Hyde Housing Association Limited (202001070)

REPORT

COMPLAINT 202001070

Hyde Housing Association Limited

26 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 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

The complaint is about:

Background and summary of events

Background

The resident is a leaseholder of the landlord, an housing association. The lease commenced in 2011.
The landlord’s webpage confirms that as landlord, it is responsible for repairs in boundary walls, and notes each lease agreement will provide differing responsibilities on walls. In the resident’s lease the landlord covenants to “maintain repair redecorate and renew” the Common Parts.
The landlord’s repairs procedure advises non-emergency major repairs, such as boundary fences and redecoration of communal areas, are usually referred to a stock investment programme rather than undertaken as responsive repairs. The procedure also confirms the landlord’s policy and procedure and health and safety obligations arise from law such as The Defective Premises Act 1972 and The Housing Act 2004.
The Defective Premises Act 1972 sets out a general duty to carry out work properly. The Housing Act 2004 requires all housing to be free from any risk of harm to health or safety which arises from a deficiency in land in the vicinity, as a result of the construction of any building, an absence of maintenance or repair, or otherwise. This Act is enforced by Environmental Health Departments of Local Housing Authorities, who can issue improvement notices or prohibition orders.
The Department for Communities and Local Government’s Planning Portal advises building regulations do not apply to walls but confirms structures must be structurally sound and maintained.
The Landlord and Tenant Act 1985, The Commonhold and Leasehold Reform Act 2002 and The Service Charges (Consultation Requirements) (England) Regulations 2003 set out a landlord’s consultation requirements for service charge contributions for major works that exceed either £100 or £250. If leaseholders wish to challenge service charges, they are able to apply to the First-Tier Tribunal to decide the reasonableness of the charges and if they are ‘fair.’
At the time of the complaint, the landlord operated a three stage formal complaints procedure, where at each stage it responds within ten working days. The landlord may offer discretionary compensation where it has failed to deliver a service to advertised standards, as recognition of time and trouble and/or distress and inconvenience.

