Solihull Metropolitan Borough Council (202010123)

REPORT

COMPLAINT 202010123

Solihull Metropolitan Borough Council

13 June 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 is about:

The landlord’s decision to replace the warm air unit (WAU) in the resident’s property;
The landlord’s handling of the installation of a new central heating system;
The landlord’s handling of asbestos found in the property;
Injury to the resident’s health caused by the installation of unsuitable radiators and the landlord’s asbestos management;
The landlord’s complaint handling.

This investigation also considers the landlord’s handling of gas safety testing in the resident’s property.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 (c) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s decision to replace the WAU in the resident’s property;
The resident is unhappy with the decision of the landlord’s contractor to condemn the old WAU following its failure of a gas safety test. The resident feels the contractor was wrong in its assertion that there was a problem with the flue. The gas safety test referred to by the resident was carried out in April 2017.

Paragraph 42 (c) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
The resident did not make a formal complaint about his dissatisfaction regarding the issue of the WAU until December 2019, more than two years after the date of the gas safety test. This issue is only referred to within the report to provide context for other events.
After carefully considering all the evidence, in accordance with paragraph 42 (g) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. Injury to the resident’s health caused by the installation of unsuitable radiators and the landlord’s asbestos management;

The resident states that he may have asbestosis because of exposure to asbestos in the property. The resident also states that he was injured when he fell and hit his head on a radiator fitted by the landlord which he states was too large for the room it was installed in.
Paragraph 42 (g) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
This Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. The investigation of personal injury or damage to health and related compensation are more appropriately addressed by way of an insurance claim or a personal injury claim through the courts. The courts can call on medical experts, cross examine the parties and make legally binding judgements, including liability. The resident should seek legal advice if he wishes to pursue a claim for personal injury.
Therefore the resident’s complaint relating to health issues allegedly caused by the landlord is outside of the jurisdiction of this Service and will not be considered in this report. Reference may be made to the resident’s mention of health issues in the report to provide context and will be taken into account when considering the resident’s circumstances.

Background and summary of events

Background

The resident is aged in his seventies and has disclosed to the landlord several vulnerabilities including physical and mental ill-health.
The resident has been a secure tenant of the landlord since 1998 and resides in a one-bedroom ground floor flat within a block of flats.

Repairs and maintenance policy

The landlord’s tenancy handbook contains the following information:
1. The landlord is responsible for the maintenance of the heating system in the property including heaters and radiators.
2. The resident is responsible for “Deliberate damage that you…have caused”.
3. “If you want to carry out any DIY work to your property that might affect materials which contain asbestos, please contact us.”

Asbestos management

Asbestos is a building material which was banned in the UK in 1999. Many buildings constructed on or before this year may contain asbestos. The Health and Safety Executive states that asbestos is not dangerous if it is in good condition, however if disturbed, fibres are released into the air and, if inhaled, this can cause serious diseases.
The landlord’s asbestos management policy from 2019 states:
1. “tenants must not make any material alterations to their homes without the express formal written permission of [the landlord]”.
2. All landlord staff and contractors must immediately report any concerns regarding asbestos directly to their line manager who will report to the asbestos management group.
3. Customers will be given a copy of the asbestos register that relates to their tenancy before the start of the tenancy agreement. Guidance notes on the typical locations and precautions must be included within the tenancy agreement when tenants initially sign for their tenancy.
The landlord advises that the requirement to provide residents with a copy of the asbestos register at the start of their tenancy was not inserted into the landlord’s asbestos policy until after the Control of Asbestos Regulations came into force in 2002.
Where any person has been placed at risk due to “unplanned” exposure to Asbestos fibres then the incident may be reportable to the Health and Safety Executive as required under Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 2013.
The emergency procedure process within the landlord’s asbestos management plan outlines the following steps that should be followed on the potential disturbance of asbestos:

remove all persons from the location
inform manager and asbestos team
complete air monitoring
complete remedial and removal works.

The landlord has provided a leaflet for residents entitled ‘asbestos in your home’ which describes the dangers of asbestos. It warns residents not to “disturb anything you think may contain asbestos” and outlines the areas in the home it is most likely to be found including pipework, gas appliances, and heaters.

Gas Safety obligations and policy

Pursuant to the Gas Safety (Installation and Use) Regulations 1998 and as set out in its gas safety policy, the landlord has an obligation to undertake annual gas safety checks.
The landlord’s gas safety policy states that, where a resident does not provide access to a property it will contact the tenant by “telephone, text messages, emails and personal visits in addition to sending and hand delivering the prescribed letters”.
The gas safety policy goes on to state that if access is not granted 21 days before the expiry of the current gas safety certificate and there has been at least two attempts to arrange an appointment, it will commence legal proceedings.
Where the resident has known vulnerabilities, the landlord will not cap off the gas supply and additional support will be provided.

