Peabody Trust (202207765)

REPORT

COMPLAINT 202207765

Peabody Trust

28 February 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 handling of an annual gas safety check at the resident’s property.
2. The Ombudsman has also investigated:
   1. The landlord’s complaint handling.
   2. The landlord’s record keeping.

Background

3. The landlord is an assured tenant and has resided at the property with her dependent son since 13 April 2020. The property is a three-bedroomed maisonette on the third floor.
4. On 29 April 2022, the landlord sent notification to the resident that the annual gas safety check (GSC) was due and an appointment had been booked for 18 May 2022 between 8am and 1pm. The resident was unable to make this appointment and asked for it to be rearranged. Two further appointments were made by the landlord for 1 June 2022 between 1pm and 5pm and 17 June 2022 between 1pm and 5pm. The landlord’s records state that these appointments were rescheduled by the resident as they were not convenient.
5. On 1 July 2022, the landlord hand delivered a letter to the resident advising that completing the gas safety check is its legal responsibility and it would be forcing entry to her home to complete it. The forced entry was scheduled for 13 July 2022, however the letter encouraged her to call and book an appointment for a convenient date before this date. The landlord did not have a copy of this letter on its system so it is unclear what time window was given for the forced entry.
6. The landlord called the resident on 7 July 2022 to discuss the forced entry, and the resident made an appointment for 14 July 2022. She states that she was told that the appointment would be between 9am and 1pm. Call notes state “The tenant very anxious and confused, has called the contractor to confirm the appointment which was already booked with them a few weeks ago for 14 July 2022. The member of staff from the contractor has confirmed the appointment date and apologised to the tenant but forced her to arrange a different date as it was not good enough. After the phone call the tenant called very upset and wanted to raise a complaint for the contractor. Tenant wants her gas safety check appointment to be on the actual date 14 July 2022 as it was previously.” The resolution for this issue was that if she could be home on 13 July 2022 between 8am and 8pm the resident could open the door for the contractor and it would not need a locksmith.
7. On 11 July 2022, the customer service team requested the appointment be confirmed for 14 July 2022 at 9am-2pm as the resident was working all day on 13 July 2022. The appointment was agreed “multiple times” with the resident. It   also asked that the resident be contacted to assure her that there would be no forced entry on 13 July 2022 and the appointment would be on 14 July 2022 as planned. The gas contractor confirmed it had availability at 9am-2pm on 14 July 2022 to complete the GSC at the property, and it had been booked with them “weeks ago”. The resident contacted the landlord on 12 July 2022 to reconfirm the details of her appointment.
8. On 14 July 2022, the resident called the landlord to chase the GSC as no-one had attended and it stated to her that a forced entry was planned, not an appointment. Internal emails also state that the resident was told that if she did not answer the door, a forced entry would be completed. The resident disputes this, and said she informed the landlord that she would be out of the property at a doctor’s appointment and collecting her child from school until 5pm. She states that she told the gas contractor she would be able to facilitate the appointment when she returned and was told this would be fine.
9. Between 1pm and 2pm on 14 July 2022, the landlord attended the property and forced entry. It called the resident to inform her, and she cut her doctor’s appointment short and returned. The resident states that the operative was looking at her personal documents when she arrived and it felt like her privacy had been violated. The landlord’s records state that the operative left the property at 2.30pm once the check was complete. Records sent to the resident by the landlord state that, while the attending operatives wore a body-worn camera, it was not operational.
