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Clarion Housing Association Limited (202226322)

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REPORT

COMPLAINT 202226322

Clarion Housing Association Limited

28 January 2025


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 response to reports of garden fencing defects.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident holds a shared ownership lease with the landlord, which commenced on 8 January 2021. The property is a 2-bed house with a garden which was built in December 2020.
  2. On 9 February 2021 the resident reported to the landlord that gaps were forming under the fence in her garden which she said were getting bigger. On 15 February 2021 the landlord acknowledged this and around the same time, the resident asked it for permission to extend the garden patio which it declined. Nevertheless, she extended the patio in 2021. On 30 March 2021 the resident again reported a gap in her garden fence. On 12 May 2021 the landlord informed the resident that it raised this defect with the developer who would contact her directly to assess the matter. The developer attended to repair the fence in June 2021.
  3. The end of defects inspection was completed on 13 December 2021. On 2 March 2022 the resident requested an update on this and subsequently reported that her back garden fence was leaning as the fencing posts had failed. She felt this was an installation problem as the developer had repaired a similar issue with her fencing at the side of her garden. The developer declined to repair the fencing, stating that the resident had voided the warranty as she had changed the garden and patio. They also added that this matter had been reported outside of the defect liability period. On 21 September 2022 the resident made a formal complaint to the landlord. She said the developer had not installed the fence correctly and felt they should have built a retaining wall. She said the fence was now falling, and barriers had been installed on the other side which she felt highlighted a safety issue. She added that her patio was also now failing.
  4. On 27 October 2022 the landlord responded to the complaint at stage 1 of its complaints process. In summary, it said:
    1. It apologised for the delay in responding to the complaint.
    2. It was unable to evidence that it had passed her February 2021 report of a gap forming underneath the fence to its relevant team.
    3. It passed the resident’s 30 March 2021 report to the incorrect team. Although it then raised a repair order on 12 May 2021 it was unable to confirm if the 9 June 2021 developer appointment date was correct.
    4. On 15 April 2021 it explained that it was unable to grant permission for the proposed garden patio works due to the pandemic restrictions.
    5. The resident raised a new defect for the fence on 4 April 2022. However, the developer rejected this as the resident had completed extensive work to the rear of the property which voided the warranty.
    6. It was unable to confirm if this information was provided to the resident at the end of the defects inspection or if it had provided the developer’s April 2022 response to her.
    7. The developer’s stance had not changed, and it was unable to take any further action.
    8. It would offer £500 compensation, comprised of £450 for poor communication and £50 for the delayed complaint response.
  5. On 4 November 2022, an independent builder (IB), instructed by the resident inspected the fencing and provided a report. In summary, this report found that the fence posts were not installed to the depth required to support the fence. Further, they noted that the fence to the right-hand side was ‘poorly constructed’ and posts ‘poorly installed’. They provided a quote of £7,025 to remedy this.
  6. The resident escalated her complaint the next day. She said the repair carried out in June 2021 did not fix the lean of the fence and the developer simply added another post to the roadside to fill the gap. She also said she did not know the extent of this issue at that time and added that in June 2022 the landlord identified that the fencing installation was incorrect. She felt a retaining wall was needed and asserted that the developer should have built this from the outset. She felt the developer was not following National Housing Building Council (NHBC) guidelines and that the landlord should hold the developer accountable. The resident also provided the landlord with a copy of the IB’s report and asked it to compensate her for the quote they had provided to put the matter right. In addition, she wanted the landlord, developer and NHBC to inspect the issue together.
  7. The landlord issued its stage 2 final response on 3 January 2023. In summary, it said:
    1. It apologised for the delay in responding at stage 2.
    2. It acknowledged that as the developer refused the case it should have raised the matter with the NHBC.
    3. It was not sufficiently clear that the resident’s own garden works had adversely affected the fence, nor did they counter the installation issues she reported.
    4. It had now claimed with the NHBC who would provide a resolution, and a landlord staff member would contact the resident to discuss the matter further.
    5. It would offer a further £150 compensation, comprised of £100 for misinformation and time taken to resolve and £50 for its delayed stage 2 response.
  8. On 26 January 2023 the landlord informed the resident that the NHBC had rejected her claim as their policy did not cover fences or retaining walls unless they provided support to the home. On 29 January 2023 the resident referred her complaint to the Ombudsman. She said the fence was falling and although the landlord admitted it was a defect it would not repair it. As an outcome she wanted the landlord to hold the developer accountable or compensate her to get the work done.
  9. The landlord issued a further stage 1 response on 17 May 2023 reiterating the NHBC’s position. It added that a retaining wall would have likely been deemed unnecessary at the planning stage and confirmed that the boundary fence was her responsibility to repair. It also offered £100 compensation for the delay in responding and issues with communication. On 5 July 2023 the landlord clarified that this response should have been an addendum to its January 2023 final response and said that its position was unchanged. On 23 November 2023 the resident instructed an independent structural inspection. In summary, they found that the garden did not appear to have been constructed in accordance with planning drawings and that the fence posts had rotated away from the garden because of inadequate foundation provision.