Complaints policy

The landlord operates a two-stage complaints process:
1. Stage one complaints will be acknowledged within three days and responded to within ten working days.
2. Stage two complaints will be acknowledged within three days and responded to within 15 working days.
The landlord’s complaint policy states that “The 15 days for the independent investigation will commence from the day the complaint is assigned to the manager and will normally be the day the stage 2 is accepted and acknowledged”. This in practicality means that stage two complaints must be responded to within 18 working days.
Stage two complaints must be signed off by two board members before being sent.

Events prior to the complaint period

The gas safety record for the resident’s property demonstrates that the WAU failed a gas safety test on 18 April 2017 and was capped off.
Heat loss calculations carried out by the landlord in June 2017 recommended the installation of five radiators to the hall, lounge, kitchen, bathroom, and bedroom. It specified what size the radiators should be and where in each room they should be sited.
Internal landlord emails dated 8 February 2018 demonstrate that operatives had attended the resident’s property with his social worker to carry out a survey required prior to installing a new heating system. The resident did not answer the door. The email outlined that the landlord had attempted to contact the resident by telephone, letter, and visiting the property on 13 occasions between 14 June 2017 and 8 February 2018.
On 22 November 2018 an internal landlord email demonstrates that the resident had telephoned the landlord. He had stated that an asbestos report had identified areas of asbestos within the condemned WAU and requested the landlord’s assistance in removing the WAU. The resident had stated that he had received quotes of “thousands of pounds” to remove the WAU.
The landlord stated in internal emails on 8 April 2019 that the resident was adamant, following the condemning of his old WAU, that he would not have a new heating system installed. It said that the resident had initially refused to allow its contractor to complete a heating or asbestos survey, although he did allow the heating survey to be completed in June 2017 and the asbestos survey in April 2018. Arrangements were then made for the new heating system to be installed but the resident refused access for the works to be completed on three occasions between 4 May 2018 and 13 February 2019. The email stated that the status of the work was ‘closed’ and the only way to contact the resident was through his community psychiatric nurse (CPN).

