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The Riverside Group Limited (202118184)

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REPORT

COMPLAINT 202118184

The Riverside Group Limited

3 May 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 response to the resident’s reports regarding its contractor’s attendance at his property.
  2. The complaint is also about the landlord’s complaints handling, in particular its response times.

Background and summary of events

Background

  1. The resident has been an assured tenant at the property of the landlord since 15 February 2016. The landlord is a registered provider of social housing.
  2. The landlord operates a two stage complaints policy. The policy notes a landlord should agree a timeframe for its investigation and response within 10 working days of the complaint. A stage two response should also be provided within 10 working days of an escalation.
  3. The landlord operates a compensation policy. The policy notes it may offer £50-£200 for a “medium” impact service failure.

Summary of events

  1. The landlord has provided this service with copies of communications between itself and its repair contractor. Due to the government’s restrictions and guidelines relating to the COVID-19 pandemic, which were in place during the period of the complaint, the landlord contacted its repair contractor on 26 June 2020 and advised its position on COIV-19 safety measures. It advised that the contractor was required to carry out its own risk assessments to ensure the safety of its staff and that it was complying with the government guidelines and restrictions. Additionally, it advised that while the government guidelines did not state that facemasks were mandatory, it nevertheless required that all operatives entering residents’ properties and working in communal areas must wear masks.
  2. In or around early December 2020, the landlord arranged for repair contractors to replace the smoke detector system at the building in which the resident’s property is located. This included entering residents’ properties to replace the individual smoke detector units.
  3. Following the works, the landlord contacted all residents on 14 December 2020 and advised that one of the operatives had since tested positive for COVID-19. It assured residents that “all of the necessary safety precautions as set out in Government Guidance were taken,” and recommended that residents follow the government’s guidance should they develop any symptoms.
  4. On the same date, the resident raised a complaint with the landlord regarding its decision to allow the contractor’s operatives to work in the building as they had come from a higher risk ‘Tier 3’ area to a lower risk ‘Tier 2’ area to carry out the works. He also advised that he had observed that two of the operatives had not been wearing protective white suits or face masks while in his property.
  5. On 15 December 2020, the landlord acknowledged the resident’s complaint and advised it was seeking a response from its ‘compliance team’. On 16 December 2020, the resident also expressed concerns that the landlord’s letter advising an operative had COVID-19 had not instructed residents to self-isolate.
  6. On 18 December 2020, the landlord advised it was investigating the complaint and seeking to speak with the contractors and other residents regarding the concerns. The landlord advised it would keep the resident updated but did not provide a timeframe for its response.
  7. On 6 January 2021, the resident requested a further update. The landlord replied on 12 January 2021 that it had spoken with its contractors and was now seeking further comments from other residents.
  8. It is not evident that the resident received any further updates, leading him to make a further request on 6 July 2021. On the same date, the landlord apologised for its lack of response and advised its ‘health and safety team’ were still carrying out an investigation, and that its formal response would follow.
  9. The landlord provided its stage one response on 15 July 2021. Regarding the resident’s concerns about the contractor’s operatives travelling between locations in different tiers, the landlord noted that the government’s advice was that essential workers were allowed to do this. It also advised that it considered the works to the smoke detector system to be essential. Regarding the safety precautions taken, it provided a copy of the contractor’s risk assessment and noted that it had previously advised residents that if they were uncomfortable with the operatives entering their property, they could request that works to their property be postponed. The landlord also advised that its health and safety team had reiterated to its contractors that they must adhere to all PPE guidance given to them.
  10. On 29 July 2021, the resident expressed his dissatisfaction with the landlord’s response and advised that he disagreed that the works were essential given that the previous smoke detectors still worked, and that the landlord had noted the works could be postponed. He also disputed that the landlord had provided any advice that residents could request works to their property could be postponed. Regarding the contractor’s risk assessment, he expressed concern that it stated that medical masks were not required, which he noted was not in line with the landlord’s guidance. The resident subsequently requested that his complaint be escalated.
  11. The landlord acknowledged the resident’s request on 11 August 2021 and noted that the resident wished for the complaint to include the landlord’s complaints handling.
  12. On 18 August 2021, the landlord provided its stage two response, which included the following:
    1. It agreed with the resident’s position that no written advice had been given to residents advising that they could request the works be postponed but advised that it would have allowed such a request. The landlord also accepted the resident’s point that given that the works could be postponed, it was “not actually ‘Essential’ to be done at that time.”
    2. Regarding the contractor’s risk assessment, the landlord noted that it stated that face masks need not be worn. It then advised that the contractor had been both “correctly appointed,” but also that they “should not have been approved.” It did not clarify these two conflicting positions but noted that its policy was that masks should be worn.
    3. Regarding the letter sent to advise residents an operative had tested positive for COVID-19, the landlord conceded that this “was of limited reassurance,” for residents, and that it had not provided residents with any further reports, contrary to the recommendations of its health and safety team.
    4. Regarding its complaints handling, the landlord noted that its internal complaints handling procedure had not been followed correctly, which had led to a delay in the complaint being registered, and subsequently to a delay in providing its stage one response.
    5. The landlord concluded that there had been “agreed failings” in its response, and subsequently it offered £100 compensation and an apology.
  13. On 19 August 2021, the resident expressed his dissatisfaction with the landlord’s response and advised he had hoped for it to have commented further on the contractor’s risk assessment. He also wanted it to have commented on its failure to advise residents to self-isolate. It is evident that the landlord subsequently offered to arrange for a review of the case by senior members of its staff, which it advised would occur in October 2021. The resident agreed to this further review.
  14. On 27 October 2021, the landlord advised it had completed its review meeting and would shortly provide a report, which it did on 2 November 2021. The review confirmed the landlord’s position that it considered the works to have been essential given that they were required for compliance purposes. It also advised that two members of the landlord had assessed the contractor’s risk assessment and that they were satisfied, given it was the landlord’s additional requirement that all operatives wear masks, and that it had informed the contractor of this.
  15. Regarding its complaints handling, it reiterated its apology and offer of compensation for the delays. It also advised that it would review its processes, including the information provided to residents prior to works commencing.
  16. Following the review, the resident advised he remained dissatisfied with the landlord’s responses and requested a copy of the landlord’s health and safety team’s report, which it provided on 13 December 2021. This report noted that the investigation was “inconclusive,” but that the landlord had informed the contractor that it had received reports its operatives were not using correct PPE. It also noted that following the contractor’s operative contracting COVID-19, the contractor was not going to be used to complete the works.
  17. This service has been provided with an investigation report carried out by the landlord in “December 2021.” The report noted that the smoke detectors had a 10-year operational life, which had now expired, and that the works to replace them was essential to ensure accurate fire detection. The report also noted the steps taken at the time of the resident’s complaint that the landlord had taken to investigate. The landlord had attempted to review CCTV to view the operative not wearing a mask, but the footage was no longer available as it was written over every seven days. The landlord had also obtained a statement from the contractor manager. The manager advised that they had spoken with their operatives, who had denied not wearing the correct PPE. The manager also advised that one of the operatives had been investigating for asbestos, and so had worn a full protective suit and heavy-duty mask. The other two operatives were only wearing basic face masks, and so the manager queried whether this could have caused confusion for residents. The manager further noted they had carried out spot checks on their staff and found they were always wearing masks when the checks occurred. The resident has advised this service that he has not been provided with this report.

