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Longhurst Group Limited (202208049)

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REPORT

COMPLAINT 202208049

Longhurst Group Limited

8 November 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 how the landlord handled the replacement of a communal fence outside the resident’s property.

Background

  1. The resident is a leaseholder of the landlord, which is a housing association. The property is a bungalow in a retirement scheme. The resident and her daughter have corresponded with both the landlord and this Service during the complaint. For reasons of clarity, the resident and her daughter have been jointly referred to as “the resident” within this report.
  2. The landlord’s records show that in September 2020 it discussed the condition of the fence for the communal drying area of the scheme. It noted that due to restrictions placed on its repairs service as a result the national lockdown following the Covid-19 pandemic, repairs had been delayed and the fence panels had become rotten and were falling off. The landlord noted that due to the condition of the fence, that it was not possible to replace the panels and arranged to have a new fence installed. The work was raised on 18 September 2020 and completed in November 2020.
  3. On 9 August 2021, the resident wrote to the landlord and requested to raise a complaint regarding the new fence. She described the elements of the complaint as:
    1. The landlord had no consultation with the residents prior to the replacement of the fence.
    2. The new fence was larger than the original fence and had restricted the view from the resident’s property. It had also made interaction with other residents of the scheme more difficult as the panels in the new fence were solid, while the panels in the previous fence were slatted meaning it was possible to see through the fence.
    3. As a resolution to the complaint, the resident requested to have the new fence either reduced in size, or the panels replaced with the same type of panels as the original fence.
  4. In its complaint responses, the landlord:
    1. Explained that did not normally consult with residents on smaller issues, such as a replacement of a single fence.
    2. Accepted that the new fence was of a different type to the previous fencing, but it was satisfied that it met the requirements and was fit for purpose.
    3. Declined the resident’s request to replace or modify the new fence on the grounds that it could not justify the expense on making further changes to a fence that was more than adequate.
    4. Noted the resident’s comments that the new fence had restricted her view and made her feel isolated from the other residents. The landlord stated that it hoped that the lifting of the Covid-19 restrictions had helped alleviate some of the isolation. It also explained that it had asked the scheme manager to increase their visits to the resident and noted that its communal lounge was available for residents to use to meet and socialise regularly.
  5. Following the end of the complaint process, the resident asked the Independent Complaints Panel (ICP) to review the complaint. The ICP explained that it was not within their remit to consider the complaint. However, it did make two recommendations. It asked the landlord to consider offering mediation to the resident to resolve the issue and also to resume its resident/leaseholder meetings as soon as possible.
  6. In referring the case to this Service, the resident described the outstanding issues of the complaint as the new fence had restricted her view of the scheme and lessened social contact. As a resolution to the complaint, the resident requested that the landlord either replace the fence with the same type of fencing used previously, or remove the fence entirely.

Assessment and findings

Relevant policies and procedures

  1. Section 7.2 of the Retirement Living Residents Handbook sets out the landlord’s responsibilities for repair and renewal. This, in part, states that it is responsible for the upkeep of the structure of the building and communal areas including “communal gardens, fences, paths, car parks, internal communal areas”.
  2. Section 5.1 of the handbook relates to inspection of the communal areas and states that the landlord will “inspect these [areas] regularly to ensure they are maintained to a high standard”. Section 4.4 relates to consultation and states that “as a leaseholder, you have the right to be consulted on major works and long term agreements that exceed the prescribed amount set out in the Commonhold and Leasehold Reform Act 2002. Details of the processes we must follow are available from the Leasehold Advisory Service”.
  3. Under Section 20 of the Landlord and Tenant Act 1985 (amended by section 151 of the Commonhold and Leasehold Reform Act 2002), a landlord must consult leaseholders before it does the following:
    1. Carry out work which will cost any one leaseholder more than £250.
    2. Enter into a long-term agreement (for more than 12 months) with outside contractors for work, supplies or services which will cost any one leaseholder more than £100 a year.
    3. Carry out work under a long-term agreement where the work will cost any one leaseholder more than £250
  4. When one of these conditions is met, the landlord will send a Section 20 notice to the affected leaseholders and a consultation period will begin where leaseholders will be able to submit comments and suggestions on the planned work, the tendering of the work, and the nomination of a contractor or contactors before the work begins.

How the landlord handled the replacement of the fence

  1. Once the landlord had determined that the fence in the drying area required replacement, it had a duty to respond to the issue in line with its repair obligations set out in the leasehold agreement and its published polices and procedures. Overall, the landlord has acted appropriately to the issue. The internal correspondence provided by the landlord for the period when the work occurred showed that the landlord determined that the condition of the previous fence presented a health and safety hazard, identified a contractor who could supply a similar fence, approved the purchase order for the fence (at a figure below that which would trigger the Section 20 process detailed above), and then arranged for the contractor to install the new fencing.
  2. Further internal correspondence from the landlord from May 2021 showed that it considered the resident’s feedback and request to replace or amend the new fence as it had restricted her view. The landlord informed her that it had declined the request as it could not justify the further expense of replacing a fence that was fit for purpose. The landlord upheld this decision when the formal complaint was raised.
  3. Therefore, there is no evidence of service failure by the landlord in how it replaced the fence. The landlord followed its repair responsibilities for communal areas detailed above, identified that the fence needed replacement and sought a contractor and approved the recommended work. The landlord has correctly stated that due to the costs involved, it did not need to start a formal consultation process with residents. While it was not strictly obliged to do so, it was reasonable for the landlord to consider the resident’s request to make changes to the new fence and it explained in its complaint responses why it was satisfied that the new fence was fit for purpose.
  4. When making a decision to undertake discretionary work (such as making changes to a fence deemed to be fit for purpose), the landlord would need to take into account the needs of all the residents of the scheme and the financial costs the additional work would incur which would ultimately be passed on to residents through their service charges. It was therefore reasonable of the landlord to work the resident to find solutions to her concerns about being isolated other than the replacement of the new fence.
  5. The Ombudsman notes that the resident offered to pay for a replacement fence herself but the landlord declined this offer as it said it would set a precedent for other residents to make changes to communal parts of the scheme without consulting other residents. This was a reasonable explanation from the landlord and ultimately it was entitled to decide to leave the fence as it was and was not obliged to replace it, even if the resident was willing to pay for the replacement.
  6. Following the completion of the complaints process, the resident took the case to the Independent Complaints Panel. The ICP did not consider the case as it did not fall under its remit; however, it did make two recommendation to the landlord relating to mediation and leaseholder meetings. The resident wrote to the landlord to enquire if it had accepted the recommendations. The landlord’s internal correspondence shows that in July 2022 it discussed the ICP’s recommendations and how it should respond. There is no evidence that it wrote back to the resident to inform her of its decision following this discussion. Therefore, it is recommended that, if it has not done so already, the landlord write to the resident to inform her of its decision relating to the recommendations made by the Independent Complaints Panel.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled the replacement of the fence. 

Recommendations

  1. It is recommended that, if it has not done so already, the landlord should write to the resident to inform her of its decision relating to the recommendations made by the Independent Complaints Panel.