The Abbeyfield Society (202127722)

REPORT

COMPLAINT 202127722

The Abbeyfield Society

30 August 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 complaint is about the landlord’s response to:
1. The resident’s concerns about the fire safety issues related to a stairlift in the property and the external fire escape.
2. The resident’s concerns about the suitability of a neighbouring tenant in the building.
3. The resident’s concerns about the treatment of staff in relation to Covid vaccinations.

Background

The resident held an assured periodic tenancy with the landlord within supported living accommodation. The building is a house comprised of several studio flats and shared facilities. The resident occupied a flat on the first floor of the house.
The resident has autism spectrum disorder and other tenants also have vulnerabilities. The neighbouring tenant occupied a room on the same floor as the resident at the time of his complaint and used the communal stairlift.

Scope of investigation

In his communication with this Service, the resident raised concerns about the usage of the stairlift and laundry room after staff left the premises, fire escape lighting and staff conduct. As these issues formed part of a separate complaint to the landlord in March 2022, they will not be considered as part of this investigation but as part of an investigation under the Ombudsman’s case reference 202205203.

Summary of events

The landlord has provided this Service with a number of reports, related to the stairlift within the building, completed prior to the resident’s complaint. These included:
1. A fire risk assessment completed in October 2020, which identified that the footplate of the stairlift needed to be returned to its final resting position at the bottom of the stairs to ensure a minimum clearance space was achieved. No concerns were raised regarding the clearance at the top of the stairs.
2. A stairlift inspection report completed in April 2021, which identified that the footplate needed adjusting as it ran close to one step when in motion and that the arm rest needed to be renewed. No other issues were identified.
3. A routine stairlift servicing report from July 2021 which identified no issues with the stairlift.
On 3 September 2021, the resident discussed various concerns with a staff member. These related to:
1. The safety of the stairlift in the event of an emergency if the seat and footplate were not kept in the upright position when not in use.
2. The suitability of another tenant to continue living in an independent setting.
3. The way the landlord treated its staff in relation to mandatory Covid-19 vaccinations.
The landlord acknowledged the resident’s concerns as a formal complaint on the same day and confirmed that it would respond within 10 working days.
The landlord carried out a fire drill at the house on 8 September 2021 which found that all residents were able to evacuate safely. The landlord’s records show that it contacted its fire risk manager on 9 September 2021 to enquire about the stairlift footplate impeding access in the event of an emergency. They provided guidance on the clearance measurements on the stairs, which were met when the chair and footplate were lifted to their final resting position after use, and recommended that the landlord approached the lift installers to enquire about the possibility of an automatic closer.
The landlord issued its stage 1 complaint response to the resident on 10 September 2021 and explained the following:
1. It noted the resident’s concerns about the safety of the stairlift when the seat and footrest were not stored in their final resting position and his belief that this restricted the staircase. It said that it had arranged for experts to investigate his concerns and would provide a response as early as possible.
2. In relation to the resident’s concerns about the suitability of another tenant due to their health, it said that it was not in a position to divulge any personal details regarding individual residents. It reassured the resident that it was continuing to monitor and review the suitability of all its tenants and did not feel that evicting the tenant in question was appropriate at the time.
3. It added that where multiple occupants live under one roof, it was important to consider that there would be situations where the rights of some tenants may compete or conflict with the rights of others. It needed to take a careful and measured approach to ensure fairness and consistency to all occupants.
4. In relation to the resident’s concerns about the mandate of Covid-19 vaccinations of all staff working in the building, it confirmed that it followed legislation set by the government. The government recently introduced legislation, effective from 11 November 2021, which required people working in care homes to be vaccinated. Mandatory vaccination was designed to ensure care home residents were better protected from the impact of contracting Covid-19.
5. Many of its staff had independently decided to have a vaccination, however, some had not for a variety of reasons. Currently, the legislation only applied to care home staff, meaning its staff working in supported services could continue to work as usual without being vaccinated if they wished. If the government ruling changed, it would be following the law as mandated across its housing services.
The resident responded to the landlord on 14 September 2021 and explained the following:
1. In relation to the stairlift, he was dissatisfied that the landlord had decided to bring in an expert, at an additional cost to residents, rather than use common sense in its approach. He maintained that the stairlift should not obstruct the stairs in an emergency situation.
2. In relation to the neighbouring tenant, he said that he lived in the property 24/7 unlike staff and saw more of what went on. He was concerned about the tenant’s health issues living in a limited supervised environment.
3. In relation to his concerns about Covid-19 vaccinations, he expressed concern that even vaccinated people could carry and pass on the virus to others. As such, they would still need to be regularly tested. He hoped that the landlord would put the minds of its staff concerned about their future employment at rest prior to Christmas.
The resident confirmed that he wished for his complaint to be escalated to the next stage of the landlord’s complaints process on 15 September 2021. The landlord acknowledged his request on 16 September 2021 and confirmed that it would respond within 15 working days.
