Dacorum Borough Council (202007602)

REPORT

COMPLAINT 202007602

Dacorum Borough Council

16 March 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 refers to:
1. The landlord’s response to the resident’s reports of a broken boundary fence.
2. The landlord’s handling of the associated complaint.

Background and Summary of events

The resident is a secure tenant of a property owned and managed by the local authority landlord. The resident’s garden adjoins to his neighbour’s garden. The gardens are separated by a boundary fence.
The resident wrote to the landlord on 1 February 2020 and explained that strong winds had broken a fence post which had been erected by the landlord in 2011 between his garden and his neighbour’s garden. He noted that his neighbour was responsible for this fence but had previously refused to repair or replace the fencing. The resident stated that he had previously suffered from antisocial behaviour (ASB) from his neighbour, who allowed their dogs to enter his garden and bark at his family when the fence had come down, which had caused significant upset. He said that the landlord had previously erected the fence to prevent this ASB. The resident expressed concern that the fence would come down again following any further strong wind and requested for the landlord to repair the fence post before any similar ASB issues occurred.
The landlord responded to the resident on 5 February 2020 and advised that it would not be able to replace or repair the fencing. It noted that the Tenancy Agreement stated that fences between gardens were the responsibility of the tenant to maintain. It stated that it may be able to carry out the repair and re-charge the works to the tenant. It stated that it was aware of the previous circumstances of ASB and advised that if this behaviour were to reoccur, then it would be able take further action.
The resident emailed the landlord on 10 February 2020 and advised that the fence had come down. He expressed dissatisfaction that the landlord had advised that he could set up a payment plan when his neighbour was responsible for the fence.
The landlord responded the following day and maintained its previous position: that it would not get involved with fencing between properties. It explained that it would be up to the resident to approach his neighbour about replacing the fence, or the resident could erect a fence on his side of the boundary line if he did not wish to speak to his neighbour or the neighbour was unwilling to repair the fence.
The resident emailed the landlord on 16 February 2020 and stated that it was not his responsibility to repair or replace this fence, it was his neighbour’s. He noted that the landlord’s fencing policy stated that it was a pet-owner’s responsibility to maintain the fence and to not allow the pet to cause a nuisance to any neighbours. It also stated that if a resident was experiencing nuisance from a neighbour’s pet, they could report it to the landlord. The resident explained that he could not afford to erect another fence as he had recently needed to repair a fence on the other side of his property. He did not feel he should incur an expense for an issue which was his neighbour’s responsibility.
The landlord responded to the resident on 17 February 2020 and acknowledged that the matter may be frustrating for the resident as it was not his fence. It confirmed its previous position that it would not get involved with fencing between properties, and it would only place a wire which shows where the boundary should be. It stated that if the neighbour’s dog entered the resident’s garden, he should contact the local Dog Warden directly. It said that it could potentially contact the local authority’s Animal Welfare Team to discuss his neighbour’s responsibilities. It advised the resident to complete diary sheets as it would not be able to take action based on the historical events. The landlord also offered the resident mediation with the neighbour.
The resident emailed the landlord on 22 February 2020 and advised that he could not keep diary sheets as he worked during the day. He said that he had completed diary sheets previously and it had taken the landlord months to act on the evidence he had provided. He advised that mediation would not be useful as he believed his neighbour did not care about the issue. He noted that the neighbour had now propped up the fence on rotten fence posts and the wind had now blown this over which was dangerous. He felt that the landlord should be responsible for repairing the fence as it had previously erected it.
The resident sent a further email on 22 February 2020 and attached photos of his neighbour’s dog in his garden. He stated that the dog walked around the garden and urinated on his washing line stand and his plants. He stated that his neighbour did not call the dog back into their garden. The resident asked if the landlord would now take action.
The landlord called the resident’s neighbour on 27 February 2020 and advised them of the issues related to their dog. It advised the neighbour that they would need to ensure their dog did not go into other residents’ gardens. The neighbour advised that they had replaced the fence panels previously, but the resident had removed these and placed his own. The neighbour advised that they would make sure the dog could not get through the gap in the fence.
The landlord emailed the resident on 27 February 2020 and advised it had contacted the resident’s neighbour and reiterated that it was their responsibility to make sure that their dog did not enter the resident’s garden.
The resident raised a complaint on 15 March 2020 and detailed the historical incidents involving his neighbour and the fence. He explained the following:
1. He detailed the historical issues he had experienced in relation to the fence and his neighbour. He advised that he was responsible for the other two fence boundaries at his property and could not afford to also be responsible for the fence between his garden and his neighbour’s garden. He explained that his neighbour was responsible for this boundary fence.
2. He confirmed that the landlord had erected the boundary fence in 2011 following multiple complaints about his neighbour’s dog and his neighbour’s failure to adequately secure the fence. He had hoped that the landlord would continue to maintain this fence due to the previous issues with his neighbour but had been advised that the landlord would not get involved with fencing disputes.
3. He confirmed that on 9 February 2020 the fence came down once more and he had been advised by the landlord that if he did not like the neighbour’s dog entering his garden, he could replace the fence himself. Alternatively, the landlord could replace the fence and the resident could pay the cost back to the landlord. The resident questioned why he should incur a cost when the boundary fence was his neighbour’s responsibility.
