Red Kite Community Housing Limited (202117272)

REPORT

COMPLAINT 202117272

Red Kite Community Housing Limited

8 June 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 complains about the landlord’s response to her report that contractors disturbed and exposed asbestos by drilling into the ceiling.
The landlord’s complaint handling and level of compensation has also been investigated.

Background

The resident holds a secure tenancy for a three bedroom house with the landlord, which is a housing association.
On 7 July 2020, the landlord’s contractor attended the resident’s property to complete an electrical installation condition report (EICR). As part of the EICR, a smoke detector was installed on the ceiling in the landing.
The resident contacted the landlord on 9 July 2020 raising concerns that the operative had drilled into the landing ceiling to affix the smoke detector and that had disturbed some asbestos. The resident informed the landlord that she told the contractor at the time that the ceiling contained asbestos, and he said he had stuck the smoke detector onto the ceiling.
Due to discrepancies between the contractor’s version of events and what the resident reported, the landlord arranged for the contractor to visit and carry out a post work audit inspection, which was completed on 11 August 2020. A further visit was carried out on 14 August 2020 by the contractor who confirmed that the operative had followed the correct procedure.
Following the contractors visit on 14 August 2020, the resident contacted the landlord as she said that the contractor who attended told her that the staff member who attended on 7 July 2020 did not follow the correct procedure and there was asbestos in the ceiling. The landlord informed the resident that it would obtain the inspection report and provide her with an update.
On 9 June 2021, the resident contacted the landlord as she did had not received an update. The landlord contacted the resident on 14 June 2021 to discuss the matter further. The resident informed the landlord that she had never received a response to her previous concerns, and she felt she was being lied too about events. The resident also informed the landlord that she was concerned about being exposed to asbestos and wanted something in writing.
The landlord arranged for the contractor to write to the resident regarding its previous investigation in August 2020. On 30 June 2021, the contractor wrote to the resident and confirmed that the internal investigationwas inconclusive, but it had identified some elements that required action for improvement.
On 2 July 2021, the resident contacted the landlord as she was dissatisfied with the contractor’s response. The landlord arranged for a further visit to take place on 7 July 2021. The report was also logged with the Health and Safety department as a ‘near miss.’
On 27 October 2021, the resident raised a formal complaint with the landlord as she was dissatisfied with the contents of a further letter she had received from the contractor. The resident informed the landlord that she wanted the contractor to tell the truth with regards to how the smoke detector was affixed to the ceiling.
On 11 November 2021, the landlord provided a stage one response where it said that it was unable to conclusively say whether the smoke detector had been affixed using a drill, and not a screwdriver (utilising previous holes) as the contractor was reporting. The landlord further apologised for the length of time the issue had been ongoing for and also confirmed that the asbestos risk was very low. It also offered the resident £50 compensation.
The resident escalated her complaint on 11 November 2021 as she disagreed with the findings and also the level of compensation offered to her. The landlord asked the resident for further details regarding her request to escalate the complaint and numerous emails were exchanged. On 11 February 2022, the landlord informed the resident that it would liaise with the contractor regarding the stage two escalation request and provide the additional evidence.
On 3 May 2022, the landlord informed the resident that it would not escalate her complaint to stage two as the evidence provided was not enough to change the original response.
Following the resident’s referral to this Service on 15 September 2022, the landlord said that it should not have refused to progress the resident’s complaint to stage two and would respond directly to the resident.
The landlord provided its final response on 4 October 2022, where it confirmed:
1. That it had failed to address the resident’s initial concerns promptly when it was first reported and that it should have sent a representative from the landlord, as well as the contractor, to conduct a post inspection. However, it was unable to conclusively say if the smoke alarm was affixed with a new drill hole or an existing hole.
2. That it recognised the distress caused to the resident as she believed she was at risk of being exposed to asbestos.
3. That if the hole had been drilled, the risk to the resident was minimal and within safe levels.
4. That it had failed to escalate her complaint in line with its own policy.
5. Furthermore, the landlord apologised for its failings, detailed the learning it had identified and offered the resident an increased offer of £400 compensation.
On 7 October 2022, the resident contacted this Service as she remained dissatisfied with the landlord’s response. In order to resolve her complaint, the resident is seeking a letter from the landlord admitting liability for drilling into her ceiling and disturbing the asbestos.

