and secure. If a boundary fence or gate is beyond economical repair and no longer fit for purpose, the policy provides that the landlord will only replace it in the following circumstances:
    1. Where a garden adjoins a busy road and there are young children or vulnerable adults living as registered household members, where failure to replace the fence or gate would allow free and unrestricted access onto the road.
    2. Where differences in ground levels pose a risk to health and safety.
    3. To remove other health and safety risks to householders and members of the public.
    4. To prevent damage occurring to personal possessions or property.
  3. The policy provides that any requests for the replacement of fencing or gates that do not meet the above criteria will be the resident’s responsibility. If a resident wishes to install a new fence or gate, they must seek the landlord’s consent to do so and must bear the costs as well as the ongoing maintenance responsibility. The policy states that the landlord will not install fencing or gates to contain pets as it is “the owner’s responsibility to look after their pets and prevent them roaming.”
  4. In the current case, the resident’s position was that as the landlord removed the fence that was there previously, it should replace it. However, this is not the position as set out in the fencing policy which, as outlined above, limits the circumstances in which the landlord will replace fencing. It was reasonable that the landlord referred to and followed its policy in this regard. When it initially removed the damaged fence posts during the void period, the landlord considered that there were no criteria applicable to justify replacing the posts and reinstating or replacing the remainder of the fence. When the resident requested it install a fence, it appropriately reconsidered its position to determine if anything had changed to justify this in line with the policy.
  5. The main reasons given by the resident to the landlord for requiring the fence was to secure the area so it could be safely used by her grandchild and 2 dogs. The fencing policy is clear that the landlord will not provide fencing to secure dogs and that this is the resident’s responsibility. However, the policy does require the landlord to consider health and safety risks to householders and other members of the public. It is evident that the landlord considered this. It explained in its initial correspondence to the resident in July 2022 that it would have installed the fence if her property was on a main road or bus route, but it was not. It advised her of this again in its stage 2 complaint response and further added that there was a large, verged area between the path outside her property and the road. It reasonably reached the conclusion that none of the criteria within the fencing policy had been met and it clearly communicated this to the resident.
  6. The resident’s reasons for requiring a fence are understandable. At no stage did the landlord suggest her reasons were invalid. Rather, it was that the reasons did not justify the fence being installed by the landlord at its expense. A new fence would constitute an improvement to the property and the landlord was not obliged by the tenancy agreement or its policy to make this improvement. It was only required to repair and maintain existing fences, but at the start of the tenancy no existing fence was in place.
  7. It was open to the resident to install the fence herself and the landlord advised her of this when she initially made enquiries in July 2022. Whether the landlord could have used some discretion to support the resident in taking on that responsibility is considered in more detail below under complaint handling. However, the landlord’s decision that it would not install the fence at its expense, was made in accordance with its fencing policy. It explained its reasoning clearly to the resident through its complaint responses. The Ombudsman therefore finds that there was no maladministration in respect of the landlord’s response to the resident’s request for a new garden fence.

 

