Magenta Living (202208900)

REPORT

COMPLAINT 202208900

Magenta Living

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:
   1. Response to the resident’s reports of damaged fences.
   2. Handling of the associated complaint.

Background

2. The resident is an assured tenant of the landlord, and resides in a house with a garden.
3. On 25 July 2022, the resident reported repair issues to the dividing fence in her garden. The landlord advised the resident that repairs to dividing fences are her responsibility under the tenancy agreement.
4. The resident raised a complaint as she did not think the landlord was acting in line with the Housing Act 2004 and the Landlord and Tenant Act 1985. She said she did not install the fence, so it was the landlord’s responsibility to complete the required repairs. On 28 July 2022, the landlord stated it would not consider the resident’s complaint under its complaints policy, as legal issues would need to be pursued with its legal team. It also reiterated that the repair was the resident’s responsibility.
5. In the resident’s complaint to this Service, she stated she was dissatisfied that the landlord would not formally assess her complaint. She wanted the landlord to complete the required repairs to the fence and change its policy so that fence repairs would be the landlord’s responsibility. She also wanted an apology and compensation.
6. Following the complaint being accepted for investigation by this Service, the landlord advised that it had reviewed the complaint and agreed to give a more comprehensive response. The landlord subsequently sent its stage one response on 1 December 2022 and it apologised that the complaint had not been thoroughly reviewed initially. It stated that it had recently reviewed its complaints process, and it would no longer decline a complaint based on its legal nature or implication, unless the legal process had started.
7. In its complaint response, the landlord stated that the resident raised concerns with gaps in the fence, as the neighbour had a dog, as well as loose nails and a damaged concrete post. The landlord advised that as the resident had a young child, it had completed a risk assessment. This identified two displaced concrete base boards as the only area of concern, as the neighbours had repaired/replaced sections of the fences. The landlord noted that the resident had agreed the concrete base boards were “unlikely to pose a risk currently due to the brambles growing in front of them”. It said it would re-inspect once the resident had completed the proposed work to remove the brambles. It acknowledged that although dividing fences are the resident’s responsibility, it should ensure the garden is safe.

Assessment and findings

The landlord’s response to the resident’s reports of damaged fences

8. The resident’s tenancy agreement states that she is responsible for maintaining dividing fences “between the property and any other home”. A signed tenancy agreement is a legal contract between a landlord and a tenant, and is generally held to be legally binding, so both parties are required to comply with the obligations. This Service is satisfied that the landlord was entitled to decline to repair the fence under the terms and conditions of the tenancy agreement.
9. In relation to the Landlord and Tenant Act 1985, there is no provision in section 11 that places an obligation on landlords to repair fences. For clarity, the Supreme Court in Edwards v Kumarasamy [2016] UKSC 40 confirmed that section 11 did not extend to repairing the only path outside the property leading to the house. In that case the court said:

“(…) the section imposes obligations on a contracting party over and above those which have been contractually, one should not be too ready to give an unnaturally wide meaning to any of its expressions”

10. In Anchor Hanover v Kenneth Cox, the UK Upper Tribunal explained that section 11 did not place an obligation on the landlord to repair everything, but only those matters in section 11, which is the structure and exterior or the installations for the supply of water, gas and electricity.
11. Likewise, section 9A and 10 of the 1985 Act, require the landlord to ensure that the dwelling and its common parts are fit for human habitation. The external fence would not come within the definition of the dwelling or the common parts.
12. The resident has not particularised in what way the Housing Act 2004 would be relevant. However, it appears that this alludes to the Housing Health and Safety Rating System. These provisions are to ensure that “dwellings” and not “land” are free from risks and hazards.
13. The landlord, in cases where there was a safety risk to residents, would be expected to assess and complete make safe works. It could agree to complete the works for the resident – and recharge the cost. But there is nothing within the tenancy agreement or the Acts referred to above that mean the landlord ought to repair fences.
14. In her complaint, the resident stated that a “make safe” job was not offered. Although the exact repair concerns initially raised by the resident are unclear from the landlord’s records, the landlord advised this Service that at the time it had determined a “make safe” job was not required. A job to “make safe” would generally only cover repair issues that are considered an immediate safety risk. Therefore, the landlord would not necessarily be expected to routinely offer “make safe” appointments, as it can make individual assessments on whether an appointment is required based on the reported repair issues. In this case, as there was no evidence to suggest the resident had raised safety concerns that required assessment, the landlord would not have been obliged to arrange an appointment.
15. As the resident had raised concerns in her formal complaint that the garden posed a potential risk to her young child, it was appropriate that the landlord arranged a risk assessment, which was completed in November 2022. This identified that the only areas that required repairs were two displaced concrete base boards. The resident has since confirmed the base boards were unlikely to pose a risk to her child as they were covered by brambles.
16. The resident has advised that she intends to cut the bramble area in the spring and the landlord has agreed to complete an additional inspection once the work has been completed. The landlord also advised that additional works following the inspection may be determined to be the resident’s responsibility. As a result, the landlord reasonably managed the resident’s expectations regarding the actions it could take, and potential limitations. The landlord has acted fairly in its handling of the matter.

Complaint handling

17. The landlord’s complaint policy states that it will not consider legal cases under its policy. Following the resident’s complaint, the landlord promptly sent a letter explaining that it was unable to assess the resident’s claim that the landlord’s policy regarding dividing fences was unlawful. It stated that any legal matters were dealt with by its legal team, outside of the complaints process.
18. This was the incorrect approach to take. By way of paragraph 9 of the Housing Ombudsman Scheme, the landlord is bound by the terms of the Scheme and is required to follow the Ombudsman’s Complaint Handling Code (‘the Code’). The Code requires that when a complaint is received, the landlord must respond to it within the relevant timescales, unless there is a valid reason to exclude the complaint from the procedure or there are valid reasons for delays outside the published timescales.
19. This Service has been consistent in explaining to landlords via the Code and its guidance, that “legal reasons” or “proceedings” will not be a valid reason for rejecting a complaint from the procedure, unless proceedings have been issued. That is to say the resident or their lawyer has a stamped claim form and claim number from the courts. Moreover the Code requires landlords to explain how they have meet their policies and procedures and the law in their complaint responses. It therefore follows that there was a failure by refusing to accept the complaint at the earliest opportunity.
20. The resident raised her complaint on 27 July 2022 and the landlord refused to accept it on 28 July 2022. The landlord did not issue a substantive stage one complaint response until 1 December 2022, which was 91 working days against a target of ten working days. That was an avoidable delay by the landlord. The complaint, by this time, had been accepted by this Service based on the complaint response dated 28 July 2022.
21. Within its stage one complaint response in December 2022, the landlord accepted its decision to refuse to accept the complaint was incorrect. It further stated it “would no longer decline a complaint on the basis of its legal nature or implication unless it was in the latter stages of a legal process and court action was either pending or taking place”. The landlord had therefore demonstrated that it had taken steps of learning and improved its service. It also apologised to the resident for any inconvenience caused.
22. It is important to note that the landlord’s decision to initially not consider the complaint in full did not impact the outcome of the complaint, as the landlord maintained its position that repairs to the dividing fences were the resident’s responsibility. Nevertheless, the failings do amount to service failure, particularly given that the landlord failed to provide an adequate response to the resident’s queries about its statutory repairing responsibilities at the earliest opportunity.

Determination

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of damaged fences.
24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Order

25. The landlord is ordered to pay the resident £50 compensation to recognise the distress and inconvenience caused by its complaint handling. The payment must be made to the resident within 28 days of the date of this determination.