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Orbit Group Limited (202225124)

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REPORT

COMPLAINT 202225124

Orbit Group Limited

28 November 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 landlord’s response to the resident’s complaint about her request for fencing and repairs.

Background

  1. The resident became a tenant of the landlord by assignment in 2012. The property is a bungalow. The landlord has recorded that the resident is elderly and has mobility difficulties. The resident’s rear garden backs onto a field, with a bridleway, separated by a hedge. The dividing fence between her and her neighbour has a gate.
  2. The landlord’s contact records indicate that the resident initially reported that the communal boundary fence and gate in her back garden was rotten in February 2022. She contacted the landlord twice in May 2022 as she had not heard anything further since contractors visited in March 2022.
  3. She continued to pursue her concerns in September 2022 and maintained her concern that the back gate and fence were dangerous, and she had fallen while holding onto them. The landlord was unable to locate the previous job but explained that it would only complete repairs to a boundary fence as dividing fences between properties were the tenant’s responsibility.
  4. The resident explained that the landlord had authorised work to other fences and gates in the area. She added concern about the hedge to the rear of the garden which had large gaps, making the garden insecure and allowing animals to enter. She wanted the landlord to put a fence up and added that her neighbour had the same issue, and it had cut the hedge back and installed fencing. The landlord’s records indicate that it found the previous job reference, which was logged as a communal repair, and confirmed the work needed authorisation.
  5. The resident raised a complaint on 22 September 2022. She said that the landlord had raised a job for her fence and gate, but staff denied that there was a job on its system despite a contractor visiting. A staff member was rude and told her to raise a complaint to get the work done. She outlined that she was disabled, lived on her own, and had fallen on the ground twice due to the fence and gate. She added that the landlord had authorised work to fences and gates in adjacent properties as they were not safe and asked it to resolve the issues.
  6. In its stage 1 complaint response on 28 October 2022, the landlord did not uphold the complaint. It agreed to complete a further inspection and assessment to raise the repair for the fence and gate but did not find service failings. It said it would provide feedback for repairs completed at other properties but said that these works were at the discretion of the department or individual who completed the assessment. In a call on the same day, it explained that it could not comment on repairs undertaken to neighbouring properties.
  7. Following resident contact with the Ombudsman in January 2023, we wrote to the landlord on 18 January 2023 and asked it to respond to the resident’s complaint. She subsequently explained that the landlord told her it would contact her about the fence. She said she sent 7 emails between 10 October 2022 and 9 December 2022, but the landlord did not respond. The landlord acknowledged that the resident wished to escalate her complaint on 30 January 2023. It said that it was experiencing delays due to a high number of enquiries, but it would be in touch.
  8. The landlord issued its stage 2 complaint response on 9 June 2023. It said that:
    1. It was only responsible for repairs to a boundary fence if they backed onto a public path. The maintenance of dividing fences was the resident’s responsibility. It said that if the fence backed onto a public path, she could ask for it to raise a repair. It was not responsible for the gate unless it related to the back fence.
    2. It apologised for any confusion or misunderstanding caused by the previous work it completed for her neighbour. Hedge maintenance was the resident’s responsibility as part of the garden or landscaping.
    3. It did not uphold the complaint related to the fence, hedges and gate as these were her responsibility. It acknowledged that it failed to respond to her complaint within 20 working days. It also noted her concerns about staff conduct but said that it only kept call recordings for 6 months and it was unable to listen to the calls.
    4. It offered £350 compensation comprised of £150 for poor complaint handling, £100 for any distress and inconvenience caused, and £100 for poor customer service.
  9. The resident referred her complaint to the Ombudsman in July 2023 as she had not asked the landlord to cut the hedge but to install fencing as there was a large hole in the hedge which overlooked a public footpath. Animals often came through the hedge, people could see into her garden and property, and she felt at risk. She wanted the landlord to fix the fence and provide compensation.
  10. The resident continued to pursue her concerns with the landlord following the complaint and said that the work had been approved 18 months prior. She also asked the landlord to complete work to the fence instead of paying her the compensation it had offered. The landlord’s records from November 2023 indicate that it believed that if there was a public footpath on the other side of the damaged hedge, it should look to install a fence along the resident’s boundary. It established that while there was a right of way across the field, this was not a public highway, and it would not install a boundary fence.
  11. The landlord has since completed work to erect fencing to the rear and side of the property and install a new gate on 20 and 21 February 2024, following an inspection on 9 February 2024. Its records indicate that it established that most, if not all, of the properties backing onto the field had timber fencing, the existing fence and gate were in a poor condition, and as the rear fence bordered a field, it was responsible for maintaining the boundary.

