Hastoe Housing Association Limited (202006085)

REPORT

COMPLAINT 202006085

Hastoe Housing Association Limited

16 April 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

The complaint is about the landlord’s response to the resident’s reports about:
1. Antisocial behaviour and racism.
2. Repairs to a garden fence.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(d) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s report about antisocial behaviour and racism.
Following the landlord’s enquiries with the resident, it was noted she expressed dissatisfaction with historic handling of reports of antisocial behaviour and racism. The landlord subsequently confirmed to the resident that this complaint was investigated previously, and it has not been disputed that a final, stage two response was issued on 24 March 2017, over three years before the complaint was brought to the Ombudsman in September 2020.
Paragraph 39(d) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.”
It is noted the resident expresses dissatisfaction with the original investigation and disputes that the landlord carried out a full review of her complaint about how incidents were dealt with. However, this Service is unable to investigate the complaint as it was not brought to the Ombudsman’s attention within 12 months of the matter exhausting the landlord’s complaints procedure.
If in future the resident is dissatisfied with the landlord’s handling of further reports, she has the option to progress this through the landlord’s complaints procedure and, if she remains dissatisfied with the landlord’s final response, to bring it to the Ombudsman’s attention within 12 months, so that this Service may investigate.
The complaint about the repairs to a garden fence is within the Ombudsman’s jurisdiction and has been considered below.

Background and summary of events

Background

The resident is a tenant of an housing association. The tenancy commenced in 1998.
Section 2(4)(ix) of the tenancy agreement advises that the landlord must keep in good repair the structure and exterior of the premises, including boundary fences.
The landlord’s Repairs Handbook advises that tenant responsibilities include repairing and replacing fencing, and that any replacement fencing will be carried out in chain link. Repairs are mainly prioritised into three response time categories, with works completed in four hours for urgent repairs and up to 28 days for routine repairs. The landlord’s repairs procedure confirms that where fencing poses a health and safety risk, it will be made safe, which may include removal or stacking safely in the garden.
The landlord’s tenant handbook advises that different tenancy agreements give different rights. It advises customers to check what agreement they have and what applies to them, and to contact the landlord if unsure.
The landlord operates a two stage complaints procedure. At the time of the complaint, the landlord aimed to provide a written stage one response within 14 days, after which a complainant needed to request escalation within 21 days. The landlord then aimed to provide a written stage two response within 21 days. The landlord’s complaints policy notes a complaint is an expression of dissatisfaction about standard of service or a request for service, but that complaints about policy which has been applied correctly falls outside its scope.
The landlord’s compensation policy confirms compensation can be considered where services have not been delivered in accordance with policies, and distress or significant inconvenience has resulted. It does not set specific limits for payments.

