Sanctuary Housing Association (202003165)

REPORT

COMPLAINT 202003165

Sanctuary Housing Association

11 March 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

The complaint is about:
1. the landlord’s response to concerns raised by the resident about breaches of health and safety protocol whilst work was being undertaken at the property.
2. the completion of bathroom works at the 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 39(a) of the Housing Ombudsman Scheme (‘the Scheme’), the complaint about the completion of bathroom works at the property is outside of the Ombudsman’s jurisdiction to consider.
The resident has advised that the landlord had arranged to install an over the bath shower at the property. After the works began, the resident raised concerns about the actions of the operatives who had attended the property, and that they had breached health and safety protocols. The resident says that he refused further works as he had concerns about the competence of the landlord’s operatives. The works in the bathroom came to a halt as a result.
Paragraph 39(a) of the Scheme states – “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”.
Whilst the resident’s concerns about the outstanding works have been acknowledged, the Ombudsman has not been provided with any evidence which demonstrates that his dissatisfaction with the workmanship and the completion of the works was considered through the landlord’s complaint procedure, and that the process was exhausted. Furthermore, it is noted that arrangements for the completion of the works were communicated via the landlord’s solicitors, and outside of the landlord’s complaints procedure. It follows that the Ombudsman cannot investigate the concerns that the resident has raised in relation to this.

