Wandle Housing Association Limited (202347808)

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REPORT

COMPLAINT 202347808

Wandle Housing Association Limited

26 February 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

The complaint is about the landlord’s handling of:
1. cyclical repairs to the resident’s bathroom.
2. repairs to the fence.
3. the resident’s complaint.

Background

The resident occupies a 2-bedroom terraced house under an assured tenancy agreement. This began on 31 March 2008. The resident’s property is adjoined by another tenant of the landlord. The resident’s daughter acted on her behalf to communicate with the landlord during the complaint. As such, this report has referred to the daughter’s actions as those of the resident. The resident told the landlord that she was “unwell” during the complaint process, but did not provide any further information.
The resident said the landlord had historically repaired and replaced the fence panels in the garden belonging to the property. The resident said that during a storm in December 2023, a fence panel separating her and her neighbour’s garden had fallen down. It is unclear when the resident reported this to the landlord.
The resident made a complaint on 28 January 2024. She said:
1. she was “appalled and shocked” that the garden fence was lying in the garden.
2. she was concerned this was a health and safety risk . She said her neighbours had been threatening previously and could see directly into the garden.
3. the neighbours had piled rubbish against the fence, and she wanted the landlord to give a warning to them. She added that this was one of the reasons the fence had fallen down.
The landlord wrote back the same day and said it would only repair or replace fencing if it was a boundary fence. It said the fence in question was not exposed to the external street, car park or alleyway. A such it was not considered a boundary fence. It added it would only “make safe” the fencing that separated her property from her neighbour’s. It said it had done this by laying the fencing flat in her garden. It said this was in line with its responsibilities in the ‘Tenants Handbook’ and the tenancy agreement.
The resident asked for her complaint to be escalated to stage 2 of the complaint procedure because “she could not believe [the landlord] would not replace the fence after the evidence [she had provided]”. She added that the back fence had also fallen down and was open to the car park and alleyway. She asked the landlord to deal with this urgently. The landlord referred the resident’s complaint to its complaint department on 5 February 2024.
The landlord attended the property on 6 February 2024. The operative found the back garden fence had fallen and obstructed the public alleyway and car park. It raised follow on work to install a new gravel board, gate post, and gate. It also said the fence that was between the 2 properties was not its responsibility.
The resident wrote to the landlord on 8 February 2024 and said:
1. she thanked the landlord for arranging to repair the back fence.
2. she was still concerned about the other fence lying in the garden.
3. she thought the landlord was responsible for repairing the fence and quoted the tenancy agreement.
4. she had not received a notice of variation to amend the terms of the agreement. As such, she considered the landlord’s failure to repair the fence to be a breach of contract.
The landlord issued its stage 1 response on 16 February 2023. It said:
1. it had attended on 6 February 2024 to make the fence safe.
2. it advised the resident that as it was a dividing fence and not a boundary fence this was not its responsibility but “down to residents”.
3. it had booked an appointment on 26 February 2024 to conduct follow on work to the gravel board, gate post, and gate.
The resident escalated her complaint on 22 February 2024 because she felt the landlord was contractually liable to repair the fence. She re-iterated the terms of the tenancy agreement had not changed and the landlord had historically repaired and replaced the fence panels. The landlord called the resident, although it was unclear when this was. The resident said during the call the landlord had advised her if the tenancy agreement said it would repair dividing fences, then this would supersede its repairs policy. She added that she was concerned the property had missed cyclical work to the external wall, bathroom, and kitchen.
The landlord issued its stage 2 response on 28 August 2024, which upheld its stage 1 response. It said:
1. it apologised for its delay in addressing the resident’s concerns because she had chased the repair from February.
2. it attended on 6 February 2024 and it considered the advice it had given her about having no responsibility to repair dividing fences was correct.
3. it referenced the repairs and maintenance policy which said it would only repair boundary walls and fences and this did not include dividing fences between properties. It would, however, “make safe [the dividing fence] to remove the risk of injury”.
4. it recognised that it had previously carried out repairs to the dividing fences on either side of the resident’s property. However its repairs policy had since changed.
5. the resident’s tenancy agreement states it must “maintain boundary wall and fences”. It said it therefore acted reasonably both when it attended to ensure the fallen fence was “made safe” and advised it was the residents’ responsibility to repair if needed.
6. it had passed the resident’s enquiry about renewals to the exterior wall, bathroom, and kitchen to the relevant department. They had confirmed the external decorations are overdue but there was a backlog. It also said the renewals to the kitchen were due in 2038 and the 2 bathrooms in 2034 and 2039.
The resident escalated her complaint to us on 12 September 2024 because:
1. the landlord had repaired the fence historically. She therefore felt that it should continue to do so unless the tenancy agreement was formally varied.
2. she was confused by the landlord’s final response. This was because the landlord said it would review the tenancy agreement when it called her, but it still decided it did not have to undertake further work. She said this was not how she had interpreted the contract.
3. the landlord was aware she needed a new bath before the cyclical dates it had provided her because the surveyor was concerned the bath would “come through the ceiling”. She said this was a serious risk and she wanted to the landlord to replace it before the planned work date.

