Gentoo Group Limited (202006624)

REPORT

COMPLAINT 202006624

Gentoo Group Limited

22 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

1. The complaint is about the landlord’s offer of compensation in relation to the resident’s reports of: a gas leak at the property; its failure to carry out repairs effectively; and contact by a particular member of staff after it had been agreed that they would not have any contact with the resident.
2. The resident is supported in her complaint by her brother-in law. At times, both the resident and her brother-in-law have either met with or corresponded with the landlord. In the interests of clarity and brevity, both the complainant and her brother-in-law are referred to as the ‘the resident’ in this report.

Background and summary of events

The gas leak

3. The property had once been two separate flats but had been converted at some point into a single dwelling. According to the landlord’s chronology, on 25 July 2019, the resident was advised to contact Northern Gas Network (NGN) in relation to a gas smell. NGN attended the same day and a section of the front lawn was subsequently dug up and a secondary gas supply was capped off. 
4. The resident claims she raised the smell of gas with the landlord in the previous months, and during various telephone calls, but no specific dates are given and no notes of any calls have been provided. The landlord has provided a chronology of events leading to the pipe being capped off. This included annual gas safety checks by the landlord’s contactor in June 2018 and April 2019, and a visit by NGN in September 2018 where ‘no trace’ of gas was found. The landlord has also provided annual gas safety checks up to 2020, together with any repair work carried out internally to the property by its gas contractor.
5. The landlord wrote to the resident on 11 November 2019 as part of its formal complaint process. It stated that the gas service pipe was the responsibility of NGN) and the pipe had been capped and was now safe. It highlighted that this was not something that would be picked up on an annual gas safety check. It also noted that, when the property was converted, whilst the pipe should have been capped off at the time, this was work that should have been undertaken by NGN, rather than the landlord. It had certification from the local authority to show that all work carried out was done to an approved standard.
6. On 29 November 2019, the resident asked to escalate the complaint on the basis that the landlord had a duty of care regardless of whether the gas leak was inside or outside the dwelling, and that it should have known that when the conversion took place, there were two gas supplies. She stated that the landlord was potentially vicariously liable by knowing of a health and safety risk and that it had a responsibility under S11 of the Landlord and Tenant Act 1985.
7. In the landlord’s stage two response of 28 February 2020, it noted that the resident said she had reported the matter on several occasions, but it had no records of this on either its electronic system, or from any members of staff. It reiterated that the redundant gas pipe was the responsibility of NGN, both in terms of the location and the original work to convert the property. It then highlighted that it had offered to install a gas monitor at the property, but the resident had not accepted this offer.

Repairs and work carried out by the resident

8. During July and August 2019, the resident raised a number of repairs with the landlord, including: small areas of pointing to the front, gable and rear walls; the gable window not closing properly; gaps or openings in the external brickwork; two broken extractor fans; and damage to the floor caused by the plinth heater in the kitchen.
9. In addition, the evidence suggests that the resident had installed LED lights in the property and the landlord asked for confirmation that relevant safety standards had been met. The resident advised that the landlord’s electrician had verbally confirmed that the lights were above the minimum safety standard.
10. Between August and November 2019, the landlord and resident regularly corresponded in relation to the repairs. On several occasions the landlord asked to push back the completion date and a final inspection date was agreed for 15 November 2019.
11. Meanwhile, on 11 November 2019, the landlord wrote to the resident to explain that the plinth heater had been checked by its electricians and was safe to use, although it recommended not using it at the highest setting for prolonged periods.  It offered to remove the heater if this was preferrable. It also told the resident that, whilst it was satisfied with the report from its electrician in respect of the LED lights, it still required certification from the installing electrician.
12. In the landlord’s stage two response of 28 February 2020, it acknowledged the resident’s concerns about the repairs process and the number of visits it took to resolve them. It did not acknowledge any delays in carrying out the works but acknowledged the inconvenience of having different tradespeople attending on different days and said it was trying to improve how it worked.

