Community Gateway Association Limited (202002560)

REPORT

COMPLAINT 202002560

Community Gateway Association Limited

29 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 the landlord’s:
1. Handling of the annual gas safety inspection at the resident’s property during the Covid-19 pandemic;
2. Handling of an asbestos survey at the resident’s property during the Covid-19 pandemic;
3. Complaint handling.

Background and summary of events

Background

The resident is the tenant of the property which the complaint concerns. The landlord owns the property.

Summary of events

On 29 April 2020 the landlord wrote to the resident setting out that the gas appliance and smoke detectors in the property were due for their annual service (letter A). The landlord confirmed that an appointment had been made for 13 May 2020 and asked the resident to contact it if it was not convenient. The letter set out that during the appointment the contractor would adhere to social distancing rules and wear the correct Personal Protective Equipment (PPE). The landlord also explained within the letter that it was legally required to carry out the inspection and “failure to provide access [would] lead to legal proceedings”.
On 1 May 2020 the resident wrote to the landlord advising that he did not “think it advisable” to agree the appointment due to the pandemic. The resident said that the appointment could go ahead once the lockdown had ended.
On the same day the landlord responded. The landlord said that the contractor would wear full PPE during the appointment to stop cross contamination of the Covid-19 virus. The landlord explained that the gas inspection was a legal requirement and was especially important now that the resident was spending long periods of time in the property. The landlord confirmed that if the resident refused access it would follow its usual procedure to gain access – to take legal action. The resident responded by confirming that until the pandemic was over no access would be given for the appointment.
On 14 May 2020 the landlord wrote to the resident regarding the gas safety inspection (letter B). The landlord set out that it was writing as the resident had missed the appointment on 13 May 2020. The landlord confirmed that it had made another appointment for 21 May 2020. The landlord reiterated failure to provide access would lead to legal proceedings and the contractor would adhere to social distancing rules and wear the correct PPE.
On 15 May 2020 the resident wrote to the landlord to confirm that he would not be granting access for the gas inspection at that time due to the pandemic and requested that the appointment on 21 May 2020 was cancelled. The resident explained that he was “self-isolating” in line with the Government’s advice as he had “underlying health conditions” The resident reiterated that he would grant access for the inspection once it was safe to do so. Within his correspondence the resident raised concerns regarding the landlord’s PPE. Also on 15 May 2020, in separate correspondence, the resident said that he had checked the Government’s advice on gas checks during the pandemic and it set out a check may be postponed when a tenant was vulnerable. The resident confirmed that he was vulnerable.
On 19 May 2020 the landlord wrote to the resident to ask if he was “self-isolating” or “shielding”. In response the resident confirmed that he was in the “vulnerable group as defined by the Government”. Later that day the resident sent a photo of his medication to the landlord to demonstrate his status as a vulnerable person.
On 21 May 2020 the resident wrote to the landlord setting out that he had just refused access for the gas inspection. The resident said that the contractor was only “wearing a J-cloth type mouth covering and rubber gloves”.
On 22 May 2020 the resident asked the landlord to provide him with a copy of its guidelines regarding health and safety during the pandemic. The resident asked the landlord if it could “postpone” the inspection until a time when he was “no longer shielding”.