Summary of events

In November 2017 the resident complained to the landlord about invasive plants, including buddleia, not being removed as “agreed in 2014,” which had caused damage to the boundary wall in front of the resident’s block. He asked the landlord to confirm it would not charge for removal of plants or damage to the wall. In December 2017, the landlord advised in a complaint response that it would assess the extent of works required to the wall and assess if repair or full replacement was required.
In March 2018, the landlord advised in a further complaint response that current treatment of the plants with weed killer would not be charged, and regular inspection would take place to treat invasive plants early on. The landlord advised an order would be raised for repairs to the wall, and that “no additional costs will be charged back to the residents.”
In July 2018, according to the resident’s account, work on the section of the wall to the left of the electric substation began, parts were rebuilt and all of it rendered and painted. The landlord’s records advise this cost in excess of £9,500. The resident advises he was informed work would begin on the right section of the wall shortly after; it would be completed in the same style as the left section of the wall; and the landlord would absorb repairs costs.
By October 2018, according to the resident’s account, work to the right section of the wall had not begun because of cost, and the landlord was exploring alternatives such as a wooden fence in front of the wall. The landlord was asked to honour its promise and obligation to repair/rebuild, render and paint the wall and finish it in the same style throughout, to remedy a breach of covenant to repair and maintain it. In January 2019, the landlord measured the right section of the wall for works and in February 2019, the resident advises the landlord informed him that there were firm plans to replace the right section of the wall with a green galvanised steel fence.
On 12 March 2019 the resident complained to the landlord about its plan to install a fence and its decision not to repair and rebuild the right section of the wall. He advised “residents have been expecting all of the wall to be repaired in the same style and have been told this during informal conversations and at residents’ meetings.” He queried the fairness of the landlord having repaired and rebuilt the left section of the wall, which improved the aesthetic and property value of flats opposite, while other residents would look out on an industrial steel fence. He raised concern how invasive plants would be identified and removed behind a steel fence.
On 17 May 2019 the landlord issued its stage one response. It apologised for the delay, due to confirming who was best suited to respond. It acknowledged the resident’s dissatisfaction and reasons. It explained that after obtaining quotes, it subsequently decided that the most cost effective solution was to install a galvanised fence, as there was a cost implication to rebuild the wall. It advised it would likely need to ask leaseholders to contribute towards the work, and explained the process to expect if this was the case, including opportunity to comment on plans. It acknowledged the resident’s frustration and service failures in relation to communication, but did not agree proposals to install a fence was a service failure.
On 22 May 2019 the resident complained that the landlord’s decision to charge for works to the right section of the wall reneged on its promise to rebuild the entire length of the wall at no cost. He referred to previous occasions where the landlord had advised this. Following this, the landlord’s records reference a number of holding letters and calls to the resident while it internally discussed the complaint. It noted that previous commitments were given for the complete boundary wall to be repaired at its cost, following complaints that the condition of the wall was due to years of neglect. It also noted that when work commenced to the left section of the wall, residents were informed the full length of the wall would be done to the same standard.
In June 2019 the landlord’s records advise repairs to the right section of the wall, not fence erection, were commenced. In July 2019, the landlord post inspected the work and requested additional repairs. On 16 July 2019, the landlord post inspected again and confirmed all instructed works were complete, which included a secondary wall built over the existing wall, replacement of two brick pillars and brick face repairs.
On 2 September 2019 the landlord issued its stage two response. It confirmed works to the left section of the wall were carried out which were charged to residents. It confirmed completed works to the right section of the wall would not be charged to residents. It acknowledged the resident did not agree works were completed and raised concern with cracking plaster; loose bricks; plants growing out of the wall; the contrast between new and old bricks; and the contrast between the rebuilt left section of the wall with the repaired right section of the wall. It also acknowledged he queried why the left section of the wall was completed to a higher cosmetic standard and why this was chargeable.
The landlord confirmed it inspected the wall on 7 August 2019 and that while it noted an aesthetic difference, it was satisfied repairs obligations had been met to ensure the wall was structurally sound. It noted that the resident’s concerns related to the aesthetic of the wall and there were no plans to complete further works to it.
The landlord noted the resident was informed that addition of the wall to a cyclical decorations programme would be discussed. The landlord confirmed steps were being taken to update its asset management system, so the wall could be identified for future maintenance programmes, and regular inspection would be carried out to ensure appropriate maintenance of the grounds. It advised that future maintenance would be charged to residents, since they would not relate to works completed as part of the complaint.
The landlord acknowledged it had not fully investigated all the resident’s points and apologised for the inconvenience and time and trouble caused to him. It awarded £50 compensation for time and trouble and £150 for delays during the complaints process.
On 9 October 2019 the resident requested escalation of the complaint. He raised concern the response read as if costs for the left section of the wall were being passed on to residents, despite assurances they would not be. He disputed that the landlord had met its maintenance obligations and that further works should be postponed and charged in the future. He contended that earlier maintenance of the wall would have resulted in less damage and costs, and it was ‘unfair’ to charge for damage caused over thirty years. He contended that the right section of the wall was likely to be less structurally sound than the left, had not been rebuilt as agreed, and did not prevent further plant growth and damage. He stated that comments about the aesthetic ignored residents’ investment in their properties and the message the wall’s appearance sent to prospective buyers.
In subsequent correspondence, the resident referred to emails showing the landlord assumed responsibility to repair the boundary wall; would carry out “the same type of work” to both sections of the wall; and would foot the repairs costs. The resident added that his rationale not to be charged was that the landlord had ‘underinvested’ for three decades; regular maintenance of the wall to carry out repairs and to spread the cost had not occurred; and reports of damage to the wall from plants had resulted in little being done and damage worsening.
On 21 November 2019, the landlord issued its final response. It acknowledged it had handled the matter badly and caused confusion and distress through inconsistent decision-making and communication. It explained it had created an expectation repairs on either side would match, and the works did not meet expectations, as it was not explained the scope of works to the right wall were different to the previous section. It advised works were post inspected and confirmed to be sound and completed as required.
The landlord also acknowledged the resident’s view that lack of maintenance obligated it to put things right without recharging, but advised it should seek to apply costs in line with the lease. It acknowledged it had made commitments not to charge for works and confirmed it would honour these. It advised mistakes had been made in statements about recharging residents, as waiving charges required senior approval. It advised it would not undertake any further works outside of normal consultation and recharge arrangements.
The landlord advised it had asked for information about sinking funds to be made available to its maintenance team in case there was an option to draw on this for further work to the wall. It advised the resident could also discuss improving its appearance through planting or trellis work.
The landlord advised the £200 awarded was reasonable and added an apology, for not being able to meet the resident’s desired outcome of further works to improve the wall’s appearance at the landlord’s expense.
In subsequent correspondence to this Service, the resident explained that he would like the landlord to honour its agreement, and obligation it assumed, to complete repairing/rebuilding, rendering and painting of the right section of the boundary wall; and inspect both sections of the boundary wall and remove invasive plants periodically, as promised in a complaint response in 2018. The resident advised that £200 compensation was insufficient for time spent on the matter since 2014, and £750 better reflected the inconvenience and significant distress and harm to mental health the issue had caused.