Events during the complaint period

On 29 November 2019 the landlord installed a new central heating system to the property. This Service has seen gas and electrical certificates for these works.
On 9 December 2019 internal landlord emails demonstrate that, on 8 December 2019, the resident had reported a gas leak. The emails stated that the resident had removed the WAU from the property “without permission” and in doing so disturbed gas pipework and exposed asbestos cement board underneath the unit. Works orders demonstrate that asbestos was removed from the property, and an environmental clean and air testing was carried out. The accompanying works report states that “removal of all contaminated items” had been carried out, including the resident’s vacuum cleaner which he had used to try and clean the area.
Also on 9 December 2019 the resident emailed the landlord’s repair team and advised that specialists had been called out due to asbestos being discovered at his property. He stated that the landlord had previously advised him that there was no asbestos in the property and told the landlord that items from the cupboard including his vacuum cleaner had been removed. The landlord acknowledged receipt of the resident’s email on 10 December 2019.
The air monitoring result certificate dated 10 December 2019 states that “Air fibre/levels were shown to below respective detection limits for all tests carried out”.
The resident contacted the landlord again on 11 December 2019 and stated:
1. His old heating could have been fixed but instead he was “forced” to have a new heating system after suffering “severe winters” with no heating.
2. He had agreed to three radiators being fitted in his property but the landlord had installed five.
3. The radiator in the bathroom was “oversized”, this was a danger due to his age and the slippery bathroom floor.
4. He had removed the WAU having been told by the landlord that there was no asbestos.
5. Operatives had left holes in his walls where they had removed old vents, heat was escaping and it was winter.
6. He wanted the landlord to replace his vacuum cleaner.
The landlord responded to the resident on 11 December 2019 acknowledging receipt of his email and advising that “a response will be forthcoming as soon as possible”. The landlord has confirmed that it has been unable to locate a written response to the resident’s email. It states that “for the most part we were trying to engage with [the resident] on a face-to-face basis to try and resolve his issues but were rarely successful”.
On 11 February 2020 an internal landlord email provided a history of the substantive issues of complaint:
1. In September 2019 the landlord was contacted by the resident’s CPN who advised that the resident had been without heating for 18 months. The CPN stated that the resident had refused to allow the landlord to complete work to his property and this was due to his mental ill-health.
2. The CPN attended the property with the landlord and a property survey was completed. A list of works was planned, agreement was obtained from the resident at each stage and support provided through the process.
3. Works were completed between 25 November 2019 and 29 November 2019 to install a new central heating system.
4. At the start of December 2019 the resident removed the WAU from the cupboard in the hallway rupturing a capped gas pipe and causing a gas leak. On attending the property the landlord found that he had also disturbed an asbestos panel. The landlord isolated the area and carried out air testing and an environmental clean.
5. In January 2020 the resident emailed the landlord stating that he had removed the newly installed heating system and placed the radiators in his external shed.
6. On 22 January 2020 the resident emailed the landlord stating that “The illness your abuses have caused and aggravated mean I will likely die here and I have sorted things so now you need not answer”. The landlord was concerned about the resident’s wellbeing and made referrals to the local authority safeguarding team who referred him to the mental health team. The landlord was advised that the mental health team would not attend immediately, they also contacted the police to raise welfare concerns.
7. Between 22 January 2020 and 14 February 2020 the landlord had tried to visit the resident on two occasions but he had not answered the door.
The landlord emailed the resident on 26 March 2020 and advised that “several appointments have been made for us to attend your property however you have not given access”. The landlord requested that the resident make an appointment so that the landlord could “endeavour to resolve the issues for you”. The resident responded on the same day and advised that he had only cancelled one appointment as he wanted contact in writing as he did not trust the landlord due to “the amount of lies”.
On 6 April 2020 the landlord emailed the resident and asked to arrange an appointment to visit him at his property to inspect his heating system and discuss his concerns. On 7 April 2020 the resident responded advising that he wanted them to remove the radiators from his property or that “maybe [he] should do it”.
The landlord’s gas servicing records demonstrate that it attempted to carry out gas servicing to the resident’s property on four occasions between September 2020 and October 2020 but the resident did not provide access.
The landlord visited the resident on 16 October 2020 and following discussions with the resident, agreed to replace the bathroom radiator with an electric heater, and relocate the bedroom radiator. This Service has seen the email confirming this appointment with the resident.
On 29 October 2020 an internal landlord email demonstrates that the resident had made contact and stated that he had carried out works himself and therefore did not want the landlord to carry work out. The emails state that the resident “wasn’t very clear” in what he was saying and that the issue required escalating.
