Magenta Living (202114295)

REPORT

COMPLAINT 202114295

Magenta Living

17 March 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

1. The complaint is about the landlord’s response to the resident’s complaint about the use of cleaning solvents in communal areas.

Background and summary of events

2. The resident is a leaseholder who lives in a third floor flat, the freehold of which is owned by the landlord, and has no vulnerabilities recorded. 

The lease agreement

3. The lease agreement sets out the rights and responsibilities of both the resident and the freeholder. Section 6 (4) relates to the landlord’s liability to maintain the structure of the block, including external windows and doors.

The repairs policy

4. The landlord’s repairs and maintenance guidance information online includes a ‘code of conduct’ at page 20, which says that disruption will be kept to a minimum. 

The complaints policy

5. The landlord’s complaints policy says that complaints will be responded to within 10 working days at stage one, and 20 working days at stage two of its process.

The compensation policy

6. The landlord’s compensation policy states that it does not address the administration or application of insurance claims, including personal injury.

Summary of events

7. The resident submitted a complaint on 6 August 2021, relating to the conduct of contractors who attended the resident’s block on 4 August 2021 to carry out repair/maintenance work. The landlord acknowledgment said it aimed to issue a response in ten working days.
8. The landlord complaint log said the resident stated that the landlord’s contractor was ‘rude’, and notes show that the landlord said that it would conduct an interview with the member of staff in the following few days. Further emails from the resident were sent on 13 and 18 August 2021 about the solvent used at the block whilst the contractors carried out works. 
9. A report by the contractor dated 12 August 2021 said that the contractor had received a text message from the resident at 10am that day which said the resident and her mother had sore throats and breathing difficulties due to the substance used to clean new doors.  Three new doors had been fitted on the first and second floor and the resident’s flat is on the third floor. The communal door on the ground floor was propped open while work was proceeding and a communal window on the resident’s floor was also opened.
10. The site manager contacted the sub-contractors fitting the doors and told them to stop using the solvent cleaner. He immediately attended the resident’s property and advised her to open her windows to allow plenty of fresh air in and to seek medical advice if she was feeling unwell. He gave the resident the name of the product and the emergency number for the manufacturer. The contractor left the communal door open on his way out to ventilate the block. The resident said she had difficulty breathing and her mother was worse, she was unhappy with the landlord and said she had a similar incident at her workplace in the past and had to take time off work. 
11. Attached to the contractor’s email to the landlord of 12 August 2021 were various documents relating to the solvent and the work being carried out:
    1. Safety data sheet for the cleaning product dated 4 December 2018 showed it was use in ‘private households/general public consumers’. Section 4.2 says ‘inhalation: there may be irritation of the throat with a feeling of tightness in the chest. Exposure may cause coughing or wheezing’. Section 7.1 handling requirements says ‘ensure there is sufficient ventilation of the area. Do not handle in a confined space.’
    2. A COSHH (control of substances hazardous to health) assessment for the solvent cleaner dated 2 March 2020 states ‘no known significant effects or critical hazards. Health risk – not classified’,
    3. A risk assessment form from the door company dated 5 August 2021 – including the handling of door frames/broken glass etc but not covering solvents.  
    4. A method statement by the door company covering the refurbishment contract lasting 12 weeks. Section 4 lists COSHH substances to include solvents for cleaning and said that COSHH information for consumable materials used during installation is to be read on receipt and retained for providing to client for the H&S (health and safety) file on request. 
    5. An accident and incident investigation report relating to the resident at the property detailing the reported injury as sore throats and breathing issues. It says the resident experienced a reaction to the solvent cleaner being used to clean new doors frames and that a statement had been attached along with the report. Contributory cause was shown as ‘resident is sensitive to solvent cleaner’. Action taken is shown as the door installer had been told to stop using the product, emergency contact details had been given to the resident, and she was told to seek medical advice if unwell and to ventilate area. Communal doors were left open for ventilation.
12. The resident called on 13 August 2021 and requested a call back regarding issues with the upgrade work. An update email was sent in relation to the original complaint issue which said that the landlord hoped to interview staff next week and provide a response by 18 August 2021.
13. The resident replied that she wanted to add further to the complaint to say she had spoken to the manufacturer of the solvent cleaner who said it should never be used in unventilated areas. She said as a result of the product being used she and her mother who was visiting became unwell. She is working from home and had no prior warning of the work on the block. It was a legal requirement for residents to be informed of the commencement of works. The past few weeks had severely impacted on her health and well-being. She had not had call backs from the landlord despite assurances from call centre staff.  