Assessment and findings

Scope of investigation

  1. In her communication, the resident has raised concern that the condition of the fence and gate led her to fall on several occasions. While the Ombudsman does not doubt the resident’s comments, it is beyond our remit to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is more appropriate to be dealt with through a personal injury claim. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Policy and legal framework

  1. The landlord has not provided the terms of the tenancy that the resident accepted when she became a tenant by assignment in August 2012. The landlord’s repair responsibilities document states that it is responsible for boundary fences next to a public right of way. Its website repair responsibility tool confirms that it is responsible for repairing and replacing gates, boundary walls and fences where they are next to land it owned or next to footpaths, public land, or rights of way. This excludes dividing fences between neighbouring properties it owns. The landlord aims to complete routine repairs within 28 calendar days.
  2. The landlord’s complaints policy states that it has a 2 stage formal complaints process. At stage 1, it aimed to respond within 15 working days. At stage 2, it aimed to respond within 20 working days.

The landlord’s response to the resident’s complaint about her request for fencing and repairs

  1. Over the course of the complaint, the resident asked for repairs to the dividing fence and gate between her and her neighbours’ gardens, and for the landlord to install a fence to the rear boundary as the hedge bordering the property had large gaps which made the garden insecure. She also maintained that the landlord had completed work to install and repair fences at neighbouring properties and felt the landlord was treating her less favourably.
  2. It should be noted that the Ombudsman is unable to comment on if, or why, the landlord installed or repaired fences at neighbouring properties. While the Ombudsman would expect a landlord to ensure it had a fair approach by investigating if and why it had installed fences for neighbours previously, it was not expected to share details of why it had done so with the resident due to data protection regulations. The landlord acted reasonably by confirming that it would provide feedback internally.
  3. While the Ombudsman does not doubt the resident’s comments, it remains unclear from the evidence provided as to whether the landlord had installed other fences for its residents in the local area. The Ombudsman investigates on a case-by-case basis, and it would not be reasonable for us to request information related to other residents’ tenancies as part of this investigation.

Dividing fence and gate between gardens

  1. The landlord’s policies and repairing responsibilities specify that residents are responsible for dividing fences between properties. As such, the landlord had no obligation to complete work to the fence or gate dividing the resident and her neighbour’s garden. However, the landlord failed to adequately manage the resident’s expectations as to what it was, and was not, responsible for from the outset.
  2. When the resident requested the repair on 24 February 2022, the landlord raised a communal repair as she said it was a communal fence. The landlord’s repair responsibilities document states that some repairs may be considered communal in independent living schemes. However, there is a lack of evidence to show that this applied in this case. As such, it would have been appropriate for the landlord to have checked whether the fence was communal and confirmed its repair obligations at the time.
  3. The resident needed to spend additional time and trouble pursuing an update on 2 occasions in May 2022. There is no further evidence to show the landlord communicated with her until September 2022, when she further pursued her concerns. The landlord has not commented on, or acknowledged, the delay.
  4. The landlord explained that it was responsible for boundary fences but not dividing fences between properties on 14 September 2022. However, there was a lack of clear communication regarding its responsibilities following this. On 15 September 2022, it confirmed that it had located the work orders, which related to a communal fence, and that the work was awaiting authorisation.
  5. The landlord did not uphold the stage 1 complaint response on 28 October 2022 and said that there was no evidence of a service failing. It failed to acknowledge communication failures, and significant delays in confirming its responsibilities. It also failed to clarify why there was a need to complete a further inspection when the works were awaiting authorisation. It said that its contractors would visit again to “complete an inspection and assessment to raise the repair for your fence and gate.” It did not clarify its responsibilities within the response which understandably led to the resident believing it would raise and progress the work.
  6. The Ombudsman has not seen evidence to confirm that a further inspection or assessment took place as agreed following its stage 1 complaint response on 28 October 2022. The landlord has provided limited records of any communication during this time. In its subsequent stage 2 complaint response on 9 June 2023, the landlord explained that it was not responsible for the dividing fence or gate and did not uphold the complaint.
  7. The response that the fence was her responsibility was likely to cause confusion to the resident as the landlord previously confirmed that it would assess and raise works to the fence and gate within its stage 1 complaint response. It did not comment on why it previously agreed to raise work or identify any communication failures. The landlord did not acknowledge any confusion that may have been caused or its failure to adequately manage her expectations from the outset.
  8. In addition, it is of concern that despite the resident’s concerns about the safety of the fence and gate and her vulnerabilities, the landlord did not offer any support to her, check whether there were health and safety risks, or communicate clearly. Given her concerns that she had fallen in the garden due to the condition of the fence and gate, it would have been appropriate for the landlord to have provided clear information, considered completing work on her behalf due to her vulnerabilities, or provided other support due to the health and safety risk. There is a lack of evidence to show that the landlord gave due regard for the resident’s vulnerabilities or the potential risk.