Further internal landlord emails dated 6 November 2020 state that the resident was unwilling to arrange an appointment for repair works to be carried out to the property, including the radiators, until the “dispute” with the gas contractor regarding the installation of the radiators was resolved. The emails demonstrate that the landlord was aware that the preferred email contact to telephone and that he had a sleep disorder that caused him to be awake at night and sleep during the day and that this could cause issues arranging site visits.
On 27 November 2020 the landlord emailed the resident and advised that it was able to attend on 4 December 2020 to remove the radiator in the bathroom, relocate the radiator in the bedroom and complete the gas servicing. It would then arrange a further appointment to resolve the resident’s issue regarding his shelving.
On 8 December 2020 the resident contacted this Service stating that he was unhappy with his landlord’s handling of the replacement of his heating system and with its management of asbestos found at the property.
On 11 December 2020 internal landlord emails demonstrate that the resident’s NHS occupational therapist (OT) had advised the landlord that the resident was not engaging with them and “it seems like the injunction may be the only option unfortunately”. The landlord therefore cancelled its gas servicing appointment for the same day and advised that it would contact the resident’s CPN to make them aware that a letter “threatening legal action” would be sent to the resident.
Internal landlord emails dated 22 December 2020 state that it was concerned that the resident’s mental health had impacted his behaviour causing him to remove the WAU causing a gas leak and disturbing asbestos. The landlord stated that it had to demonstrate that “every option available to us has been exhausted”. It discussed liaising with the resident’s CPN and complying with the resident’s requests for £50 decorating voucher and a new vacuum as “leverage to get in”. It went on to state if this did not gain it access it would have to prepare to apply to court for an injunction.
Within the landlord’s internal emails of 22 December 2020 the landlord stated that threatening to apply for an injunction could “have catastrophic consequences on his [mental health]”. It copied its legal team into the emails and asked for its opinion on seeking an injunction against a resident with severe mental health issues.
The landlord’s gas servicing records demonstrate that it attended the resident’s property for a pre-booked appointment on 13 January 2021 but the resident did not provide access.
Emails dated 2 February 2021 and 4 February 2021 demonstrate that the landlord was liaising with the resident’s social worker regarding accessing his property. Concerns were raised as the resident had suggested that he may have Covid and was “having difficulty breathing…living in extremely cold conditions with no means of meeting [his] personal hygiene needs”. The social worker made a call to emergency services to request that they carry out a wellbeing check at the resident’s property.
On 19 February 2021 this Service wrote to the landlord and requested that it provide the resident with a formal response to his complaint.
On 2 March 2021 the landlord stated in an internal email that it had received a formal complaint from the resident via the Ombudsman and that it had to respond by 10 March 2021.
The landlord’s gas servicing records demonstrate that it contacted the resident on 4 March 2021 to advise it would attend on 8 March 2021 to:
1. remove the bathroom radiator and replace with an electric down flow heater
2. relocate the bedroom radiator to below the window
3. brick up holes left by removing vents from the old WAU
4. fit a new cupboard door and make good the shelving
5. carry out gas servicing.
The landlord has provided this Service with a ‘calling card’ which demonstrates that it attended the property on 8 March 2021 but the resident did not provide access.
As the resident advised that he had not received a stage one complaint response, this Service contacted the landlord again on 8 April 2021 and asked the landlord again to provide a formal complaint response.
On 15 April 2021 the landlord advised that it had been trying to contact the resident and would provide a response letter within “the next couple of days”.
The landlord provided its stage one complaint response on 15 April 2021 by email and post. It stated:
1. It understood that the resident’s complaint was regarding:
  1. the landlord’s handling of reports of the resident’s radiators not working and failure to ensure adequate heating
  2. the landlord unfairly entering the resident’s property to install the radiators
  3. the landlord’s failure to compensate the resident for damage caused by poor quality repair work.
2. It had tried to contact the resident by email, home visit, and telephone call on five occasions between 4 March 2021 and 12 April 2021 to discuss his complaint. As it had been unable to contact the resident, it was unable to confirm the full details of his complaint.
3. The landlord had not received any repair reports from the resident regarding the radiators.
4. On 6 December 2019 the landlord had provided the resident with a decorating voucher following the installation of his new heating system. The voucher was not used and had now expired.
5. The landlord had agreed during a visit to the resident on 16 October 2020 to remove the radiators in the bathroom and relocate the radiator in the bedroom. An appointment was made for 26 November 2020 but the resident cancelled the appointment.
6. During the landlord’s visit to the resident’s property on 16 October 2020 it had agreed, following the resident’s “unauthorised removal” of the old WAU to:
  1. brick up the holes in the wall left from the old heating vents
  1. renew the timber supports in the boiler cupboard
  2. fit a new door to the cupboard in the hall and make good the shelving.
7. The landlord had been unable to complete these works as the resident had requested on 26 November 2020 that no operatives visit his home.
8. The landlord did not uphold the resident’s complaint as it had tried to carry out the resident’s repairs but had not been provided with access to the property by the resident. It however offered the resident:
  1. £50 in his choice of decorating or other high street shopping voucher
  2. a new vacuum cleaner.