Assessment and findings

Scope of the investigation

The Ombudsman’s remit in relation to complaints is limited by the Housing Ombudsman Scheme (the Scheme). This includes that the Ombudsman only investigates complaints which have been brought to a landlord as a formal complaint and which have exhausted a landlord’s complaints procedure.
The resident’s evidence includes a previous complaint in 2018 where in its stage two response, the landlord advised it would ensure that regular inspection took place to treat invasive plants early on. In accordance with the Scheme, this investigation relates to the substantive issues that have progressed through and exhausted the landlord’s complaints procedure, and any reference to this is included for contextual purposes only.
The resident has also referenced dissatisfaction relating to events post-dating the complaints procedure. The Ombudsman notes the resident has raised concerns in relation to the landlord advising regular inspection would be carried out in its stage two response to the 2019 complaint. The Ombudsman’s assessment of the 2019 complaint is limited to considering the landlord’s actions in the timeframe of the complaint. If the resident has concerns about how the landlord has acted or not acted after its final response, he has the right to raise this with the landlord and to submit a new complaint if he is dissatisfied with its response.
It is also not within the Ombudsman’s authority or expertise to decide on alleged breach of covenant by the landlord to carry out repair and maintenance in the same way as the courts; but it can assess whether it has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case. While the Ombudsman can take a view on the position by reference to law and the lease agreement, if this is disputed only a legal procedure can offer a definitive and legally binding decision.

The landlord’s response to the resident’s request to maintain, and remove invasive plants from, a boundary wall separated in the middle by an electric substation

The lease and the landlord’s website confirms its responsibility to repair and maintain common parts such as boundary walls, although there is no specific evidence as to what form this should take or how regular maintenance should be in the case of the wall in question. Legislation and common law also place an obligation on a landlord to ensure there are no health and safety risks on its land. If a landlord does not meet safety obligations, a local authority environmental health department has the power to take enforcement action under The Housing Act 2004, which there is no evidence applies here.
In the timeframe of the most recent complaint, the landlord has not disputed repair and maintenance responsibility for the boundary wall and in 2018, its contractors carried out works to the wall to the left of the electric substation that cost in excess of £9,500. The resident does not dispute these were acceptable. In 2019, the landlord’s contractors then completed work to the wall to the right of the electric substation. The landlord’s records confirm these were inspected first hand and deemed acceptable by staff including surveyors and managers.
This demonstrates that the landlord accepted an obligation to maintain the boundary wall then took steps to satisfy itself that the completed works met its obligations and were done ‘properly.’ As a landlord is entitled to rely on the opinion of its staff to assess the workmanship of its contractors, it has demonstrated it has handled overall maintenance of the boundary wall in an appropriate way.

