Clarion Housing Association Limited (202103372)

REPORT

COMPLAINT 202103372

Clarion Housing Association Limited

1 November 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 response to the resident’s reports of staff conduct during a telephone call in May 2020.
2. The landlord’s response to the resident’s reports of staff conduct during an inspection on 13 January 2021.
3. The landlord’s response to the resident’s reports of a contractor attending her property with symptoms of corona virus.
4. The landlord’s response to the resident’s reports of a loss of hot water and heating.
5. 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(a) of the Housing Ombudsman Scheme (the Scheme), the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s response to the resident’s reports of staff conduct during a telephone call in May 2020.
The Ombudsman would expect a resident to raise a formal complaint about dissatisfaction with a landlord’s actions or lack of action within a reasonable period, which would normally be within six months of the issues arising. This is because, with the passage of time, it is not possible to reliably investigate historical issues. Therefore, a determination will not be made about the complaint about staff conduct on a telephone call in May 2020. This is particularly because the landlord could not investigate this as it fell outside of its timeframe of six months for considering complaints, as per its policy.

Background and summary of events

The resident is a tenant of the landlord.
Work commenced on the resident’s driveway at the beginning of 2021. The work was suspended on 4 January 2021 when one of the workers who attended that day tested positive for corona virus. The landlord’s supervisor visited the property on 13 January 2021 to check that the site had been left safe. They noted that the resident had concerns over her children injuring themselves and she wanted “fencing all around the front garden”. The supervisor recorded that they had advised her to keep her children indoors until the work was complete.
The resident spoke to the landlord on 15 January 2021 to make a stage one complaint. It recorded her dissatisfaction with the workers who attended on 4 January 2021. The resident said that the workers showed clear signs of having corona virus and slept in their van when they should have been working. She said that the workers were unable to complete the work to the driveway and the landlord’s supervisor attended her property on 13 January 2021 to inspect a hole left in the driveway by the incomplete work.
The resident reported she informed the supervisor that her child had hurt herself because of the hole and the supervisor had “blamed” her for not supervising her child. She said that the supervisor had told her that there was nothing wrong with the hole being left as it was, despite her request for another line of tape to be used to cordon off the area more clearly. The resident pointed out that a worker had returned later to tape the area off which indicated to her that the supervisor had not acted correctly and she wanted to complain about his handling of the situation.
The resident was also unhappy about an occasion when she had to wait three days when she reported a lack of hot water or heating in the property. At the time, she was told by the landlord to boil kettles to provide hot water for bathing. The resident said that this was “unacceptable”. She was, however, unable to provide a date for when this occurred. The landlord therefore said it would provide details of its service standards for such an occurrence as there was no record of her report.
The resident expressed dissatisfaction with the content of telephone calls she received in May 2020; the landlord advised her that its complaints policy prevented it from investigating complaints about matters which occurred more than six months ago. It also said that, in any event, the call recordings would no longer be available as these were deleted after three months.
The landlord provided its stage one complaint response to the resident on 29 January 2021. It informed her that it had spoken to the supervisor’s manager about their actions on 13 January 2021 who had found that they had handled the matter correctly by advising her to look after her children and keep them indoors until the work to the driveway was complete. The landlord informed the resident that one of the workers who had attended her property on 4 January 2021 left the job prematurely due to rain preventing any further work. The worker then felt unwell on the way home and subsequently tested positive for Covid-19. The landlord confirmed that the worker did not have symptoms while at the property.
The landlord noted the resident’s report that she had previously reported a loss of heating and hot water which took three days for it to rectify. It noted that the resident was unable to provide a date for when this incident occurred and confirmed that it had checked its heating contractor’s records which did not show any repair reports being made within the previous six months. It confirmed to her the timeframes in which it should act on a report of not hot water or heating.
