Harlow District Council (202103324)

REPORT

COMPLAINT 202103324

Harlow District Council

30 November 2022

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. This complaint is about the landlord’s response to the resident’s concerns about:
   1. The smoke alarms and gas safety checks at his property.
   2. An electrical inspection at his property.
   3. Debris falling from the flue flashing/ceiling on to his boiler.

Background and summary of events

2. The resident is a secure tenant of the landlord, which is a Council. The tenancy commenced on 18 January 2010.
3. On 1 April 2021, the landlord’s contractor wrote to the resident to explain that his property had been identified as requiring an electrical inspection. The contractor noted that the resident had previously advised he required a weekend appointment, however, due to the current working restrictions it asked that the resident confirm whether he still required a weekend appointment or if it could attend during the week. The contactor wrote to the resident again on 15 and 29 April 2021 requesting the same.
4. On 12 April 2021, the resident contacted the landlord to request further information about its management of the smoke alarms in his property. The landlord considered the resident’s request of 12 April 2021 to be a Freedom of Information (FOI) request, and provided him with the information he requested on 20 April 2021. On 21 April 2021, the resident sent the landlord some follow up questions asking why his property had not been adequately protected by working smoke alarms until March 2020, when the landlord had been enforcing these rules since 2015 and even though its Gas safe inspections highlighted/recorded this fact on each inspection.
5. The landlord replied to the resident on 7 May 2021, explaining that at that time of the last electrical inspection of the property, the recommendation for a domestic property to be inspected, was a maximum of every 10 years. That guidance had since changed, so that rented domestic properties were now recommended to be inspected every 5 years. The property had been on the Electrical Compliance Programme since 2018 (within the recommended 10 years), but the information fed back was that access to the property had been an issue. The Gas safety certificate for 2019 indicated that there were smoke alarms present at that time. However, the Gas Safety inspection certificate in January 2020 had indicated that there was no smoke alarms in place within the property and so either they had been removed or the certificate was inaccurate. With this in mind, and the fact the property was now overdue its Electrical Installation Condition Report, it urged the resident to keep the appointment with its appointed service provider on the 28 May 2021.
6. On 18 May 2021, the resident emailed the landlord. The resident said that the landlord had not answered his questions regarding gas safety certificates. The resident also said that he had contacted Gas Safe regarding his boiler as he had concerns about combustible debris falling through the flue flashing/ceiling onto the boiler. Gas Safe had recommended that he clean off the debris and seal the ceiling using a non-combustible sealant. Resident said that he was happy to do this, with the landlord’s permission.
7. The resident raised two formal complaints in May 2021 which covered both the issue of the gas safety certificates and smoke alarms, appointments for the electrical inspections and his reports of issues with the boiler flue.
   1. With regards to the gas safety certificates and smoke alarms the resident’s complaint was that:
      1. The smoke alarms present in his property prior to the new smoke alarms being fitted in early 2020 had been installed by him and he had not removed them.
      2. It was not acceptable that the some alarms installed in March 2020 were battery alarms and that had put his health and safety at risk.
      3. He had spoken to the manufacturer of the smoke alarms and they had advised that the alarms would not work efficiently and would have put his life at risk.
      4. The landlord’s reply had uncovered issues regarding missing/incorrect information on the gas safety certificates, historically going back years.
   2. With regards to the electrical inspections the resident’s complaint was that:
      1. The appointment for 28 May 2021 was for a Pre inspection only, lasting approximately 15 minutes, so he could then return to work. He was contacted by the subcontractor on 27 May 2021 to be informed that the landlord had told them that both a Pre Inspection and any remedial works were to be completed that day. The resident said that this was not what had been agreed as he had work that day.
      2. The appointment was rebooked for 4 June 2021 where he said access would be available all day. The resident said that he was still happy for the Pre inspection to have gone ahead on 28 May 2021, but this was cancelled by the subcontractor.
      3. He had also received an unexpected visit on 4 June 2021 by two members of staff, during which he was told that he was wrong and no Saturday appointments had been offered. The visit was unexpected and intimidating, and that the two staff that attended had forced him to take a step back from the door as they kept edging forward. The resident said that this was clearly an attempt to instigate an altercation.
      4. The resident also said that he felt intimidated due to the recent correspondence from the landlord’s contractor threatening his tenancy and refusing to acknowledge that a Saturday appointment was offered.