Summary of events

Between 15 and 21 January 2020, the landlord’s records advise the resident called to request repair to her wooden fence which had blown over due to strong winds. The landlord’s records advise that the resident was informed by its contact centre and staff that this was a tenant responsibility. The resident is noted as being unhappy with this and wanting to complain.
Between 21 April and 16 June 2020, the landlord’s records advise the resident contacted the landlord to query timeframes for the repair and lack of response to her complaint. She reported that the landlord had carried out every previous fence repair/replacement. She provided an historic tenant handbook that stated the landlord maintained boundary fencing. Following this, the landlord’s records advise it informed the resident on multiple occasions that the fence was her and her neighbour’s responsibility as outlined in the Repairs Handbook.
On 22 June 2020, following further dissatisfaction from the resident, the landlord reviewed the maintenance history for the property and noted that the last fence repair was in 2014. It explained that historic information the resident referred to had been superseded since 1998, and that residents were informed of the revision to fencing policy in 2016. It acknowledged it did have a duty to make the fence safe, which it advised would be removal or stacking in the garden for the resident to re-erect at her own cost.
On 23 June 2020 the resident advised that the landlord was unreasonable to insist the fence was the joint responsibility of her and her neighbour, when her household had been the subject of antisocial behaviour and racially motivated attacks. She also explained she was a single parent with a vulnerable child and not in a position to embark on repairs.
On 25 June 2020 the landlord issued its stage one response. It explained that in line with its Repairs Handbook, it was not responsible for maintaining fencing between the resident and her neighbour’s home. It advised an antisocial behaviour issue did not affect maintenance responsibilities for the fence but an area housing manager had been made aware of the issue. It acknowledged recent correspondence mentioned a complaint that had not been responded to. It advised this had been raised to a former member of staff and it apologised this had not been logged and responded to.
Following this, the resident requested escalation within the landlord’s procedure, and subsequently commented that her neighbours were not residents she could reasonably be expected to approach to discuss fence repairs, given a history of racially aggravated antisocial behaviour.
On 14 July 2020 the landlord issued its final response.
1. It explained that as discussed in a recent call, its policy is that fence repairs are tenant responsibility. It explained the review of the complaint would look at whether this had been applied correctly in the circumstances, and if the stage one complaint had been handled correctly.
2. It acknowledged the resident’s reports of lack of response to complaints. It noted that a response to a consultation dated 7 March 2020 included a complaint about the fence, which was not received until June 2020. It explained that, although there were current delays forwarding post due to Covid-19, this was not forwarded as quickly as it should have been when received, and apologised for this. It noted that the letter had now been reviewed and the queries in it were responded to in January 2020.
3. It explained the responses to the resident’s repairs reports had been in line with policy.
4. It explained it was reasonable for a previous complaint request not to have been investigated as a complaint, as decisions in line with policy sit outside the complaint procedure.
5. It acknowledged that the resident stated antisocial behaviour and hate crime resulted in her not being able to discuss fence replacement with her neighbour. It explained that records advised the last reports of nuisance were in 2018, following which households causing nuisance were written to; the resident was provided with diary sheets; and commitments were made to look into home visits with police if further reports were received. It advised the resident’s neighbour was not mentioned in these reports or since that time.
6. It concluded that the correct decision was made in line with the landlord’s policy and advised it was not going to uphold the resident’s complaint.
On 1 September 2020, the resident wrote to the landlord about dissatisfaction and inaccuracies with the response, and on 3 September 2020 the landlord responded.
1. It explained that in a telephone conversation it was thought the resident said she had written in January and March, and apologised for this error.
2. It explained it did not normally acknowledge receipt of individual surveys. It advised it could in future do this for small consultations, however this would not be practical for larger surveys.
3. It advised the decision not to change the fence was made in line with policy and that it was normal for landlords to change their policies from time to time. It advised that it would not formally write to individual tenants for such matters, and had advised of this change in its tenant magazine.
4. It advised previous reports about the resident’s neighbour were from some years ago and related to noise, which it would not consider as justification to make an exception to the policy for tenants to repair/replace their own fencing.
5. It advised complaints from 2015 had been responded to and it would not review or reinvestigate these complaints due to the elapsed time.
6. It advised staff would contact the resident to discuss current issues experienced with neighbours to advise how it could assist.
