Bolton at Home Limited (202000136)

REPORT

COMPLAINT 202000136

Bolton at Home Limited

8 December 2020

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 resident has complained:
1. That the landlord’s policy for gas safety checks does not comply with the rights of tenants.
2. About the landlord’s response to concerns which were raised about gas safety checks taking place every 10 months.
3. About correspondence he received from the landlord relating to antisocial behaviour (‘ASB’), and the landlord’s decision not to open a formal complaint.
4. About complaint responses the landlord issued in 2019.

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.

Gas safety checks

In correspondence to this Service, the resident has raised concerns that the landlord’s policy for gas safety checks allows it to “ignore the law and rights of tenants’ by carrying out safety checks ‘as often as every 7/8 months”.
Paragraph 39(f) of the Housing Ombudsman Scheme states – “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern policies which have been properly decided by the member in accordance with relevant and appropriate best practice, unless the policy may give rise or contribute to a systemic service failure”.
The Ombudsman has not seen any evidence which shows that the landlord’s policy regarding gas safety checks may give rise or contribute to a systemic service failure, and as such, an investigation into the policy itself falls outside of our jurisdiction. However, the Ombudsman has investigated how the landlord responded to the concerns raised by the resident.

Complaints made in 2019

In correspondence to the Ombudsman in July 2020, the resident has also raised concerns about complaint responses he received in March 2019.
Paragraph 39(d) of the Housing Ombudsman Scheme states – “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure”.
Within his correspondence, the resident has acknowledged that these complaint responses were issued more than 12 months ago before he raised the matter with the Ombudsman. However, he says that he was unable to refer them sooner for a number of reasons. Namely, that the letters were misplaced and the resident had been trying to obtain copies from the landlord. He was ultimately able to obtain copies by making a Subject Access Request (SAR). However, as a result of the SAR, the resident received a number of additional documents which he believes demonstrate that his complaints were not dealt with fairly.
Whilst the resident’s comments have been noted, the complaint could have been referred to the Ombudsman in the absence of the letters. This Service could have requested a copy of the relevant letters, and then subsequently requested further evidence relating to the complaint to investigate the matter and make a decision. Given the time that has lapsed, the Ombudsman is unable to investigate these complaints now.

Background and summary of events

The resident is a tenant of the landlord’s property.
At the beginning of May 2020, the resident wrote to the landlord and said that he wished to make a formal complaint. He said:
1. His gas equipment was installed on 17 July 2019 and it was therefore three months before his annual gas servicing check was due to be completed.
2. However, as the servicing had not been completed, he had received ‘many threats’ from the landlord including large fines, forcible entry to the property, the disconnection of the gas supply and court action – amongst other things.
3. To undertake the servicing in advance was not preferrable to him and he would like an appointment to be scheduled closer to the ‘due date’.
4. Given the Coronavirus pandemic, he did not wish for the servicing to be undertaken at that point in time ‘many months before necessary’. He added that the landlord’s website detailed that it was operating an emergency repairs service only.
5. The letters he had received had put him under a great deal of stress, and increased his anxiety.
The landlord issued its stage one response to the complaint on 5 May 2020. In its letter, it said as follows:
1. The resident’s boiler was fitted in July 2019, and it would only be able to gain a warrant to force entry after that date. However, its Gas Servicing programme ran separately from repairs and installations, and on a 10-month cyclical programme.
2. As a result, the resident’s first appointment for a gas service was in March. This was based on his geographical location, and was scheduled the same way in which the landlord schedules its checks at 15,500 gas properties. It added that this way of working allowed it to work in the most efficient way.
3. With regards to the resident’s appointments, as the first two were ‘no accessed’ the resident began to receive its automated Estate Management letters. These were followed by a pre-abatement letter on 29 April. It added that this was in line with its reasonable steps process for gas safety checks.
The resident was dissatisfied with the response he received from the landlord. He said that the letters which he had received were not lawful, and that they caused him distress.
The landlord addressed the resident’s comments when it issued its stage two response on 4 June. In its letter, it said:
1. It had a legal duty to complete a safety check on gas appliances.
2. A telephone conversation took place between the resident and one of the landlord’s managers on 4 May. During this conversation, the manager explained the servicing plan and why the check had been scheduled ahead of the 12-month cycle.
3. It acknowledged that the resident found the tone of some of the letters to be threatening, but they did form part of an agreed policy – which provided ‘plenty of opportunity for customers to get in contact with concerns and to make alternative appointments at the earliest opportunity’. It added that the tone only escalated when contact had not been forthcoming and access had continued to be denied.
4. For legal action to obtain access it would have be demonstrated that the certificate was older than 12 months. However, it would always try to avoid legal action – and to that end would attempt to complete checks ahead of when the certificate was due to expire.
5. With regards to the resident’s concerns about checks during the pandemic, the landlord advised that it had been confirmed by the Government that it a remained a legal requirement for gas safety checks to be completed. In the case of vulnerable residents, their checks could be put on hold.
6. As a result, it had been sending revised texts to customers querying whether they were shielding – and calling two days before the appointment.
7. It apologised for any concern that had been caused, but it had adhered to its published policy. As the complaint was ‘ultimately one against the policy’ it did not constitute a service failure.
The resident was dissatisfied with the landlord’s response and asked the Ombudsman to investigate his concerns. Later, in July 2020, the resident contacted the Ombudsman and advised that he had received two letters from the landlord in May 2020, and he was unhappy with the contents of them. He said that the landlord had alleged that he had been using drugs in his property and within communal areas and that this had been causing distress to other residents.
The resident added that he had tried to complain about the letters, but the landlord had told him it was dealing with the matter as a ‘service request’ and not a complaint. The resident said that the manner in which the landlord had chosen to deal with the matter was causing him a large amount of distress.

