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North Tyneside Council (202009313)

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REPORT

COMPLAINT 202009313

North Tyneside Council

21 December 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

  1. The complaint is about the resident’s Gas Safety inspection on 2 April 2020.

Background and summary of events

  1. The resident is a secure tenant. The tenancy started on 25 May 1998. The property is a semi-detached terrace house.
  2. The landlord is a council.
  3. The resident has vulnerabilities however the landlord did not have any record of this on its systems at the time of the gas safety inspection.
  4. On 13 January 2020, the landlord sent a letter to the resident advising that it had made an appointment for a Gas Safety engineer to visit on 27 January 2020 between 8am to and 12pm to carry out the annual Gas Safety inspection. 
  5. When its Gas Safety engineer visited on 27 January 2020, they were unable to gain access to the property. It is unclear from the evidence if the resident was at home at the time engineers attended.
  6. The landlord sent a second letter to the resident on or around 10 February 2020 advising that his current Gas Safety certificate was about to expire and it had been unable to gain access at the previous appointment. It said the resident needed to urgently contact it to re-arrange the inspection.
  7. The landlord sent a further letter on 12 February 2020 letter advising the resident to urgently book an appointment for an inspection. It said this was in accordance with his tenancy agreement and that if he failed to allow access, a warrant to enter his property by force would be requested from the court.
  8. According to the landlord, the resident called the landlord in late February 2020 complaining that the Gas Safety inspection was not due until 2 April 2020. The Ombudsman has not been provided with any records of this call. The landlord however made an appointment for the Gas Safety inspection to be carried out on 2 April 2020.
  9. The Gas Safety inspection was carried out at the property on 2 April 2020.
  10. The resident made a complaint over the phone to the landlord on or around 20 November 2020 and asked it to confirm the points discussed in writing. The resident was unhappy with the landlord’s subsequent written summary of his complaint and so emailed the landlord on 24 November 2020 confirming the following points of his complaint:
    1. The landlord “completely ignored” Government advice and repeatedly threatened him with court if he did not allow its operatives into his home even though he repeatedly told it that he was very vulnerable.
    2. The Covid-19 virus had the capability to kill and the landlord had risked his life to save money.
    3. It lied about him having to let Gas Safety engineers into his home.
    4. The landlord’s comment during the recent phone call that it had the right to enter a property during the pandemic was “absolute rubbish”. The resident provided the landlord with a link to Government guidance.
    5. The resident requested substantial compensation. He said the compensation was not for just the stress and anxiety, it was for almost trying to kill him during a pandemic
  11. The resident emailed the landlord on 25 November 2020 reiterating the points of his complaint.
  12. On 16 December 2020, the landlord issued its stage one complaint response to the resident. Within this response it said it was sorry to hear of the concerns he had raised in regard to the annual Gas service on his home, the risk this exposed him to and the stress this may have caused. It acknowledged that the resident’s complaint was about: it insisting that his Gas Safety check went ahead despite him being vulnerable and at risk of catching the virus and; him feeling like he had no option but to allow the Gas engineers into his home to carry out the check. The landlord also:
    1. Confirmed that at the time of the inspection, the country was in lockdown due to the pandemic and that the Government issued guidance as a consequence of this which allowed landlords to carry out emergency repairs.
    2. Said annual gas servicing of gas appliances was deemed as essential by the Health and Safety Executive (HSE) and Gas Safe and that it fell into the category of emergency repairs, therefore, indicating they must be carried out to ensure that all gas appliances are safe to use.
    3. Said it was not identified at the time that the resident was shielding or that he had received a letter from the NHS stating this.
    4. In regards to his comments that it had threatened him with court if he did not allow its operatives into his home, it was unable to substantiate this conversation as it did not record telephone conversations.
    5. Said it had not acted illegally by continuing to carry out gas servicing in accordance with its right to do so to address any gas safety risk of its customers.
    6. Said it does not feel it had anything to apologise for.
    7. Pointed out that the resident had refused entry on the previous appointment booked which was prior to the coronavirus lockdown.
  13. On 16 December 2020, the resident advised he was unhappy with its response. He said that the landlord seemed to be making light of what took place which was that the landlord endangered his life. He said that he called the landlord several times up to the day before and on the morning of the Gas Safety check. The check was not as the landlord said an emergency but it told him on every occasion that he called that he would be faced with court. The resident contacted the landlord again on 18 December 2020 reiterating that he was unhappy with its response.
  14. On 21 December 2020, the landlord acknowledged that the resident disagreed with its decision to continue with gas service checks through the Covid-19 pandemic. It acknowledged that he felt that it had put his life in great danger by entering his home and that he wished to be generously compensated for this.
  15. The landlord said as his request related purely to being compensated, this would be better addressed outside of the complaints process as this was considered to be a financial claim against it and therefore not something that could be considered via the complaints route because there was a legal remedy. It recommended that he sought his own legal advice on this matter. It said his complaint would now be closed however if he was unhappy with its decision he could ask the Local Government and Social Care Ombudsman (LGSCO) to review its decision.
  16. The resident told the Ombudsman in May 2021 that the landlord put his health at risk by proceeding with the Gas Safety check in April 2020 when he had told them he was clinically at risk. He said he had asked them to carry out the inspection after lockdown to which it refused. The resident said he caught Covid-19 shortly afterwards but could not prove he got it from its gas safety engineers.
  17. At the time the landlord responded to the Ombudsman’s information request in June 2021, it advised that it had made contact with the resident prior to the Gas Service and that at no point did he state he was clinically vulnerable.