On 15 September 2020, the landlord’s records advise an area housing manager contacted the resident who confirmed there had been no recent antisocial behaviour incidents.
On 16 September 2020 the landlord wrote to the resident. It advised that it had recently been reviewing tenancy agreements and had identified hers had a clause requiring it to undertake repairs to boundary fencing. It confirmed staff would be in contact to arrange repair of the fence. It apologised that this was not seen previously and offered £100 compensation for distress and inconvenience caused to the resident.
On 25 September 2020, the resident advised she felt she could not accept the compensation. She stated there had been a protracted breach of the tenancy agreement and the landlord had wilfully refused to accept responsibility for the fence.
On 28 September 2020, the landlord assured the resident that it did not wilfully refuse to repair the fence in the knowledge this was an obligation in the tenancy agreement. It explained that the separate review of tenancy agreements highlighted that this obligation was contained in some agreements. It explained that this should have been picked up earlier, should not have required the resident to make a complaint, and the compensation was offered as an apology for the delay and any inconvenience caused. It asked the resident to clarify dissatisfaction with the complaint and compensation/outcomes sought.
Following this, in October and November 2020 the landlord’s surveyor and contractor carried out pre-inspections for fencing works, and between November 2020 and February 2021 the resident raised concern about the fencing that was intended to be installed. In correspondence, she requested a superior grade fence similar to when the property was built, not similar fencing to previous years which was not durable and ‘not fit for purpose.’
On 26 November 2020 the landlord internally discussed the complaint, noting that wooden fencing should be installed rather than the usual wire fencing, to provide extra apology for errors dealing with the complaint. The landlord’s maintenance team confirmed wooden fencing had been ordered, but contractors had been refused access in relation to installing this.
On 27 November 2020 the landlord explained to the resident that it had asked its contractors to install interwoven timber panels and that normally it would install chain link fencing. It explained this was a one–off gesture of goodwill and any future repairs would be carried out as defined in the resident’s tenancy, and if undefined, in accordance with its policies and procedures.
Subsequently, the resident expressed continued dissatisfaction with the type of fencing intended to be installed. She advised this was similar to unsatisfactory fencing installed four times over the past 20 years, which was ‘unreasonable.’ She also expressed dissatisfaction that the fence was being installed as a ‘one-off’ goodwill gesture. She advised that this contradicted previous statements that her tenancy agreement supersedes the landlord’s fencing policy. She contended that the landlord’s position breached her tenancy agreement.
Subsequently, the landlord explained that its responsibility within the tenancy agreement is to maintain the fencing and it is not obliged to replace fencing on a ‘like for like’ basis. It explained that where it has responsibility to maintain fencing it replaces existing fencing with chain link fencing where repair is not possible. It explained this fulfils its obligations in the tenancy agreement in the most cost effective way. It explained chain link fencing was resistant to wind damage and less likely to fall down. It explained that to recognise previous failing it was happy to install a simple timber fence using interwoven panels, however it was not willing to install a premium fence of the type being requested. It confirmed that it was happy to fulfil obligations concerning the fencing, however this would be either interwoven timber panels or chain link fencing depending on the resident’s preference, and the works would be arranged once this was received.
In contact to this Service, the resident complains that the landlord provided conflicting information. She expressed dissatisfaction that her complaint was originally not upheld, since the tenancy agreement states fence repairs are the landlord’s responsibility. She expressed dissatisfaction the landlord advised it would carry out work as a ‘one off’ ‘gesture of goodwill,’ also because the terms of tenancy states fence repairs are the landlord’s responsibility. She expressed dissatisfaction with the landlord originally stating she and her neighbour were liable for the repair despite her reporting her neighbour for antisocial behaviour and racism. She expressed frustration that the landlord wanted to install similar fence panels, as she desired a lasting solution to the fence falling down.
The landlord explains to this Service that its policy, where it is obliged to replace fencing, is to replace with chain link fencing only. It explains that as it failed to deal with the issue when it should have done, it offered a higher specification of fencing in addition to compensation. It explains it has now changed policy to reflect that tenancies before 2005 may have clauses obliging it to undertake fencing work. It also explains that when reports are now received from tenants with tenancies before 2005, checks are done to establish responsibilities. It also confirms information for residents has been updated on its website. Additionally, the records the landlord provides advises no complaints have been received about the resident’s neighbours who border the fence, apart from historic music noise nuisance.

