Notting Hill Genesis (201915134)

REPORT

COMPLAINT 201915134

Notting Hill Genesis

31 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 the landlord’s handling of matters in relation to gas safety checks at the property.

Background and summary of events

Background

2. The resident is an assured tenant of the landlord, a housing association. The property is a flat in a converted house.
3. Under the Gas Safety (Installation and Use) Regulations 1998, the landlord must arrange for an annual gas safety check to be carried out every twelve months by a Gas Safe registered engineer. The regulations allow for a check carried out ten months after the previous check to be considered to fulfil the requirements of the regulations. Appendix 3 of the regulations sets out the main points that safety check work on gas appliances and flues/chimneys serving those appliances need to address, where appropriate, in respect to which relevant industry guidance should be followed. In regards to flues/chimneys, the regulations say that that a number of requirements should be met, however how tests and checks are carried out depends to some extent on circumstances and the judgement of the competent gas engineer carrying out the work.
4. The landlord’s website explains that its contractors will contact residents up to nine weeks before the expiry date of the current safety check to make an appointment. If they are unable to gain access to the property and/or get in contact with residents, they will send another appointment letter and try and gain access at a later date. After further attempts to contact residents, if a check is unable to be carried out before the safety certificate has expired the landlord will take steps to obtain a legal notice to gain entry. The landlord’s gas safety policy adds that it will ensure that its engineers have valid Gas Safe accreditation and that contractors adhere to guidance and advice within relevant codes of practice.
5. The landlord operates a two stage complaints procedure in which it aims to respond at stage one within ten working days, and at stage two within 20 working days.