On 22 May 2020 the resident also wrote a letter of complaint to the landlord regarding the annual gas inspection (complaint A). The resident said that letter B was “designed to instil fear of penalty, to cause worry, concern and stress”. The resident stated that letter B was issued after his contact setting out that he would not grant access to the property until the Government issued guidance confirming that it was safe. The resident said his decision to not grant access was because he fell within the “vulnerable group”. The landlord has advised that it did not receive a copy of this correspondence at that time.
On 26 May 2020 the landlord wrote to the resident providing a link to the latest guidelines in relation to annual gas inspections. The landlord confirmed that it had considered the resident’s request to postpone the inspection however as the property’s boiler was over 10 years old it was important that it was checked due to the risk of carbon monoxide poisoning. The landlord confirmed that appropriate PPE would be worn during the appointment.
On the same day the resident confirmed that he would allow access for the appointment on the following conditions:
1. The contractor to enter and leave the property via the rear garden.
2. The contractor to sanitise their hands and then put on a paper suit in the garden before entering the property.
The resident confirmed that he was able to provide the sanitizer and paper suit if necessary.
On 29 May 2020 the resident wrote to the landlord setting out that it had not provided him with a copy of the guidelines it was following to “identify vulnerable persons”. In response the landlord confirmed that it did not identify vulnerable persons, it was the Government who identified those people who were clinically extremely vulnerable. The resident confirmed that he was not happy with the landlord’s response regarding the guidance.
Also, on 29 May 2020 the landlord confirmed that the gas inspection had been scheduled for 1 June 2020 and he would be the first appointment of the day, as he had requested.
On 1 June 2020 the annual gas inspection was completed.
On 22 June 2020 the resident submitted a formal complaint about the landlord to his local councillor regarding the “enforced annual gas check” (complaint B). In summary the resident said:
1. He was in the “extremely vulnerable group that Covid-19 kills”.
2. He asked for the gas inspection to be delayed but his request was refused.
3. The landlord’s contractors were issued with PPE that protected themselves but not tenants.
4. During the appointment on 1 June 2020 the contractor sanitising “was poor at best”.
5. The landlord was making medical decisions that it was not trained to make.
6. The reasons given for the urgency of the gas inspection was carbon monoxide. The resident said that more people were dying from Covid-19 than carbon monoxide poisoning currently.
7. The landlord failed to respond to his earlier complaint, complaint A, about the gas inspection.
8. The landlord had shown more care for itself than for tenants.
On 7 July 2020 the landlord provided its stage one response to complaint B. In summary the landlord said:
1. It requested documentation from the resident confirming his status as vulnerable person however he did not provide this.
2. It has and would continue to follow Government guidance in relation to gas servicing. The landlord noted that the guidance set out that work could be carried out in the homes of the clinically vulnerable.
3. On 1 June 2020 the resident agreed to allow the gas inspection to take place if certain conditions were met. The landlord confirmed that the resident’s conditions were met and the appointment went ahead.
4. It did not accept that the PPE which it provided was insufficient and did not protect tenants. The landlord stated that the health and safety of its tenants and staff was “paramount”. All of its operatives had been provided with a written risk assessment which documented the steps they must take to protect the customer and themselves, including sanitising “both themselves and their equipment, maintaining social distancing, and the use of PPE”. The landlord noted that during the appointment on 1 June 2020 the contractor used a PPE suit provided by the resident.
5. It did not make medical decisions about its tenants. The landlord said that it followed Government advice in relation to tenants classed as vulnerable or shielding. The landlord reiterated that the resident did not provide evidence confirming his status as vulnerable.
6. While it noted the resident’s comments in relation to the number of deaths caused by Covid-19 it was required to complete the gas inspection by law.
