Clarion Housing Association Limited (202124288)

REPORT

COMPLAINT 202124288

Clarion Housing Association Limited

4 April 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. This complaint is about the landlord’s:
   1. Decision not to install a particular style of fence.
   2. Response to the resident’s concerns about the boundary line.
   3. Response to the resident’s concerns that he had been discriminated against.

Jurisdiction

2. 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.
3. After carefully considering all of the evidence, in accordance with paragraph 42(g) of the Scheme, complaint 1c is outside of the Ombudsman’s jurisdiction.
4. Within his correspondence to both the landlord and this Service, the resident has expressed concern that the landlord has discriminated against him. This is on the basis that the resident’s neighbours have a particular style of fencing installed, and his is different. The resident says that the style of fencing installed at the property is “cheap”, and that the landlord’s decision not to install the same fencing as at the neighbouring properties is discrimination.
5. While the resident’s concerns and strength of feeling about this matter are acknowledged, the Ombudsman cannot make a finding of discrimination. Individuals are legally protected from discrimination under the Equality Act 2010. Establishing whether a person has been discriminated against is therefore a matter of considering the Equality Act 2010, and whether the defending party has acted in a manner that is in contravention of the law. A court of law is best placed to make such a decision. Paragraph 42(g) of the Scheme states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
6. As such, the Ombudsman has not investigated the resident’s concerns that he has been discriminated against. The resident may wish to seek legal advice if it is a matter which he wishes to pursue further. While we have not investigated the resident’s allegations of discrimination, they have been referred to in the report for the purpose of providing context.

Background

7. The resident is an assured tenant of the landlord.
8. On 9 September, the resident reported that his fence was broken. The landlord raised a job accordingly, and arranged for the repair to take place on 22 September. During the operative’s attendance, the resident advised that he wished for the fence to be renewed with feather edge panels. He added that these had been in situ originally, but were replaced with alternative fencing approximately 10 years prior. The repair was not completed as a result.
9. The landlord subsequently informed the resident on 23 September that it would not be installing feather edge panels; and a job for the repair was raised again. The resident asked if his concerns could be raised as a formal complaint. He said that his neighbour had received a new fence panel two months earlier, and this was in the feather edge style. He added that the fence did not follow the boundary line, and he wanted to make sure that the new fence did so when installed.
10. On 21 October 2021 the landlord issued its stage one response. It said that its response team was unable to see any boundary impingements In relation to the fence repair, the resident had been informed that a “generic standard fence” would be installed at all properties in need of replacement. It acknowledged the resident’s comments that he felt he was being discriminated against, as he did not have the same fence as his neighbours. It would try to ensure that the fence matched his neighbours’; however, this would depend on the materials that were available, and it would replace the fence with the “closest match”. The complaint was not upheld, as it had not identified any service failures. The repair was completed on 21 October 2021 with a “like for like” panel, along the existing line.
11. The resident requested the escalation of his complaint on 2 November. He said the landlord had not addressed the pertinent issues. He said:
    1. He had been told the Area Manager would call him, but this had not happened.
    2. The “default fence” was feather edged, and the concrete posts in situ showed the boundary line.
    3. The replacement panel was “like cardboard”, and was eight inches away from the boundary line.
12. The landlord issued it stage two response on 16 November. It said the correct procedure and process had been followed with the fence panel. The information in the stage one response was therefore correct. The repair was completed on 21 October, “a couple of days” outside of its Service Level Agreement. It understood that the resident wished to have a replacement fence that matched his neighbours. However, it needed to ensure that its repairs were “as close a match as possible” to the existing one. This had been carried out without discrimination, and in line with its repairs procedure. It had also reviewed photographs of the completed work, and was satisfied that it had not altered the boundary line. With regards to communication, the Area Manager had responded to all requests from the Contact Centre regarding the repair. It felt that this had been “adequately communicated” to the resident. It wished to award the resident £25 for the delay in completing the repair.
13. The resident remained dissatisfied with the landlord’s response, and referred the complaint to this Service. He said that fence did not follow the boundary line, and that the “default fence” was feather edge.

Assessment and findings

The landlord’s decision not to install a particular style of fence

14. The resident’s tenancy agreement is silent in relation to fencing obligations. However, information on the landlord’s website states that it is responsible for the maintenance of boundary walls and fencing. The information on the website states “if we repair fences, we may replace wooden fences with wire and post fences”.
15. The resident’s reasons for wishing to have feather edge fencing installed are acknowledged. However, this in itself, does not confer an obligation on the landlord to install feather edge – or any other particular style of – fencing.
16. Within his correspondence to the landlord, the resident advised that the original fence was feather edge panels. However, this was changed approximately ten (now 12) years ago. While this is not disputed, there is no obligation on the landlord, under the tenancy agreement or otherwise, to maintain the fencing with a particular style of panel. The obligation is to ensure that the fence remains in a state of good repair, with the materials the landlord has available. The landlord appropriately advised the resident of this when carrying out the repair, and when responding to his formal complaint.

Concerns about the boundary line

17. At the outset of the repair, the resident informed the landlord that the fence did not follow the “correct boundary line”. He asked the landlord to ensure that the boundary line was followed when the repair was carried out. In response, the landlord advised that it was unable to see that there had been any boundary impingement and that the boundary line had not been altered.
18. The tenancy agreement affords the resident a right to use and enjoy the garden. Matters relating to the boundary line are for the landlord to consider and rectify if it believes it is necessary.
19. The resident’s concerns about the boundary line are acknowledged. The evidence provided to this Service shows that the landlord investigated the matter further, but advised that it did not consider there to have been any changes in relation to the boundary line  The evidence shows that this was explained by the landlord over the telephone; and that a surveyor also attended to explain the matter further in person. This was an appropriate response.
20. Internal communication exchanged between landlord staff shows that the boundary line was considered to be intact. It was acknowledged that there was a “possible margin” of two inches being lost; however, this was owing to the size of the panel that had been fitted. The landlord also acknowledged that while the concrete morticed posts marked the boundary line, they had defective mortice slots. This was why a panel had been used as part of the repair, and fitted to the original posts. However, the original boundary line did remain.
21. As such, the evidence shows that in response to the resident’s concerns, the landlord appropriately considered the matter further and took steps to explain its conclusion to the resident over the telephone and in person. The landlord did not consider that the boundary line had been altered, and this was not an unreasonable conclusion based on the evidence that is available.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its decision not to install a particular style of fencing.
23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s concerns about the boundary line.
24. The resident’s concerns that the landlord has discriminated against him fall outside of the Ombudsman’s jurisdiction in accordance with paragraph 42(g) of the Housing Ombudsman Scheme.