Member of staff

13. On 14 June 2019, following a telephone conversation with a member of staff, the resident raised concerns about how she had conducted herself. The landlord met with the resident on 11 July 2019 and it was agreed that any further contact between the resident and the landlord would be made through two specific named members of staff.
14. On 12 August 2019, the resident received a letter from the member of staff who was not supposed to contact her. She raised this with the landlord on 20 August 2019 but there does not appear to have been any response. In an email dated 13 February 2020, the resident claimed that the member of staff had since contacted her ‘multiple times’ but gave no dates or any further details. Despite these issues being raised as part of the resident’s request to escalate her complaint, the landlord did not address the incidents or allegations during the complaints process.

Compensation

15. In its letter to the resident of 15 November 2019, the landlord acknowledged that it could have handled matters better. It apologised and offered £500 compensation for any inconvenience caused. A meeting was held between the landlord and resident on 31 January 2020 to negotiate compensation.  Following this, the resident emailed the landlord on 13 February 2020, detailing her request for £2,500 compensation plus 7 days annual leave taken to deal with the repairs; £500 for a half day absence from work due to stress caused by the landlord ‘victimising’ her; and £3,240 for additional heating costs due to repair and insulation issues. This totalled £5,990. 
16. However, the resident went on to request £20,000 for ‘unimaginable stress and victimisation’; her kitchen to be refitted with a newer kitchen; a replacement combi boiler; works to stop excess wind blowing into the kitchen; and a thermal imaging survey to be carried out. The email said that if a suitable level of recompense was agreed it ‘may be possible to dissuade persons from bringing this out via the press, social media and [the local authority].
17. In correspondence with this Service dated 21 January 2021, the landlord has stated that its goodwill gesture of £500 is still open to the resident, as is its offer to bring forward her planned kitchen renewal date and an offer to install a gas monitor.

Assessment and findings

The gas leak

18. In accordance with the terms of the tenancy agreement and the Landlord and Tenant Act 1985, the landlord is responsible for keeping in repair and proper working order the installations in the dwelling for the supply of gas. The legislation is specific in that it refers to installations and pipework within the dwelling. What is less clear is whether the garden is classed as ‘in the dwelling’.  The tenancy agreement signed by the resident is silent as to whether or not the garden forms part of ‘the dwelling’ and there is various and conflicting case law which relates to whether or not a garden forms part of a dwelling and for what purpose.
19. In addition, the landlord has argued that the gas mains pipe in the garden was fully the responsibility of NGN, as was the responsibility to cap the pipe off at the time of the conversion work to the property. It has not provided any evidence to support its position, although it has stated that the building work was signed off by the local authority, which is responsible for ensuring that works meet legislative standards. It is accepted that any gas smells either within or outside of the property were reported to NGN; and that NGN took on the responsibility to cap off the pipe after receiving the resident’s reports.
20. It is not within this Service’s authority to make a legally binding ruling on the ownership of, and responsibility for, the gas pipe in the garden or to determine who had responsibility for capping the pipe during the conversion work. Nor can this Service rule as to whether the landlord had a duty of care, or any vicarious liability. These are all matters that would be better determined through the courts and the resident should seek further legal advice if she wishes to pursue these matters further.
21. The Ombudsman can only look at how the landlord handled the reports of the gas leak and how it addressed the matter through its formal complaint procedure.  Whilst the resident has asserted that she contacted the landlord on many occasions in relation to the leak, she has not provided the specific dates, or any supporting evidence to show her contact with the landlord. The landlord says it has no electronic record of any contact, nor was there any record from its staff of such contact. In the circumstances, this Service cannot determine whether, or how often, any gas leak was reported.  In any event, reports of gas leaks or gas smells should be reported directly to NGN.
22. The landlord has, however, been able to provide evidence that all annual gas safety checks took place by its professional contractor, with no reports of gas smells at these times. This is sufficient to demonstrate that the landlord took its obligations with regard to gas safety seriously and that there was no apparent cause for concern in that regard.
23. The landlord has properly addressed the issue through its formal complaint process, by explaining what happened, assuring the resident that the pipe had been made safe, and offering to install a gas monitor in the property. This showed that, despite the landlord’s position that it had no responsibility for the pipe, it took practical steps to investigate and address the resident’s concerns as far as it could.