The landlord’s complaint handling

  1. The resident sent an email to the landlord on 5 September 2022 to complain about various issues including repairs, the landlord’s communications when arranging appointments, and its refusal to install a new fence. She also said she felt she had been “taken advantage of” by the landlord as it knew she “was in need of an adapted property and they are hard to come by.” The resident stated she was making a “complaint” a number of times in the email. She said, “I would like this complaint to be looked at and someone to get back to me with answers please.” It was therefore appropriate that the landlord recorded this as a formal complaint. It sent her an email to acknowledge receipt the next day and advised her that it would carry out a “full investigation” under its complaints process which would be completed by 26 September 2022.
  2. However, following this, the landlord then proceeded to deal with her complaint informally. It is unclear when and why it took this decision. Its complaints policy provides that upon receiving a complaint, it “will look at whether we need to start a full investigation or if we could resolve the issue for you quickly. If we think we can do so, we may contact you to discuss this with you with the hope of resolving your issue.” The landlord had already determined however, by virtue of the acknowledgement email on 6 September 2022, that it would formally investigate the complaint. The landlord has provided the Ombudsman with no records to evidence that it agreed with the resident that it would instead take an informal approach. The next written record provided by the landlord was an email issued to the resident over 6 weeks later on 20 October 2022. In this email, the landlord said it would be in contact with the resident to agree a meeting date to discuss her complaint. There was no reference to the fact a formal complaint response was due to be issued 4 weeks previously, and no explanation as to the landlord’s intentions to instead deal with the matter informally.
  3. The only other written record on the landlord’s complaint file, prior to the Ombudsman’s intervention, was an informal email to the resident on 9 February 2023. The landlord advised her that it was closing the complaint due to all outstanding works being completed. It advised that the decision regarding the fence remained the same. It asked the resident to confirm if she was happy or if she would prefer it to write a “formal letter.” There was no explanation given as to what was meant by this. There was no reference to the fact that as the complaint had not been through the formal process, the resident was unable to refer her complaint to the Ombudsman. It meant that when the resident did contact this Service in April 2023, we were not in a position to investigate as it had not been dealt with through the landlord’s internal complaints process.
  4. The Ombudsman encourages early resolution of complaints. It also recognises that there are times when a resident might make a complaint that is essentially a request for a repair to be carried out. It may be appropriate in such circumstances to try and resolve the issue informally. However, if the resident has clearly stated they are making a complaint, any decision to treat it informally should be made in agreement with the resident and clearly documented. The discretion should also be carefully exercised. In the current case it is difficult to understand why the landlord believed this was an appropriate complaint to be dealt with informally. There were a range of issues raised that were not solely repair requests that could be quickly resolved. In relation to the fence, the landlord was confident in its position that it would not be installing a new one. It therefore ought to have known that it would not be able to provide an informal resolution that would satisfy the resident.
  5. It is recognised that the landlord addressed the outstanding repairs between October 2022 and February 2023 when it was informally dealing with the complaint. However, for the reasons outlined above, the informal processing was inappropriate. In managing the complaint in this manner, the landlord was not complying with its policy or the Ombudsman’s Complaint Handling Code (the Code). This amounts to service failure in its complaint handling.
  6. Once the landlord formally processed the complaint, it issued stage 1 and stage 2 complaint responses in a timely manner in line with its policy and the Code. It addressed all aspects of her complaint. It was good practice that the complaint handler at stage 2 rang the resident before issuing the response. This demonstrated that it was taking time to understand her complaint and explain its reasons to her.
  7. As outlined in the previous section of this report, it was reasonable that the landlord relied on its fencing policy and determined that it would not install a new fence. However, the Ombudsman encourages landlords to respond to residents in a compassionate manner and to find solutions to resolve the complaint where possible. The landlord’s fencing policy recognises that it is appropriate to take individual circumstances into account when implementing the policy. Accordingly, it contains a provision that confers discretion on the landlord to install fences even if it would not normally be its responsibility to do so. The policy recognises that in such cases, the landlord will usually recharge the resident for the work. It states that it would be appropriate to consider exercising the discretion if the resident is unable to carry out the work themselves and has no family or other support to assist them with doing so.
  8. The landlord advised the resident when she first enquired about the fence in July 2022 that she could seek permission to install one at her expense. However, it did not ask if she had anyone who could assist her to do so. It does not appear to have considered exercising its discretion and offering to install the fence provided the resident covered the cost. The resident may not have been agreeable to this or may not have had the means to pay for the fence. However, it would have been reasonable for the landlord to instigate a conversation in this regard, particularly as the resident has vulnerabilities and advised the situation was causing her “a great amount of stress”. Having such a conversation may have enabled the landlord to consider if there was any other advice or support it could offer her, for example, with regard to dogs defecating in her garden. Given this, the Ombudsman requires the landlord to consider whether it should exercise the discretion provided for within its fencing policy to offer assistance to the resident with installing a fence. All options should be considered and discussed with the resident.
  9. Overall, the Ombudsman finds that there was service failure in the landlord’s complaint handling. This is due to the informal manner in which it initially responded to the resident’s complaint. It is recognised that despite responding informally, the landlord took steps to ensure outstanding repairs were attended to and it provided an explanation as to why it would not replace the fence. However, by processing the complaint informally, the landlord did not adhere to the requirements of the Code. This led to a delay of 5 months before the resident was able to refer her complaint to the Ombudsman for investigation. Given this, and in line with the Ombudsman’s remedies guidance, the landlord is ordered to pay the resident £200 compensation for the time and trouble she spent in pursuing her complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s request for a new garden fence.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaint handling.

Orders

  1. Within 4 weeks of the date of this report, the landlord should:
    1. Apologise to the resident for the complaint handling failure identified in this report. The apology should follow the best practice set out in the Ombudsman’s apologies guidance.
    2. Pay the resident £200 compensation on account of the complaint handling failure.
    3. Consider whether it should exercise the discretion provided for within its fencing policy to offer assistance to the resident with installing a fence. It is recognised that as per the policy, any such offer may entail rebilling the cost to the resident. All options should be considered and discussed with the resident.