Birmingham City Council (202014399)

REPORT

COMPLAINT 202014399

Birmingham City Council

9 February 2022

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 resident complains about the landlord’s handling of a gas safety check, and its handling of the subsequent formal complaint about the matter.

Background

The Gas Safety (Installation and Use) Regulations 1998 obligate the landlord to carry out an annual gas safety check to all tenanted properties.
Under the heading ‘The gas servicing process to be followed by the contractor for properties/ blocks on the gas servicing programme’ the landlord’s gas safety process map (as was in place at the time of the issues complained about), provides for three appointment/warning letters to be sent before a fourth, final letter giving a date for forced entry if access is not provided beforehand.
The landlord’s complaint policy says that it will fully investigate complaints and sets out a three-stage procedure. Stage one is where a complaint can be resolved immediately. If this is not possible, it would be logged at stage two ‘Investigating the complaint.’ The department that provided the service complained about would investigate and respond. If the resident was unhappy with the stage two response, they could ask for this to be reviewed. An independent officer would then consider the complaint.

Summary of events

In 2019 this Service investigated a very similar complaint from the resident about the landlord’s handling of a gas safety check and the issuing of letters when the resident had already made an appointment for the check to be carried out. In a report dated 14 November 2019 the Ombudsman determined that there had been failings on the part of the landlord, and ordered it to pay the resident £150 compensation for distress and inconvenience caused in receiving the unnecessary letters, and £100 compensation for the delay in escalating his complaint.
The Ombudsman recommended that the landlord reviewed its gas servicing programme management process and how subsequent letters were triggered when tenants had already agreed to an appointment. The Ombudsman also recommended that the landlord reviewed the wording of the letters and considered whether it needed to add additional information for residents who may have agreed an appointment date with the gas contractor, but the letter had still been triggered.
On 2 December 2019 the landlord wrote to the resident apologising for the stress and worry the forced entry notice letter that had been sent to him had caused. It said that it would review its letter process in light of the complaint. The landlord subsequently contacted the Ombudsman to confirm that it had revised the wording of the letters sent to tenants about the annual gas service. It provided copies of the four revised letters.
On the 20 November 2020 the landlord’s gas contractor wrote to the resident (with the resident reporting that he received the letter on 27 November 2020) with an appointment for a gas safety check on 3 December 2020. The letter gave the option of rearranging the appointment if it was not suitable, and the resident did so, telephoning the gas contractor on 30 November 2020 and rearranging the appointment for 5 January 2021.
The resident reports that on 29 December 2021 the landlord hand delivered a letter dated 21 December 2020, warning that if the gas safety check was not accommodated action such as forced entry, recharge for this, and locks being changed may be taken.
The resident sent a letter of complaint to the landlord dated 30 December 2020 via recorded delivery about the 21 December 2020 letter, in which he referred to the Ombudsman’s previous determination, orders, and recommendations, and expressed frustration that despite this the same situation had occurred. He explained that he and his family were disabled, vulnerable residents and the threatening letters had caused them distress, fear, upset, alarm, and harassment. The resident pointed out that contrary to what had been said in the letter, he had not repeatedly failed to provide access for the gas safety check, and asked the landlord to provide dates and times of when this had allegedly occurred. The resident also asked why it had taken a week for a letter dated 20 December 2020 to be hand delivered on 29 December 2020.
As he received no reply, the resident wrote again to the landlord on 1 February 2021, complaining about the lack of response. As he received no reply, the resident wrote again on 15 February 2021, again complaining about the lack of response and asking that his complaint be dealt with.
The landlord provided a response dated 26 February 2021, seemingly at stage two of its complaint process, in which it stated that the annual gas safety check was mandatory. It said that as the resident had failed to comply with the letter process by not making an appointment, it was necessary to hand deliver a final warning letter in which entry would have been gained should he not have not complied. It said, ‘The Council will continue to contact you to carry out the annual service, as it is legally required to do so.’ The letter ended by advising the resident that he could escalate the matter to the next stage of the complaint process if he remained dissatisfied.
The resident sent an escalation request to the landlord dated 8 March 2021, in which he said that the landlord’s comment that he had failed to comply with the letter process was a ‘blatant untruth’ and pointed out that he had made an appointment as soon as he had received the gas contractor’s letter in November 2020. Therefore, there had been no need to send the 21 December 2020 threatening letter, which had frightened, harassed, and provoked him and his family. The resident referred to the Ombudsman’s findings on his previous case about the same issue, and said that the landlord was acting against the findings and recommendations of the Ombudsman. The resident noted that the landlord had not understood his complaint, and had also failed to respond to a number of points in his 30 December 2020 letter, and asked that it now address all of his concerns. He also noted that no explanation had been provided as to why it had taken two months to obtain a stage one response.
As he received no reply, he wrote again on 6 April 2021 complaining about the lack of response. The landlord sent a final response dated 9 April 2021 in which it said it was sorry for any upset or inconvenience caused but the importance of gas safety was paramount. It stated ‘The Council employs a rigorous process to ensure compliance. However, should any customer fail to comply, it has no alternative but to force entry.’ It noted that the gas safety check was completed without forced entry on 5 January 2021. It referred the resident to the Ombudsman should he remain dissatisfied.

