Clarion Housing Association Limited (202012576)

REPORT

COMPLAINT 202012576

Clarion Housing Association Limited

30 September 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 the landlord’s response to the resident’s concerns about its contractor having damaged a gas pipe which resulted in a gas leak.

Background and summary of events

The resident is a leaseholder and the complaint has been brought by her representative.

Scope of investigation

The background to this complaint is that it stems from a number of complaints made by the resident to the landlord about damp problems in the resident’s home. The original repairs to remedy the damp problem was done in 2018 but this was unsuccessful. The first complaint was logged on 8 April 2019 and was closed by the landlord on 14 May 2019. The resident then provided further evidence of an ongoing damp problem and a new complaint was logged on 22 July 2019. This complaint was closed by the landlord on 7 October 2019.
Neither the first complaint in April 2019, nor the second complaint in July 2019, have completed the landlord’s internal complaints process. Furthermore, neither complaint was brought to the Ombudsman within 12 months. Therefore, this report will only address the complaint that was logged on 26 November 2019 and it will consider events up until the final complaint response of 4 March 2020.

Policies, procedures, and agreements

Compensation policy:

This allows the landlord to consider discretionary compensation payment ‘to recognise a particular adverse effect and impact on a complainant’. Awards of between £50 to £250 may be used for instances of service failure resulting in some impact on the complainant. Awards over £250 can be used in ‘cases where cases where we find considerable failure but there may be no permanent impact on the complainant.’ The impact experienced by the complainant could include distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved.
The policy states that compensation payments will be considered on a case-by-case basis but where we have made mistakes, we will take ownership for them.

