Richmondshire District Council (202104410)

REPORT

COMPLAINT 202104410

Richmondshire District Council

22 August 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

This complaint is about:
1. Whether the resident was given the opportunity to postpone the works to her bathroom in January 2021.
2. A discrepancy between the Risk Assessment and Method Statement for those works.
3. Rubbish being left in the resident’s property once the works had been completed and the associated clearance costs incurred.

Background and summary of events

Background

The resident was a secure tenant of the landlord between 25 March 2019 and 2 May 2021. The property is a ground floor bedsit which is part of a sheltered housing scheme owned and managed by the landlord, which is a District Council. The scheme has an on-site residential warden but the accommodation is described as independent living.
This complaint has been bought to this service by the resident’s representative, who is her son. During the complaints process the landlord was also contacted by other relatives of the resident, who expressed the same concerns.

Summary of events

On 20 November 2020, the landlord’s contractor wrote to the resident to advise that improvement works would start in their home on 18 January 2021 and that they expected the work to take approximately two to three weeks. The contractor said that they would like to visit the resident on 11 January 2021 to discuss the works and that if the resident was unable to make the appointment for them to call the contractor to make an alternative appointment.
On 6 January 2021, landlord wrote to residents of Sheltered Housing about staying safe during Coronavirus (Covid-19) Pandemic following the government’s announcement of a further lockdown, which came into effect from 5 January 2021. In its letter the landlord provided the residents with some advice about how to keep safe and said that if the resident’s home was due to have planned improvements or reactive maintenance then this would still proceed, but only if the resident wanted the works to take place. The landlord asked residents’ to advise the contractor at the earliest opportunity if they did not want the works to proceed and these could be postponed.
On 8 January 2021, the landlord emailed the resident’s representative, in response it said to a number of questions raised by the representative regarding the works to his mother’s property. The landlord said that:
1. The works were required to bring the property up to Government’s Decent Homes Standard.
2. The resident had been written to by both itself and its contractor, in advance of visits by the contractor, to advise that if they did not want the works to proceed for whatever reason, it would ensure that the works were put on hold until such time as agreed with the resident.
3. Its risk assessments and method statements had been signed off by its external Health and Safety Advisor, a service provided by the County Council.
4. The Government had clarified that tradespeople could continue to work in people’s homes, so long as they follow Covid Secure Guidelines and the contractor worked to the Government’s Construction and other outdoor work – Working safely during coronavirus (Covid19) guidance.
5. The contractor did not carry out regular Covid19 testing, which it said was common practice in the construction industry, and that its contractor regularly reviewed this position in line with Government advice.
6. The contractors Risk Assessments and Method Statements (RAMS), and other documentation had been signed off by the Health and Safety Executive.
7. It also employed an external Health and Safety Consultant which had signed off the documents provided by the contractor.
8. It understood that this was a very uncertain and difficult time for residents and family members and that it hoped this response allayed the concerns as much as possible. The landlord asked the representative to let it know if the resident did not want the works to proceed and it would ensure they were postponed.
The bathroom upgrade works were completed between 19 and 29 January 2021.
On 10 February 2021, the representative emailed the landlord to advise that the resident, their 96 year old mother, had tested positive for Covid19. The representative asked that the landlord ensure that anyone who had been in contact with her or the premises self-isolate. The representative also asked the landlord to confirm if anyone had had Covid19 and whether they were routinely tested. The landlord confirmed the same day that:
1. The contractor had been made aware of the positive test and that the last time one of their operatives was in the resident’s property was on 1 February 2021.
2. The operatives worked in the bathroom only with the door closed and whilst wearing PPE.
3. The resident was in the bedsit area with the door closed.
4. There was no close contact and the relevant guidance had been adopted by its contractor for working in people’s homes during Covid19.
On 5 March 2021, the representative and other relatives of the resident logged a formal complaint with the landlord, referring to the landlord’s response of 8 January 2021 which they felt was patronising. They said that:
1. They believed the work was non-essential as they were to upgrade what they described as already perfectly functional facilities.
2. Whilst it was true that residents were consulted, their mother did not fully appreciate the risks involved and also felt peer pressure as other residents were agreeing to the works, she also felt she would miss out if she did not agree.
3. No one policed the actions of the operatives, despite having procedures already approved for them to follow. The resident had told them, her relatives, about times when people working in her flat would appear not wearing a face mask and having to tell them to put them on.