On 17 April 2021 the resident responded to the landlord and stated:
1. His radiators were fitted with “such speed” that they didn’t work and were positioned poorly and dangerously. He had suffered a fall in his bathroom due to the size of the radiator fitted and had suffered lost teeth and a scar near his eye.
2. He had only agreed to three radiators being fitted but the landlord had fitted five. There had been a “promise” by the landlord that he would be given £10 per radiator for agreeing to their installation, this had not been paid. He now wanted all the radiators removing.
3. The landlord had refused to remove his old heater which had been condemned by its gas contractor. The resident had removed it as it was taking up space in his property following the fitting of new radiators.
4. The landlord had removed vents from the old heating system which left holes in the resident’s walls. It had also removed the resident’s vacuum cleaner and shelving.
5. He had lived for 17 months without heat, and with holes in his walls and radiators blocking his living space.
6. The resident had previously stated that he only wanted to communicate with the landlord in writing yet the landlord continued to visit and telephone him.
7. He requested that the landlord:
  1. provide a new vacuum cleaner and shelves
  2. replace the door to the hallway cupboard
  3. repair the holes in his walls
  4. acknowledge that there was asbestos in the property
  5. compensate him for 17 months of suffering plus the £10 per radiator he was promised.
In communications with this Service on 19 April 2021 the resident stated that he had been given permission from the landlord to remove the old heater “verbally if not in writing”. He also stated that he had asked the landlord at that time for assurances that there was no asbestos and was assured that there was not as they had carried out “several inspections for asbestos and found none”.
On 5 May 2021 a landlord internal email stated that it had found a gas operative to complete the gas service who was not employed by the contractor to whom the resident had refused access.
The resident emailed the landlord on 9 May 2021 and stated he wanted to add to his complaint that the landlord had not responded to him for 18 months.
The landlord’s gas servicing records demonstrate that on 24 May 2021 legal action was put on hold whilst the landlord awaited a response from the resident to the landlord’s offer that a different contractor carry out his gas servicing.
On 26 May 2021 the landlord wrote to the resident offering appointments on either 28 May 2021 or 4 June 2021 for a different contractor to complete his gas servicing.
On 30 June 2021 the landlord hand delivered a letter to the resident offering appointments on either 2 July 2021 or 9 July 2021 for a different contractor to complete his gas servicing. The letter stated that if the resident did not respond the landlord would commence legal proceedings. The landlord’s gas servicing records state that on 26 August 2021 it was awaiting a court date.
On 1 September 2021 the resident emailed the landlord and advised “I cannot go another winter, so far four without heat so will agree to your terms” to:
1. provide £50 decorating vouchers
2. brick up and plaster board the holes left by the removal of asbestos contaminated vents
3. skim the walls
4. replace the cupboard door and shelving within the cupboard
5. replace his vacuum cleaner
6. reposition “dangerously placed” radiators.
The landlord replied to the resident on 1 September 2021 and asked him to agree to a date and time for the landlord to visit him to “discuss a way forward to address all outstanding repairs”.
On 5 October 2021 the landlord wrote to the resident. It stated:
1. It had been contacted by this Service on 21 September 2021 advising that the resident felt he had not received a response to his stage one complaint made in February 2021. The landlord attached a copy of its stage one response dated 15 April 2021.
2. Since its stage one response it had continued to try and engage with the resident to gain access to his property to complete the annual gas service and any repairs required.
3. The landlord had emailed the resident on 22 September 2021 and visited his property on 27 September 2021 asking the resident to make an appointment for the landlord to deliver the new vacuum cleaner it had purchased for him. The resident had not responded.
4. The landlord would deliver the replacement decorating vouchers agreed in its stage one complaint response when it delivered the vacuum cleaner.
5. There was no record that the landlord agreed to only install three radiators. However, “in an attempt to reach an amicable resolution to your dissatisfaction” it had since agreed to remove the bathroom radiator and replace it with a down flow heater and relocate the bedroom radiator. This had not yet been completed as the resident had refused access.
6. The annual gas serve was due on 29 November 2020 but was still outstanding despite the landlord making multiple failed attempts to arrange this. As a result, there was no alternative but to take legal action.
On 9 October 2021 the resident emailed the landlord and maintained:
1. He had only agreed to three radiators being fitted and had “no memory of anyone at any time asking [where] they should put the radiators”.
2. The landlord had agreed during installation that the bathroom radiator was dangerous and that he could remove the WAU.
3. The landlord had failed to find the asbestos during its asbestos survey.
4. He had made his complaint in October 2019 but the landlord did not respond until 15 April 2021.
5. He wanted compensation “for the two years you caused my health to worsen”.
Landlord emails dated 15 October 2021 demonstrate that it had applied to court for an injunction requiring the resident to provide access for the landlord to complete gas servicing, the court hearing was set for 22 October 2021.
The landlord’s gas safety record demonstrates that on 19 October 2021 it successfully carried out gas servicing to the resident’s property.
The landlord wrote to the resident on 3 November 2021 to confirm an appointment for 9 November 2021 to relocate radiators in the lounge, bedroom, and kitchen, remove the heating pipework from the bathroom, and fit an internal door. The landlord’s repair records show this work was completed.
The landlord provided a stage two complaint response on 10 November 2021 stating:
1. There was no record that it had agreed to only fit three radiators instead of the “industry standard of five”. It had, to resolve the matter, agreed to replace the bathroom radiator with an electric down heater but the resident had since stated he no longer wanted the heater.
2. The landlord apologised that there had been a “mix up with the voucher amount” previously given to the resident but that it had since provided £50 high street vouchers.
3. The resident’s lack of heating had not been “within the control” of the landlord as the resident had repeatedly refused access to the property.
4. The resident had confirmed that following the works completed on 9 November 2021 he now had sufficient heating.
5. There was no evidence to support that the resident had been promised that the WAU would be removed. The landlord’s policy was to leave the units intact as they were encased with asbestos.
6. When the WAU was removed by the resident asbestos had been disturbed and the landlord had carried out air testing and an environmental clean. The resident’s vacuum cleaner was replaced on 18 October 2021.
7. The landlord acknowledged that it “[had] not always responded to you in a timely manner which has caused you some distress…this, perhaps understandably, has caused a lack of trust in your dealings with us”.
The landlord’s records of 15 November 2021 demonstrate that the stage two complaint response was signed off by board members.
On 18 November 2021 the resident signed a document confirming receipt of £30 of high street vouchers and a vacuum cleaner. The landlord had confirmed however that the voucher amount was for £50 and has provided contemporaneous emails to confirm this.

