Cobalt Housing Limited (202215804)

REPORT

COMPLAINT 202215804

Cobalt Housing Limited

8 May 2024

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:
1. The landlord’s decision to replace a brick wall on the property boundary with wooden fence panels instead of a new brick wall.
2. The landlord’s response to allegations of racial discrimination in its decision to replace a brick wall with a wooden fence.

Background and summary of events

The legal and policy context

The resident is an assured tenant of the landlord. His property is a 3-bedroom end–linked house.
The tenancy agreement confirms that the landlord is responsible for keeping in good repair boundary walls, fences and hedging that it has provided. The tenancy agreement also confirms that the resident “must keep your garden neat and tidy e.g. trim hedges, cut lawns…”
The landlord’s Complaints Procedure states “Formal complaints will be managed using a 2-stage approach, 10 working day for stage 1 and 20 working days for a stage 2 review.” Regarding the escalation of complaints, the procedure states “If a complainant remains dissatisfied with the outcome [of Stage 1], they will be asked to discuss the matter with the Case Handler or provide further evidence of their continued dissatisfaction within 10 working days of the outcome letter in order to progress a review stage 2 where possible or appropriate to do so.”
The landlord’s Disrepair Process states that its solicitor should instruct an independent surveyor from the landlord, and arrange a date for a joint survey. After the solicitor receives the Joint Expert Report, the landlord’s Disrepair Surveyor shall produce a Schedule of Works and arrange for its contractor to provide a programme of works. After works have been completed the Landlord’s Disrepair Surveyor should complete a Post-Inspection form which should be signed by the resident.
The Equality Act 2010 provides a discrimination law to protect individuals from unfair treatment and promotes a fair and more equal society. The Act requires any person or organisation which carries out public functions to have ‘due regard’ to how they can eliminate discrimination, advance equality of opportunity and foster good relations in doing so. Section 13 of Equalities Act 2010 prohibits direct discrimination.
The landlord’s Equality and Diversity Policy states that the landlord, in accordance with the Equality Act 2010, recognises its requirements to eliminate the following types of unlawful discrimination:
1. Direct Discrimination
2. Direct Discrimination based on Perception and Association
The policy further states that the landlord will “Investigate promptly and thoroughly any complaints of harassment or discrimination” and “Any customer who feels they have been unfairly treated in any way has a right to use the Customer Feedback Policy.”

