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Hyde Housing Association Limited (202001296)

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REPORT

COMPLAINT 202001296

Hyde Housing Association Limited

10 February 2021


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 how the landlord dealt with arrangements to carry out an annual gas safety inspection at the resident’s property.

Background and summary of events

  1. On 15 January 2020 the landlord’s contractor sent the resident a letter saying that it had made an appointment to carry out the annual gas safety check on 27 January 2020 and that he could rearrange it by emailing or calling. On 24 January 2020 the resident emailed to say that he had received the letter ‘advising of a time that you deemed suitable without speaking with me’. He said that he was at work Monday to Friday between 6.30am and 9pm.
  2. The contractor responded to ask when would be a convenient time during the week. The resident’s reply was to query whether the landlord had read his last email. He said he had previously stated when he would not be available, so the landlord should therefore be able to deduce when it could gain access. The landlord then asked the resident if he was able to take any time off work as most tenants have to take time off to allow access.
  3. As well as this contact directly with the resident, it appears that emails were sent on 14 and 28 January 2020 to a neighbour of the resident in relation to the gas safety check at the resident’s address. The second of these said that an appointment had been made for 10 February 2020. There is no evidence that the resident was also written to, so it is likely that he was unaware of this appointment.
  4. On 11 February 2020 the contractor sent the resident a letter headed ‘URGENT REMINDER.’ It said it had attended the previous day but the resident was not at home. It would call again on 19 February 2020 and if it did not hear from him it would assume that the date was acceptable. However, the resident was not at home when the contractor visited on 19 February 2020.
  5. The landlord sent the resident a further reminder letter on 26 February 2020, stating that it had a legal responsibility to carry out an annual check, his tenancy agreement required him to allow access, and it would appreciate his support to do this as quickly as possible.
  6. On 28 February 2020 the resident used the landlord’s website to complete an online form. He said that he had contacted the contractor after it wrote to him but it had been unable to grasp that he worked during the week and had weekends off. He said that its response that ‘most tenants’ can take time off in the week was discriminatory, and that he was not ‘most tenants’ as he was not a single parent, on a zero hours contract or working part-time. He said his contract of employment stipulated that he be at work from Monday to Friday. Therefore, he asked the landlord to advise its contractor to attend at the weekend or find another contractor that could. On 2 March 2020 the resident asked the landlord not to send him threatening letters stating that he was not allowing access.
  7. The landlord contacted the resident on 4 March 2020 to say that it had been advised by its contractors that an appointment had been scheduled for that afternoon. The resident replied that this was the first he had heard of it, he was at work, and it was no concern of his that the contractors did not work at the weekend. He said that, given that he worked in a sector that was underpaid, it was not viable to take the day off and he did not want to even suggest this to his employer.
  8. On 5 March 2020 the landlord told the resident that an appointment had been made for Saturday 7 March 2020 between 8am and 1pm. The landlord’s tenancy officer wrote to the resident on 6 March 2020, stating that, whilst understanding the constraints of his employment, the resident must also understand that its contractors had operational hours in which to carry out its duties. It made every attempt to accommodate times that were convenient for the resident but if that was not possible then a tenant must provide access when given reasonable notice. It reminded him that this was a condition of the tenancy agreement that he had signed and that failure to allow access could result in legal action for breach of tenancy.
  9. The resident responded that he did not take kindly to threats of legal action, but to by all means proceed because he felt that a judge would not agree that he had been unreasonable or hindered access to the property. He said that he was quite prepared to resign his full–time job to accommodate an appointment and that the landlord should therefore be careful in making threats when there was a delay with the rent or if any arrears accrued. In a second email of 6 March 2020 the resident said that he was given to understand, given the incendiary email from the tenancy officer, that there would now be no appointment as advised for Saturday 7 March 2020. He said that, given the tone of the email, he would tender his resignation from his job in order to comply with his tenancy.
  10. On Saturday 7 March 2020, the contractor visited the property at 2.25pm, outside of the scheduled 8am to 1pm slot. The resident disputes this as he says that he was still home at that time. In evidencing that a visit had taken place, the contractor provided a photograph of the front door taken at the time. The first photograph sent had metadata showing it was taken on 19 February 2020, the date of an earlier unsuccessful appointment. However, this was an administrative error on the part of the contractor which has now provided a photograph with metadata showing that it was taken on 7 March 2020.
  11. On the afternoon of 7 March 2020, the resident emailed the landlord to say that nobody had attended. He said he had cancelled a hospital appointment in order to allow access. He confirmed that he had had no option but to tender his resignation, giving only one week’s notice instead of the required three months, so that his last day at work would be Friday 13 March 2020. Therefore, access would be possible from the following Monday.