Assessment and findings

When considering complaints the Ombudsman applies its Dispute Resolution Principles, which are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes

ii. Put things right

iii. Learn from outcomes

In his complaint to this Service dated 17 April 2021, the resident said that the landlord had failed to address his full complaint, and expressed frustration that despite the Ombudsman’s previous determination, the same situation had occurred.

Gas safety check

While the landlord had stated in its 2 December 2019 letter to the resident that it would review its letter process in light of the complaint, no revision to this process appears to have taken place. The process map that the landlord supplied in relation to this complaint shows the same letter process as that in the process map that was supplied in relation to the 2019 complaint.
The process map sets out a four-letter procedure.
1. The ‘first letter’ is sent by the gas contractor with an appointment within 14 days of the work order being raised.
2. If this appointment is not kept, the gas contractor sends out the ‘second letter’ within 21 days of the work order being raised.
3. If that appointment is not kept, the gas contractor sends the ‘third letter’ within 28 days of the work order being raised.
4. If that appointment is not kept, the landlord sends out the ‘fourth letter’ on day 35 of the work order being raised.
The process map also states, ‘Where the first appointment is booked and is after the gas service target date for letter 2, the contractor will be required to send Gas Service Appointment Letter 2 Gas Service Appointment Letter 2 will be required to be sent by the contractor with an appointment slot, as there is no guarantee that the customer will keep to the first appointment.’ It also states the same for the ‘third letter’.
It is not apparent when the work order was raised with the gas contractor, and so it is unclear what dates the letters were due. But what is clear is that, even though an appointment had been booked by the resident following the first letter, according to this process the contractors should still have sent the ‘second letter’ and ‘third letter’.
The gas contractor’s letter dated 20 November 2020 is the ‘first letter’ informing the resident of an appointment. There is no evidence that the ‘second letter’ or ‘third letter’ were sent, and this was confirmed in an email from the gas contractor to the landlord dated 24 February 2021, in which it said that the resident was not sent any other letters after the first, as he had booked an appointment following this.
Templates for the ‘second letter’ and ‘third letter’ have been provided by the landlord in the information it submitted on this case. These templates show that the landlord has revised the wording since the previous investigation, in line with the Ombudsman’s recommendation. These now begin, ‘Can I take this opportunity to thank you for arranging your appointment with (contractor) to carry out your annual gas safety check. To ensure we complete your gas safety check you may receive additional letters prompting you to arrange an appointment, even though you may have confirmed a future date. This is to ensure we continue to communicate with you in case appointments are not completed satisfactorily. Your co-operation is appreciated.’
This is an improvement on the letters that were sent previously and better reflects situations such as the resident’s where an appointment has already been made, and puts residents on notice that they will receive further letters.
However, the letters then go on to refer to a failure to provide access. For example, directly after the above quote, the ‘third letter’ states, ‘After two failed attempts to access your property to perform the annual gas safety check I am writing to tell you that you must allow XXXXXXXX into your home to carry out this vital check. Failure to cooperate with this process will result in the gas supply to your home being capped to prevent use of all gas fed appliances, including any that supply your heating and hot water.’ This is confusing in cases such as the resident’s where there had been no failed attempts to access the property.
In any case, no second or third letters were sent to the resident, contrary to the landlord’s process, meaning that the resident was not warned that he would receive further letters even though he had already made an appointment.
The landlord’s letter dated 21 December 2020 was a revised ‘fourth letter’, and the first sentence read, ‘Please note: if you have already confirmed an appointment to carry out your annual gas safety check prior to the proposed forced entry date and the service is successfully carried out please ignore this letter.’ It is this sentence that constituted the revision of the original fourth letter as was recommended in this Service’s previous investigation, and the Ombudsman is satisfied that this revision appropriately addressed situations such as the resident’s where an appointment had already been made: The resident was made aware that as he had already made an appointment, he could ignore the letter.
However, the letter then states ‘Our Gas contractor has made appointments and attempted to gain access to your property on several occasions…due to your repeated failure to provide our contractor with access…a contract works officer has now been authorised in writing by Birmingham City Council to enter your home on Thursday 7th January 2021…’ It said that unless the resident made contact or provided access before that date, it would force entry, and recharge for the cost of this.
As with the other letters, this paragraph is somewhat confusing given that it is incorrect, and it is understandable that the resident was aggrieved by the suggestion that he had repeatedly failed to allow access for the gas safety check, when in fact this was not the case. It further frustrated him when the landlord’s response to the complaint repeated this incorrect assertion.
While recognising the resident’s opinion on the matter, it is the Ombudsman’s view that the sending of letters even after an appointment has been made is not unreasonable (and is in line with the landlord’s process), as long as the correct process is followed, and the letters are clear. As stated in the landlord’s process document, the follow-on letters are sent even when an appointment has been made due to the possibility that the appointment is not kept. It is appropriate for a landlord to ensure residents are aware of possible outcomes should access not be provided/appointments kept.
In this case the process was not followed, meaning that the resident received the ‘fourth letter’ which advised that a forced entry appointment had been made, without any prior warning or escalation via the second and third letters. It is not clear why the contractor decided these letters weren’t necessary given the landlord’s process. Had the resident received the second and third letters this would have given him warning and additional opportunities to contact the contractor or landlord sooner with any queries. The resident found the forced entry letter distressing, threatening, and frustrating, especially as it stated he had failed to provide access when this was not the case.
In light of the above, the Ombudsman finds maladministration on the part of the landlord, and makes an order below to ‘put things right’ for the resident.