Assessment and findings

The tenancy agreement is a key document in the landlord and tenant relationship which sets out both the landlord and tenant’s obligations. In accordance with the terms of the resident’s tenancy agreement, the landlord is responsible for the repair of her boundary fence. When the landlord therefore informed the resident from January 2020 that, in line with policy, the fence was her responsibility, it was not acting in accordance with its obligations. This was not appropriate.
When the resident expressed a desire to complain in January 2020, this was not progressed within the landlord’s complaints procedure. While the landlord’s policy excludes complaints about correctly applied policy, this was not an appropriate outcome to the complaint request, given its obligation to repair the fence under the tenancy agreement. Furthermore, considering a matter under the complaints procedure at this point would have given the landlord an earlier opportunity to consider whether the policy had in fact been applied correctly. There was therefore a missed opportunity here to put matters right at an earlier point in time.
When the resident continued to complain in June 2020, it was appropriate that the landlord considered the resident’s concerns and responded to them, including within its complaints procedure. It was also appropriate that it considered her concern that antisocial behaviour and hate crime prevented discussion of the fence with a neighbour. The landlord’s conclusion about this aspect was reasonable, as it had no record of recent antisocial behaviour reports against the neighbour, or of any complaints against them apart from historic music noise nuisance.
As set out in its Scheme, when investigating, this Service sets out to establish whether a member has complied with relevant legal obligations, such as the tenancy agreement, and this Service’s spotlight report on complaints about repairs advises that there may be additional obligations written into the tenancy agreement which give residents additional rights.
Therefore when complaints are received which dispute repairs responsibilities, there is a resultant obligation and opportunity for a complaints investigation to review the tenancy agreement in addition to policies and procedures, which in its first and initial final complaint response the landlord did not do. This demonstrates that the landlord’s consideration of the substantive issue was not as effective as it could have been at both stages of its complaints procedure.
Two months after the landlord’s final response, when it became aware of tenancy agreement clauses in relation to fencing, it was positive and appropriate that it recognised the impact of this on the resident’s complaint and took swift steps to attempt to rectify its failing. It apologised to the resident, offered her £100 compensation for distress and inconvenience, and confirmed it would meet its obligation to repair the fence. It acknowledged to her that the issue should have been picked up earlier and she should not have had to have made a complaint. Although it may have been clearer about this from the start, it also offered to erect wooden fencing rather than the chain link fencing it usually installs, in recognition of the circumstances. This demonstrates the landlord subsequently acknowledged failings and sought to resolve the issue satisfactorily for the resident.
When the resident expressed dissatisfaction with the type of fence intended to be installed, and with the landlord’s one-off gesture of goodwill, she contended that these contradicted what it stated previously and breached her tenancy. While the tenancy agreement advises that the landlord must keep in good repair boundary fences, the agreement does not specify the type of fence, which allows the landlord to decide fencing type in its repairs policy. Therefore, while the landlord’s policy not to repair fences was superseded by the obligation in the tenancy agreement, its policy to usually install chain link fencing was not. The Ombudsman encourages social landlords to make the most effective use of their limited resources, and to set cost effective repairs policies is reasonable. The landlord was therefore acting reasonably in line with its obligation to repair the fence, and positively exercising discretion to install a timber fence rather than a chain link fence.
In this case the Ombudsman notes that the landlord has identified and acknowledged service failures and taken steps to ‘put things right.’ The extent to which a landlord recognises and addresses any shortcomings and the appropriateness of any steps taken to offer redress may be as relevant as an original service failure. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress, in line with this Service’s Dispute Resolution Principles, which are:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right.
3. Learn from outcomes.
This Service recognises that in many areas the landlord has appropriately responded to the complaint in very positive ways, outlining a number of steps it has taken to ensure it meets obligations in tenancies in future. It was also right for the landlord to consider making an offer of redress to recognise the failures and, when the resident expressed continued dissatisfaction, it was right to invite her to clarify the level of compensation or the outcome she was seeking.
Overall, considering all the circumstances of the case, the landlord has demonstrated it took a broad customer and resolution focused approach to put things right and learn lessons from the case, in line with the Ombudsman’s Dispute Resolution Principles.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress in the landlord response to the resident’s reports about repairs to a garden fence.

Reasons

In the Ombudsman’s opinion, the landlord appropriately offered the resident an apology, compensation and exercised discretion to offer to install wooden fencing rather than standard chain link fencing. It also took appropriate steps to ensure in future that it meets its obligations in tenancies.

Orders and recommendations

Recommendation

The landlord to:
1. Re-offer the resident £100 for the distress and inconvenience as a result of its failures.
2. Contact the resident to arrange installation of the fence, if this has not already progressed.
3. Review its complaint handling in regard to the missed opportunities to resolve the complaint earlier within its complaints procedure.