The resident emailed the landlord on 4 February 2021 to dispute that its supervisor had advised her to keep her children indoors. Furthermore, she said that, if she had been asked to do this, she would have challenged this as she felt that it could not “dictate this to people” and the supervisor was therefore rude. The resident said that the supervisor should have added more tape to cordon the area off, as she requested, rather than “tell [her] how to be a parent”.
The resident asserted that the landlord’s workers who had attended her property on 4 January 2021 were “clearly not well” as they took several breaks during which they fell asleep. She questioned its management of corona virus screening, referring to her call in May 2020 during which it insisted that she answer questions about corona virus, but said it did not apply the same to its workers. The resident felt that this had put her and her family at risk.
The resident acknowledged that the heating issue she reported was “a while ago” and that the details relating to this were not kept for long, but hoped that a Subject Access Request she had made would reveal more information. The landlord acknowledged her continued dissatisfaction on the following day and confirmed that her complaint had been escalated to the next stage in its complaints process.
The landlord emailed the resident on 17 March 2021 to confirm that it had discussed the complaint with her earlier that day and apologise for the delay in responding to her complaint, attributing this to a high workload. It recorded that her desired resolutions to the complaint were:
1. An apology from the supervisor who attended her property on 13 January 2021 and for him to be reprimanded.
2. An explanation of the corona virus screening procedures that the landlord carried out on its staff and reassurances about this.
3. Compensation for the loss of income and inconvenience caused to her and her family for having to self-isolate for two weeks following contact with its worker.
4. Information relating to her report of a loss of heating and hot water.
5. An explanation of its criteria for vulnerable tenants.
The landlord said that it would aim to provide a response to her within 20 working days but would provide an update to the resident on 31 March 2021.
On 1 April 2021, the landlord’s records noted that the worker who attended the resident’s property on 4 January 2021 had called her directly to advise that they had tested positively for corona virus and advised her to self-isolate for 14 days. When she subsequently called it to enquire about the outstanding driveway work, it informed her that it could not reattend the property until after the isolation period had ended. The landlord noted that it had given incorrect information on these two occasions.
The landlord issued its final complaint response to the resident on 28 April 2021 in which it advised her that it could not investigate her complaint about staff conduct on the call from May 2020 any further as its data protection policy prevented it from retaining calls for longer than 90 days. Regarding her complaint about the conduct of its supervisor on 13 January 2021, after consulting a more senior manager about this, it concluded that its stage one response to this addressed the complaint satisfactorily.
The landlord confirmed that it took corona virus screening “very seriously” and that its contractor’s staff were required to report any symptoms and check their temperature before any site visits. It advised her that the worker who attended her property on 4 January 2021 did not report any symptoms ahead of the visit and they did not experience symptoms until after they left the site later that day. The landlord confirmed that its staff followed government guidelines and wore masks while on site and noted that the worker did not need to enter the property as they were performing external repair work.
The landlord said that it did not have compensation in its policy to cover the resident’s family self-isolating for 14 days. It acknowledged that it could have managed its handling of the worker’s corona virus diagnosis better and explained that it was in the process of learning how to manage such situations at the time. The landlord assured the resident that it had a more coordinated approach between its teams to enable it to give clear advice in future. In recognition of the “misdirection” and inconvenience it had caused by its communication, it offered compensation of £250 to the resident.
The landlord reiterated that it had no record of the resident’s report of no hot water or heating within the last six months. It explained to her how it determined when a tenant may be vulnerable. The landlord offered £50 compensation to the resident for its delay in providing her with its final complaint response.
The resident advised this Service on 11 May 2021 that she continued to be dissatisfied with the level of compensation the landlord provided for her self-isolating for 14 days, that it “put her family at risk” by sending a worker who had contracted corona virus and the conduct of the supervisor who inspected the driveway on 13 January 2021.

