Waltham Forest Council (202010446)

REPORT

COMPLAINT 202010446

Waltham Forest Council

3 March 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:
   1. The landlord’s decision to force entry for a gas safety inspection at the resident’s property.
   2. The landlord’s handling of the resident’s reports of a gas leak.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. The landlord’s decision to force entry for a gas safety inspection at the resident’s property.
4. When raising the complaint, the resident disputed the procedures the landlord followed prior to it seeking a warrant to enter the premises and then forcibly entering the property to undertake a gas safety inspection. The resident has suggested that the landlord’s decision to force entry was heavy-handed and obtained on false information.
5. Paragraph 39(h) of the Scheme states that the Ombudsman will not consider matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings. As a result, this matter will not be assessed or considered within this report.

Background and summary of events

Background

6. The resident is a secure tenant of the landlord, which is a local authority. The property is a flat in a communal building.

Legal and policy framework

The Tenancy Agreement

7. Clause 1.57 of the tenancy agreement relates to providing the landlord access to the property to undertake a gas safety check. This states as follows:
   1. “At least once in every calendar year, if there is a gas appliance in your home, you are required to grant access to your home in order that [the landlord] may carry out a gas safety check. This is very important because your health and safety is at risk if this is not checked. You will be given advance written notice of the date when access is required. If you fail to grant access as required, you irrevocably agree that [the landlord] may gain access to your home by forced entry for the purposes of carrying out the gas safety check, providing you are first given not less than 48 hours advance written notice of this. This notice will be delivered by hand to your home. In the event that a forced entry takes place, the Council will re-secure your home and make arrangements to provide you with a set of the new keys. You will be charged for the costs of the forced entry, lock change and new keys”.

Gas safety policy

8. The landlord describes the main objective of its gas safety policy as to ensure it meets the statutory requirements for the gas installations it is responsible for. It also, in part, describes the policy’s other objectives as to:
   1. Ensure that gas appliances and fittings are properly inspected and maintained so that they remain in a safe, efficient condition, minimising the risk to residents and others and ensuring maximum fuel efficiency.
   2. Ensure compliance and that any defects are identified at an early point and mitigated as required by the Gas Safety (Installation and Use) Regulations 1998 (GSUIR)
   3. Sustain the good quality and good condition of [the landlord’s] housing stock in respect of gas appliances and fittings
   4. Ensure that an annual gas safety check and servicing is carried out on all gas appliances and fittings where [the landlord] is responsible for their maintenance.
   5. Ensure that relevant officers are complying with all relevant safety guidelines and best practice and adhering to policies and procedures.
   6. Demonstrate commitment to continuous safety improvement.

Repair policy

9. The landlord’s repairs policy categorises its type of repairs and its response times as follows:
   1. Emergency (respond within 24 hours). Faults or disrepairs that constitute a safety hazard or which make a property uninhabitable.
   2. Urgent (respond within five calendar days). Faults or disrepairs that require prompt attention, but which do not constitute an emergency; works to address any significant repair barriers to the normal habitability of the dwelling; or works to address chronic disrepair that might result in damage if left unattended for any significant time.
   3. Routine (respond within 21 calendar days). All other incidents, faults or disrepairs that do not fall within the Emergency or Urgent categories; works to address any minor repair barriers to the normal habitability of the dwelling, or works requiring specialist materials, components or subcontractors; or materials or components that cannot be procured off-the-shelf and need to be ordered.
   4. 45-Day (respond within 45 calendar days). Works that cannot realistically be delivered within 21 days due to their nature or complexity; works costing more than delegated budgets levels to the contractor; works that are unplanned capital works/elemental replacements and not day-to-day repairs; or significant repairs to boundaries, damp works or roofing which must be recommended by a surveyor and approved by a manager before works can be started.

Complaints policy

10. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within 20 working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 25 working days. This will be the landlord’s final response to the complaint.