  12. The landlord contacted its contractor on 9 March 2020 and established that the engineer had been running late at the weekend. It asked the contractor to call the resident to apologise and to re-book another appointment. The contractor later said that it had tried to telephone the resident several times but could not make contact. It had therefore left him a voicemail about a new appointment. The landlord then emailed the resident to apologise that the timeslot had been missed and that a new appointment had been arranged for Saturday 21 March 2020.
  13. In the resident’s response he stated that it was disappointing that it was being stated that the engineer had arrived late when he had stayed home all day and knew that the engineer had not attended. He confirmed that he had now resigned from his job to accommodate a weekday visit so as not to be in breach of his tenancy agreement.
  14. Also on 9 March 2020, the landlord sent the resident a letter from its legal team. It said it understood that its contractors had been unable to gain access and reminded him of the terms of his tenancy agreement. In order to avoid a court order being issued against him, the resident must contact the landlord to make an appointment and provide access for a gas safety check to be completed within seven calendar days of the date of the letter. Failure to do so could result in an injunction compelling the resident to allow access to his home which, if not complied with, would be contempt of court. This could result in the resident being sent to prison and being responsible for court costs and the landlord reserved the right to serve a notice seeking possession.
  15. On 10 March 2020 the resident contacted the landlord to say that he had received the letter from its legal team and he now understood that he could not even work his one week notice with his employer, which would have an impact on his professional reputation. He also filled in an online customer services form, saying that the landlord would be misleading the court as he had, on seven occasions, written to arrange access.
  16. On 11 March 2020 the landlord told the resident that it did offer him a weekend appointment by email for 21 March 2020 but did not hear back from him. It said that an engineer would attend the following day between 8.30am and 1pm. The gas safety inspection was then successfully carried out on 12 March 2020.
  17. In the resident’s online complaint form of 12 March 2020, he set out his complaints as follows:
    1. The landlord discriminated against him when it stated that ‘most tenants’ were able to take time off work because it was stating that he was different. As a gay man he took this to be a discriminatory statement in reference to his sexuality. Also, he was further discriminated against as someone who worked full time and it showed that the landlord was not making a ‘reasonable adjustment’ by failing to offer weekend appointments;
    2. The landlord was unreasonable and disingenuous in stating that its contractor only worked weekdays, considering that a weekend appointment was made;
    3. The arranging of an appointment for 4 March 2020 without any notice being given contravened the requirement to give 24 hours’ notice. It again being a weekday was likely a deliberate act to discriminate and/or victimise him;
    4. The letter from the tenancy officer dated 6 March 2020 was a ‘disturbing diatribe’ that so unsettled him that he submitted his resignation with his employer, giving one week’s notice instead of the required four weeks;
    5. The engineer did not attend at any time on Saturday 7 March 2020;
    6. He spoke to his upstairs neighbour on 10 March 2020 who said that the contractor had been continually texting her with details of his gas safety check, which was a breach of his privacy.
  18. The landlord acknowledged the complaint on 18 March 2020 and said that it would process his concerns as a service recovery enquiry (as opposed to being dealt with under stage 1 of its complaints procedure). It said that it had tried to call him but had been unable to reach him, leaving a voicemail on each occasion.
  19. The resident responded that neither his landline nor his mobile phone had a voicemail facility and that he had raised this issue before. Therefore, the landlord was being disingenuous in saying that it had left voicemails or it was leaving them on someone else’s number – as highlighted in his complaint about texts being sent to his neighbour. He asked the landlord to stop calling the numbers it claimed to have as these were not his telephone numbers.
  20. In the landlord’s Service Recovery Enquiry response of 27 March 2020, it said that the letter sent out for the first appointment was auto-generated and tenants could re-book dates if they so wished. Saturday appointments were not standard as they were kept for emergencies, with fewer engineers available. The landlord accepted that it had re-arranged appointments at short notice without contacting the resident first and that the contractor was late for the Saturday appointment on 7 March 2020, for which it apologised. It said that the letter from the tenancy officer contained standard wording which was used in such instances and that the landlord was not obliged to provide appointments to suit its tenants. Instead, it expected tenants to cooperate to make the necessary arrangements for access. With regard to the resident having left his job, the landlord said that it was not liable for that.
  21. On the matter of attempting to contact the resident by phone, the landlord said that it was using the number the resident had provided when his tenancy was created. As the resident was saying that this was not his number, it had been removed from his account.
  22. On 1 April 2020 the landlord clarified that it would not be taking the resident’s enquiry though its internal complaints procedure and gave the resident his referral rights to this Service.