Assessment and findings

Policies and procedures

The landlord’s complaints policy provides for a two-stage complaints procedure. At stage one of this procedure, it will aim to provide a response to the resident within ten working days, and within 20 working days at the final stage of the procedure. If it is unable to meet these timeframes, it is to explain to the resident why there has been a delay, keep them informed and provide a timescale for resolution. This policy confirms that it will not consider complaints about a matter closed over six months ago, unless the matter is an ongoing issue.
The landlord’s compensation policy provides for payments of £50 to £250 where there has been a service resulting in some impact on the resident, such as a failure to meet service standards for actions and responses, but where this had no significant impact. This policy provides for payments of £250 to £700 to be offered in cases where it had misdirected the resident by giving incorrect information about a resident’s rights.

The landlord’s response to the resident’s reports of staff conduct during an inspection on 13 January 2021

It is noted that the resident found the advice of the landlord’s supervisor on 13 January 2021 to keep watch her children and keep them away from the hole in the driveway to be disagreeable. However, perceptions of what are offensive or not can be subjective and the fact that she was offended by the supervisor’s advice did not automatically mean that they behaved in a way which was unacceptable or unprofessional. There was no third-party independent evidence of what was said on that date and therefore the Ombudsman will not form a view on whether the supervisor’s behaviour was appropriate. Instead, it is this Service’s role to decide whether the landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it.
It is not disputed that the hole in the driveway was cordoned off with tape. While works are in progress and a hazard exists, it would be expected of a landlord to ensure that the resident was aware of the danger and take reasonable steps to reduce any danger posed. The landlord acted reasonably, therefore, in ensuring that the hole was cordoned off to highlight the potential for an accident. While the resident disputed that the existing measures were sufficient, the fact that the landlord returned after the inspection to mark the area with more tape showed that it acted reasonably by taking her concerns into account, and did not mean that it had not acted reasonably to begin with.
As there was no independent third-party evidence recording the events during the inspection on 13 January 2021, it was reasonable for the landlord to investigate the complaint by consulting the supervisor’s manager at stage one of the complaints process, and a more senior manager at the final stage. Due to the lack of evidence, this was a reasonable and practical approach in the circumstances. Therefore, in all the circumstances of the case, the landlord acted reasonably and there was no evidence of a failure on its part.

The landlord’s response to the resident’s reports of a contractor attending her property with symptoms of corona virus

While the resident and the landlord’s accounts vary as to whether its worker presented symptoms of corona virus during their attendance at her property on 4 January 2021, there was no conclusive evidence that the worker was unwell during the visit. The explanation of the corona virus detection measures that it gave in its final stage complaint response, that staff were required to report symptoms and have their temperature checked, was reasonable. Based on these measures, it would not have been reasonable to expect the landlord to be aware that the worker had corona virus before they reported experiencing symptoms after leaving the property.
The landlord acted reasonably in informing the resident that the worker had tested positive for corona virus after their visit to the property on 4 January 2021, however, it acknowledged that it did not give the correct advice to her by advising her to self-isolate for 14 days. In its final stage complaint response to her, it recognised that its advice was misleading and offered compensation of £250.
The Ombudsman’s remedies guidance, which is available to view at https://www.housing-ombudsman.org.uk/wp-content/uploads/2020/11/Remedies-Guidance.pdf, provides for awards of compensation of between £250 and £700 where there has been “misdirection – giving contradictory, inadequate or incorrect information about a complainant’s rights” and “considerable service failure… but there may be no permanent impact on the complainant”. This is mirrored in the landlord’s compensation policy above. The landlord therefore offered a reasonable amount of compensation, which proportionately reflected the likely level of inconvenience and distress caused to the resident, and was in accordance with both its compensation policy and this Service’s guidance.
The resident’s desired resolution was for compensation to cover her and her family’s lost income during this period of self-isolation. It must be borne in mind that the landlord was not the definitive source of health information concerning self-isolation for exposure to corona virus. More authoritative sources of information were available, such as the NHS or the Government’s website, which would have clarified the resident’s rights in this situation. Therefore, while there was a failure on the landlord’s part in its responsibility to provide correct information, it offered reasonable redress for this and the resident may wish to seek legal advice to determine whether the landlord may be considered liable for any loss of earnings.

