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Salix Homes Limited (202213960)

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REPORT

COMPLAINT 202213960

Salix Homes Limited

10 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 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 request that it replace the dividing fence in his garden.

Background

  1. The resident is an assured tenant at the property of the landlord. The landlord is a registered provider of social housing. The property is a semi-detached bungalow. The property has a shared dividing fence with the property next door.
  2. On 5 April 2022, the resident reported that the dividing fence was loose and in danger of falling. A work order was raised by the landlord to make the fence safe.
  3. The landlord carried out an inspection on 20 June 2022. On 21 June 2022, the landlord emailed the resident to explain that a fence–post was rotten and as a result it was unable to make it safe. It advised that the only option was to take the fencing down, though it would not be able to replace the fencing as this was the resident’s and his neighbour’s (joint) responsibility.
  4. The resident made a formal complaint regarding the landlord’s decision not to replace the dividing fence, and the landlord’s inconsistency in applying its fencing policy with other residents in the area.
  5. In its stage one response, the landlord confirmed it was the resident’s responsibility to replace the fence. It also provided a copy of its fencing policy. The landlord also advised it was unable to comment on works at other properties due to privacy responsibilities.
  6. In its stage two response, the landlord upheld the resident’s complaint as its investigation found it had not applied its fencing policy equally. It noted it had previously carried out repairs for another resident which had been beyond the scope of its fencing policy. It also noted that the resident’s neighbour’s property was undergoing voids works, which should have included ensuring the fence was in a proper state of repair. The landlord therefore scheduled repair works to be undertaken. The landlord did not define what works it would arrange.
  7. Subsequently, the landlord’s operatives attended on 21 September 2022. The resident refused the works, however, as he discovered that the work scheduled was to replace the fence posts only and not to renew/replace the dividing fence. The resident later allowed the work to be completed in November 2022, confirming that two fence posts had been replaced and the fence re-secured.
  8. The resident brought his complaint to this service as he remained dissatisfied with the landlord’s decision not to replace the dividing fence. He also considered the landlord had gone back on its decision to replace it as noted in its stage two response. As an outcome, the resident wanted the landlord to replace the entire dividing fence, which he advised was old and rotting.

Assessment and findings

Scope of Investigation

  1. The Ombudsman notes that the resident considers the fencing policy to be unfair. Specifically, he thought it was unfair that when damage occurs to dividing fences, it would be the resident’s and neighbour’s responsibility to replace the fence at their own expense. Whilst this report will discuss when a landlord should and should not intervene in response to reports of a damaged dividing fence, this service will only look at complaints about the fairness of a policy when the policy may give rise or contribute to a systemic service failure. We will not look at complaints that concern policies which have been properly decided by the member in accordance with relevant and appropriate best practice. As there is no evidence that the landlord’s fencing policy has been devised in such a way that may give rive to systemic issues, the focus of this report will be on whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way.

Policies and procedures

  1. The landlord’s fencing and gates policy states that fencing and gates within the boundary of the property as defined in the title documents/deeds are the responsibility of the tenant, with dividing party fences being the joint responsibility of the tenants/owners. This includes all repairs and maintenance of fences or gates in addition to replacing any damaged, broken or stolen fencing, or gates.
  2. It goes on to state that where there could be health & safety implications for the tenants, the tenants’ family, or visitors/general public then it will attend the area to make it safe. In normal circumstances, it will only attend to a broken fence or gate to make safe an area for immediate health and safety risks where a tenant cannot do this themselves, or it is not safe for them to do so. Where the landlord removes parts of fencing, brickwork or gates for safety purposes, they will not be liable to replace or repair them beyond making them safe. For clarity, it states that it would be the customers’ responsibility to replace any items of fencing, brickwork, or gates that have been removed.   
  3. It also states that there may be occasions when the landlord may repair or provide new or replacement fencing as part of the voids process. This currently provides for the repair or re-instatement of all boundary fences (normally to the front/rear and/or one side of the property) but not to dividing party fences unless specifically requested by the Voids Supervisor or manager.
  4. The landlord’s lettable standard document states it will replace missing fencing, forming a boundary between open land. Any fencing or gates between properties which are found to be in a poor state of repair or unsafe will be removed and replaced.
  5. The landlord’s repairs policy states that appointed repairs will be appointed on the first available date and time that is convenient to the customer and attended on that date.
  6. The landlord’s compensation policy allows for a gesture of goodwill payment in recognition of the time, trouble or inconvenience caused by its actions, or lack of action.

