Tandridge District Council (202010455)

REPORT

COMPLAINT 202010455

Tandridge District Council

21 June 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.

1. The complaint refers to the landlord’s handling of:
   1. the resident’s concerns about the conduct of a contractor employed by the landlord.
   2. The resident’s concerns about how her data has been managed.
   3. The resident’s concerns about a letter she received from the landlord on 20 October 2020. 
   4. the associated complaint and record keeping.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

The resident’s concerns about how her data has been managed.

4. Paragraph 39(m) of the Scheme states:
   1. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
5. The resident believes that the landlord inappropriately shared personal information about her mental health and benefits dependency with an engineer involved in repairs to her property. Complaints relating to data protection fall properly within the jurisdiction of the Information Commissioner’s Office (www.ico.org.uk). The ICO can investigate complaints about possible breaches of the Data Protection Act. It is not part of this Service’s role to determine whether the landlord had adhered to this act. It is therefore advised that the resident contacts the Information Commissioner’s Office (“ICO”) for further information on taking this element of the complaint further.

The resident’s concerns about a letter she received from the landlord on 20 October 2020.

6. 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.
7. The resident has advised that the landlord wrote to her on 20 October 2020, explaining that information about her would be shared with other council staff and contractors to protect staff from abusive behaviour. The resident wants the landlord to withdraw this letter.
8. This is a separate issue to the complaint raised with the Service and was not included in the landlord’s responses to the resident’s complaint. Therefore, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. If the resident has further concerns about the letter she received, she may wish to contact the landlord and ask for this to be reviewed in line with the information provided. If appropriate, she may wish to raise a separate complaint to the landlord about this issue. If she remains dissatisfied with the landlord’s final response to this, she may be able to refer the matter to the Ombudsman as a new complaint.

Background and summary of events

9. The resident is a tenant of the landlord who is a local authority. The complaint was raised by both the resident and at times, by her representative. For clarity, this report will refer to both the resident and her representative as ‘the resident’.
10. Between November 2019 and February 2020, the resident reported several issues with her boiler. On 11 February 2020, an engineer employed by the landlord left two temporary heaters as the boiler had been turned off awaiting repair. A follow-up appointment was arranged for the following day.
11. The landlord’s records show that the resident had called to make a complaint on 12 February 2020. She explained that an engineer who had attended her property that day to fix her boiler had verbally assaulted her. She claimed that they told her that it was not her house, it was a council house and that she did not pay any rent or council tax so she should be grateful. She found this to be derogatory and discriminatory.
12. The landlord held a meeting with the engineer on 13 February 2020 to determine their record of events during the repair appointment.
13. The landlord issued its stage one complaint response to the resident on 24 February 2020 and explained the following:
    1. It confirmed that it had interviewed the engineer who had said that during the repair of the boiler, the resident began to discuss a defective temporary fan heater. The engineer claimed that the resident began to record them on her phone and asked them to quote company policy or legislation regarding the provision of temporary heating. This continued whilst the engineer was attempting to repair the boiler until they said “you should be grateful for having had two engineers visit and parts replaced that would cost private customers thousands of pounds. Can you not be grateful for getting a good service and move on”. At this point, the resident had asked the engineer to leave and they stated that the boiler needed to be made safe first, the resident then said that she was going to call the police.
    2. The landlord agreed that under normal circumstances there was no reason for such statements to be made. However, it acknowledged that the engineer appeared to have lost patience because of the resident’s actions. It said that the engineer was sorry for their conduct and any distress this may have caused. It confirmed that without independent witnesses, it was unable to corroborate any version of the events that occurred on that day.
    3. The landlord assured the resident that it took the abuse of residents or staff very seriously and confirmed that control measures had been implemented by its contractors to monitor the conduct of the engineer concerned. It was satisfied that it had dealt with this allegation appropriately and the correct measures were being taken to ensure the desired standard of customer service was achieved.
    4. It confirmed that if the resident had any additional information relevant to this matter, she could write in, stating exactly why she was not satisfied.
14. The resident has explained that a telephone call took place on 26 February 2020 where she verbally requested for her complaint to be escalated. The landlord has not provided the Ombudsman with details of any call logs on this date.
15. On 24 September 2020, the resident wrote to the landlord and asked for her complaint to be escalated for the following reasons:
    1. She said that there had been a significant delay in dealing with her complaint as she was under the impression that her verbal stage two complaint was already being dealt with, but now understood that this request needed to be made in writing.
    2. She explained that the communication she had received from the engineer on that day had traumatised her and even with therapy it was still troubling her greatly. She explained that she suffered with both her physical and mental health, which was not considered when her boiler kept breaking down in the winter months. She added that the engineer had referred to her in a discriminatory way, using an abusive term several times.
    3. She said that to have been spoken to in this way, the engineer must have had confidential information about her. She believed that information about her welfare dependency and mental health had been inappropriately shared. She asked the landlord to investigate this breach of data protection.
    4. She said that she now required another family member to be present when any maintenance to her property was carried out. She asked the landlord to compensate her for the effect that the incident had on her mental health and wellbeing, as well as for the additional money that she had spent on gas due to having a faulty boiler.
    5. She was dissatisfied by the “second-hand, curt apology” from the engineer and noted that this was “unfeeling” and there had been no apology by the landlord or the contractors who employed the engineer. She asked for a personal written apology to be provided directly from the engineer.
    6. She added that the landlord had said that there were no witnesses to the incident and explained that she had repeated what the engineer was saying directly to the police over the phone. She also noted that her neighbour also heard the incident and came to the property as they heard shouting, so there had been witnesses.
16. The landlord’s records show that the complaint was acknowledged and the landlord said that it would respond within ten working days. The landlord has not provided the Ombudsman with the date on which this acknowledgement was sent. It noted that its complaint responses may be delayed due to Covid-19.              
17. On 8 October 2020 the resident asked the landlord to provide an update on the status of the complaint. The landlord responded the same day and explained that due to staff absence, its response would take longer than usual. It aimed to respond no later than 16 October 2020.
18. The landlord issued its stage two complaint response on 16 October 2020 and explained the following:
    1. It agreed that a delay had occurred since the complaint was first handled in February 2020 and apologised that the resident was unaware that the escalation request needed to be made in writing. It confirmed that it had stated this at the end of its stage one complaint response.
    2. It confirmed that its staff used a system which held tenancy details. This system did not hold any data about the resident’s mental health and therefore this information was not available to the landlord’s staff or any other third parties, including contractors.
    3. It acknowledged the resident’s request for an apology from the engineer directly. It advised that this was not possible as they no longer worked for the contractor.  It reassured the resident that the treatment of residents was taken seriously and it was satisfied that its contractors had control measures in place to monitor the conduct of their employees. It was satisfied that this matter was dealt with correctly at the time.