Assessment and findings

‘Essential’ works

  1. The Ombudsman’s position on works carried out during periods of COVID-19 restrictions is that landlords should have continued to carry out works where possible, but that it was reasonable to have a reduced service (i.e. only urgent works) where this was not possible. The Ombudsman would therefore consider it reasonable to carry out any works so long as reasonable precautions were taken.
  2. The landlord’s report dated “December 2021” identified that there was a need for the smoke detectors to be replaced as they had reached the end of the operational life. The landlord also noted this position in its stage one response, and its review following its stage two. The resident, in his communications with the landlord, disputed the works were essential on the basis that the smoke detectors still functioned. While this may have been the case, given that they had reached the end of their operational life, they could no longer be relied upon, and so it was reasonable for the landlord to seek to renew them.
  3. The resident also disputed that the works were essential given that the landlord accepted they could be delayed at a resident’s request. In its stage two response, the landlord accepted it was “not actually ‘Essential’ to be done at that time.” The Ombudsman considers there to be a distinction between ‘essential’ works, and ‘urgent’ works. Given that the previous smoke detectors still functioned, the works were not urgent, but they were nevertheless essential in order for the landlord to comply with its obligations to have dependable smoke detectors. The landlord’s statement in its stage two report that it was not essential that the works were done “at that time” is therefore accurate, but its position that the works were nevertheless essential, as set out in its later review report, remained true. As noted above, the Ombudsman considers it reasonable for landlords to have continued to carry out works were possible, and so it was reasonable that the landlord sought to carry out these works.

