Eastbourne Borough Council (202215189)

REPORT

COMPLAINT 202215189

Eastbourne Borough Council

19 January 2024

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 landlord’s response to the resident’s concerns about the conduct of its contractor’s operatives.

Background and summary of events

2. The resident is a secure tenant of the landlord, whose tenancy commenced on 24 February 2014. The property is a 2 bedroom house. The resident lives at the property with his wife and child.
3. On 3 September 2021, 2 operatives from the landlord’s repairs contractor were carrying out work in the resident’s property. The operatives left the property prior to completing the work.
4. The contractor emailed the landlord later that day. It claimed that its operatives had withdrawn due to the resident “badgering” them and acting in an “unpredictable” manner which had “worried both operatives”. It said they had left behind some dust sheets which it felt it was not appropriate to retrieve under the circumstances. The contractor provided written statements about the events from both operatives and advised that it had marked the property as requiring operatives to ‘visit in pairs’ going forwards.
5. The resident emailed the landlord on 20 January 2022. He said that the operatives had left the property “in an unacceptable manner and in dangerous condition” on 3 September 2021. He claimed that he had slipped on the dust sheets that had been left behind and fallen down the stairs caused injury to his back and neck and post traumatic stress. He asked the landlord to send him the appropriate form to log this on.
6. The landlord provided an incident form on 26 January 2022, which the resident completed and returned the same day. On 27 January 2022, the resident told the landlord that he felt he had been subject to “racial/Islamaphobia discrimination” during the incident.
7. On 28 January 2022, the landlord suggested that it arrange a meeting with the resident to discuss this allegation, along with several other matters which are not subject to this investigation.
8. A meeting was held between the resident and his wife, the landlord and the contractor’s operations manager on 15 February 2022. The resident and his wife said that:
   1. They did not feel there had been sufficient investigation and feedback as to why the operatives left the property and that nobody had taken the time to ask them about the incident.
   2. They had asked one of the operatives numerous times to remove their shoes and wear a mask, which they had ignored. This operative had also refused an offer of a cup of tea in a “very loud and rude way” and had kicked a prayer matt and hijab that were in the property.
   3. The operatives had left “unsafe items” including a screwdriver and paint tin lid behind in addition to the dust sheets – which had led to the resident falling down the stairs.
   4. They felt that the operative’s actions were discriminatory towards them.

The landlord said it would “check the required action for a report of racial discrimination or any other type of discrimination for the required investigation to take place, and if this was dealt with under the complaint process, or a different process”.

9. On 24 February 2022, the landlord emailed the resident asking if he was willing to allow the contractor to continue works in his property with the operations manager providing “close supervision”. It informed him that if he was not, it would look for an alternative contractor, but this would cause further delays.
10. The landlord decided to deal with the resident’s allegations towards its contractors operatives under its complaints process. A complaint was logged on 4 March 2022. The landlord wrote to the resident on 10 March 2022, it advised that the allegations were “being reviewed by the relevant Human Resources (HR) department” and that following this it would update him with “any relevant outcomes or decisions”.
11. The landlord provided its stage 1 complaint response on 23 March 2022. It said that the contractor’s HR department had reviewed the allegations and found differing versions of events provided by the resident and its operative – with no “substantive evidence” to support the resident’s allegations. Due to this no further action would be taken. The landlord apologised for any “stress and upset” caused to the resident and his wife. It also signposted him to an organisation that could offer support and advice “on issues relating to equality and human rights”.
12. The resident responded the same day. He asked for a copy of the account of events on 3 September 2021 given by the operative. He also expressed dissatisfaction that the investigation had not covered why the property was left in the condition it was, with nobody coming to clean up – which resulted in him falling. With reference to the landlord’s signposting to the support service, the resident claimed that “reporting discrimination has its time scale. Due to the delay in getting back to me, this is not an option for us anymore”.
13. On 30 March 2022, the landlord provided some additional comments to support its stage 1 response. It said that it was unable to provide the resident with any details of the account given by the operative due to data protection regulations and HR policy. It said the condition the property was left in by the operatives had been considered during the investigation but no evidence was found to substantiate the resident’s claims. The landlord said that the support organisation was not one it had previously been aware of, and it had provided the details as soon as it had found them.
14. The landlord and the contractor’s operations manager met with the resident and his wife at the property again on 31 March 2022. The resident agreed for the contractor to continue works at the property on the basis that the operations manager would attend at the start and end of each day and be available to the resident directly via phone to discuss any issues.
15. The resident asked for his complaint to be escalated to stage 2 of the landlord’s complaints process on 1 April 2022. He said he should be allowed to have a copy of the operative’s account of events under the terms of a subject access request as it related to him and his property. He also continued to express dissatisfaction at the investigation that had been carried out, stating it had not appropriately separated the operative’s conduct and the condition the property was left in. The resident stated that the landlord was a “specialist advisor” and should be aware “fully aware of all options and time limits” with regards to signposting to support.
16. On 2 April 2022, the resident submitted a subject access request to the council asking for a copy of the operative’s account of events on 3 September 2021. The council declined this, saying that the information was exempt from disclosure.
17. The landlord provided its stage 2 complaint response on 4 May 2022. It said that:
    1. It had used its “best professional endeavours” to provide the resident with signposting for advice and further support. It felt it was “perhaps unrealistic” for the resident to expect it to be fully aware of all options relating to external organisations.
    2. As highlighted in its stage 1 response, there were 2 differing versions of the events of 3 September 2021 and it was not possible to conclude which was accurate – particularly in the absence of any further evidence.
    3. Its contractor had undertaken an investigation in line with its HR policies and determined that no further action would be taken.
    4. It could find nothing to suggest that its stage 1 investigation had been carried out incorrectly.