Landlord’s policies and procedures

In relation to gas servicing and safety checks, the landlord’s repairs policy provides as follows: “(The landlord is) legally obliged to carry out an annual gas safety check of appliances and pipes in our occupied properties. It is mandatory for tenants to give our operatives access to the property to carry out this check and not doing so may result in legal action being taken and associated costs being incurred by the tenant.”
The landlord’s ASB policy states that no resident should have to tolerate such behaviour, and that reports will be “treated seriously and dealt with professionally”. It agrees to:
1. Treat all reports as confidential
2. Assess, and periodically reassess, the seriousness of ASB reported to it
3. Ensure that any criminal ASB is quickly passed to the police
4. Register each report of ASB and provide it with a unique reference number
5. Appoint a named officer to lead on each case
6. Fully investigate the complaint
7. Continue to treat any reports or case received as ‘live’ until, in the opinion of the lead officer and the lead officer’s manager, it can be closed
8. Notify the reporter when a case is closed

Health and Safety Executive guidance

The Health and Safety Executive (HSE) guidance and legislation says that the landlord has a duty to ensure that it carries out gas safety checks on products installed at its properties. With regards to the frequency of such checks, the HSE guidance states that the landlord must ensure that gas appliances re checked for safety “within 12 months of being installed and at intervals of not more than 12 months since it was last checked for safety”.
As such, landlords are required to complete a gas safety check before a year has lapsed since the last check, or since the appliance in question was installed. It follows that notifications or appointments for such checks may be received in the months leading up to the 12 month mark. Where a landlord has a number of properties to check, it may commence the checks earlier than the tenth or eleventh month so as to ensure that each property or appliance has been satisfactorily checked.

Assessment and findings

Gas safety checks

The resident’s dissatisfaction with the landlord’s gas safety check policy has been noted. As detailed above, the Ombudsman cannot make a decision regarding the policy itself as this falls outside this Service’s jurisdiction. However, the Ombudsman has investigated how the landlord responded to the resident once he raised his concerns.
In his complaint to the landlord, the resident said that the system at his property had been installed in July 2019, and as such sufficient time had not passed for the annual check to be required. In response, the landlord acknowledged that this was the case; however, it said that its policy was to conduct safety checks on a 10-month cycle – so as to ensure that all appliances were satisfactorily checked and tested. This was an appropriate response. The HSE guidance, as detailed above, requires landlords to ensure that checks are completed within 12 months of the last check. As such, the landlord has a legal obligation to check gas appliances installed at its properties before that year has lapsed. The landlord satisfactorily explained this, and the extra measures it was taking given the Coronavirus pandemic. Further, the landlord explained why the resident had received the series of letters, and that these were part of its standard procedure.
It is noted that the resident considered the tone of the letters relating to the safety check to be threatening. The Ombudsman does not seek to dispute how the resident perceived the letters. However, having reviewed the correspondence, they do appear to be standard letters detailing the measures that the landlord may take if access is not provided. Furthermore, the potential actions referred to in the letters mirror the ‘Reasonable steps to gain access’ procedure detailed within the landlord’s policy. It follows that the Ombudsman is satisfied that the landlord appropriately followed its policy when seeking to carry out gas safety checks at the property and that its action do not amount to service failure.