Assessment and findings

The landlord’s handling of the installation of a new central heating system

The landlord accepts that the resident was without working heating following the WAU failing to pass gas safety testing on 18 April 2017 until a new central heating system was installed on 29 November 2019. This amounted to a period of over two years and seven months.
The landlord has demonstrated that it attempted to access the property on 16 occasions to carry out the required heating and asbestos surveys and then to install the new heating system. The resident refused access on each occasion.
This Service has not seen any evidence that the landlord offered the resident any temporary heating (eg electric heaters) during the period where he had no heating system. An order has been made to ensure that temporary heating is offered in such cases.
The landlord has also demonstrated that it installed the recommended number of radiators to the resident’s property based on heat loss calculations. This Service has seen no evidence to corroborate that the landlord entered into an agreement to only install three of the recommended five radiators. Therefore, we are unable to make any conclusions based on this claim and it was reasonable that the landlord relied on the calculations of heating specialists.
In January 2020, approximately two months following its installation, the resident advised the landlord that he had removed the new heating system.
Between January 2020 and April 2020 the landlord made four attempts to contact the resident by email and home visit to arrange to inspect and resolve the issues but he failed to provide access. At a visit to the resident’s home in October 2020 the landlord agreed appointments with the resident to attend the property on 26 November 2020 to remove the bathroom radiator and relocate the bedroom radiator. The resident did not provide access. A further appointment was made for 8 March 2021 to relocate two radiators but the resident did not provide access for completion of the works until 9 November 2021.
Overall, the landlord has demonstrated that it made reasonable and sustained attempts over a period of over two and a half years to complete the works required to restore heating to the resident’s property. The landlord demonstrated an understanding of the resident’s vulnerabilities and engaged regularly with the resident, his CPN and other support providers and considered his support needs throughout the actions it took. This Service considers that the landlord followed good practice and that there was no maladministration.

The landlord’s handling of asbestos found in the property

It is accepted by both parties that the resident removed the WAU from the property and that as a result there was a gas leak and asbestos was exposed. What is disputed is whether the landlord gave the resident permission to remove the WAU and whether the resident was made aware that it contained asbestos.
The landlord attempted to carry out the required asbestos survey on the property on 13 occasions between June 2017 and February 2018 and successfully completed the survey in April 2018. The survey identified asbestos in the WAU and surrounding area.
Knowing that the WAU was encased in asbestos, it would have been reckless of the landlord to provide the resident with permission to expose himself to such a health hazard. This Service has seen no evidence that the landlord gave the resident permission to remove the WAU and therefore is unable to draw any conclusions based on this claim.
The resident’s contact with the landlord in November 2018 demonstrates that he was aware that the area immediately surrounding the WAU contained asbestos as he had asked for the landlord’s assistance in removing it. Therefore, this Service finds that the landlord made the resident aware of the hazard following its survey. As asbestos does not pose a risk to health when in good condition, the landlord was not obliged to remove it from the property and therefore acted reasonably and in line with its legal obligations.
The landlord has demonstrated that, in line with its policy:
1. The incident was reported to a manager by email.
2. Air testing was completed.
3. An environmental clean was carried out.
4. The asbestos containing material was removed from the property.
5. The above actions were sensible and proportionate responses to the situation and therefore the landlord was reasonable.
The resident’s tenancy agreement states that he must not carry out improvements or alterations to the property without the landlord’s approval. The landlord also clearly states within its asbestos leaflet and its repairs policy that residents must not disturb anything that may contain asbestos. Given the resident’s disclosed vulnerabilities this Service considers it fair and empathetic that the landlord did not take further action against the resident for such a breach of tenancy conditions.
The resident delayed in providing access to the landlord to complete an asbestos survey. The survey, when completed, identified asbestos surrounding the WAU and the resident demonstrated through contact with the landlord that he was aware of its existence before he removed the WAU. The landlord’s response to the asbestos disturbance was in line with its own policy, and with its legal obligations. There was therefore no maladministration in the landlord’s handling of asbestos.