Background and summary of events

The resident is a tenant of the landlord’s property. The property is a one–bedroom, terraced bungalow. The property is occupied by the resident and his wife. The resident has informed the Ombudsman that they are a vulnerable household, and that there are physical and mental health issues involved in their wellbeing.
On 19 January 2020, the resident wrote to the landlord to complain about works which had commenced at the property. In his email, the resident said that works to install an over the bath shower commenced on 15 January. He said:
1. the works seemed to be progressing appropriately, until later in the day on 16 January following a site visit from a supervisor.
2. one of the operatives appeared to have received a call following the supervisor’s visit, during which he was told that some of the pipework had not been done correctly.
3. the next day, following further discussion with the operative, they lost confidence in his ability and did not allow him to proceed with the works.
4. he also had concerns about the electrician who had attended the property; and said that his greatest concern was that he had exposed them to asbestos.
5. prior to the works commencing, an asbestos contractor attended the property to scrape the artex ceiling. He said that the contractor waited for the electrician to show him which areas would need to be scraped, and that the electrician only highlighted two areas. The resident said that despite this, the electrician then proceeded to work on four areas.
6. the bathroom was yet to be completed, but he was concerned about being exposed to asbestos.
On 21 January, the landlord acknowledged the resident’s complaint. It advised that a named member of staff would be in touch within five to ten working days in relation to the concerns about staff conduct and behaviour that had been raised.
The resident subsequently sent further correspondence requesting that his concerns be dealt with by the landlord’s Chief Executive only. He reiterated his concern that Health and Safety measures had not been adhered to, and that he and his wife could have been exposed to asbestos. The resident also made a number of calls to the landlord’s head office and customer contact centre with the hope of discussing his concerns further.
On 24 January, the landlord wrote to the resident to confirm once again that it would be investigating the concerns that had been raised. However, it asked in the meantime if the resident could desist from calling the offices. It also reminded the resident of contact arrangements which were in place. Within its letter, the landlord said that it would also be in touch with the resident with a view to making arrangements for the bathroom works to be completed.
The resident sent the landlord further emails, expressing his dissatisfaction with how matters were being handled. As such, on 29 January 2020, the landlord provided further explanation about how it was managing the resident’s concerns. It advised that the Area Manager would be handling the outstanding works needed to the property, and that it would be investigating the concerns raised about what happened when the operatives began the work. The landlord once again advised the resident that the level of contact in was receiving from him was unreasonable, and asked him to stop calling its Worcester office and asking to speak to particular individuals.
On 31 January, the landlord’s Area Manager wrote to the resident to address his concerns. He said:
1. the landlord’s Planned Team had taken ‘necessary precautions’ to protect the operatives and residents from asbestos exposure.
2. He could confirm that scrapes were done in both the bathroom and cupboard to ensure these areas were safe before any drilling took place, and when the carbon monoxide detector was fitted in the hallway this utilised pre–existing holes which had been filled. He added that as these were pre-existing holes, they did not contain any asbestos materials.
3. the works originally scheduled would not be proceeding as previously advised due to ‘concerns about the safety’ of staff given (then) recent events.
4. the landlord was fully committed to completing the works; however, it would have to put measures in place to enable this.
5. he would be in touch with the resident the following week to make the necessary arrangements.
The resident responded the same day to refute the Area Manager’s comments. On 2 February, the resident emailed the landlord again and advised that they would be instructing an independent expert to visit the property and inspect works previously done. He added that they would be seeking legal advice as they were uncomfortable with the operatives that were being sent to the property.
On 4 February, the landlord’s solicitor wrote to the residents with a letter before action. Within the correspondence, the solicitor described the events that had taken placed over 16 and 17 February, as described by various members of landlord staff. The letter referred to particular language that was used by the resident, a threat of violence, and that the resident locked the operative’s tools away in his shed. The solicitors advised that the resident’s behaviour amounted to a breach of the tenancy agreement and outlined the steps that the resident would have to take so that the works to the bathroom could be completed. This included contacting a named member of staff so that arrangements for a decant could be made, in order to facilitate the completion of the bathroom works. The correspondence also explained the potential action that the landlord could take against the resident if there was a failure to comply with the steps it had detailed.
The resident refuted allegations within the solicitor’s letter and further correspondence was exchanged in relation to that matter. On 5 March the landlord wrote to the resident with a response to the complaint. It said:
1. It understood the resident’s concerns to be that during planned works to update shower at the property, works were carried out to install a carbon monoxide monitor detector and a smoke detector. The resident was concerned that appropriate health and safety measures were not followed, and that they had potentially been exposed to asbestos as a result.
2. Prior to the planned works commencing, a pre-site survey was completed and this included the review of recorded health and safety information held on its system. It explained that this was to ensure that any planned works were carried out in compliance with health and safety regulations.
3. After speaking with the Head of Planned Delivery, its records identified the presence of texture coatings in the bathroom and hallway ceiling. In view of this, an order was raised for its contractor to remove areas (scrape) of the texture coating to allow the safe installation of the shower and smoke detector in the bathroom and hallway.
4. In acknowledged the resident’s concerns that the removal of the texture coating was not carried out prior to the installation of the carbon monoxide detector in the hallway. However, its Head of Planned Delivery had confirmed that this was not required as the detector was being sighted in the same position of a previous installation.
5. After a careful review, it was satisfied that the appropriate actions were taken prior to the installation of the detectors and it hoped that the explanation went some way to alleviating the resident’s concerns.
The resident responded on 9 March and disputed many of the landlord’s comments. He made a number of comments, including:
1. That there was the presence of textured coatings on all of the ceilings, and not just the bathroom and the hallway.
2. When the contractor attended to scrape the ceilings, the electrician only pointed to two areas. However, the electrician then subsequently worked on five different areas of the three ceilings. The resident expressed his view that this was therefore a very serious breach of health and safety.
3. The carbon monoxide detector was not sighted in the same position as a previous installation. There was no installation there and the electrician made a new hole in the ceiling.
4. That he had asked for a surveyor to attend the property and inspect the work that had been done; however, this had been ignored.
On 12 March, landlord acknowledged the resident’s comments and agreed to provide a response within 10 working days. However, on 23 March, the landlord advised that it was not in a position to respond to the complaint owing to the emerging situation with the Coronavirus pandemic and the unprecedented challenges it was presenting. Between 9 March and 23 March, further correspondence was sent by the resident to the landlord in relation to the complaint. Within this, the resident reiterated that the electrician had created new holes in the hallway ceiling to facilitate the installation of the carbon monoxide alarm, and that these areas had not been scraped beforehand.
The landlord subsequently issued a further response to the complaint on 2 April 2020. Within this, it said:
1. It noted the resident’s comments that they had been left with outstanding repairs – including in the bathroom. It said that these were not part of the complaint; however, it understood that arrangements were in the process of being made.
2. Whilst it was sorry for the inconvenience that the outstanding repairs were causing, the purpose of the investigation was to evaluate the conduct of its operatives attending the resident’s homes and his concerns about a possible health and safety breach.
3. In relation to the health and safety aspect of the complaint, whilst it had taken the resident’s concerns seriously, without any evidence of wrongdoing, it could not communicate with the resident on this matter.
4. In specific response to the resident’s questions in his email of 9 March 2020:
  1. It was in agreement of the presence of textured coatings on all of the ceilings apart from the porch. It added that this was detailed in the asbestos report it held dated 13 February 2009.
  2. As part of its investigation, it looked at how the complaint was handled at the first stage of its process. Having done so, it could see that the complaint was recorded at the first stage and acknowledged on 21 January 2020. However, it noted that there was no record that the resident was contacted by a member of the relevant team at that time.
  3. It wished to apologise that the level of customer service delivered during this time fell short of its standards – and that the matter was not proactively monitored by the first stage team.
  4. In light of this, it wished to offer the resident £75 compensation along with an apology.
5. The landlord added that if the resident remained dissatisfied with the response he had received, he could refer the matter to the Ombudsman for further consideration.
The resident responded on 5 April to express dissatisfaction with the response he had received. In his email he said:
1. The complaint was not investigated property and “all the evidence” was at the property for the landlord to see.
2. He had asked for a surveyor to visit the property, and questioned why the landlord had not arranged for this.
3. Exposure to asbestos fibres was a “very serious breach of health and safety”, but this did not “seem to be enough” or the landlord.
4. The electrician did not have the contractor scrape any areas on the hallway ceiling, yet he carried out work on three different areas of that ceiling. The resident said that he should not have carried out work in these areas.
5. The operatives were negligent and liars.
6. The landlord had advised that it was “not safe” for staff to attend the property and the resident asked what was meant by this. He added that the landlord had breached the tenancy agreement, not him.
The landlord responded on 7 April 2020 and advised that the matter had exhausted its complaints procedure and that whilst it had noted the resident’s comments, it considered that all aspects of the complaint had been responded to. The landlord reminded the resident of his right to refer the complaint to the Ombudsman for further consideration.
The resident continued to email the landlord to express his dissatisfaction. On 14 April, the landlord advised that any further correspondence in relation to this complaint would not be responded to.

