Birmingham City Council (202119233)

REPORT

COMPLAINT 202119233

Birmingham City Council

22 February 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 resident has complained about:
1. The landlord’s handling of annual gas safety checks at the property and its decision that the checks were necessary.
2. The landlord’s handling of the associated formal complaint has also been considered.

Background

The resident has a secure tenancy of a two bedroom house (the property) granted by the landlord in 2017.
Since 2017 the landlord’s contractors have carried out annual gas safety checks at the property. Operatives carrying out these inspections completed records of their visits which show that the inspections found the property to have no gas appliances and a gas meter that was capped off. A gas safety certificate was issued to the resident after each of these visits.
In October 2021, the resident complained that she was unhappy to be required to provide access for annual gas safety checks. In her complaint, she stated that she had taken advice from the Health and Safety Executive (HSE) who confirmed that, since she had no gas appliances or connected gas supply to the property, these checks were not required. She further added, in escalating her complaint, that the capped gas supply pipe outside her property had not been inspected by its owner.
In its decisions of October and November 2021 to the complaint, the landlord stated that the contractor had advised that, regardless of whether the resident had gas, the landlord was required by law to provide an annual certificate because this was a council property. In reiterating its position it explained that the contractor had advised “this is the process and by law the landlord needs a Cp 12 (Gas Safety Certificate) every year”.

Assessment and findings

Handling of the gas safety checks

The landlord’s tenant’s handbook (gas safety and repairs service sections) explains that “By law, every year we must carry out a gas safety check in every property which has a gas supply whether you use it or not”. The handbook also sets out the resident’s responsibility to allow entry for the inspections and what steps the landlord would need to take if entry was refused.
In the resident’s communications with the landlord she maintained that there was no gas supply to or in her property. The evidence provided to this Service indicates that the gas service pipe outside her property was controlled by a third party and not by her landlord. On this basis, the resident stated that it was therefore not subject to landlord gas safety legislation. She sought advice from the HSE that gas safety inspection reports should have recorded that a gas safety certificate could not be completed because there was no gas appliances or gas supply present and referred its response to her landlord. The resident explained her frustration in having to arrange time off work to allow access for visits which she believed were unnecessary.
Records of annual gas inspection visits by the landlord’s contractors confirm that the resident’s property has no gas appliances and that the gas meter is capped off. This records, since 2017, include phrases such as “no gas appliances just carcass.” This indicates that there was sufficient information to alert the landlord about the need to seek clarity on the necessity of the checks.
The landlord has standard operating procedures for its contractors covering the situation where there is no gas supply to or in the property. Under this process, the contractor is required to advise the landlord’s area gas team that the property will not require a gas safety check. The landlord’s gas team is then to arrange a visit to the property within two months of the contractor’s report, to validate the contractor’s findings and if confirmed will remove the property from the gas servicing programme.
The resident told the landlord that the HSE had pointed out that a gas safety certificate issued for a property where no gas appliances had been checked was invalid. The resident asked the landlord to explain why its interpretation of the legislation was different from that of the HSE. The landlord’s response to the resident’s communications on this, as well as its formal complaint decision, do not indicate that it gave proper consideration to this query.
Despite the evidence from annual inspection visits over a period of 5 years, the landlord did not investigate whether the external gas supply to the property was active. Its contractor continued to issue gas safety certificates without being able to check the safety of gas appliances or supply at the property since these were not present. The landlord stated in its response to the complaint that a supervisor from the contractor would contact the resident to explain the requirement. A representative of the contractor did telephone the resident and restated its position that a safety inspection was required.
It is expected that the evidence from inspection visits should have prompted an inquiry by the landlord of the justification for keeping the property in the gas servicing programme, but this did not happen. Instead, the landlord continued to base its actions and the complaint decision on the contractor’s advice, with no steps being taken to seek to verify whether this was accurate. It would have been reasonable, in view of the issues raised by the resident, for the landlord to have investigated whether its contractor had adhered to its procedures for reporting properties without a gas supply in this case. On the contrary, the landlord missed several opportunities to assess the situation and put things right.
An inspection visit by the landlord’s contract works officer, after its final decision on the formal complaint, also confirmed that there is no active gas supply to the property. This means that the landlord does not have a duty to carry out gas safety checks at the property, in light of the provisions of its standard operating procedures as stated earlier in this section, and it should not have required access for this purpose.
Because her property remained in the inspection programme, the landlord required the resident to allow access each year to carry out gas safety inspections. The resident stated that she needed to arrange time off work for these visits. She further stated that her employer required several weeks’ notice to be given before allowing paid time off. When the resident was notified of inspection visits on shorter notice than her employer required, she was obliged to rearrange the appointment for a date with longer notice. Rearranging dates in this way prompted the sending of a default final warning letter to the resident which inaccurately referred to failed attempts to gain entry and threatened enforcement action. In the circumstances, the resident found these letters heavy handed and unreasonable.
Overall, this Service finds that the landlord failed to fully investigate the matter and continued to support the contractor’s decision to arrange the gas checks without providing proof of its reasons for doing so. It has not demonstrated that it took the resident’s concerns seriously up to the conclusion of its internal complaints process. Vitally, there is no evidence that it took the time to consider the communication between the resident and the HSE, which should have led to a more thorough assessment of the situation. As a result, the resident expended time and effort in raising this issue with the landlord and pursuing an objective consideration of the matter. This is in addition to the inconvenience and distress to her of the landlord’s communications of inspections to take place and warnings that she had not granted access for visits that had, in fact, not taken place.
From the foregoing, this report concludes that compensation to the resident is warranted for the landlord’s handling of the matter. The landlord’s policy for compensation claims does not allow for financial compensation for a resident’s inconvenience and distress. However, the Housing Ombudsman’s Remedies Guidance sets out the appropriate level of compensation for cases where “the landlord has failed to acknowledge its failings and/or has made no attempt to put things right.” The order with respect to this aspect of the case has considered the overall impact of the landlord’s actions and omissions on the resident.
In July 2022, following enquiries from the Housing Ombudsman regarding the complaint, the landlord arranged to inspect the property. This inspection by the landlord’s confirmed that there was no gas supply at the property and that gas had been isolated outside the property. It concluded that the property could be removed from the inspection programme. It is imperative to note that the Ombudsman has seen no evidence that this decision has been communicated to the resident.