Jurisdiction

The landlord’s handling of cyclical repairs to the bathroom

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or part of a complaint, will not be investigated.
The Scheme states at paragraph 42.a.:

“The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”.

After carefully considering all the evidence, the resident’s complaint concerning the landlord’s handling of cyclical repairs to the bathroom sits outside of the Ombudsman’s jurisdiction.
The resident asked the landlord during her escalation request for the dates the property was due to undergo cyclical work. It dealt with this as a service request and provided the requested dates in its stage 2 response. After the complaint procedure was exhausted the resident raised health and safety concerns with the conditions in the bathroom.
The landlord should have the opportunity to address the resident’s complaint before we consider it. The resident’s raised concerns about the health and safety conditions in the bathroom after the complaint procedure was exhausted. As the landlord has not had an opportunity to formally respond to the resident’s concerns, this complaint is outside of our jurisdiction to investigate. The resident may raise this issue as a separate complaint with the landlord. If she remains dissatisfied once the complaint procedure is exhausted, she may refer it to us for further investigation.

Assessment and findings

Scope of the investigation

The resident explained as part of her complaint that she disputed the landlord’s interpretation of her tenancy agreement. She said the tenancy agreement was ambiguous because it states the landlord will maintain the structure and outside of the property “including boundary walls and fences”. She said that the landlord interpreted this to mean boundary walls and boundary fences when it ought to have interpreted it to mean boundary walls and all fences.
To determine this element of the resident’s dispute would require interpreting the tenancy agreement. As the tenancy agreement is a legal document, any decision on how the wording should be interpreted would result in a legally binding decision. Such matters are best determined by a court and fall outside the remit of this Service. As such we are unable to determine this aspect of the complaint. Our investigation will only assess whether the landlord’s response to the resident’s concerns about this matter were dealt with reasonably in all the circumstances.

The response to the decision to make safe the fence

The landlord does not dispute that it historically repaired the resident’s dividing fence. This understandably set an expectation for the resident that it would continue to do this.
As part of her complaint, the resident expressed concerns to the landlord that the fence lying in the garden was a health and safety hazard. For context, the resident said that her neighbour had initially reported to the fallen fence to the landlord. The resident said as a result of this report, the landlord called her to explain it was her responsibility to fix the fence.
The landlord did not provide evidence in its repairs log or contemporaneous evidence of the initial report or any subsequent contact it had with the resident at this time. As such, we have not been provided with any other evidence as to how the landlord first became aware of the fence or any subsequent communications it had during this time with any of the parties concerning responsibilities for the fence. As a result of inadequate record keeping the landlord has failed to demonstrate it captured necessary information about the report or that it actioned this reasonably in the circumstances.
The Ombudsman’s Spotlight Report on Knowledge and Information Management (KIM) states that “good knowledge and information management is crucial to any organisation’s ability to perform and achieve its mission…If information is not created correctly, it has less integrity and cannot be relied on. This can be either a complete absence of information, or inaccurate and partial information”. It further states that a landlord’s failings to create and record information accurately result in it not taking appropriate and timely action, missing opportunities to identify that actions were wrong or inadequate, and contributing to inadequate communication and redress.
The landlord must conduct a review of its working practices when it records repairs. This is to help it identify any wider learning by ensuring it captures all relevant information relating to repairs. This includes reports made by residents, any advice it provides related to this, and any delays it is experiencing.
The evidence shows that the landlord raised a job on 5 January 2024. The contemporaneous notes showed the landlord intended to “make safe a garden fallen fence”. The landlord’s position in its tenant handbook is that it will not intervene to make a dividing fence safe unless it needs to “remove a risk of injury”. The landlord’s repair logs show it had classified the fence may have caused a risk of injury because it triggered its obligation in the tenancy handbook to make the fence safe. However, it did not take action to assess the fence until 6 February 2024, this was 1 month later. It is unclear, based on the evidence, the reason for the delay. We therefore have been unable to assess whether this delay was unavoidable or not.
Further, there is no evidence that the landlord acted in a timely manner to make the fence safe until after the resident had raised a complaint. This was a failure because the landlord should not rely on the intervention of residents to progress repairs it is responsible for. We expect landlords to have appropriate systems and processes in place to capture repair data and to ensure it progresses repairs.