4. They had spoken to Track and Trace regarding the non-routine testing of operatives, who advised they would be contacting Public Health for England (PHE) to see whether it was advisable for these works to be undertaken at that time.
5. There was a lack of clean up after the work in the resident’s bathroom with rubbish being left for her to dispose of.
The landlord issued its stage one response on 19 March 2021. The landlord said that it was sorry to hear that the resident had tested positive for Covid19 and that it understood that this would have been a difficult and worrying time for both the resident and all family members. The landlord said that:
1. It had considered its response of 8 January 2021 and was satisfied that its response was not patronising and that the questions raised were answered in full.
2. At no stage had any family member objected to the improvement works being completed. Its email of 8 January 2021 it had advised that if the resident did not want the works to go ahead, it would ensure they were postponed. However no further contact was received regarding this.
3. At no stage had the resident objected to the works either to the landlord or its contractor, which it said had visited the resident several times prior to the works commencing.
4. The decision to carry out the improvement works was based on a number of factors that ensured the council met its responsibilities and complied with health and safety requirements as well as Government guidance regarding covid:
  1. Robust method statement and risk assessment being in place for the council signed off by the councils Health and Safety advisor. They were both reviewed in December 2020.
  2. Robust risk assessment and procedures in place for the contractor signed off by the HSE.
  3. National Construction and Government advice being followed by contractors.
  4. On 5 January 2021, the council received the contractors revised documents following the lockdown announcement which were accepted.
  5. On 12 January 2021, a safety audit of the contractor took place with no issues identified on site or in the contractor’s office.
  6. Regularly reviewed Government updates regarding Covid-19
5. With regards to policing the contractors on site, this was the responsibility of the contractor and subcontractors and the contractor’s manager was on site daily, with the subcontractor manager being on site twice a week. There were daily contact between the contractor and the council on the Housing Improvement Programme and monthly project group meetings to review the Housing Improvement Programme.
6. It had only received notification on one occasion that a contractor was not wearing a mask. Following investigation, this not found to be the contractor carrying out the works on the resident’s property and that the contractor involved was spoken to immediately.
7. Whilst it was very difficult to pinpoint the exact source of Covid19 entering the resident’s scheme, both it and its contractor were confident it was not bought into the scheme by the contractor’s staff. Testing was carried out by the contractor as soon as they were advised of two resident’s, including the resident, testing positive on 10 February 2021 and the tests came back negative. The landlord also said that no other residents had gone on to develop Covid19 symptoms since 10 February 2021.
8. Following the two confirmed Covid19 cases, it was contacted by PHE and set out both its and its contractors procedures and actions taken. PHE informed the landlord that they were satisfied with the procedures in place and actions taken. PHE had also contacted the contractor directly and provided the same feedback to them.
9. If there were any issues during the works or any defects following the works, then the council (via the warden or to the Improvements Team directly) should have be contacted as soon as possible to put matters right.
10. It apologised for rubbish being left on the property following the works, saying that this was not what it expected of its contractor and that the resident should not have had to dispose of any rubbish. The landlord said that it had raised their concerns with the contractor’s site manager so that they could learn from the feedback received. The contractor had advised that they had not received any complaint or request to move any rubbish, otherwise it would have been removed as soon as possible.
In 26 March 2021, the representative wrote to landlord in response to its stage one response of 19 March 2021. The representative said that:
1. Whilst recovering from Covid–19 their mother had had a fall, that this had affected her both physically and mentally and that she was now considering alternative accommodation.
2. They were concerned that neither the landlord or its contractor had the training required when dealing with the elderly in circumstances such as this. The representative when on to explain that whilst their mother was of sound mind, her mental agility was not as it was and she could not cope with confrontations and even the physical and mental effort of repeated phone calls caused her stress.
3. They continued to question whether the works should not have gone ahead, the risk assessments and method statements, the management of the works and the landlord’s position regarding random testing of operatives. The representative said that the landlord would not have delayed the works no matter how they had responded.
