The Abbeyfield Society (202205203)

REPORT

COMPLAINT 202205203

The Abbeyfield Society

29 November 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

The complaint was about:
1. The landlord’s response to the resident’s concerns about the use of a stair lift in the property.
2. The landlord’s response to the resident’s concerns about emergency fire escape lighting being left on permanently.
3. The landlord’s response to the resident’s reports that a member of staff had behaved in a discriminatory way.
The Ombudsman has considered the landlord’s complaint handling.

Background and summary of events

The resident occupied the property under an assured tenancy within supported living accommodation. The building was a house comprising of several studio flats. The resident occupied a flat on the first floor of the house. The resident has autism spectrum disorder and other tenants also have vulnerabilities. A neighbouring tenant occupied a room initially at the time of his complaint, and used the communal stairlift before moving out.

Legal and policy framework

The resident’s tenancy agreement states that the landlord is responsible for assessing health and safety risks and informing occupants about fire exits and evacuation.
Building regulation BS 5266 relates to the provision of electric emergency lighting and includes emergency lighting for escape routes from buidlings. The Regulatory Reform (Fire Safety) Order 2005 is the main piece of legislation governing fire safety in buildings in England and Wales. A landlord is responsible or the fire safety of the common parts of a building and must comply with the legislation. The National Fire Chiefs Council provides additional guidance for supported housing. There should be adequate illumination of escape routes, even if fire causes interruption to the electricity supply in the building. This means that, other than in limited cases, all specialised housing should be provided with emergency escape lighting.
Section 6(1) of the Equality Act 2010 sets out that a person has a disability if he or she has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.
Section 15 of the Equality Act 2010 states a person (A) discriminates against a disabled person (B) if:
1. A treats B unfavourably because of something arising in consequence of B’s disability, and
2. A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Scope of this report.

The Ombudsman does not make binding decisions on discrimination, as this is a question of law and fact requiring legal analysis and expertise. Section 114 (1) of the Equality Act 2010 states the county court has the jurisdiction to decide if there has been ‘discrimination’ or other prohibited conduct. We could investigate, however, whether the landlord responded to the complaint about discrimination fairly and appropriately.

Documents

The landlord provided this Service with:
1. The Fire Risk Manager provided information on the cost differential between LED lighting and standard lighting.
2. The landlord’s fire safety Manual explaining the nature of emergency lighting as being the lighting system that comes on when the mains power fails in an emergency situation, for example a fire. The manual replied on the guidance of the NFCC.
3. A schedule showing monthly tests of the escape lights.
4. An extract from the landlord’s fire safety manager’s report on emergency lighting showing photographs “clearly shows light above door is on, the other light is also on due to route of stairs (and) the third picture below shows the third light that is on is the lower of the two lights one above is off reason due to change in height of below stair level however the one actually on stairs is not needed to be permanently on.”
5. Its external surveyor condition report dated 29 March 2022 of the fire escape. The reported stated that it considered the structure was in good condition. It noted that the staircase was lit.
6. A fire risk assessment (FRA) dated 15 April 2022. Under the question Is a reasonable standard of emergency escape lighting provided, it was ticked yes. There was regular testing of the lighting.
The resident had provided the landlord with some guidance from a website about external (not escape) lighting which cited a British standard (BS) building regulation requiring that LED lighting be used and it not be left on permanently.