   3. The resident also said that he had contacted the landlord regarding his boiler flue on 18 May 2021 as he had concerns about combustible debris falling through the flue flashing/ceiling on to the boiler. Gas Safe had recommended that he clean off the debris and seal the ceiling using a non-combustible sealant. The resident said that he had advised the landlord that he was happy to do this when he emailed on 18 May 2021, with the landlord’s permission, but the landlord had failed to respond to him.
8. In its responses to the resident’s complaints the landlord said that:
   1. With regards to the gas safety certificates and smoke alarms:
      1. Its subcontractor delivered the landlord’s programme of Compliance Improvements, which included the installation and upgrading of domestic mains smoke alarm systems.
      2. It had asked its subcontractor to review their arrangements for completing the testing, logging, and possible use of temporary battery-only smoke alarms, and was yet to be provided with sufficient information to meet its expectations for the robustness and reliability of the process.
      3. In the absence of satisfactory information from its sub-contractors gas servicing team regarding their process for testing, logging, and possible use of temporary battery-only smoke alarms, the resident’s complaint was partially upheld and the landlord apologised that it was unable to respond with total completeness.
      4. The resident had identified some potential operational and communication issues with it being able to capture, consider and then act upon the findings from gas servicing visits, and that these had been discussed with its contractor to improve how it responds to similar events in the future.
      5. It was currently reviewing and updating its suite of compliance policies for regulatory and code of practise changes.
   2. With regards to the electrical testing:
      1. Its subcontractor had sent the resident three letters in April 2021 regarding an electrical inspection, the third and final letter being dated the 29 April 2021, following which an appointment was arranged for 28 May 2021. The landlord said that it was reasonable to infer that the resident had put his own welfare at risk, and that it and its subcontractor had been more than reasonable in repeatedly and passively attempting to gain access to the property to upgrade the smoke alarm provision.
      2. With regards to the letters, which the resident had referred to as threatening, these had been approved by senior management as the landlord had a duty of care to maintain their properties to a standard set by Government. These letters were not designed to intimidate tenants but to merely explain the importance of the vital work that needs to be carried out.
      3. Although it appreciated that the resident would prefer weekend appointments, unfortunately its subcontractors did not carry out weekend works. In its responses the landlord also said that weekend appointments were not encouraged but where possible these were offered and that its contractors did not always offer Saturday appointments as standard practice however they would work with the residents to arrange a mutually convenient appointment including Saturdays when required. Pre-inspections would generally only be carried out during weekdays, however, its contractors would liaise the resident to agree a convenient appointment slot.
      4. The landlord advised that its contractor had confirmed that all future communications with him would be in writing by email or letter.
      5. The landlord acknowledged the resident’s frustration at not being able to get a convenient appointment and said that, when there was an expectation to undertake work residents should receive information that was accurate, clear and meaningful. The landlord apologised that that had not been the resident’s experience.
      6. The landlord said that would review its policies, procedures and processes that dealt with any access issues, and any interventions which may be required to amicably agree an appointment which is considerate to an individual’s circumstances, i.e. work or shift patterns, and that the resident’s helpful feedback would be included in the review.
      7. With regards to the two staff members attending on 4 June 2021, this was part of their role within the Electrical Compliance Programme to ensure access was gained its subcontractor to carry out the appointment. They also wanted to ensure the resident was happy to provide access as arranged. Having spoken to the two staff members, the landlord said that it was happy that their behaviour was not threatening in any way and were not looking to instigate an altercations, they were carrying out their duties as they did with many other tenants.
   3. With regards to the gas boiler flue:
      1. In its stage two response of 21 June 2021, the landlord said that its overriding concern was that the resident felt either ‘at risk’ and was not happy with the current level of safety provided by the smoke detectors in his property and with the issue with debris falling onto the boiler from above the ceiling. The landlord said that it would like its contractor to attend and provide some reassurance that these two situations are compliant if the resident thought this would help in the short term.
      2. In a second draft of its stage two response, dated the 29 June 2021, the landlord made no mention the boiler flue.
      3. There was also no mention of the boiler flue in the landlord’s final response.