The landlord’s internal records show that on 17 September 2021, it had enquired with its stairlift contractor as to whether a mechanism could be fitted to the stairlift to allow the footplate to be lifted into its final resting position when the seat was lifted. It also inquired as to whether a smaller footplate could be fitted. On 24 September 2021, the contractor responded and advised that the footplate could not be modified.
On 28 September 2021, the landlord invited the resident to meet with it at the property on 5 October 2021 to discuss his complaint and view the property. It also confirmed that it had arranged for a qualified fire safety manager to look into the issue of the stairlift at the property with its legal team. The evidence confirms that the meeting on 5 October 2021 went ahead.
The landlord issued its stage 2 complaint response to the resident on 7 October 2021 and explained the following:
1. In relation to the stairlift, it had viewed the staircase and lift during the visit. It appreciated the resident’s concerns regarding accessibility should the footplate not be returned to its resting position. It had discussed replacing the stairlift and the financial implications this would have. It confirmed that when the stairlift was used and stored correctly, there was sufficient room. As such, the stairlift would not be replaced until it was no longer economically viable to repair. It had agreed to place additional signage to prompt occupants as to how to use and store the stairlift correctly. The instructions would also be relayed to those who used the stairlift.
2. It also noted that the resident had commented on the safety of the external fire escape staircase accessible through his flat. It confirmed that it formally inspected the fire escape every three years and that no issues had been identified in the previous inspection in 2019. It confirmed that the external staircase met necessary regulations and was safe to use if the resident needed to escape in the event of an emergency, should the internal staircase be inaccessible.
3. It had reviewed the neighbouring tenants’ assessments but was not able to discuss the contents with the resident. It had also discussed the various assessments and ways in which it could support and empower its residents to retain their independence such as by referring to external stakeholders, installing aids or adaptations and providing care plans. It worked with families to plan and support the future of residents should they need to relocate to alternative accommodation.
4. It had discussed the recent government vaccination mandate for care staff. It confirmed that this did not apply to housing staff at present. It had continued to reassure its staff of this, however, should vaccines become mandatory for housing staff, it would be bound by law to comply with the mandate.
5. It confirmed that if the resident remained dissatisfied with its response, he could escalate the matter to stage 3 of its complaints process. It also confirmed that the resident was able to refer his complaint to this Service and that its response was its final response, unless the resident wished to escalate to stage 3.
The resident asked for his complaint to be escalated further over the phone on 19 October 2021. The landlord’s call notes show that he had raised concern that the risks created by the neighbouring tenant had not been fully addressed and that matters were worse. He added that the tenant had failed to change the in/out board at the house on return from outings, they did not fold away the stairlift which created a hazard in the event of fire evacuation, and that they had begun to play loud music in their room. He wanted the tenant to be moved to a ground floor room within alternative accommodation. The call notes show that the landlord explained that asking a resident to move would be based on an assessment of their needs rather than as a result of the complaint. The resident said that he wished to proceed to stage 3 of the landlord’s complaints process.
The landlord wrote to the resident on 25 October 2021 in relation to his stage 3 complaint request. It advised that having spoken to staff members, it understood that coincidental steps were being taken which may alleviate the situation referenced in his complaint. It was not able to disclose any of the details due to confidentiality but gave assurances that the mater was in hand. It confirmed that it could convene a stage 3 panel at the earliest opportunity, but that it believed that the resolution the resident was seeking would not be met by the panel. It asked the resident whether he would agree to put the complaint on hold for 8 weeks to allow the steps being taken within the house to conclude. It confirmed that if the resident remained dissatisfied following this, it would review the complaint and provide a final response. The landlord’s records show that the resident called to confirm that he was happy for the complaint to be put on hold on 27 October 2021.
The landlord emailed the resident on 20 December 2021 regarding his complaint. It confirmed that the 8 week hold period ended that week and asked whether the resident still wished to escalate his complaint to stage 3 or whether the issues had now been resolved. Following a telephone call with the resident on 22 December 2021, the landlord emailed the resident to confirm that it would keep the stage 3 complaint on hold until mid-January as agreed by him. It also discussed concerns the resident had raised about visitors to the building not wearing masks.
The landlord emailed the resident on 19 January 2022 in relation to his complaint. It noted that the resident’s reasons for escalation related to the alleged unsuitability of a neighbouring tenant to continue to live independently on the first floor of the house. It had received confirmation that the tenant in question had now vacated the first floor and would be residing in a ground floor room. It said that this was unrelated to the substance of the resident’s complaint. It explained that as the reason for the resident’s escalation had been addressed, the complaint would be closed. It confirmed the resident’s rights to approach this Service if he remained dissatisfied.
The evidence shows that the resident raised a further complaint with the landlord in March 2022 in relation to the usage of the stairlift and laundry room after staff left the premises, fire escape lighting and staff conduct.
The resident referred his complaint to this Service in March 2022 as he remained dissatisfied with the landlord’s response to his concerns along with its response to his additional concerns which formed part of the separate complaint.