Chronology

According to an internal email of the landlord of 17 March 2022, the resident reported his concerns about a neighbour being at risk. He reported that due to his high functioning autism, the landlord ought to be doing more to ensure he could live peacefully and without worry. According to the landlord’s report the following day, his complaint related to a specific member of staff, (“S”).
The landlord contacted the resident on 21 March 2022 to discuss his complaint. Over the course of two conversations with different members of staff, the resident expressed concerns about his neighbour and her use of the stairlift in the building. He was concerned that it was his responsibility to ensure that this neighbour escaped in the event of a fire taking hold. He referred to the landlord’s “Environmental Sustainability” policy, presumably in relation to the emergency light being left on. He stated that staff had confirmed that he would be supported when first moving in after revealing his condition (presumably his diagnosis of autism) to them. The landlord asked him what could be done to resolve this. In reply, he stated that there is nothing it could do to resolve it. He said the home was “like a prison”.
On the same day, the landlord wrote to the resident with its complaints procedure setting out next steps. It also sought legal advice. It was discussed that the resident was self-diagnosed as autistic and had refused any third–party support such as a social/support worker, to assist him. It was suggested that, as a reasonable adjustment, the resident had a “liaison officer” or single point of contact to help alleviate any stress arising from the complaint, provide him with a clear means of airing his concerns and who would escalate issues as appropriate. It would be an “evolving process”.
On 31 March 2022, the landlord made enquiries with its specialist contractor regarding the lighting. The advice was that the outside light at the external fire escape should be on 24 hours a day and was subject to regulation BS5266.
On 1 April 2022, the landlord wrote with its Stage 1 response to the resident’s complaint as follows:
1. It noted that the resident wanted the stairlift to remain out of action and not be used by any resident. It had understood his concern in respect of the stairlift being used inappropriately, and it had added additional instructions to the stair lift to demonstrate how to use it properly and safely, including folding back the foot plate after use. It had a duty of care to ensure that residents with mobility problems could access upstairs rooms.
2. He wanted that the fire escape lighting would not be on continuously “24/7”. Its electrical contractor had confirmed that the outside emergency light at the external fire escape should be on 24 hours a day and was subject to regulation BS5266. It respected his concerns from an environmental perspective having the lights on continuously, but in the event of a fire, smoke could make visibility difficult, which was why escape routes needed to remain constantly lit. Previous surveys carried out on the fire escape had not raised any health and safety risk, however, it had instructed its maintenance operative to highlight the edge of the step in yellow to identify it as a potential safety risk when in use. This work would be carried out by the end of the following week.
3. He had enquired as to when a fire officer would next be on site at the house, and the reason for the visit. A visit was planned for the following week. He was “very welcome” to raise any questions with the fire officer. The reason for the visit was that, as a registered social landlord, it had certain regulatory duties to ensure the safety of its houses, which included annual fire risk assessment surveys, carried out on all its properties.
4. It had not identified any conduct by a staff member that had been discriminatory. It was keen to make his time as “enjoyable and homely” as possible. It had put in additional measures and adjustments to its complaint process to try and to support him and had changed the investigatory officer from the staff member he had complained about so that he would receive the same consistent support and understanding. This staff member could also support him with any matters in relation to company policies and procedures, operational processes, and any additional matters, such as current availability of alternative accommodation and opportunities to access external assessments and appropriate support.
On 2 April 2022, the resident wrote that “the wordings of the letter” were “not in the context” as (he) had made out to (her). He felt “totally insulted” that it had “casually taken (the) manager’s word against (him) on the issue of autism discrimination and did not “seem to see the reality of the issues in question”. He was unable to “see (the landlord) personally being able to take this matter … any further”, given that she had not been able to understand autistic people. She had taken the manager’s word “rather than leaving the matter in question open for the appropriate legal investigation”.
On 7 April 2022, the landlord escalated the complaint to Stage 2 and stated it would reply within 10 days.
The landlord wrote on 28 April 2022 with its Stage 2 response as follows:
1. It carried out practice fire drills to ensure that all residents were able to evacuate the building within a certain timeframe and any concerns in this respect were escalated to the Regional Operations Manager. The resident in question had since moved to a downstairs room.
2. Its specialist contractor had visited the house on 2 March 2022 to carry out an emergency light check. All emergency lights were checked and found to be working satisfactorily. The fire and rescue service attended the property on 14 April 2022 to carry out their fire inspection, which included an inspection of the fire escape, and did not raise any concerns. A fire risk assessment was carried out on 15 April 2022 by an impartial and accredited contractor, following which no concerns were expressed regarding the lighting.
3. The resident had discussed his concerns with the fire risk assessor. The assessor explained that some of the lights on the fire escape remained on all the time and the rest came on when the fire alarm was activated. It was a legal requirement for the fire escape to be adequately lit at all times. While it appreciated his concerns about increasing energy consumption, in the event of a fire, smoke would reduce visibility at any time of day, therefore it was necessary to have constant light to aid visibility and therefore the ability to evacuate safely and quickly. Following a further check of external lighting, it had ordered a new lighting unit for the external wall opposite the fire escape. It said that it took resident safety very seriously.
