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Habinteg Housing Association Limited (202016907)

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REPORT

COMPLAINT 202016907

Habinteg Housing Association Limited

24 November 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 regarding:
    1. The tone of the landlord’s communication.
    2. How the landlord sought to arrange an electrical test at the resident’s property.
    3. The landlord allegedly victimising the resident.

Scope of Investigation

  1. The resident has another complaint currently being investigated by this Service, reference 202016889, relating to anti-social behaviour and the conduct of a specific member of staff. While in her correspondence with the landlord and this Service the resident has at times addressed several issues at once, the complaints have been separated and two separate investigations are being completed. While other issues have been considered and will be briefly referred to in this report – particularly in the context of the resident’s allegation that she is being victimised by the landlord – this investigation will only address the matters outlined within the complaint definition as set out above.
  2. It is also noted that, in correspondence with this Service in April 2021, the resident raised concerns regarding whether the landlord properly followed its complaints procedures as she stated she believed its Stage Three panel was only made up of one person, rather than three people. From the information available to this investigation, there is no indication that this issue has been raised with landlord previously, so it has not had the opportunity to respond. While it is not clear how many members sat on the panel, this was a decision that the landlord was entitled to make and, in this investigation, the Ombudsman has not found fault in its overall handling of the resident’s complaint. However, in order that the resident has clarity on this point, the Ombudsman has made a recommendation to the landlord at the end of this report regarding this.

Background and summary of events

Background

  1. The resident is an assured tenant of a Housing Association. She has resided at the property since 1998.
  2. The landlord operated a three-stage complaint procedure, consisting of formal complaint responses at Stages One and Two and a panel hearing at Stage Three. However, it is noted that, since this complaint, the landlord has now introduced a new, two-stage complaint procedure which is in line with the Ombudsman’s Complaint Handling Code.
  3. Section 8 of the landlord’s Tenancy Handbook notes that it has a legal obligation to carry out an annual gas safety test within each property and advises that it will ‘enforce this obligation through the courts’ if necessary. Referring to its obligations regarding electrical repairs, it cites its obligations under Section 11 of the Landlord and Tenant Act 1985 and notes it is responsible for repairs to ‘electrical wiring, sockets and switches’.