Information provided about the works

  1. The resident was alerted to the landlord’s position that the works could have been delayed due to the landlord stating in its stage one response that it had informed residents they could request a delay of the works. The resident disputed this was the case, which led to the landlord admitting in its stage two response that this was not the case. While the landlord acknowledged this was incorrect in its stage two response and advised in its ‘review’ that it would review its processes regarding the information given to residents prior to works, it stopped short of offering an apology for this misinformation.
  2. While it is not evident that the landlord was required to inform resident’s they could refuse the works, the landlord’s misinformation would have caused confusion and frustration for the resident and led him to expend time and trouble in chasing up his concern. Its subsequent failure to adequately remedy this with an apology would have caused further frustration and its explanation that it would still have agreed to postpone the works at a resident’s informal request was not sufficient to explain the misinformation. In the circumstances, this amounted to service failure, for which an amount of £50 compensation is appropriate.

Tiers

  1. This service has not received any evidence to suggest that the landlord had a policy preventing operatives working at its properties that came from a higher tier location, nor was this identified as a risk in the contractor’s risk assessment. It is also not evident that the landlord had prior knowledge that the operatives were coming from a higher tier prior to the works commencing. Given that the government guidance allowed for travel between tiers for essential workers, the landlord’s position that it did not have any requirements regarding this was reasonable. The landlord’s stage one response appropriately confirmed this position.

COVID-19 advice

  1. Following it being informed that an operative had tested positive for COVID-19, the landlord appropriately sent a letter to all residents. The letter advised that “all of the necessary safety precautions as set out in Government Guidance were taken.” As discussed below, the resident had concerns that the operatives had not worn face masks, contrary to the landlord’s requirements. Given that these requirements were in addition to the government’s guidelines, which did not require face masks, its advice to residents that the safety precautions set out in the government guidance had been followed was accurate.
  2. The resident has also raised concerns that the letter did not demand that residents self-isolate. Instead, it merely referred them to the government’s guidance following an exposure. The landlord’s duty is to provide housing services to its residents. It is not the appropriate body to enforce COVID-19 regulations, nor does it have the power to. The appropriate body to enforce COVID-19 regulations is the police. It would not have been appropriate to demand that residents self-isolate.
  3. While the landlord’s stage two response noted the letter would have been of “limited reassurance,” its referral to the government’s guidelines was nevertheless reasonable and proportionate in the circumstances.
  4. The resident has noted that the landlord’s health and safety team report identified that residents should have been provided with a copy of its report, which the landlord acknowledged it had not done. This concern did not form part of the resident’s initial complaint, however, and so is beyond the scope of this investigation.

Face masks

  1. It is not disputed that the government guidance at the time of the complaint did not require face masks. It was nevertheless the landlord’s position that face masks should be worn by all operatives entering a resident’s home. This service has been provided with evidence that prior to the works, the landlord informed the contractor that it required face masks to be worn.
  2. Following the resident’s complaint that he had witnessed operatives not wearing face masks, the landlord appropriately advised him that as part of its investigation, it was seeking to speak with the contractors. Based on the landlord’s investigation report dated December 2021, the landlord appropriately informed the contractor of the complaint. The contractor’s manager appropriately discussed it with the operatives and also advised that during their spot tests on the site, face masks had been worn. The landlord also appropriately sought to review CCTV to corroborate the complaint.
  3. These steps in an investigation are what the Ombudsman would expect and would consider best practice. Given that the operatives denied not wearing masks, and there was no specific evidence to support the resident’s complaint, the Ombudsman would expect a landlord to provide a detailed report of its investigation to the resident, and explain that in the absence of evidence, it was unable to make a determination either way, but that it had reminded the contractor of the importance of wearing face masks. The landlord did not do this, however.
  4. Despite having previously advised the resident it was seeking to speak with the operatives (which it also noted was the cause of the delay to its stage one response, discussed further below), the stage one response did not include any information about the landlord’s investigation or the outcome, and merely advised it had reiterated to its contractors that they must use PPE. This would have caused frustration for the resident, as his expectations about the landlord’s investigation had been raised but then not realised.
  5. Following the resident’s further concerns that the contractor’s risk assessment stated face masks were not required, the landlord’s stage two response acknowledged this, but then somewhat confusingly stated that the contractor had been both correctly appointed and also that it shouldn’t have been approved.
  6. The landlord’s stage two response did note that in spite of the contractor’s risk assessment, it had nevertheless informed them that face coverings must be worn. The landlord appropriately reiterated this position in its later review. In the Ombudsman’s opinion, regardless of the contractor’s view on face masks, the landlord had taken reasonable steps to inform the contractor that face masks would be required for all operatives.
  7. All three of the landlord’s responses, however, fell short of what the Ombudsman would expect. It failed to provide details of its investigations, despite having raised the resident’s expectations that it would, and despite having multiple opportunities to have done so. Having failed to give the responses of the contractor’s manager and operatives, it also denied the resident the opportunity to address their comments. Despite having seemingly carried out an adequate investigation, the landlord’s responses were inadequate, which would have caused the resident distress. In the circumstances, this amounted to service failure.
  8. The Ombudsman notes that the landlord accepted there had been “failings,” which included complaint handling (discussed below), and offered £100 compensation. Its offer did not distinguish how this compensation was broken down, and in the Ombudsman’s opinion, was not sufficient to remedy all its service failures discussed throughout this investigation. Given the repeated failures to demonstrate an adequate investigation, the Ombudsman considers that for this specific element of the complaint, compensation of £100 is appropriate.

