Peabody Trust (202002384)

REPORT

COMPLAINT 202002384

Peabody Trust

02 August 2021 (Amended on Review)

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 resident complains about the landlord’s handling of the reported electromagnetic field (EMF) disturbance in her flat.
2. This Service will also consider the landlord’s complaints handling.

Background

3. The resident occupies the property, a one-bedroom flat, in accordance with an assured tenancy.

Policies and Procedures

4. The landlord has various statutory obligations arising from the Housing Act 2004 and the Landlord and Tenant Act 1985, including the following:
   1. The obligation to minimise/ eliminate potential hazards identified as a result of an assessment against the Housing Health and Safety Rating System (HHSRS); and
   2. The obligation to ensure dwellings are fit for human habitation in accordance with Section 9A Landlord and Tenant Act 1985
5. The landlord’s transfer policy states that permanent and temporary decants will be considered on assessment and recommendation by a landlord building surveyor, who determines it will be unsuitable for a resident to remain due to the works required, and other housing alternatives have been explored. The landlord will arrange for medical applications to be independently assessed and will award Health and Disability priority to an applicant whose household needs to move due to a medical condition which will cause permanent damage if they do not move, and which will not cause permanent damage if they do move. The policy sets out that the landlord will also consider rehousing an applicant who does not meet the eligibility criteria on a case-by-case basis and where there are exceptional circumstances.
6. The landlord operates a two-stage complaints procedure. Its policy does not provide a timescale for responses at either stage.
7. Compensation may be payable to residents where they have experienced delays, incurred additional costs because of a service failure, or have experienced trouble and inconvenience.

Summary of events

8. The resident reports that there has been EMF disturbance in her flat which she believes originates from internal electrical wiring. She states that this poses long and short-term risks to her health, some of which she has already suffered, and that she has had to leave her flat on several occasions, including overnight, as a result of the adverse effects on her health. She states that she first complained to the landlord in April 2020, no record of this April complaint has been provided by either party.
9. The resident completed diary logs of her experiences of EMF disturbances during May 2020. She reports that “the diary recordings tally with the ECG readings when I had palpitations and there being EMF disturbance.” This Service has not been provided with copies of these logs. She also contacted her local MP for assistance with her complaint around this time.
10. She continued to report EMF disturbance, contacting the landlord’s CEO for resolution of the issue. The landlord replied on 11 May apologising that the resident had to pursue the issue with the CEO. It confirmed that it was looking into the issue and would ensure its resolution. 
11. An electrical installation condition assessment commissioned by the landlord was carried out on 1 June. The condition report concluded that the electricity installations were of satisfactory condition and fit for continued use. The landlord informed the resident, on 3 June 2020, that the Electrical Installation and Condition Report (EICR) had been received and it showed that the wiring in the property met the requisite standards.
12. On 26 June, the resident emailed the landlord requesting escalation of her complaint on the basis that the landlord had done nothing since April and was refusing to carry out an investigation.
13. The resident subsequently arranged for an independent EMF survey of her flat on 28 June 2020. The report concludes that “some of the magnetic field measurements and most of the electric field measurements are in our moderate and high-risk ranges and are therefore cause for concern.” It recommended the resident contact her landlord to see if it would be willing to undertake any remedial action, “especially in view of (the resident’s) electro-sensitivity, and the health consequences (she was) experiencing.”
14. The landlord responded to the resident’s 26 June email on 30 June stating, “up until now your complaint was being dealt with as an expression of dissatisfaction” but that it had now escalated it to stage one of its process.
15. The stage one response was provided on 9 July 2020. It stated that:
    1. The landlord’s electrical engineer had conducted a test and sent the resident an EMF report.
    2. It was satisfied with the results of its electrical assessment, which were “satisfactory and within standard regulations.”
    3. An email trail with the resident indicated that an appointment had been confirmed with the local council for an EMF test. This had been undertaken and the result had shown that required standards had been met.
    4. The resident’s request for a move would have to be addressed with her neighbourhood manager or lettings team, contact details of which were provided.
16. The resident requested escalation of her complaint on an unknown date. She stated that the information provided to the landlord was ignored and that facts had been incorrectly stated. Her submissions were as follows:
    1. No such “EMF” test was carried out by landlord’s contractors. The electrician who came to inspect her property did not know what EMF was and did not test for this.
    2. The landlord had refused a to conduct an Electric Field test in her home when she requested it in June. This was a test which could have, she said, proven the issue conclusively.
    3. The EMF survey submitted to the landlord which showed “dangerous levels of EMF” had been ignored. The resident asked what the engineers’ response to this report was.
    4. She requested an explanation as to why the second EMF survey which showed unsatisfactory levels of EMF had not been accepted by the landlord, whilst the first survey (which showed satisfactory levels of EMF) had been.
    5. The landlord was continuing to place her in danger as a result of not acting. She stated that there was adequate evidence available to show that continued exposure to EMF carries serious risk to short and long-term health.
17. The resident contacted the landlord on 23 July for confirmation of when she would receive a stage two response. No evidence has been provided to show that the landlord responded to this request.
18. The landlord provided its stage two response on 7 September. It stated that:
    1. It had concerns regarding the independent inspection commissioned by the resident as no information had been provided as to the credibility of the inspecting company. It stated that on the other hand, whilst it had not had sight of the local council’s survey, the council had not raised any concerns with the landlord, as it had the authority to do. It therefore concluded that the council’s investigation did not raise any concerns.
    2. Its own electrical team had inspected the resident’s property and found that it met British Standards. It had assessed the resident’s home as safe and would not be investigating the matter further. It stated that it would consider moving residents only in “exceptional circumstances” and that the resident’s circumstances did not warrant this. It recommended she consider swapping her home instead.
19. A copy of the electrical certificate has been provided to this Service. An electrical engineer stated to the landlord on 30 October that the property was “satisfactory.” He also stated that he was no expert on EMF.
20. The resident remains dissatisfied with the landlord’s response to the EMF disturbance in her flat, which she says needs to be treated as a health and safety emergency. She is requesting that she be re-housed temporarily or permanently whilst the issue is properly investigated.