4. The landlord took claims of discrimination against staff or residents also very seriously. It cited its ‘Equality, Diversity and Inclusion’ policy. It aimed “to promote a highly positive environment for all of its workers and residents. It would conduct itself in such a way as to eliminate unlawful discrimination.
5. It had investigated the issue that he had reported in respect of another resident being given priority to another room. Its records showed that he had not formally expressed an interest in this room and so the room had been prioritised to another resident who had been displaced from another service. The decision was carried out due to the current circumstances at that time. As such, it was satisfied that disability was not a factor in the decision-making process, and therefore there had been no discrimination. All staff members were aware that any form of discrimination was not acceptable and disciplinary action would be taken if this is found to be the case. It believed that the staff member had been supportive and had fully investigated any concerns he had raised and taken appropriate action when necessary, as she would have if raised by another resident.
6. It had offered an alternative point of contact for any future concerns in the hope that it could easily resolve any issues and cause him less distress.
The resident wrote on 30 April 2022 that he had arranged for a professional electrician to carry out an inspection of the premises but the landlord had refused permission. The resident was concerned that the landlord had refused the inspection. The resident asked whether the inspection could go ahead. The electrician had agreed with the resident that it did not need outside lights on all day and there was a light sensor to turn lights during the day. He had asked the landlord’s contractor to discuss to send their “legal” evidence to show why lights had to be left on outside in daylight. He would also contact the local authority’s housing standards department.
A draft letter by the fire manager stated that:
1. The engineer had to allow for all types of weather situations. He had concluded that the risk of low light was high hence two lights should be on for that purpose. The third light was specifically to allow for the slight change in levels before the actual stairs.
2. It had to consider all eventualities, including people who were not familiar with the building.
3. Mobile sensors as suggested by the residents would not save money and would be costly to install.
4. Lights going on and off (as opposed to being off) could give rise to complaints.
According to an internal email of 17 May 2022, as a result of the resident’s contact with the Fire and Rescue Service, an officer of the fire service contacted the landlord to check there was no new issue it was not aware of regarding the lighting. The landlord referred to the inspections and confirmed that the lights remained as they were when he saw them. The fire officer contacted the resident and explained that the practice the landlord had employed was necessary to be compliant and put in place as an extra safety precaution and all paperwork and checks were in place.
The landlord wrote on 17 May 2022 with an additional to the Stage 2 response as follows:
1. The landlord had correctly informed him that an inspection by his electrician was not possible. Matters of fire safety and associated regulatory compliance were the responsibility of the landlord and not individual residents, and therefore residents were not permitted to instruct or bring in any contractor or person in relation to these matters.
2. It was unable to pass on any details of its contractors to residents due to contractual obligations.
3. It understood that the Fire and Rescue Service had confirmed to him that the configuration of the lighting was compliant and all documentation and checks were in place.
4. A fire risk assessment and subsequent fire inspection by a fire risk assessor and the inspection Fire and Rescue Service in April, as well as a further inspection by its Fire Risk Manager, had confirmed that they remained satisfied with the emergency lighting configuration and that it was complying to all regulatory standards and guidance.
5. The landlord “insisted” that all of its contractors were members of the Safe Contractor accreditation and that they were members or affiliated with specific organisations such as the Fire Industry Association (FIA) to confirm that the landlord was fully compliant. By strictly adhering to this guidance, it was ensuring the safety of both residents and others at their houses at all times.
On 16 November 2023, the landlord informed this Service as follows:
1. The landlord considered that the allegation of discrimination related to the resident’s move to another flat (“Flat A”) and repairs to that flat before the resident moved into 2021.
2. The resident had moved into another property (“Flat B”) on 8 April 2019. Flat A became vacant on 13 April 2019 and was available for a 5-month let. The landlord offered Flat B to another tenant who moved in on 29 January 2020. The landlord had not received an application from the resident for a transfer at that time. He informed the landlord in February 2021 that he wanted to move out of the flat he was then occupying.
3. The landlord provided emails as follows:
  1. An email dated 9 February 2021 asked the resident to complete a form to apply for a move and provided guidance to assist with its completion.
  2. An email 18 March 2021 offered the resident a viewing of Flat B.
  3. An email dated 12 April 2021 from the resident to the landlord stating that the move was urgent, given his autism. He queried whether he had been discriminated against in relation to a delay in the move-in date and enquired whether the landlord had had autism training.
  4. An email 13 April 2021 from the landlord stated that he had been offered Flat A but was undertaking repairs that he had requested before he could move in. The landlord agreed to replace the fire alarm sirens with beacons to reduce the noise for the resident. This had meant a wait as it had prioritised emergency works. The landlord assured the resident that Flat A was “his”.
4. A member of staff (the Ombudsman understood to be S) had completed Autism Awareness training with the local council on 15 July 2020, in order to “best” enable her to better support the resident.
5. Following completion of the repairs and other minor works, the resident moved into Flat A on 19 May 2021.

