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Wandle Housing Association Limited (201909394)

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REPORT

COMPLAINT 201909394

Wandle Housing Association Limited

26 February 2021


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 reports of a petrol generator being used in the communal areas.
    2. The handling of the resident’s complaint.

Background and summary of events

  1. The resident’s property is a first floor flat. It is understood that the landlord’s contractor attended the building to complete decorative works in communal areas in July 2018.  The resident in her chronology of events has stated that she advised the landlord that the contractor’s petrol generator and equipment was stored in the communal hallway on 23 and 24 July 2018.  The resident further states that she phoned the landlord several times and emailed it on 25 July 2018 to report that petrol fumes were seeping into her property, and was advised her email would be dealt with by the Asset Management Team.
  2. There is no evidence that the landlord contacted the resident about the issues she had raised until 9 September 2018 when a surveyor asked to discuss the petrol generator. In an exchange of correspondence that month the landlord stated that it had spoken to all parties and found that the contracting decorators had used the equipment in the correct manner. The landlord advised that the generator should have been 33ft away from open doors and windows, and that there was no danger of ill health. The resident advised that the generator was placed just outside the front door of the property, not in the garden and in response to a request for supporting information, on 25 September 2018 she provided a photo of the generator just outside the doorway to the building.
  3. On 5 and 12 October 2018, the resident wrote to the landlord chasing up a response to her email of 25 September 2018 and asked to escalate the complaint. The landlord logged a formal complaint on receipt of the email of 5 October 2018. The landlord’s internal correspondence shows that it discussed the case further with the contractor which maintained its version of events, as previously relayed to the resident.  It was noted that no fumes emanating from the generator was apparent in the photograph provided by the resident.  The landlord asked the contractor to visit the resident, but she requested a written response.
  4. On 5 November 2018, the landlord sent its complaint response to the resident. It advised that having considered the photo of the generator provided, it did not appear to be in use as there were tools and a backpack nearby. It advised the contractor had confirmed that when it was in use, it was located further down the garden path, and would only have been in the location in the photograph either at the start of the work when setting up, or at the end when moving it away from the pathway to minimise obstructions.  The landlord also advised that the resident could make a personal injury claim to its insurance department.  On 7 November 2018 the resident responded querying the landlord’s explanation for the positioning of the generator and asking why the landlord had not responded to her initial calls and email of 25 July 2018.
  5. The resident chased up a response on 19 December 2018 and on 31 December 2018 the landlord responded, clarifying that the generator had been moved from the pathway to the entrance steps to remove an obstruction from the pathway and to reduce the likelihood of the generator being stolen. It suggested the resident could make a personal injury claim if she suffered ill-health.
  6. The resident escalated her complaint contending that the contractor had breached health and safety, and her reports had been ignored.  On 15 January 2019 the landlord responded at the Management Review stage of its complaints procedure at the time, confirming that it had interviewed the contractor before previously responding. It advised that the contractor had confirmed that the generator was at the back of the garden when in use, and not in use at the time the photograph was taken, which was inconclusive. With regards to the generator blocking the hallway the landlord relayed that the contractor had stated that it was packing up for the day, and the generator was not left unmanned for a significant period.
  7. With regards to the resident’s concerns that her reports had been ignored, the landlord advised that it had not been provided with or located emails sent in July 2018. It noted that the surveyor had asked for further information as he was raising the complaint with the contractor at the time.  The landlord apologised for the delay in the response of 5 November 2018 but stated that it understood there was dialogue between the parties prior to the response.
  8. On 16 January 2019 the resident provided her chronology of events and further photographs, including evidence of the communal area being used to store other items by the contractor. The landlord in response on 24 January 2019 offered the resident compensation of £50, comprising £25 in recognition of the inconvenience caused and an additional £25 for the delay in investigating the matter thoroughly. 
  9. The resident responded on 24 January 2019 stating that she remained dissatisfied as she did not consider that the landlord had satisfactorily addressed her concerns about the placement of the generator when in use and the storage of equipment in the hallway. The landlord spoke to the resident to confirm the details of her complaint and on 28 February 2019 it sent a follow-on Management Review response.  It advised that it believed it had addressed the health and safety issue in the original response, when it explained that the time lapse made it difficult to investigate further.  It reiterated that the contractor and the resident disagreed on whether the generator was used in a communal area and it could not conclude one way or the other whether the generator was used in the communal area. However, it would now be vigilant on the use of generators and would include it on routine inspections. The landlord advised the resident again to submit an insurance claim if the incident caused her any health issues.
  10. The landlord accepted that the contractor should not have used the communal area to store materials and confirmed that it raised the issue of the generator with the contractor at the time, which denied that it was in use.
  11. The landlord noted that the resident raised the issue first in July 2018 and that several emails and phone calls took place before the matter was investigated. It accepted that the time between the matter being raised and the investigation and response by the surveyor should have been better managed.   The landlord noted that it had previously offered £50 on 24 January 2019. However, the resident had since provided evidence showing the contractor storing items in the communal areas which was not considered within the compensation offer.  Consequently, if offered an additional £10, bringing the compensation award to £60.