Assessment and findings

19. The Ombudsman does not doubt the resident’s comments regarding her medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Consideration has been given to the general distress and inconvenience which the situation may have caused the resident. The resident may be able to make a personal injury claim against the landlord if she considers that her health has been affected by the actions of the engineer acting on the landlord’s behalf. This is a legal process, and the resident should seek independent legal advice if she wants to pursue this option.

The landlord’s handling of the resident’s concerns about the conduct of an engineer.

20. The resident has expressed dissatisfaction about the engineer’s conduct on 12 February 2020. The incident on 12 February 2020 was clearly distressing for the resident and the landlord has accepted that the engineer’s comments were unreasonable. For staff conduct complaints, landlords should carry out an investigation. For example, the landlord would generally conduct interviews and gather evidence from all parties, making an informed decision based on its findings.
21. In accordance with paragraph 39 (k) of the Housing Ombudsman Scheme, which states that this Service will not consider complaints which concern terms of employment or other personnel issues, the Ombudsman will not consider or comment on how the landlord should have dealt with identified service failings by the member of staff involved in terms of any disciplinary proceedings or penalties against the contractor.  Rather, it is this Service’s role to decide whether the landlord adequately investigated and responded to the complaint, and took proportionate action to put things right for the resident, based on the information available to it.
22. The landlord acted reasonably by interviewing the engineer to determine their side of events, it then confirmed that control measures had been implemented by its contractors to monitor the conduct of the engineer concerned. It also relayed the engineer’s apology to the resident in its stage one response, which was reasonable. It is noted that the resident requested an apology directly from the contractor in her stage two escalation, however, the engineer no longer worked for the company by this stage, so this would not be possible and the landlord explained this to the resident.
23. The resident raised concern that the landlord had not interviewed any witnesses to the incident, such as her neighbour and said that the landlord should have carried out a more thorough investigation. Ultimately, on interviewing the engineer, the landlord established that their actions were not reasonable. Whilst it may have been helpful for it to interview other witnesses at the time for context, this would not have added to the investigation at this stage as it had already established that the engineer’s actions were not reasonable and took steps to implement control measures to monitor their conduct. at the time the resident raised her concerns about witnesses being interviewed on 24 September 2020, there would have been no reason for the landlord to interview other witnesses as the engineer had left the company at this point.
24. In summary, there has been no maladministration by the landlord in respect of its handling of the resident’s concerns regarding the engineer’s conduct. The landlord took reasonable steps to investigate the alleged abuse and found that the engineer’s actions were not acceptable. It then put steps in place to ensure that the conduct of the engineer was monitored moving forward. It offered an apology to the resident and assured her that processes were in place to ensure that this did not happen in the future.