Handling of the resident’s complaint

The landlord’s customer guide sets out its approach to handling complaints. It undertakes to listen carefully, carry out investigations fairly and improve relationships with customers. Specifically at stage 2 of the formal process, the guide states that the complaint “will be looked at by an independent officer”.
There is no evidence that the formal complaint was handled fairly as the decision, at both stages of the complaints process, was made by the same staff member of the landlord. This is a practice which is likely to impede on objectivity in decision making and indicates that the landlord’s management of formal complaints requires review. Significantly, it is also at variance with the landlord’s guidance.
As already stated in the preceding paragraphs, there is no evidence that the landlord attempted to provide the legal basis of undertaking the gas safety checks. This is particularly concerning because the resident advised it that the HSE had provided her with information which differed from its position on the issue. It is possible, although not certain, that this noted inadequacy of its investigation could have been identified at the second stage of the complaint if it had been handled by a different staff member with no involvement in the earlier stage.
This report, concludes that the landlord failed to adhere to its policy, good practice and the Ombudsman’s Complaint Handling Code in its handling of the formal complaint. An order for compensation for this aspect of the complaint has been made below in recognition of the landlord’s failures and in accordance with the Ombudsman’s Remedies Guidance.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of:
1. Its handling of annual gas safety checks at the property and its decision that the checks were necessary.
1. Its response to the resident’s formal complaint on the issue.

Orders

It is ordered that the landlord:
1. Pays the resident the total amount of £250 in compensation comprising:
  1. £150 for its handling of her reports about the gas safety checks.
  2. £100 for the failures identified in its handling of her complaint.
1. Provides evidence to the resident and to this Service that its records accurately state that there is no gas supply to or in the property.
2. Sends a written apology to the resident for the failures identified with respect to its handling of the gas safety checks and confirm that the property is no longer included in the gas safety inspection programme.
The landlord is required to provide evidence compliance with the above orders to this Service within 28 days of the date of this report.

Recommendations

The landlord should strongly consider reviewing its complaints handling practices in line with the Housing Ombudsman Services Complaint Handling Code and the Ombudsman’s special report on Birmingham City Council published in January 2023.