The tenancy agreement and ongoing responsibility

In the resident’s complaint she referenced the tenancy agreement and said the landlord was contractually liable for repairing and maintaining the fence. The landlord took appropriate action to the resident’s initial concern when it explained informally and in its complaint response that dividing fences are the responsibility of residents’. For clarity we are not commenting on whether the landlord’s interpretation was correct, but we have concluded that it acted reasonably. This was because the advice was in line with its interpretation of the tenancy agreement at the time as well as the obligations set out in the tenancy handbook.
When the resident escalated her complaint, she explained she disputed the landlord’s interpretation of the tenancy agreement. She felt the wording was ambiguous and included an obligation for it to maintain and repair dividing fences. The resident said it told her that it would investigate the agreement further before issuing its stage 2 response. This demonstrated it was acting fairly because it was willing to listen to the resident and reevaluate its position.
However, there is no evidence it then took meaningful action to clarify its interpretation of the tenancy agreement was correct. Given the resident had disputed the wording of the agreement and it had previously repaired the fence, it would have been reasonable to investigate this further. For example, the landlord could have considered seeking legal advice or consulting the title deeds and the title plan.
We recognise there was no obligation on the landlord to seek legal advice. However, the resident felt the agreement was ambiguous and it had previously conducted these types of repairs. Therefore, it would have been a proportionate response to have taken further steps to have satisfied itself about its interpretation of its obligations. And then set out its investigations and findings to the resident. Had it done so it would have been in a position to demonstrate it had taken steps to address the resident’s concerns about its obligations. That it did not was a failure to demonstrate it took proportionate action to consider the resident’s concerns.
The landlord said in its complaint response that the responsibility of the dividing fence would lie with “the residents’”. It did not clarify its position over which resident it considered to be responsible for the dividing fence. In making the fence safe, it placed the fence in the resident’s garden. We cannot assess whether this was a fair solution because of the lack of evidence regarding who had responsibility to repair the fence.
Based on the landlord’s interpretation of the agreement, the resident or her neighbour would be responsible for removing or replacing the dividing fence. As the resident’s property is owned by the landlord, we would expect it to verify this matter before taking a position in its complaint response relating to this. This is important because in the event that the resident was responsible for maintaining the fence, placing it in her garden would have been a reasonable action to take. Conversely, if the resident was not responsible for maintaining the fence, placing it in her garden may have adversely affected her use and enjoyment of the property.
In the interests of fairness, the landlord should have taken reasonable steps to try to establish who was responsible for the dividing fence. This could have included consulting the title deeds or seeking the professional opinion of a suitably qualified surveyor. It is unclear why it did not consider this when the resident explained she was still concerned about the positioning of the fence after it had been “made safe” on 8 February 2024. It would have been a proportionate response for the landlord to have sought clarification about this so that it was transparent about the ongoing responsibilities of the fence. It would then have been in a position to assess whether placing the fence in the resident’s garden had been reasonable in the circumstances. And if it needed to take any further action as a result.
The landlord failed to evidence that, when it was challenged by the resident, it had made reasonable attempts to verify ownership of the fence. That the landlord did not take steps to re-evaluate its position was unfair. As a result of the landlord’s inaction, there is insufficient evidence to show whether it acted reasonably when it made the fence safe.
To put this right the landlord must seek professional advice to confirm its legal position about its interpretation of the tenancy agreement. In doing so it must also take reasonable steps to ascertain any ongoing responsibility of the fence for the resident. It must then assess whether its actions in making the fence safe were reasonable and if it needs to take further action. In must then assess if there was any detriment to the resident and if it needs to put things right.

Conclusion

Overall, we consider there was maladministration in the landlord’s handling of the repairs to the fence because of the culmination of the following failures:
1. it failed to demonstrate it took proportionate action to consider the resident’s concerns about the interpretation of the tenancy agreement.
2. its poor record keeping meant the landlord failed to demonstrate it captured necessary information about the initial report about the fence. This meant could not assess whether it acted reasonably.
3. it unreasonably delayed making the fence safe. It then failed to progress the repair until the resident chased this.
4. there was insufficient evidence to show whether it acted reasonably when it made the fence safe. This was because it did not demonstrate it took reasonable attempts to verify the ownership of the fence.
This caused distress and inconvenience to the resident because of the delays in progressing the repairs to make the fence safe. The impact of this was compounded by the landlord’s failure to take proportionate action to resolve her concerns about the overall obligations of the fence.
We have considered our ‘Remedies Guidance’ and it would be appropriate for the landlord to recognise its failures by apologising and paying the resident £150 compensation. This is in line with our guidance when trying to put things right for a finding of maladministration.