Summary of events

The resident’s representative has said that on 25 November 2019 the landlord’s contractor attended to carry out damp-related repairs to the living room wall. The representative noticed that the gas pipe, which was originally connected to a gas fire in front of the chimney breast, which was being worked on by the contractor, appeared bent at an angle. She said she pointed this out to the contractor but he did not consider it to be a serious issue. The resident has said that the contractor left for the day and did not inform her of any issues with the gas pipe, or that it may be leaking.
The representative has said that later that evening her plumber, who was attending for a separate issue, noted a smell of gas in the living room. He was able to turn off the gas from the meter. The gas company then attended and confirmed that there had been a gas leak from the gas pipe to the old fire. As the gas had been shut down the resident was left with no heating or hot water for the night.
The next morning, on 26 November 2019 at 6:45am the resident’s representative lodged a formal complaint to the landlord by email. She explained what had happened the day before about the contractor damaging a pipe which had resulted in a gas leak. She said that the contractor had left the property without informing her that there was a gas leak. She explained that the flat was now extremely cold and she asked that the landlord repair the pipe and provide emergency heating until the pipe is fixed.
The landlord did not respond to this email so the representative followed this up with a call to the landlord around 9am. She has said that she was informed by the landlord that as the resident was a leaseholder it was the resident’s responsibility to fix the gas pipe and not the landlord’s. It also told her that it was not able to provide temporary heating.
The landlord’s internal communication at this time showed that it was making further enquiries about the incident. It asked its contractor team to complete a property incident form to record the incident and to submit a copy to its central Health & Safety team. It acknowledged that although the resident was a leaseholder, she was elderly and vulnerable, and as such it should offer temporary heaters as a goodwill gesture.
With regards to the repair of the damaged pipe, it instructed its customer team to contact the representative and advise her that she would need to arrange for her own gas contractor to attend and repair the pipe and reinstate the gas supply. It would however consider reimbursement of this cost as part of the complaint.
At around 10am that same morning, the landlord confirmed to the representative that it would now arrange for an engineer to attend and repair the pipe, and it would also be providing three fan heaters that afternoon.
On 28 November 2019 the representative sent a chaser email to the landlord as she had not received a formal acknowledgement of her complaint.
The landlord responded on 29 November 2019 acknowledging the complaint and it said that this had been passed to its Complaints Team to deal with.
The correspondence shows that the damaged gas pipe was repaired on 29 November 2019.
On 4 December 2019 the resident’s representative emailed the landlord with more details about her complaint and she raised several questions about how the landlord deals with such incidents. She also reiterated her point that the contractor had left the property knowing the gas pipe was leaking and he did not inform her of this, and it was just by chance that the gas leak was discovered later that evening.
On 19 December 2019 the representative confirmed that the damp works (unrelated to this complaint) were completed. On this date the landlord also contacted the representative to discuss the complaint.
The landlord issued its Stage 1 complaint response on 6 January 2020:
1. It said that its contractors were trained to deal with health and safety matters, and in this case the contractor was fully trained with regard to how to escalate matters if there was a suspected gas leak. However, the contractor was not a registered gas engineer and he therefore could not carry out any gas pipework repairs. The landlord said that it believed that the contractor had informed the representative that the pipe was leaking and he advised her that a qualified gas engineer would be needed to resolve this.
2. It apologised if on this occasion the representative had felt that the landlord had not taken due regard to its duty of care towards the resident. It maintained that this was an isolated incident, which was investigated internally and addressed with the contractor directly.
3. It said that it acknowledged the distress caused but it was unable to compensate for stress through its complaints process.
4. The complaint was not upheld as there had been no service failure, and the landlord apologised if the incident had caused the resident distress.
On 5 February 2020 the representative escalated the complaint. This was acknowledged by the landlord on 11 February 2021. It then started its peer review process and asked for all parties to provide their comments in response to the specific points raised in the complaint.
The internal correspondence over the next few days showed that the landlord accepted that there had been a failure on the part of the contractor. The central Health & Safety Team were advised of the incident via email on 26 November 2019 and requested an urgent investigation be completed. That investigation was completed by the Health & Safety Team on 10 December 2020. It showed that the contractor knew that the pipe was damaged and conducted a water bubble test, advising the resident that they should call an emergency gas repair. The investigation found that the contractor did not inform his line manager. The landlord accepted that this was a ‘serious error’ on the part of the contractor and they should not have knowingly left the resident in that situation.
The investigation also confirmed that the contractor had since received further training regarding its incident reporting process. The landlord confirmed that following this incident a companywide alert was sent to all its contractors reminding them of the need to be careful of pipework when carrying out works. The Group Health & Safety Team also asked for confirmation that relevant task risk assessments would be updated to reflect this and confirmation was received that they would be.
The landlord carried out a review of its communication with the representative around the time of the incident. It could not obtain call recordings of the calls and referred to the available call notes. It confirmed that its initial advice to the representative was correct, in that as a leaseholder, it was the resident’s responsibility to repair the gas pipe inside her flat. However it was then decided and agreed by senior management that it would instruct its own gas engineer to attend and carry out the repair.
Further internal enquiries were carried out as part of the peer review and it was established that the contractor had accidentally damaged the gas pipe when a piece of render had fallen off the wall. It was satisfied that the contractor had not deliberately or negligently caused the damage. The contractor’s advice to the representative to call a gas engineer was not incorrect as he was not a gas engineer himself. The failing on his part is that he did not call the area Manager or call the landlord’s repair team to advise them of the situation. The representative was made aware of the situation and she agreed she would call the gas company directly.
The landlord issued its Stage 2 final complaint response on 4 March 2020:
1. It reiterated its stance from the Stage 1 response that the damage to the gas pipe was an isolated incident which had been investigated and addressed with the operative involved. It apologised if the accident had caused the resident distress but it was unable to offer compensation for this as there had been no service failure.
2. It accepted that the contractor did not notify the landlord of the gas leak for appropriate action to be taken. Not reporting the accident immediately was identified as an error on the part of the operative and had been addressed accordingly.
3. It maintained that it was an isolated accident and not deliberate or negligent. The incident was reviewed internally and a formal investigation was carried out.
4. It explained that as the resident was a leaseholder, she would not be able to use the landlord’s gas engineer and she would have to arrange her own engineer. However, in an effort to assist it was later decided and agreed by senior management that it would instruct its gas engineer to attend so as not to cause any further delays or inconvenience.
5. The landlord said that it had learnt lessons from this incident which had led to further training of its contractors to ensure that the correct procedure is followed if an accident like this was to happen again. It also sent out a reminder to all its contractors about safeguarding pipework when doing repairs.
6. With regards to the complaint handling, it said that its service standard was that the Customer Solutions Team would contact within 5 working days of receipt of the complaint but in this case contact was not made until 19 December 2019. It accepted that this was a service failure and feedback had been provided to the team to prevent reoccurrence.
7. It said that it could not offer compensation for stress and anxiety under the complaint and compensation policies. However, in recognition of the time and effort spent pursuing this case, and recognising the inconvenience caused, it offered £100 discretionary compensation.