Complaint handling

The landlord failed to provide any response to the resident’s 30 December 2020 complaint until nearly two months later, and after the resident had sent two chasing letters.
While the landlord’s complaint policy states that complaints would be fully investigated, there is no indication that this occurred in the resident’s case. The 26 February 2021 response was very brief, and appears to have fundamentally misunderstood the sequence of events and what the resident was complaining about. It said that the resident had failed to comply with the letter process by not making an appointment, whereas it is clear that he did make an appointment, and in fact the landlord itself did not follow its own letter process.
It is also clear that the landlord was aware of this when it responded to the complaint: There is an email dated 24 February 2021 from the landlord’s gas contractor which informed the landlord that it sent the resident the ‘first letter’ on 20 November 2020, the resident had then telephoned to rearrange the appointment on 30 November 2021, with this being re-arranged for the 5 January 2021. It said ‘…which means the tenant would not receive any more letters from us as he has booked the appointment himself. We then attended on the 05/01/20201 as requested and completed the service.’
In light of the above, the landlord’s 26 February 2021 response was inappropriate. It also failed to address the specific questions and queries that the resident had raised in his 30 December 2020 complaint, or make any reference to the delay in providing a reply.
The resident again made his complaint clear in his request for review. The landlord’s final response again appears not to have understood the complaint, and failed to provide a response to the concerns that the resident had raised.
Given that the landlord had not understood the complaint being made, it cannot be said to have ‘fully investigated’ it in line with its complaint policy. Very little investigation or consideration of the matter took place.
This Service has investigated a number of other complaints about the landlord from a similar period which identified the same issues of inadequate complaint investigations and responses, suggesting that these were not one-off failings. The landlord has recently confirmed that it has now completed the Housing Ombudsman’s Complaint Handling Code self-assessment: The Complaint Handling Code sets out how the Ombudsman expects landlords to handle complaints, setting out good practice that will allow landlords to respond to complaints effectively and fairly. Following the Code should help to ensure that in future the landlord provides satisfactory responses to all complaints.
However, given the failings identified in the complaint handling in this case, an order is made to ensure that the landlord can ‘learn from outcomes’. Further, the landlord has itself noted on its self-assessment that it has not always kept residents informed where timescales for complaint responses have been extended. The order made below is specific to this complaint, but may assist the landlord in addressing any wider issues such as this in its complaint handling.
An order is also made to address the adverse effect the failings in the complaint handling had on the resident. The poor response to the issues raised was frustrating and also led to the time and trouble that he has taken in pursuing this matter through to the Ombudsman, which could have been avoided had the landlord undertaken a satisfactory investigation and provided a better response. As such, an order is made below to ‘put things right’ for the resident.

Determination (decision)

In accordance with section 54 of the Scheme, there was:
1. maladministration in the landlord’s handling of the gas safety check,
2. maladminisatrtion in its handling of the subsequent formal complaint about the matter.

Reasons

It was not unreasonable for the landlord to have issued a letter despite an appointment having already been made. However, its process was not correctly followed, which meant the resident received the forced entry letter with no prior warning.
The landlord failed to provide any response to the resident’s 30 December 2020 complaint for two months. It then failed to understand and provide a reasonable response to the complaint, maintaining that the resident had not complied with the letter process by not making an appointment, when it was very clear that this was not the case, and in fact it had not followed the letter process itself. These failings have led to frustration, time and trouble to the resident.

Orders

Within one month of the date of this report, the landlord must pay the resident a total of £275, comprised of £100 for the distress and frustration caused by the failings in the handling of the gas safety check, and £175 for the failings in the complaint handling.
Within one month of the date of this report, the landlord must review the four-letter process with contractors, to ensure that this is being followed correctly, and inform the Ombudsman of the outcome of this.
Within six weeks of the date of this report, the landlord must carry out a review of the complaint handling in this case, which should set out:
1. The cause of the failings identified, including why the complaint was not appropriately investigated with consideration given to relevant records, why the complaint responses did not appropriately address the complaint made, and why responses were significantly delayed, and updates were not provided.
2. Whether or not action has already been implemented to ensure these failings are not repeated, and;
3. If not, what further action is needed to reduce the risk of these failings happening again, and how and when this will take place.
4. A copy of the landlord’s review should be shared with the Ombudsman

Recommendations

The landlord should review the wording of letters two to four when sent in cases such as this where an appointment has already been made and there has been no failed access, so that they appropriately reflect the situation.