Brighton and Hove City Council (202202555)

REPORT

COMPLAINT 202202555

Brighton and Hove City Council

15 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 is about:
   1. The landlord’s handling of the resident’s request to reinstate the fence that was in place prior to moving into the property.
   2. The landlord’s complaint handling.

Background

2. The resident is a tenant of the landlord, which is a local authority. The tenancy commenced on 29 March 2021 and the property is a semi-detached house.
3. According to internal emails the landlord removed multiple sheds in the rear garden of the resident’s property as part of its void works, as it noted it was not its responsibility to maintain these moving forward. The resident requested permission from the landlord to install fencing and a shed herself in late March 2021. The landlord advised that it could not process her request until her rent arrears were cleared.
4. The resident raised a complaint in early June 2021 as she was dissatisfied her property no longer had a secure garden upon accepting it. She explained that when she initially viewed the property in June 2020, the rear garden was secured with a shed, fencing and a gate. The resident said that she had viewed and accepted the property in March 2021, and had queried the lack of fencing but the landlord advised it did not fit fencing. She highlighted the risk of safety to her and her family, and noted she had requested permission for fencing, boundary lines and a shed but had no response from the landlord. The resident also noted she was unable to find where it detailed in the tenancy agreement that she could not make her home safe due to rent arrears.
5. In response to the resident’s complaint, the landlord advised that the property may not reflect the final condition of the building/ garden on the sign-off date. It recalled that it had advised the resident in April 2021 that it was unable to process her request for a shed and fence until her rent arrears were cleared. It further explained that prior to the sign–off date it inspected and maintained empty properties and, as part of its process, multiple sheds, greenhouses and conservatories were removed from the garden as it was neither the landlord’s nor the resident’s responsibility for maintaining them moving forward. The landlord later said it would make safe any dangerous or broken fence panels, and it explained that it did not generally reinstate fencing as it was the responsibility of the resident. The landlord added that it was unable to ascertain the condition of the fence or reason for the removal of it, and said that the fence would not have required renewal if the sheds had not been removed; therefore, it had replaced the fencing in those areas alone.
6. The resident referred her complaint to this Service as she said it had ignored key elements in relation to the security of the premises and safety of her family. She asserted that the landlord had refused to reinstate the fence and gate, and disputed that it had reinstated any fencing that fell when the shed was removed.

Assessment and findings

The landlord’s handling of the resident’s request to reinstate the fence and gate in place prior to moving into the property

7. When a property is void, the landlord should carry out a void inspection to identify any issues or repairs required in the property. During the void period, prospective residents should also have the opportunity to inspect the property, and raise any concerns prior to moving in.
8. The landlord advised that the resident had viewed the property externally a substantial time before the actual sign–off date, and that the property would not necessarily reflect the final condition of the building/garden on the sign-off date. According to internal emails between the landlord and its staff, the landlord carried out void works to the property to remove multiple sheds and conservatories in the rear garden as it was not responsible for maintaining them moving forward and nor would the resident be.
9. In this case, the resident had the opportunity to externally view the property on 30 July 2020 and again 23 March 2021 prior to accepting on 24 March 2021. At that point she also had the opportunity to raise concerns but had accepted the property as was before moving in. The resident stated that she had queried the lack of fencing in March 2021 in which the landlord advised it did not “do fencing”. The landlord advised that it did not generally reinstate fencing as it was the responsibility of the resident. It was appropriate for the landlord to advise the resident of her responsibility around the fence and to clearly explain its position in line with its repairs and improvement handbook.
10. Nonetheless, the landlord’s repairs and improvements handbook states that the resident is responsible for the fencing unless there is a health and safety issue. The resident said she believed the unsecure fence posed a security risk to her and her family. The landlord advised in its correspondence to the resident that it would make safe any dangerous or broken fence panels. However, in its communications to this Service it advised that there had been no inspections relating to the fence as it was not carrying out fencing work.
11. Although the landlord was not responsible for maintenance of the fence, it would be obligated to investigate the resident’s report and to ensure the fence had not posed a health and safety risk. Its failure to investigate the resident’s health concerns constitutes a failure.
12. In the landlord’s final complaint response, it explained that it was unable to ascertain the condition of the fence or reason for the removal of it. The landlord advised that the fence would not have required renewal if the sheds had not been removed, and so it had replaced the fencing in those areas alone. The resident disputed that the landlord reinstated any fencing that fell when the shed was removed. The landlord has not provided any repair records noting the history of works carried out to the resident’s property. This indicates poor record keeping as the landlord should have its own repairs records. The Ombudsman would expect a landlord to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case.
13. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. When the Ombudsman investigates a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures and this is indeed the situation here. As such, this constitutes a further failure by the landlord.
14. Given the fact that there would not have been concerns regarding the security of the garden, had the fence not been removed during the removal of the garden sheds, the landlord would be responsible for reinstating the fence and making safe the resident’s property. The landlord significantly delayed in accepting this position and subsequently doing so and this resulted in distress, inconvenience, time and trouble to the resident. It is the Ombudsman’s opinion that these cumulative failings amounted to maladministration.
15. The landlord’s corporate complaints policy states where it is obvious that the complainant has suffered some loss due to a fault by the council, consideration should be given to offering a payment to the complainant. In deciding whether compensation is appropriate the council will follow guidance from the Local Government and Social Care Ombudsman. As the landlord does not have its own compensation policy the Ombudsman has assessed the level of compensation which should be paid using our own remedies guidance, which is published on our website. The landlord should pay the resident £200 compensation for the failings identified above, which have also been impacted by the poor record keeping.
16. The Ombudsman also notes that the resident explained she had requested permission for fencing, boundary lines and a shed. The landlord advised the resident that before it could process her requests she would need to clear any arrears in her rent account. In this case, the landlord’s advice was reasonable and in line with its policy. This is because in accordance with its alterations and improvements procedure, all arears must be cleared before it can begin its process. The policy further notes that the landlord would not give permission for any alteration if the resident is in any debt to the landlord including rent arrears.

The landlord’s complaint handling

17. The landlord’s complaint policy states that it has a two-stage complaints process. It sets out ten working days for its stage one complaint response and 20 working days for its stage two complaint response. The complaint policy notes that it will keep the resident informed where it is not possible to provide its response within the time advised.
18. The resident raised a formal complaint on 8 June 2021. The landlord provided its stage one complaint response on 18 June 2021 which was in line with its complaint policy. The resident escalated her complaint on 5 July 2021 and the landlord issued its final complaint response on 7 September 2021, which was a significant delay outside its complaint policy. This constituted service failure to meet service standards for responses and caused distress and inconvenience to the resident. As such the landlord should pay £50 compensation to the resident in view of this. This amount is in line with the Ombudsman’s own remedies guidance (published on our website). 

Determination

19. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way it handled the resident’s request to reinstate the fence and gate in place prior to moving into the property.
20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.

Orders

21. The landlord is ordered:
    1. to pay the resident £250 in compensation broken down as follows:
       1. £200 for its failings in the handling of the resident’s request to reinstate the fence.
       2. £50 for its poor complaint handling.
    2. to arrange an inspection of the fence and provide this Service and the resident with an update of the findings. If any remedial works are required, the landlord should ensure these are carried out within the timescales set out in the landlord’s repairs policy.
22. The compensation should be paid directly to the resident, with all orders completed within four weeks of the date of this decision.