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Clarion Housing Association Limited (202113685)

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REPORT

COMPLAINT 202113685

Clarion Housing Association Limited

10 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 concerns the landlord’s response to the resident’s reports about the dividing fence in her garden.
  2. The landlord’s complaints handling has also been investigated.

Background

  1. The resident is an assured tenant of the landlord. The landlord has no recorded vulnerabilities listed on its records for the resident. The property is a three-bedroom property with a dividing fence between neighbours. It is not disputed that the fence is in need of repair. The resident had previously attempted to fix the fence after being told by the landlord that it was her responsibility, however she was unable to do so and, in her view, it had further deteriorated by the time she submitted her complaint.
  2. The resident submitted her stage one complaint to the council on 10 May 2021 as she believed that the landlord was responsible for repairs to the dividing fence. The resident had become aware of an occasion in which the landlord had repaired the dividing fence at a neighbouring property and as a result, the resident said that she felt ‘misled’ by the landlord. The stage one complaint was received by the landlord on 14 May 2021.
  3. The landlord issued its stage one response on 17 June 2021. It confirmed that after reviewing the tenancy agreement, it was satisfied that repairs to dividing fences were the tenant’s responsibility. The landlord also explained that repairs to dividing fences may previously have been carried out elsewhere, however each case was based upon ‘individual merit’.
  4. The landlord issued its final response on 10 August 2021. The response upheld the landlord’s verdict from the stage one response and further reiterated that instances of it repairing dividing fences were rare and based on individual circumstances. The landlord did however agree to pay £75 compensation for delays in responses to the stage one and stage two complaints.
  5. Subsequently the resident brought her complaint to this service as she was not persuaded by the landlord’s position on repair responsibility for her dividing fence as she believed the landlord to be giving itself subjective discretion to repairs.

Assessment and findings

Repairs to the fence

  1. Following the resident’s complaint, the landlord investigated and confirmed that the resident was responsible for any repairs to the dividing fence, in accordance with the tenancy agreement. This was in accordance with Section 12.2 of the tenancy agreement, which confirms that the landlord is responsible for only boundary walls and fences. It was also in accordance with the landlord’s repair responsibility policy which states that the resident is responsible for repairs to dividing fences. It was therefore appropriate that the landlord did not uphold the resident’s complaint and refused to carry out the requested repairs.
  2. The resident has raised concerns to this service that the case demonstrated the landlord giving itself ‘subjective discretion’ to repairs issues. However, there is no evidence that the landlord is required to carry out repairs to dividing fences, as confirmed above. As such, any actions it might have taken on the resident’s fence, or in the case of the neighbour whose fence the resident said had been repaired, would have come within the remit of the landlord’s discretionary powers.
  3. Internal landlord communication confirmed that there might be instances whereby the landlord would carry out repairs to fences, usually where a household vulnerability was identified. It is not known if this information was shared with the resident, however, the landlord has confirmed that it has no record of vulnerability in respect of the resident so there is no evidence that such discretionary powers might require consideration in this instance.
  4. Whilst the landlord’s decision to not uphold the complaint was appropriate, it is of concerns that there is no evidence of it having responded to the health and safety aspect of the complaint. It is clear that the resident had raised her concerns that the fence amounted to a health and safety risk and, whilst the landlord correctly identified that it had no repair responsibility for the fence itself, it does have a responsibility to ensure that its properties are free of any hazards. In the circumstances, it is recommended that the landlord visit the property and assess whether the fence, in its current condition, amounts to a potential health and safety risk and, if so, for it to take appropriate action to resolve this.

Complaint Handling

  1. The landlord has acknowledged that it failed to provide its stage one and two complaint responses within the timescales required of its complaints policy. This Service acknowledges that on occasions there will be circumstances that mean a complaint response cannot be provided by the designated timeframe. This is usually to be expected when complaints are complex and further investigation is required. Therefore, it would be reasonable to expect that a landlord would contact the resident, explain in detail the reasons for the delay, and provide a new timeframe whereby the resident would expect to receive a response. However, this was not achieved by the landlord.
  2. The delay in response to the resident’s complaints was acknowledged in the landlord’s stage two response. The landlord awarded the resident £75 as compensation for its failure to respond to the complaints within a timely manner. Where there are admitted failings by a landlord, the ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the admitted failings satisfactorily.
  3. Given that the delays in providing the complaint responses were not excessive, the landlord’s offer of £75 is considered to offer both reasonable and proportionate redress for any detriment experienced by the resident in respect of this acknowledged service failure.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding its investigation and response to the resident’s complaint about the dividing fence.
  2. In addition, and in accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, there was a reasonable offer of redress in relation to the failures in complaints handling.

Reasons

Fence Repair

  1. The landlord took reasonable steps to investigate the resident’s concerns regarding the responsibility of repairs to dividing fences. Its position that the resident was responsible for repairs to the fence was in accordance with the terms of the occupancy agreement and its decision to not uphold the complaint was therefore appropriate. 

Complaint Handling

  1. This service believes that the remedial compensation awarded to the resident for the complaint handling failures of the landlord is reasonable in relation to any detriment caused by the delayed complaint responses. The landlord recognised its failings and sought to apologise and make amends once it’s complaint handling had been reviewed in its stage two response.

Orders and recommendations

Recommendation

  1. The landlord to inspect the fence issue and assess whether further action is required from a health and safety perspective.