Royal Borough of Kensington and Chelsea (202012553)

REPORT

COMPLAINT 202012553

Royal Borough of Kensington and Chelsea

26 July 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 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 is about the landlord’s handling of the resident’s reports of concerns over the conduct of its contractors.

Background and summary of events

Policies and procedures

Section 7 of the landlord’s complaints policy confirms that it will adopt the following general principles when dealing with complaints:
1. Deal with complaints fairly and objectively at each stage of the complaint.
2. Apologise if it is at fault.
3. Offer compensation in line with its policy.
4. Learn from its mistakes and improve services as a result.
Under section 9.2 of the landlord’s compensation and redress policy, an ex-gratia payment is the most appropriate compensation where it has taken appropriate action but delayed doing so, causing inconvenience to the resident, and where there is no practical action that would provide a full and appropriate remedy.
As per appendix one of the compensation and redress policy, where the complaint has been upheld, compensation up to £100 can be awarded, where there was a medium impact on the resident.

Background

The resident is a tenant of the landlord.

Summary of events

On 2 November 2020, the resident submitted his stage one complaint to the landlord, which is summarised as follows:
1. He reported that its contractors had been aggressive and rude towards him during an incident on 28 October 2020. This included being physically confronted by one of the contractors “in a very aggressive manner”, where the resident felt that the contractor was “going to hit” him, and being told to “shut up” and to “mind [his] own business”, after asking them to move to an area out of the way of passing residents.
2. This had been witnessed by at least one other resident, who could clarify what had happened.
3. He also raised concerns that the contractors were cutting materials in the lobby, with residents walking past as they were cutting.
On 19 November 2020, the landlord provided its stage one complaint response to the resident, stating the following:
1. It had investigated his reports with the contractor, who had disputed these. Furthermore, they had made counter-allegations against the resident.
2. The contractor had confirmed that they had ensured that residents could enter and exit the building safely “at all times”, and that they were “constantly cleaning the area.”
3. It partially upheld his complaint, as it felt that it could have better communicated the work due to take place in the building to residents in advance. The landlord apologised that it had “fallen short in this respect.”
4. To improve its service to its residents, it would communicate planned work via its monthly newsletter and electronic notice board, in addition to daily work activities being posted to each resident in advance of work taking place.
On 24 November 2020, the resident requested the escalation of his complaint to the landlord, stating the following:
1. He felt that the contractor had “lie[d]” about the sequence of events leading up to the above altercation. The resident therefore asked the landlord to review its CCTV from the lobby area where this had occurred to confirm what had happened.
2. In respect to the cutting of materials in the lobby, he felt that the contractors should have been doing so in “an area safely away from passing residents”.
3. He questioned why a contractor was not wearing identification and refused to identify themselves to the resident when asked.
4. He also offered to prepare a statement from the other resident who had witnessed the incident.
On 8 December 2020, the landlord’s records confirmed that it had spoken with the resident on that date in respect to his complaint, and it clarified that his desired outcomes to the complaint were as follows:
1. A personal hand-written apology from the contractor who had confronted the resident.
2. An acknowledgement from the contractor that it was not appropriate to make counter-allegations against the resident without providing the landlord with evidence to support their claims.
3. An explanation as to why the contractor did not wear identification or identify themselves when asked to do so.
4. Financial compensation for distress, inconvenience, time and trouble caused to him as a result of the incident.