Summary of events

6. In February 2020, the landlord’s contractors wrote to the resident. They explained that homes were legally required to have a valid gas safety certificate, and to comply with this, tenants were required to provide access within eleven months of the date of the last certificate. They asked the resident to confirm a scheduled appointment or arrange a more suitable date. This investigation understands that after two such letters, the landlord wrote to the resident on 2 March 2020 and asked him to complete the service within two weeks, otherwise it would take legal action to obtain access, for which he could incur costs of up to £2,085.
7. Following this, the resident contacted the landlord and detailed dissatisfaction with how early it and the contractor wanted to schedule the annual gas safety check before the current certificate expiry. He said he had experienced contractor problems throughout his tenancy and requested that only senior engineers, supervisors or managers carry out the annual checks. He also detailed unsatisfactory interaction with staff in 2019, eight months prior, and requested to be only dealt with by housing managers going forward, a commitment he said the landlord had made in 2015 but broken. The resident supplied a letter from his doctor that asked the landlord to keep to its previous commitments, as they had been informed it had been agreed for checks to be carried out by senior engineers and for communication to be with senior managers. The resident’s account advises that prior to this, he made a request directly to the contractor for attendance by a senior engineer, and was unhappy with the contractors’ response and behaviour in respect to this.
8. The landlord responded the same month and said:
   1. It was unable to accommodate a request for a senior officer to carry out annual gas checks, as staff that attended would be qualified to do the job.
   2. It encouraged him to adhere to appointments and grant access, so that legal checks could be carried out and legal action to gain entry could be prevented.
   3. It was unable to accommodate a request to only deal with housing managers. It acknowledged and apologised for previous service but said that staff were competent to assist with housing queries.
9. This investigation understands that matters progressed to a court summons, which was subsequently cancelled, and the gas safety check was carried out on 31 March 2020. The landlord’s gas safety record for this notes a number of tests were carried out, appliances were safe to use, and no defects were identified.
10. The resident’s account raises concern that the checks were different to those of previous engineers, and states specific concern with a gas fire check. The resident’s account details that checks to the gas fire involved partial disassembly; visual inspection; ignition of the gas fire; and a test to check smoke was drawn out of the chimney. However, he raised concern that the check to ignite his gas fire singed insulation material, and that the gas inlet pipe was not disconnected; the fire and the closure/backing plate was not removed from the wall; closure plate tape was not renewed; and a smoke test was not done with doors closed. He also stated that flue/chimney checks did not involve a smoke bomb; hoovering of debris and dust; or external confirmation that smoke came out the chimney.
11. The resident contacted this Service and in December 2020, stated that his desired outcomes were for gas safety checks at his property to be carried out by senior engineers, and for all contact with his landlord to be at a manager level. To support this, he provided previous correspondence with the landlord in March 2020; his and a witness’ account of the March 2020 gas safety check; and the doctor’s letter that asked the landlord to keep to its previous commitments, as they had been informed it had been agreed for checks to be carried out by senior engineers and for communication to be with senior managers. This Service referred the complaint to the landlord which took steps to review the concerns.
12. In January 2021, the landlord’s contractor sent a letter to schedule the new annual gas check, after which the resident says he contacted the contactor to say he would be in contact to make an alternative appointment. This investigation also notes that the resident received correspondence from the Gas Safety Register, who noted it was alleged that a previous engineer had not carried out checks fully but said the landlord’s gas safety record implied tests and checks had been undertaken.
13. On 22 January 2021, the landlord issued a stage one response to the complaint:
    1. It acknowledged a request for gas safety checks to be carried out by a supervisor, and said there was no need for a supervisor to carry out the check as all engineers were fully qualified and gas safe registered. It noted the resident had stated he would not allow access for an appointment arranged for 28 January 2021, and encouraged him to allow access as it was a legal requirement and this potentially put other residents at risk.