Assessment

  1. The landlord’s fencing and gate policy states that fencing within the boundary of the property is the responsibility of the tenant, with dividing party fences being the joint responsibility of the tenants/owners. This includes all repairs and maintenance of fences in addition to replacing any damaged, broken or stolen fencing.
  2. However, when a tenant reports that a dividing fence poses a health and safety risk, the policy allows for the landlord to attend and make it safe. It stipulates that, in normal circumstances, it will only attend to a broken fence to make safe an area for immediate health and safety risks where a tenant cannot do this themselves, or it is not safe for them to do so. Thus, the landlord’s decision to attend and make the fence safe on 20 June 2022, following the resident’s initial report on 5 April 2022, was in accordance with this stipulation.
  3. Based on the evidence provided to this service, it is not evident why there was a delay between 5 April 2022, and the landlord’s inspection on 20 June 2022. This delay does not make up the substantive element of the complaint, however, it would have been helpful for the landlord to have addressed this delay in its formal responses.
  4. The inspections found that due to a rotten fence post, it was not possible to make the fence safe without removing the dividing fence itself, which would have meant that the operatives would have left a gap between the properties. The landlord therefore needed to make the resident aware of the consequences of fixing the fence post, and explain that he (and his neighbour) would need to replace the fence once the post had been secured. This too was in accordance with the landlord’s fencing and gate policy which states that when the landlord removes parts of fencing for safety purposes, it will not be liable to replace or repair them beyond making them safe.
  5. The landlord duly explained its position to the resident in an email dated 21 June 2022, which, insofar as it was aware at that time, was correct and in accordance with its obligations.
  6. Following the resident’s complaint, the landlord appropriately reiterated this position, and provided a copy of its fencing policy to ensure the resident had access to all the relevant information. The resident also raised concerns about works at other properties, to which the landlord advised it could not comment due to privacy obligations. The Ombudsman considers this approach to be reasonable, however, it is not evident the landlord internally reviewed the decision relating to the other property to ensure its policy was being applied fairly, which would have been best practice.
  7. As part of its stage two investigation, the landlord established that the neighbouring property was undergoing void works. The landlord acknowledged, in its stage two complaint response dated 26 July 2022, that this should have been identified at an earlier stage. The landlord therefore upheld the complaint, apologised, and agreed that repairs would take place.
  8. The landlord’s lettable standard document sets out the standard for empty properties. It states that, before a property is let, any fencing between properties which are found to be in a poor state of repair or unsafe will be removed and replaced. Thus, if a dividing fence is deemed repairable and can be made safe, the landlord would not necessarily be required to replace the fence during the void period. This would be a discretionary decision made by the landlord based on an assessment by its qualified operatives.
  9. In this instance, the landlord did complete works on 1 November 2022, as part of its void works, which made the fence safe by replacing the fence posts and re-securing the dividing fence. It was not deemed necessary to replace the fence, because the fence was not found to be in a poor state of repair. In addition, once the fence had been secured to the new fence post, there was no longer an issue with its safety. Put simply, not only did the work undertaken resolve the initial reported issue (the potentially dangerous loose fence), it also resulted in the resident not having to re-fit the fence himself, as would have been the case if the property was not void. It is the Ombudsman’s opinion that this satisfactorily resolved this aspect of the complaint.
  10. That said, whilst the decision to not replace the fence was in accordance with its obligations, there were failings identified in regard to the landlord’s communication which elongated the conclusion of the complaint unnecessarily.
  11. Being as the landlord upheld the complaint at stage two of its internal complaint procedure, and concluded that works would be undertaken by the voids team, it was important to ensure that it was clear what works would take place and by when. The Ombudsman’s Complaint Handling Code sets out requirements for member landlords that will allow them to respond to complaints effectively and fairly. Section 5.4 of the Code states that when considering what action will put things right, landlords should carefully manage the expectations of residents. Yet, in this instance, the next steps were not entirely clear.