Rear boundary

  1. The landlord’s records from 20 September 2022 indicate that it had spoken to the resident. Alongside her concerns about the condition of the dividing fence between gardens, she wanted the landlord to put up a fence along the rear boundary as the hedge in place had large gaps which was making the garden insecure. While the landlord’s stage 1 complaint response did not mention the rear hedge specifically, it was aware that the resident’s concerns related to the side and rear, and the security of the rear hedge. As above, there is no evidence to confirm that a further assessment of the fences and boundary took place following its stage 1 response, or that it had done what it said it would.
  2. In its stage 2 complaint response on 9 June 2023, the landlord said that it was responsible for the repair and maintenance of the boundary where it backed onto a public path, and it could raise a repair if this was the case. It also said that the resident was responsible for hedge maintenance. The Ombudsman would have expected the landlord to take adequate steps to investigate the resident’s concerns and confirm whether it was responsible for the rear boundary over the course of the complaint, especially given the delay in providing its response.
  3. It failed to demonstrate that it had taken any steps to visit the property prior to issuing its stage 2 complaint response, investigate whether it was responsible for the boundary, or confirm whether the boundary was secure which was a great concern to the resident given her vulnerabilities and age. Its response also put additional onus on the resident to continue to pursue her request if the garden backed onto a public path, which was inappropriate as it should have taken reasonable steps to confirm this itself.
  4. In line with its repair obligations, the landlord is responsible for the repair and maintenance of boundary fences next to land it owned, next to footpaths, public land, or rights of way. The landlord has demonstrated that it took some steps to investigate the resident’s concerns further in November 2023, confirming that if there was a public footpath on the other side of the hedge, it should look to install a fence alongside it. However, its records indicate that it did not consider right of access across the field to be a public highway. Ordnance survey data shows that there is a bridle path, a public highway and footpath, on the other side of the hedge bordering the garden, and the landlord missed an opportunity to identify whether it was responsible for installing a boundary fence, in line with its policies, at the time of the complaint.
  5. In February 2024. 8 months after the complaint, the landlord completed work to install a rear fence and replace the dividing fence and gate. It has explained that its inspector agreed to the work on the basis that it was responsible for the boundary as the garden backed onto a field, most of the other properties backing onto the field had similar timber fencing, and the existing fencing was not in a good condition. There is no clear explanation as to why the landlord changed its mind as to its responsibility, indicating that there could be further discrepancies about how it approaches fence repairs on this scheme in the future.

Complaint handling

  1. Following her complaint on 22 September 2022, the landlord did not provide a stage 1 complaint response until 28 October 2022, this was 26 working days later. The Ombudsman has not seen evidence to show that the landlord provided any update to the resident regarding the status of her complaint or when she would receive a response. It also failed to acknowledge the delay at this stage within its subsequent responses which amounts to a failing.
  2. In her communication with the Ombudsman, the resident said that she sent 5 emails to the landlord between its stage 1 complaint response on 28 October 2022 and December 2022 but did not receive a response. The Ombudsman does not doubt the resident’s comments; however, we have not seen evidence of these emails to make an informed decision on whether the landlord should have escalated the complaint sooner. It is, however, noted, that the records the landlord has provided have significant gaps and the resident may have communicated with it during this time.
  3. The Ombudsman contacted the landlord on 18 January 2023 asking it to respond to the complaint. While it acknowledged that the resident wished to escalate the complaint on 30 January 2023 and said there would be a delay, it did not provide its stage 2 complaint response until 9 June 2023, over 4 months later. The landlord acted reasonably in its stage 2 complaint response by acknowledging that there were delays in its handling of the complaint. It also identified that it was unable to listen to calls, where the resident had alleged staff members had been rude, due to the time that had passed, and considered its inability to do so within its compensation offer. It acted fairly by apologising and offering £350 compensation for the delay, inconvenience and poor customer service.

Summary

  1. The Ombudsman has found service failure in the landlord’s response to the resident’s complaint about repairs and her request for fencing. The landlord took steps to acknowledge its complaint handling delays and poor customer service at stage 2 and it was not strictly obliged to complete repairs to, or replace, the dividing fence or gate separating the resident and her neighbours’ gardens in line with its policies.
  2. However, it failed to adequately manage the resident’s expectations, demonstrate it had considered her vulnerabilities, and gave contradicting information over a significant period which was likely to cause confusion and inconvenience. It also failed to consider her request for a boundary fence, whether the garden was insecure as a result of the gaps in the hedge, or whether it was responsible for the boundary prior to issuing its stage 2 complaint response, causing additional time and trouble to the resident.
  3. The Ombudsman’s remedies guidance states that compensation offers between £100 and £600 are considered proportionate in instances of maladministration where there were failings which had an impact on the resident but where there is no permanent impact. While the landlord’s offer of £350 goes some way to acknowledge the complaint handling failures identified, it is not considered proportionate given the time and trouble experienced by the resident in pursuing her concerns. An order is included below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to the resident’s complaint about her request for fencing and repairs.

Orders

  1. Within 6 weeks the landlord is to:
    1. Write to the resident to apologise for the time, trouble, and inconvenience experienced by her because of its failings.
    2. Pay the resident an additional £150 compensation in recognition of the time and trouble she spent pursuing her concerns and the inconvenience caused by its failings. This is in addition to its previous offer of £350 which it should also pay if it has not already done so.
    3. Provide evidence to demonstrate it is aware of its boundary fence responsibilities for any other properties on the scheme that border the field.
  2. The landlord is to provide evidence of compliance to the Ombudsman within 6 weeks.