Assessment and findings

Response to the resident’s reports of a petrol generator being used in the communal areas

  1. In investigating this complaint, it is not the role of the Ombudsman to seek to conclusively determine what happened when the contractor carried out works at the resident’s property; the role of the Ombudsman is to consider the appropriateness and reasonableness of the landlord’s actions in response to the matters raised by the resident and her formal complaint.
  2. The Ombudsman has not been provided with evidence of the resident’s phone calls and emails of July 2018, and it is not evident that the resident sent copies of her emails to the landlord when making her complaint. However, the resident’s chronology was specific and the landlord in the second Management Review response accepted the reports were made.  The landlord has approved contractors to carry out its repair and maintenance function and was entitled to rely on the risk assessment and professional judgement of its contractor; it was not necessarily obliged to intervene in the operations of the contractor on an emergency basis in response to the reports.  There is also a reasonable expectation that residents approach a contractor on site if there are concerns about how it is operating on site. However, having been made aware of the resident’s concern about the generator, it was appropriate that the landlord investigate as it monitors the performance of its contractors.
  3. In this case, the landlord did not commence the investigation until several weeks after, in September 2018, which was an unreasonable delay, with no good reason provided.  In cases, where operatives need to recount actions they have previously taken so that a landlord can reach an informed conclusion on the events which occurred, a prompt investigation is preferable.
  4. Having been asked for supporting information and providing a photograph on 25 September 2018, the resident had a reasonable expectation that the landlord would respond.   Whilst the landlord may have needed time to reply given that it was liaising with a third party, its contractor, its lack of a holding response or other update exacerbated the resident’s perception it was not giving due attention to the concerns she had raised. Her efforts to chase up the matter led to the landlord registering a formal complaint.
  5. Therefore, there were delays by the landlord in responding to the resident’s reports of the use of the petrol generator. However, it ultimately made appropriate investigations insofar as it asked the contractor to provide its version of events and showed it the supporting evidence provided by the resident.  It was reasonable that the landlord concluded that it could not determine whether the generator was used in a communal area, or otherwise too close to the building given the differing version of events and the lack of conclusive evidence as to how the contractor carried out the works.  For the landlord to have reasonably concluded that the generator was used in a communal area or too close to the building, and therefore to conclude there were health and safety and possibly contractual breaches with the implications that entailed, it required sufficiently strong evidence that this was the case.  The contractor explained that the generator when photographed was not in use and was only in place on a temporary and transitionary basis.  In the absence of further evidence presented to the landlord, such as video footage showing the use of a generator over a period of time and/or independent witness statements, it was reasonable that the landlord concluded that it could not determine whether the generator was used in a communal area.
  6. The landlord in responding to the complaint advised of the outcome of its investigations, in particular, the contractor’s version of events and explanation of the photographs, including why the generator was for a period of time in the locations reported.  It noted that it was essentially a case of one person’s word against each other.  It therefore provided a reasonable explanation of why it could not uphold the resident’s complaint.
  7. Although, the resident’s substantive complaint concerned the use of the generator, she also raised concerns about the storage of items in the communal areas.  The landlord did not receive evidence confirming how long the items were in that location or to what extent the items caused an adverse effect to the resident.  Nonetheless, as contractors should not store items in communal areas, it was fair and reasonable that the landlord offered further compensation.

