Westminster City Council (202100956)

REPORT

COMPLAINT 202100956

Westminster City Council

5 December 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s handling of follow-on works from its previous gas safety service in January 2020.
2. The landlord’s handling of the resident’s annual gas safety service.
3. The landlord’s handling of the associated complaint.

Jurisdiction

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 will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of follow-on works from its previous gas safety service in January 2020.
This is because the Ombudsman would expect that the resident raises any dissatisfaction with the landlord’s actions or lack of action as a formal complaint within a reasonable period, which would normally be within six months. This is because, with the passage of time it is not possible to reliably investigate historical events. There was no evidence that the resident attempted to pursue or complain about outstanding work from the gas safety service in January 2020, therefore a determination will not made on this aspect of the complaint.

Background and summary of events

The resident is a secure tenant of the landlord. The tenancy commenced on 14 May 2018. The property is a one bedroom, second floor flat.
On 25 October 2020, the landlord wrote to the resident to inform her it had scheduled a visit to her property on 2 November 2020 to carry out the annual gas safety and smoke alarm service. It explained that this was a legal requirement for it to make efforts to carry this out and it would be taking various additional measures, such as use of personal protective equipment (PPE) and maintaining social distancing, in line with current government guidelines to protect themselves and residents. The letter provided a telephone number to call if the appointment needed to be rescheduled.
On 4 November 2020, the landlord’s contractor wrote again to the resident to inform her that they had not been able to gain access to the property to carry out the gas safety service and provided a new appointment for 12 November 2020.
The resident informed the landlord on 3 December 2020 that there were outstanding works to her heating which it was due to return to complete but it had not. Its records showed that it was due to attend on 9 December 2020 to carry out the gas safety service and it would address the issues then.
The landlord attended the resident’s property on 9 December 2020 to carry out the annual gas safety service. She contacted it later that day to report that her heating was not working correctly. The landlord raised a job for it to attend on 10 December 2020 and its notes indicated that there was an issue with the thermostat and timer which was picked up on the last gas safety service and the resident was to have called in to request this repair.
The resident contacted this Service on 11 March 2021 to report her dissatisfaction with the landlord’s handling of the gas safety service. She relayed text correspondence which said that it had attempted to gain access for this without making an appointment and its letters “transfer[red] blame” rather than addressed its poor handling. The resident highlighted that the engineer who attended did not seem to have records of her attempt to have a follow up job to address the timer control identified at the last gas safety service in January 2020 carried out. She said that since January 2020 she had used hot water but had not used the heating and the engineer who carried out the gas safety service had refused to carry out this job.
The resident pointed out that she needed to ask the engineer to use a mask and showed coverings which she believed were used at the last job and were therefore contaminated. She also highlighted that the engineer needed a ladder but instead climbed onto a section of boxing which she was concerned was not suitable to bear the weight of a person. The resident acknowledged that a second engineer attended to change the batteries in the timer control. The complaint was relayed to the landlord later that day.
The landlord issued its stage one complaint response to the resident on 25 March 2021 which did not uphold her complaint. It acknowledged that its residents would have concerns about the impact of the coronavirus and noted her concerns about its efforts to gain access to carry out the gas safety check despite coronavirus restrictions. The landlord advised that it still had a legal duty to repair and maintain gas appliances and smoke detectors. It referred to Government guidance which stated that it would still carry out work in residents’ homes provided precautions were taken and that gas safety checks were not to be suspended as this could put residents at increased risk.
The landlord relayed that it carried out the gas safety inspection on 9 December 2020 when no issues were found and the boiler was working at the time of the inspection. It received the resident’s report of no heating and hot water the following day. The landlord attended later that day when it replaced the batteries in the thermostat, balanced the system and demonstrated to her how to use it. It explained that the issue with the thermostat was not discovered during the gas service as the thermostat was working at the time and batteries were not changed annually as their lifespan was dependant on use.
The landlord did not consider that it had exhibited any failures as it had acted in accordance with the relevant legislation and the fault with the thermostat was rectified on the same day it was reported.