Assessment and findings

The landlord’s response to the resident’s concerns about the use of a stairlift in the property.

The landlord was solely responsible for the safety of the residents in the building. Its explanation that it should provide accessibility to the upper floors was reasonable. It also reasonably took note of the resident’s concerns and added instructions to the use of the stairlift. It had undertaken a number of assessments about fire safety. One of the duties was to assess an occupier’s ability to escape from fire. In the particular case of the specific neighbour, it had moved that neighbour to another room. It was reasonable for the landlord to make clear however that if a new occupier moved into the room, the stairlift would be reinstated. The Ombudsman considers that those particular concerns were addressed to a satisfactory level. It was reasonable that he landlord considered the resident’s concerns and addressed them. The landlord was responsible for the safety of its residents and was entitled to be the final decision maker on the issue. In the circumstances, the Ombudsman did not find service failure in the landlord’s response.

The landlord’s response to the resident’s concerns about emergency fire escape lighting being left on permanently.

The landlord’s response to the resident’s request not to have the emergency light on 24 hours a day was reasonable. A number of bodies, including a fire safety assessor, the fire services, and its own fire manager had assessed the situation. There was a consensus that it was necessary. Even without that consensus, the landlord would be entitled to make the decision about safety as it was solely responsible, even if it were to err on the side of caution. The landlord acted reasonably in considering the resident’s concerns. It would have been risky to have made any changes after the property was assessed. The evidence showed that the fire service was concerned lest the landlord had made any changes. Most compelling was that the fire service itself states, and explained to the resident, that the lighting should remain permanently on.
There was some conflating between emergency lighting and escape lighting. The guidance and advice that the resident referred to, was about generic external lighting, not emergency lighting and the opinion of a non-specialist electrician. In any event, the landlord also demonstrated that the proposed alternatives would not save costs. The resident was seeking a definite authority that escape lighting need not be on all the time. The evidence showed that the decision would depend on the layout and circumstances of the building, which was had what determined the landlord’s decision.
Fire safety is of paramount importance in managing a building. It is reasonable that fire safety would take priority over costs, energy saving and light pollution. The landlord in any event was entitled to rely on its experts. Given the onerous responsibility for fire safety, it was entitled to make its decisions. The landlord was entitled not to agree to an inspection by the resident’s chosen electrician. The landlord acted reasonably in addressing the resident’s concerns providing detailed explanations of its reasoning and demonstrated that it exercised its decision making reasonably.

The landlord’s response to the resident’s reports that a member of staff had behaved in a discriminatory way.

While the Ombudsman does not make absolute findings as to whether discrimination occurred, which is a question of law and fact, he does consider whether a landlord had considered these issues fairly. The evidence showed that the landlord had considered the resident’s vulnerability. Disability in law is a legal concept, however the landlord reasonably considered how to assist the resident on the basis he had a disability.
The evidence showed that, in 2021, the landlord offered a property to the resident when it became available, it considered the resident’s autism, how to assist him by arranging for staff to engage in specialist training and carrying out repair works and changing its alarm system. Its explanation for the delay to the move in 2021 was reasonable.
It allocated the resident a single point of contact in order to minimise the resident’s anxiety, or “worry”, and to ensure consistency in its approach. This showed that it considered the impact of its complaints procedure on the resident. Even if the complaints procedure and communication did not disadvantage a non-disabled person, it considered how to adapt it so that he was not disadvantaged because of his autism. While there was no evidence that the landlord did so, the landlord should take care not to substitute its formal complaint handling with an informal approach and the Ombudsman will make a recommendation in that regard.
The evidence also showed that, initially, the landlord was not clear about the nature of the complaint but made reasonable enquires as a result of which it ascertained that the complaint related to its decision regarding the allocation of the room. Its explanation why it allocated the room to another person was reasonable. It investigated its records but did not identify a decision that was discriminatory.
As the landlord noted, autism is a specialised area and it reasonably sought legal advice and arranged training for its staff. While it needs to take care not to discriminate, it is recognised that the landlord is not a specialist. It could consider seeking further independent guidance and the Ombudsman will make a recommendation in that regard.

The Ombudsman has considered the landlord’s complaint handling.

It is noted that the complaint response letters did not refer the resident to this Service. The landlord’s reasoning in that regard was not clear. However, as the resident was already aware of this Service, given it had already informed the landlord of his intention to refer this complaint to this Service, the Ombudsman does not consider that there was any impact on the resident. However, the Ombudsman will make a recommendation in that regard.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s concerns about the use of a stair lift in the property.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s concerns about emergency fire escape lighting being left on permanently.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports that a member of staff had behaved in a discriminatory way.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Reasons

The landlord considered the resident’s concerns about the use of the stairlift. The landlord sought to reassure the resident that his neighbour’s safety was not his responsibility and, in any event, the neighbour had moved out of the upper floor flat.
The landlord addressed the resident’s concerns regarding the lighting. The evidence showed that the landlord had instructed a number of assessments, had made enquiries, and the fire service itself confirmed that the lighting should be on permanently. In any event, it reasonably considered that fire safety took priority over all other considerations.
The landlord considered the resident’s needs and took steps to mitigate any distress or impact on the resident.
While the landlord omitted to refer to this Service in its complaints responses, the resident as already aware of its Service so there was no impact on the resident.

Recommendations

The Ombudsman makes the following recommendations:
1. It should consider seeking independent specialist guidance about autism, consider further training and refer the resident to a service that might act as mediator for the landlord and tenant relationship.
2. It should ensure that the landlord does not substitute any informal approach with its complaint handling and provides a clear pathway to the resident.
3. It should ensure that all complaint responses refer residents to this Service.
4. The landlord should provide feedback on the above recommendations within four weeks of this report.