Assessment and findings

9. Under Section 11 of the landlord and tenant act the landlord is obliged to keep in good condition and repair and maintain heating equipment and water heating equipment. This includes ensuring gas fittings and flues are maintained in a safe condition, an annual gas safety check on each appliance and flue, and to keep a record of each safety check.
10. The Smoke and Carbon Monoxide Alarm Regulations impose a legal requirement on private and social landlords of accommodation occupied under a tenancy or license to ensure that there is a smoke alarm on each storey of a property which contains a room being used, wholly or partly, as ‘living accommodation’. This requirement has been in force for private rented sector landlords since 1 October 2015.  From 1 October 2022, it was extended to social landlords and local authorities.
11. The regulations do not stipulate the type of smoke alarms (such as mains powered (‘hard-wired’) or battery powered) that should be installed. The regulations do not stipulate where the alarms should be placed. Landlords should follow the individual manufacturer’s instructions when installing the alarms. However, in general, smoke alarms should be fixed to the ceiling in a circulation space, i.e. a hall or a landing. Heat detectors are not considered a replacement for smoke alarms.
12. The tenancy agreement states that the resident must allow the landlord, or its agents, access to the property at reasonable written notice (usually 24 hours) for the purpose of carrying our repairs, annual gas safety checks and servicing, other safety checks as required, to inspect the condition of the property and for other management purposes in connection with the tenancy.
13. The landlord’s website states that:
    1. Repairs appointments may be made for Monday to Friday between 8am to 12pm and 12pm to 4pm. It also states that gas servicing is also carried out on Saturdays between 9am and 1pm.
    2. It will respond to:
       1. Emergency repairs within 24 hours.
       2. Urgent repairs within 5 working days.
       3. Standard repairs within 20 working days.

The smoke alarms and gas safety checks at his property.

14. The gas safe certificate in January 2020 identified that there were no smoke alarms in the resident’s property, at that time the Smoke and Carbon Monoxide Alarm Regulations did not apply to the landlord, as it was a local authority. The regulations did not come into force for social landlords and local authorities until 1 October 2022. Nevertheless, as soon as the absence of smoke alarms was identified the landlord took appropriate steps, arranging for the smoke alarms to be installed early 2020.
15. It is acknowledged that the resident had concerns about the installation of the smoke alarms in early 2020 which he raised with the contractor. However, as this matter was not raised with the landlord as a formal complaint until May 2021, over a year later, the resident’s concerns about the installation itself have not been considered any further in this assessment. This is because under the Housing Ombudsman’s scheme, we may not consider complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
16. With regards to the resident’s concerns that the smoke alarms installed in March 2020 were battery operated, the regulations do not stipulate the type of smoke alarms (such as mains powered (‘hard-wired’) or battery powered) that should be installed, nor where the alarms should be placed.
17. Nevertheless, as the resident had raised concerns that the alarms may not work properly due to where they had been installed, saying that he had spoken to the manufacturer who had advised him that they would not work where there were, it was appropriate for the landlord to confirm that the electrical inspection, booked for 28 May 2021 would look at this. The resident has raised concerns about this electrical inspection which have been considered as a separate element to his complaint. 
18. With regards to the gas safe certificates, this service has had sight of the gas safety certificates for 15 March 2019 and 25 January 2020. The certificate in March 2019 states that there was one smoke alarm and one carbon monoxide alarm fitted, with the certificate in January 2020 stating that there were no alarms. The landlord acknowledged this in its response of 7 May 2021 and concluded that either they had been removed or that one of the certificates was inaccurate. Whilst it is acknowledged that the resident was not happy with the suggestion that they had been removed, this was not an unreasonable position for the landlord to take. The important thing was that it recognised that there had been a discrepancy, had acknowledged the resident’s concerns about the existing smoke alarms and had an electrical inspection booked which it said would include the smoke alarms.
19. The landlord also acknowledged that the resident had identified some potential operational and communication issues with it being able to capture, consider and then act upon the findings from gas servicing visits. To put this right the landlord said that this had been discussed with its contractor in order to improve how it responds going forward. The landlord did not provide the resident with a summary of the outcome of its discussions with its contractor, nor what steps if any were going to be taken as a result. Whilst this is not a failure by the landlord, it was an oversight, and therefore a recommendation has been made for the landlord to provide the resident with an update on its findings and actions with regards to this.

An electrical inspection at the resident’s property.