7. It had responded to the resident’s complaint in line with its complaint procedure.
8. Throughout the pandemic it had “ensured that Government guidance was followed in all areas”. The landlord confirmed that this included launching a support hub, providing food parcels, prescription collection and monthly check ins.
On the same day the resident asked to escalate complaint B to stage two as he disagreed with its response. The resident also advised that the landlord had not responded to complaint A. In response the landlord confirmed that complaint B would be escalated and added that it had not received complaint A. The Ombudsman understands that the resident provided a copy of complaint A to the landlord.
On the 10 July 2020 the resident asked to add to his complaint. The resident said that a contractor had attended the property “without [an] appointment” earlier that day in relation to an asbestos survey. The resident said that this was “contrary to [the] Customer Charter”.
On 12 July 2020 the landlord responded to complaint A. In summary the landlord said:
1. It was sorry that the resident was concerned regarding the tone of its letters regarding the gas inspection.
2. It has a “strict policy” in place which offered all tenants three opportunities for it to undertake the legal gas safety check. The landlord explained that it has a duty of care, “as well as a legal obligation” to ensure that its tenants were not exposed to carbon dioxide poisoning”.
3. It was appropriate to inform the resident that legal action may be taken where access was refused for the gas inspection.
4. The resident had granted access for the appointment and the annual gas check was now complete.
On 13 July 2020 the landlord provided its stage two response to complaint B. In summary the landlord said:
1. Government advice set out that the annual gas inspection should go ahead in some circumstances where a tenant was shielding, and in those circumstances appropriate arrangements should be made to ensure that the inspection was conducted safely.
2. On receipt of the resident’s request to postpone the gas inspection its Gas Manager reviewed the request. The landlord confirmed that the conclusion of the Gas Manager was that due to the age of the property’s boiler it was necessary to complete the inspection.
3. The resident agreed for the inspection to go ahead as long as his specific requirements were met – which it did. The landlord confirmed that the requirements included that the resident’s appointment was the first scheduled of the day, the contractor used the rear door to enter and leave the property, the contractor use a paper suit and undertake “stringent” hand sanitising.
4. It completed a full risk assessment for gas servicing during Covid-19. The landlord explained that all contractors were provided with the required PPE and received training and supervision in its correct use. The landlord confirmed that contractors were also provided with hand sanitiser and trained to use it “before, during and after entering” a tenant’s property. The landlord noted that PPE was designed to protect both its staff and its tenants.
5. It had never made any medical decisions in relation to its tenants. The landlord confirmed that it had asked its tenants to provide evidence of their “shielding status” if they were vulnerable, not details of their conditions. The landlord confirmed that the resident did not provide any evidence demonstrating that he was shielding. The landlord apologised if its request was not clearly explained.
6. While it noted the resident’s concerns regarding the number of deaths caused by Covid-19 it was a legal requirement to complete the annual gas service.
7. It had responded to the complaint in line with its complaint procedure. The landlord confirmed that the Councillor had forwarded complaint B to it on 6 July 2020 and therefore it could not have responded any sooner.
8. Throughout the Covid-19 pandemic it had ensured Government guidelines had been followed.
9. In relation to complaint A it was satisfied that its letters were not designed to instil fear of penalty. The landlord confirmed that the letters were standard letters issued to all tenants where it had not been able to gain access to a property to complete the annual gas inspection.
