Harlow District Council (202121157)

REPORT

COMPLAINT 202121157

Harlow District Council

February 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 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 handling of the resident’s request for it to replace a wall in her back garden, and her safety concerns surrounding this.

Background

2. The resident is a tenant of the landlord of a house with a private garden.
3. The resident reported that, during the summer of 2018, a non-boundary wall in her back garden required repair. Following this, she made a further report in 2019 that the bricks were crumbling, cracked and some of the bricks were falling off the wall. Its operative attended her property to inspect the wall, and on 4 July 2019 a job order was raised for a bricklayer to repair the wall. She said that she chased the landlord for updates, and was informed in 2020 that a repair order had been raised and the job was still going ahead.
4. When the resident was chasing the repair during 2021, she was informed that the repair order had been cancelled on 13 July 2020. The resident said that another staff member that she had spoken to on the phone, had told her that there was no record of the job, and that she was made to feel as though she was lying. She raised a complaint on 14 May 2021, as she was dissatisfied with the delay, and that she had received contrary information from the landlord. She sought for the repair to be completed by the landlord.
5. The landlord’s stage one complaint response of 26 May 2021 upheld the complaint because the resident had not received service up to its standards. It confirmed that the job was raised as a “planned priority” repair on 4 July 2019, but that the job was closed on 13 July 2020 as it discovered that it was not responsible for the repair. It apologised that she had not been contacted and informed of this, which would have been the correct procedure. It further explained that it could not ascertain for certain whether the wall had been installed by a previous tenant, and it requested that she allow an operative attend to inspect the wall, which she had previously refused. This would allow the matter to be resolved.
6. The resident then escalated the complaint on 26 May 2021 because she was dissatisfied with the landlord’s stage one complaint response. She clarified that her first report was in 2018, and not in 2019 as the stage one complaint response had suggested, and that she had not refused the operative’s visit. She said had not wanted an operative to attend as she did not want to re-start the process, because it had already been ongoing for three years. She further explained that she had evidence that the wall was present before she started her tenancy. She requested that the further inspection be carried out as soon as possible. A further complaint escalation explained that other structures in the garden, that the previous tenant had installed, had been removed by the landlord due to safety concerns, and therefore this wall was also its responsibility. The resident also referenced to the Buildings Act 1984, and stated the wall did not meet building regulations.
7. The landlord’s stage two complaint response of 2 June 2021 maintained that it was not responsible for the repair, and did not uphold her stage two complaint. The landlord’s final stage complaint response of 14 July 2021 confirmed that the wall was the resident’s responsibility, and that it would arrange an inspection by its surveyor to explore her safety concerns.
8. The surveyor’s report of 21 July 2021 confirmed that the wall was safe, and posed no immediate health and safety concerns. It described that there was wear and tear to the wall from the expansion of soil through the seasons, and explained some repairs that were required.
9. The resident subsequently referred her complaint to this Service on 14 December 2021 because she had not received an update that had been promised to her. Furthermore, she sought for the landlord to replace the garden wall instead of repair it, as she feels as though it was not “salvageable”.