Summary of Events

  1. On 19 November 2020, the landlord emailed the resident to advise that it had not received any response following attempts to contact her and arrange an electrical periodic test. It stated that this was a mandatory repair which needed completing ‘within reasonable timescales’ and requested that the resident make contact, otherwise it would have to consider tenancy enforcement action.
  2. The resident submitted a complaint on 21 November 2020. In her complaint she raised the following concerns:
    1. The letter sent on 19 November 2020 was ‘patronising’, ‘condescending’ and the resident considered that the landlord was ‘threatening access to (her) property’.
    2. She stated that her property did not require an electrical periodic test and that she would consider any further correspondence from the landlord on the matter as amounting to harassment.
    3. She stated that she had been ‘targeted, victimised and shown prejudice for making legitimate complaints against (the landlord)’ and a particular member of staff.
  3. The landlord responded at Stage One of its complaint procedures on 30 November 2020. Addressing each point in turn, the landlord stated that:
    1. Its investigation of the complaint found that the resident had ‘failed to respond to (the electrical contractor’s) attempts to arrange access, and cards from (the landlord) requesting contact’. It stated that it had notified the resident on action that ‘may be taken’ to progress the matter and it considered this to be reasonable and the letter had been non-threatening.
    2. Regarding the resident’s assertion that the electrical test was not required, it advised that tests were carried out every five years and it aimed to ‘carry out this work prior to their expiry’. It noted that the order was placed to ensure that the test was carried out in a timely manner.
    3. In response to the resident’s concerns that she was being victimised, the landlord advised that similar work orders were raised to carry out tests in other properties within her block on the same day. It stated that it had therefore treated her ‘in the same manner as other tenants’.
  4. The resident emailed the landlord on 5 December 2020 to advise she was unhappy with its response and requested that her complaint be escalated. Some of the issues raised by the resident are outside of the scope of this investigation, as noted above. However, within her complaint she noted:
    1. Her electrical test was not due until October 2021, so she did not accept that it needed to be done a year in advance and held that this was further evidence of the landlord harassing and victimising her and it should apologise for its ‘mistake’.
    2. She continued to be harassed and victimised by the landlord because she had made complaints against it and individual members of staff.
    3. She had an ongoing complaint regarding to anti-social behaviour (outside of the scope of this investigation) but while the landlord had not responded to her concerns promptly, in this instance it was able to send her letters about the electrical test.
  5. On 11 December 2020, the landlord issued its Stage Two complaint response. In its reply to the resident, it noted that, following its further complaint investigation:
    1. It was satisfied that it ‘had cause’ to contact the resident regarding her lack of response to its attempts to arrange an electrical inspection and that the letter it had sent was not threatening in nature. It did not uphold her complaint.
    2. It advised that it was not satisfied with the work carried out by its previous contractor and therefore had sought to ‘pull forward’ electrical inspections so it could be ‘absolutely satisfied that your safety is not compromised’. The landlord reiterated that it believed the test was necessary but partly upheld the resident’s complaint as it accepted its Stage One response did not provide a full explanation of the circumstances and facts. It outlined that, as a learning outcome, it would be more closely monitoring its contractors.
    3. It had contacted all residents who had had their electrical checks carried out by the former contractor and attempted to ‘bring forward the dates of all their inspections’. It did not believe it had treated the resident any differently and therefore did not uphold her complaint regarding being victimised or targeted.
  6. The resident requested that her complaint be escalated to Stage Three of the landlord’s complaint procedure the same day. Although some of the points raised are again outside of the scope of this investigation, within her escalation request, the resident stated:
    1. She was unhappy with the explanation she had been given regarding the electrical tests, noting that while the landlord’s Stage Two response advised that the tests were being brought forward due to it its dissatisfaction with the previous contractors, she believed that the last test, carried out in 2016, was carried out by the same contractor who would carry out the new test. She requested that the landlord provide letters from each contractor, on their respective headed paper, to confirm who carried out the test in 2016.
    2. In her Stage One complaint, she had requested to not be contacted further regarding the electrical test, but she had received a further email from her Neighbourhood Coordinator on 26 November 2020 which she considered was done to victimise and harass her.
    3. She was unhappy with being asked to ‘engage with staff on site’ as she considered certain members of staff to be racist and that she would have been treated differently by the landlord if she was white.
  7. On 21 January 2021, the landlord wrote to the resident to outline the findings of its Stage Three Panel hearing, which it advised took place on 14 January 2021 and considered the issues raised within this complaint at the same time as another complaint the resident had open. The landlord provided its separate response to the points raised regarding this complaint and noted:
    1. The Panel did not consider that the landlord’s November 2020 letter regarding the electrical test was threatening and considered that it had a duty to inform residents of ‘any possible consequences’ which relate to health and safety so as to protect its tenants. It concluded it was reasonable to send a letter as its contractor had made failed attempts to arrange access.
    2. The landlord clarified that electrical testing took place every five years ‘to comply with legislation’ and the Panel noted that, from the evidence it had been provided, the testing programme had been brought forward as the resident’s electrical testing was not due until October 2021. The landlord clarified that its former contractor was no longer employed due to concerns over ‘poor performance…attributed to health and safety checks undertaken earlier’. The landlord agreed the resident’s complaint should be partially upheld as there had been a ‘lack of communication’ with the resident regarding the reason why the electrical testing was being carried out early. The landlord apologised for this.
    3. The Panel advised that there was ‘insufficient evidence’ that the resident was being targeted and/or victimised although it did not provide any further details of the evidence it had considered.

