Peabody Trust (202016218)

REPORT

COMPLAINT 202016218

Peabody Trust

16 August 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. The complaint is about:
   1. The landlord’s handling of a gas safety check at the resident’s property.
   2. The landlord’s handling of the resident’s complaint.

Background

2. The resident is an assured tenant of the property, a ground floor flat, owned by the landlord.
3. The landlord’s contractor advised the resident that the property’s annual gas safety check was required, with an appointment scheduled for 12 June 2020. The resident was unwilling to allow the landlord’s contractor to enter the property however as she and her family were shielding due to Covid-19 as they had disabilities. She informed the contractor about this and refused to allow the contractor access into the property, on several attempts.
4. The landlord attended the property with its contractor with the intention of entering the property to do the gas check on18 August 2020. However, they reported feeling threatened by the resident during this attempt to complete the inspection and ended up calling the police. Following this, the landlord made a decision to cut the gas supply off on 24 August 2020.
5. The resident said she had experienced inconvenience and financial loss due to the landlord’s decision to cap off the gas supply, as she had to buy an electric cooker and electric heaters. She also said her electric bills increased significantly as a result. The resident thought that the landlord was discriminating against her, and said she felt threatened by the number of males sent to her property.
6. The gas supply was turned back on around three a half months later, on 10 December 2020, following a successful gas safety inspection on that date. The landlord accepted that there were delays in dealing with the resident’s complaint and offered her £100 compensation for this. The resident remains dissatisfied with the landlord’s response to her complaint. She said that it did not address her concerns about possible discrimination and harassment in its attempts to gain entry to the property; she also viewed the landlord’s actions as illegal.

