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East Midlands Housing Group Limited (202207355)

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REPORT

COMPLAINT 202207355

East Midlands Housing Group Limited

24 November 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. The complaint is about the landlord’s response to the resident’s privacy concerns and his request that it increase the height of the boundary fence.

Background

  1. The resident is an assured tenant of the landlord. His tenancy began in July 2019. He lives in the property with his partner and children. The landlord is a housing association. The landlord has various vulnerabilities listed for the household, including mobility issues, hearing issues and neurodiversities.
  2. The resident’s property is a house. There is an access road (drive) to the left side of the property which leads to a sports club at the rear of the property.

Scope of investigation

  1. In his communication with this Service, the resident raised specific concerns related to his request that the landlord installed window restrictors, and the boundary at the rear of the property not aligning with the deeds for the land. These issues were not raised in the resident’s formal complaint to the landlord in February 2022. He has also raised concerns about the quality of work undertaken to install trellis on his fencing following the complaint and further concerns about his enjoyment of the property which were not raised in his initial formal complaint.
  2. As these are separate issues to the complaint raised with the Service, these are not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to these issues. If the resident feels that these issues are outstanding, he may wish to contact the landlord and, if appropriate, raise a separate complaint to get this matter resolved.
  3. In his communication, the resident has also raised concerns about the actions of the local authority. The Ombudsman can only consider complaints about local authorities when they relate to a local authority’s provision of social housing. As such, any concerns about the local authority’s actions in raising the ground level adjacent to the resident’s property fall outside of the Housing Ombudsman Service’s jurisdiction to consider. Complaints about the local authority’s actions, outside of its role as a social landlord, are best suited to be considered by the Local Government and Social Care Ombudsman (LGSCO). The resident may wish to refer his separate complaint made to the local authority to the LGSCO if he wishes to progress this matter further. The Ombudsman has made reference to the resident’s complaint with the local authority for context in this report.