Assessment and findings

10. It is disputed whether the landlord or resident is responsible for the repair of the wall. The resident’s tenancy agreement states that residents are responsible for the upkeep of gardens. Furthermore, the repairs policy states that that residents will become responsible for any fixtures or fittings installed by previous residents, except where there is a danger or breach of health and safety; in which case, the landlord may remove the item and recharge the resident. The policy further states that works not identified on an attached list, which non-boundary garden walls does not feature on, would be considered to be the resident’s responsibility.
11. In view of the above, it is evident that the resident is responsible for the repair and maintenance of the wall. The landlord would have some responsibility in terms of health and safety concerns. But following its inspection on 21 July 2021, the wall was deemed safe and as a result the landlord had adhered to its obligations in that regard.
12. However, it was inappropriate that the landlord did not seek to explore its repair responsibilities when the resident first raised her report. This would have enabled it to inform her in the first instance that it would not provide a repair or replacement to the wall. Instead, the resident was informed nearly three years following her first report that the wall was broken, and two years following its initial inspection, that she was responsible. This was a failing of its communication, and it did not adequately manage the resident’s expectations.
13. The landlord’s communication regarding its closure of the repair job was poor. Landlords would be expected to provide clear next steps and manage the resident’s expectations. It should therefore have contacted her on 13 July 2020 to inform her of its decision and its reasoning, so that the resident could organise a repair herself. Instead the resident waited a further two years, while reportedly chasing the landlord, in order to receive this information, during which she had safety concerns for her and her family.
14. When the resident was chasing the landlord for an update in 2021 it would have been appropriate for it to have informed her at the earliest opportunity that the job had been cancelled. However, the resident reports that a staff member denied that the job order existed, and made her feel as though she was lying. When the resident called the landlord back the following day with a job number, she was only then informed that the repair order had been cancelled. This was a failing of the landlord’s communication. It was reasonable that landlord apologised for this, and showed it had taken it as a learning opportunity, stating it had spoken to the staff member concerned about the importance of good customer service and keeping residents informed at all times. It also said it regularly ran customer service training, and was confident the error would not reoccur in the future. It failed to offer the resident compensation for its communication failings.
15. It was reasonable that when the resident questioned the landlord’s stage one complaint response regarding its repair responsibilities, it wrote to her on 2 June 2021 and provided her with the relevant information from her tenancy agreement, and a list of her and its repair responsibilities. This communication was clear, and provided the resident with the basis of the landlord’s previous decision, while confirming it was her responsibility to maintain the wall.
16. Following the landlord’s initial visit on 4 July 2019, the landlord raised a repair order, and informed the resident that this would be completed within nine months, as a “planned priority”, which is in line with the repair timescales published in its repairs policy. This repair should have been subsequently completed by April 2020, but the job order was cancelled on 13 July 2020, which suggests that had the landlord proceeded with the repair, it would have failed to meet its published deadline, which is a failing.
17. When deciding on how best to proceed with the repair, it was reasonable for a landlord to rely on the conclusions of its appropriately qualified staff and contractors. In this case, the landlord’s surveyor concluded that the wall was safe, and there were no immediate health and safety concerns. The surveyor stated there was wear and tear to the wall which was able to be repaired. This was a reasonable way for the landlord to simultaneously investigate the resident’s reports, while also addressing her concerns. However, the landlord should have arranged this survey earlier into the complaints process, so that it could use the findings to both provide the resident with up-to-date relevant information, and understand if it had a duty to remove the hazard, as per its tenancy agreement obligations.
18. The wall was described by the landlord’s surveyor as having “no immediate health and safety issues” in July 2021, and the surveyor described that due to the wall having a non-standard construction, it does not allow water to drain, which makes it vulnerable to the expansion and contraction of the soil through the seasons. It appropriately also investigated whether the nearby tree’s had any effect on the wall, and determined they did not. The evidence suggests that the landlord only communicated these findings to the resident in a letter of 10 December 2021, which was five months after the survey was undertaken, and was a further failing in the landlord’s communication, because the resident should have been informed that the wall was safe, to address her concerns and prevent further distress and inconvenience.
19. Moreover, this survey was completed nineteen months ago, and this Service has not been provided with any up-to-date information regarding the repair and safety status of the wall. It has therefore been ordered below for the landlord to provide a further inspection of the wall, to discover if there has been a change to the condition of the wall, and to ensure it still poses no health and safety concerns.
20. The landlord’s compensation policy does not outline compensation amounts for where there has been inconvenience as a result of a failing in its service. This Service’s remedies guidance suggests compensation from £50 to £100 where there has been a failure in service by the landlord which has not been put fully right. It has therefore been ordered below to pay £100 compensation in recognition of her time and trouble, for its failure in communicating its repair obligations and intentions to the resident, and its subsequent poor communication. This is because it partly put this failure right by apologising for and acknowledging this, but this was not proportionate to recognise the resident’s resulting time and trouble, for chasing it over the course of three years.
21. In summary, whilst the landlord put some matters right for the resident, the exclusion of a proportionate amount of compensation was a failing on the landlord’s behalf. The landlord acted appropriately in apologising to the resident, explaining its obligations and providing her with the relevant information from her tenancy agreement, and organising a survey of the garden wall to ensure her safety. It clearly recognised and accepted that it had not followed its usual communications procedure, and the actions it took to remedy that were, with one exception, reasonable and appropriate. The exception being the omission of it offering compensation to the resident, in light of its failings.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s request for it to replace a wall in her back garden, and her safety concerns surrounding this.

Orders and recommendations

23. The landlord is ordered to:
    1. Pay £100 within four weeks, for its failure in communicating its repair obligations and intentions to the resident, and its subsequent poor communication.
    2. Provide a further inspection of the wall within four weeks, to discover if there has been a change to the condition of the wall, and to ensure it still poses no health and safety concerns.
24. It is recommended that the landlord:
    1. Review its compensation policy in light of this Service’s remedies guidance, to consider including service failure of its communication, in the policy.
25. The landlord shall contact this Service to confirm it has complied the above orders, and whether it will follow the above recommendations, within four weeks.