After contact from the resident on 20 April 2021, the Ombudsman emailed the landlord later that day to relay her dissatisfaction with its stage one response. The landlord was requested to contact her to discuss her outstanding concerns.
The landlord spoke to the resident on 26 April and 19 May 2021 before sending an acknowledgement of her complaint later on 19 May 2021. It noted that her continued dissatisfaction was due to the following reasons:
1. Her last gas safety service was carried out in January 2020; however it left a missed appointment card in November 2020, less than a year after, despite no appointment being made with her. The resident said this was a “cold call”.
2. When the resident called the number of the card left by the contractor she received no response to her voice message.
3. She asserted that the landlord needed to make an appointment before seeking access to the property.
4. The resident said that the landlord identified in January 2020 that work was required to the control panel for the heating as this may cause her difficulty in turning the heating on or off.
5. The engineer who attended did not have records or recollection of the work that was previously agreed.
6. The resident felt that the landlord should have provided a leaflet explaining how to use the control panel.
7. She said that the heating was not working as the timer switch was installed backwards.
8. The resident said that she had requested that a gas engineer and electrician attended the appointment together but the landlord declined this.
9. She also said that she was unhappy with the conduct of the engineer as they had climbed on top of furniture to access her meter instead of using a ladder.
The landlord issued its final response to the resident on 17 June 2021 in which it explained that, although it had carried out a gas safety with her in January 2020, its practice was to attempt to make access arrangement up to 90 days before the expiration of the existing gas safety certificate; it confirmed that the dates were in accordance with this.
The landlord expressed concern that the resident had not received responses to her calls to its gas contractor and said that it had carried out a “mystery shopping exercise” at different times to assess the contractor’s response. It said that it had subsequently identified improvements which were needed to improve this and ensure that missed calls and messages were responded to within one working day.
In response to the resident’s assertion that appointments needed to be made with the resident before attempting to access the property, it said that it had sent an appointment letter on 25 October 2020, offering an appointment on 2 November 2020, and a further letter on 4 November 2020 offering an appointment for 12 November 2020. It confirmed that the gas service was subsequently undertaken on 9 December 2020.
The landlord apologised that follow-on works identified in January 2020 were not followed up to install a new thermostat and timer. It said that it had spoken to its contractor to ensure that any remedial works identified during gas service checks were carried out as soon as possible. The landlord also confirmed that it had spoken to its contractor about the importance of checking previous job notes about the property.
The landlord explained that it did not keep a stock of existing installed control panels or heating systems and that it was not practical to keep a stock of these manuals due to the number of different systems used in its housing stock. It noted that the engineer who attended to replace the batteries explained to the resident how to use the controls.
In response to the resident’s question as to why her request for a gas engineer and electrician to attend together was declined, the landlord explained that due to social distancing and government guidance, it limited the number of staff that could attend a visit at one. It apologised to her for not explaining this to her at the time.
The landlord said it was unable to confirm what happened on the day of the gas safety inspection as the engineer who attended was no longer employed. It advised her that it had also instructed its contractor to ensure that engineers attended the site with the correct PPE and access equipment to complete the job.
The landlord apologised for any distress caused by its gas service appointment letters and explained that they were based on government guidance and formed part of a “timeline process” to help it ensure that it gained access to properties to carry out the gas safety service before the existing safety certificate expired. It also explained that it had increased the information provided in the letters in response to the coronavirus pandemic to convey the safety measures it had taken. The landlord apologised for the resident not receiving responses to the calls she had attempted to the contractor and confirmed it had put a process in place for this.
The landlord upheld the resident’s complaint and offered total compensation of £125, comprised of: £50 for the delay in carrying out follow-on works; £60 for distress and inconvenience caused; and £15 for the delay in providing its stage two complaint response.
The resident contacted this Service on to convey her continued dissatisfaction with the landlord’s handling of the gas safety service. She held that it had not made an appointment with her, its engineer did not wear PPE, it did not provide instructions to her on how to operate the heating controls, and that she had experienced increased heating costs due to this.

