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Eastbourne Borough Council (202322173)

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REPORT

COMPLAINT 202322173

Eastbourne Borough Council

14 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 requests to install a fence in the resident’s garden.

Background

  1. The resident is a secure tenant of the landlord. The property is a house with a garden. The resident’s mother raised the complaint on her behalf and is acting as her representative. Both parties will be referred to as “the resident” in this report. The resident has autism spectrum disorder (ASD).
  2. On 23 June 2023, the resident reported that a neighbour’s garden was overgrown, and foxes were nesting in it. She said that foxes were entering her garden due to a lack of fencing, and that this was having an effect on the resident’s mental health and wellbeing. The landlord stated that it could not fund the fence as it did not have the budget to carry out non-essential repairs but provided approval for the resident to erect a fence herself.
  3. The resident stated that there was no secure fencing on one side of the garden and that the landlord was not protecting the resident, who is vulnerable. She raised a complaint in September 2023 about the landlord’s handling of the request for fencing and said that the landlord should have installed a fence for security and privacy.
  4. The landlord issued its stage 1 complaint response on 9 October 2023, in which it stated that:
    1.  It was only carrying out essential repair works due to budget constraints, and that fencing issues were not considered to be essential.
    2. There may be the possibility for the fence to be funded by its aids and adaptations budget, but sufficient medical evidence would need to be obtained, such as an occupational therapy report.
    3. There was currently no fencing on the boundary line. There was a wall on the neighbour’s boundary and shrubbery along the resident’s side. The landlord said that it was confident that this functioned as a safe and secure alternative to fencing.
    4. ASD training had previously been offered to staff but this was not mandatory training.
    5. While neighbourhood housing staff had a good basic knowledge of the conditions tenants live with, their jobs focussed on tenancy related issues and it is therefore necessary for the landlord to rely on the input of medical and adult social care teams.
    6. The complaint was not upheld.
  5. The resident escalated the complaint on 9 October 2023 and stated that an occupational health report does not assess mental health. She stated that the landlord did not understand mental or physical disabilities and provided a link to guidance on meeting the sensory needs of autistic people in housing.
  6. The landlord issued its stage 2 complaint response on 30 November 2023. It reiterated that it would not cover the cost of fencing and that the current boundary was considered to be adequate. The landlord again stated that an alteration to a property as a result of a medical need would be considered as an adaptation and would need to be recommended by an occupational therapist.
  7. The resident referred the complaint to the Ombudsman in December 2023. She stated that the landlord was not assisting her in being able to live independently and had failed to take her medical needs into consideration. To resolve the complaint, the resident wanted the landlord to install a fence to keep foxes out of the garden and for the landlord to demonstrate responsibility for the safety and wellbeing of a vulnerable tenant. 

Assessment and findings

  1. The tenancy agreement states that it is the landlord’s responsibility to keep in repair and proper working order the structure and exterior of the premises including drains, gutters and external pipes and window glass. It does not specifically refer to responsibilities for boundary fencing. However, it states that the tenant must not erect a fence without the landlord’s consent. The tenants handbook states that the landlord is responsible for fences and garden walls if the boundary is owned by the landlord and originally erected by it.
  2. The repairs information on the landlord’s website states that it is limited to completing only essential repairs in order to manage its expenditure. The landlord’s adaptations policy states that it will use guidance in place for disabled facilities grants when deciding on eligible works. It states that the types of works considered include access into and out of the property and providing or improving access to rooms within the property. The policy states that the landlord will fund works where occupational therapist recommendations have been made to address a specific medical need.
  3. Generally, landlords are not obliged to offer upgrades or improvements, except where an upgrade or improvement is the only reasonable way of providing an effective repair. This is standard across the housing sector. 
  4. The resident raised concerns in June 2023 about foxes entering the garden and suggested that she would pay for mesh fencing to be put in place by the landlord’s contractor, if the landlord agreed to reimburse her in the next financial year.
  5. The landlord said that it agreed that the resident could erect a fence, but that it would not agree to funding the fence due to its budget situation, which would likely be the same next year. The landlord carried out an inspection on 1 August 2023 and identified that a low wall had been erected by the resident’s neighbour. As per the tenant’s handbook, the landlord was not responsible for the boundary wall as it was not owned or originally erected by it. The landlord said that its contractor could install fencing that was left over from a previous job, but that the resident would need to fund this herself.
  6. The Ombudsman acknowledges the resident’s vulnerabilities and the impact described of foxes entering the garden. While the landlord does have an obligation to make reasonable adjustments for a disabled resident, what is reasonable will depend upon the particular circumstances relating to each individual case. It is not the role of the Ombudsman to decide whether the landlord should have made reasonable adjustments for the resident, or if required, to determine what those should have been. It is to consider whether the landlord took reasonable steps to consider the request made by the resident; in this case, to have a fence erected in the garden to help prevent foxes entering so that the resident, who has ASD, has a safe and secure garden.  
  7. The landlord advised that it could look to fund the fence from its aids and adaptations budget, if the works were recommended by a medical professional or occupational therapist. This suggests that the landlord did give consideration to how it could accommodate the resident’s request for fencing by suggesting options outside of its repairs obligations.
  8. On 9 October 2023, the local authority’s social care service told the resident that it would not progress her assessment, as there was not a functional need for a fence.
  9. Overall, the landlord took appropriate steps to respond to the resident’s request for fencing by inspecting the area, providing approval for the fence to be erected by the resident and considering alternative funding due to the resident’s needs. Although it would have been desirable to the resident for the landlord to install a fence, there is no evidence that it had an obligation to offer this. Therefore, there was no maladministration by the landlord in its handling of the resident’s request.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration regarding the landlord’s response to requests to install a fence in the resident’s garden