Assessment and findings

  1. Landlord records show it began to contact tenants in the resident’s block in October 2020 regarding the arranging of electrical periodic tests in their homes. Having not received a response from the resident, the landlord wrote to her in November 2020. While in her complaint the resident advised she felt the tone of the landlord’s letter was ‘patronising’ and ‘condescending’, the landlord’s letter advised it needed to carry out the checks ‘within a reasonable timescale’ and requested she get in contact to arrange an appointment. This was a reasonable step for the landlord to take and, in the Ombudsman’s opinion, the letter made its position clear in a polite way, without seeming to talk down to the resident.
  2. However, in its November 2020 letter to the resident the landlord advised that the electrical checks were a ‘statutory obligation’ and that ‘failure to comply in allowing us reasonable access…is a breach of your tenancy and can and will result in tenancy enforcement action to allow us to gain access’. It is noted that while the landlord’s website advises that ‘to ensure the safety of our tenants, all of our properties undergo electrical testing once every five years’ and notes that ‘Periodic Electrical Testing is essential’, there is no mention of the tests being statutory or mandatory within the landlord’s Tenancy Handbook. As this Service has not seen a copy of the resident’s tenancy agreement, only a deed of assignment document which does not stipulate specific tenancy conditions, it is not clear which tenancy condition or legislation the landlord relied on when it advised the resident that the test was mandatory. In its responses, the landlord also did not specify, or quote from, any part of the resident’s tenancy agreement that it considered to be relevant. This was not appropriate and meant that the landlord missed an opportunity to provide further clarity on the matter.
  3. The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 stipulates that private sector landlords are obligated to carry out electrical periodic testing every five years, but this does not cover the social housing sector in England. While the Ombudsman is clear that considers the landlord’s policy to carry out five yearly electrical inspections of its properties to be a positive step for it to take, and from knowledge of the sector it is evident that many Housing Associations have voluntarily adopted similar policies, unlike with annual gas safety checks (covered by the Gas Safety (Installation and Use) Regulations 1998) , it is not clear that it would have grounds for tenancy enforcement action if the resident did not comply with its request.
  4. It is also noted that, from the information available to this investigation, the resident does not appear to have raised any objection to the test being carried out – there were no issues with the previous test being carried out in 2016 and, in her complaint correspondence with the landlord, she advised that she was happy to deal with the contractor directly when the test was next due in 2021. As a result, while the Ombudsman is satisfied that the landlord’s letter was not overly threatening, and does not appear to be indicative of harassment, it was not appropriate for it to reference tenancy enforcement action without being clear on what grounds it believed it would be able to act on. Its reference to taking enforcement action is like to have caused the resident distress and concern, especially as she had expressed that she was happy for the test to be completed but was querying the need for it to be done early. From the information available, it is not clear if grounds for such enforcement actions exist, so an order has been made at the end of this report for the landlord to clarify this with the resident.
  5. Irrespective of its right to conduct enforcement action, it is not disputed that the landlord operates a policy to carry out electrical periodical checks in its properties every five years. In its responses to the resident, the landlord advised that it had concerns over the previous tests carried out by its former contractor and was therefore seeking to bring forward tests that were not due until 2021. In the Ombudsman’s opinion, this was a reasonable step for it to take and demonstrated that it took its tenants’ health and safety seriously. While the resident queried the need for the test to be done early, there was no obvious detriment caused to her by the landlord wanting to carry out a safety check early, apart from the requirement to provide access. Given that the landlord had concerns about the previous checks that had been completed, whilst the request to complete the next testing earlier than scheduled would have caused some inconvenience to the resident, it could also have ensured her safety in her home.
  6. In her complaint the resident also queried the landlord’s explanation, referred to above, about it changing contractors. In her complaint submissions, she supplied a photo of a sticker provided from her previous test in 2016 which she stated showed that the contractor the landlord said it was unhappy with was the same one it was now asking to carry out the tests due in 2021. However, from the information available, including the photo evidence the resident provided, the landlord’s version of events appears to be reasonable. It stated it had concerns over the tests carried out by its former contractor in 2016, and that contractor is the one named on the sticker (as per the resident’s photo) to show who carried out the previous test. It was reasonable for the landlord to advise that it had asked the new contractor to carry out the next tests early. It was also appropriate that, in its Stage Two and Stage Three responses, it acknowledged its Stage One response should have provided further information regarding this to the resident. It was appropriate that it apologised to her for its poor communication over the matter and it was reasonable that it highlighted identified learning from the case, which included reiterating to staff ‘on the requirement to ensure that where there are changes to services, tenants are communicated with’.
  7. With regards to the resident’s concerns that she is being targeted and victimised by the landlord, although this Service is aware that this complaint is one of several the resident has made against the landlord and there is therefore a wider context to the issue, from the evidence available to this investigation, there is no evidence that the landlord was singling her out or acting differently towards her than it was to other tenants. While it may have been incorrect in advising that it could take enforcement action regarding the electrical testing, its records show that its decision to bring the tests forward was one that impacted several tenants in the resident’s block equally. As noted above, there may have been some inconvenience caused to the resident by the landlord seeking to carry out a safety check ahead of schedule, but the landlord’s reasons for doing so were understandable. It also showed that, rather than victimising the resident, the landlord appeared to be ensuring her safety and treating that as a priority. There is no evidence that it dealt with her differently when it, or its new contractor, contacted her to arrange the electrical tests.
  8. However, while the landlord’s position that it was not targeting the resident over this issue was reasonable, in the Ombudsman’s opinion, its Stage Three response should have provided more detail as to how it reached that conclusion. While it had addressed the matter in its Stage One and Two responses, its Stage Three response on the issue was too brief and did not provide any explanation regarding how it supported its conclusion or give any indication as to how it had further considered the issue once the complaint had been escalated. This was not appropriate, although it otherwise responded to her complaint promptly and appropriately in accordance with its complaint procedures.