Summary of Events

Following a disrepair claim and the surveyors’ joint expert report, a Scott Schedule was agreed on 20 April 2021. Within the Schedule, in respect of the “Rear boundary wall defective and dangerous”, the resident’s surveyor noted that “The side and rear boundary walls have been affected by tree roots and are rotating from the base”. The repairs needed were “Take down boundary walls and remove stumps. Re-build walls or install timber panel fencing.” The landlord’s surveyor agreed with the comments and stated the repairs needed were “Demolish boundary wall, grind out stump and root ball, install concrete intermediate post / gravel boards to form fence / secure rear garden.”
The resident has provided the Service with a schedule of agreed works which noted that works required were to “grind out stump and root ball” and “to provide permanent raking props to support boundary wall (as per other walls on the same estate) (SOR 101103)”. He has advised this Service works were due to commence by 23 March 2023.
On 6 April 2022 the landlord inspected and concluded that all disrepair works were completed. The landlord’s post inspection form states “The landlord raised an order to demolish a boundary wall and install a timber panel fencing of same height, 2.1m with concrete posts and concrete gravel boards.”
On 12 April 2022 and 6 May 2022 the landlord’s solicitor confirmed to the resident’s solicitor that the resident was unhappy that it had replaced the wall with concrete posts and a wooden panel fence. The landlord confirmed that the fence would not be changed, and the resident was advised to follow the “normal process” and request repairs if required. In an email dated 24 May 2022, the landlord’s solicitor informed the landlord that the resident felt that the works were incomplete and the lack of landlord engagement on the issue was due to racial bias.
On 12 August 2022 the landlord sent a letter to the resident asking him to cut overgrown bushes/a tree in front garden which were obstructing a walkway. During a phone call the same day, the landlord advised that if he did not cut down the bushes/a tree within 28 days it would be recorded as a tenancy breach. It recorded the resident responding “you say this to me when you don’t do jobs properly on my house. I never miss my rent and your workman come out and look at me like a dog. Are you talking to me like this because I am black? I don’t like the way you are talking to me.”
In a further conversation the resident expressed dissatisfaction about items and rubbish left in his property after the disrepair claim works. On 17 August 2022 the landlord logged a formal complaint noting that the resident felt disregarded and treated differently due to his race.
An internal email dated 31 August 2022 referred to the resident’s disrepair claim and noted that the resident felt that his “solicitor was not supportive and also [the landlord] seemed to then treat him differently and not listen to him (again)”. The email noted that the resident did not want the wall removing as over the years he had been in the property it gave him more reassurance and safety. In particular, as he was the only black tenant when he first moved in. The resident assumed the landlord would rebuild a new wall, but it put up a fence which he appealed without success.
On 12 September 2022 the landlord sent the stage 1 response. It stated:
1. The tree in the front garden was obstructing a public footpath. The Neighbourhood Officer followed the correct process having seen the tree when the resident cut it down and the location. The surveyor also followed the correct disrepair process which was a set process. Therefore, the landlord did not find that it had discriminated against the resident on the ground of race.
2. The Scott Schedule document dated 20 April 2021 stated:
  1. Your nominated surveyor: rebuild walls or install timber panel fencing.
  2. Landlord nominated surveyor agreed: Demolish boundary wall, grind out stump and root ball, install concrete intermediate post / gravel boards to form fence / secure rear garden.
3. Many walls on that estate were subject to settlement and movement and the resident’s wall was not safe. Therefore, to reinstall a wall when there was the risk of further ground settlement due to tree roots rotting underground was the incorrect option. The fence was of good quality and secure.
4. It would remove the rubble at the base of the new fence.
On 21 September 2022 the landlord logged a stage 2 complaint after discussing with the resident why he remained dissatisfied. It noted the resident was unhappy that the wall was replaced with a fence. It agreed to arrange a further visit which it carried out on 13 October 2022. At the visit the resident was adamant that fence was not suitable.
On 17 October 2022 the landlord sent the stage 2 response.
1. It agreed to remove an unused fence panel and rubbish and, as a gesture of goodwill, it would also remove tree cuttings along with bags of grass cutting.
2. As the wall was classed as defective during the disrepair case, it needed to be removed. The Scott Schedule stated that a wall or a fence could be installed. It believed a fence would be more stable. Walls in the area were held up with metal bars. It believed the movement would not impact on a fence as much as a brick wall.
On 19 October 2022 the resident advised the Service that he felt discriminated as the landlord made the decision to replace his wall with a fence without consulting him. He stated that he accepted the house with walls as the boundaries and that this made it safer for him and his family. He further said that, aesthetically, a wall would remain in keeping with other properties.
On 10 May 2023, the landlord inspected the fence again with the resident. It declined a suggestion to replace the timber panels with concrete panels that could not be lifted out. The landlord offered to install metal securing brackets to the wooden panels to prevent them being lifted out, but the resident declined these works.

Assessment and findings

Scope of the investigation

The landlord’s internal complaint procedure investigated and responded to several issues. However, the resident has subsequently confirmed to this Service that he only considers the issues defined above to be outstanding and that the other issues of the complaint have been resolved. Accordingly, this investigation has focussed on and assessed the circumstances of the issues that remains outstanding.
Although the resident has stated that his complaints about the cutting down of bushes / a tree and of items left in his garden have been resolved, the Service has considered these complaints insofar as it adds context to his complaint of racial discrimination.

The decision to remove of a brick wall on the property boundary line and replace it with wooden fence panels instead of brick wall

The need to replace the resident’s boundary wall was identified in the Scott Schedule of 2021. While the resident’s solicitor proposed either to rebuild a wall or install a wooden fence as the boundary, the landlord decided it should install a fence with posts and gravel boards. This decision was appropriate insofar as it was in line with the agreement in the Scott Schedule.
After the fence was erected, the resident complained first through his solicitor, then directly to the landlord that it had not built a new wall. The resident’s solicitor would be expected to update the landlord of proposed and agreed works to settle his claim. However, the resident had a reasonable expectation that the landlord would carry out “like for like” works, and therefore install a wall, unless advised otherwise. It was also the landlord that chose the option of a wooden fence and required the resident to sign a post-inspection form in agreement. Therefore, the landlord had a responsibility to advise the resident prior to the works that it would be changing the type of boundary he had, and explain the reasons why. This would be regardless of whether the resident’s solicitor had contacted him. However, there is no evidence that the landlord took this action. Therefore, the landlord did not manage the resident’s expectations about the works to his boundary. In fact, according to documentation he has provided to the Service, at one point the landlord informed him specifically that it would retain the boundary wall, with support.
In responding to the resident’s complaint, the landlord explained its decision to install a fence. It referred to ground settlement due to rotting tree roots, and its view that a fence would be more stable. This response was appropriate as providing explanations contributes towards the resolution of complaint. Nonetheless, it was unreasonable that the landlord did not provide this advice and discuss the matter with the resident at the time of the works. This is because ultimately it was making a material change to the layout of the resident’s property.