The handling of the resident’s complaint

  1. Following registering a formal complaint on 5 October 2018 the landlord sent its response on 5 November 2018.  The landlord’s Complaints and Compensation Policy in effect at the time did not specify a timeframe for responding but given that the landlord was in fact responding to the resident’s response of 25 September 2018, its response was not sufficiently prompt, sent nearly 6 weeks after. There was further delay by the landlord responding to the resident’s further query of 7 November 2018, the response being sent on 31 December 2018, over 7 weeks later.  Thereafter, there were no significant delays in the landlord’s responses of 15 January 2019, 24 January 2019 and 24 February 2019.  The Ombudsman’s Complaint Handling Code considers 20 working days to be a reasonable length of time to respond to second stage complaints.
  2. The Complaints and Compensation Policy stated that “Wandle may offer compensation payments to customers affected by its failure to achieve reasonable levels of service delivery. This may include: General claims for compensation in relation to formal complaints”.  The policy allows the landlord to make discretionary offers of compensation when responding to formal complaints. In this case, the landlord offered in total £35 for the inconvenience to the resident from the contractor’s actions.  This offer was reasonable and conciliatory insofar as the landlord did not determine that the generator was inappropriately used, or the extent of any adverse effect caused to the resident.
  3. The landlord offered £25 additionally for its delays in investigating the matter.  As noted above there were delays in referring the resident’s concerns to the surveyor for initial investigation, then in responding to the resident’s email of 25 September 2018 and her response of 7 November 2018.  The Ombudsman’s Remedies Guidance recommends compensation in the range of £50- £250 “for instances of service failure resulting in some impact on the complainant. We recognise that there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant.”  Given the cumulative impact of the delays, the landlord’s offer of compensation of £25 was not proportionate to the circumstances of the cases.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the landlord’s response to the resident’s reports of a petrol generator being used in the communal areas.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s handling of the resident’s complaint.

Reasons

Response to the resident’s reports of a petrol generator being used in the communal areas

  1. The landlord made appropriate investigations insofar as it asked the contractor to provide its version of events and showed it the supporting evidence provided by the resident.  It was reasonable that the landlord concluded that it could not determine whether the generator was used in a communal area, or otherwise too close to the building given the differing version of events and the lack of conclusive evidence as to how the contractor carried out the works. 
  2. The landlord in responding to the complaint advised of the outcome of its investigations, in particular, the contractor’s version of events and explanation of the photographs, including why the generator was for a period in the locations reported.  It noted that it was essentially a case of one person’s word against each other.  It therefore provided a reasonable explanation of why it could not uphold the resident’s complaint.
  3. The landlord’s offer of £35 for the inconvenience to the resident from the contractor’s actions was reasonable and conciliatory insofar as the landlord did not determine that the generator was inappropriately used, or the extent of any adverse effect caused to the resident.

The handling of the resident’s complaint

  1. Although the landlord offered £25 for the delays in its investigation of the matters raised by the resident, this was not proportionate to the circumstances of the case, given the cumulation of delays.

Orders

  1. The landlord pays the resident the £35 offered within the complaints procedure for the inconvenience caused to the resident, if it has not already done so.
  2. The landlord pays the resident a further £60 in respect of the time and trouble caused by its delays in its investigation of the matter. (If the landlord has already paid the £25 offered within the complaints procedure, it should pay an additional £35).