On 18 December 2020, the landlord issued its stage two complaint response to the resident, which is summarised below:
1. It recognised that it should have reviewed the CCTV footage of the incident during its stage one complaint investigation, as its failure to do so had meant that this had been routinely deleted three days after receiving his stage two complaint, so that it could no longer view this and agreed that this was an easily avoidable service failure that it had raised with its staff.
2. It therefore apologised to him for this and provided a detailed explanation to him on its actions in not initially reviewing the CCTV footage, and in deleting this after 31 days in accordance with its standard practice before it could subsequently review the footage. The landlord also confirmed that it was reviewing its policies and practices in relation to how long it stored CCTV footage and used the to resolve complaints because of the resident’s complaint.
3. As the contractor’s version of events continued to differ from that of the resident, it was limited as to the above outcomes that it could offer him, as it was unable to independently verify his reports. In respect to compensation, however, the landlord offered the resident £100, this being the “full amount” it would normally offer for an isolated incident, such as his interaction with the contractor.
4. In conclusion, it upheld his complaint and apologised “unreservedly” for the distress caused by the original incident, and for its handling of the subsequent complaint investigation.
On 22 December 2020, the resident requested the escalation of his complaint to the final stage of the landlord’s complaints procedure, stating the following:
1. As it had failed to act quickly enough in reviewing the CCTV, he had been deprived of the material required to support his version of the incident. This included the evidence to support the resident’s claim that the contractors were “contravening health and safety procedures” by working “in a dangerous way” in the lobby.
2. He re-raised the concern that the contractor had refused to identify themselves, as they may have had “something to hide.”
3. He did not feel that it had offered an appropriate level of compensation, considering the “verbal abuse” and “aggressive, threatening behaviour” that he had received from the contractor.
On 20 January 2021, the landlord provided its final stage complaint response to the resident, which is summarised as follows:
1. In response to its failure to request the CCTV footage of the incident, it was satisfied that it had thoroughly investigated this, and had provided a reasonable explanation for this in its above stage two complaint response. Therefore, the landlord had nothing further to add to this aspect of the complaint.
2. It had seen nothing to suggest that the safety precautions implemented by its contractors were inadequate; “therefore, [it did] not comment further on this point.”
3. It did not have any evidence to confirm “exactly what took place at the time”, in respect to his report that the contractor had declined to identify themselves to the resident. Therefore, the landlord did not think it appropriate for it to comment on this.
4. In the absence of evidence to reach a conclusion on what had actually happened, and in light of the conflicting accounts from him and the contractor, it did not feel that it was appropriate for it to have offered the resident compensation for the distress caused by the incident. However, the landlord did think that it should have offered him compensation for the quality of its investigation, and so it recommended a compensation offer to him of £100, as appropriate for its error in deleting the CCTV footage of this before a full investigation could take place, and not the £500 that he had subsequently requested from it.
The resident went on to complain to this Service that he had been caused stress, anxiety and that his mental health had been affected by his discomfort in his own home from being “threatened, intimidated” and thinking that he “was going to be attacked by this contractor.” He therefore sought further explanations from the landlord as to the contractor’s lack of identification and unwillingness to identify themselves, an apology from the contractor for their behaviour, and an explanation as to why contractors were “cutting materials in [a] hazardous manner, endangering residents as they passed.” The resident also requested £500 compensation from the landlord for this.