Assessment and findings

Gas safety check

7. The Gas Safety (Installation and Use) Regulations 1998 requires the landlord to ensure that a gas safety check is carried out within 12 months of appliances being installed and at intervals of not more than 12 months since the appliance was last checked for safety.
8. The terms of the resident’s tenancy agreement make it clear that the resident is responsible for letting the landlord into the property if they need to inspect it or carry out repairs.
9. The landlord’s gas safety policy explains that if it is not able to gain access to carry out the gas service on the first visit, it will offer two further appointments. If the resident still fails to provide access, the landlord will check if there are any vulnerability issues. Where access is still not gained, the landlord will offer a further appointment which will be hand-delivered and advise that if access is not provided then a lock change may be carried out and the gas service carried out.
10. The landlord’s contractor sent the resident two letters arranging a date for the gas safety check, though the resident refused to allow them access when they attended. There were also text messages sent to the resident. The contractor then sent the resident a third letter which explained that the landlord could gain access by a lock change or forced entry. It is understood that the landlord also put up a notice of this on the resident’s front door.
11. The resident did not want the landlord’s contractor to enter her home because she and her family were shielding, due to the Covid-19 pandemic. She made the landlord’s contractor aware of this.
12. Government advice to social housing landlords at the time was that where residents were shielding, the landlord should balance the risk presented, taking into account factors such as, the age and type of appliance, previous maintenance history and date of the last gas check. The advice was that in some situations it would be appropriate for the gas safety check to go ahead, though arrangements should be made to avoid any face-to-face contact.
13. The landlord has not shown that it considered delaying the gas safety check, given that the resident and her family were shielding, though the precise date that the safety check was due is not known. It is also the case that the landlord concluded that it had a responsibility not only to the resident and her family to ensure that the gas appliances were safe, but also to the resident’s neighbours. The letters sent to the resident by the landlord’s contractors set out what steps their engineers would take whilst in the property given the Covid-19 pandemic, such as keeping at least two metres away from the resident. This was appropriate, with the landlord seeking to provide reassurance and clarity as to how it would progress the inspection.
14. The landlord’s gas safety policy allows the landlord to carry out a lock change and carry out the gas safety check if a resident continues to refuse access. However, the landlord were unable to access in this way, as its staff felt threatened by the resident when it attempted to do so (18 August 2020). The landlord therefore called the police, and it instead decided to cap off the gas supply. This was an alternative to entering the property and causing further distress to the resident (as well as potentially putting its staff at risk). The landlord had acted in accordance with its policy in its attempts to complete the gas safety check and, having been unable to do so, it decided that turning off the supply was the most appropriate course of action.
15. The resident was dissatisfied with the landlord’s actions in attempting to gain entry to the property; she understood that the landlord required legal permission to force entry in such circumstances. She also viewed the landlord’s subsequent decision to turn off the gas supply to be unlawful. The Ombudsman does not have the authority to comment on the landlord’s actions from a legal perspective and the resident may wish to pursue legal action in this respect if she remains dissatisfied. In such circumstances, landlords will often obtain an injunction prior to attempting to gain entry to a property and there is no evidence that this was the case here.
16. The landlord’s letter to the resident following its decision to cap the gas supply (24 August 2020) stated that ‘in some instances’ of refused access, proceedings are issued for an injunction to order that access is given. However, there is no evidence that it went down this route prior to its attempts to gain entry to the property on 18 August 2020. That said, the impact of COVID-19 has to be considered here. As with many other essential services at that time, court processes were not operating under their usual standards at that time and it is reasonable to conclude that the landlord will have factored this into its decision making at that time.
17. On the same date that the gas supply was cut off, the landlord’s legal team wrote to the resident explaining its actions. It also advised the resident to contact her neighbourhood manager in order to arrange the outstanding safety check so that the gas supply could be reinstated. This message was clear and reasonable, with the landlord, at that time, looking to act proactively to resolve the issue.
18. In response, the resident questioned whether the landlord had acted lawfully in its actions to cut off her supply. In internal landlord email correspondence, the landlord initially looked to send a further response to the resident to say that someone would be in contact to arrange the safety check and resolve the issue. However, the landlord’s internal emails then state that the supply would be left off until access was provided with ‘no further threat to safety’.
19. There is then no evidence of further contact between the landlord and the resident until 23 November 2020, when the resident’s solicitor wrote to the landlord. They expressed the difficulties experienced by the resident and requested that the safety inspection be arranged, and the supply turned back on. The inspection and subsequent decision to turn the supply back on occurred shortly afterwards (10 December 2020). It is reasonable to conclude that, having been left with no gas supply for an extended period, the resident was more willing to work with the landlord to ensure that the safety check could proceed. As this was some time later, her concerns regarding COVID-19 may also have reduced.
20. In all the circumstances of the case, the Ombudsman does not consider it reasonable for the landlord to have left this issue unaddressed awaiting contact from the resident or her representatives for such a long time. It was aware that her household had vulnerabilities and knew that no gas supply at that time of the year (autumn into winter) would have presented significant challenges for any household.
21. Whilst it was relevant to its decision making that operatives had felt threatened when attempting to force entry into the property, the landlord ought to have considered the case from the resident’s perspective. It was clear that she felt threatened herself and was fearful that household members might become infected by COVID-19. Whilst the landlord’s gas safety obligations were paramount, it was also important for the landlord to show understanding for what was guiding the resident’s actions. Furthermore, having now had her gas supply cut off, this vulnerable household was now in a highly challenging situation. Attempting to work with the resident to achieve a resolution should have been an essential priority at this point, irrespective of her previous behaviour.
22. The resident responded to the landlord’s contact of 24 August 2020 with comments relating to potential legal recourse. The landlord’s initial consideration of her response (internally) was to make further contact with her in order to arrange the safety check. This would have been a reasonable course of action as it would have amounted to proactive action to achieve the end result that was in all the parties best interests, i.e. a successful gas safety check followed by reinstation of the gas supply. 
23. Rather than contacting the resident to arrange the safety check, a decision was made to leave the issue as it was until there was no further risk or threat to operatives. However, it is not clear what, if anything, the landlord did to ensure there would be no further threat from the household. Instead the resident was left to continue without a gas supply, at a time of year when the temperature was starting to drop.
24. In the end, the situation was resolved fairly promptly following the contact from the resident’s legal representatives. It was therefore possible that further attempts on the landlord’s part nearer the time of the original decision to cut off the supply might have enabled a speedier resolution here.
25. The landlord’s lack of customer focus on this point is emphasised in further internal correspondence dated 2 July 2021. At that point a landlord member of staff questions the resident’s right to bring a complaint on this issue given her previous actions and also questions whether it needed to respond to her. One crucial aspect of the complaints process is to address the imbalance of power between resident and landlord. Taking a heavy handed approach to customers who have previously demonstrated unreasonable behaviours lacks fairness and will only serve to entrench ill feeling between the landlord and its tenant.
26. Given the failures identified, a finding of maladministration would ordinarily have been identified on this case. However, in accordance with the Ombudsman’s Dispute Resolution Principles, all the circumstances of the case need to be considered. It is not disputed by the Ombudsman that the resident’s unreasonable behaviour at the time of the attempt to gain entry to the property in August 2020 has informed its decision making thereafter. The welfare of landlord staff needs to be a consideration for any member landlord and it is clear that they felt sufficiently threatened on the day to justify calling the police.
27. In consideration of the resident’s behaviour, the Ombudsman finding here has therefore been reduced to a finding of service failure, with a reduced award of compensation reflected by this amendment. The landlord’s decision to cut off the gas supply was reasonable in the circumstances as it could not guarantee the safety of residents (including neighbours); its actions were also in accordance with its policy. Whilst the resident’s actions were unreasonable on the date that the landlord attempted to gain entry to the property however, this does not explain why the landlord then failed to attempt to work with the resident to resolve the issue and get the gas supply reinstated.
28. To remedy this issue, an apology, plus compensation to reflect the resident’s experience during this time has been ordered. A total amount of £350 has been ordered on this issue to reflect the distress/inconvenience experienced as a result of the landlord’s failures on this case.