  12. In the landlord’s stage two response, dated 26 July 2022, it explained that:
  13.  “[It had …] discovered […] that the adjoining property was currently undergoing void works and as a joint fence this should have been checked at that time […]. [Therefore, it] asked for this work to be undertaken […]. This has been processed and the planning team will be in touch in the near future with a date for this repair.”
  14. While it is noted that the stage two response does reference “work to be undertaken” and states it is a “repair”, it did not explicitly clarify what this meant. Being as the complaint was specifically about the landlord’s refusal to replace the fence, the stage two response should have made it clear what works would likely be undertaken, because the lack of specificity on this aspect gave the resident the impression that the “work” to be carried out was the full replacement of the dividing fence.
  15. The resident only found out that the landlord was not going to replace the fence on 21 September 2022, on the day the operatives attended to complete the remedial works. The landlord’s position on the matter was not clarified until 22 September 2022, but only when the resident had pursued the matter with the landlord.
  16. Furthermore, a timeframe for when the works would be undertaken was not provided. For example, operatives did not attend the property to carry out the works until 21 September 2022; this was nearly two months after the decision had been made that works would be completed following the stage two response, dated 26 July 2022. During this period, the resident had to pursue the landlord twice for an update regarding when the works would be carried out, once on 26 August 2022 and again on 7 September 2022.
  17. While it is noted that the voids works would primarily take place within the neighbouring property, and thereby direct contact with the resident may not have been required to complete the works, the onus was still, nevertheless, on the landlord to proactively contact the resident and arrange an agreed appointment time, or otherwise keep him updated. It would have been beneficial to do so in accordance with its repairs policy, which states that appointed repairs will be arranged on the first available date and at a time that is convenient to the customer. However, it was the resident who was having to chase the landlord for clarification rather than the landlord contacting him, as the stage two response stated it would.
  18. In conclusion, the landlord’s decision to repair the dividing fence rather than replace it was reasonable in the circumstances and in line with its obligations. It is also clear that the landlord did not renege on its decision to replace the dividing fence. However, communication surrounding the next steps did result in additional delays in resolving the matter, which meant that the opportunity was missed to resolve the complaint at an earlier stage. In short, the landlord did not manage the resident’s expectations effectively, which ultimately led to further delays in resolving the issue and additional time, trouble and inconvenience for the resident.
  19. In light of the above, this Service has found service failure in the landlord’s handling of this matter and £100 compensation has therefore been awarded. This amount is in line with the landlord’s compensation policy as well as this service’s remedies guidance.
  20. Finally, it should be noted that when the resident brought his complaint to this service, he explained that he remained dissatisfied because the dividing fence was rotten and very old. As this was not part of the resident’s initial report, nor part of his subsequent complaint, this aspect has not been addressed as part of our investigation. Nevertheless, the landlord has, as part of its fencing and gates policy, discretion in certain circumstances whereby it can signpost tenants to ‘Helping Hands’ (a charitable organisation that provides services to residents and non-residents alike), and may be eligible for a free fencing and gate repairs or work completed at a discounted rate.
  21. During this complaint, it is acknowledged that the landlord did indeed signpost the resident to Helping Hands as it believed the resident could be eligible for its fencing services based on his circumstances. This service is unaware if the resident did contact Helping Hands regarding the dividing fence, but it is recommended that the landlord contact the resident further and provide the details for Helping Hands again.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord for its response to the resident’s request that it replace the dividing fence in his garden.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to pay compensation of £100 for any distress and inconvenience caused to the resident by its communication failings identified in this report.
  2. This amount must be paid within four weeks of the date of this determination.

Recommendations

  1. It is recommended that the landlord contact the resident and provides the details for Helping Hands.