20. Under the terms of the tenancy agreement, the landlord is obliged to provide the resident with at least 24 hours’ notice, in writing, where it needs to gain access to carry out repairs or to carry out safety checks as required. Similarly, the tenant is obliged to provide access to the landlord if the above obligation has been met.
21. The appointment for the electrical inspection was arranged for 28 May 2021. Prior to this the landlord’s contractor had written to the resident on 1, 15 and 29 April 2021 asking that he call its subcontractor to arrange an appointment. In its final letter of 29 April 2021, the contractor advised that was the resident’s last opportunity to arrange a mutually convenient appointment and that if an appointment was not booked by 6 May 2021 it would be required to inform the landlord who would then consider legal action against him.
22. It is acknowledged that the resident found the letters from the contractor to be intimidating, however, given that it had not been provided with access, it was reasonable for the resident to be advised that further failure to provide access may result in legal action against him, given that failure to reasonably provide access could be considered a breach of his obligations under his tenancy agreement.
23. The landlord was not obliged to provide Saturday appointments, however, it should have ensured that the information given by itself, its contractor and their subcontractor was consistent. When the contractor contacted the resident in April 2021 to arrange the electrical inspection it noted that the resident had previously advised that he required a weekend appointment and asked that the resident confirm whether he still required a weekend appointment or if it could attend during the week. However, in its complaint responses the landlord said that its subcontractors did not carry out weekend works, that the landlord did not encourage weekend appointments but where possible these were offered, and that its contractors did not always offer Saturday appointments as standard practice but would work with the resident to arrange a mutually convenient appointment including Saturdays when required.
24. The lack of consistency in the landlord’s response with regards to whether Saturday appointments were available caused unnecessary frustration and inconvenience to the resident.
25. With regards to the visit planned for 28 May 2021, there was again some confusion as to the purpose of the visit, the resident understanding that it was for a short pre-inspection that would enable him to return to work, and the contractor advising that it was to both inspect and carry out the works. As a result the appointment did not go ahead until 4 June 2021.
26. The landlord acknowledged the resident’s frustration at not being able to get a convenient appointment and said that, when there was an expectation to undertake work residents should receive information that was accurate, clear and meaningful. The landlord apologised that that had not been the resident’s experience.
27. With regards to the resident’s concerns about the two staff members who he said had turned up unexpectedly attending his property on 4 June 2021, when resident’s report concerns about member of staff, the landlord would be expected to take the resident’s concerns seriously, investigate their allegations and speak to the staff members involved. In this case, the landlord did so, speaking to the staff members and provided the resident with a reasonable explanation for their presence.
28. In order to resolve the issues identified, the landlord said that it would review its policies, procedures and processes that dealt with any access issues, and would include the resident’s experience within this. This was an appropriate step for the landlord to take as it evidenced that it had taken the resident’s concerns seriously, recognised the shortfall in its service and was seeking to learn from the complaint. Whilst no maladministration has been found in respect of this element of the complaint, in order to provide the resident with reassurance, a recommendation has been made for the landlord to provide the resident with a summary of the findings of its review and what steps, if any, it had or would be taking as a result.

Debris falling from the flue flashing/ceiling on to the resident’s boiler.

