Landlords can now complete the Complaint Handling Code Annual Submissions form. More information is available online.

Birmingham City Council (202011461)

Back to Top

REPORT

COMPLAINT 202011461

Birmingham City Council

7 March 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. Handling of the resident’s requests to replace her garden fence.
    2. Handling of the resident’s complaint.

Background

  1. The resident is a tenant of the landlord. The property is a house, located by an alleyway which leads to the resident’s back garden.
  2. (PG.61) According to the landlord’s chronology of events, (which the resident confirmed was correct) on 9 April 2020 the resident reported a damaged fence. On 2 June 2020 a repair was completed and the resident’s “old rotten fencing” was removed and replacement fencing and rails were fitted to the rear end of the garden. A further report of a damaged fence was made in December 2020. A contractor attended on 4 January 2021; however, the landlord’s offer of a replacement chain–link fence was refused by the resident.
  3. (PG.68-69,61) On 22 January 2021 the resident made a complaint to this Service, in which she said that she had reported her fence was damaged to the landlord, but had not received a response. She referred to feeling insecure with the fence due to previous burglaries and other issues relating to safety. She said she wanted the landlord to provide fencing and posts (which she said the landlord had told her she could have, and which we understand to mean wooden fence panels), or a privacy screen on the existing chain–link fence. This Service passed the resident’s complaint to the landlord.
  4. (PG.61) The landlord issued its complaint response in January 2021, and acknowledged that the resident said she had made contact. It set out its timescale of actions taken in 2020 to repair and renew the resident’s fence, and noted that she had refused its offer to replace the fence in January 2021. The landlord advised the resident to request a review of her complaint if she was dissatisfied with its response.
  5. (PDF.1-PG15) The resident explained that she refused the landlord’s offer to repair the chain–link fence, because she did not feel safe with the type of fence. She said that she had always had a timber fence, and that her old fence was still being held up with bits of wood, which she believed was unsafe. The resident said there was no privacy and that the neighbours were able to see into her garden. She believed the chain–link fence on its own was unacceptable, and asked that the landlord put in new posts and a (timber) fence, or a privacy screen with the chain–link fence. The resident asked that the landlord review its decision, she said that her old fence was still being held up with bits of wood which was unsafe.
  6. (PG.35) The landlord issued its final complaint response later in February 2021. In reference to an earlier request the resident had made about the height of the fence (of which no records have been provided), it explained its policy on fence height. It advised that where complete renewal or an entirely new fence was being considered, then chain-link fencing with concrete posts should be used. It also advised that residents who wished to “erect a fence to a boundary that is open must do so at their own expense and subject to permission being granted by the local housing manager”. The landlord explained how the resident could raise her complaint with the Ombudsman if she was dissatisfied with its response.
  7. (PG.31) The resident referred her complaint to this Service as she was dissatisfied that the landlord was only willing to fit a chain–link fence, which she believed was not secure. She reiterated that the neighbours could see straight into her garden, and that she had had several break–ins due to the fence issue. She also said that the contractors had advised her not to accept the chain–link fence.

Assessment and findings

Policies and procedures

  1. The tenancy agreement advises that the landlord is responsible for the repairs to any boundary, fence or wall it has provided.
  2. The landlord’s repairs policy states that it is vital that the type of fence offered for rear fencing is consistent and the same type. It advises that where the general condition of an existing fence is sound, repairs to make good will be completed to match the existing design.
  3. The landlord’s complaint procedure explains the actions it takes and who to contact if a resident is dissatisfied with any of the services it provides. It sets out the timescales for handling complaints. The landlord has a three-stage complaint procedure, at stage one, the landlord aims to resolve the complaint immediately. At stage two, it advises it will investigate and respond within 15 working days. If the resident is dissatisfied with its decision at stage two, a stage three review can be requested, in which it will aim to respond within 20 working days.