Assessment and findings

Scope of investigation

  1. The Service recognises that the resident made further complaints about this matter after the landlord’s addendum to its final response in July 2023. However, in line with paragraph 42.a. of the Housing Ombudsman Scheme, we may not consider complaints about matters that have not exhausted the landlord’s complaints process. If the landlord issued the resident a final response after July 2023, she could bring this to our Service for investigation. This investigation will therefore focus on the landlord’s handling of the resident’s reports up to its July 2023 addendum response.
  2. Additionally, we do not have jurisdiction to investigate a decision made by a developer or NHBC. Indeed, matters such as whether a developer acted in line with relevant guidelines or planning regulations may be better suited for a court to decide. Instead, this investigation will focus on the landlord’s response to the resident’s concerns and will examine whether the landlord treated the resident fairly in the circumstances. We have also considered the general distress and inconvenience that may have been caused to the resident.

The landlord’s response to reports of garden fencing defects

  1. The landlord does not dispute that there were failings in its handling of this matter. Where the landlord admits failings, the Ombudsman’s role is to consider whether it resolved the resident’s complaint satisfactorily in the circumstances and offered appropriate redress. In considering this, the Service assesses whether the landlord’s actions were in line with the Ombudsman’s Dispute Resolution Principles: Be fair, put things right and learn from outcomes.
  2. In this case, the resident asserted that there was a failure on the landlord’s part by signing off the home without carrying out sufficient checks or considering the lack of a retaining wall. As a shared owner there is an obligation on the buyer to investigate the property they wish to purchase in relation to services & charges, ground rent and the condition of the property, including the garden. This is usually via surveys of varying degrees. Therefore, the Ombudsman cannot comment on the resident’s assertion or what happened during the conveyancing stage of the property purchase.
  3. The landlord’s shared ownership information pack provided to residents’ states that following the completion of your home the developer is responsible for any defects with the building design or workmanship which arise from build completion for the first 12 months from the date of handover. It adds that at the end of the defect liability period (DLP), it will arrange for an end of defects inspection. At the inspection, any previously raised defects will be inspected, and it will also look at any new defects.
  4. Most repairs are usually addressed towards the end of the DLP and signed off as completed by the resident. Where defects are attended to before the end of this period the standard response time for attendance is 28 days. Once the DLP has ended, any repairs required would fall under the terms of the lease agreement and are normally the resident’s responsibility to repair. However, certain latent defects reported after the conclusion of the defects period can be reported to the organisation providing the building warranty, in this case, the NHBC.
  5. In this instance, the DLP ended in December 2021. The resident reported a defect with her fence on 9 February 2021, well within the DLP. Although the landlord acknowledged this report within a reasonable timescale it failed to raise this as a defect with the developer. This would have caused distress and inconvenience to the resident who had to report this matter again at the end of March 2021 when she informed the landlord that the gap was getting bigger.
  6. On this occasion the landlord raised this defect with the developer on 12 May 2021, over a month later. This was an unreasonable delay that would have caused further distress and inconvenience to the resident and likely delayed getting this matter resolved. Nonetheless, the landlord’s records indicated that the developer attended the property on 9 June 2021 and repaired the side fence. Although the landlord’s records are unclear on what work the developer did on this visit there was no evidence of any further reports of issues with the fencing during the DLP.
  7. While the end of the defect inspection report of 13 December 2021 mentioned ‘tree behind the rear fence on easement strip’ it is unclear what this specifically meant and, in any event, it does not appear to relate to gaps forming under the fence which the resident originally reported. It was not until around March/April 2022 that the resident reported that her back garden fence was leaning and that the posts had failed. As such this report fell outside the DLP. However, her position remained that the fault with the fencing was due to poor installation and therefore constituted a defect.
  8. In response, the landlord raised the reported defect with the developer, who declined to repair the fence. They stated that the matter had been raised outside of the DLP and that the previous garden works carried out by the resident in 2021 had voided the warranty. While the landlord acted appropriately, in the first instance by raising this defect with the developer, it failed to inform the resident of their response. This was a failure in communication that led to the resident chasing the landlord for an update on multiple occasions in May 2022. This would have caused distress and inconvenience to the resident who was unclear if, or what steps the landlord was taking to help.
  9. Following the resident’s formal complaint the landlord referred the matter to the developer again in October 2022. As the resident had not presented any new information at this stage it is unclear why it did this. Instead, it should have referred the matter to the NHBC. Indeed, the landlord missed several opportunities to do so after the resident’s continued reports after the DLP. Nonetheless, it is recognised that its failure to raise this matter with NHBC sooner would not have changed the overall outcome for the resident. This is because the landlord did raise a claim with NHBC in January 2023 that was subsequently declined due to their policy not covering fences or retaining walls.
  10. The landlord’s role in this case was to facilitate any repair works by communicating with the developer, and, in turn, relaying the information back to the resident. Although it failed to do this adequately and its communication was poor, it acknowledged this in its formal complaint responses and offered £550 compensation in recognition. Its offer was broadly in line with this Service’s remedies guidance, which suggests awards of up to £600 should be considered where failures have adversely affected the resident. As such it is the Ombudsman’s view that the landlord’s offer of compensation was fair and was satisfactory in putting things right.
  11. While the Ombudsman does not underestimate the distress this situation has caused to the resident the landlord was not responsible for the developer’s decision to refuse to repair the fencing, and it was limited in the action it could take in this situation. Nevertheless, this Service notes that the resident provided the landlord with an independent structural report in November 2023 that, in the main, substantiated the IB’s November 2022 report. Additionally, she stated that recently the landlord agreed with the report’s findings and advised it would ‘sit down’ with relevant parties to discuss a way forward. In light of this, a recommendation is made below.