Allegations of racial discrimination in its decision to replace a brick wall with a wooden fence

The Service will not decide whether the landlord was in breach of its legal duties, which is a decision for the courts alone. But we can consider whether the landlord properly took account of the resident’s protected characteristics in the way it treated him. We may find service failure or maladministration if a landlord cannot demonstrate it properly considered the resident’s unique circumstances or had due regard to its duties under the Equality Act.
The landlord failed to investigate the resident’s initial concern about racial bias that he raised in May 2022. When raising his complaint a second time, the resident advised that having a wall as a boundary gave him more reassurance and safety as he was black. He also stated that he perceived that he was being treated differently to other residents and that the landlord did not listen to him. The landlord did not acknowledge the resident’s distress and inconvenience due to his fence being replaced by a wall, which in itself demonstrated a lack of understanding and empathy.
Over and above general distress and inconvenience, the landlord did not consider the resident’s specific concerns about racial discrimination. The resident had stated the wall offered him a greater sense of security as a black tenant. However, the landlord did not then enquire whether the resident had experienced any problems at his property due to his race which required a more robust boundary. This would have been best practice as a landlord should carefully consider a resident’s reported circumstances or vulnerabilities when responding to a complaint to determine if any further support or assistance should be offered.
The landlord also did not acknowledge or respond to the resident’s concerns that he had been treated differently due to his race in a meaningful way; it simply made a vapid summary statement that it had followed the disrepair process. The physical fact that his property had a fence for the boundary while neighbouring properties only had walls contributed to the resident’s perception that he had been treated differently. The landlord was required by its policy to investigate promptly and thoroughly any complaints of harassment or discrimination. That it did not do so in respect of the resident’s complaint about the fence further exacerbated the resident’s sense of unfairness.
The resident had raised another complaint at the same time – about the landlord asking him to cut down bushes/a tree in his garden – in which he alleged racial discrimination. Given the context of another complaint about racial discrimination, it was all the more unreasonable and inappropriate that the landlord did not respond to the resident’s complaint about racial discrimination in its decision to replace a brick wall with a wooden fence.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its decision to replace a brick wall on the property boundary with wooden fence panels instead of a new brick wall.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to allegations of racial discrimination in its decision to replace a brick wall with a wooden fence.

Reasons

The landlord did not advise the resident prior to the works that it would be changing the type of boundary he had, and the reasons why it had taken this option. Therefore it did not manage the resident’s expectations about the works to his boundary.
The landlord failed to investigate the resident’s initial concern about racial bias that he raised in May 2022. After the resident advised the landlord that the boundary wall made him feel more secure, the landlord did not then enquire whether he had experienced any problems at his property due to his race which required a more robust boundary. The landlord also did not acknowledge or respond to the resident’s concerns that he had been treated differently due to his race in respect of its decision to replace the wall with a fence.

Orders and recommendations

Within the next 4 weeks, the landlord is ordered to:
1. apologise to the resident, in a face-to-face meeting. The apology should come from a member of the senior leadership team. The landlord should provide a record of this meeting to this Service.
2. pay the resident compensation of £550 comprising:
  1. £150 for the distress and inconvenience caused by not advising the resident prior to the work that it would be replacing his boundary wall with a fence.
  2. £400 for the distress and inconvenience caused by its failure to investigate and respond to the resident’s allegations of racial discrimination in its decision to replace a brick wall with a wooden fence.
3. ask the resident to confirm and provide any details of any problems at his property. It should then confirm what further action it will take as a result including what further support or assistance it will provide.
4. send a written response which addresses the resident’s concerns that he had been treated differently due to his race in respect of its decision to replace the wall with a fence.
5. arrange a programme to ensure that all its housing staff have received training relating to equality and diversity within the next 6 months.