Summary of events

11. On 30 July 2020 the landlord wrote to the resident to arrange a gas safety check for 27 August 2020 and also sent a second letter on 20 August 2020 as a reminder. The gas engineer’s notes on 27 August 2020 stated that the resident had called to rearrange the appointment to 8 September 2020.
12. The gas engineer’s notes on 8 September 2020 stated that the appointment did not go ahead as no access was given to the property. The resident then called the landlord to inform it that she had forgotten about the appointment. A third appointment was arranged for 15 September 2020.
13. The gas engineer’s notes of the 15 September 2020 appointment stated that it did not go ahead as they were informed by the resident that a member of her household was isolating due to Covid-19. The notes go on to state that the engineer advised the resident on what would happen next after three failed appointments.
14. The landlord sent a hand delivered letter to the resident on 15 September 2020 asking her to contact it within 48 hours to arrange an appointment and that it may apply for a warrant of entry to the property if an appointment was not agreed.
15. The landlord was granted a warrant to enter the premises by the court on 24 September 2020. The landlord wrote to the resident on 28 September 2020 to inform her that it would attend the property on 2 October 2020 and that if she failed to grant access it would forcibly enter the premises to carry out gas safety and smoke alarm checks.
16. On 2 October 2020, the landlord forced entry to the property and undertook the gas safety check. During the check, the engineer discovered a fault with the boiler flue. The gas was capped, and an appointment arranged for 6 October 2020 to replace the flue and reconnect the gas supply.
17. On 15 October 2020, the resident reported a gas leak to her gas supplier, which was described to the landlord in later correspondence as a smell of gas from the gas meter. It was determined that a washer on the meter was leaking at a rate of 2mbar. The washer was replaced, and the issue resolved.
18. On 23 October 2020 the Health & Safety Executive (HSE) contacted the landlord and requested further information from it relating to the work carried out by its contractor. The contractor completed a RIDDOR (Reporting of Injuries, Diseases and Dangerous Occurrences Regulations) gas safety register response form.
19. On 26 October 2020, the HSE informed the landlord that due to data protection regulations it was unable to share its investigation into the contractor. However, no further action was taken.
20. On 14 December 2020 the resident contacted this Service to state her dissatisfaction with how the landlord had handled the gas safety check and the gas leak in the property. Following further correspondence, this Service wrote to the landlord on 19 March 2021 and set out that the resident was dissatisfied with:
    1. The landlord’s handling of the resident’s reports of a gas leak. The resident explained that after the landlord reconnected the gas supply, there was a gas leak for one week which resulted in her requiring medical attention.
21. The landlord wrote to the resident on 19 March 2021 and confirmed that it would open a formal complaint into the matter. A stage one complaint response was sent to the resident on 20 April 2021. The landlord informed her that:
    1. During the gas safety check, the gas engineer found the boiler flue to be faulty. An appointment was arranged for 6 October 2020 to replace the flue, a safety check was then carried out and a gas safety certificate was issued.
    2. Following a report of a gas leak made by the resident on 15 October 2020, an investigation was undertaken by the HSE. No further action was taken against the landlord or its contractor. The contractor also undertook an investigation of the last ten jobs completed by the gas engineer, which were found to be “of a high standard, safe and compliant”.
22. The resident contacted the landlord on 28 April 2021 and requested an escalation of the complaint. The landlord’s notes describe the resident’s grounds for the request as:
    1. She noted that the outcome of the HSE investigation did not prove that the gas engineer was not responsible for the leak.
    2. As a resolution to the complaint, the resident requested that the landlord’s conduct was looked into by an independent body and to be compensated for the stress and inconvenience caused by the gas leak.
23. The landlord provided a stage two complaint response to the resident on 20 May 2021. It first explained that in regard to the resident’s request for an independent review of the case to be conducted, that it had no remit through its corporate complaints procedure to do that and also that it would not seek to replicate the investigation already carried out by the HSE.
24. The landlord addressed the gas leak and informed the resident that it stood by its position as stated in its stage one response and noted that the HSE had referred the issue to the Gas Safe Resister, who had investigated the matter on their behalf, and no further action was taken.
25. The landlord concluded the response by stating that it had declined the resident’s request for compensation as it had found no evidence of service failure. It then informed her that she had exhausted its internal complaint process and advised her on the steps to take to bring her case to this Service if she remained dissatisfied.
26. In an email sent to this Service on 8 July 2021, the resident explained that she believed that the landlord’s actions on 6 October 2020 had caused the gas leak in her property.