Summary of events

  1. On 20 August 2021, the resident contacted the landlord. He raised concern that the local authority had raised the ground level of the road next to his house and that his garden was no longer private as his existing 6ft fence only gave 4ft of privacy. He also raised concerns that the local authority had said he had removed a fence at the back of the property when he had not and that the deeds for the property showed that this was the landlord’s land. He added that there were large gates installed next to his house which banged.
  2. Following this, the resident raised his concerns directly with the local authority. On 15 September 2021, the local authority advised that as the resident was a tenant of the landlord, he would need to raise any concerns about the local sports club with his landlord, who could in turn raise these concerns to it directly.
  3. The landlord’s internal communication from 15 September 2021 noted that the resident was concerned about his family’s privacy and the land that had been raised at the side of his property. An inspection was arranged for the week commencing 18 October 2021. 
  4. On 11 October 2021, the landlord wrote to the resident to provide written consent for him to erect a 9ft fence at his own expense. It added a number of conditions and confirmed that once installed, the fence would be his responsibility to maintain.
  5. Following an inspection on 18 October 2021, the landlord wrote to the resident on 9 November 2021. It noted that the existing fence was 6ft (1800mm) in height. It confirmed that it would not increase the height of the fence or get involved in disputes over boundaries which, in their current form, had existed for a number of years. It also addressed several other concerns the resident had raised.
  6. The resident raised a complaint with the local authority at this time and requested that it increase the height of his fence given that the height of the drive next to his house had been increased and his concerns about privacy and security. He also raised other concerns about the gates on the drive, vehicles using the drive in the early hours of the morning and trees.
  7. The local authority responded to the resident’s complaint on 10 and 26 November 2021. It said that the drive next to the property was tarmacked because of concerns the resident had raised about the level of dust from the drive. During the work, the resident had complimented how the work had been carried out. He had then raised concerns over 12 months later. It inspected the works and said that building the road surface on top of the existing aggregate was unlikely to have raised the finished surface by more than 120mm. The resident’s property was built on the natural fall of the land and the drive was always higher than the property’s ground level. It did not feel that the works had impacted enough to warrant it increasing the height of the fence.
  8. The resident raised a complaint with the landlord via social media on 16 February 2022. He said that the ground level had been raised to a point where he had no privacy in his bathroom, living room and garden. He said that this was a safeguarding issue when his children were playing in the garden as the path had been raised by 18 inches and the fence no longer provided privacy. Since the road was raised, his shed had been broken into and people had peered over his fence to see what could be stolen.
  9. The landlord issued its stage 1 complaint response on 8 April 2022. It had visited the property and spoken to the resident on 1 April 2022. It had previously advised that it would not change the fence in relation to the resident’s privacy concerns. This decision still applied; the fence would not be dismantled and renewed for a higher fence as the current fence was in a good condition and free from defects. In view of the circumstances, it had suggested a compromise and had offered to attach trellis panels to the existing fence from the side gate of the property down the full length of the fence to help retain privacy to the garden and when using the ground floor facilities of the property. It confirmed that it could arrange these works with its internal fencing team if the resident was agreeable.
  10. On 18 April 2022, the resident contacted the landlord and said that he did not feel that the compromise offered by it would resolve the issues and felt these would only be a short-term fix. He sought a further response from the landlord in relation to privacy and safeguarding his children.
  11. The landlord issued its stage 2 complaint response to the resident on 11 July 2022, following a complaint panel hearing, and explained:
    1. Following a panel review, it found that the current fence was in a good condition and free from defects. It would not dismantle it and replace it with a higher specification fence.
    2. The panel felt that there were numerous other properties owned by the landlord that did not have a 6ft fence providing complete privacy to homes and gardens. It felt that removing the current fence and replacing it with a taller fence would be an unfair decision.
    3. It did not uphold the resident’s complaint but was happy to consider permission for him to undertake the works himself should he wish to.
    4. It confirmed that the offer to install trellis panels down the side of the fence stood should the resident wish to accept this.
    5. The panel had considered the resident’s concerns regarding the safety of his children when playing in the garden and had asked its antisocial behaviour (ASB) team to contact him to provide advice and guidance on how to report incidents of noise and ASB should they occur.
  12. On the same day, the resident raised concerns that the landlord had not commented on his concerns that people could see into his wetroom and toilet or that he could not enjoy the property as he needed to keep his curtains and windows closed due to his safety concerns.
  13. The landlord confirmed on 19 July 2022 that his concerns had been discussed and that these were all relevant to the initial complaint. it confirmed that its stage 2 complaint response was correct and confirmed that the resident could contact the Housing Ombudsman Service should he remain dissatisfied.
  14. The resident referred his complaint to this Service in July 2022 as he remained dissatisfied with the landlord’s offer of trellis and did not feel this was a permanent solution. He said he could not open his curtains or windows due to safety concerns, passers by could see into his bathroom, and he did not feel the landlord had taken the household vulnerabilities, or that he could not enjoy the property, into consideration. He wanted the landlord to install a 6ft boundary fence and install window brackets.
  15. The landlord has confirmed that 0.6m of trellis was installed to the resident’s fence on 13 October 2022 and this ran from the side gate of the property down the full length of the property.
  16. In his communication with the Ombudsman in November 2023, the resident advised that the trellis installed was of a poor quality and was breaking. He added that this did not cover the entire length or depth of the fence and, should his children fall against the fence, they could be injured due to the positioning of the trellis. He maintained that he wished for the fence to be increased in height to provide a 6ft level of privacy from the side road. He added the landlord had installed a mottled glass window pane in his bedroom which limited his enjoyment of the property and that he needed to consciously close his curtains to prevent passers-by from looking into his property and seeing his children, who had vulnerabilities. He also expressed concern that the landlord had not progressed his concerns with the local authority.