14. The landlord’s internal email the same day said the resident had been informed the product would not be used but her mother had called to say it was used as she could not climb the stairs as it left her unable to breathe.
15. An internal landlord email on 16 August 2021 said that the initial response date of 18 August 2021 would be extended due to the further issue of the solvent being added. 
16. The next day the contractor advised the landlord that the resident was calling several times a day and said that the solvent cannot be used indoors.  The contractor had called the manufacturer who said it can be used indoors with ventilation, as it was at the time.
17. The resident emailed the landlord on 18 August 2021 to say she could smell the product being used again, so had cancelled the installation of her own new front door which was due to be done that day.
18. On 19 August 2021 a complaint response was sent to the resident: 
    1. In respect of the dispute with the contractor, the landlord had instigated a full investigation including interviews with staff, as the contractor’s version of events was very different to the resident’s recollection. This complaint issue would close while the process continued.
    2. In respect of the solvent cleaner used on site, the contractor had provided a risk assessment, method statement and COSHH assessment to show the product was safe to use indoors and photographs showed that adequate ventilation had been in place. The resident had been advised by the contractor to open windows if the product was used again and to seek medical advice if necessary. The landlord was unable to recommend that use of the product was stopped.
    3. The issue of poor communication regarding improvement works had been addressed as part of a separate complaint so would not be commented on further as part of this complaint.
    4. Further appeal rights to the senior management were given.  
19. An internal landlord discussion on 20 August 2021 showed that the resident wanted to discuss the ongoing works, that the contractors had refused to work at the block until their concerns were looked into and that the landlord would investigate. There had been two other recently closed complaints from the resident in relation to the same works. 
20. The following day the resident was updated that the landlord hoped to get a call to her when a colleague was back on 31 August 2021, but the landlord was experiencing high levels of absence. The landlord said it did not normally update individual residents who logged communal repairs, but they would do in future. 
21. The resident emailed on 26 August 2021 and said that on 11 August 2021 only one door was propped open by a brick and after her lunchtime walk both doors were closed, the 1st floor had no opening windows, the second floor where the resident lives had one opening window which opens 3 inches. The resident and her mother were affected by the fumes. There was insufficient ventilation for use of the cleaning products. Another neighbour had been badly affected and if this product would be used when her new door was fitted she would be unable to agree to have the door changed.
22. The resident chased a call back on 1 September 2021 which the landlord replied to on 2 September 2021 and apologised for the delay in the response. The complaint was escalated to appeal stage and the resident was asked what her desired resolution would be.
23. The landlord complaint log dated 2 September 2021 said that the landlord had already confirmed that the contractor would not be using that solvent and would use a non-solvent-based product which should not cause a problem. It was felt that the incident was an ‘unpredictable event’ given the risk assessment already conducted, so it would not be appropriate to offer compensation. 
24. The complaint acknowledgement confirmed the complaint appeal was received on 26 August 2021 and a response should be sent within 20 working days. The resident responded that the outcome she wanted was for the contractor to cease using the cleaning solution and that she felt her and her mother should be offered compensation for the suffering caused and that nobody from the contractors checked on her welfare following the inhaling of the fumes. The resident said she hoped that the solvent was no longer being used, and the landlord said it had received confirmation that it was not.  
25. The landlord’s final response to the complaint was sent on 22 September 2021:
    1. The complaint had been reviewed by a colleague panel.
    2. Prior to the panel meeting, the contractor had already started using an alternative water-based cleaning product, so it was decided the appeal did not warrant further escalation as a resolution had already been provided.
    3. Regarding the contractor’s response on the day of the incident with the cleaning product, the landlord was satisfied that the contractor had dealt with the issue when they went to check on the resident and her mother and provided advice, so the landlord’s response was, in its view, both appropriate and proportionate.
    4. The landlord would not be issuing compensation as the provision of adequate ventilation is subjective and the contractors had changed the cleaning product used. In addition, the landlord had reiterated to relevant teams the importance of ensuring maximum ventilation when completing cleaning jobs.
    5. Appeal rights to this Service were given.  