Policies and procedures

  1. The resident’s tenancy agreement, under the heading ‘Your Responsibilities’ states: ‘You must allow our staff, agents and contractors to enter your home to inspect or carry out any work or improvements needed or to carry out gas servicing at reasonable hours of the day. We will normally give you at least 24 hours’ notice that we will be calling, unless it is an emergency.’

Assessment and findings

  1. Throughout his complaint, the resident largely based the access difficulties on his inability to take any time off work from Monday to Friday. It is not for the Ombudsman to comment on the terms of the resident’s contract of employment or to assess the validity of his claim that he had no option but to terminate that contract in order to facilitate the gas safety check. Instead, this Service considers whether the landlord acted appropriately in all the circumstances of the case, having regard to the terms of relevant policies, procedures, occupancy agreements, legislation and good practice.
  2. Whilst the landlord should use its best efforts to accommodate resident’s preferences where possible, it is not required to deliver its gas safety service around the specific requirements or employment arrangements of individual residents. This would be impractical and unfeasible and would severely impact upon the landlord’s ability to effectively manage its limited resources as a social landlord. 
  3. In light of the resident’s submission that his own job required him to work Monday to Friday without exception, it would be appropriate for him to acknowledge that the landlord’s staff and contractors also predominantly work during the same standard working week. In the absence of any provisions with the tenancy agreement or the landlord’s policies that it will offer weekend appointments as standard, there was no express obligation on it to do so. As a result, the landlord’s explanation that routine appointments are carried out during the week, with weekend working usually restricted to emergency appointments with fewer engineers available, was entirely reasonable.
  4. A reality of modern life is that, at one time or other, people are likely to be inconvenienced by having to take time off work to wait in for workmen when repairs or safety checks are required. That is not to say that the resident does not have the right to expect a reasonable service from the landlord, but rather that he may need to moderate his expectations of what a reasonable standard of service looks like. It was right that the landlord’s main concern here was to comply with its legislative requirement to carry out a gas safety check, in the interests of the safety of the resident and other tenants, rather than being concerned with the resident’s terms of employment. This position is supported by the tenancy agreement signed by the resident, which requires him to allow access in these circumstances (see paragraph 24 above). It is notable that this obligation does not have the proviso that it is subject to the resident’s working arrangements.
  5. The resident has said in his complaint that the landlord was discriminating against him because it said that ‘most tenants’ have to take time off work to allow access and he is not ‘most tenants’ because he works full time and is also gay. However, by saying that most tenants ‘have to take time off work’ the landlord is clearly presuming that its tenants are working people. It is the resident who has characterised most housing association tenants as being single parents and people working less than full time. From the available evidence, the Ombudsman is satisfied that the reference to ‘most tenants’ simply referred to the fact that the majority of the landlord’s gas safety checks were conducted, one way or another, from Monday to Friday. There is no evidence that, in using this term, the landlord intended any negative connotations in respect of the resident’s work status or sexuality.
  6. In addition, the resident appears to have resigned on 6 March 2020, despite having a Saturday appointment booked for the following day. The Ombudsman appreciates that, due to receiving the letter from the tenancy officer on 6 March 2020, the resident was in some doubt as to whether the appointment would take place but, rather than waiting to see if it would, he chose to inform his employer that he was leaving. Although the visit arranged for 7 March 2020 did not go according to plan, the resident was at least aware that the issue of wanting a Saturday appointment was not insurmountable and indeed the landlord went on to offer another Saturday visit.