4. He reported that the neighbour’s dog had entered his garden on 22 February 2020. Following this he had replaced and repaired the fence himself to prevent future occurrences, although he could not secure the missing panel.
5. The landlord had then visited his neighbour and informed the resident that the neighbour intended to replace the fencing. The resident advised that it had now been three weeks since the visit and the fence had not been secured by his neighbour. He remained concerned that the neighbour’s dog could enter his garden and that the fence was dangerous.
6. He believed that the landlord was allowing his neighbour to ‘get away’ with ignoring their responsibilities. He asked the landlord to reimburse him for the cost of the fencing as he advised that this fence was not his responsibility to maintain.
The landlord emailed the resident on 17 March 2020 and advised that it had passed the resident’s complaint to the relevant department which dealt with complaints made about other residents and that a service request had been raised. The resident questioned this at the time and advised that this was a complaint about the landlord’s actions not just the actions of his neighbour.
The landlord issued an informal response to the resident but this has not been provided to this Service for investigation. The resident emailed the landlord on 31 March 2020 and advised that he wished to take his complaint further following a response he had received.
The landlord emailed the resident on 1 April 2020 and apologised that the resident remained dissatisfied. It explained that it would review the resident’s case and get back to him as soon as possible.
On 8 April 2020 the landlord emailed the resident and advised that it had reviewed the resident’s case. It explained that the neighbour had been given clear advice and the landlord had not received any further reports of nuisance from the resident. It advised that its main objective was to see that the boundary fence was adequately repaired and maintained. It confirmed that the neighbour was cooperative; although due to the lockdown restrictions in place in response to Covid-19, it was unable to arrange a follow-up visit to ensure this work had been completed. It advised that the resident’s case would not be closed until it received confirmation that the fence had been repaired.
The resident responded the same day and advised that the landlord had not understood his position. He explained that the landlord had made him buy the replacement fencing and posts as its Pet Policy was not effective. He remained dissatisfied that the landlord had not ensured that his neighbour had secured the boundary fence prior to the lockdown restrictions. He maintained his position that he had needed to repair the fence as his neighbour did not. He wanted the landlord to tell his neighbour to maintain the fence and keep their dogs out of his garden.
The landlord has advised that the resident raised a formal complaint on 27 April 2020 and expressed dissatisfaction with the way it had handled his complaint. He felt that it had failed to do something it should have done and that the landlord should compensate him for the new fence posts he had purchased. He had stated that he would like the landlord to make sure the garden was fully secured as the temporary screen currently in place was not safe.
The landlord issued its stage one complaint response on 12 May 2020 and advised the following:
1. It advised that it had contacted the resident’s neighbour and warned them about breaches of tenancy and highlighted its expectations in line with the Pet Policy. It advised the neighbour that they were not allowed to let their dog into the garden off a lead until they had fixed the fence. It confirmed that the dog had not caused the resident any further nuisance since this warning was issued.
2. It noted that the neighbour had not fixed the fence, but the landlord had received confirmation that this would be done. The current national lockdown in response to Covid-19 and the neighbour’s personal circumstances had meant this had not been possible. The landlord advised that it would continue to monitor this matter and confirmed that the case would remain open until the fence was repaired. It explained that it was not in a position to visit any properties to carry out inspections.
3. It advised that if the resident remained dissatisfied with its response, he could escalate his complaint within 28 days.
The resident emailed the landlord on 13 May 2020 and advised that he was not satisfied with its response. He had been told by the landlord that if he did not like the dogs accessing his garden then he should repair the fence himself and did not visit his neighbour until after he had repaired the fence. He explained that his neighbour made excuses when asked to repair the fence and had previously refused to do this despite this boundary being their responsibility. He questioned his neighbour’s personal circumstances and explained that the additional costs he had incurred as a result of repairing the fence had left him in hardship. He asked the landlord to reimburse the costs of replacing the fence and to ensure thar part of the fence which remained insecure was repaired
The landlord’s records on 16 June 2020 confirm that the fencing had been repaired sufficiently and that the neighbour’s dog was unable to get through to the resident’s property.
The resident followed up with the landlord on 23 August 2020 as he had not received a response. He noted that he had emailed the landlord on 7 July 2020 and had been advised that a complaint was under investigation. He said that it had been three months since he had raised the complaint and requested a response as soon as possible.
On 26 August 2020 the landlord apologised for the delay in issuing a response and advised that it was currently working on this and would provide a response in the near future.
On 26 August the landlord issued its final response to the resident and advised the following:
1. It apologised for the delay in providing a response and advised that the member of staff responsible for issuing the response had been away from the office.
2. It had found that the only element of the resident’s complaint that it had not previously addressed was that the resident felt he should not have been told to fix the fence himself as his neighbour was responsible for this boundary. It explained that it had been clear with the resident’s neighbour and advised that it was their responsibility as a dog owner to ensure that there was a sufficient fence and that their dog was not left unattended.
3. It explained that as the boundary was also part of the resident’s property, it was reasonable that it had previously advised the resident that he could carry out the repair himself if he wished, and that this could be quicker and to the standard the resident chose.
4. It advised that it was still managing this matter and had given the resident’s neighbour a deadline to fix the fence. It confirmed that the complaint had been handled effectively and that it would not offer compensation in this situation.