10. It would respond to the resident’s complaint in relation to an unannounced visit separately (complaint C).
The landlord confirmed that if the resident was not satisfied with its response he may refer the matter to the Ombudsman for adjudication.
On 13 July 2020 the landlord wrote to the resident to request to speak with the resident to discuss complaint C. The resident declined the request.
On 15 July 2020 the resident said that he considered the announced visit by the asbestos surveyor as “harassment” as a letter should have been sent about the visit beforehand. The resident noted that he had “stopped” the landlord contacting him by phone some time ago
On the same day the landlord responded. In summary the landlord said:
1. It was sorry if the resident viewed the unannounced visit as harassment as this was not its intention.
2. It has a legal duty to ensure that it has accurate asbestos information.
3. It did arrange all its asbestos surveys via phone call and appointment letters but there were occasions when its asbestos surveyor was within the same street and area to other properties that were due an asbestos survey and with that they would try and gain access to non-appointed properties. The landlord confirmed that “most of [its] residents were fine with this way of working however [it appreciated] it could be a concern to others”.
4. The asbestos surveyor attended the property unannounced as they were in the area and were aware that the property’s asbestos survey was outstanding.
5. It had updated the resident’s record to note his contact preference for communication to be in writing only.
6. It would like to arrange an appointment for the asbestos surveyor to complete that was of convenience to the resident.
7. It would ensure that its operatives checked a resident’s alerts before “cold calling”.
On 20 July 2020 the landlord responded to complaint C at stage one of its complaint procedure. In summary the landlord said:
1. The asbestos surveyor was in the area and approached the property as they were aware that the property’s asbestos surveyor was outstanding.
2. The surveyor left the property on learning that the resident did not wish to grant access for the survey or to discuss the matter.
3. It would continue to create appointments for the asbestos survey until it was completed.
4. It was unable to offer a weekend appointment as requested by the resident however it was able to offer a shorter time slot on a weekday.
On the same day the resident requested to escalate complaint C. The Ombudsman has not been provided with a copy of the request.
On 27 July 2020 the landlord responded to complaint C at stage two of its complaint procedure. In summary the landlord said:
1. The purpose of approaching the property was due to the property requiring an asbestos survey. The landlord explained that there is a “legal duty on landlords to ensure all [its] properties are free from hazards”.
2. It had made “previous attempts over recent years” to make an appointment to complete the asbestos survey. The landlord noted that the property was “one of very few properties which still [required] the survey to be completed”.
3. The Customer Charter had been replaced by its Service Standards, available on its website. The landlord explained that the asbestos surveyor was attending a neighbouring property and noticed the resident was home and therefore approached him to see if it was convenient to complete the survey or to arrange an appointment. The landlord confirmed that the surveyor left immediately when the resident indicated that he was not satisfied with the contact.
4. It was able to offer a weekend appointment to complete the survey as requested by the resident.
The landlord concluded by confirming that while the surveyor had attended the property unannounced it was “satisfied that there was a genuine reason for this”. The landlord said that, while the unannounced visit was not in keeping it its Service Standards, it was done with the best of intentions and therefore it did not constitute harassment. The landlord set out that the resident may refer the matter to the Ombudsman if he was not happy with its response.
The asbestos survey was scheduled for 1 August 2020 however did not proceed as the resident cancelled it due to the rise of Covid-19 cases within the area. The resident said he would allow access when the number of local cases decreased.