10. The resident made a complaint on 18 July 2022 which was acknowledged by the landlord on the same day. The complaint stated that:
    1. She had made herself available on 13 July 2022 as she was under the impression they were going to force entry based on the letter she had received. She stated that it had not been made clear to her that this appointment was cancelled once she made an appointment for 14 July as she had received no written confirmation.
    2. She was given a time of 9am-1pm for 14 July 2022 and made herself available and was then told it was 8am-8pm.
    3. When she spoke to the landlord on the day, she asked it to attend after 5pm and states this was agreed. Instead, the landlord attended while she was out at the doctors and she had to cut her doctor’s appointment short to return to the address.
    4. As a result of the forced entry, she did not feel safe in her home, and felt as though her privacy had been violated. She also had increased stress and anxiety.
11. A stage 1 complaint response was issued to the resident on 27 July 2022. The landlord reiterated that it had a legal responsibility to complete GSCs and had the authorisation to force entry if access was not provided. It also listed the dates and times that previous appointments had been made. The complaint was not upheld as it stated that while it “sympathised” with her situation, it was satisfied all efforts had been made to avoid forced entry.
12. The resident responded on 27 July 2022 stating she was unhappy with the complaint response for the following reasons:
    1. It made no mention of the time she had spent chasing the appointment and confirming the time.
    2. She had confirmed the date and time of the appointment on the day and was told not to worry about forced entry.
    3. She believed staff had read her personal documents on the day and were rude to her.
    4. The appointment time was listed differently in different places as she was told 9am to 1pm, the record showed 9am to 2pm and on a separate call she was told 8am to 8pm.
    5. She also queried why the final hand delivered letter was stuck to her door and not posted or delivered to her personally.
13. The request for escalation was acknowledged by the landlord on 20 September 2022, following intervention from the Housing Ombudsman on 6 September 2022. The landlord’s stage 2 response was issued on 11 October 2022 and said:
    1. It acknowledged that the automated process of booking the gas safety check can be ‘frustrating.’
    2. The final letter is hand delivered as “not everyone reads or picks up their post” and due to the urgency, it must take reasonable steps to ensure the intended recipient sees it.
    3. It acknowledged that on 7 July she was told by the gas support team that it would not force entry and an appointment time was booked, however this information was not fully accurate.
    4. The gas support team agreed a time with her however did not update the landlord about this, and so the standard appointment time of 8am to 8pm was given.
    5. The operatives who attended the property had denied reading any personal information, and once they were advised the resident was returning home, they left the property and closed the door, to wait until she arrived.
    6. It was suggested that “to avoid issues with future GSCs, we hope you can be available for one of the automated visits. It will ensure that we complete the GSC on time without having to cause an avoidable inconvenience by forcing entry or stating that we may have to force entry.”
    7. The landlord recognised that record keeping had been below standard, as it had no record of an appointment being made on 14 July 2022. It said that it was reasonable she would have been home for the appointment as she had called to confirm it multiple times.
    8. The complaint was upheld, and compensation of £300 was offered for “time, trouble and inconvenience”. It also offered an additional £100 compensation for the delay in its stage 2 response.
14. The resident remained dissatisfied with the complaint response, as she felt her concerns had not been addressed, and she was concerned about the legality of the forced entry. The landlord advised her to seek legal advice should she wish to confirm this however “the gas compliance team authorised the forced entry and that seemed reasonable in line with the appropriate rules.”