    2. It acknowledged a request for a manager to assist with queries, not staff allocated to the resident, and that the resident reported this was the approach in 2015. It advised that this may have been due to issues or service delivery at the time, but that currently a manager would not be the resident’s first point of contact. It advised that if issues could not be resolved by staff and the resident had a legitimate complaint, a manager would investigate and take appropriate steps to resolve them.
    3. It acknowledged and apologised that the complaint response was outside the timescale of its policy, and explained that this was due to the pressures cause by the Covid-19 pandemic. It awarded £50 for delay and inconvenience, and invited the resident to clarify if his concerns had been misinterpreted or insufficiently addressed.
14. Following this, the resident said that he wanted an email address of the responder’s ‘direct boss,’ and raised dissatisfaction at receiving a text reminder for the latest annual gas check that he said he had cancelled.
15. In February 2021, this Service asked the landlord to escalate the complaint after contact from the resident, who also emailed the landlord the same month. He raised concern that the previous gas check was not carried out properly and that he had experienced unprofessional behaviour trying to book the appointment. He stated that he was insistent that all annual gas checks should only be carried out by senior engineers, and that all contact between him and the landlord was at a manager level or higher. He also requested for the new annual gas service to be scheduled to two weeks before the previous one expired.
16. On 15 March 2021, the landlord issued its stage two response to the complaint.
    1. It noted the resident requested for all annual gas safety checks to be carried out by senior engineers only. It said that it acknowledged his concerns that led to the request, but that it would not fulfil the request. It said that all engineers were fully qualified and gas safe registered and therefore appropriately trained. It said that it would be happy to assist with any issues that arose following engineers’ visits and to discuss these with relevant managers.
    2. It reviewed the resident’s request to only communicate with senior staff and said it would not fulfil this. It said that for managers to assist with issues would undermine relevant staff who were suitably qualified, trained and capable of providing assistance, and it detailed its approach to service delivery and complaint handling through which any concerns could be progressed.
    3. It noted the resident complained about administrative failings in the handling of the matter. It acknowledged there were aspects that could have been dealt with in a more timely manner, and that it had failed to respond in its complaints policy timescales. It awarded £50 in recognition of any inconvenience and distress in relation to this.
    4. It noted the resident requested for the annual gas safety check to be scheduled one week prior to the current certificate expiry of 30 March 2021. It explained that it aimed to organise gas checks well in advance of when the current certificate was due to expire to allow time to complete any works needed before a certificate lapses. It advised that if an appointment was not convenient it worked to arrange a suitable time, and it confirmed it had liaised with its contractor to schedule the gas safety inspection to 23 March 2021.
17. The resident replied to this response on 25 and 29 March 2021. He restated dissatisfaction that the gas fire was not previously removed and closure tape applied; and that the insulation material on his fire had been singed.  He reported that the contractor had rescheduled the appointment to 30 March 2021 to arrange the landlord to be present, but the landlord had informed a representative that it would not be present. He detailed that the cancellation had led to inconvenience and time and trouble rearranging appointments, and said a four month rent refund would better reflect his time and trouble in the matter. He requested for technical staff from the landlord to be present at the check on 30 March 2021, which he said was suggested by Gas Safe. Gas Safe, which was copied into correspondence, later clarified that they had said the landlord was responsible for ensuring there was a gas safety record, but they had not made any reference to required gas work or said landlord staff should be present.
18. Information provided advises that the appointment was subsequently carried out on 30 March 2021, and the landlord’s gas safety record notes a number of tests were carried out, appliances were safe to use, and no defects were identified. It was noted however that the boiler needed to be serviced and the gas fire required new ‘closers tape,’ which the landlord liaised with the resident to complete on 6 April 2021. In March 2022, the resident informed the Ombudsman that the landlord had ‘sort of’ agreed to his request for annual gas checks to be carried out by senior engineers.
19. The resident subsequently discussed the complaint with this Service and he has provided information and photographic evidence. He has detailed dissatisfaction with the landlord’s response and raised concern about handling of matters by less senior and sometimes temporary staff; the landlord’s lack of contact with his GP about their letter; and wider social housing concerns.