Since the final response

26. The resident approached this Service, and the terms of the complaint were confirmed as concerning the chemical product being used in her building and her request for compensation.
27. On 23 January 2022, the resident was advised by this Service that the wider concerns about the building upgrade works had already been investigated and a separate investigation report issued on 15 January 2022. This investigation would be in relation to her reaction to a cleaning product used by the landlord. 

Assessment and findings

Scope of investigation

28. There has been a separate investigation about the landlord’s handling of repairs to the resident’s front door and the communal front door, and the removal of the concrete canopy for the block as well as its response to the resident’s request for a breakdown of the cost. That complaint was investigated under Housing Ombudsman Service reference 202110935, referring to the landlord’s case reference ending ref #841. This investigation concerns the use of solvents, as the resident added to her existing complaint on 13 August 2021.  

Landlord response to the issues relating to the use of the cleaning product

29. It is evident from the background to this complaint and the related complaint that this has been a stressful issue for the resident and the Ombudsman is mindful of this. Repair work in itself can be disruptive and it may not be possible to eliminate that completely. The role of this Service in this particular investigation is to consider if having been made aware of the problem with the solvent and the reported effect on the resident and her mother, the landlord took reasonable and appropriate action.
30. The resident has stated that the solvent affected her and her mother’s health, however, no evidence has been provided to this Service that the resident supported her claim with any documentary proof. The Ombudsman does not doubt her comments; but must clarify that it is beyond the expertise of this Service to decide on whether there was a direct link between the use of the solvent at the property and her and her mother’s health. The resident may therefore wish to seek independent advice on making a personal injury claim if she considers that her family’s health has been affected by any action or lack thereof by the landlord.
31. In this case, the landlord asked the contractor to visit the resident immediately to check on her and give advice and information about the product. Whether the ventilation was sufficient or not is subjective, and whilst the resident disagrees with the landlord over this issue, it is evident that the landlord has investigated this in a reasonable manner. The contractor discontinued works at the time and then changed the cleaning product it would use in future. These actions demonstrate the landlord taking the issue seriously and taking reasonable steps to mitigate future reoccurrence. 
32. The landlord has provided the COSHH assessment and the product data sheet which supports that appropriate safety measures were followed, the manufacturer confirmed that the product is suitable for use indoors and the resident has confirmed that windows and doors were opened. It is noted that the use of solvents was not specifically included in the risk assessment sheet from the sub-contractors who supplied the doors, but the landlord took immediate and appropriate action to address the resident’s concerns. 
33. Ultimately, the landlord could not be reasonably expected to do more to respond to the resident’s concerns, and the Ombudsman has no basis for making a contrary finding to that in the landlord’s final response.
34. The Ombudsman is satisfied that the landlord took proportionate and appropriate action in relation to investigating the concerns raised by the resident; and considering them alongside its service standards, and duties and obligations as a landlord.
35. In addition, the landlord’s policy on compensation excludes payments for personal injury, and as above, this is not something that would be within the scope of this Service to consider. Therefore, it follows that the Ombudsman does not consider that the landlord should pay compensation in relation to the complaint.

Determination (decision)

36. In accordance with paragraph 54 of the Scheme there was no maladministration in the landlord’s response to the resident’s complaint about the use of cleaning solvents used in communal areas.

Reasons

37. The landlord’s response was proportional and reasonable in all the circumstances. The landlord took immediate action which resulted in the contractor ceasing their use of the cleaning product; the contractor visited the resident on the same date to advise them on the cleaning product and check on the household; it also agreed to no longer use the product in future. The resident has reported an impact on her health from the use of the product, however, such a link can not be established here in this investigation as such an investigation would be more appropriately handled by a court process.

Recommendations

38. It is recommended that landlord discuss with the contractor the inclusion of cleaning solvents on future risk assessment forms as they did not appear to be included in the form relating to the fitting of doors.