Determination (decision)

  1. In accordance with Paragraph 55 of the Housing Ombudsman Code, there was no maladministration regarding:
    1. The tone of the landlord’s communication.
    2. The landlord allegedly victimising the resident.
  2. In accordance with Paragraph 55 of the Housing Ombudsman Code, there was service failure regarding how the landlord sought to arrange an electrical test at the resident’s property.

Reasons

  1. It is evident the resident was unhappy with the landlord’s approach to the arranging of an electrical test and in particular the tone of its letter. Whilst the resident’s views are acknowledged and this Service understands she was caused upset by the landlord’s correspondence, in the Ombudsman’s opinion, the landlord’s letter regarding the electrical check did not appear to talk down to the resident and it explained its position in a clear and polite way.
  2. However, in its letter the landlord also referred to the possibility of tenancy enforcement action being taken against the resident without outlining which tenancy condition or legislation it considered she would be in breach of if she did not allow the test to take place. While the tone of the letter did not appear to be threatening overall, the mention of enforcement action was not appropriate and would have caused the resident distress. The landlord also did not appropriately address this aspect within its responses or acknowledge that there was no indication the resident was refusing to allow the test to take place.
  3. The landlord’s explanation for seeking to arrange the electrical test ahead of schedule was reasonable. It was also appropriate for it to acknowledge that it could have better communicated its position to the resident to begin with.
  4. There is no evidence that the landlord has targeted the resident. From the information available, it did not treat her differently when it attempted to arrange electrical tests and while its reference to enforcement action within its November 2020 letter may have been erroneous and, as above, was liable to cause her distress, it does not indicate that it sought to victimise her.

Orders and Recommendations

Orders

  1. The landlord should, within four weeks of the date of this letter:
    1. Apologise to the resident for threatening enforcement action and pay her £50 in compensation to reflect the distress this would have caused.
    2. Write to the resident to provide further details of its policy regarding electrical testing, confirm whether enforcement action exists and, if so, specify the legislation or section of her tenancy agreement this falls under.

Recommendations

  1. The landlord should write to the resident to clarify how many people sat on the Stage Three panel which investigated her complaints in January 2021.