The landlord’s complaint handling

The landlord recorded the resident’s formal complaint as being received on 29 February 2021, when it was contacted by this Service.
The Ombudsman’s Complaint Handling Code (the Code) states that a complaint is “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation”. This Service considers therefore, that the landlord should reasonably have considered the resident’s email dated 11 December 2019, one year and two months before this Service contacted the landlord, as the resident’s formal complaint. In this email the resident stated that he was dissatisfied with the service and outlined the separate areas of his complaint.
The landlord acknowledged the resident’s email on the day it was received and stated that a response would be forthcoming as soon as possible. This Service has seen no evidence of such a response and therefore the landlord delayed unreasonably in acting to formally record and investigate the complaint. Failure to formally record and investigate the resident’s complaint earlier has curtailed his right to complaint and delayed his access to this Service. This cannot be considered fair.
The landlord provided its stage one complaint review on 15 April 2021, 25 working days after it was contacted by this Service. Even if the contact by this Service were to be considered the correct date of complaint receipt, the response is 15 working days outside the timeframe specified in the Code and in the landlord’s own complaints policy. This is unreasonable and a complaint handling failure.
Following the landlord’s stage one complaint response, the resident contacted it on 17 April 2021, 9 May 2021, and 1 September 2021 stating that he was still unhappy and the issue had not been resolved. Whilst the landlord responded to offer the resident an appointment to discuss the matter, it failed to escalate his complaint to stage two.
Despite this Service contacting the landlord on 21 September 2021 to state that the resident remained unhappy, the landlord did not issue a stage two complaint response until 10 November 2021, 36 working days later.
This Service considers that the complaint should have been escalated on 17 April 2021 following the resident’s initial contact with the landlord after it’s stage one complaint response and a stage two complaint response provided by 17 May 2021. The landlord’s stage two complaint response was therefore almost 6 months overdue; this is a breach of the Code and is completely unreasonable.
The landlord was fully aware of the resident’s many and complex vulnerabilities through its extended contact with him and therefore should have considered the distress that he felt at the delay in responding to him would have. It is clear from reading the resident’s emails to the landlord that he was experiencing extreme distress. The resident’s contact with the landlord was extremely frequent and as a result he invested a great deal of time and trouble in seeking a complaint response.
This Service notes that the landlord’s complaint policy states that its response timeframe for stage two complaints commences from the date the escalation is “accepted and acknowledged”. As previously stated, in practicality this means that the response timeframe is 18 working days which is outside of the 15 working day timeframe specified in the Code. An order has been made in relation to this issue.
Overall, whilst the landlord’s handling of the substantive issues was extremely good, it failed in handling the resident’s complaint appropriately. It failed to record the resident’s complaint as such until contacted by this Service, more than a year after the resident expressed his dissatisfaction. A resident should not have to contact this Service to affect a resolution to their complaint. The landlord then failed to adhere to the timescales within its own complaint policy and the Code in providing both a stage one and stage two response. The landlord’s delays curtailed the resident’s right to complaint, right to review, and access to this Service and caused him severe distress and unnecessary time and trouble. This constitutes maladministration.