Assessment and findings

Response to reports of EMF disturbance

21. The landlord does not dispute its obligations in relation to maintenance of the electrical installation at the property – the evidence shows that it acted quickly to arrange an electrical inspection as a result of the resident’s reports. However, in providing a decision on her complaint, it appears to have confused the issue with the inspection of electrical installations which is within its usual duty as a landlord. This resulted in its stage one complaint conclusion that the EMF inspection had been conducted.
22. The landlord’s stage two decision did not include any claims of having conducted an EMF inspection and it emphasised that it had neither the expertise nor the responsibility to do so. As the resident had queried why the landlord did not accept the findings of the independent survey which she commissioned, it was reasonable that the landlord clarified that it had concerns about the independent surveyor. This Service agrees that it is reasonable for landlords to accept the findings of their professionals. In this case, it must be kept in view that it has not been proven that EMF inspections are a function for which a landlord has an obligation.
23. The landlord further noted that the council had not contacted it regarding its inspection, and it had therefore concluded that no issues had been identified. Whilst this may have been the case, it would have been prudent for the landlord to request a copy of this report; it was obliged to address the resident’s complaint, the subject of which the report pertained to. It is important to note, however, that the landlord had stated that the council had not served it with an Environmental Health Order as would have been the case if it found that the landlord had failed to undertake actions to deal with any issues for which it was responsible. In any event, the inspection carried out by the local council was not specifically an EMF disturbance assessment, but a general electrical inspection only. The electrical engineer explicitly stated to the landlord that he was not an EMF expert.
24. Whilst this Service will consider the medical reports provided by the resident for contextual purposes, it is not able to make conclusions regarding the link between the reported EMF disturbance and the resident’s health as this fall outside of the Ombudsman’s jurisdiction. The resident may wish to seek separate independent legal advice on the reported effects of EMF disturbance on her health. Instead, we have considered the landlord’s response to the issue and whether it failed to adhere to the terms and conditions of the tenancy agreement or its repairs and maintenance policies. It was appropriate that the landlord advised the resident about the staff member to contact with respect to her request to be rehoused as this had to be dealt with in accordance with its usual processes. As the landlord had not found that rehousing was warranted in her case, it is appropriate that it suggested that she could seek mutual exchange as a means of moving from the property.
25. From the foregoing, this Service has established that there is no evidence that the EMF assessment requested by the resident is a service for which the landlord has any responsibility. Thus, although it could have requested for a copy of the council’s report, there was no significant failure in it not doing so.
26. The Ombudsman considers that the resident’s reports about EMF issues may be valid and of high impact, however, there is no evidence to indicate that the landlord has the knowledge, expertise, or responsibility to understand or resolve it. She is encouraged by this Service to continue to seek further information on the issue and to share any significant information she finds with the Environmental Health Team of her local council.

Complaints handling

27. It was not appropriate that the resident was unclear as to what stage her complaint was at, at the point where the landlord confirmed it would be escalated from an expression of dissatisfaction; nor was it appropriate that she had to email the landlord on 23 July 2020 asking when she could expect to receive a stage two response. No evidence has been provided to show that the landlord responded to this request. The Ombudsman expects that residents should be clear on what they can expect from the complaints process and that timeframes for responses are set out in the landlord’s complaints policy. A recommendation will be made on this basis. Service failure is therefore found on this basis.

Determination (decision)

28. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s reports of EMF disturbance.
29. In accordance with paragraph 54 of the Scheme, the landlord demonstrated service failure in its handling of the formal complaints.

Reasons

30. The landlord undertook an electrical testing in accordance with its expertise and responsibilities too ascertain that there was no electrical hazard in the property. No evidence has been provided to show that it has the duty of undertaking EMF inspections.
31. Service failure was demonstrated in the landlord’s complaints handling – the resident was not provided with sufficiently clear information regarding the complaints process or timescales and was required to chase the landlord for a response. 

Orders and recommendations

Orders

32. The landlord is ordered to, within 3 weeks of this decision:
    1. Pay £200 to the resident in compensation for the distress and inconvenience caused by its complaint handling failures.

Recommendations

33. It is recommended that the landlord review and update its complaints handling policy to include timeframes for responses in line with this Service’s guidance: https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/
34. It is also recommended that the landlord carries out staff training on effective complaint response in line with its own policy and this Service’s complaint handling code as above.
35. Conduct a fire testing inspection of the property as the resident has expressed concern that there is current fire risk to the property. 

It is recommended that the landlord comply with the above recommendations within two months from the date of this report.