Assessment and findings

Policies and Procedures

The resident’s tenancy agreement confirms that the landlord is responsible for assessing health and safety risks and informing occupants about fire exits and evacuation. The agreement further states that the landlord would not disclose any confidential records to another person without the tenant’s permission or where it is legally required to do so.
The resident’s handbook active at the time of the resident’s complaint states that the landlord carries out regular health and safety risk assessments in the house which look at potential risks and the action needed to resolve them. The handbook further states that each tenant is required to have an assessment of their needs and a risk assessment prior to being offered a tenancy. The landlord would also carry out an individual needs assessment which would be confidential, and offer appropriate support through a support plan. It would review the support plan every 6 months or if an occupant’s circumstances change.
Approved Document B of the Building Regulations 2010 states that the minimum width of escape routes and exits, where a maximum of 60 people can be expected to use the route, is 750mm.

The resident’s concerns about the fire safety issues related to a stairlift in the property and the external fire escape

It should be noted that it is not within the remit of this Service to determine whether there was, or was not, a fire safety risk within the building. However, the Ombudsman is able to determine whether the landlord responded appropriately to the resident’s concerns in line with its obligations.
The landlord acted appropriately following the resident’s initial concerns on 3 September 2021 by acknowledging his belief that when the seat and footplate of the stairlift were not stored in their final resting position (lifted following use), the staircase was restricted. It acted reasonably within its stage 1 complaint response by confirming that it had contacted experts to undertake an investigation.
While it is noted that the resident raised concern that this may come at an additional cost to occupants and that a common-sense approach should be used within his escalation, it was reasonable for the landlord to seek advice from a qualified individual to make an informed decision as to whether there was a risk. The landlord’s records show that it contacted its internal fire risk manager on 9 September 2021 to enquire about any potential risk – this was done within a reasonable timeframe. It was established that when the seat and footplate of the stairlift were stowed, there was sufficient clearance at both the top and bottom of the stairs in line with relevant legislation.
In response to the resident’s concerns, the landlord acted reasonably by enquiring with the stairlift installation contractor as to the possibility of fitting a mechanism to allow for the footplate to be pulled up when the seat was lifted or whether a smaller footplate could be installed. The lift contractor confirmed on 24 September 2021 that this would not be possible.
The landlord acted appropriately by reviewing previous inspections of the stairlift to identify if concerns had been raised about the width of clearance. Ultimately, it found that no concerns had been raised regarding the clearance area at the top of the stairs and it was reasonable for it to rely on the opinions of qualified staff and contractors when determining that no significant risk was posed to occupants.
The landlord’s stage 2 complaint response to the resident said that during the meeting on 5 October 2021, the resident had discussed the possibility of replacing the stairlift and that the financial implications of doing so were discussed. It then confirmed that the stairlift would not be replaced as there was sufficient room when the chair and footplate were stored correctly. This was a reasonable approach for the landlord to take as it would not be obliged to consider a replacement unless the stairlift was beyond economic repair or posed a significant health and safety risk.
The landlord would not be obliged to replace the stairlift at the resident’s request but would be expected to take steps to ensure that it was used correctly to prevent any undue risk to its occupants. Given the circumstances, and the landlord’s conclusion that the stairlift did not pose a health and safety risk when stowed correctly, it was reasonable and resolution-focused for the landlord to take steps to remind occupants and their visitors of their responsibility to store the stairlift correctly when not in use and display additional instructions as a reminder to occupants.
The landlord also acted reasonably by informing the resident of other means of escape in the event of an emergency, including via the external fire escape staircase connected to his flat. Within its stage 2 complaint response to the resident, the landlord also addressed concerns related to the safety of the external fire escape. The landlord has advised this Service that there is no written record of the resident’s concerns about the external fire escape staircase being unsafe to use, but that he raised these concerns during the meeting on 5 October 2021 and these were addressed within its response for completeness.
While it remains unclear as to the specific concerns the resident had about the external fire escape, the landlord acted appropriately by confirming that the fire escape met relevant regulations and that no concerns had been raised following a survey undertaken in 2019. There is no evidence to suggest that the resident raised any additional concerns regarding the external fire escape as part of his further complaint escalation on 19 October 2021 and it was reasonable that no further comment regarding the external fire escape was made at the time. The resident raised additional concerns related to the external fire escape as part of a separate complaint to the landlord; this is due to be investigated by the Ombudsman under case reference 202205203 and will not be investigated further as part of this report.
In summary, the evidence shows that the landlord took reasonable steps to investigate the resident’s concerns about the stairlift and confirm its position. The Ombudsman has found no evidence of service failure on the part of the landlord in relation to this aspect of the complaint.

