Magenta Living (202229988)

REPORT

COMPLAINT 202229988

Magenta Living

17 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

1. The complaint is about the landlord’s handling of the resident’s reports of a damaged fence.

Background

2. The resident holds an assured tenancy of the property, a 2-bedroom end of terrace house, since 19 August 2013. The landlord is the property’s freeholder. The landlord has said it does not have a record of the resident having any vulnerabilities.
3. On 22 February 2022 the resident contacted the landlord to report fencing in her garden had become damaged during a storm. The landlord’s contractor attended the same day, cleared up the damaged fencing and made safe the area. On 21 March 2022 the landlord returned to the resident’s property and removed three concrete fence posts from the same area of fencing.
4. On 26 April 2022 the resident contacted the landlord by phone to make a formal complaint. She said that when the concrete posts were removed on 21 March 2022, the landlord’s contractor had informed her they would be replaced. However, she had since been informed that it was not the landlord’s responsibility to replace the posts and as such the works would not be carried out. The landlord responded at stage one of its complaints process on 27 April 2022. It concluded that as the fence was a dividing fence, replacing the fence posts was the resident’s responsibility.
5. The resident requested the landlord escalate her complaint, to stage two of its complaints procedure, on 15 March 2023. She said that she was dissatisfied the landlord had removed the fence and posts which had left her with no privacy. The resident said that if the dividing fence and posts are not the landlord’s responsibility it had no right to remove them.
6. The landlord provided its final response to the resident on 23 March 2023. It declined to consider the complaint further as it said the resident’s concerns had already been addressed in its response dated 27 April 2022. However, it did confirm that a neighbouring resident had requested the fence posts be removed as they considered these a hazard. The landlord said that the neighbour was within their rights to request the posts be removed and they acted in-line with its procedures in responding to the request.
7. In bringing her complaint to this Service the resident has said:
   1. She was told by the landlord’s contractor the fence posts would be replaced.
   2. The landlord should not have removed the posts if it was not responsible for these.

Assessment and findings

Policies and Procedures

8. The resident’s tenancy agreement states “Gardens, Balconies and Fences … 3.40 As the tenant you must do the following … f. Maintain all dividing fences and hedges between your home and any other home in a neat and tidy condition”.
9. The resident’s tenancy agreement also states “You must allow anybody we send to your home in (on production of suitable identification) to do any of the following: … d. carry out work that we consider necessary to make sure your home and the surrounding properties do not put you or anyone else at risk”.
10. The landlord’s fencing responsive repairs policy states “2. The tenant is responsible for dividing fences to the property and a neighbour.”

Scope

11. As part of the resident’s complaint to this Service she has mentioned that the fence was in a poor condition when she moved to the property. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical, it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
12. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to 22 February 2022. The historical issues provide contextual background to the current complaint, but the assessment is focused on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in April 2022.

Fencing

13. On 22 February 2022 the resident contacted the landlord to report that a fence and posts had become split and dangerous. The landlord raised an emergency repair for its contractor to attend and its notes indicate it told the resident that the fence would not be replaced as it was a dividing fence. The contractor attended the same day and reported back to the landlord that the concrete fence posts were safe and firmly in the ground with little movement. The contractor removed the wooden fence panels but left the concrete fence posts in place. This was a reasonable response to the resident’s reports, undertaken in a timely manner and in line with the landlord’s policies.
14. On 21 March 2022, further works were raised by the landlord for its contractor to assess and make safe the same area of fencing. The landlord has said that this was in response to reports from a different resident with shared responsibility for the fence. Its contractor attended the same day and removed the remaining concrete fence posts. This again was a reasonable response to reports from a resident, undertaken in a timely manner and in-line with the landlord’s policies.
15. The resident contacted the landlord to make a formal complaint about its handling of the repairs on 26 April 2022. The resident said that on the day the fence posts were removed she was told by the landlord’s contractor that the fence and posts would be replaced. However, she had since been told that as it was a dividing fence the landlord will not replace this. The resident also said that as the fence was in situ when she moved in and the landlord took this away it should replace it. The resident outlined that she had no privacy with her neighbour and her neighbours pets were entering her garden.
16. The landlord responded to the resident, at stage one of its complaints procedure, on 27 April 2022. It said that the section of fence in need of repair is a dividing fence and is therefore the resident’s responsibility to maintain. This is in line with the resident’s tenancy agreement which confirms it is the resident’s responsibility to “maintain all dividing fences and hedges between your home and any other home”. Given this, the landlord’s response was reasonable.
17. The landlord’s response outlined that an emergency make safe repair entails but is not limited to: taking any dangerous fencing down to prevent it from falling over and that any broken fencing will be taken away and disposed of.
18. The resident has said that as the landlord was not responsible for the fence and posts it should not have removed these. However, it is the Ombudsman’s opinion, that the landlord has acted reasonably and in line with its policies. While the landlord is not responsible for repairs to the fencing it does have a responsibility to make sure the resident’s home and the surrounding properties do not put the resident or anyone else at risk. It was in this capacity that the landlord instructed its contractor to assess and make safe the fence. Further the landlord is allowed to rely on the expertise of its contractor to make an assessment of what work is necessary to ensure the safety of the fence.
19. As part of her complaint the resident has also said that the landlord’s contractor told her the landlord would replace the fence and posts. The landlord has addressed this as part of its stage one response. The landlord has apologised if its contractor mistakenly told the resident that the fence and posts would be replaced. It further confirmed that it would be feeding back to remind all contractors of its policy regarding dividing fences. Whilst disappointing for the resident, this shows a willingness to learn from complaints on behalf of the landlord and was a reasonable response to the resident’s concerns.
20. Overall, the Ombudsman is satisfied the landlord acted in line with its policies and procedures when handling the resident’s reports about her fence. There is nothing within the resident’s tenancy agreement or the landlord’s policies and procedures which places an onus on it to now replace the section of fence it removed. Furthermore, it was reasonable for the landlord to rely on the contractor’s assessment that the fence and posts had to be removed for safety reasons.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of a damaged fence.