Assessment and findings

The landlord’s handling of the annual gas safety inspection at the resident’s property during the Covid-19 pandemic

The landlord is legally bound to carry out annual gas safety checks on its tenanted properties. This obligation is documented within the landlord’s Gas Procedure (the procedure) which sets out that “in accordance with the requirements of the Gas Safety Regulations 1998, the associated approved code of practice and guidance issued by the Health and Safety Executive and Gas Safe, [it] will ensure that an annual gas safety inspection is carried out by a competent Gas Safe registered engineer in all its properties”. The Ombudsman notes that the resident does not dispute that the landlord is obliged to carry the annual gas inspection and he has not questioned the landlord’s right to enter the property for this purpose outside of the Covid-19 pandemic.
The Ombudsman understands the resident’s concerns and reasons for wanting to delay the gas safety inspection. The Ombudsman also recognises that the pandemic has required landlords to work in challenging and unprecedented circumstances. Landlords have had to balance meeting the needs of its residents and providing a day to day housing management service whilst ensuring that appropriate measures are in place for the safety of residents and staff. Whilst the Government has provided guidance during this period, the situation and guidance has changed and evolved over the lockdowns and subsequent periods. This has meant that landlords have often had to adopt a pragmatic approach towards various issues, while considering individual residents’ particular circumstances.
In response to the Covid-19 pandemic the Government issued new legislation and guidance setting out how a landlord should deliver its services during the pandemic. Of particular relevance to this complaint the Ombudsman notes the following:
1. On 28 March 2020:
  1. Landlords should make every effort to abide by existing gas safety regulations but there should be a pragmatic, common-sense approach to enforcement. The guidance noted that where a landlord was not able to gain access to a property due to restrictions in place to tackle Covid-19, the landlord should document its attempts to do so and all correspondence with the tenant.
  2. Landlords must follow sensible precaution to keep its residents and contractors safe when visiting the property.
2. On 18 May 2020:
  1. Landlords should make every effort to carry out annual gas safety inspections. If the resident is shielding the landlord should assess the risk presented taking into account factors such as the age and type of appliance, previous maintenance history and date of the last gas check. In some situations this might indicate that the gas safety inspection should still go ahead.
The landlord has provided the Ombudsman with copies of its literature and risk assessment in relation to Covid-19 on “boiler services” and “safe systems of work”. The documents demonstrate to the Ombudsman that the landlord was taking appropriate steps to respond to Government guidance on Covid-19 in order to work safely and to protect both its staff and tenants. The documents cover social distancing, hygiene and PPE and were in place at the time of the complaint.
In response to the resident’s report that he was classified as a vulnerable person during the Covid-19 pandemic the landlord asked the resident to confirm if he was self-isolating or shielding. The Ombudsman notes that there is a distinction between the terms. The first term meaning a person has potentially been exposed to the virus or is actually infectious with it and therefore they would then be obliged to quarantine for a finite period of time. By contrast, the term ‘shielding’ is usually applied to someone who does not have the virus and does not want to risk catching it, typically because they have a pre-existing condition which renders them more vulnerable to its effects or because of their age. In this situation, their self-imposed quarantine is indefinite. In the Ombudsman’s opinion the landlord’s enquiry demonstrated that it was seeking to establish the resident’s status in order to determine its response to his request to postpone the annual gas inspection on medical grounds. This was appropriate as the resident had said he was both self-isolating and shielding. In response the resident confirmed that he was shielding as he was vulnerable.
The evidence shows that in response to the resident’s confirmation that he was shielding the landlord directed him to guidance from the Gas Safe Register. The landlord explained that it in line with the guidance it had risk assessed the resident’s request to postpone the annual gas inspection on medial grounds considering the boiler’s age and type. In the Ombudsman’s opinion this was appropriate to show that it was acting responsibly and in line with published guidance and best practice. The Gas Manager said “the boiler [was] over 10 years old and in [his] professional opinion could pose a risk of carbon monoxide poisoning”. In the Ombudsman’s opinion it was reasonable for the landlord to rely on the professional opinion of the Gas Manager to determine that it was not appropriate to postpone the inspection until the pandemic was over due to the potential risk posed by the boiler, despite the resident’s request on medical grounds.
Following the risk assessment the resident agreed to allow the annual gas inspection to go ahead on 1 June 2020 if certain conditions were meet as detailed in paragraphs 13 and 16. The evidence shows that the landlord agreed the resident’s conditions. In the Ombudsman’s opinion this was appropriate to try to reassure the resident that it was seeking to minimise any risks to him during the appointment.
The landlord’s Gas Procedure (the procedure) sets out the steps the landlord will take to ensure that it completes the annual gas inspection in a property. Where a tenant repeatedly refuses access for the inspection the procedure sets out that the landlord will commence legal proceedings in order to gain access to the property.
While the resident has raised concerns over the content of letter B, suggesting that the tone and language used was inappropriate, in the Ombudsman’s opinion the letter was reasonable. Given that the landlord was obliged to carry out the annual gas inspection it was appropriate that it gave warning to the resident that it would take enforcement action where access was not granted, as detailed in the procedure.
The Ombudsman can see that the letter B was issued after the resident requested postponement of the annual gas inspection. The Ombudsman also notes that the landlord informed the resident on 1 May 2020 that it would follow its usual procedure if access to complete the inspection was not granted following explanation of the Covid-19 safety precautions it would take during the appointment. In the Ombudsman’s opinion the landlord’s action in issuing letter B after the resident had refused access for the inspection was therefore not unreasonable. The Ombudsman notes that in initially requesting to postpone the inspection the resident did not cite medical grounds.