The landlord’s handling of the associated complaint and record keeping.

25. The landlord’s complaints policy states that it has a two-stage complaints process. At stage one, a complaint response should be issued within ten working days. If the resident remains dissatisfied, then they can escalate their complaint to stage two of the landlord’s process. The resident must clearly explain why they are dissatisfied and what they think the landlord should do to put matters right. At stage two, a complaint response should be issued within ten working days. Where it is not possible to meet published timescales, the landlord should write to the resident to let them know when they should expect a reply.
26. The resident raised her complaint on 12 February 2020, the landlord provided its stage one complaint response on 24 February 2020, which was within the ten-working day timescale at stage one. She then escalated her complaint in writing on 24 September 2020. The landlord issued its stage two complaint response on 16 October 2020, this response was issued six working days outside of the landlord’s timescales. the resident had been informed that there could be a delay as a result of Covid-19 was kept updated and therefore her expectations had been managed satisfactorily.
27. However, the landlord has not addressed the resident’s request for compensation in its stage two complaint response, nor has it added any further explanation of its investigation or considered her comments about the availability of witnesses. The landlord would be expected to address each aspect of a resident’s complaint in its response and has therefore not acted reasonably in its handling of the associated complaint.
28. The resident has also expressed dissatisfaction with the extended timeframe of the complaint and maintains that she called the landlord on 26 February 2020 to escalate her complaint to stage two. The resident contacted the landlord over the telephone when she made her initial complaint. We therefore expect the landlord to have provided evidence of its call logs with the resident or explained why it could not do so. This information would have allowed our investigation to determine whether the resident asked to escalate the complaint on 26 February 2020 and whether the resident had called to follow-up on this matter between February and September 2020, which would have been appropriate given that she had not received a response during this period.
29. The landlord had advised the resident to explain the reasons for any further dissatisfaction in writing in its stage one response on 24 February 2020. However, its complaints policy does not specify that stage two escalation requests need to be in writing, and therefore it would have been reasonable for the landlord to have accepted an escalation request made over the phone. Due to the lack of phone records, the Ombudsman cannot determine whether the landlord should have considered the resident’s complaint at stage two sooner. In the absence of such records, we cannot robustly determine whether the evidence supports the landlord’s explanations of the actions it took and the decisions it made. The omission to provide this information was a service failure as it impacts our overall assessment of its handling of this complaint and evidences poor record keeping by the landlord in that it was not able to provide the relevant information when asked. This also impacts the resident as we have not been able to fully investigate her concerns.
30. In view of the above, there has been service failure by the landlord in respect of its handling of the associated complaint and record keeping. The landlord should offer the resident compensation in recognition of the inconvenience caused because of its complaint handling. It is also recommended that it reviews its complaint handling policy if it requires all stage two escalations to be submitted in writing and updates this accordingly.
31. It is also recommended that the landlord considers the issues around record keeping identified in this investigation, and why it could not provide the information it was asked for. If procedural or systemic causes are found it should correct these to ensure such problems do not arise in the future.

Determination (decision)

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s concerns about the conduct of an engineer.
33. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint and record keeping. 

Reasons

34. The landlord has acted appropriately by interviewing the engineer responsible for the alleged verbal abuse. It confirmed that control measures had been put in place to monitor the conduct of this staff member. It also passed on the engineer’s apology to the resident for any distress caused and assured her that it had measures in place to prevent this in the future.
35. The landlord has not addressed every aspect of the resident’s complaint in its stage two complaint response which constitutes a service failure. It has also failed to provide relevant information which would have allowed this Service to determine on whether the delay between February 2020 and September 2020 was reasonable.

Orders

36. The Ombudsman orders that the following actions take place within four weeks:
    1. The landlord is to pay the resident £150 in recognition of the inconvenience caused by errors in its complaint handling and record keeping.
    2. The landlord should consider the resident’s request for compensation for her increased energy usage whilst she was without a functioning boiler. The resident should provide evidence that her energy usage had increased for the landlord to consider this.

Recommendations

37. It is recommended that the landlord reviews its complaint handling policy if it requires all stage two escalations to be submitted in writing and updates this accordingly.
38. It is recommended that the landlord considers the issues around record keeping identified in this investigation, and why it did not or could not provide the information it was asked for. If procedural or systemic causes are found it should take steps to ensure such problems do not arise again.