The Extracare Charitable Trust (202205621)

REPORT

COMPLAINT 202205621

The Extracare Charitable Trust

8 December 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 the landlord’s:
   1. Response to the resident’s concerns about the emergency lighting in her property.
   2. Response to the resident’s request for compensation.

Background

2. The resident is a leaseholder, residing in a one-bedroom flat in a building owned by the landlord. The landlord has advised the resident has not registered any vulnerabilities, however, its has provided its wellbeing assessment forms to this Service, which indicate the resident may have limited vision and mobility.
3. On 22 January 2022, the landlord responded to an emergency alarm triggered by the resident, who had tripped over a table leg during a local area power outage. While she reported she had effectively been left in complete darkness, landlord records indicate it believed the emergency lighting would have turned on. When the landlord attended, it called paramedics who ultimately arrived within 30 minutes of the alarm being triggered. An incident form was completed by the landlord, and it performed follow up checks on the resident 12, 24 and 36 hours after the incident.
4. The landlord subsequently carried out a three-hour test of the emergency lighting in her property. When the kitchen and hallway emergency lighting was tested, solely on backup batteries, the batteries lasted 90 minutes. The backup batteries in the bathroom’s emergency lighting lasted the full three hours of the test. Following the test, all the backup batteries were replaced, and the emergency lights were tested to make sure they were working.
5. The resident then made a formal complaint to the landlord, on the basis that she believed the emergency lighting in her property had not come on during the power outage, and that had caused her to fall. She also wanted compensation to cover her son’s costs, as he was temporarily staying in a hotel nearby in case, she required his assistance. In response, the landlord advised it had tested the emergency lighting in the resident’s property in December 2021, and the emergency lighting had passed the necessary test. The next quarterly test was not due until March 2022, but the landlord advised it had still carried out a further test of the emergency lighting after the resident’s accident. It had found that the emergency lighting had turned on and had stayed on for at least 90 minutes.
6. The landlord therefore concluded it was reasonable to believe the emergency lighting in the resident’s property would have come on, and stayed on, during the power outage. It also held that since it had not been responsible for the outage, it did not have any liability towards the resident and therefore it would not award the resident any compensation. It did however provide the resident with an emergency pendant and a plug-in light for her lounge, both free of charge, and advised her to purchase a torch.
7. The resident subsequently contacted this Service, as she was not happy with the landlord’s response. She advised she wanted £100 compensation to cover her son’s costs, and for the landlord to test the emergency lighting every month.

Assessment and findings

Scope of investigation

8. Although the resident believes that the landlord was responsible for her fall because she believes that the emergency lighting in her property failed to turn on during the power outage, this is a liability issue and therefore out of the scope of this investigation. Paragraph 42 (g) of the Housing Ombudsman Scheme states that the Ombudsman will not consider issues where it “considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”. The resident may wish to seek independent advice if she wishes to pursue this element of her complaint, while this investigation will focus on whether the landlord’s response to the concerns she raised was reasonable.

The landlord’s response to the resident’s concerns about the emergency lighting in her property

9. The landlord’s responsive repairs policy states under appendix 1(b) that maintenance of emergency lighting, in the resident’s property, is the landlord’s responsibility, and there is no evidence it has disputed this. Its policy also states it will aim to respond within 4 hours were there is a power loss to more than one apartment. While the power failure was caused by circumstances beyond its control, and which the landlord would have been unable to resolve itself, records show it attended the resident’s property almost immediately once the emergency alarm had been triggered. There is no evidence the landlord delayed in responding to the emergency alarm, or in responding to the power outage, although its control over that was limited.
10. Prior to the power outage, records show the landlord acted In line with its annual statutory obligation, carrying out a three-hour compliance drop test on the emergency lighting in the resident’s property in December 2021, where it found no problems at that time. Evidence shows the landlord acted in accordance with its responsibilities and at this point, the landlord was not obligated to carry out another test of the emergency lighting until March 2022.
11. However, although the landlord was only obligated to test the emergency lighting in the resident’s annually, it used its discretion to go beyond its obligations by testing emergency lighting quarterly, under its own quarterly conditions check policy (“MOT”). Following the resident’s accident in January 2022, the landlord then carried out a test of the emergency lighting in the resident’s property in January 2022, even though it was under no obligation to do so. This was a positive step for the landlord to take and show it sought to dispel any concerns that the resident had about whether the emergency lighting in her property was working or not, and that it took her concerns seriously.
12. The landlord’s test of the emergency lighting in the resident’s property found that the emergency lighting in her kitchen and hallway lasted for 90 minutes before failing, while the lighting in the bathroom lasted for the full duration of the three-hour test. It therefore determined that “on the balance of probability”, the emergency lighting would have come on during the power outage that affected the resident’s property and would have stayed on for at least 90 minutes. Having completed its own investigations, this was a reasonable position for the landlord to take, as it had carried out appropriate enquires and tested the back-up batteries of the resident’s emergency lighting against the threshold of the statutory timescale of three hours. By making sure that the resident’s emergency lighting was still functioning properly, the landlord acted in accordance with its responsive repairs policy even though it had just carried out its quarterly conditions check the previous month. Its staff also made contact with the resident in the days following the incident to check on her welfare.
13. Additionally, the landlord advised the purpose of the emergency lighting was to provide low-level lighting in the resident’s property, and that it covered a minimal area, namely the resident’s kitchen, hallway and bathroom. The purpose of the emergency lighting was to illuminate a path for escape if the need arose. There was no emergency lighting in the resident’s lounge, where she had fallen. Accordingly, it noted that even if there had been a failure of the emergency lighting, it would not have made a material difference in this case.
14. From the information available, there is no evidence of service failure by the landlord given it was not responsible for the local power outage. It also took appropriate measures to test the emergency lighting in the property after receiving the resident’s report, and the area in which the resident fell was unfortunately not covered by emergency lighting in any case. The landlord also acted appropriately by identifying it could have better identified potential risk to the resident should there be a further power outage in her property in the future. It provided her with a plug-in light for the lounge, where she had experienced her fall, and a pendant alarm. It also recommended the resident keep a torch in the lounge. These were reasonable steps for the landlord to take and showed it had learned from the experience, considered how the incident had affected the resident and whether it could have done anything differently.  

The landlord’s response to the resident’s request for compensation

15. The landlord’s responsive repairs policy, under “compensation”, states it will only pay compensation where there had been a “service failure” by it or by one of its contractors. Since there was no identified failing in this case, and the landlord took reasonable steps after the incident to test the lighting and check on the resident’s welfare, while it is understood that her son would be concerned and wanted to be close by, the landlord was entitled to decline the resident’s request to cover the cost of his hotel accommodation and travel costs.
16. Additionally, providing the resident with a plug-in light and an emergency alarm pendant, at no cost to her, was done to reassure the resident, and an effort by the landlord to take whatever steps that it could, to minimise the risk of another accident befalling resident as a result of a power outage. This was appropriate by the landlord, and also beyond its obligations, as it sought to reassure the resident that it honoured the duty of care that it had towards her and took it seriously. Therefore, there was no maladministration by the landlord.
17. From the information seen by this Service, it is also noted that the landlord provides a care service. However, the resident is not currently in receipt of this. A recommendation has therefore been made for the landlord to contact the resident and re-offer this service to her in case she wishes to join.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding:
    1. Its response to the resident’s concerns about the emergency lighting in her property
    2. Its response to her request for compensation.

Recommendation

19. It is recommended that the landlord contact the resident to discuss its care service with her in case she wishes to join.