Complaint handling

  1. At the time of the complaint, the landlord operated an interim complaints policy due to a cyber security incident. This policy states it will log complaints within 10 working days and respond at stage 1 within 20 working days of the complaint being logged. The landlord’s systems were largely restored around December 2022. Its complaints policy states it will aim to respond to stage 2 complaints within 20 working days.  
  2. The landlord’s records showed that it logged the complaint on 28 September 2022 and issued its stage 1 response on 27 October 2022, 21 working days after it logged the complaint. While this was a minor delay the landlord appropriately acknowledged this in its stage 1 response and offered £50 compensation to put things right.
  3. Following the resident’s 5 November 2022 escalation request, it took the landlord 38 working days to issue its stage 2 final response. This was 18 working days outside of its policy timescales. Further, the landlord informed the resident on 18 November 2022 that there would likely be a delay in issuing its stage 2 response and that it would update her by 16 December 2022. Yet it failed to do so. This would have caused distress and inconvenience to the resident who had to chase the landlord to progress the complaint.
  4. On 24 April 2023 the resident raised a new complaint about the same concerns. In the circumstances, it would have been appropriate for the landlord to advise the resident to approach this Service as it had already issued its stage 2 response and confirmed its final position on the complaint. Instead, it opened a new stage 1 complaint. This was inappropriate. However, this Service acknowledges that the landlord was attempting to put things right as it had identified failings in communication post January 2023 and subsequently offered a further £100 compensation in recognition. Moreover, it served to reiterate its position.
  5. In any case, the resident remained unhappy with this response. She said she still had to pay to repair the garden fence, and she did not feel the landlord had clearly explained why it would not accept responsibility. Subsequently, the landlord explained on 5 July 2023 that it had already responded to the complaint at both stages of its complaints process and that its position had not changed. While this would have confused and frustrated the resident, this was a reasonable position for the landlord to take, which it explained with an appropriate level of detail.
  6. While the landlord’s approach was contrary to its usual procedure, it acknowledged this and offered £100 compensation in recognition. This considered the delays at both stages of the complaint process. This offer was in line with its compensation policy which states that awards of up to £200 should be considered where there is a failure to meet service standards which has caused distress and inconvenience. This again is also broadly in line with the Ombudsman’s remedies guidance. This Service has therefore made a finding of reasonable redress in respect of the landlord’s complaint handling.
  7. Furthermore, although the £100 offered in the landlord’s 17 May 2023 response did not entirely relate to its complaint handling, it is the Ombudsman’s position that we would expect this amount to be paid to the resident. It is considered that this would adequately reflect the level of detriment caused to the resident for the failings identified in the landlord’s complaint handling post-3 January 2023. In view of this, a further recommendation is made below.

Determination

  1. In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the landlord’s response to reports of garden fencing defects.
  2. In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the landlord’s complaint handling.

Recommendations

  1. The landlord should:
    1. Set out in writing to the resident its position in response to her independent November 2023 structural report. In doing so it should consider what, if any, assistance it can provide to help resolve the matter.
    2. Pay the resident £550 compensation as offered throughout the landlord’s complaint process if it has not done so already. This Service has found reasonable redress in the landlord’s response to reports of garden fencing defects based on it paying this amount to the resident.
    3. Pay the resident £200 compensation for its complaint handling errors if it has not done so already. This includes the £100 offered throughout the landlord complaints process and the £100 offered in May 2023. This Service has found reasonable redress for the landlord’s complaint handling based on it paying these amounts to the resident.