Assessment and findings

The landlord’s response to the resident’s reports of a broken boundary fence.

The resident has referred to historical issues of his neighbour’s dog entering his garden through a broken fence in 2007 and 2011. The landlord had replaced the boundary fence at this time. Whilst the historical incidents provide contextual background to the current complaint, this assessment focusses on the events from 1 February 2020 and the resident’s formal complaint in relation to the landlord’s handling of this matter.
The Tenancy Agreement states that the landlord would be responsible for boundary walls and fences (other than fences between gardens which are the responsibility of the tenant to maintain). The landlord’s Fencing Policy confirms that any fences or walls that act as a boundary between a property owned by the landlord and a neighbouring garden are the responsibility of either the tenant or their neighbour. It would be a dog owners’ responsibility to ensure that the dog does not escape. If a dog is loose in the garden then the owner must ensure that their whole garden is securely fenced, whether or not the boundary forms part of their home. It would be the dog owner’s responsibility to erect a fence or other barrier inside their own boundary to keep their dog safely within their own garden and ensure that their pet does not cause nuisance to other tenants.
Following the resident’s initial report that the boundary fence was insecure on 1 February 2020, the landlord acted appropriately by advising the resident of its responsibilities and obligations when it came to fences between gardens. It advised that it did not get involved with issues surrounding boundary fences between gardens and advised that it would only place a wire which shows where the boundary should be, which is in line with its Fencing Policy. The landlord would not be obliged to repair or replace the fence again on the basis that it had previously done so in 2011.
The landlord acted reasonably by explaining the actions the resident could take if he wished to place a fence himself. The landlord could also replace the fence at the resident’s request and recharge these works to him. If the resident did not want to replace the fence himself then he could discuss the matter with his neighbour, as the fence was the neighbour’s responsibility. In light of the resident’s comments in relation to his neighbour’s previous refusal to replace the fence, the landlord also offered the resident mediation in an attempt to resolve the matter. Mediation can be a useful tool in resolving neighbour disputes and may have assisted the resident to approach his neighbour within an impartial setting. The resident was within his rights to refuse this offer, although it was still reasonable for the landlord to offer this service as an option in an effort to resolve the issue.
At this stage there had been no reports of nuisance from the neighbour’s dog and it was therefore reasonable that the landlord advised if previous behaviour were to reoccur, then it would be able take further action. It advised the resident to complete diary sheets as it would not be able to act based on the historical events alone without evidence of recent incidents. The landlord intervened once it became apparent that the neighbour’s dog had breached the boundary and was causing nuisance to the resident. This was appropriate as the neighbour’s lack of action was evidentially causing the resident nuisance which could be considered a breach of tenancy. The landlord has taken reasonable steps to advise the neighbour of their responsibilities in regard to pet ownership and has provided evidence which confirms that it had followed up on this matter with the neighbour.
The resident expressed concern that the landlord was letting his neighbour ‘get away’ with avoiding their responsibilities. The landlord had advised on 12 May 2020 that the fence had not been repaired yet due to the impact of Covid-19 and due to the neighbour’s personal circumstances. It was reasonable that the landlord could not disclose the details of the neighbour’s personal circumstances as this would be a breach of data protection legislation. In any case, the landlord has advised that any delay to the fence was reasonable due to the impact of Covid-19 which was unavoidable.
The resident has expressed concern that the landlord advised him to replace the fence himself and feels that the landlord should reimburse him for the cost of replacing the fence and time off work to carry out the repair. Whilst the resident’s frustration is understandable as it is not disputed that it would be the dog-owner’s responsibility to ensure that the fence was secure and that their dog could not escape. It was reasonable that the landlord advised the resident of his options including replacing the fence himself. The landlord would not be expected to reimburse the resident for any costs related to the repair of the fence as it did not compel the resident to repair the fence and had provided alternative options and mediation to help resolve the matter. The landlord’s advice to the resident was also reasonable as it may have been quicker and more suitable to the resident if he undertook this work himself.
In short, there has been no maladministration by the landlord in respect of its response to the resident’s reports of a broken boundary fence. Ultimately, the landlord is not responsible for the fence and would not be obliged to get involved in any fence dispute unless the dispute began to cause nuisance to either neighbour. The landlord acted reasonably by making the resident aware that he could replace the fence himself if he wished and by contacting the neighbour to advise them of their responsibilities as a dog owner, once any nuisance became apparent.