Assessment and findings

Although the resident has reported experiencing stress, anxiety and his mental health being affected by the conduct of the landlord’s contractors, it is not within the authority or expertise of this Service to determine whether it was liable or to award damages for this in the way that a court or insurer might. Therefore, this aspect of his complaint is outside of the scope of this investigation. Moreover, while the resident has requested an apology from the contractor for their behaviour, we only have jurisdiction over landlords that are members of the Housing Ombudsman Scheme, and not over individuals, so an apology from an individual contractor is an outcome that is not within our authority to provide.
Following the resident’s reported concerns over the conduct of the contractor, the landlord was obliged to carry out an investigation into this and to respond to the resident accordingly. It initially took some reasonable steps to investigate and to try and resolve this. In the landlord’s stage one complaint response of 19 November 2020, it confirmed that it had investigated the resident’s reports with its contractor, and it also highlighted the actions that it had taken to look to address his concerns.
For example, the landlord agreed that, in the future, it would communicate the planned work that was due to take place in advance to all of its residents both daily and monthly in different formats, to aim to improve its service to them. This was fair of it, and in line with its complaints policy’s requirement for it to learn from its mistakes and improve services as a result, as detailed above in paragraph 2.
The resident nevertheless disputed the contractor’s counter-allegations about him that were also mentioned in the stage one complaint response, and asked the landlord to review its CCTV footage of the incident with them in his stage two complaint to it of 24 November 2020. It was reasonable for the resident to ask it to do so, as this may have assisted in establishing what had happened during the incident, and it would have been preferable for it to have to sought to review the footage without him having had to request this, as part of a fuller investigation into his stage one complaint.
However, the landlord was subsequently unable to do this, as it had such a limited time from the resident’s above stage two complaint to obtain the footage before the recording was deleted after 31 days of the incident that occurred on 28 October 2020, in line with its record retention policy. It therefore fully explained this to him in its stage two complaint response of 18 December 2020. The landlord also outlined that it was reviewing its policies and practices in relation to how long it stored CCTV footage and used the footage to resolve complaints because of this.
Moreover, the landlord’s stage two complaint response accepted its failure in this regard, apologised to the resident for this, agreed to raise this with its staff, and offered him £100 compensation. As there was now no practical action that would provide a full and appropriate remedy to the complaint in the absence of CCTV footage of the incident, and in line with its compensation and redress policy as above detailed in paragraphs 3 and 4, this compensation offer was fair, and was consistent with this Service’s remedies guidance.
This is because, although the resident had requested £500 compensation because of his complaint, the compensation and redress policy permitted up to £100 to be awarded to him by the landlord for a medium impact upon him from this isolated incident, and the remedies guidance recommended that it offer him compensation from £50 for a short duration. In the absence of independent evidence to support his version of events and to demonstrate a higher impact and longer duration, a compensation award by it to him of £100 therefore accorded with both the policy and the guidance.
Both the resident and the contractor stated that there were witnesses in support of their respective version of events. While it may have been helpful for the landlord to have spoken to such witnesses as part of its investigation into the incident in the absence of the CCTV footage of this, it is acknowledged that no further details of these witnesses were provided to it during the complaint investigation. Therefore, it was reasonable that the landlord did not pursue this line of inquiry after investigating the incident with the resident and the contractor, as it would have been an unreasonable level of action for it to take to have made more forensic inquiries into this in the way that a court might.
The landlord therefore acted fairly in responding to the resident’s concerns, after it initially failed to do so by not reviewing the CCTV footage of the incident, and it subsequently acted to attempt to address these. It did so by reviewing the subsequently available remaining evidence, and it provided him with an explanation when it determined that no further action could be taken by it. The landlord also offered the resident compensation that was in line with its compensation and redress policy and this Service’s remedies guidance.
While the resident also requested further explanations from the landlord as to the contractor’s lack of identification and unwillingness to identify themselves and why they were reportedly cutting materials in a way that was dangerous to passing residents, its final stage complaint response of 20 January 2021 confirmed that it had investigated this with the contractor. As this explained that it had found no evidence to suggest that the safety precautions implemented by its contractors were inadequate or exactly what had occurred in relation to their identification, and in the absence of any such evidence being provided by the resident or any third parties, it was reasonable that it took no further action in respect of these matters.
Therefore, although the landlord could have done more to investigate the resident’s reports initially such as by requesting the CCTV footage sooner, it subsequently took reasonable steps to address his concerns during the complaint investigation process.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint concerning its handling of his reports of concerns over the conduct of its contractors satisfactorily.
This decision is dependent on the below recommendation being followed by the landlord.

Reasons

The landlord had no independent evidence to determine what happened during the incident between the resident and the contractor, with both the resident and the contractor giving differing accounts of the events. This was largely due to it not reviewing the CCTV before this was automatically deleted. The landlord sought to learn from this, and to review its practices in record retention and how it could use CCTV to resolve complaints in future.
The landlord evidenced a thorough review following the resident’s complaint, and the explanations provided to him in its complaint responses were fair and reasonable.
The landlord was unable to offer the compensation requested by the resident due to a lack of evidence to support his reports. However, it did offer him compensation in line with its compensation and redress policy and this Service’s remedies guidance.

Recommendation

It is recommended that the landlord re-offer the resident the £100 compensation that it previously awarded him, if he has not received this already.
The landlord should contact this Service within four weeks to confirm whether it will follow the above recommendation.
The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.