Assessment and findings

  1. The resident’s tenancy agreement states that the landlord is responsible for keeping the structure and exterior of the property in repair. It specifies that the tenant must not take down, replace, build or renew any fence or wall unless they have obtained the landlord’s prior written consent and all other necessary approvals such as planning permission.
  2. The tenancy agreement does not confirm which party (the resident or the landlord) is responsible for the repair of fencing. However, the landlord’s tenant handbook states that repairs to fencing fall under its “less urgent” repair responsibilities.
  3. The landlord’s repairs policy states that tenants may apply to carry out improvements in their homes at their own expense. This would be subject to the landlord’s approval of the specification and standard of work. The landlord would not unreasonably withhold its consent.
  4. In this case, the resident raised concern that the local authority had increased the ground level when tarmacking the road adjacent to his house, meaning that his 6ft fence no longer provided the same amount of privacy as passers-by could now see over it. It is noted that the resident initially raised his concerns with the local authority, who concluded that the ground level of the property was always lower than the road level and that tarmacking the road had not had a significant impact on the height of the road. The local authority refused the resident’s request that it increase the height of his fence due to his privacy concerns in November 2021.
  5. While the Ombudsman appreciates the resident’s concerns regarding changes to the level of privacy in his garden and home, the landlord was not responsible for works undertaken by the local authority and was not obliged to increase the height of the resident’s fence at his request. The evidence shows that the landlord acted reasonably by managing the resident’s expectations from the outset. It explained, following an inspection of the fence on 18 October 2021, that it would not increase the height of the fence.
  6. The landlord is not required to provide a particular height of perimeter or boundary fence to offer complete privacy to properties and would only be required to provide a like-for-like replacement where the fence was beyond repair. In this case, if the existing fence required replacement, the landlord would only be expected to provide an equivalent 6ft fence from the ground level of the property and it would not be obliged to provide a taller fence as this would be considered an improvement.
  7. The landlord acted fairly by providing its written consent, in line with the tenancy agreement, for the resident to install a higher fence at his own expense on 11 October 2021, prior to his formal complaint. While it is noted that the resident does not feel he should be liable for paying for a taller fence, the landlord was not responsible for the actions of the local authority or the subsequent impact the resident has said that the increased road level had on his privacy. The landlord was ultimately not required to carry out improvements and it was reasonable for it to provide its consent so that the resident could increase the height of the fence himself should he wish to do so.
  8. Given the resident’s concerns about safeguarding his children, the landlord would have been expected to consider whether there were any additional measures it could take. The landlord demonstrated that it had taken the circumstances of the case, and the resident’s concerns about the privacy and security of his family, seriously by offering to install trellis panels to the top of the fence to help retain privacy to the garden and when using the ground floor facilities of the property. The landlord was not strictly obliged to offer this to the resident as the fencing in place was in a good condition and it did not have an obligation to provide complete privacy to the resident. However, it was reasonable for it to do so in an attempt to alleviate the resident’s concerns about his children’s safety.
  9. In his communication with the Ombudsman, the resident raised concern that the landlord had not progressed his security concerns directly with the local authority in relation to the raised ground level. The Ombudsman has not seen evidence that the resident asked the landlord to address this directly with the local authority on his behalf at the time of his complaint. Given his concerns, a recommendation has been made below for the landlord to confirm its position. The resident also raised concerns about the quality and visual impact of the trellis that was installed in October 2022. A recommendation has been made below for the landlord to communicate with the resident regarding his concerns.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s privacy concerns and his request that it increase the height of the boundary fence.

Reasons

  1. The landlord was not obliged to provide the resident with a taller fence at his request as a result of the local authority tarmacking the road alongside his property. It acted fairly by offering to place trellis on the top part of the fence, in view of his concerns about the security and privacy of his family, as an alternative, and providing its consent for the resident to install a taller fence at his own expense.

Recommendations

  1. It is recommended that the landlord contacts the resident in relation to his concerns about the quality and condition of the trellis installed and carries out repairs if required. It should also confirm its position to the resident in relation to his request that it pursue his concerns with the local authority on his behalf.