The landlord’s handling of the associated complaint

The landlord’s complaint handling policy confirms that it has a two-stage process for formal complaints. At stage one the landlord should provide a formal response within 15 working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two the landlord should provide a formal response within 20 working days. The time period can be extended if the case is complex or it requires further investigation. In these circumstances the landlord should write to the resident to explain the delay and provide a new date for receipt of its response. There are a number of circumstances in which it is usually not appropriate or possible to accept a complaint using this process, including where a resident has raised a complaint about another resident.
The resident raised an initial complaint with the landlord on 15 March 2020 following informal attempts at resolving the matter. The complaint was with reference to his neighbour’s actions, although it also focused on the way the matter had been handled by the landlord. The landlord would be expected to attempt to resolve the matter and has treated the complaint as a neighbour dispute at this stage. It was reasonable that this complaint was not handled in line with the landlord’s formal complaint process as the majority of this complaint was in relation to the resident’s neighbour’s actions. However, as the resident’s complaint was also about the landlord’s handling of this matter, it would have been appropriate for the landlord to address this under its formal complaints process at this stage. The landlord has not provided a copy of the informal response sent to the resident and we can therefore not investigate this response further. The resident was not significantly disadvantaged by the landlord’s decision not to progress this as a formal complaint because it is clear that the landlord continued to investigate this matter and had contacted the neighbour at this time in an attempt to find a resolution.
The resident raised a further formal complaint with the landlord on 27 April 2020, and the landlord provided its stage one response on 12 May 2020, which was within the 15 working day timescale. The resident then requested for his complaint to be escalated on 13 May 2020. He has advised that he followed this up with the landlord on 7 July 2020 and there is evidence showing that he had raised a further complaint on 23 August 2020 as he had not received a formal response. The landlord issued its stage two response on 26 August 2020, which was 54 working days outside of its 20-working day timescale.
Whilst the landlord has apologised and explained that this was due to a staff member being absent, there is no evidence to suggest that the resident was made aware of any likely delays or provided with a new date to expect the landlord’s response at an earlier stage in line with the complaint handling policy. The landlord should have processes in place to ensure that timescales are met, or policies are followed where there is staff absence. This is likely to have caused the resident inconvenience and uncertainty about the progress of his complaint and the landlord’s service has not been delivered to the expected quality.
In view of this, the landlord should offer the resident compensation in recognition of the inconvenience and uncertainty caused by its lack of communication surrounding the delay in providing its stage two complaint response. It is recommended that the landlord also carries out staff training for complaint handlers to ensure that timescales are met, and the correct process is followed if a delay is likely.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of a broken boundary fence.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Reasons

The landlord has acted appropriately by confirming its obligations with the resident, advising him of his potential options when it came to the repair or replacement of the fence, and offered mediation to assist the resident in approaching his neighbour. It has also acted appropriately following reports of dog nuisance and contacted the neighbour to reiterate their responsibilities.
The landlord has apologised and explained that the delayed stage two complaint response was due to a staff member being absent. However, the landlord has not correctly followed its complaint handling policy. It did not make the resident aware of any delay or an expected response timeframe at an earlier stage which has caused inconvenience and led to the resident needing to follow up on this matter on multiple occasions.

Orders

The Ombudsman orders that the following actions are taken within four weeks:
1. The landlord is to pay the resident £100 in recognition of the inconvenience caused as a result of its complaint handling.

Recommendations

It is recommended that the landlord also carries out staff training for complaint handlers to ensure that timescales are met, and the correct process is followed if a delay is likely.