Assessment and findings

Scope of investigation

15. During the course of her complaint, the resident made a subject access request (SAR) to the landlord, requesting copies of information held about her including footage from body worn cameras on the day of the GSC. She has advised us that she was unhappy with the amount of information she received and its quality. She felt that the information sent to her was not a full account of her records, and the body worn camera footage was insufficient. Paragraph 42j of the Scheme states “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body”. SARs fall under the remit of the Information Commissioner’s Office (ICO), and so the resident has been informed that if she wishes to take matters further in relation to the SAR, she will need to contact the ICO.
16. She has also expressed concern about the legality of the landlord’s forced entry to her property. The Ombudsman’s role is to consider whether actions taken by a landlord are compliant with the legislation, its policies and wider regulations. We can provide an opinion and make a determination however where a matter may require consideration of complex legislation and ultimately a legally binding decision, these decisions may be more appropriate for a court. For this reason, our investigation will look at whether the action taken was fair and reasonable, and whether the landlord followed its policies and legal responsibilities. If the resident wishes to seek a legally binding decision as to the legality of the landlord’s actions, she should seek legal advice.

The landlord’s handling of an annual gas safety check at the resident’s property and the associated complaint

17. Yearly gas safety checks are a legal requirement under the Gas Safety (Installation and Use) Regulations 1998 and the landlord has the responsibility to complete them. The resident’s tenancy states:
    1. “We have a duty to check your gas fitting and the flues serving it at least once a year. This is to minimise the risk of explosion or carbon monoxide poisoning. We will always give you reasonable notice in writing of any inspection. You must provide access for these inspections and cover our reasonable costs if something you do means we cannot get into your home. If you do not give us access for gas safety inspections, we can allow ourselves entry into your home. By accepting this tenancy, you are agreeing we have the right to do this.”
18. The landlord’s gas safety policy states:
    1. “We take reasonable steps to gain access to a tenant’s home to undertake a gas safety inspection. In practical terms this will include writing and calling to schedule appointments. However, when we are unable to make contact with a customer, we undertake exhaustive checks to ascertain why and provide appropriate advice and support to keep customers safe and to access the property to carry out the gas safety check.”
    2. “We contact tenants a minimum of three times and consider their personal circumstances and any vulnerabilities known to the landlord. Our preference is always to work with the tenant to complete a safety check and put in place measures to encourage access, e.g. installing service interval programmers, rather than take legal action.”
19. When booking individuals in for a gas safety check, the landlord uses an automated system which issues a letter to the resident with a pre-booked appointment. These appointments may be suitable for some residents, however others will need to call the landlord if the appointment is not suitable due to other commitments such as work or childcare. While the landlord may implement this to support workforce management, in practice it may lead to appointments continuously being rescheduled if the resident is not consulted on when the best time for an appointment may be.
20. The landlord made 3 attempts at booking an appointment before advising it would force entry, and this is in line with its policy. However, the policy states that it will consider individual circumstances and work with the resident. There is no evidence that, in this case, the resident was asked when a suitable time would be, and whether there were any times to avoid. She remained in contact with the landlord throughout and tried to make a suitable appointment.
21. On 7 July 2022, the resident contacted the landlord to make an appointment as an alternative to forced entry, however on the landlord’s system it was still classed as a forced entry. This meant that when the resident was not home on the day of the appointment it gained access immediately. While the gas safety check was required urgently, the resident had informed it of a time she would be back, after the original appointment time was communicated to her incorrectly. Given this error, the resident should have been contacted to discuss giving access that day prior to the forced entry taking place. The Ombudsman recognises that the landlord has taken accountability for this error in its final complaint response.
22. Given that the resident contacted the landlord to check the appointment time multiple times, the fact that this appointment was not honoured was the result of a failure in both record-keeping by the landlord and communication between it and the gas contractor. The resident was not sent a letter or email confirming the appointment time, and the landlord admitted to the resident during the complaints process that it had no record of the appointment being made for 14 July 2022. The contractor had the appointment listed but at a different time. When she spoke with the gas contractor on 7 July 2022, she was assured that the forced entry would not be completed, however still received automated letters about it, and it was still on the landlord’s system as a forced entry. An order will therefore be made at the end of this report for this process to be reviewed.
23. In the stage 2 complaint response the landlord stated “we are satisfied that we followed the GSC process correctly. However, to avoid issues with future GSCs, we hope you can be available for one of the automated visits. It will ensure that we complete the GSC on time without having to cause an avoidable inconvenience by forcing entry or stating that we may have to force entry.” This is not a flexible or collaborative approach and puts the responsibility solely on the resident to make herself available. It does not account for work or family commitments, or as in this case, healthcare appointments which may occur. The landlord should make every effort to work with residents to highlight an appropriate time to maximise the chances of a gas safety check being completed promptly.
24. There is no record of what time the contractor attended the property. The resident believes it was shortly after 1pm, however internal correspondence during the complaints process lists the time as 3.30pm.
25. The resident has provided the Ombudsman with documents which were sent to her as part of the SAR. This documentation was call logs which have been referred to in the background of this report. To ensure fairness, as this Service could not confirm that the information provided was a full account of the contact between parties, we contacted the landlord to request call logs spanning the period of 1 April 2022 to 15 October 2022. We were informed that call logs are only retained for a period of 6 months, and it could not provide the requested information.
26. The resident has told this Service that she still feels unsafe in her home, and as though the landlord can enter whenever they want to. She believes her privacy was invaded and is now wary of any future contact with the landlord. She feels that she has received no acknowledgement of the negative effect that this has had on her wellbeing, and that the compensation offered does not account for this.
27. The Ombudsman finds that there was service failure in the landlord’s handling of an annual gas safety check at the resident’s property. While we acknowledge that the GSC was urgent as it was 2 days prior to the expiry date of the previous certificate, the resident had arranged an appointment for which she was present at the property. Therefore, we would not expect that a forced entry would be actioned under these circumstances, as the resident was being communicative, compliant, and had taken time off work to allow entry. She had also given an alternative time to attend the same day once the original appointment time had passed. The resident’s privacy and ability to live without interference was compromised due to communication errors.
28. The landlord did acknowledge its poor record keeping led to communication failures, but it did not apologise to the resident for the effect that the situation had on her. The compensation offered by the landlord did provide some redress, however in the Ombudsman’s opinion it did not fully reflect the impact on the resident.