Assessment and findings

The events relating to the complaint are in dispute. The resident has provided the Ombudsman with his recollection of events, and the landlord has provided the Ombudsman with internal communication from its staff. Both have been considered; however the Ombudsman cannot reconcile the difference and say with any certainty what happened whilst the works were underway, and in particular on 17 January. However, this investigation has assessed how the landlord responded to the concerns that were raised by the resident, with reference to the contemporaneous evidence that is available.
The resident raised concerns that the landlord’s electrician had created holes in the ceiling in areas that had not been scraped by the asbestos contractor beforehand. In response to the resident’s concerns, the landlord asked staff who were involved with the works, and present at the property on 17 January to provide a statement about what had transpired. Further enquiries were also made with the Head of Planned Delivery, and the asbestos contractor, about the scraping that had been undertaken.
The Ombudsman has been provided with copies of the statements and the internal communication the landlord’s internal communication which was exchanged whilst the complaint was being investigated. Having reviewed this evidence, the Ombudsman is satisfied that the landlord took appropriate and proportionate steps to try to ascertain what had happened, and whether there had been any health and safety breaches.
Whilst the resident’s comments have been noted, the landlord’s electrician advised that he did not make new holes in the ceiling for the installation of the carbon monoxide detector. Furthermore, this was echoed by the Area Manager. As detailed above, in his correspondence to the resident on 31 January, the Area Manager advised that the holes at the sight of the carbon monoxide detector installation were there previously, but had been filled. However, he added that as the holes had been created before, they did not contain any asbestos materials.
Given the resident’s comments that there were ‘no existing holes’ at that sight, it would be pertinent to emphasise that the landlord’s Area Manager had advised that these holes had been created previously, but had been filled. It follows that neither the landlord nor the electrician have suggested that there were open holes in the ceiling when the works began; rather, the electrician installed the carbon monoxide detector by re-opening holes which had been previously filled. The landlord’s Area Manager confirmed that as the holes had been made previously, they would not contain asbestos materials.
It was not unreasonable for the landlord to rely on the electrician’s statement, and the other comments from its staff, when reaching its conclusion. Furthermore, the landlord made additional enquiries with its asbestos contractor to satisfy itself that there had not been a breach of health and safety protocols at the property. The Ombudsman is satisfied that the steps which were taken by the landlord were proportionate and appropriate in the circumstances, and enabled it to provide a well-informed response to the complaint.
Within his complaint correspondence, the resident reiterated on several occasions that “the evidence” regarding the holes was at the property for the landlord to see. He queried why a surveyor inspection had not been arranged. Given the landlord’s concerns about staff safety – following the alleged threats made by the resident to the operatives on 17 January – it was not unreasonable that an inspection was not carried out during the course of the complaint. It is also noted that the landlord’s solicitor had written to the resident on 11 February and advised that a surveyor would attend the property whilst he and his wife had been decanted and the bathroom works were completed. The Ombudsman is therefore satisfied that the resident’s enquiries in relation to an inspection had been addressed by the landlord during the complaints procedure.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in response to concerns raised by the resident about breaches of health and safety protocol whilst work was being undertaken at the property.

Reasons

In response to the resident’s concerns, the landlord took appropriate steps by obtaining a statement from its electrician, and other individuals who were present at the time. The landlord made further enquiries with those who had been involved with the works at the property to satisfy itself that health and safety protocols had been adhered to. The landlord’s response to the complaint was appropriate and proportionate overall.

Recommendations

Within 4 weeks of the date of this decision, the landlord should re-offer the £75 compensation which was offered during the course of the complaint, if not previously accepted.