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Broxtowe Borough Council (202008071)

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REPORT

COMPLAINT 202008071

Broxtowe Borough Council

24 February 2021


 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. This complaint is about:

a)     the landlord’s handling of the resident’s request to replace her garden panel fencing.

b)     the conduct of the landlord’s contractors.

c)     the landlord’s response to the resident’s request for permission to build a driveway and remove a wall in front of the property.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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.

Conduct of the landlord’s contractors

  1. On 13 July 2020 the resident reported to the landlord an incident with its contractors, who were removing scaffolding from another property on the street (the property was owned by the landlord). She said that the contractors were rude to her and refused to move their van, which was blocking the road. She damaged her car while trying to maneuver it around the contractor’s vehicle. She raised a complaint about the matter.
  2. Paragraph 36 of the Scheme states that “The person complaining, or on whose behalf a complaint is made must have been, in the Ombudsman’s opinion, adversely affected by those actions or omissions in respect of their application for, or occupation of, property.”
  3. As the contractors were attending a separate property, and the incident happened on a public street, the matter was not in relation to the resident’s “occupation of property”. Therefore, in line with paragraph 36, it is not a complaint that can be considered by the Ombudsman.

Request for permission to build a driveway and remove a wall in front of the property

  1. On 12 August 2020 the resident said to the landlord that she had not received a response to her request for permission to knock a wall down to enable her to build a drive. The landlord responded to the complaint and, on 4 September 2020 the resident mentioned “also, the wall at the front of the house.” In the landlord’s final response, it confirmed that it was unable to find any records of a determination being issued on the resident’s request to remove her front wall to install a driveway. It advised that it therefore requested that its housing repairs team inspect the wall and issue this determination.
  2. Under paragraph 39(a) of the Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a landlord’s complaints procedure.
  3. The landlord treated resident’s request for permission as an enquiry, not a complaint. It therefore has not exhausted the landlord’s internal complaints process and is not something that this Service can investigate at this stage. If the resident remains unhappy with the landlord’s handling of his request for permission, she would need to raise a specific complaint on the matter.

Background and summary of events

  1. On 13 February 2020 the landlord received a report that the resident’s fence needed repairing and replacing.
  2. The landlord inspected the fence on 25 March 2020 and determined that the fence would not be replaced entirely, “but only a privacy screen [would be installed] and the remaining boundary [would be] determined by wire fencing”. The job to erect the six-foot privacy screen was completed on 25 March 2020.
  3. It is not entirely clear at what point the landlord raised the matter as a complaint, or what correspondence the landlord considered to be a complaint, because incomplete records have been provided by the landlord. However, on 12 August 2020, the landlord informed the resident that it was “working on [the] complaint” and asked her to confirm if “the fencing she was waiting for” was between her and a neighbour’s rear garden. It explained that, if so, this could be replaced with chain-link fencing and it would arrange the installation now that the coronavirus restrictions had lessened.
  4. The resident confirmed that her complaint was about the landlord decision to install a chain-link fence, when it had put three panels up already and four concrete posts.
  5. The landlord responded to the complaint on 14 August 2020. It said that, prior to the coronavirus restrictions being put in place, works were booked to renew the fence between the resident and her neighbor. The resident was under the impression that this should be a timber fence. The landlord explained that, in line with its policy, a dividing fence would only be timber if it was adjacent to a public footpath. Therefore, the dividing fence between her and her neighbour would be reinstated with wire fencing. The landlord confirmed that, at the time of writing, the work order had not been processed due to the coronavirus restrictions. As the government were slowly lifting the restrictions, it would log the job but reiterated that the fence would be chain-link.
  6. The landlord concluded that it did not feel that it failed to provide an appropriate level of service on this occasion. It advised that, if the resident remained unhappy with this response, she could ask for her complaint to be heard at stage two of its complaints procedure.
  7. The resident and landlord corresponded further between 1 and 4 September 2020. This Service does not have evidence of any clear escalation request from the resident, but the resident said in an email “I feel victimised because of what’s happening.”
  8. On 28 September 2020 the landlord sent the resident its final response to her complaint. It explained that the six-foot timber fence panels that it had already installed were to protect the resident’s privacy from the shared access way running through her rear garden. It explained that it was only obligated to provide six-foot timber fencing for privacy; all other fencing it provided was wire and only for the purpose of marking the boundary. The landlord reiterated that the fence had yet to be completed due to the ongoing coronavirus pandemic, and because the repair was not classed as an emergency. The landlord confirmed that the resident would be notified when the repair was scheduled or, alternatively, if she wished to erect a six-foot fence, she could request permission to undertake the work herself. 
  9. Finally, the landlord advised that, should the resident remain dissatisfied and wish to pursue this matter, she may refer her complaint to the Ombudsman.


Assessment and findings

  1. In line with the landlord’s repairs handbook, if the landlord has erected fencing which forms a boundary, or the fencing was present when the tenancy commenced (and the resident did not agree to accept responsibility for it), the landlord is responsible. This responsibility includes defining where the boundary line is, but not the provision of security/privacy within a garden area. There may be times when a fence is considered to be beyond economical repair and in these instances the landlord will not replace the fence like for like. It may only erect concrete posts and wire fencing (to show boundary lines).
  2. Repairs to fencing are classed as non-urgent and are therefore usually given a low priority. The classification, however, may be changed if the fencing is considered to be in a dangerous condition and required to be made safe.
  3. In this case, the fence does not appear to have been considered to be in a dangerous condition. Nonetheless, it was deemed to need repairs and the landlord was obligated to replace the damaged fencing which defined the boundary line. It was not, however, obligated to replace the fence with a six-foot timber fence, as requested by the tenant, because it is not responsible for the provision of security or privacy within a garden area. In line with the repairs handbook, the landlord arranged to replace the fence with the concrete posts and straining wire fencing when safe to do so, in light of the coronavirus pandemic. It also installed a privacy screen, to ensure the resident’s privacy from a public pathway.
  4. Ultimately, the landlord clearly explained the reasons for its decisions, and its actions were in line with its obligations and its repairs handbook, and therefore reasonable.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request that it replaces her garden panel fencing.