The landlord’s response to the resident’s request for works to the right section of the wall to be completed in the same style as works to the left section of the wall

As noted above, the landlord has an obligation under legislation and common law to repair and maintain structures on its land to ensure structural and safety requirements are met. Building regulations do not apply to walls and there is no evidence for any specific requirement for a wall to be repaired, rebuilt, rendered or painted if it is considered structurally sound. In addition, the wall is not located in a conservation area where its character and appearance may be a consideration. There is therefore no evidence there is a specific requirement for the right section of the wall to be completed in the same way as the left section of the wall.
Moving on to the landlord having created an obligation to complete works through its promises and a lack of maintenance over the years, the landlord does not dispute the resident was previously informed the right section of the wall would be completed in the same style as the left section of the wall, and residents would not be charged.
While honouring commitments is important for a landlord to maintain the landlord and resident relationship, a landlord is also entitled to consider costs in its decision-making and to change its mind, if this is not out of line with policies, the lease and the law. The Ombudsman acknowledges and understands the resident’s reasons for asking for the works to be completed in the same way as the other works had been done. As has been established however, the wall has been completed to a standard which satisfies the landlord that it has met its obligations and there is no evidence the landlord is required to complete works to the right section of the wall in a specific way under policies, the lease and the law.
Overall, therefore, there has been no service failure in the landlord’s decision not to complete the right section of the wall in the same style as the left section of the wall.

The landlord’s complaint handling

The landlord has not disputed issues with communication, contradictory decision making and the quality and timeliness of complaint responses. However, by the landlord’s final response a comprehensive position was provided and it awarded £200 for the resident’s time and trouble and delays experienced during the complaints process. The landlord acknowledged that it created an expectation repairs on either side would match, explained that it made a subsequent decision to carry out more cost effective works, advised mistakes were made in statements about recharging residents, and confirmed that it would honour its commitment not to charge for the works but would charge for future works.
This was appropriate as the landlord recognised and compensated for the way it handled matters and confirmed it should be seeking to apply costs in line with the lease, which was reasonable. Unless set out in policies or agreed in legal proceedings, landlords are not generally obligated to not recharge, which means whether future charges for wall maintenance are ‘fair’ or reasonable are for the First-Tier Tribunal to consider rather than this Service.
The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. In this case the Ombudsman notes that the landlord has identified and acknowledged a number of service failures in its management of the issue. This further assessment considers whether the landlord has offered reasonable redress for its acknowledged failings.
The Ombudsman’s Dispute Resolution Principles are:
1. Be fair – treat people fairly and follow fair processes
2. Put things right
3. Learn from outcomes
In its Remedies Guidance the Housing Ombudsman Service sets out three compensation ranges which this Service refers to when making orders of compensation for cases this Service has determined. The financial remedy provided by the landlord of £200 for the service issues falls in the first range, where there is an impact on a complainant which is of short duration and does not significantly affect the overall outcome, as is relevant here. This includes failure to meet service standards for responses such as timeliness and quality of complaint responses. Accordingly, the financial remedy provided by the landlord was in accordance with the Service’s Remedies Guidance and, considering all of the circumstances of the case, was in the Ombudsman’s opinion suitable financial redress.
Furthermore, while the landlord said in its stage one response that it would recharge for works to the left section of the wall, and in its stage one response the landlord advised it would likely consult on and recharge for works to the right section of the wall, the landlord subsequently stated that it would honour its commitment not to charge.
This means that while there is no evidence the landlord had any obligation in this regard, the resident has benefited from a contribution towards the costs in excess of £9,500 for the left and right sections of the wall being waived, in addition to the compensation award of £200.
The above demonstrates the landlord was sympathetic to the resident and carried out a fair investigation of the complaint, acknowledged service failings and identified learning from the complaint. It also sought to repair the landlord and resident relationship by making redress for failings identified and honouring previous commitments not to recharge, which it confirmed were made in error and went beyond its obligations.
Overall, the landlord’s final response evidences the landlord appropriately put things right and learnt lessons from the case, in line with this Service’s Dispute Resolution Principles and remedies guidance.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s request to maintain, and remove invasive plants from, a boundary wall separated in the middle by an electric substation
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s request for works to the right section of the wall to be completed in the same style as works to the left section of the wall
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress in the landlord’s complaint handling.

Reasons

The landlord has demonstrated it has met its maintenance of the boundary wall in an appropriate way, by carrying out appropriate work and inspection.
There is no evidence there is a specific requirement for the right section of the wall to be completed in the same way as the left section of the wall.
The landlord has provided reasonable financial remedy for issues such as complaint delays and honoured previous commitments made in error not to recharge, which goes beyond its obligations.