The landlord’s handling of the resident’s requests to replace her garden fence

  1. The resident raised a complaint with this Service in January 2021. She explained that her property was located by an alleyway and that her fence was damaged, which she said resulted in burglaries. In the landlord’s complaint response, it lists its actions taken in 2020 to resolve the resident’s reports of a damaged fence. It explained that in April 2020 a chain–link fence was fitted to replace the resident’s “old rotten fencing”, and that she reused its offer to replace the existing fence with another chain–link fence in January 2021. The landlord appropriately responded within its set timescale. In accordance with the landlord’s complaint policy, the landlord should investigate the complaint fully. However, there was no evidence to show that the landlord investigated her complaint raised in 2021; its response further confirmed that it did not do so. Failure to act in line with its policy does constitute as service failure.
  2. To get a clear understanding of the complaint, it was necessary for this Service to look at what happened the first time the fence was repaired and/or replaced. This Service would need to consider the type of fence that was in place at that point, and whether it was appropriate for the landlord not to provide a like–for–like replacement.
  3. According to the landlord’s complaint response, a repair was completed in June 2020, the resident’s “old rotten fencing” was removed, and replacement fencing and rails were fitted to the rear end of the garden. In its final response it advises that “where complete renewal or an entirely new fence is being considered, then chain link fencing on concrete posts should be used”. The landlord’s complaint responses indicate that the fence was different to the one it installed in June 2020. The resident also said that she had always had a timber fence. Therefore, this Service has relied on the evidence that there was no dispute, between the resident and the landlord, that the fence was initially wooden. While it is unclear why the fencing was changed, the landlord’s repairs policy states that “where complete renewal or an entirely new fence is being considered, then close boarded fencing should be used.” As the landlord failed to provide the appropriate fence replacement, in line with its repairs policy, this constitutes to service failure.
  4. The resident explained in her complaint to this Service that her property was located by an alleyway and did not believe the landlord’s offer of a replacement chain–link fence offered privacy or security. As there was no dispute on the location of the fence, we have relied on the resident’s statement as evidence. In response, the landlord advised her that where complete renewal or an entirely new fence was being considered, then chain–link fencing on concrete posts should be used. However, the landlord’s repairs policy lists various type of fencing as options dependant on the location. It advises that fencing adjacent to footpaths (alleyways) must provide adequate security and protection to the resident and not allow potential intruders easy access to the garden or property itself. Its repairs policy also states for fencing adjacent to footpaths and where complete renewal or an entirely new fence is being considered, then close boarded fencing should be used. The landlord’s complaint response indicates that it did not consider the specific location of the resident’s fence, i.e. a boundary fence near an alleyway. Its repairs policy states that boundary fencing should be 1.8m high timber single palisade (except where policy on specific situations/locations applies) and matching gate. The landlord’s decision to change from timber to a chain–link fence was not reasonable and did not fall in line with its repairs policy. This constitutes service failure by the landlord and it should offer compensation as detailed below in view of this.

The landlord’s complaint handling

  1.  The landlord’s complaint procedure advises that when a complaint is made, it will investigate it fully, send a full response within 15 working days, and share and keep data in line with its privacy policy. The resident raised a complaint with this Service in January 2021; she raised various concerns, including the lack of safety and privacy the chain–link fence offered. She specifically requested alternative fencing or a privacy screen with the existing fence. It would be reasonable for the landlord to address the resident’s concerns and/or to explain why it could not provide a privacy screen or fencing and posts as requested. However, the landlord has not done so in this case. Neither of the landlord’s responses analysed or appropriately addressed the resident’s concerns, and it failed to explain its position on the resident’s individual circumstances. The landlord’s complaint procedure, advises that it will listen carefully, consider all complaints, and carry out investigations fairly. Despite this, there was also no evidence of an investigation of the 2021 complaint and its responses did not engage with the resident’s complaint in any way. Therefore, this does constitute to service failure in that regard.
  2. As part of the investigation, the landlord was asked to provide documents, correspondence, and other evidence relevant to the resident’s complaint. Only limited information was received, which did not include significant items such as communication records and adequate evidence of the specification of the fence. The landlord has provided a limited description of the fence before it was damaged, its response excludes important details such as the position and type of fence i.e. boundary or dividing fence. The landlord advised that there was no correspondence, internal emails or call records relating to its handling of the complaint. This indicated poor record keeping as the landlord should have its own records of communication with the resident. The Ombudsman would expect a landlord to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
  3. As the landlord does not have a compensation policy the Ombudsman has assessed the level of compensation which should be paid using our own remedies guidance, which is published on our website. The remedies guidance suggests that the Ombudsman may award compensation in the range of £250 to £700 for instances where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant. In this case this case the landlord failed to follow its complaint procedure, and repeatedly failed to manfully engage with the substance of the complaint and failed to address the relevant aspects of the complaint, leading to considerable delay in resolving the complaint. The landlord also provided inadequate information about its repair policy. Compensation of £500 is due in view of this. 

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way it handled the resident’s requests to replace her garden fence.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in the way it handled the resident’s complaint.

Orders and Recommendations

  1. The landlord is ordered to fit a like-for-like replacement (closed bordered) fence to the resident’s back garden in line with its repairs policy. This should be replaced eight weeks from the date of our decision. 
  2. The Ombudsman orders the landlord to pay the resident £500 in compensation, for misdirection, failure to act in accordance with policy and failure to meaningfully engage with the substance of the resident’s complaint. This should be paid within four weeks from the date of our decision.