The Riverside Group Limited (202113445)

REPORT

COMPLAINT 202113445

The Riverside Group Limited

16 August 2022

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 request for the replacement of a chain-link fence in the property.

Background

2. The resident is an assured tenant of the property, which is owned by the landlord.
3. The resident reported issues with the chain-link fence in the property to the landlord in July 2021. She stated she had cut her hand on it and she wanted it replaced with panel fencing. Following an inspection, the landlord advised that it was the responsibility of residents to maintain their fence and the chain-link fence would not be replaced as it was in good condition. The resident made a formal complaint to the landlord, on 16 August 2021, regarding its response to her request. She had further reported that her granddaughter had sustained an injury from the fence. 
4. In its response to the complaint, the landlord stated that it had found that it required no repairs. It reiterated its previous advice that it was her responsibility as a tenant to maintain the adjoining fence to the property and that she did not require its permission to replace this herself with a panel fence.
5. In escalating her complaint, the resident informed the landlord that her dog had caught its paw in the fence, resulting in £1300 vet bill. In its final decision, the landlord maintained its earlier position on the issue and reiterated that the fence was found to be safe and in good condition. The resident, however, maintains that she wants the fence replaced with panel fencing by the landlord.

Assessment and findings

Scope of Investigation

6. Following a storm, on 22 February 2022, the resident informed the landlord that her fence had been damaged. The landlord has conducted visits to the property and the parties have been in communication regarding the situation and the landlord’s next steps in resolving it, including the resident’s request for panel fencing instead of the same chain-link type on the property. These events occurred after the current complaint had exhausted the landlord’s complaints process. This means that it has not formed part of the original complaint.
7. The further events mentioned in the paragraph above have not been considered in this report as we cannot consider any issues which did not form part of the formal complaint. Our position is in accordance with Paragraph 39(a) of the Housing Ombudsman Scheme (the Scheme) which provides that ‘the Ombudsman will not investigate complaints which are made prior to having exhausted a landlord’s internal complaints procedure.’ Thus, the resident is advised to report these matters to the landlord in the first instance and make a formal complaint if she remains dissatisfied with its decision. It must be noted, however, that the resident again seeks the replacement of the chain-link fence with panel fencing, thus, the decision on this current complaint is likely to be relevant to her consideration of her options in the new issue.
8. The landlord’s log notes, of 09 July 2021, state that the resident reported hurting herself on the jagged edge of the fence. She also reported further injuries to her granddaughter and her dog. This Service is unable to establish a causal link between reports health issues and the actions of landlords. The resident may, therefore, wish to seek legal advice on how to pursue the matter of the injuries she has reported, as a personal injury claim may be a more appropriate way of dealing with this aspect of her complaint. We will, however, be assessing the adequacy of the landlord’s response to this aspect of the complaint.
9. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.

Current issue

10.  The documents provided to this Service indicate that the landlord inspected the fencing within 4 days of the resident first reporting that it was unsafe. This report has assessed the notes by the landlord on 09 July 2021, which indicates that the operative deemed the chain-link fence safe and did not find that any repairs were required.  In the absence of any expert evidence to the contrary, this Service is unable to conclude that the operative’s finding was inaccurate. Furthermore, it was reasonable for the landlord to rely on the opinion of its professionally qualified operatives.
11. With respect to the resident’s reports of injury, it would have been reasonable for the landlord to provide the resident with the details on how to pursue a personal injury claim with its insurers. This would be in accordance with the provisions of its Compensation Policy which states in clause 2.4 that ‘all injury claims, however minor’ must be reported to its insurer. It must be noted, however, that no evidence has been provided to show that the landlord actually witnessed the injuries mentioned or was provided with documentation in that regard by the resident.
12. The landlord’s Responsive Repairs policy states that it ‘will keep in repair the structure and exterior of your home including boundary walls and fences that are present at the start of your tenancy.’  It further states in clause 5.3 that it is ‘responsible for boundary fences (this includes fences that lead onto a public right of way such as a road, field, waterway or car park. This also includes dividing fences that are between two properties.’
13. No evidence has been provided to this Service to show that the fence was not present at the start of the Resident’s tenancy. This indicates that the landlord’s response with respect to the resident being responsible for maintaining adjoining fencing to the property is inaccurate as this position is not supported by its policy. There is also no provision in the resident’s tenancy agreement in support of the landlord’s assertions. Furthermore, it missed the opportunity of utilising the stage two response to the complaint to rectify its error. This indicates a lack of thoroughness in the consideration of this complaint, as a simple inspection of the relevant documents would have provided clarity.
14. In addition to this, the tenancy agreement and s.11 of The Landlord and Tenant Act 1985, states that the landlord must keep in repair the structure and exterior of your home. This would usually include fences, unless specifically exempted in the tenancy agreement and/or the landlord’s policy. As seen in the paragraphs above, the landlord’s policy did include provisions in line with legislation.
15. The landlord attended within reasonable time to inspect the fence and found that no repairs were required, however, it should have taken care to ascertain who would be responsible for any repairs before advising the resident. The fact that repairs have been indicated to be the responsibility of the landlord also means that it will be its responsibility to replace the fence, if it is deemed necessary.
16. As the landlord had found that the fence did not require repairs or replacement, the resident’s request to replace it with panel fencing would be considered a request for improvement. This is, ordinarily, not a landlord’s responsibility. This means that the landlord’s advice that the resident would have to replace the chain-link fencing herself was in adherence with its policy.
17. The  resident’s tenancy agreement states in clause 3.9.1 that ‘you must not carry out any improvements or alterations to your home without obtaining our written consent, including removing or altering fencing or external walls.’ On 16 August 2021, log notes by the landlord state that the resident had enquired via telephone call to replace the fence herself and was informed that as the fence was her responsibility, she may do this without requiring permission.
18. This was another point on which she was provided with inaccurate information, as the terms of her tenancy indicate that it was necessary for her to obtain the landlord’s permission before making any alterations to the fence. However, this Service finds that there was no detriment to the resident in being given this wrong information as she did not take any action at the time and has not been adversely affected in any way. Nonetheless, it is further evidence of the poor investigation of the vital issues by the landlord in this case.
19. Overall, this Service concludes that the landlord was timely in responding to the resident’s reports and did not undertake any repairs to the fence as it had not found that repairs were required. It was also not required to replace the fencing as its findings on the condition of the fence did not warrant this. However, it failed to advise the resident about the process for making a claim to its insurers when she reported incidents of injury. It also provided inaccurate information regarding responsibility for repairing the fence.
20. Thus, there were failings in the landlord’s handling of the resident’s request, specifically with respect to the wrong information communicated to the resident and for not advising her about its insurance processes. Compensation is, therefore, due to the resident in resolution of these failings.

Determination

21. In accordance with paragraph 54 of the scheme, there was service failure by the landlord with respect to its handling of the resident’s request for the replacement of the fencing on the property.

Orders and recommendations

Orders

22. Within four weeks of the date of this report, the landlord should pay the resident £100 in compensation for its failure to provide vital and accurate information to her in this case. The landlord should provide this Service with evidence of having complied with the order in this case.