Tower Hamlets Homes (202004413)

REPORT

COMPLAINT 202004413

Tower Hamlets Homes

2 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 handling of an annual gas safety check at the resident’s property, in particular:
1. the issuing of a final warning letter;
2. a missed appointment;
3. the landlord’s communication with the resident.

Background and summary of events

On 31 March 2020, the landlord’s contractor wrote to the resident about her annual gas safety check (the first letter). It stated that an appointment had been made to visit her property on 9 April 2020 for the check, but this could be changed if it was inconvenient.
On 21 April 2020, the landlord’s contractor sent the resident a second letter headed “Urgent Notice – Annual Gas Safety Check Reminder” (the second letter). It noted that the resident’s annual gas safety check had not been carried out. It acknowledged that during the Covid-19 pandemic the resident might have concerns about an engineer entering her property, particularly if she was self-isolating. It detailed government advice that such checks were considered so important, however, that landlords were still being asked to carry them out. It explained that the resident might seek a delay depending on her circumstances, for example, if someone in her household was self-isolating due to the virus and she should contact the contractor if this was the case. Otherwise an appointment had been scheduled for 28 April 2020 which the resident could still change if it was inconvenient. The letter confirmed that the attending operative would be provided with personal protective equipment (PPE) and would respect safe social distancing rules.
The landlord has produced an open letter dated 18 May 2020 written by the Minister of State for Housing “to all social housing residents in England”, which contained guidance on gas safety checks. It stated that, for residents who were self-isolating, they should advise their landlord of this fact and rearrange their check to take place when their isolation had ended. For residents who were ‘shielding’, it stated that the risk to them from the virus had to be balanced against the risk to them from problems with their gas appliances and so the check might still need to go ahead. If so, the operatives involved should follow the latest guidance on how to work safely. The letter provided a link to this guidance under the heading ‘maintenance and repairs’, which stated “operatives entering your home should notify you in advance of arrival, maintain a safe distance and follow hygiene procedures”.
On 1 June 2020 the landlord’s contractor sent the resident a third letter (the final letter) headed “Urgent notice – gas safety in the home” and “Legal proceedings to commence – contact us immediately”. It noted that it had written to the resident on 31 March and 21 April 2020 and advised that it was now referring the question of obtaining access to the property to its legal department, so that it could apply to a magistrates’ court for legal authority to gain access. It stated that this action would be taken in 14-days. However, this could be avoided if the resident were to contact it straightaway and agree a time and date for the safety check to be carried out. It concluded that, if the check had already taken place by the time the letter was received, the resident should contact it so that its records could be updated.
On 5 June 2020 the resident complained to the landlord about the final letter, stating that she had not received the first letter dated 31 March 2020 until 9 April 2020, which gave an appointment time for that afternoon. She confirmed that she was at home as she was “already self-isolating at that time”, but no-one had attended. The second letter dated 21 April 2020 had arrived on 25 April 2020 giving an appointment time for 28 April 2020. She accepted that she had not tried to contact the landlord’s contractor to delay this appointment as she did not think anyone would attend anyway.
The resident then confirmed that an operative had attended at 3.30pm on 28 April 2020, when she explained that she was self-isolating due to the virus and it was agreed that she would make contact and rearrange the check when it was safe for her to do so. The resident advised that, between receiving the second and final letters, she had received a telephone call from “a young woman” on behalf of the landlord, about the check. She stated that the woman was already aware she was “self-isolating” but asked whether the check could now be arranged. The resident explained that, as nothing had changed in the situation, her need for a deferral remained the same.
The resident was therefore unhappy at receiving a notice threatening legal proceedings, which she described as “absolutely appalling, unnecessary, spiteful and extremely unprofessional”. She also noted that the email contact information provided in the final letter did not appear to be functioning. Further, she had tried telephoning the contact number given three times that day but, following an initial greeting, nothing happened and she was unable to speak to anybody.
The landlord acknowledged the complaint on 10 June 2020 and advised that it aimed to respond by 8 July 2020. However, due to the pandemic its staff were home working, prioritising emergency situations, and trying to keep services going for its most vulnerable residents. Accordingly, the response might be delayed but it would let the resident know of any revised timescale if it was unable to respond as planned.
On 12 June 2020 the landlord discussed the complaint with the resident by telephone. She confirmed that she was self-isolating because she came within a ‘vulnerable category’. She reiterated that she had made the contractor aware of the situation and it had agreed to ‘accommodate’ her isolation and contact her later to arrange a check but then sent the legal action letter instead. She commented that, for some tenants, receiving such a letter might prove too much to cope with. The landlord noted that she had now spoken with the contractor and a gas safety check had been completed that day.