Repairs and work carried out by the resident

24. In accordance with the terms of the tenancy agreement and the Landlord and Tenant Act 1985, the landlord is responsible for certain internal repairs to the property and there is not dispute between the parties that repairs were necessary, and that it was the landlord’s obligation to complete them.
25. The landlord has not provided this Service with a copy of its repairs policy and therefore it is not known what timescales it is required to carry out its repairs by.  This Service has seen repairs policies by various social landlords and in general, non-urgent repairs are expected to be carried out within 28–days or one month.
26. In this case, the evidence shows that the resident was in communication with the landlord regarding various repairs from July 2019 and the works were completed by 15 November 2019, approximately four months after being reported. The landlord has not given any reasons for its failure to compete the repairs sooner.  However, it was in communication with the resident throughout this time and had the agreement of the resident each time it needed to extend the completion date.  Nevertheless, the landlord failed to carry out the repairs in a timely manner and this was not fully addressed in the final stage complaint response (this is addressed further in the compensation section below).
27. The resident has complained that the landlord wanted her to provide evidence that the LED lights were properly installed and met safety standards, despite the landlord’s own contractor carrying out an inspection. This is standard practice when a resident carries our repairs or improvements themselves. The landlord was entitled to ask for this documentation and it was the resident’s responsibility to prove that any electrical installation was properly installed by a suitably qualified contractor. There is no criticism on the landlord for this, but it may wish to direct the resident to the relevant section of the tenancy agreement or any associated policy relating to improvement work by a resident.

Member of Staff

28. It was agreed by both parties that the resident would have no more contact with a specific member of staff. The resident has claimed that since this agreement, she has been contacted by this member of staff on multiple occasions. However, no specific dates are given and no evidence has been provided, with the exception of details of one particular letter sent on 12 August 2019. As a result, the landlord may have been limited in the extent to which it could respond to these general concerns.
29. Further, it is appreciated that, in responding to the formal complaint, the landlord may have considered the issues of the gas leak and the repair matters to take precedence over the resident’s concerns about contact arrangements. However, as the resident expressly raised the matter as part of her formal complaint, the landlord should have taken the time to investigate her concerns, explain its position and confirm how it would prevent the same issues arising in future.

Compensation

30. The landlord has not provided this Service with a copy of any compensation policy it may have. Whilst the landlord has apologised and offered compensation to the resident, it has not been specific as to how it reached the £500 offered, nor what areas of service failure the compensation was intended to address. As a result the Ombudsman has relied upon its own experience and guidance in considering an appropriate remedy in this case.
31. In assessing an appropriate level of compensation, this Service takes into account a range of factors including any particular distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord and the level of detriment caused by the landlord’s actions. The Ombudsman’s awards are generally moderate, taking into account the landlord’s need to make the most effective use of its limited resources as a social landlord.
32. The Ombudsman’s own Remedies Guidance states that remedies in the range of £250 to £700 may be appropriate if the Ombudsman has found considerable service failure or maladministration, but there is no permanent impact on the complainant. Awards greater than £700 would only be considered where the landlord’s actions had potentially caused a significant and serious long-term effect on the complainant.
33. With regard to the resident’s complaint, the Ombudsman has found no failure by the landlord in relation to responsibility for the gas leak (as this is a matter for the courts to establish) and no failure in asking for certification for the LED lights. However, it did fail to carry out the repairs in a timely manner and did not offer any explanation for the delays. It also failed to adequately address the resident’s complaint regarding contact by a particular member of staff.
34. Therefore, some form of financial redress was appropriate to recognize the impact of these failings on the resident. In considering that impact, the Ombudsman takes into account that the landlord was in regular contact with her regarding the repairs and that she agreed to extend the various repairs deadlines. Further, the identified service failings were not so significant that, according to the Ombudsman’s Remedies Guidance, an offer over £500 would be appropriate. In addition, it is noted that the landlord has offered to bring forward the date of the kitchen renewal and has offered to install a gas monitor.  This, together with the £500 compensation, was a generous offer in the circumstances.
35. In identifying whether there has been maladministration the Ombudsman considers both the events which initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress, as it has in this case.

Determination (decision)

36. In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolved the complaint.

Recommendations

37. The Ombudsman recommends that the landlord should:
    1. reoffer to the resident the £500 compensation, the offer to bring forward the kitchen renewal date and the offer to install a gas monitor, as these offers recognised genuine elements of service failure and the sufficient redress finding is made on that basis;
    2. inform the resident of the steps it will take to ensure she is not contacted again by the member of staff referred to in this assessment.