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Clarion Housing Association Limited (202002244)

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REPORT

COMPLAINT 202002244

Clarion Housing Association Limited

9 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 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. refusal to repair a dividing fence at the resident’s property;
    2. handling of the associated formal complaint.

Background and summary of events

  1. The resident has lived in her house for over 40 years. It was originally a council property and was subsequently managed by two other housing associations before being taken over by the current landlord.
  2. On 14 January 2020 the resident discovered that a couple of panels of the rear dividing fence between her and her neighbour had come down in high winds. Both the resident and the neighbour rang the landlord to report the fallen fence and, on 16 January 2020, the resident emailed the landlord to provide full details. Despite sending a number of further emails, including a formal complaint, the resident heard nothing back from the landlord until she finally received an acknowledgement of her complaint on 10 February 2020.
  3. In the landlord’s stage 1 response of 2 March 2020, it said that repairs would only be logged and carried out if the criteria for repairs had been met. In this case, no repairs had been logged as the repairs contractor had advised that the resident did not meet the criteria. The covering email sent with the stage 1 response informed the resident of the fence repair criteria as set out on the landlord’s website. It said the dividing fence would be the landlord’s responsibility where a resident could evidence an explicit responsibility to repair it in their tenancy agreement. Other circumstances in which the landlord might take responsibility for repairing a dividing fence were if there was a possibility of an increase in anti-social behaviour or if the resident met the vulnerability criteria.
  4. On 6 March 2020 the resident pointed out to the landlord that, if she did not report the repair, how could it be confirmed that she was not entitled to it. She further stated that she must have met the criteria previously as, over the years, previous landlords had carried out work, the last occasion being when the fence was replaced in 2015. She therefore requested that her complaint be escalated.
  5. The landlord telephoned the resident on 8 June 2020, when it apologised that her appeal letter received on 11 March 2020 and a further chase up email from her had been mistakenly indexed onto the closed complaint and so had only recently been picked up. It advised that it may have historically repaired fences where it had not been its responsibility to do so but its policy now was to abide by what was set out in the tenancy agreement. It would send the resident a copy of her tenancy agreement for her reference.
  6. In the landlord’s stage 2 response of 12 June 2020, it confirmed that the resident’s tenancy agreement was silent on the issue of repairs to dividing fences but its website provided a breakdown of which repairs were the responsibility of the landlord and which were the responsibility of the tenant. It said it was clear from the guide that it did not repair dividing fences. It appreciated that previous operating companies had carried out repairs but this had been reviewed some years ago and, in line with many social landlords and relevant legislation, this work was no longer undertaken. In relation to the stage 1 response, it accepted that it was not as clear as it should have been about the landlord’s responsibilities. As such, it offered £50 compensation in recognition of that failing. It also offered an additional £25 and apologised that the resident had to make follow up contact in order to seek clarification.

Policies and procedures

  1. The landlord has set out its repair responsibilities on its website. Boundary walls and fencing fall within the responsibility of the landlord but dividing fences are the responsibility of the tenant.

Assessment and findings

Fencing repairs

  1. The Ombudsman agrees that the resident’s tenancy agreement is silent on whose responsibility it would be to repair the dividing fence, but the landlord’s online ‘Responsibility for Repairs’ document does make it clear that dividing fences are the responsibility of the resident.
  2. The resident’s position is that the landlord usually fixes things that are not explicitly listed in the tenancy agreement and there was nothing in the written agreement when the fence was replaced previously, yet it was still done. As it is a service that she has received over the years, the resident’s expectation was that the repair would be carried out by the landlord. Additionally, she has queried what she pays rent for if it is not for repairs.
  3. The landlord (in its previous incarnations) has carried out work to the fence and so it is understandable that this may have raised the resident’s expectations about what work might be undertaken in the current circumstances. It is possible that the landlord went beyond its obligations to replace the fence in 2015. However, this is not sufficient to convey a formal obligation on the landlord to carry out such works now. The completion of previous works does not set a precedent by which the landlord must be bound in the future.
  4. Budgetary constraints mean that social landlords do not have the ability to cover all repairs. The landlord has a duty to spend its money wisely and the Ombudsman encourages landlords to make the most effective use of their limited resources. As a result, it is reasonable for the landlord to exclude dividing fences from its repairs responsibilities, where there is no express obligation on it to complete those works. In not repairing the fence, the landlord has acted within its established policies and procedures and the Ombudsman therefore finds no fault on the part of the landlord in regard to this issue.

Complaints handling

  1. There were some failings in relation to how the landlord dealt with the resident’s formal complaint. There was a delay in acknowledging the initial complaint and the wording of the stage 1 response was not as clear as it should have been, in terms of explaining the landlord’s position and the reasons for its conclusions. The resident’s stage 2 request was then not acted upon in good time, with a delay of three months in the matter being progressed due to an administrative error. Whilst it is accepted that such errors are easily made, it is necessary to consider the impact of these delays upon the resident.
  2. The landlord did so within its Stage 2 response by apologizing for its handling of the complaint and offering a total of £75 compensation in order to recognize the impact on the resident. This amount is commensurate with the levels of compensation suggested in the Ombudsman’s own Remedies Guidance for complaints involving similar levels of time and trouble. Whilst the resident was required to chase the landlord for a clearer explanation of its position, and this would have been understandably frustrating for her, the delays did not materially alter the outcome of the complaint or the substantive issue. As a result, the compensation was proportionate to the identified service failings.
  3. In identifying whether there has been any maladministration, the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make any findings of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress, as it has done in respect of its complaint handling here.

Determination (decision)

  1. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request for fence repairs.
  2. In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about its handling of the formal complaint.

Recommendations

  1. The Ombudsman recommends that the landlord should, if it has not already done so, reoffer to the resident the £75 offered during the complaints process, as this recognised genuine elements of service failure and the sufficient redress finding is made on that basis.