Assessment and findings

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure. When investigating a complaint, the Ombudsman applies its dispute resolution principles. These 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.
2. put things right, and.
3. learn from outcomes.

The landlord’s response to the resident’s report that contractors disturbed and exposed asbestos by drilling into the ceiling.

When the resident reported her concerns to the landlord on 9 July 2020, information provided to this Service shows that the landlord took immediate action and asked the contractor to discuss the resident’s concerns with the staff member that attended. Internal emails show that the staff member said that he did not drill into the ceiling.
As there were conflicting accounts the landlord was unable to confirm exactly what happened.It further arranged for the contractor to attend the resident’s property to inspect the works and carry out a post work inspection audit. This Service has seen a copy of the report which also noted the resident’s dissatisfaction. These actionsshow that the landlord was taking the resident’s concerns seriously and was trying to ascertain what did happen, although it would have been appropriate for the landlord to consider carrying out its own inspection.
Following the contactors visit, further discrepancies arose, as the resident informed the landlord that the contractor told her that the ceiling had been drilled into to affix the smoke alarm, but internal emails show that the contractor reported back to the landlord that the operative had followed the correct procedures and that they also informed the resident of this. Although the Ombudsman does not dispute the resident’s version of events, there is no evidence on which this Service could reasonably rely upon to conclude what was communicated to the resident at the time of the visit.
This Service has seen information which confirms that the landlord informed the resident that the contractor would write to her and confirm the findings. No information has been provided to show that this happened, and this was a failing on the landlord’s behalf.
It is not clear why the resident waited ten months before chasing the landlord for an update, and it would not have been unreasonable for the landlord to assume that the matter had been concluded.
However, when the resident contacted the landlord in June 2021 and asked for the outcome of her report in writing, information provided to this Service shows that the landlord took immediate action and arranged for the contactor to write to the resident accordingly. This shows that the landlord was taking the resident’s concerns seriously and taking steps to put things right.
When the resident was dissatisfied with the contractor’s response, the landlord took further steps to arrange for an inspection to take place. Internal information shows that the landlord visited on 7 July 2021 and explained to the resident that whilst it looked likely that the smoke detector may have been affixed as she described, it was unable to confirm liability due to the conflicting accounts. The landlord confirmed that it offered a letter of apology and compensation, but the resident did not want to accept this. Due to the lack of evidence to confirm either parties account of what happened, it was not unreasonable for the landlord to confirm that it was unable to confirm liability.
Furthermore, the incident was reported internally to the health and safety team and reported as ‘near miss’. The result of the health and safety investigation showed that the landlord was satisfied that it was unlikely that the ceiling contained asbestos but arranged for refresher training to be completed and also form part of the contractor’s team meetings.
Although information provided to this Service shows that the landlord was actively taking steps to try and resolve the issues raised by the resident, there are no records which show that it kept the resident updated for a number of weeks. It took until 27 October 2021 for the resident to receive a letter from the contractor, further confirming that it could not admit liability.
Although this Service has not been provided with a copy of the letter sent by the contractor, it is understood that the resident was dissatisfied with the contents. It was at this point that the resident raised a formal complaint.
Based on the information provided, it is clear that the landlord took multiple steps to address the concerns that the resident raised, both in July 2020 and again in June 2021. It was not unreasonable for the landlord to determine that it was unable to definitively confirm how the smoke alarm had been fixed to the ceiling due to the conflicting accounts from the resident and the contractor. However, this Service is satisfied that it took the resident’s concerns seriously and took necessary steps to address these and provide reassurance that if the ceiling had been drilled, the asbestos exposure risk to the resident was low.
Overall, the landlord took reasonable action to address the resident’s concerns. However, there is evidence which shows that the landlord’s communication could have been better at points, and as the landlord itself acknowledged, it should have sent a representative from the landlord, as well as the contractor, to conduct a post inspection. These failings caused the resident distress, and inconvenience in having to pursue the matter.
However, the landlord acknowledged its failings, and apologised for these. In addition (and as addressed in more detail below) the landlord offered the resident compensation to help resolve her concerns. The landlord did enough to ‘put things right’ for the resident. It also detailed the actions taken to prevent a recurrence of the situation. As such, a finding of ‘reasonable redress’ is made below.