Assessment and findings

The landlord’s handling of the resident’s reports of a gas leak.

27. As previously stated, it is not within the jurisdiction of this Service to consider the events relating to the gas safety check. However, the Ombudsman can look at the repair made by the landlord to the boiler flue and the resident’s subsequent report of a gas leak.
28. The landlord has provided the work notes from the visits to the property on 2 and 6 October 2020. This showed that during the gas safety inspection on 2 October 2020, the gas engineer observed damage to the boiler flue. A warning notice was issued, and the gas supply capped. On the notice, the engineer recommended that the flue was replaced.
29. The landlord raised an urgent repair for 6 October 2020, where a new flue was fitted and the gas supply restored. The landlord has provided a copy of the gas safety certificate that was issued following the completion of the work.
30. Following a report of a gas leak made on 15 October 2020, the HSE contacted the landlord regarding the work that had been undertaken on 2 and 6 October 2020. As part of its evidence, the landlord has provided a copy of the RIDDOR response form filled in by its contractor, the correspondence between the contractor and the HSE, and the correspondence between the landlord and the HSE.
31. In the response form, the contractor stated that on 2 October 2020 it had found a hole in the boiler flue, the appliance was made safe, and the gas meter disconnected. The contractor then stated that on 6 October 2020 it installed a flue extension and two flue seals, tested the extension and seals which were found to be working correctly, and its engineer issued a recommission certificate.
32. The landlord’s correspondence with the HSE states that it sought a copy of its investigation. It was informed that due to data protection regulations that this would not be possible but was made aware that no action would be taken against the landlord, the contractor or the gas engineer.
33. Overall, the landlord has followed both its repair policy and gas safety policy in responding to the damaged flue. When the issue was discovered, the appliance was made safe and the landlord informed by the gas engineer. A work order was raised as an urgent repair and attended to within the five working day timescale. The flue was replaced and a recommission certificate was issued in line with the landlord’s gas safety policy.
34. When it was informed by the HSE that the resident had reported a gas leak on 15 October 2020, it cooperated with the subsequent investigation and provided all the requested information. The contractor also undertook an internal investigation of its gas engineer and found no issues with the quality of work from the last ten jobs the engineer had attended.
35. Although it was not possible for it to receive a copy of the investigation completed on behalf of the HSE by the Gas Safe Resister, the landlord was made aware that no action would be taken. Therefore, there is no evidence of service failure in how the landlord handled the resident’s reports of a gas leak.
36. The resident also informed the landlord that she required medical treatment as a result of the gas leak. The Ombudsman does not doubt the resident’s comments regarding her health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts as a personal injury claim.
37. This is in line with paragraph 39(i) of the Housing Ombudsman Scheme, which states 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”. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident and how the landlord responded.

Determination (decision)

38. In accordance with paragraph 39(h) of the Scheme, in respect of the landlord’s decision to force entry for a gas safety inspection at the resident’s property, the Ombudsman has determined that this matter was outside of this Service’s jurisdiction.
39. In accordance with paragraph 54 of the Scheme, there was no maladministration in respect of the landlord’s handling of the resident’s reports of a gas leak.

Reasons

40. The landlord followed its repairs policy and gas safety policy during the appointment on 2 October 2020 which discovered the damaged flue, and the appointment on 6 October 2020 which replaced the flue.
41. Following the HSE investigation, an NFA (no further action) decision was given. Therefore, there is no evidence of service failure by the landlord or its operatives during the two appointments.
42. It is not within the jurisdiction of this Service to consider elements of the complaint relating to the landlord’s decision to seek a warrant to enter the premises.