Assessment and findings

Scope of the investigation

18. Within his complaint, the resident expressed that he felt he had been subject to discrimination by the landlord’s contractor’s operative. The Ombudsman is unable to make a finding of discrimination under the Equalities Act 2010 or otherwise, since this is a legal matter which would need to be determined by a court. Instead, this investigation will consider the landlord’s response to the resident’s concerns and the reasonableness of its actions.
19. The resident states that the dust sheets left in the property by the contractor’s operatives caused him to fall down the stairs and be injured. In cases where a resident claims that they or a member of their family have sustained personal injury due to a landlord’s actions or inactions, then only a court can make a legally binding decision as to whether the landlord is liable to pay damages. This matter will therefore not be assessed in this report. It is noted that the resident submitted a claim regarding this to the landlord’s insurers in September 2022. This was rejected and the landlord’s insurers “sought to redirect the claim to…the contractor who were alleged to be at fault”.
20. When escalating his complaint, the resident also disputed the landlord’s position that it was unable to provide him with the account of events provided by the contractor’s operative due to data protection regulations. The Ombudsman is unable to consider matters relating to data protection and subject access requests as these fall within the remit of the Information Commissioner’s Office.

Response to concerns about the conduct of operatives

21. It is noted that, following its operatives submitting an incident report in relation to their withdrawal on 3 September 2021, the repairs contractor and the landlord both failed to contact the resident about this. Whilst this is not directly related to the landlord’s handling of the resident’s concerns (which were raised some months later), it is a cause for concern of its own and a recommendation has been made in relation to this below.
22. After the resident expressed his opinion that he had been subject to discrimination by its contractor’s operative, the landlord appropriately shared his concerns with its contractor, and arranged a meeting between all parties. This was attended by senior staff from both the landlord and the contractor, held at a neutral venue and fully minuted. The landlord also made reasonable adjustments in arranging an interpreter for the resident’s wife.
23. The landlord reasonably gave the resident the option of it appointing an alternative contractor to complete the outstanding works to his property, acknowledging that he may not wish for its repairs contractor to return in light of previous events. It appropriately managed his expectations by explaining that the process of finding and arranging a new contractor to do the works would result in further delays.
24. The landlord also worked with its repairs contractor to propose steps to provide “close supervision” of works in the resident’s property by the contractor’s operations manager – should the resident decide to allow the contractor to return.
25. Following the meeting, the landlord elected to handle the resident’s concerns under its complaints procedure. The complaint was logged on 4 March 2022. Although the landlord did not inform the resident of this until 10 March 2022, the detriment caused by this is limited as the resident was already aware the matter was being investigated and in regular communication with the landlord about it.
26. The landlord’s stage 1 and 2 complaint responses both reasonably explained that the resident’s allegations of discrimination had been investigated by the contractor’s HR department and that, due to differing versions of events given by the operative and the resident (with no “substantive evidence”), no further action would be taken.
27. It was appropriate that the investigation was undertaken by the contractor, which employed the operative, and the landlord was reasonably entitled to rely on the contractor’s ability to carry out a full and fair investigation of matters and take any appropriate action.
28. The landlord’s stage 1 response acknowledged that the outcome was “likely to be disappointing” to the resident and showed good practice in signposting him to an external organisation which may have been able to advise him further on equality matters. Although the resident expressed dissatisfaction that this information was not provided to him earlier in the process, the landlord’s explanation that it had only become aware of the organisation after researching in reference to his case was reasonable. As was the statement in its stage 2 response that it could not reasonably be expected to maintain a full working knowledge of all external organisations.
29. In summary, the landlord met with the resident and the contractor in a timely manner after his concerns were raised in order to gain an understanding of the issues and how they could move forwards. The landlord reasonably offered to instruct an alternative contractor, or to increase supervision of its repairs contractor’s operatives, in order for the resident to feel comfortable with the work being completed. The landlord was entitled to rely on its contractor’s HR department to investigate the allegations against its operative and, in the absence of any evidence beyond both parties accounts, could not reasonably dispute its findings.

Determination (decision)

30. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s concerns about the conduct of its contractor’s operatives.

Reasons

31. The landlord appropriately arranged a meeting and raised the matter with its contractor, which carried out an investigation in line with its own internal policies. The landlord also appropriately recognised the resident’s concerns about the contractor working in the property going forwards, and presented reasonable options to allay these.

Recommendations

32. It is recommended that the landlord reviews its practice around receiving incident reports of resident behaviour from its contractors. The landlord should ensure that contact is made with any residents involved in a timely manner, in order to discuss the incident and advise them of any measures (such as adding a marker for operatives only to attend in pairs or timely signposting to appropriate agencies) which will be taken.