Assessment and findings

The resident’s representative has said that the key concern is that the landlord has not properly taken into account the seriousness of the gas leak incident and the potential catastrophic consequences that could have occurred. These concerns are duly noted but the role of the Ombudsman is to provide an independent review of the landlord’s actions in its response to the resident’s concerns and complaint. It is not disputed that had the gas leak not been detected when it was, there was the potential for very serious consequences such as an explosion. However, the Ombudsman is required to assess what actually happened based upon the facts and the available evidence, and thankfully the gas leak was identified early and it did not lead to any significant consequences.
Looking now at the issue of how the landlord responded to being notified of the incident, its initial advice to the representative to get their own gas engineer to repair the pipe was technically correct. As the resident is a leaseholder she is responsible for such repairs within her home. Having said that, given the particular circumstances of the incident the landlord was quick to acknowledge the resident’s age and vulnerability and it duly offered to carry out the repair itself. This was reasonable and a genuine effort by the landlord to assist.
The landlord acted appropriately by promptly ensuring that the incident was logged correctly with its Health & Safety Team. It also initiated an internal investigation into the incident. The landlord was quick to accept that its contractor had failed to properly notify the relevant parties of the incident and that this was indeed a service failure.
However, there is a dispute between the landlord and the representative about whether or not the contractor told the representative that the damaged gas pipe was leaking. The landlord’s position is that the contractor has said he carried out a ‘water bubble test’ on the pipe and this confirmed a gas leak, and he then told the representative to call an emergency gas engineer to resolve this. The representative has disputed this and she has said in her complaint responses that the contractor did not do any test on the pipe and nor did he tell her that there was a gas leak and/or that she needed to call out a gas engineer.
Given the lack of any clear evidence to confirm either party’s version of events, the Ombudsman has taken a view on the balance of probabilities based upon a consideration of the circumstances. The landlord does not dispute that there was a gas leak. The Ombudsman is of the view that had the contractor told the representative on the day that there was a gas leak, she would have, in all likelihood, contacted the gas company immediately herself. There is no reason to think that any reasonable person would not call an emergency gas engineer if they were informed of a suspected gas leak. Furthermore, it was not reasonable for the contractor to simply advise the representative of the need to call a gas engineer and then leave the property knowing that there was an active gas leak. At the very least, he should have turned off the gas supply and arranged for a gas engineer to attend and not leave this to the representative to arrange.
The landlord’s internal correspondence shows that the landlord acknowledged that its contractor knew that the gas pipe was leaking and he did not follow the correct procedure for dealing with this. He essentially left the property with a gas leak and did not report it to his line manager or the repairs team. The reason he did not report it was because he thought it would be quicker and easier for the resident to call the gas company out herself rather than wait for the landlord to respond to his report. However, as explained above, there is no evidence to show that he notified the representative of the suspected gas leak. The fact of the matter is that the contractor should not have left the property when he knew there was a suspected gas leak.
The resident has said that she is concerned the landlord has not taken ownership of its mistakes in this case. Looking at the available evidence, the landlord has admitted its failure and has accepted that the error on the part of the contractor was a serious one and he should not have knowingly left the resident in this situation. There is no evidence to show that the landlord dismissed the resident’s concerns or that it did not take the seriousness of the incident into account. The fact is that it has said that additional training has been provided to its contractors and the evidence shows that it carried out an internal review and has proposed changes to its work processes. This shows that the landlord has considered the implications of the incident and has sought to learn from it so as to avoid a similar situation in the future. The evidence shows that this was an isolated incident and the landlord has acted appropriately to address it.
It is noted that the landlord accepted that its Stage 1 complaint response was not as thorough as it could have been. It therefore took the opportunity to fully review the complaint again as part of its peer review exercise. This was appropriate and allowed the landlord to rectify any shortcomings in its Stage 1 response.
The landlord has carried out an in-depth review of the complaint and it has recognised service failure and offered £100 compensation for any distress and inconvenience caused. The landlord’s complaints policy states that, where compensation is considered appropriate, the award should take into account the impact of the service failure on the resident. In addition to the landlord’s policy, the Ombudsman has the discretion to determine the most appropriate remedy given the circumstances of the complaint.
In assessing an appropriate level of compensation, the Ombudsman takes account of a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s actions. It also considers whether any redress is proportionate to the severity of the service failure by the landlord and the impact on the resident.
In this case the Ombudsman has considered the landlord’s offer in light of the facts of the case and the available evidence, and it takes the view that the landlord’s offer is not reasonable redress for the service failure, and it does not fully take into account the distress and anxiety caused to the resident or the potential seriousness of the consequences of the contractor’s failures.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of the resident’s concerns about its contractor having damaged a gas pipe which resulted in a gas leak.

Reasons

The landlord has responded positively and proactively to the resident’s concerns and has demonstrated that it has learnt from the complaint. This is to be commended. However, its offer of compensation is not reasonable or proportionate to the distress and inconvenience caused to an elderly and vulnerable resident.

Orders and recommendations

Order

The landlord should, within four weeks of the date of this report:
1. Pay the resident an additional £400 compensation (on top of its original offer of £100) for any distress and inconvenience caused by the service failure identified in its handling of the gas leak. This takes the total compensation award payable by the landlord to £500.
Evidence of the payment of compensation to be provided to this Service within four weeks.