Railway Housing Association and Benefit Fund (202225070)

REPORT

COMPLAINT 202225070

Railway Housing Association and Benefit Fund

21 August 2023

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 response to the resident’s concerns about a staff member’s conduct during a fire-safety drill.
   2. The landlord’s handling of the associated complaint.

Background

2. The resident is a tenant of the landlord. The property is a flat situated in a building. A fire-safety drill was conducted in the building on 11 May 2022 in which two of the landlord’s staff members were present. For the purposes of this report, they will be referred to as staff member A and staff member B.
3. Some of the events of 11 May 2022 are disputed but, based on the information provided, it was said that the resident and other residents had not complied fully with the fire–drill procedure. As such, staff members A and B approached the resident to discuss the fire-safety procedures; this took place on the stairwell of the building.
4. The resident made a formal complaint on 28 September 2022 regarding the conduct of staff member A during the fire-safety drill on 11 May 2022. She alleged that staff member A had prevented her from returning to her property, even though she had asked to do so on a number of occasions and despite knowing she was unwell. She said that she had recently had major surgery and it was clear that she was desperate to return to her property to rest. She said that staff member A refused to let her go back to her property until the staff members had spoken with her about the fire-drill procedure. She said that staff member B was witness to the events of that day.
5. In the landlord’s stage one complaint response, dated 10 October 2022, it confirmed that it had spoken with the two staff members separately as part of its investigation. It informed the resident that staff member A strongly refuted the resident’s allegation that she prevented her from returning to her property. This, it said, was corroborated by staff member B. It said that following any drill, it was normal practice to speak to any residents who did not follow the correct procedures, to make sure that they understand them. The landlord concluded that it could not find any evidence to suggest staff member A acted in a way to deliberately cause the resident distress. Instead, staff member A was anxious to fulfil her duties in advising any resident who did not follow the correct fire procedure of the dangers of not doing so.
6. The resident escalated her complaint on 11 November 2022 because the stage one response did not address the fact that, at the time of the incident, she was very unwell following major surgery. She was not happy that the response found no evidence that any distress had been caused, despite the fact that she was in her dressing gown, clearly unwell, and asking several times to be allowed to return to her property, only to be prevented from doing so by staff member A. She said the only option she was given was for the two staff members to discuss the matter with her at her property, but she said that at that time she was too unwell. She explained that she ended up sitting on a step in the middle of the stairwell for at least ten minutes before staff member A moved to allow her to return to her property. She said she felt bullied by staff member A, who was very abrasive and seemed to not care that she was clearly very unwell.
7. On 16 December 2022 the landlord provided its stage two complaint response. It said that the two staff members were not aware of the full extent of the resident’s illness at the time of the fire drill on 11 May 2022 and thereby not able to treat her differently. It reiterated that the two staff members were adamant that at no time did either of them raise their voice to the resident and were not intimidating or bullying. It said that the staff members felt that they were carrying out their duties in the manner they saw most fit in the circumstances.
8. That said, the landlord said that it could learn from the complaint in respect of how it conducted fire drills in the future. It said it would propose putting in place detailed guidance for staff on how to act, which would in turn mean a change in how it dealt with these situations. The landlord said that this would mean a less confrontational approach would be implemented that was supportive of residents’ freedom to choose whilst also understanding that the landlord would act in its residents’ best interests to keep them safe in the event of a fire. This approach would mean it would not confront residents individually, but instead it would issue them with letters on the day of the fire drill advising them of the landlord’s policy during a fire drill.
9. The landlord informed the resident that it had not received a full apology from staff member A as yet, but it expected that this would be forthcoming. Moreover, it said it was unable to permit staff member A to not have further contact with the resident, because the staff member’s duties meant that this was not viable. However, it said that if the resident did not wish for staff member A to have access to her property, then that that was her choice.
10. The resident brought her complaint to this service as she remained dissatisfied with the landlord’s response and felt that it did not reflect what happened to her on 11 May 2022. She said that, while the landlord had apologised to her, she had yet to receive an apology from staff member A, and there was no accountability for the staff member’s actions, whom she still had to deal with.
11. She was also unhappy with the time taken to go through the complaints process and the undue stress this added to an already difficult situation. She also said the final response from the landlord did not reflect the serious nature of her complaint and the consequences it had in terms of ongoing distress. As a resolution, the resident wanted staff member A to accept accountability for what had happened and to apologise.

