Leeds City Council (202213298)

REPORT

COMPLAINT 202213298

Leeds City Council

2 June 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

The complaint is about the landlord’s handling of the resident’s:
1. Reports that its operatives were not wearing personal protective equipment (PPE) when completing an inspection.
2. Reports about the conduct of its operatives.
3. Concerns about fibreglass in the property and the impact on his health.
4. Concerns that the conduct of the landlord’s operatives amounted to disability discrimination.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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 42(g) the Scheme, the following aspects of the resident’s complaint are outside of the Ombudsman’s jurisdiction to investigate

The resident’s concern about fibreglass in the property and the impact on his health

Paragraph 42(g) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern matters where the Ombudsman considers it fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
The resident raised a concern that when the landlord was doing an inspection, fibreglass escaped from his loft space. He said that the fibreglass particles were present for several days, and had a negative impact on his health.
The resident has described the adverse effect the issue has had on his health, causing breathing difficulties and itching. The resident’s description of the incident and the impact it had on him are acknowledged. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions, and the resident’s health. The resident may wish to seek independent advice on making a personal injury claim, if he considers that his health has been affected by any action or lack thereof by the landlord.
Allegations of personal injury are serious legal complaints which must, ultimately, be decided by a court of law. The court can consider medical evidence, allegations of negligence, and make legally binding findings. Because of that, the courts are the more effective and appropriate way in which to achieve a remedy in the face of the serious allegations in this aspect of the resident’s complaint. In accordance with paragraph 42(g) of the Scheme the Ombudsman cannot consider this aspect of the resident’s complaint.

The resident’s concern that the conduct of the landlord’s operatives amounted to disability discrimination.

As outlined above, Paragraph 42(g) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern matters where the Ombudsman considers it fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
As part of the resident’s request to escalate his complaint to stage two of the landlord’s complaint procedure, he stated that one of the landlord’s operatives “spent considerable time discussing” the resident with a member of the public. He said this amounted to disability discrimination and a “disability hate crime”. The police force is the appropriate body to investigate allegations of hate crime. If the resident is of the view that the landlord’s actions amounted to a hate crime, he may wish to consider raising the matter with the police, so it can investigate.
In terms of whether the landlord committed disability discrimination against the resident, this is a complaint which must, ultimately, be decided by a court of law. In accordance with paragraph 42(g) of the Scheme, the Ombudsman will not therefore consider the resident’s complaint that the conduct of the landlord’s operatives amounted to disability discrimination.
However, this investigation has considered how the landlord responded to the resident’s complaint about the conduct of its operatives and the associated complaint handling.

Background and summary of events

Background

The resident is a secure tenant of the landlord and lives in a one bedroom bungalow, his tenancy began on 23 October 2020. The landlord has a recorded vulnerability for the resident of “mutism”, and it has an alert on its file instructing its operatives to only contact the resident by email. The resident’s communication with the landlord in his complaint indicated that he considers himself to have a disability and is “house bound”.

