Clarion Housing Association Limited (202127854)

REPORT

COMPLAINT 202127854

Clarion Housing Association Limited

13 March 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

1. The complaint is about the landlord’s response to the resident’s reports about a dividing fence at the property.
2. The landlord’s complaints handling has also been investigated.

Background

3. The resident is an assured tenant of the landlord. The property is a three bedroom property with a dividing fence between neighbours. The fence in question was blown down following Storm Eunice on 18th February 2022. It is not disputed that the fence is in need of repair. Whilst the landlord has no recorded household vulnerabilities listed on its records for the resident; the household collectively suffers from mobility issues, arthritis, slipped disc, systemic lupus erythematosus, sickle cell anaemia and have recently undergone a hip replacement. The resident has provided evidence that he notified the landlord of these issues prior to the complaint under investigation here.
4. The resident notified the landlord of the damage caused to their fence on 18th February 2022. The landlord visited on 7th March 2022 where the resident was advised that the fence was a dividing fence and he was therefore responsible for resolving the issue, in accordance with the tenancy agreement. The resident then submitted a complaint as he considered the landlord responsible for repairing the fence. In reference to the tenancy agreement the resident outlined that they were only responsible for repairing the fence where damage was caused by them or their visitors.
5. The landlord issued its stage one response on 5th April 2022 in which the landlord reiterated that the fence was a dividing fence which was the resident’s responsibility to repair. The resident escalated their complaint to stage two on 6th April 2022. The resident asserted that the landlord had not read the tenancy agreement and that its decision not to repair the fence was unjustified. The landlord issued its final response on 20th May 2022. It maintained its position that dividing fences were the responsibility of a resident to repair. The landlord believed the repair was completed within its service agreement. The landlord also advised the circumstances in which it may consider repairing the fence and noted that the resident did not meet the criteria.
6. Subsequently the resident brought their complaint to the Ombudsman as they were not persuaded by the landlord’s position on repair responsibility for their dividing fence. The resident believed that the landlord had not properly considered the tenancy agreement or assessed their household vulnerabilities. The resident was also dissatisfied with the complaints process and complaints handling by the landlord.

Assessment and findings

Repairs to the fence

7. Following the resident informing the landlord that their fence had been blown away, the landlord investigated and confirmed that the resident was responsible for any repairs to dividing fences, in accordance with the tenancy agreement.
8. The tenancy agreement confirms a maintenance responsibility in regards fencing at the property. In the resident’s view, this criteria did not extend to his case as the fence had been completely blown down by the storm, so a full replacement was required. However, there is no evidence within the tenancy agreement that the landlord had such a responsibility. Moreover, the landlord’s ‘Responsibilities for Repairs’ published on its website makes it clear that dividing fences are the responsibility of the resident to resolve. As there is no express agreement that the landlord is responsible for repairing dividing fences, it was reasonable for the landlord to clarify this on its website and rely on that in reaching a decision that it was not responsible for the fence repair.
9. However, within the landlord’s stage two response, it also confirmed that where a resident meets vulnerability criteria the landlord will consider completing repairs that it has no obligation to. Specifically, the landlord highlighted that it has discretionary powers to repair dividing fences. It is not known if this information was shared with the resident prior to its stage two response. The landlord has confirmed that it has no record of vulnerability in respect of any of the residents at the property. However, the resident has provided evidence, in the form of a separate complaint he submitted to the landlord previously that confirms that he had made it aware of significant household vulnerabilities, including extensive mobility issues.
10. It is of significant concern that the landlord appears to have not retained this information on file. The Ombudsman expects landlord’s to operate a sufficiently robust record keeping system with respect to household vulnerability that enables anyone making a decision in respect of that household will be able to do so from an informed position.
11. The landlord identified that it does have discretionary powers to carry out repairs such as those required to the fence in cases where household vulnerability provides an extenuating circumstance. Whilst it is not known what decision the landlord might have made had it appropriately considered its discretionary powers at the time of the complaint, it is considered both reasonable and appropriate, given its failure to retain accurate records of the household vulnerability, for it to now complete the fence repair within a reasonable timeframe (8 weeks from the date of this report). The landlord has also been ordered to ensure that it updates the resident’s records to capture the full extent of his household vulnerability.

Complaints handling

12. The landlord’s complaints policy confirms that it will respond to stage one complaints within 10 working days and stage two responses within 20 working days. Where there is likely to be a delay, the landlord should contact the resident to explain such delay and provide a new timeframe.
13. The resident’s initial complaint was made on 25th March 2022 which was acknowledged by the landlord on 28th March 2022. The landlord responded to the stage one complaint within 6 working days. As such, no fault on the part of the landlord has been identified in this regard.
14. The resident’s stage two complaint was made on 6th April 2022. The complaint was acknowledged on the same day and again on 8th April 2022. A further acknowledgement was received on 22nd April 2022. The resident received a response to its stage two complaint on 20th May 2022, 32 working days after the first acknowledgement. There is no evidence to suggest the reasons for the delay were communicated to the resident.
15. In terms of the complaint response, there is nothing to suggest that the landlord looked into the resident’s concerns about reading the tenancy agreement. The landlord’s response appeared to focus on consistency across the board rather than assessing the resident’s specific complaint and concerns, resulting in a final response that lacked customer focus. Each case should be decided on a case by case basis, on its own merits rather than previous decisions made by the landlord.
16. There is no evidence to show that the landlord assessed or queried any vulnerabilities within the household that may be affected by the fence, as highlighted in the assessment of the substantive issue above. There is no indication on what basis the landlord came to the assumption that the resident did not meet its vulnerability criteria in relation to its discretionary powers. The resident clearly raised vulnerability issues in a previous complaint which should have been recorded by the landlord. As the landlord has no vulnerabilities listed on the resident’s record, it appears there was a lack of thoroughness to the investigation and a concern about the landlord’s record keeping.
17. A finding of service failure has been identified here, for the delay in responding to the complaint, the lack of a thorough investigation and for the failure to identify the household vulnerability. To remedy these failures, a compensation order of £100 has been ordered.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with respect to the landlord’s response to the fence issue.
19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaints handling.

Orders and recommendations

Orders

20. Within four weeks of this investigation report, the landlord is ordered to apologise to the resident, in writing, and pay him compensation of £100.
21. Within four weeks, the landlord is also to confirm to the resident that it has suitably updated his customer casefile with details of his household vulnerability.
22. Within eight weeks of this report, the landlord is to complete the fence repair at the property.
23. The landlord to evidence compliance with these orders to this Service by the date stipulated.