Between 29 March and 9 April 2021, there was further communication between the representative, and the other relatives of the resident, raising the same concerns as in their earlier correspondence. The landlord provided the representative with a copy of the Risk Assessment and Method statement for the works on 1 April 2021. In response the representative said that there was a discrepancy between the Risk Assessment and Method statement he have been provided. The representative also said that the resident had caught Covid19 as a direct result of the works being done in the property during lockdown and that there were issues with the snagging of the bathroom works.
The landlord’s response to the representative, and other relatives of the resident’s, concerns was that:
1. The works were approved to proceed in August 2020 and January 2021 and there were no restrictions for entering people’s homes that were over 70 years of age at that time.
2. The method statement it had provided the representative was written in May 2020, as per the Government’s guidance at that time, which was that visits should not be carried out to vulnerable people, including those over 70.
3. On 18 June 2020, its Construction Design and Management (CDM) and Health and Safety Advisor, confirmed that it had reviewed all the documentation issued by its contractor and signed an authorisation to commence works certificate.
4. The documents were reviewed and updated in October and December 2020; however, the original wording the representative quoted was not updated in either October or December 2020.
5. It would carry out a review of the documents that month and ensure that they were up to date, as there continued to be changes to guidance, giving the example of shielding ceasing from 1 April 2021.
6. With regards to the works that were carried out, the landlord apologised and agreed that the overall finish of the works was not acceptable, the contractors were spoken to and its operatives returned to put right the issues. The landlord said that it would be visiting the property that week to check that the remedial works had been resolved and would update the resident’s family members following its visit.
7. With regards to the resident having to pay privately for cleaners to remove over-spill silicone filler from the floor, shower base and toilet pan, the landlord asked that they be sent a receipt and it would arrange a full refund.
On 14 May 2021, the landlord issued its final response. The landlord said that it could not uphold the complaint, explaining that:
1. Its method statement and risk assessment were signed off by the Council’s health and safety advisor and its contractor’s assessments were signed off by the Council’s construction health and safety consultants.
2. This approach was in line with construction industry practice and the key point to note is that risk assessments were in place, confirming a clear intent from all those involved to assess risks and mitigate proportionately in the interests of the residents.
3. In terms of it and its contractors failing in their duty of care and not exercising due diligence, it could not find any evidence of this other than one discrepancy.
4. As the representative quite rightly raised, the risk assessment was not updated as the situation changed with reference to entering the homes of the over 70’s on the grounds that they were deemed to be vulnerable. The risk assessment, first adopted in May 2020, should have been updated some months later to confirm the additional flexibility in terms of the over 70’s as the construction industry was remobilised.
5. It apologised for the fact that this did not happen, but was satisfied that this did not materially affect the welfare of residents. Risk assessments and method statements remained in place, regular monitoring of the contract was in place and residents were clearly given the option not to have the work undertaken with clear advice that the work would be postponed until a later date.
6. There was no suggestion that residents choosing to opt out would be missed from the programme indefinitely.
7. It could find no record of the resident or family members opting out of the proposed improvements, when this was clearly an option open to those who felt the Covid risk was too great. The landlord noted that this was an option which would have dealt with the concerns that were now being raised.
8. The claim that allowing the works to commence led to the resident falling victim to Covid could not be substantiated and it could find no evidential link. The landlord acknowledged that this may be the representative and other family member’s view but it was not a conclusion that it could reasonably reach on the balance of probability.
On 7 July 2021, the complaint was referred to this service by the resident’s MP. The representative later confirmed to this service that:
1. The landlord had failed in their duty of care by undertaking works when there was a discrepancy between its method statements and risk assessments, with one clearly stated that anybody over the age of 70 should not be contacted, never mind their premises entered, as they were categorised as the most at risk and vulnerable.
2. The landlord did not complete the works with due diligence, letting its contractors undertake these works in direct contradiction to their risk assessments and method statements.
3. At the time the resident and another resident at the scheme contacted Covid19, there were no other cases of Covid19 recorded by test and trace in the area and therefore it was more than likely and probable, if not certain, that the infection was brought in from operatives coming from outside of that area.
The representative said that the landlord should apologise to resident, pay a contribution towards the cleaning and removal costs of £500, investigate why their contractor undertook works and their suitability for further contracts and reduce the resident’s monthly costs for her new property or contribute towards them.