The landlord’s handling of gas safety testing in the property

The gas safety certificate on the resident’s property expired on 29 November 2020 and a new certificate not issued until 19 October 2021, 11 months overdue.
The resident’s property is located within a larger block and therefore failure to ensure the safety of his property could have seriously impacted on the safety of other residents in the building.
This Service accepts that the resident failed to provide the landlord with access to his property on six occasions between September 2020 and March 2021. It is also accepted that the landlord liaised with the resident’s CPN, OT, and social worker to try and engage with the resident and wrote to him on at least five occasions requesting access to complete the gas servicing.
It is noted that the resident stated that he only wished to be contacted in writing however the landlord was reasonable, given the seriousness of the situation, to apply its gas safety policy and attempt contact by home visit and telephone.
The landlord ensured that it gave the professionals supporting the resident warning of legal letters being sent in order that they could provide additional support. This demonstrates excellent practice when taking enforcement action against a vulnerable resident and is commended.
Given the difficulties that the landlord had experienced in accessing the resident’s property to complete previous surveys and works, this Service considers that the landlord should reasonably have foreseen the resident’s refusal to grant access for the gas servicing. It would therefore have been prudent to have taken pre-emptive action to prepare for such a position.
In December 2020, a month after the gas certificate had expired, the landlord sought the advice of its legal team regarding applying for an injunction against a resident with severe mental health issues. This Service has not seen the response from the legal team but it was wise of the landlord to seek such advice. This Service recognises that the landlord went to considerable lengths to ensure that it had explored all alternatives prior to commencing legal action. This was in line with its gas safety policy and good practice and is therefore to be applauded.
The landlord’s policy stated that it would commence legal proceedings “if access is not granted 21 days before the expiry of the current gas safety certificate and there has been at least two attempts to arrange an appointment”. It did not do so in this case until August 2021, nine months after the expiry of the certificate. The landlord therefore failed to adhere to its own policy and this was unreasonable.
Whilst the landlord’s actions were laudable, they were belated. There was a period of 11 months during which the resident’s property had no gas safety certificate as required by law and there is no evidence that the gas to his property was capped during this time. This is of particularly concern when considered in conjunction with the gas leak caused by the resident in the property in December 2019. This Service appreciates that the landlord’s policy states that it will not cap off the gas supply for residents with vulnerabilities, however in this case the safety of others in the locality should have taken priority.
In this case the Ombudsman considers that the landlord should have taken a risk management approach and capped off the gas supply to the resident’s property. Having made more timely enquiries to ensure the resident’s wellbeing, the landlord should have taken reasonable and proportionate action to gain access to the property, in this case this may have required injunctive action.
Whilst, fortunately, there was no emergency event – the landlord exposed itself and its tenants to serious potential risk which could have been prevented by the landlord taking a more balanced risk management approach.
The landlord failed to adhere to its own policy and to relevant safety regulations potentially putting the lives of several its residents (including the resident himself) at risk. Whilst the landlord was correct to be sensitive to the resident’s vulnerabilities, it should have balanced this approach against the safety of all residents and worked at greater pace to ensure gas safety compliance. Therefore there was severe maladministration.
Whilst determinations of severe maladministration would usually be accompanied by a comparatively high compensation award, this Service does not consider that this would be appropriate in this case. This is because it was largely the actions of the resident himself which prevented the landlord from carrying out the gas servicing. Whilst the landlord had the obligation to ensure compliance, it would be inequitable for the resident to financially benefit from this issue.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. No maladministration in the landlord’s handling of the installation of a new central heating system;
2. No maladministration in the landlord’s handling of asbestos found in the property;
3. Maladministration in the landlord’s complaint handling;
4. Severe maladministration in the landlord’s handling of gas safety testing in the property.

Reasons

It is accepted that the resident experienced an unacceptably long period of time without heating and this was concerning due to his disclosed vulnerabilities. This was however outside of the control of the landlord which tried at length to engage with the resident to access his property and install a new heating system.
The landlord acted reasonably and in line with its own asbestos management policy in responding to the discovery of asbestos at the property. Despite it not being obligated to do so, the landlord replaced the resident’s vacuum cleaner as a gesture of goodwill, this was resolution focussed.
This Service considers that the landlord should have considered the resident’s contact of December 2019 as his formal complaint, its failure to do so created undue delay in his complaint being considered and resolved. The landlord also failed to adhere to the timeframes specified in its policy and its policy does not comply fully with the Code.
Whilst the landlord went to considerable and commendable lengths to demonstrate that it had explored every available alternative to legal action, it failed to carry out these actions at a sufficiently urgent pace. This resulted in the resident’s property being without the safety certificates required by law for almost a year putting the resident and neighbouring residents at risk.

Orders

Within four weeks of the date of this report a senior officer of the landlord to provide a sincere written apology to the resident in relation to its complaint handling failures.
Within four weeks of the date of this report the landlord to pay the resident £300 comprising:
1. £150 for time and trouble caused by complaint handling failures;
2. £150 for distress and inconvenience caused by complaint handling failures.
The landlord to carry out a review of its complaint policy and make the required changes to ensure that it is compliant with the requirements of the Code. Specifically, the timescale for response to stage two complaints should not be extended to allow three further days for the landlord to acknowledge the escalation.
The landlord to carry out a thorough review of gas safety procedures considering learnings from this case. The review should be conducted with a view to ensuring that properties are not without the required safety certificates for such an unacceptable length of time and should specifically consider:
1. If the landlord must cap off the gas supply to safeguard other residents, how it will ensure the wellbeing of the resident for example:
  1. Offering temporary heating
  2. Ensuring access to cooking facilities (eg microwave)
2. What actions the landlord will take prior to issuing legal proceedings against residents with vulnerabilities along with timeframes for their completion. The landlord should ensure it takes a risk management approach in such cases.
The landlord should provide this Service with full details of the above policy and procedure reviews and any outcomes within six weeks of the date of this report.