Assessment and findings

  1. Landlords are required by law to ensure all homes with a Gas supply have a gas safety check each year. This is echoed in the tenancy agreement which also states that the resident is obliged to allow the landlord access to inspect or service Gas Safety appliances.
  2. The landlord made an appointment for a Gas Safety check at the property on 27 January 2020 and notified the resident of this. The landlord was unable to complete the Gas Safety check when Gas Engineers attended the property for this appointment as they were unable to gain access. It is unclear from the available evidence the reason for this. The landlord sent the resident letters on 10 and 12 February 2020 advising him to urgently book an appointment for an inspection. It said that if he failed to allow access, a warrant to enter his property by force would be requested from the court. As the landlord is required by law to ensure all homes with a gas supply have a gas safety check once a year, the letters it sent to the resident were appropriate in the circumstance.
  3. The resident then called the landlord and the check was re-scheduled for 2 April 2020 which was shortly before the expiry of the existing Gas Safety certificate. Following this and in response to the Covid-19 pandemic, the Government issued new legislation and guidance setting out how a landlord should deliver its services during the pandemic. This includes guidance issued on 28 March 2020 which was shortly prior to the resident’s Gas Safety check of 2 April 2020. This guidance stated:
    1. Landlords should make every effort to abide by existing gas safety regulations but there should be a pragmatic, common-sense approach to enforcement.  The guidance noted that where a landlord was not able to gain access to a property due to restrictions in place to tackle Covid-19, the landlord should document its attempts to do so and all correspondence with the tenant.
    2. Landlords must follow sensible precaution to keep its residents and contractors safe when visiting the property.
  4. Therefore, this allowed the landlord discretion in relation to pursuing enforcement action where it was unable to gain access into a home. This did not require the landlord to do anything different when carrying out Gas Safety inspections unless it was alerted to circumstances which may cause a resident to want to post-pone the inspection. In the resident’s case, the Gas Safety inspection was carried out at the property on 2 April 2020 as the resident allowed the Gas Engineers into the property to carry this out.
  5. The resident subsequently said during the landlord’s complaints process, that he is very vulnerable and was shielding at the time of the Gas Safety check. Further, he complained that he told the landlord of this at the time yet in response it had threatened him with court action making him feel as though he had no choice but to let the Gas Engineers into his home to carry out the check. In its stage one complaint response, the landlord acknowledged the resident’s comments in this regard but said it was unable to substantiate this as it did not record telephone conversations.
  6. Landlords are expected to keep thorough records and it is reasonable to expect this to include notes of conversations with residents during calls. Particularly in relation to Gas Safety inspections when the Government has issued Covid-19 guidance for landlords in relation to this issue. The landlord missed an opportunity to document the conversations it had with the resident regarding the Gas Safety check on 2 April 2020. This constitutes a failure in the service provided by the landlord. The landlord did not acknowledge this failure in either its stage one or stage two complaint responses.
  7. It is noted that the landlord told the Ombudsman that it had no record of the resident being clinically vulnerable or any record of him telling it that he was shielding prior to the inspection. There is no suggestion that the resident had told the landlord of any health condition prior to the start of the pandemic. The resident has not provided the Ombudsman with the dates that he verbally told the landlord about his health condition in the lead up to the Gas Safety check on 2 April. There is also no evidence to show that the resident sent the landlord a copy of any shielding letter received from government prior to the check in order to alert it to his health condition.
  8. The Ombudsman has to make evidence based determinations when considering complaints. In this case there is a lack of contemporaneous evidence to show that the landlord failed to follow the appropriate procedure or failed in the level of service provided when dealing with the resident’s Gas Safety check on 2 April 2020.
  9. Regarding the landlord telling the resident in its stage two response that it would not consider his claim for compensation in its complaints process, usually requests for compensation are dealt with by landlords during the complaints process unless they relate to certain claims for example in relation to personal injury. However, based on the available evidence this does not seem to be relevant in this case. In any event, the Ombudsman’s Complaint Handling Code makes clear that even where a resident may have a legal entitlement to redress, the landlord should still offer a resolution where possible, as that may remove the need for the resident to pursue legal remedies. It is also noted that in its final response, the landlord also incorrectly referred the resident to the LGSCO. Therefore, an appropriate recommendation has been included below.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when dealing with the resident’s Gas Safety inspection on 2 April 2020.

Reasons

  1. The Government issued guidance for landlords in regards to carrying out Gas Safety inspections during the Covid-19 lockdown. However, there is insufficient evidence to demonstrate the landlord did not act appropriately or unreasonably when handling the resident’s Gas Safety check during the pandemic. However, there was a failure in service by the landlord by its lack of records kept in relation to calls with the resident regarding the 2 April 2020 Gas Safety check.

Orders and recommendations

  1. The Ombudsman orders that the landlord:
    1. Pay the resident £100 in compensation for failing to keep records of its verbal communications with the resident in relation to the Gas Safety check carried out during the pandemic. This should be paid within four weeks.
    2. Review its process to ensure records of verbal communications with residents  regarding Gas Safety checks are made and maintained.
  2. The Ombudsman recommends that the landlord ensures it signposts residents to the Housing Ombudsman Service when complaints relate to its housing management function.