  7. The resident has described the landlord’s letter of 6 March 2020 as being a hostile diatribe, designed to put him in his place as a social tenant. However, the wording of the letter is of a fairly generic nature in the circumstances. The Ombudsman has considered whether the timing of the letter was appropriate given that a further visit had already been arranged at that time. Given the resident’s response to the commonplace issue of being offered a weekday appointment – and the strong likelihood that that issue would arise again, either the following year for the next annual gas safety inspection or for any repairs issues – overall, it was reasonable for the landlord to take the opportunity to remind the resident at that time of his obligations under the tenancy agreement and the possible consequences of failing to allow access.
  8. In light of the above, the landlord cannot be held responsible for the resident’s decision to resign from his job or the effect on his lifestyle resulting from that decision. The Ombudsman therefore finds no fault on the part of the landlord in relation to the substantive complaint that it did not routinely offer weekend appointments, resulting in the resident having to resign his job.
  9. However, the landlord’s failure to provide advance notice of a visit arranged for 4 March 2020 was in breach of its policy of providing tenants with 24 hours’ notice of appointments. In addition, the resident considers that the landlord has been purposely deceitful in providing false information about the missed Saturday appointment on 7 March 2020 to support its defense of his complaint. However, based on the available evidence, the Ombudsman is satisfied that an engineer did visit that day and that the wrong photographic evidence being provided initially was a genuine mistake.
  10. The landlord has openly acknowledged that it did not provide adequate notice of the visit on 4 March 2020 and has accepted that its engineer attended outside of the agreed timeslot on 7 March 2020. It has apologised for these errors and the Ombudsman considers that this was a reasonable and proportionate response to this part of the complaint.
  11. However, the evidence indicates that there were failings in the landlord’s communication around the gas safety check and that it could have done more to ensure that it held accurate records. The contractor was sending emails about the resident’s gas safety check to the neighbouring tenant in error and, as a result, the resident would have been unaware that a visit had been arranged for 10 February 2020. The resident has also said that his neighbour was receiving text messages meant for him and that the phone number ending 274, which the landlord was calling him on, had never been his number. The landlord has not refuted this or provided any possible explanation of how this may have arisen.
  12. There was also some lack of coordination between different teams within the landlord, with the legal department sending a letter to the resident on 9 March 2020 requiring access within seven working days when its customer services team had already offered the resident a further appointment on 21 March 2020. It is likely that this was a result of the gas safety check becoming overdue, but the landlord sending mixed messages at this stage would have exacerbated the situation.
  13. This Service considers that these communication failings materially contributed to the difficulties and delays in this case and amounted to service failure by the landlord. As a result, it would have been appropriate for the landlord to consider some form of financial redress to recognize the impact on the resident. Having considered the Ombudsman’s own Remedies Guidance, a compensation award of £100 would be appropriate for the distress and inconvenience caused to the resident in this case. This sum takes into account the resident’s own conduct and his failure to fully mitigate his losses.
  14. The resident has commented that other flats in his building have not had their gas safety checks carried out in time. However, there is no evidence of the resident formally acting on behalf of any other residents, or of those issues having been taken through the landlord’s complaints process. As a result, the Ombudsman is unable to comment on these submissions (in accordance with paragraphs 25(c) and 39(a) of the Scheme). Instead, this investigation has focused on the specific complaint raised by the resident, regarding the gas safety check at his own property.

Determination (decision)

  1. In accordance with paragraph 54 of the Scheme there was service failure by the landlord in the way it dealt with arranging the annual gas safety check at the resident’s property.

Reasons

  1. The landlord failed to maintain correct contact details for the resident which resulted in communication difficulties and it also sent the resident mixed messages by offering him a later Saturday appointment but at the same time requiring a visit within seven working days.

 

Orders

  1. The Ombudsman orders the landlord to:
    1. pay £100 compensation to the resident for the identified failings;
    2. ensure that it has removed any contact details for the resident that it holds, apart from the email address used by the resident in the making of this complaint.