Complaint handling

29. When the resident complained to the landlord, she explained that she felt intimidated due to the number of males sent to her property by the landlord. She also thought the landlord was discriminating against her. This Service cannot assess discrimination issues in the way that a court can as the Ombudsman does not have the relevant expertise or authority to make such findings. However, it is expected that a landlord will at least respond to any such issues raised through its complaints process.
30. In this instance, the landlord’s stage one response asserted that it treated all its residents with ‘the same dignity and respect’, though it did not provide any details as to how its actions had reflected these values in the resident’s case. When the resident requested escalation of her complaint she specifically referred to ‘intimidation and harassment’ and how it had sent large groups to the property. She had also raised concerns, from a racial discrimination perspective, when she first raised her concerns with the landlord back in August 2020. However, the landlord’s final response was silent on these issues.
31. In the circumstances, it is difficult to understand how the landlord reached a conclusion that it had treated the resident with dignity and respect given that it considered it appropriate to leave her without a gas supply for three and a half months. As detailed above, the landlord’s decision to cap the gas supply was reasonable given its legal obligations and fears for the safety of its tenants, however, its subsequent decision to leave the resident without an essential service for a protracted period presents as a punitive measure, rather than one focussed on achieving a resolution to a difficult issue.
32. The landlord logged a formal complaint after this Service asked it to do so on 1 June 2021. By this stage, the resident had raised initial concerns in August 2020 and her solicitor had made contact about her dissatisfaction in November 2020.
33. The landlord’s complaints policy explains the landlord operates a two-stage complaint process. A stage one response should be provided within 10 working days. After escalation to stage two, the response should be provided within 15 working days of acknowledgement.
34. The landlord did not issue its stage one response until 5 July 2021, which was outside its published timeframe. The resident wanted to escalate the complaint to stage two the same day, and this was acknowledged by the landlord on 6 July 2021. However, the landlord did not then provide its stage two complaint response until 27 August 2021, which was outside the 15 working days timeframe. The landlord did keep the resident updated throughout that period however.
35. As noted above, there are serious concerns about the lack of customer focus in the landlord’s complaints process, with one member of staff questioning the resident’s right to submit a complaint. The landlord also confirmed in its final response that it had not considered the resident’s initial contact (August 2020) to amount to a formal complaint on account of her conduct. It also looked to exclude the complaint on account of timeframes as, by the time this Service became involved (June 2021) it was more than six months from the initial incident. The landlord concluded that these assessments were ‘reasonable’, though it is not clear how it reached this conclusion.
36. Landlords should look to bring complaints within their complaints process rather than look for reasons to exclude them. Complaints provide opportunity to learn, to improve relationships and identify and address service failures. Complaints should also be kept separate from other policies. If the landlord had concerns about the resident’s behaviour, it has means to take steps to address this, such as progressing down an unreasonable behaviour process. However, this would not prevent the resident from submitting a complaint and it is of significant concern that the landlord has not identified this through its complaints response.
37. The landlord apologised for its delays in handling of the resident’s complaint, and confirmed that it had taken on an additional member of staff to help with delays. It offered the resident £100 compensation to reflect her experience in this regard.
38. The landlord’s compensation policy explains that the landlord will pay a maximum of £100 compensation for poor complaint handling. It is appreciated that the landlord has offered the maximum amount under its policy and that it has also taken steps to prevent a repeat of the delays in future. However, as the landlord did not address the resident’s concerns in respect of discrimination, or that she felt threatened by its staff, and given the lack of customer focus, a finding of maladministration, together with an order to increase the amount of compensation to £250, is considered proportionate to the resident’s experience on this case.
39. In addition, the landlord is ordered to apologise in writing to the resident for her overall experience on this case. It is appreciated that the resident herself acted in such a way that caused the landlord’s operatives concern when they attempted to force entry to the property and it is hoped that she will also reflect on her actions and look to learn from the experience. It is essential that a healthy landlord/tenant relationship be fostered by both parties here so that further issues do not take place in the future. The landlord’s apology is intended to act as a catalyst for these improved relations.

Determination

40. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of a gas safety check at the resident’s property.
41. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the resident’s complaint.

Orders

42. The landlord to pay the resident £350 compensation to reflect the failures identified with the gas supply issue.
43. The landlord to pay the resident £250 in compensation for the failures identified with its complaints handling (less any amounts already paid on this issue).
44. The landlord to apologise to the resident for her overall experience on this issue.
45. The landlord to provide evidence to this Service of compliance with the above orders within 28 days of this report.

Recommendation

46. The landlord to review the failures on this case and identify and training needs required as a result of this review.