Complaint handling

Our Complaint Handling Code (the Code) states landlords must respond to complaints at stage 1 within 10 working days of the date of acknowledging and logging the complaint. Landlords must also respond to escalation requests at stage 2 within 20 working days. The landlord’s complaint policy aligns with the Code.
The resident raised her complaint on 28 January 2024. The landlord responded informally on 31 January 2024. Given the resident had raised a complaint the landlord should have progressed this through its internal complaint process rather than responding informally. That it did not meant the landlord delayed in progressing the resident’s complaint through its procedure. This caused the resident confusion because she thought its informal response formed part of the complaint procedure.
The landlord issued its stage 1 response 14 working days after the original complaint. This was outside of the timeframes set out in its complaint policy and the Code and caused inconvenience to the resident. This was due to the failure to escalate the complaint as explained above.
The landlord issued its stage 2 response 131 working days after the resident’s escalation request. This was a significant delay and outside of the timeframes set out in the Code. There is no evidence the landlord explained the reasons for its delay or tried to agree a new timescale with the resident. This was a further departure from the Code. The delay caused distress and inconvenience to the resident and also delayed her from seeking recourse through this Service.
As part of the resident’s initial complaint she explained that there had been an exchange with the landlord prior to the complaint. She said the landlord had called her and said that the fence was her responsibility, but it had agreed to make the fence safe. The landlord did not address this in its complaint response and only explained the actions it had taken after she made the complaint. As the landlord must answer all elements of a complaint, that it did not address its actions during this time was a departure from the Code. This was also a missed opportunity to investigate its records and put things right for its delay in making the fence safe.
The landlord’s stage 2 response referred to the obligations in its repairs and maintenance policy which it had relied upon to explain its position that it was not responsible for maintaining dividing fences. It said this policy was on its website for the resident to view. However, this was inaccurate because the policy is silent on its responsibilities towards the fence. Rather, the tenant handbook set out its responsibilities towards the fence.
The landlord failed to accurately account for the correct source of its responsibilities. We expect complaint responses to be accurate because it reflects the landlord’s final position on a matter. This would not have ultimately altered the resident’s position, however, the landlord should remind staff to ensure its responses are accurate and reflective of the policies it has in place. This is so it provides the correct information to residents.
Given the landlord’s delay in progressing the complaint and its failure to answer the complaint fully and accurately, we consider there was maladministration. To recognise the failures in its complaint handling the landlord must pay the resident £100 compensation. This is in line with our ‘Remedies Guidance’.
Our recent investigations into the landlord have identified that the issues identified in this complaint are a recurring theme. We have made an order in our determination of case reference 202230608 relating to training for complaint handling staff and a quality assurance process to ensure the robustness of the complaint handling procedure. As such, we will monitor the orders we have already made in respect of this. In light of this we will not make any further orders in relation to its complaint handling.

Determination

In accordance with paragraphs 42.a. of the Scheme, the landlord’s handling of cyclical repairs to the bathroom is outside of our jurisdiction to consider.
In accordance with paragraph 52 of the Scheme, there was maladministration with the landlord’s handling of the fence repairs.
In accordance with paragraph 52 of the Scheme, there was maladministration with the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

Within 28 calendar days of this determination, the landlord must:
1. write to the resident to apologise for the failures found in this report.
2. pay the resident £250 compensation. This consists of:
  1. £150 to recognise the distress and inconvenience of its handling of the repairs to the fence.
  2. £100 to recognise the distress and inconvenience of its handling of the complaint.
3. seek specialist advice and write to the resident to clarify its position on:
  1. its interpretation of the tenancy agreement relating to its responsibilities towards dividing fences.
  2. the ownership of the dividing fence concerning the resident and her neighbour.
4. within 10 calendar days of receiving the specialist advice, it must then assess whether its actions in making the fence safe were reasonable and if it needs to take further action. In doing so it must also assess if there was any detriment to the resident and if it needs to put things right. It must write to the resident and the Ombudsman explaining its assessment.
Within 56 calendar days of the date of this determination the landlord must conduct a review of its working practices when it records repairs. This is to help it identify any wider learning by ensuring it captures all relevant information relating to repairs, including reports made by residents, any advice it provides related to this, and any delays it is experiencing. In doing so the landlord may find it helpful to refer to our KIM Spotlight Report with particular reference to:
1. recommendation 7.
2. recommendation 8.
3. recommendation 11.
4. recommendation 12.
5. recommendation 13.

The landlord must write to the Ombudsman with its findings and any associated timeframes to implement its wider learning.