The landlord’s complaint handling

29. The landlord has a 2 stage complaints process. New complaints are logged within 5 working days as a stage one complaint and the expected timescale for stage 1 response is 10 working days. At stage 2, a response should be given within 20 working days unless an extension is agreed.
30. There was a period of 38 working days between the resident’s request to escalate her complaint, and the landlord acknowledging the request. While there is no set timescale in the landlord’s policy for acknowledgment of a stage 2 complaint, we would expect it broadly mirrors the stage 1 process. The landlord did recognise this, and offered compensation which in the Ombudsman’s opinion was reasonable, and consistent with its policy.
31. The Ombudsman finds that while there was maladministration in the landlord’s complaint handling, it recognised its errors and made an appropriate offer of compensation.

The landlord’s record keeping

32. Throughout this case there were a number of instances where poor record keeping caused detriment to the resident. There was not a clear record of communication between the landlord and the gas contractor, meaning both provided different appointment times to the resident. When booking the appointment for 14 July 2022, the gas contractor informed the resident it would need to ask permission from the landlord but there is no record of this conversation.
33. The landlord informed the Ombudsman that it only retains call logs for a period of 6 months. While this is the landlord’s decision, it is the Ombudsman’s view that this time period may be too restrictive particularly with matters that are recurring yearly, such as gas safety checks. It may be prudent to retain call logs relating to yearly maintenance to ensure any patterns of access issues, any previous concerns, or any additional requirements are highlighted and considered.
34. Additionally, landlords must comply with information requests from Ombudsmen and individuals via the SAR process, and these can be received over 6 months after an issue has arisen. Although complaints are normally not accepted by the landlord over 6 months after the event occurred, it may exercise discretion and choose to accept a complaint if there are extenuating circumstances. The lack of call logs could compromise the landlord’s ability to investigate the complaint and have a detrimental effect on the complainant. It would be prudent to maintain records for a longer period to ensure that such requests can be satisfied fully, which would benefit the requestor of the information, complainants and the landlord.
35. The Ombudsman finds that there was service failure in the landlord’s record keeping, particularly in how it communicated appointments internally and to its gas contractor. An order will be added to the end of this report.

Determination

36. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of an annual gas safety check at the resident’s property.
37. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord made an offer of redress to the resident in respect of how it managed the complaint which, in the Ombudsman’s opinion, satisfactorily resolves this aspect of the complaint.
38. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s record keeping.

Orders

39. The Ombudsman makes the following orders:
    1. Within 4 weeks of this report the landlord must provide a written apology to the resident for its handling of the gas safety check at the property. The apology must come from a senior figure within the organisation.
    2. Within 4 weeks of this report the landlord must pay £700 compensation to the resident, to include the £300 already paid, comprising of:
       1. £600 for the distress and inconvenience experienced during the forced entry for her gas safety check.
       2. £100 for the impact of the landlord’s poor record keeping on the resident.
    3. Within 8 weeks of this report, the landlord must review its gas safety policy to ensure:
       1. The process of booking an appointment takes into consideration, as far as practicable, the needs of the resident.
       2. There are robust channels of communication and record keeping practices to ensure the landlord, resident and contractor are fully aware of the time and date of booked appointments. Confirmation of date and time should be sent via the residents’ preferred method when appointments are made over the phone. A copy of this should be held on the landlord’s system and shared with the contractor.
       3. Residents are informed when a forced entry is scheduled, and under what circumstances it will take place.
40. The landlord should confirm compliance, with evidence, with the above orders to the Housing Ombudsman Service within 4 and 8 weeks of this report.

Recommendations

41. Within 8 weeks of this report, the landlord should consider reviewing the effectiveness of its information management policy. This review should assess:
    1. How it accurately reflects communication between residents, external contractors and its own departments.
    2. How long it should retain information to ensure there is a clear account of yearly maintenance work, such as gas safety checks. If any repeated issues are highlighted, it should consider where these will be highlighted to assist staff in managing the case.
    3. How it will manage requests for information or complaints, if the 6-month period is retained, to ensure that a full account of its communication with the resident can be demonstrated.
42. The landlord should confirm its intentions regarding the above recommendation to the Housing Ombudsman Service within 8 weeks of this report.