Assessment and findings

Policies and procedures

The landlord’s tenant’s handbook confirms that it will carry out repairs to heating and hot water installations.
The landlord’s gas safety policy confirms that it has a duty in accordance with the Gas Safety Regulations to ensure that gas operated appliances are competently checked, tested and service on an annual basis. Its gas safety check procedure confirms that it will attempt to gain access to carry out a gas safety service between seven and 12 weeks prior to the due date and it may attempt to arrange access by letters, visits and calling cards.
The landlord’s general service delivery brief states that its contractors will “adopt safe methods of work to protect the health, safety and welfare of all employees, residents and others”.
The landlord’s complaints policy provides for a two-stage complaints procedures. At stage one of this procedures it is to provide a response to the resident within ten working days. At the final stage of this procedure it is to provide a response within 20 working days.

The landlord’s handling of the resident’s annual gas safety service

It is the landlord’s statutory duty, as confirmed by its gas safety policy above, to carry out an annual gas safety service, and its gas safety check procedure above confirms that it could attempt to gain access by contacting her by letter, calling card and in person up to 12 weeks prior to the annual deadline. Therefore, there was no failure by the landlord in its handling of gaining access to carry out the annual gas safety service.
It is unclear if the landlord’s visits to arrange access were to carry out the gas safety service there and then, or to speak to the resident to arrange an appointment. A landlord would be expected to provide 24 hours’ notice to a resident if it wished to gain access a property. Therefore, the landlord should have clarified to the resident in its complaint responses the reasons for its visits.
It is not disputed that the resident did not receive responses to her messages left with the landlord about the gas safety service appointments. The landlord did acknowledge, in its final response on 17 June 2020 that its call handling could be improved upon and offered compensation of £60 for the distress and inconvenience caused. This amount was in accordance with the Ombudsman’s remedies guidance where a failure has occurred “which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant”. Given that the period of time was approximately six weeks and the resident went on to have the gas safety service carried out, the offer of £60 is a reasonable offer of redress for this.
Without being able to verify the resident’s account of the events on the gas safety service, it would be unreasonable to determine whether a failure had occurred or not, and the Ombudsman will only determine whether the landlord responded reasonably to these reports. Given that the landlord was unable to investigate the actions of its engineer on 9 December 2020 due to that staff member no longer being employed, it responded reasonably to the resident’s concerns about the engineer not using correct PPE, not using suitable access equipment and not carrying out previously specified follow-on works, by feeding this back to its contractor to prevent this happening in future. Therefore, there was no evidence of a failure as the landlord demonstrated that it paid due consideration to the resident’s concerns.

The landlord’s handling of the associated complaint

The landlord issued its final response to the resident on 21 July 2021, 64 working days after being informed by this Service of her continued dissatisfaction with its stage one response to her complaint. This was considerably longer than its timeframe of 20 working days to respond at the final stage of its complaints procedure, as specified above.
The landlord offered £15 compensation to the resident for its delay in providing its final response. The Ombudsman’s remedies guidance provides for payments of between £50 to £250 where there has been a “failure to meet service standards for actions and responses but where the failure had no significant impact”. As the landlord issued its final response late but this did not have any likely significant impact on its response, the landlord has been ordered to increase the compensation offered from £15 to £50 in accordance with this guidance.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord offered redress to the resident prior to investigation which, in the opinion of the Ombudsman, resolves the complaint about its handling of the resident’s annual gas safety service satisfactorily.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Reasons

The landlord acted in accordance with its policy in attempt to contact the resident to arrange for the annual gas safety service, acknowledged its failures in the handling of her contact and offered a reasonable amount of compensation for this.
The landlord acknowledged its delay in providing its final response to the resident, however the compensation it offered was not in line with the Ombudsman’s guidance.

Orders and Recommendations

Order:

That within 28 days the landlord is to pay the resident an additional £35 compensation for its delay in handling her complaint.
The landlord is to confirm to this service that it has complied with the above order.

Recommendations:

That within 28 days, and If it has not done so already, to landlord is to pay the resident the £125 compensation it offered in its final response to her, in additional to the £35 ordered above.
The landlord is also to review its communication with residents when attempting to arrange a gas safety service to clarify its reasons for visiting to avoid unnecessary alarm or distress.