The landlord’s response to the resident’s reports of a loss of hot water and heating

The resident was unable to provide the details of when she experienced a loss of heating and hot water, and it was unclear whether this occurred within six months of her raising a complaint about this. As this date was unclear, the landlord would be expected to check its records to investigate this. It confirmed, in its stage one and final stage complaint responses that its heating contractor’s records held no record of the resident’s report of this. As the landlord’s complaints policy above states that it will not consider complaints about matters predating the complaint by more than six months, it was reasonable for it to conclude that the report was historical and not investigate the matter further.
The landlord made reasonable efforts to investigate the complaint, in accordance with its policy, based on the information available to it and provided information about repair priority and vulnerability to the resident in line with her requests. It therefore responded reasonably and there was no evidence of a failure on its part regarding this aspect of the complaint.

The landlord’s handling of the associated complaint

The landlord received the resident’s complaint on 18 January 2021 and provided its stage one complaint response to her on 29 January 2021, after nine working days. This was in accordance with its complaints policy above which specifies that it should provide a stage one complaint response within ten working days of receipt.
The landlord received the resident’s request to escalate her complaint on 5 February 2021 but then did not contact her again about this until 17 March 2021, 28 working days later. It then did not provide its final response to her until 28 April 2021, a further 29 working days later. The landlord, therefore, took 57 working days to provide its final response to the resident. This was an excessive delay and exceed its timeframe of 20 working days to provide a final response, as specified in its complaints policy above.
In its contact with the resident on 17 March 2021, the landlord apologised for the delay and provided a reason for this, and pledged to update her on 31 March 2021; there was no evidence of this. It therefore did not act in accordance with its complaints policy above, as it failed to keep the resident informed of progress.
The landlord, in its final response to the resident, acknowledged its delay in providing its final complaint response and offered her £50 compensation for this. The Ombudsman’s remedies guidance provides for payments of £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”; this is mirrored in the landlord’s compensation policy. As there was no evidence of detriment to the resident caused by the landlord’s delay in responding to the complaint at the final stage, the offer of £50 was broadly in accordance with both its policy and this Service’s guidance and represented an offer of reasonable redress to her, which was proportionate the likely level of inconvenience caused.

Determination (decision)

In accordance with paragraph 39(a) of the Scheme, the landlord’s response to the resident’s reports of staff conduct during a telephone call in May 2020 is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in:
1. The landlord’s response to the resident’s reports of staff conduct during an inspection on 13 January 2021.
2. The landlord’s response to the resident’s reports of a loss of hot water and heating.
In accordance with paragraph 55(b) of the Scheme, the landlord offered redress to the resident prior to investigation which, in the opinion of the Ombudsman, resolves the complaints satisfactorily concerning:
1. The landlord’s response to the resident’s reports of a contractor attending her property with symptoms of corona virus.
2. The landlord’s handling of the associated complaint.

Reasons

The reason for our position on the telephone call of May 2020 has been detailed in paragraphs 3 and 4 (above).
The landlord made reasonable efforts to investigate the resident’s report of the supervisor’s conduct on their visit on 14 January 2021.
The landlord made reasonable efforts to investigate the resident’s report of a loss of heating and hot water, in accordance with its policy.
The landlord acknowledged its failures in its response to the resident’s report of a worker attending her property with symptoms of coronavirus and made a reasonable offer of redress to her.
The landlord acknowledged its failures in the handing of the resident’s complaint and made a reasonable offer of redress to her.

Recommendations

The landlord should:
1. Pay the resident the amount of £300 compensation it offered her in its final stage complaint response.
2. Review its procedures in dealing with corona virus and ensure that this is available to residents and carried out consistently across its organisation.