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Kirklees Council (202113785)

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REPORT

COMPLAINT 202113785

Kirklees Council

29 March 2023


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 resident’s reports about the actions of a contractor whilst carrying out a property inspection.

Background

  1. The resident occupies the property under a secure tenancy. The property is a one-bedroom bungalow. The resident is immunocompromised and at the time of the event complained about had been shielding for 14 months, since the start of the Covid-19 pandemic.
  2. The landlord’s contractors contacted the resident on 4 April 2021 to arrange an appointment to carry out an asbestos survey. This survey was carried out on 17 May 2021. The resident was unhappy that the surveyor that attended did not appear to have brought any personal protective equipment (PPE) with them. The resident says he had made it clear when booking the appointment that he was shielding and was assured the surveyor would be wearing appropriate PPE.
  3. The resident said he provided the surveyor with a mask and asked them not to touch any surfaces or cupboard handles. During the visit he became aware that the surveyor had touched some of the cupboard handles, despite the resident saying he had asked them to ask for his help if things needed to be opened.
  4. The resident raised a complaint with the landlord on 18 May 2021 and the landlord sent its stage one response on 24 May 2021. The resident asked for this to be escalated the same day, and the landlord sent its second stage response on 7 June 2021. This letter said the complaint could be escalated to stage three, but also said the resident could refer the complaint to this Service.
  5. On 15 June 2021 the resident asked for the complaint to be escalated to stage three, and the landlord sent its response on 5 July 2021. The resident responded on 6 July 2021, saying he did not consider the complaint to be closed. The landlord carried out a further review of the complaint and sent a final letter on 30 July 2021. On 14 September 2021 the resident contacted this Service and asked for the complaint to be investigated.

Assessment and findings

Scope of investigation

  1. Whilst this service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the psychological impact aspect of the resident’s complaint. This matter is likely better suited to consideration by a court or via a personal injury claim.

The actions of a contractor whilst carrying out a property inspection

  1. This Service expects landlords to keep accurate and up to date records, including making a note of resident’s vulnerabilities when notified of them. The landlord has told this Service that they were not aware of the resident’s medical condition when the visit was carried out.
  2. The landlord’s records show that the contractor was told by the resident that he was shielding during a telephone conversation on 16 February 2021. The resident did not provide details of his medical condition. The records also show that the resident again made the contractor aware that he was shielding when the appointment was arranged during a phone call on 4 April 2021. An email from the contractor to the landlord confirms that the resident told them he has a low immune system and was worried about people coming into his home. The contractor reassured him that they would take all necessary covid precautions.
  3. Whilst the resident may not have told the landlord what his specific medical condition was, this was not necessary. It is clear from the evidence provided by the landlord, in the form of contact notes, that it was made aware of the resident’s vulnerability. It is essential that landlords pick up on vulnerabilities notified to them, particularly in light of the pandemic, and that it factors in these vulnerabilities in in its subsequent handling of the tenancy.  
  4. Landlords are required to have policies and procedures in place with regards to health and safety and carrying out risk assessments. The landlord has provided a copy of the health and safety manual which has a Covid-19 policy. This policy says it will take reasonable precautions to ensure the health and safety of employees and other people who may be affected by work activities. This includes social distancing, wearing of PPE and good hygiene practices. It also says risk assessments will be carried out for proposed works.
  5. The landlord has also provided a copy of its specific Covid-19 risk assessment, carried out on 1 November 2020. This says employees will wear disposable coveralls, over boots and gloves, as well as eye protection and masks with a P3 filter. They should also use hand sanitizer and anti-bacterial wipes. The resident said that he allowed the visit to go ahead because of the contractor’s assurance that appropriate PPE would be worn. He said the previous person who had visited the property had worn disposable coveralls and latex gloves.
  6. On this visit the surveyor came to the property without wearing a mask. The surveyor returned to their vehicle to try to find a mask, and the resident says that after several minutes of searching they could not find one. The contractor did not have the appropriate PPE in contravention of the preventative measures set out by the landlord’s Covid-19 risk assessment.
  7. The resident gave the surveyor a disposable mask and asked that they did not touch any cupboard handles due to his medical condition. Given the surveyor’s lack of PPE, this was a reasonable request. The resident said he became aware of the surveyor opening cupboards. In its stage two response, the landlord said they had misunderstood his request not to touch any cupboards, and thought it was only two specific cupboards. Given what the resident had told the contractor about his low immune system, it does not appear to be a logical conclusion that the surveyor would have misunderstood the resident’s request.
  8. The resident has provided this service with a copy of an audio recording, which was included in his original complaint to the landlord. In this he asked the surveyor why they had touched everything. They did not explain why they had not asked him to come and open them, but confirmed they had heard him say he did not want the handles touched. They said they should not have been sent to do the job and resented being there.
  9. The surveyor’s comments about whether they should have been sent to do the job were not appropriate to be directed at the resident. If the surveyor had arrived for the job wearing the PPE set out in the risk assessment, the resident would likely have felt that his safety was considered, and the survey would likely have been completed without incident. The resident did what he could prior to the appointment to ensure he would feel safe in letting the surveyor into his property. He allowed the appointment to go ahead based on being told the appropriate PPE would be worn. From the evidence provided by both parties, it seems likely the problem only occurred due to the surveyor’s failure to wear PPE, and their subsequent failure to follow the resident’s reasonable request not to touch the cupboard handles.
  10. In its stage one response, sent on 24 May 2021, the landlord set out corrective action it had agreed in response to the complaint, to avoid a recurrence of this situation. Its stage two response, sent on 7 June 2021, reiterated the steps it had already taken and also instigated a review of its risk assessments, to ensure they were still appropriate. It upheld the part of the complaint about the surveyor not taking the time to source the appropriate PPE.
  11. The stage two response did make reference to this Service, but also said the next step was an escalation to stage three. After a stage three response was sent on 5 July 2021, the complaint was escalated for a final review to a complaints panel, which was responded to on 30 July 2021. The Ombudsman’s Complaint Handling Code sets out a clear requirement for a two-stage complaint handling process. However, as the stage one and two responses were sent within the timescales this Service would expect, and the stage two response did mention this Service, the Ombudsman does not consider there to have been any detriment caused to resident as a result of the landlord’s complaints process.
  12. The Ombudsman considers there to have been maladministration by the landlord in relation to the contractor’s actions whilst carrying out a property inspection. The contractor was made aware of the resident’s vulnerability and assured him that precautions would be taken. When the surveyor failed to arrive with the correct PPE, they then did not follow the resident’s reasonable request to mitigate the situation. It is to the landlord’s credit that it has taken steps to prevent the same thing happening again, showing a willingness to learn and improve. However, it is evident that its actions on this occasion caused the resident a significant amount of distress.
  13. The Ombudsman’s remedies guidance provides for compensation from £100 to £600 for cases where there was a failure which adversely affected the resident and the landlord failed to acknowledge its failings “and/or made no attempt to put things right.” Whilst the landlord has taken steps to put things right going forward, it has not put things right for the resident. The events in this case indicate that a payment towards the lower end of this scale is warranted and an order has been made for the landlord to pay compensation to the resident of £250 to reflect the distress caused to him.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in relation to the actions of a contractor whilst carrying out a property inspection.

Orders

  1. The landlord to pay the resident £250 in compensation in recognition of the distress caused to the resident.
  2. The landlord to confirm to this Service that the above order has been complied with within 28 days of this report.

Recommendations

  1. The landlord to review its complaint policy and ensure it has a two-stage process in line with the Ombudsman’s Complaint Handling Code.