29. Under Section 11 of the landlord and tenant act the landlord is obliged to keep in good condition and repair and maintain heating equipment and water heating equipment.
30. On 18 May 2021, the resident reported concerns to the landlord about, what he described as, combustible material falling through the flue flashing/ceiling onto his boiler. The resident advised the landlord that he had contacted Gas Safe who had suggested sealing the ceiling and cleaning off the debris.
31. Having been advised by the resident of a potential issue with the flue to his boiler, the landlord would be expected to take steps to establish that the boiler was safe and whether there were any repairs required for which it would be responsible. However, the landlord failed to respond to the resident’s report, despite the resident raising his concerns again in his escalation request of 4 June 2021.
32. It was not until the landlord’s stage two response of 21 June 2021, that the landlord acknowledged the resident’s report, saying that it would like its contractor to attend and provide the resident with some reassurance. However, it did not do so and in the landlord’s follow up stage two response eight days later, there was no further mention of the gas flue.
33. The resident again raised the matter in his escalation request of 14 July 2021, however, the landlord again failed to address this matter in its response nor did to send anyone to inspect the flue.
34. According to the landlord’s repairs policy it should attend urgent repairs within 5 working days. As there was no evidence of there being an imminent threat to life, the landlord would not have been expected to have dealt with this issue as an emergency repair. However, between 18 May 2021 and the landlord’s final response to his complaints of 26 August 2021, the landlord had taken no action at all in response to his reports, a period of 76 working days.
35. This was a serious failing by the landlord which has resulted in a finding of maladministration, for which the landlord has been ordered to pay the resident £300 compensation. This is line with this services Remedies guidance where there was a failure which adversely affected the resident which the landlord has failed to acknowledge and has made no effort to put right.
36. Whilst not considered in this investigation, this service is aware that following its final responses to the complaints considered here, on 7 October 2021, the landlord raised a job noting that it had been reported that the boiler flue was not sealed going into the loft. The landlord then wrote to the resident on 8 November 2021 to apologise that the issues regarding his boiler, mentioned in his earlier complaints, had not been fully addressed at the time its complaint responses were issued. The landlord said that the issue was picked up at the resident’s most recent gas service inspection and an appointment made for 20 November 2021 for an aesthetically finish to the ceiling around the flue pipe.
37. The resident raised a new complaint with the landlord regarding the boiler flue, for which the landlord issued a stage one response on 22 November 2021. Whilst the resident has advised this service that he was not happy with the landlord’s response, and has provided evidence of a Gas Safe inspection he subsequently arranged, this service can only considered matters that have exhausted the landlord’s formal complaints process and so this complaint cannot be considered at this time.

Determination (decision)

38. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about smoke alarms and gas safety checks at his property.
39. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s concerns about an electrical inspection at his property.
40. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its response to the resident’s concerns about debris falling from the flue flashing/ceiling on to his boiler.

Reasons

41. The landlord acted appropriately in response to the resident’s concerns about the smoke alarms in his property, recognising that there had been a discrepancy in the last two gas safe certificates, acknowledging the resident’s concerns about the existing smoke alarms and advising that the electrical inspection booked for 28 May 2021 would include the smoke alarms. It took steps to address the potential operational and communication issues with regards to the gas servicing visits , which it discussed with its contractor in order to improve how it responded going forward.
42. The landlord provided the resident with 24 hours’ notice, in writing, of its need to gain access to carry out the electrical inspection. There was some confusion with regards to whether Saturday appointments would be available and with regards to the purpose of the visit on 28 May 2021. The landlord acknowledged the resident’s frustration and said that it would review its policies, procedures and processes that dealt with any access issues, and would include the resident’s experience within this. With regards to the resident’s concerns about the attendance of the two member of staff on 4 June 2021, the landlord took the resident’s concerns seriously, spoke to the staff in question and having found it was unable to substantiate the resident’s concerns, explained this and provided him with a reasonable explanation for their attendance.
43. Having been put on notice that there may be an issue with the resident’s boiler flue, the landlord was obliged to take steps to check that the boiler was safe and if there were any repairs for which it would be responsible. There was only one mention of the gas flue in the landlord’s responses, despite the resident raising this on more than one occasion during the complaints process. At the time of the landlord’s final response, the landlord made no further mention of the gas flue and had taken no action in response to the resident’s reports.

Orders and recommendations

Orders

44. That within 28 calendar days of this determination the landlord is to pay the resident £300 compensation for its failure to respond to his concerns about debris falling from the flue flashing/ceiling on to his boiler up to and including its final response of 26 August 2021.
45. That the landlord confirm to this service that it has complied with the above order.

Recommendations

46. That the landlord provide the resident with:
    1. An update on its findings and actions following its discussions with its contractor regarding potential operational and communication issues with it being able to capture, consider and then act upon the findings from gas servicing visits.
    2. A summary of the findings of its review of its policies, procedures and processes that dealt with any access issues, and what steps, if any, it had or would be taking as a result.
47. It is further recommended that:
    1. The resident provide the doorbell camera footage to the landlord, that the landlord considers assessing this and provides an updated outcome to the resident in light of the evidence.
    2. The landlord considers reviewing its complaints policy and amending the document to state that complainants should provide evidence to support their complaints, if available.
    3. The landlord investigate the issue of asbestos potentially being present in the resident’s shed roof and provide a response to the resident within the timescales given in its complaints handling policy.