Summary of events

On 17 August 2022, a contractor for the landlord attended the resident’s property to complete an annual gas safety check. The resident wrote to the landlord on the same day to raise a complaint, and said:
1. While two operatives for the landlord were outside of his property he could hear loud and abusive language, which he believed was directed at him;
2. He was a “very ill, disabled [and] house bound old man” and found the incident “very frightening”;
3. When the operatives arrived at his property, they were not wearing face masks and had to be asked to put face masks on;
4. The resident’s partner had contacted the landlord two days prior the visit, asking it to ensure its operatives wore face masks;
5. One of the operatives had breached his privacy by spending longer than needed in the loft space and was “shining his light everywhere”;
6. The operative for the landlord had left the property and began talking to the person who had been shouting abuse and appeared to “know them very well”;
7. There was constant “orchestrated hate crimes” by those living around him and it had been reported to the police, as a “hate crime”;
The landlord wrote to the resident with its stage one complaint response on 31 August 2022 and said:
1. It had interviewed the operative that was present during the alleged abuse directed at the resident. The operative had confirmed that an “unidentified male” had used offensive language, but he was “adamant that he did not”. The operative said that he moved away, so as not to engage in any more conversation with the unidentified male;
2. Another operative for the landlord had spoken loudly and “used a number of swear words”. His supervisor, who was present, “quickly got the situation under control” and told the operative to lower his voice and not to swear in a public place;
3. It had interviewed the operative and told him that his manner was unacceptable and that it was going to monitor his conduct over “the next few months”;
4. It had interviewed its operatives about their use of PPE (face masks) and conduct during the inspection. The operatives said that they had worn face masks during the inspection and had made no derogatory remarks during the visit. They said they had made comments about “technical issues relating to the job”, but these were not directed at the resident;
5. It said that inspecting loft spaces where a “flue from a gas appliance is present” is an important part of its legal obligations of a gas inspection;
6. It had interviewed the operative about the time he had spent in the loft space. It said that the torch was seen shining around because the loft space is an “unpredictable” area. When in a loft space, an operative is instructed to look for other defects such as leaks or missing roof tiles. It said the inspection was thorough and it was “confident” that the resident’s privacy was not breached;
7. It partially upheld the resident’s complaint due to the “foul language” used by its operative. It apologised for “any upset that hearing foul language caused”.
8. It said it regretted that the resident had experienced abuse from the “unidentified male”, but the incident was beyond its control. It said the operative had acted appropriately by moving away from the situation. It said the resident should contact the police if he experienced any abuse from a neighbour.
The resident emailed the landlord on 31 August 2022 and asked his complaint to be escalated to a stage two complaint and said:
1. He disagreed with the landlord’s assessment of the conduct of its operatives and believed the abusive language used had been directed at him;
2. He was concerned that the operatives had arrived without face masks, especially as his partner had asked for these to be worn;
3. The landlord had failed to have regard for his “disability need” by not wearing face masks as his partner had requested;
4. The landlord had ignored a sign on his intercom that said: “please wear masks”, and he needed operatives to wear face masks due to his disability and illnesses;
5. The operative had spent longer in the loft space than the operative who did the inspection the previous year, and spent “several minutes” looking around the loft;
6. The abusive language used by an operative amounted to disability discrimination and a disability “hate crime”;
7. He had provided CCTV recordings of the alleged incident.
The landlord wrote to the resident on 21 September 2022 with its stage two complaint response and said:
1. The CCTV footage that the resident had provided had no sound and nothing in the video “substantiate[d] the claim” that the conversation shown in the footage was about him. It found the approach outlined in its stage one response (ongoing monitoring of the operatives behaviour) appropriate;
2. The fact that operatives were not wearing PPE on arrival at the resident’s property was a failing, because he had asked them to do so ahead of the visit;
3. It had spoken to the management team for the contractor and reminded it that operatives must wear PPE when asked to by a resident;
4. It understood that the operative had apologised to the resident for not wearing PPE, at the time. It felt that the apology was an appropriate solution to that aspect of his complaint;
5. It was satisfied that its gas safety inspections complied with relevant regulations. It said that the differences in the time spent inspecting the loft space did not indicate that the previous inspection was not as thorough;
6. It said that none of its operatives had directed any comments towards the resident. It said that it was not responsible for the behaviour of members of the public and said the resident should report any concern about hate crime to the police;
7. In line with the resident’s request, the operatives that attended on the day of the inspection would not attend any future visits to the resident’s property.
The resident contacted this Service on 21 September 2022 and said that he was dissatisfied with the landlord’s final complaint response. He said that the landlord had failed to make a reasonable adjustment with regard to his disability, by not wearing PPE, and asked this Service to investigate. He said that the landlord’s complaint responses were inconsistent and “dismissive”.

Assessment and findings

Relevant policies and procedures

The landlord’s compensation guidance states that it should use “non-financial” redress when it has identified a failure and “putting the issue right and offering an apology will suffice”. Its compensation guidance says it can offer financial redress for the following:
1. Up to £100 when a resident has suffered moderate inconvenience and upset;
2. Up to £600 when a resident has suffered significant inconvenience and upset;
3. Up to £1000 when a resident has suffered severe distress and inconvenience.
The landlord’s repair and maintenance handbook outlines its obligations under the gas safety regulations. It states it must conduct annual inspections of all gas appliances and to “repair and maintain gas pipework, flues and appliances”.
The handbook outlines its expectations of staff conduct to “not shout or use language or behaviour that discriminates or offends”.
The landlord’s complaints policy states that if a resident makes a complaint about a member of its staff it will investigate and take the appropriate action.
The landlord’s website states that “hate incidents” can be reported to the landlord and it will speak to the resident and agree how to deal with the incident. It states that it may work with the police, depending on what happened.