Assessment and findings

The representative has suggested that the resident contracted Covid19 as a direct result of the actions, or inactions, of the landlord, its contractor and the operatives that carried out the works to her bathroom. Whilst it was understandably distressing for both the resident and her family for the resident to have contracted Covid19, it is not the role of the Ombudsman to determine a causal link between the presence of the contractors in the property and the resident contracting Covid-19. The Ombudsman has therefore made no comments in relation to this. Should the resident or her representative wish to pursue this matter, legal advice would need to be sought.
The landlord and the contractor provided several opportunities for the resident and her family to ask for the work to be postponed. In its letter to the resident on 6 January 2021 the landlord invited the resident to let it know if she did not want the works to proceed and said that it would ensure they were postponed.
Whilst it is understandable that the resident may not have wished to tell the contractor that she did not want the works to go ahead, there was an opportunity for her to tell either her family or the scheme manager if that was the case. However, there is no evidence that she did so.
In its response to the representative on 8 January 2021, the landlord provided the a details response to each of the concerns raised and repeated its offer to postpone the works should the resident not want them to proceed. Again, there is no evidence that such as request was made.
It is not disputed that the landlord had a procedure in place to ensure that it complied with both Health and Safety legislation and the government’s Covid19 guidance in respect of works to the resident’s property. It had Risk Assessment and Method Statements (RAMS) which had been signed off by various internal and external bodies, including its external Health and Safety Advisor, a service provided by the County Council, the Health and Safety Executive and an external Health and Safety Consultant.
The question is however, not whether the landlord had these procedures in place but rather whether those procedures were robust, particularly in relation to ensuring that RAMS were kept up to date with Government guidelines and that contractors complied with those RAMS when it was carrying out works to the resident’s bathroom.
In its complaint responses, the landlord said that its RAMS had been reviewed by its councils Health and Safety advisor in October and December 2020. The landlord also said that its contractors revised documents had also been reviewed and accepted on 5 January 2021, and that on 12 January 2021, a safety audit took place which identified no issues.
The landlord provided the resident’s representative with copies of the RAMS for the works at the resident’s property on 1 April 2021. The method statement had been updated on 21 January 2021, shortly before the works commenced, and in line with Government guidelines at that time.
The method statement confirmed that the contractor should ask the tenant if they have symptoms, are self-isolating, shielding or otherwise clinically vulnerable in any other capacity (i.e. aged 70 years or older regardless of medical conditions or pregnant etc.) prior to works being carried out.
However, the risk assessment which the representative had also been provided with, had not been updated since May 2020 and still stated that inspections or any works must not take place in any property where the resident (or household member) has symptoms, is self-isolating, shielding or is deemed clinically vulnerable in any other capacity (i.e. aged 70 years or older regardless of medical conditions or is pregnant etc.).
Given that the method statement and risk assessment did not agree, and given that the risk assessment provided to the resident stated that the works should not take place, as the resident was over 90 years old, it is understandable that this lead to the representative having concerns about how robust the landlord’s management of health and safety on site had been.
To reassure the resident the landlord explained the procedure it had in place to ensure that the site was managed effectively. The landlord also said that it would carry out a review of the risk assessment that month and ensure that it was up to date.
Whilst these were reasonable actions for the landlord to take, I am not satisfied that they go far enough.
It is essential that landlord’s ensure that all their records are accurate and up to date, this is especially true when it comes to records and documents related to Health and Safety. It is clear in this case that the landlord failed to ensure that the Health and Safety documents were accurate, consistent and updated in a timely manner. It has also failed to provide a satisfactory answer as to why, if the operatives were working to both the risk assessment and method statement, the discrepancy between the two as not picked up by the operatives and addressed by the landlord or its contactor at the time. The landlord’s own Council House Improvement Programme document stating that Risk Assessments are to be read in conjunction with the more detailed Method Statement.
To resolve this the landlord has been ordered to carry out a more thorough review into what happened in this case, particularly in relation to the processes it uses to update its Health and Safety documents and how it ensure that any discrepancies are identified at the earliest opportunity. The landlord is then to write to the resident, the resident’s representative and this service to confirm what learning it had taken from this case and what steps it intends to put in place to ensure that this does not happen again.
The landlord is also to apologise to the resident and her representative for the failures identified in this report and to pay the resident £250 compensation for the distress and inconvenienced caused. This being the maximum award suggested in our Remedies guidance, in circumstances where there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant.
With regards to the rubbish being left in the resident’s flat, this was not raised with the landlord until 5 March 2021. At this point the landlord apologised, spoke to the contractor and said that it would be willing to reimburse the resident for the costs she incurred in having her property cleaned privately. Again, given that the landlord and its contractor can only respond to concerns when they are raised with them, this was a reasonable approach by the landlord to put things right. It is not clear from the evidence whether the landlord was provided with a receipt for the cleaning and the resident reimbursed. A recommendation has therefore been made that, if this had not been done, that the resident or her representative provide the landlord with the requested receipt and that the reimbursement be made.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of whether the resident was given the opportunity to postpone the works to her bathroom in January 2021.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the discrepancy between the Risk Assessment and Method Statement for those works.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in respect of rubbish being left in the resident’s property once the works had been completed and the associated clearance costs incurred.