The landlord’s handling of an asbestos survey at the resident’s property during the Covid-19 pandemic

As part of the complaint procedure the landlord acknowledged that its asbestos surveyor attended the resident’s property unannounced on 10 July 2020 to discuss the outstanding asbestos survey for the property. The landlord apologised that the unannounced visit had caused distress to the resident and explained why the asbestos surveyor had attended the property without an appointment, as detailed in paragraph 27.
In the Ombudsman’s opinion, the unannounced visit does not amount to a service failure as the landlord apologised that the action had caused upset to the resident which was proportionate to the service failure identified. This also takes into account that the unannounced visit was following updated guidance from the Government in relation to Covid-19 on 1 June 2020 which set out that landlords could “now take steps to address wider issues of repairs and safety inspections”. Further the landlord explained that the need for the survey had been outstanding for some time and needed to be completed to meet its legal obligations and ensure the safety of the resident. The Ombudsman notes that it is not disputed that the asbestos surveyor left the property immediately on learning that the resident did not wish to discuss the matter at that time.

The landlord’s complaint handling

The resident has raised concerns over the landlord’s handling of complaint A, specifically that it failed to respond to it in accordance with its complaint procedure. The Ombudsman notes that it is the landlord’s position that it did not receive complaint A until July 2020 and therefore it could not respond to it at the time it was written as it was not aware of it.
The Ombudsman is not able to determine whether the landlord received complaint A shortly after it was issued, and therefore failed to respond in line with its complaint procedure, as there is no evidence to confirm whether the complaint was received by the landlord at the time it was written. The Ombudsman notes that complaint A was handwritten and does not show how it was sent to the landlord.
On receipt of the complaint in July 2020 the landlord provided a prompt response to address the outstanding issues on 12 July 2020. The Ombudsman can also see that the landlord formally addressed complaint A within its final response to complaint B on 13 July 2020. The Ombudsman is satisfied that the landlord responded to complaint A appropriately following receipt.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its:
1. Handling of the annual gas safety inspection at the resident’s property during the Covid-19 pandemic;
2. Handling of an asbestos survey at the resident’s property during the Covid-19 pandemic;
3. Compliant handling.

Reasons

The landlord’s handling of the annual gas safety inspection at the resident’s property during the Covid-19 pandemic

The Ombudsman understands the resident’s concerns and reasons for wanting to delay the gas safety inspection. The Ombudsman also recognises that the pandemic has required landlords to work in challenging and unprecedented circumstances.
In refusing the resident’s request to postpone the annual gas inspection the landlord acted in line with Government guidance, which set out that landlords should make every effort to undertaken inspections where possible. This included by assessing the risk presented by the boiler if the inspection was postponed.
The landlord agreed the resident’s specific conditions in order for the annual gas inspection to take place on 1 June 2020.
Given that the landlord was obliged to carry out the annual gas inspection, it was appropriate that it gave warning to the resident that it would take enforcement action where access was not granted within letter B. While letter B was issued after the resident requested postponement of the inspection, it was issued after the landlord confirmed that it would follow its usual procedure if access to complete the inspection was not provided.

The landlord’s handling of an asbestos survey at the resident’s property during the Covid-19 pandemic

The landlord apologised that the unannounced visit by the asbestos survey had caused upset to the resident which was proportionate to the service failure identified. This takes into account that the unannounced visit was following updated guidance from the Government on 1 June 2020 which set out that landlords could “now take steps to address wider issues of repairs and safety inspections” and that the landlord explained that the need for the survey had been outstanding for some time and needed to be completed to meet its legal obligations and ensure the safety of the resident.

The landlord’s complaint handling

On receipt of complaint A in July 2020 the landlord promptly responded to the complaint to address the outstanding issues. It is not possible for the Ombudsman to determine whether the landlord received complaint A shortly after it was issued, and therefore failed to respond in line with its complaint procedure, as there is no evidence to confirm whether the complaint was received by the landlord at the time it was written.