The landlord’s complaint handling and level of compensation

The landlord’s feedback policy shows that it operates a two stage formal complaints process. Stage one complaints will be acknowledged within two working days and responded to within 10 working days. If a resident remains dissatisfied with the landlord’s response at stage one, they can escalate their complaint to stage two, known as an appeal. The policy states that all appeal requests will be considered based on any new evidence or information not previously taken into account.
The Ombudsman’s Complaint Handling Code April 2020 (the Code), point 3.5, specifies that if the complaint is not resolved to the resident’s satisfaction it shall be progressed to the next stage in accordance with the landlord’s procedure and the timescales set out in this Code. Point 4.13 specifies that where a landlord decides not to escalate a complaint it should provide an explanation to the resident. It should make clear that its previous response was its final response to the complaint and provide information on referral to the Housing Ombudsman.
On 27 October 2021, the resident raised a formal complaint regarding the contractor’s response to her about how the smoke alarm was fixed to the ceiling. The landlord acknowledged the complaint the next working day and informed the resident that a response would be issued within 10 working days and appropriately responded on 11 November 2021, which was inline with its complaint policy.
On 11 November 2021, the resident informed the landlord that she remained dissatisfied with the response. Whilst the landlord took steps to gain further information regarding the escalation, it was not reasonable for the landlord to place the responsibility solely on the resident to provide specific evidence in order for the resident to escalate her complaint. This could be seen as an unnecessary barrier to the resident in her request to escalate her complaint.
The landlord responded to the resident on 3 May 2022, stating that it would not escalate her complaint to stage two, due to the time elapsed and that no new evidence had been provided.
Although the decision the landlord took was in line with its own policy, it did not follow point 3.5 of the Code as the resident clearly explained that the complaint was not resolved to the resident’s satisfaction.
It was not until the resident contacted this Service that the landlord reviewed the way it handled the resident’s escalation request and identified that it did not treat the resident fairly and requested the opportunity to provide a final response. This shows that the landlord took ownership of the failures identified and was taking steps to try and improve its relationship with the resident.
The landlord provided this Service with a copy of its final response and confirmed that it would also enter into mediation with the resident to try and rebuild the relationship. This further shows that the landlord was trying put things right for the resident and rebuild her trust, a step that the Ombudsman welcomes.
As part of the landlord’s final response, it offered the resident compensation for the way it had handled the complaint. It is not clear what proportion of the £400 compensation was for the substantive issue, and what proportion was for the complaint handling, so this Service will assume that £200 each is appropriate.
The landlord’s compensation policy states that amount of up to £250 can be awarded for goodwill compensation. In line with this Service’s remedy guidance, awards of £50 – £100 are appropriate in cases where there has been a failure of short duration that did not impact the overall outcome for the resident. Therefore, the overall amount of £400 was in line with these amounts.
In summary, it is clear that the landlord did not handle the resident’s request to escalate her complaint in line with its own complaint policy. This amounted to service failure in the circumstances. In recognition of the distress and inconvenience caused to the resident by this and in relation to the concerns about asbestos, the landlord offered a total of £400 compensation, which in the Ombudsman’s opinion, amounted to reasonable redress in the circumstances.

Determination

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord in respect of its response to the resident’s report that contractors disturbed and exposed asbestos by drilling into the ceiling.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in respect of its complaint handling and level of compensation.

Recommendations

The finding of reasonable redress is made on the basis of the compensation offered by the landlord. If it has not done so already, the landlord should pay the amount offered in is final response.
The landlord has provided this Service with a number of improvements that it will take as a result of issues identified, which the Ombudsman welcomes as a sign of a proactive approach.