Antisocial behaviour

In July 2020, the resident asked the Ombudsman to investigate concerns he had about correspondence he had received from the landlord in relation to anti-social behaviour. The letter from the landlord, dated 27 May, said: “Recently a complaint has been received by the Neighbourhood Safety & Enforcement Service regarding allegations of yourself and visitors to your property smoking cannabis in your property and the communal area at your property. This is causing distress to those that live within the vicinity”
The letter continued: “The use of drugs … is a breach of tenancy conditions and could put your tenancy at risk. I must therefore ask that with immediate effect there are no further incidents and I hope the matter could be resolved with your full co-operation”
The letter invited the resident to get in touch if he wished to discuss the matter. The resident contacted the landlord accordingly to raise concerns about the letter and that the landlord had accepted the allegations against him “as fact”.
When the landlord did respond to the resident on 6 June 2020, it said:
1. It had received a report from an anonymous source about allegations of drug use at the resident’s property.
2. It receives such residents ‘across the borough’ on a regular basis; and in each case it follows the same procedure by issuing a standard letter.
3. The letter provides information to the tenant that a report has been received, and details how continued use might affect their tenancy.
4. It was sorry if the letter caused the resident distress and that he viewed the contents as ‘threats’.
5. It was not able to accept the matter as a complaint as it had not failed in its service to him.
As detailed above, the resident was unhappy with the response – and the landlord’s refusal to accept his dissatisfaction as a complaint. He therefore asked the Ombudsman to investigate his concerns.
The Ombudsman acknowledges that there may be some instances where it may not be appropriate for an expression of dissatisfaction to be treated as a complaint. However, the landlord’s complaints policy does not detail the circumstances under which it will not follow its complaints procedure when responding to a resident. As a result, it is unclear why the landlord departed from its complaints procedure when dealing with the concerns that were raised by the resident. It is noted that the landlord said it was unable to accept the matter as a complaint as it had not failed in its service; however, the landlord has not demonstrated how it reached this conclusion without a formal complaint investigation.
Given the allegation which was being made, and the concerns that had been raised, it would have been appropriate to issue a formal complaint response. Within this, the landlord could have provided further detail about the report it had received, and why it considered its actions in writing to the resident were proportionate and appropriate in the circumstances. As the landlord did not take such action, the resident raised further concerns about why the matter had not been dealt with as a formal complaint; and as a result, it missed an opportunity to resolve the matter and to engage with the resident.
With regards to the report itself and the actions taken by the landlord, it has informed the Ombudsman that no case was opened on that occasion. Rather, it received one report and the letter was issued to the resident accordingly. This was not appropriate.
The landlord has a duty to investigate allegations and reports of ASB; and it agrees to investigate all reports under its ASB policy as quoted above. An investigation into the report would reasonably involve speaking with both the reporting party, the alleged perpetrator and considering any corroborating evidence. Once these steps have been taken, the landlord can properly decide what action, if any, it should take to stop the behaviour from recurring. If the landlord does not have sufficient evidence to corroborate the report, then it would be reasonable for no action to be taken.
The landlord has not been able to demonstrate that the report was investigated prior to writing to the resident and that it had seen evidence which corroborated the report. As such, it appears that the landlord acted solely on the report it had received, without speaking to the resident to obtain his comments. This was inappropriate and a departure from the landlord’s policy.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was:
1. No maladministration in the landlord’s response to concerns which were raised about gas safety checks taking place every 10 months.
2. Maladministration in relation to the complaint about ASB correspondence the resident received from the landlord, and the landlord’s decision not to open a formal complaint.

Reasons

The landlord acknowledged that it had not been a year since the installation of gas equipment at the property; however, it clearly explained the reason why it was undertaking gas safety checks. As the resident declined to provide access, the landlord issued correspondence detailing the measures it could take to ensure that the equipment was checked. Whilst it is acknowledged that the contents of the letters caused the resident distress, they were not inappropriately heavy-handed and were in line with the procedures detailed in the landlord’s policy.
The Ombudsman has not seen evidence which shows that the landlord investigated the report of alleged ASB fairly and in line with its policy prior to writing to the resident. It follows that it was not appropriate for the landlord to write to the resident as it did. The resident subsequently raised concerns about the landlord’s actions, but it declined to treat the matter as a formal complaint. The Ombudsman has seen no evidence as to why the landlord departed from its policy. However, as a result of its decision to do so, it missed an opportunity to discuss the matter with the resident with a view to resolving the matter.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Write to the resident to apologise for the failings identified by this investigation.
2. Pay the resident £150 compensation for the inconvenience caused by the failings.

Recommendations

Within 12 weeks of the date of this determination, the landlord should remind its staff of the procedures detailed in both the antisocial behaviour and complaints policy, and that these should be followed in each case.