The resident’s reports that its operatives were not wearing PPE when completing an inspection

Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was proportionate and reasonable. The Ombudsman’s dispute resolution principles are to be fair (follow fair processes and recognise what went wrong), put things right, and learn from outcomes.
Within the stage two response, the landlord acknowledged that it had failed to follow the resident’s request for its operatives to wear PPE at his property. It also acknowledged that the resident should not have had to ask the operatives to put the face masks on. It advised that its operative apologised at the time, which it felt was an appropriate solution. However, the landlord failed to have regard for the impact the incident had on the resident.
This Service has not been provided with evidence of the phone call from the resident’s partner asking the landlord’s operatives to wear face masks. However, the landlord does not appear to dispute this claim, as indicated in its complaint response. It is therefore reasonable to conclude that the landlord was aware that the resident considered himself vulnerable to Covid-19.
The resident’s complaint escalation request, on 31 August 2021, said that he needed operatives to wear face masks, due his disabilities and illnesses. As set out above, the landlord acknowledged its failings in regard of the matter. However, its stage two complaint response did not acknowledge the resident’s vulnerabilities in relation to Covid-19 ,and the concern he must have felt when operatives attempted to enter his property without wearing face masks. It would have been reasonable to show a greater level of empathy in its complaint response, given the resident had told it the concern and worry the incident had caused.
The landlord has demonstrated that it learnt from the outcomes of this case. It said to the resident that it had reminded its management team to comply with resident requests for operatives to wear PPE. This was appropriate in the circumstances, and is evidence of the landlord applying the Ombudsman’s dispute resolution principle of learning from outcomes. However, the landlord failed to offer any financial redress to the resident in recognition of the distress the incident must have caused. Therefore its apology alone did not put things right for the resident.