Assessment and findings

Scope of investigation

12. While it is noted that the resident has contended that the situation has delayed her recovery from her second surgery, this service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. It is beyond the expertise of this service to make a determination on whether there was a direct, causal link between the landlord’s actions and the resident’s medical condition. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.

Staff conduct

13. The role of the Ombudsman is not to establish whether the conduct of staff member A was appropriate or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of poor conduct by its staff member was fair in all the circumstances of the case.
14. When a resident raises concerns regarding staff conduct, a landlord would be expected to carry out a fair and impartial investigation into the matter, and then take proportionate actions based on the investigation’s findings.
15. In this case, the landlord took reasonable steps to investigate the resident’s reports of poor staff conduct, in line with its obligations, and took proportionate actions based on its findings. The landlord has evidenced that it spoke to both staff member A and staff member B regarding the incident on 11 May 2022, both of whom confirmed that staff member A had not prevented the resident from returning to her property and did not raise their voice to the resident. Furthermore, there was no evidence to suggest the two staff members were fully aware of the extent of the resident’s illness on that day.
16. For a landlord to take formal action in respect of poor staff conduct, it requires corroborative evidence of the alleged behaviour. And while it is not disputed that the resident felt bullied by staff member A, and that she felt there was a lack of empathy for her situation, it was reasonable for the landlord to conclude, based on its investigation, that no further action would be taken against staff member A for the way the incident was handled. As such, this service is satisfied that the landlord took reasonable steps to address the resident’s concerns during the investigation process.
17. Notwithstanding the above, the landlord took the opportunity to implement some learning from the complaint to reduce the risk of a similar situation arising in the future. The landlord’s decision to change its approach, by not confronting residents individually who had allegedly not adhered to the fire-drill procedure, demonstrated a willingness to improve its service and also indicated an acknowledgment of the resident’s experience.
18. It is noted that the resident was not happy that the landlord would not forbid further contact between staff member A and the resident moving forward, and this was of particular concern to the resident. However, the landlord’s decision was reasonable and in line with the investigation’s findings, as there was no evidence of any wrongdoing and the staff member’s role would make any such adjustments unreasonable because they would not be able to fulfill their duties.
19. Nevertheless, it is of concern that, as part of the stage two complaint response, the landlord intimated that staff member A would provide the resident with an apology, yet this did not materialise. From the evidence provided, the only subsequent apology came from a different staff member on 23 December 2022. Though it is unlikely that the purported apology was one in which fault was admitted, it is nevertheless understandable that the lack of an apology from staff member A, having been told that it was forthcoming, was a cause of further frustration for the resident. Though this did not constitute a failing on the landlord’s behalf, as it did not affect the overall outcome of the complaint, this was a missed opportunity to work towards an improved landlord/tenant relationship. Therefore, it is recommended that the landlord clarify its position regarding the proposed apology from staff member A.

Complaint Handling

20. The landlord’s complaints policy states that its complaints procedure has 2 stages. At Stage 1, a Manager will investigate the complaint and respond within 10 working days. At Stage 2, a Director will review the complaint and respond within 20 working days.
21. At stage 1, the resident raised her complaint on 28 September 2022 and the landlord provided its stage one complaint response on 10 October 2022, which was within the stipulated 10-working-day timeframe.
22. However, at stage 2, the resident escalated her complaint on 3 November 2022 and the landlord did not provide its stage two complaint response until 16 December 2022, which was 32 working days later, exceeding its expected target date by 12 working days.
23. This was a failing on the landlord’s behalf that was not acknowledged by the landlord. Therefore, a finding of service failure has been found with respect to the landlord’s handling of the associated complaint. To put matters right, the landlord is ordered to apologise and pay the resident £50 compensation, which in line with the Ombudsman’s own remedies guidance (which is available on our website). This recommends a payment of £50 to £100 in cases of service failure of a short duration that may not have significantly affected the overall outcome.

Determination

24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the response to the resident’s concerns about a staff member’s conduct during a fire-safety drill.
25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord for its handling of the associated complaint.

Orders

26. The landlord is ordered to apologise to the resident for its failings identified in its complaint handling and to pay the resident £50 compensation. Confirmation is to be sent to this service that the apology and the payment have been made within four weeks of the date of this report.

Recommendations

27. It is recommended that the landlord clarify its position regarding the proposed apology from staff member A.