Reasons

The landlord provided a reasonable opportunity for the resident or her representative to ask that the works be postponed if they were not satisfied that it was safe for them to go ahead. There is no evidence of the landlord being asked to do so.
The landlord acknowledged that the risk assessment it had sent the representative had not been updated to reflect the additional flexibility in terms of the over 70’s and sought to make assurances that despite this the work was carried out safely. The landlord also said that it would review the documents to ensure they were up to date. However, the landlord failed to explained why, if the risk assessment and method statements differed this was not identified before the works commenced. The landlord also failed to consider what learning it could take from this case such as reviewing its current processes to ensure that this would not happen again.
The landlord provided a fair and reasonable response to the representatives reports of operatives leaving rubbish in her flat, apologising and offering offer to reimburse the costs that she incurred as a result.

Orders

That within 28 days of the date of this determination the landlord is to:
1. Write to both resident and her representative to apologise for the failures identified in this report with regards to the discrepancy between the Risk Assessment and Method Statement for those works.
2. Pay the resident £250 compensation for the distress and inconvenienced caused.
That within six weeks of the date of this determination the landlord is to:
1. Carry out a more thorough review into what happened in this case, particularly in relation to the process it uses to update its Health and Safety documents and how it ensures that any discrepancies in RAMS are identified at the earliest opportunity.
2. To write to the resident, the resident’s representative and this service to confirm what learning it had taken from this case and what steps it intends to put in place to ensure that this does not happen again.
The landlord is to confirm to this service that it has complied with the above orders.

Recommendation

If it has not done so already, invite to the resident or her representative to submit a receipt for the private cleaning of the resident’s property so it can reimburse the costs that she incurred as a result.