The resident’s concerns about the suitability of a neighbouring tenant in the building

In his complaint to the landlord, the resident advised that he did not feel the neighbouring tenant was suitable for supported or independent living due to their alleged declining health. As a resolution to his complaint, he wanted the neighbouring tenant to be moved to a ground floor room in alternative accommodation.
It should be noted that matters involving health would be personal to the individual tenant and the landlord would not be able to share personal information regarding another tenant with the resident due to data protection regulations. As such, it was reasonable for the landlord to reassure the resident that it constantly reviewed and monitored the suitability of its occupants and to explain the broad steps it was able to take to support its occupants.
The landlord acted appropriately by immediately explaining that asking a resident to move would be the result of an assessment of their needs rather than at the resident’s request as a result of a complaint, following his escalation on 19 October 2021. This was reasonable as a landlord would only be able to force a tenant to move by seeking possession of their property where the grounds for ending the tenancy under schedule 2 of the Housing Act 1988 applied. The landlord would be expected to support residents in sustaining a tenancy and seeking possession of a property should be a last resort.
While the Ombudsman notes the resident’s concerns, the landlord has provided evidence to this Service of the steps it was taking to support the neighbouring tenant. Without divulging personal information related to the tenant, the Ombudsman is satisfied that the landlord was taking reasonable steps to ensure that the neighbouring tenant was safe and supported by communicating directly with them and their family. It is noted that the neighbouring tenant chose to move to a ground floor flat within the house in January 2022 which resolved the resident’s concern that the neighbouring tenant was not folding the footplate of the stairlift after use.
As part of his stage 3 escalation request, the resident raised separate concerns that the neighbouring tenant had begun to play loud music. While this did not form part of his initial complaint, it would have been helpful for the landlord to have explained its position regarding his report, provided information on how to report noise nuisance and confirmed what steps it could take to investigate his concerns in order to resolve his complaint more fully at the time. There is no evidence to suggest that the resident pursued or raised additional concerns about loud music being played following his communication on 19 October 2021 which suggests that the issues were not ongoing and the resident was not significantly disadvantaged by the lack of specific communication from the landlord regarding his report.

The resident’s concerns about the treatment of staff in relation to Covid vaccinations

As part of his complaint to the landlord, the resident raised concerns about its treatment of staff in relation to mandatory Covid-19 vaccinations. The Ombudsman has not seen any evidence to suggest that the landlord had forced staff to become vaccinated or acted inappropriately in its handling of the matter. It demonstrated that it had acted fairly by confirming its position to the resident within its complaint responses.
It broadly explained that the government mandate requiring workers to be vaccinated applied to its care home staff, not its supported housing staff at the time, such as those working in the building. The landlord’s position was in line with government legislation at the time.
It acted reasonably by confirming that it continued to remind staff of its position and that if the legislation changed to include its housing staff, it would be bound by law to comply with the mandate and ensure that staff were vaccinated. There has been no maladministration by the landlord in respect of its response to this aspect of the resident’s complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to:
1. The resident’s concerns about the fire safety issues related to a stairlift in the property and the external fire escape.
2. The resident’s concerns about the suitability of a neighbouring tenant in the building.
3. The resident’s concerns about the treatment of staff in relation to Covid vaccinations.

Reasons

The landlord took reasonable steps to investigate the resident’s concern that the footplate of the stairlift impeded the use of the stairs in the event of an emergency. It took appropriate steps to remind occupants of their responsibility to return the footplate to its final resting place after use and to display additional signage.
The landlord was limited in the information it could share with the resident regarding his concerns about the neighbouring tenant. The Ombudsman has seen evidence that the landlord took reasonable steps to support the neighbouring tenant, however, it was reasonable that the landlord was unable to share this with the resident for confidentiality reasons.
The landlord acted appropriately by confirming its position in relation to mandatory covid-19 vaccination for staff. Its explanation was in line with government guidance at the time.