The resident’s reports about the conduct of the landlord’s operatives

The Ombudsman does not dispute the resident’s version of events in relation to this matter, which he evidently found distressing. However, it is not the role of the Ombudsman to determine whether the incident occurred as alleged. Rather, the Ombudsman can consider whether the landlord responded fairly and appropriately to the resident’s concern about the conduct of its operatives.
In response to the resident’s concerns about the behaviour of its operatives, the landlord applied its complaints policy correctly and investigated the matter, and spoke with the operative(s) involved. This was an appropriate application of its policy and reasonable in the circumstances.
Having completed interviews of its operatives, the landlord concluded that its operatives had not directed abusive language towards the resident. It said that when the “unidentified male” had been using abusive language, its operative had acted correctly by removing himself from the conversation. The landlord fully investigated the behaviour of its operatives and sought to manage the resident’s expectations of its view of the incident, which was reasonable in the circumstances of this case.
In the resident’s complaint, he told the landlord that he had been the victim of “orchestrated hate crimes” from his neighbours. The landlord’s complaint response, stating that it could not control members of the public and the resident should report incidents of hate crime to the police, was not supportive. The landlord reasonably concluded that its operative had not been involved in the antisocial behaviour and alleged hate crime towards the resident. However, as the resident raised a concern about hate crime in his complaint, it would have been reasonable for the landlord to have sought more information from the resident on how it could support him. The result was distress for the resident, as the tone of the landlord’s complaint response, simply telling him to go to the police, indicated the landlord was not taking his concern seriously.
It is noted that as hate crime is a criminal matter, the police are best placed to investigate alleged incidents. But, the landlord’s failure to ask for more information from the resident, and show that it would support him through the process was a failure to abide by its own guidance in relation to hate crime.
As part of the resident’s stage two escalation request, he supplied CCTV footage for the landlord to consider. The landlord reasonably used the evidence to assist it in making its decision. The landlord decided that the evidence provided did not change its decision, and gave an explanation in its final response. This is evidence of the landlord conducting a fair complaints procedure, it gave full consideration to evidence provided and factored it in to its decision.
As part of its investigation, the landlord did establish that one of its operatives had used “foul language” when attending the resident’s property. It correctly apologised for this and advised that it was monitoring the behaviour of the operative in question to ensure it didn’t happen again. This was a reasonable application of its complaints policy, as it took the action it deemed “appropriate”. However, the landlord failed to consider the impact this incident had on the resident. He said that he was left feeling “frightened” by the conduct of the landlord’s operatives. It would therefore have been reasonable for the landlord to offer financial redress for the distress the incident caused to the resident, in line with its compensation guidance.
The landlord’s complaint responses were not mindful of the resident’s vulnerabilities and how they affected him in relation to his disability. This is not to say that the landlord treated the resident differently because of his circumstances or characteristics, but it did not adapt its communication in its complaint response. The resident had told it he felt that he had experienced disability discrimination due to the language used by its operatives in his property. The landlord reasonably made a finding that the language was not directed at the resident, but its complaint response did little to acknowledge how the incident had made the resident feel. The detriment to the resident was that he felt the landlord’s complaint response to be “dismissive” and that it had not taken his concerns seriously.
When the resident raised a concern about a breach of his privacy, the landlord provided an explanation. It managed the resident’s expectations by explaining why the operative needed to inspect the loft space and why the light could be seen shining around. It used its stage two complaint response to provide further clarification on this matter to give the resident more of an understanding. The landlord evidenced that it took the resident’s concern seriously and interviewed the operative in relation to his conduct in the loft space. It clearly outlined its position in relation to how the operative had conducted the gas inspection appropriately, in terms of his conduct and the gas regulations. This was reasonable in the circumstances of this case.
The landlord agreed to the resident’s request that the operatives that attended his property on the day of the alleged incident, would not visit his property again. This again was reasonable in the circumstances of this case. It acknowledged the impact the perceived misconduct had on the resident, and sought to reduce the impact by following his request.
The Ombudsman acknowledges that it was unpleasant for the resident to witness an operative using foul language, and the landlord apologised and sought to put things right by seeking to modify the operative’s ongoing conduct. The failure identified appears to have been an isolated incident and the landlord’s actions were proportionate to what the resident reported. However, as outlined above, the landlord failed to consider the impact on the resident, and his individual circumstances. Given the resident’s vulnerability around verbal communication, it is reasonable to consider an incident of someone using foul language at his property may have a greater impact than it would have on someone without those vulnerabilities. It is therefore reasonable to expect the landlord to have considered the resident’s vulnerability when considering how to put things right. The landlord’s apology alone did not fully put it right for the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports that its operatives were not wearing PPE when completing an inspection.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s reports about the conduct of its operatives.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.
In accordance with paragraph 42(g) of the Housing Ombudsman Scheme, the resident’s complaint about fibreglass in the property and the impact on his health is not within the Ombudsman’s jurisdiction to consider.
In accordance with paragraph 42(g) of the Housing Ombudsman Scheme, the resident’s complaint that the conduct of the landlord’s operatives amounted to disability discrimination is not within the Ombudsman’s jurisdiction to consider.

Reasons

The landlord apologised and sought to learn from the failings it identified in its handling of reports of its operatives not wearing PPE. However, the landlord failed to consider the impact the incident had on the resident, including the distress caused, due to his vulnerability to Covid-19, by the failure of its operatives to wear PPE.
The landlord thoroughly investigated the reports of misconduct by its operatives. It explained why it found no misconduct in relation to some aspects of the resident’s complaint. Where it did identify misconduct, it apologised to the resident and said what it planned to do to ensure it did not happen again. But, the landlord failed to consider the impact of distress and fear the resident told it he experienced.
The landlord’s complaint responses lacked empathy, and the resident felt they were “dismissive”. The landlord’s complaint responses did not acknowledge the impact of substantive matters of his complaint had on the resident given his known vulnerabilities. The landlord failed to use its complaints process to engage with the resident in a meaningful way about his concerns around hate crime, as it should have under its own policies.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Apologise for the failures identified within it;
2. Pay the resident £350 in compensation, made up of:
  1. £100 for the distress caused by its handling of the resident’s reports that its operatives were not wearing PPE when completing an inspection;
  2. £100 for the distress caused by its handling of the resident’s reports about the conduct of its operatives;
  3. £150 for the distress caused by its complaint handling.
Considering the failings identified in this report, within eight weeks of the date of this report, the landlord is ordered to conduct training with its complaint handling staff to assist them in understanding the impact on a resident when responding to a complaint.