Complaints handling

  1. The landlord’s complaints policy notes that it will endeavour to provide a response or agree to a timeframe to provide a response within 10 working days of a complaint. The landlord’s initial communications with the resident following his complaint were reasonable, and it was reasonable that it advised it initially needed to speak with other parties as part of its investigation. It subsequently, however, failed to provide a timeframe for this to occur, despite the resident requesting updates.
  2. Despite being aware the resident was expecting a further response, the landlord subsequently failed to provide any further updates for six months. Its stage one response failed entirely to address the delay, despite it being evident that the landlord’s staff were aware of the time that elapsed since his initial concerns were raised. In its stage two response, the landlord advised the delay had been due to it failing to correctly register the complaint on its system, but this did not excuse the fact that its staff were aware he was expecting a response. Its health and safety team report from this period also identified that the resident had made a complaint, further demonstrating it knew to respond despite it not having correctly entered the complaint in its complaints system.
  3. Given the heightened concerns around COVID-19 expressed by the resident, this delay would have caused him distress and in the circumstances, amounts to maladministration. While the landlord has acknowledged the delay and has offered compensation, the amount offered is not sufficient to remedy the distress caused. An amount of £200, being the higher amount for “medium” impact service failure is appropriate in the circumstances for this part of the complaint.

Summary

  1. In summary, while the Ombudsman considers that it was reasonable to carry out the works, and that the landlord took reasonable steps to ensure its contractors wore face masks, the landlord failed to adequately respond to the resident’s concerns and there were unreasonable delays in its complaints handling, for which compensation is appropriate.
  2. The Ombudsman notes that it is the resident’s position that the landlord breached its legal obligations regarding COVID-19 safety, and that it his intention to pursue legal proceedings against the landlord. The Ombudsman confirms that this determination does not prevent him from seeking additional legal remedies.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s reports regarding its contractor’s attendance at his property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaints regarding its complaints handling.

Reasons

  1. The Ombudsman considers that it was reasonable to carry out the works, and that while the contractor’s risk assessment stated operatives did not require face masks, the landlord took reasonable steps to ensure its contractors were aware of its additional requirements to wear a face mask.
  2. The landlord failed, however, to adequately respond to demonstrate its investigation to the resident in its formal responses and there were unreasonable delays in its complaints handling, which would have caused distress to the resident.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to pay compensation of £350, comprising:
    1. £50 for any distress and inconvenience caused to the resident by the misinformation provided in relation to the ability to refuse the works;
    2. £100 for any distress and inconvenience caused to the resident by its failure to adequately demonstrate its investigation relating to the use of face masks;
    3. £200 for its ineffective complaints handling.
  2. This replaces the landlord’s previous offer of £100. This amount must be paid within four weeks of the date of this determination.

Recommendations

  1. The Landlord to take steps to ensure that its complaints handling staff have up to date training. This should also include consideration of this Service’s guidance on remedies at https://www.housing-ombudsman.org.uk/aboutus/corporateinformation/policies/dispute-resolution/guidance-on-remedies/ and the completion of our free online dispute resolution training for landlords at https://www.housingombudsman.org.uk/landlords/e-learning/.