Scope of the investigation

20. Paragraph 39(a) of the Scheme says that the Ombudsman will not investigate 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.
21. In June 2021, the resident asked the landlord to raise a new stage one complaint, relating to his contention that the gas safety record was illegal because the checks to accurately complete the record were insufficient. This is being progressed separately through the landlord’s complaints procedure and is yet to become eligible for investigation by the Ombudsman. This investigation therefore focuses on events mainly from around December 2020, when this Service referred this complaint to the landlord, to March 2021, when this complaint exhausted the landlord’s complaints procedure. Events that pre and post-date these are referenced for contextual reasons only.
22. This Service understands the resident feels the landlord has failed to properly carry out gas checks at his property, and recognises the concerns he reports have affected and caused distress to him. In relation to the issues raised, it is not the Ombudsman’s role to make a definitive determination on whether a gas check has been carried out correctly or if a landlord has been negligent in respect to this –  as this is not within our role and expertise. The Ombudsman can assess whether, when considering issues, the landlord followed proper procedure, followed good practice, and responded reasonably, considering all the circumstances of the case – which this investigation goes on to do.

Assessment and findings

23. The landlord has a legal duty to maintain gas safety certificates on all of its properties and is responsible for taking steps to ensure this legal obligation is met. The evidence shows that the landlord fulfils this obligation by sending out letters to its tenants around two months in advance of the gas safety check becoming due, as shown by correspondence to the resident in February 2020 and January 2021. While the resident has stated dissatisfaction with how early the landlord and its contractor attempt to carry out checks, this is in accordance with the approach of other landlords and the Gas Safety (Installation and Use) Regulations 1998, which specifies that landlords may carry out checks from ten months after the previous check. This investigation understands that this approach has led to checks being carried out in summer in the past; however, while this Service can understand the discomfort of the fire being turned on in hot months for checks, there is no specific evidence this goes against relevant law.
24. The landlord’s response to the resident’s request for a senior engineer to carry out the gas check appears reasonable. It set out its position that it would not fulfil the request as all engineers were suitably qualified, and detailed how it would handle any issues that arose after engineers’ visits. More recently, the resident’s account indicates that the landlord has agreed for the annual gas checks to be carried out by senior engineers. The landlord demonstrates that it considered and responded to the request and under the law, there appears no specific obligation about the seniority of staff who must fulfil the landlord’s legal responsibility in respect to gas safety checks, beyond relevant professional qualifications. The reported recent agreement for senior engineers to carry out annual checks appears to be a positive, customer and resolution focused exercise of discretion on the landlord’s part.
25. The resident details reasons why he feels a previous gas check was not carried out properly, and in this investigation’s view it would have been customer focused for the landlord to address the resident’s account of the previous check, since this was part of the reason behind his request. However, the landlord clearly considered the request, and its explanation on how the resident could report any future issues appears overall reasonable, given the events referred to occurred nine months prior to the complaint and ten months prior to the response.
26. As noted at paragraph 22, it is not in this Service’s expertise to decide whether the 2020 check was correct, however the evidence confirms that a competent person carried out the check according to their judgement and the landlord gas safety record was completed, in line with the relevant regulations. If the resident is dissatisfied with the landlord’s position, if he has not already he has the option to obtain independent expert advice on the matter and present the findings to the landlord. This Service nevertheless understands the resident’s concerns, and a recommendation is made for the landlord to consider reviewing and confirming the type of checks that will be carried out to the gas fire in order to manage his expectations going forward, where possible.
27. The landlord’s response to the resident’s request to only communicate with senior staff appears reasonable. It set out its position on the request that it would not fulfil the request as relevant staff were suitably qualified, trained and capable of providing assistance, and it detailed how it would handle any issues that arose. This demonstrates that the landlord considered and responded to the request and explained how its approach is in accordance with its current service delivery. While from information provided and discussions this Service does understand the resident’s views, it appears reasonable for him to be asked to initially follow the same contact procedure as all of the landlord’s residents, as the landlord is expected to treat all of its residents fairly and consistently and in line with a standard procedure.
28. This investigation understands that the resident feels there should be a different approach and that there are historic issues which may have led to a more senior point of contact being appointed. It is important for a landlord to honour commitments it makes, however it is not necessarily reasonable for these to go on indefinitely and a landlord is entitled to change its mind, particularly if such an arrangement was in response to service issues five years before the complaint. This investigation notes that a doctor’s letter asked the landlord to honour its previous agreement, however this provided no additional grounds for the landlord to consider changing its position. The landlord therefore appears reasonable, based on the evidence available, to refer the resident to its standard service procedure and then to its complaints procedure, should there be any future service issues that he is dissatisfied with.
29. This investigation notes that the landlord acknowledged, apologised and compensated for not handling matters in a timely manner, which the resident indicates he was surprised by as he did not request compensation. A landlord’s service delivery is aimed to be in accordance with standard policies which, if not met, a landlord is expected to recognise and, where appropriate, provide some form of remedy. In this case therefore it was customer focused for the landlord to award a total of £100 compensation for delays it identified. This appears reasonable compensation for any delays in the landlord’s response and inconvenience caused to the resident. This investigation notes the resident feels that compensation that equates to four months’ rent would reflect the time and trouble and distress and inconvenience he has been caused, however this investigation sees no evidence under the relevant policies that this would be reasonably applicable for any service issues seen in the complaint.
30. In the Ombudsman’s opinion, the landlord’s handling of matters in relation to gas safety checks at the property, within the timeframe of the complaint considered, was overall reasonable. While the landlord delayed in response to the resident’s enquiries, it provided appropriate acknowledgement and remedy, and provided reasonable responses to the resident’s requests which were in line with relevant gas safety regulations and current standard procedures. The reported agreement for senior engineers to carry out annual checks appears to be a positive, customer and resolution focused exercise of discretion on the landlord’s part.

Determination (decision)

31. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress in the landlord’s handling of matters in relation to gas safety checks at the property.

Reasons

32. While the landlord delayed in response to the resident’s enquiries, it provided appropriate acknowledgement and remedy, and provided reasonable responses to the resident’s requests which were in line with relevant gas safety regulations and current standard procedures. The reported agreement for senior engineers to carry out annual checks appears to be a positive, customer and resolution focused exercise of discretion on the landlord’s part.

Orders and recommendations

Recommendations

33. The landlord to pay the total £100 it awarded in its responses, if this has not been paid already.
34. The landlord to consider reviewing the nature of the gas fire checks that will be conducted at the resident’s property when carrying out annual checks for the landlord gas safety record, and detailing to the resident what these will entail, in order to manage his expectations about any future checks going forward.