In the landlord’s stage one response of 8 July 2020, it stated that it understood the resident’s complaint to be that, as she could not get in contact with its contractor by email or telephone, she could not understand how a letter threatening legal action could be sent. In response, the landlord advised that, contrary to the resident’s report, its engineer had attended her property on 9 April 2020 at 3.11 pm but “could not get access”. It agreed that when the engineer arrived for the second appointment on 28 April 2020, he was told that she was self-isolating. The landlord confirmed that “towards the end of the period of your self–isolation” its contractor had contacted her by telephone to see if she was in a position to agree to a check taking place and she had declined on the basis that the pandemic was “still active”.
The landlord asserted that the final letter was not a “legal letter issuing a warrant” but rather an invitation that a check be agreed upon to avoid any such action being considered. The landlord acknowledged that the resident had reported she was “shielding/self–isolating” at the start of the pandemic and the situation was put on hold, but the recent guidance allowed gas checks to go ahead subject to the use of PPE and social distancing. It confirmed that information had been provided to residents on this point.
The landlord apologised for the fact that the resident had been unable to get through to its contractor by telephone, being constantly placed on hold. It accepted that the email contact should have enabled contact to be made. It noted that some of the contractor’s staff were away from the business on furlough due to the pandemic and this meant its remaining staff were busier than usual. In conclusion the landlord apologised for the distress caused to the resident upon receipt of the final letter which it had not intended to be “perceived as a threatening letter” but explained that it was necessary to secure agreement to the check which it was legally required to carry out.
Later that day, the resident asked to escalate her complaint on the basis that the landlord had misunderstood it. She said it was not that a legal notice had been issued because she had been unable to contact the contractor, but rather that it was sent when she was already in contact with the contractor who had accepted that it should be deferred. She reiterated that she had been home on 9 April 2020 and no operative had attended. She confirmed that her self-isolation was not as a result of a suspected or actual infection of the virus (so the 14-day period did not apply), and instead she was isolating because she was vulnerable and therefore did not want anyone entering her home.
The resident disputed the landlord’s interpretation of the final letter as it read that the matter had been passed to the legal department for a warrant to be obtained, rather than that this being something to be considered if an appointment could not be agreed (as asserted by the landlord). She stated that the contractor had agreed that deferring the check was acceptable and that if there had been changes to the guidance, then the contractor should have contacted her to discuss that before sending out a threatening letter.
The landlord acknowledged the escalation request the following day and issued its stage two response on 13 August 2020. It identified that the resident’s complaint fell into three distinct areas: receipt of the final letter; whether the appointment was attended on 9 April 2020; and the inability to contact the contractor and the reasons for that. The landlord responded as follows:
1. It was legally bound to conduct an annual gas check on all the properties it managed before the previous check expired. To ensure compliance it had a standardised system which involved a series of computer-generated letters being sent to residents which “do include some legal language”;
2. The reminder letter was automatically sent “even though an appointment had already been booked prior to the letter being dispatched” as the automated system did not allow for individual residents to be removed where a check had been booked but not yet taken place by the time the letter was due to be sent;
3. It recognised that the lockdown was a difficult time and that the resident was shielding, but the gas check still needed to go ahead and it apologised for any stress the letter may have caused;
4. It maintained that its engineer had attended on 9 April 2020 and produced a photograph of the resident’s entrance door. It confirmed that, normally a calling card would be left, but its operative had run out and could not leave one. It apologised for this;
5. With regard to the resident being unable to contact its contractor, it confirmed that there was a longer wait time than usual for telephone calls to be answered because the contractor was working with fewer staff as some had been furloughed during the lockdown. However, it agreed that email contact should have been possible and apologised for any difficulties experienced in that regard;
6. It apologised that its stage one response referred to the resident as “self–isolating” when she was in fact “shielding”. It noted that once its contractors had been able to confirm what safety precautions it could offer on entering her home, an appointment had been agreed and a check carried out.

Agreements, policies and procedures

The Annual Gas Safety Check Policy sets out the landlord’s approach to gas safety checks. It states that it will “apply a 3-stage process of communication to gain access to tenanted properties and carry out the Annual Gas Safety inspection. At the 3rd stage (the landlord) will pursue legal action…”
The Annual Gas Safety Check procedure states that:
1. the landlord will send a letter giving 7 days-notice of an appointment time and date. If the tenant fails to provide access, the operative should post “a card” through the letterbox;
2. the next step is for the landlord to send a second letter with an appointment time and date, again giving 7 days-notice. If access is still not provided, the landlord will attempt to contact the tenant by telephone to explain the importance of the check and the “risk of non-compliance”;
3. should access still not be granted, the landlord will instruct the local authority’s legal services team to take court action and a letter will be sent to the tenant advising them of the application for a warrant to enter the resident’s premises.

Assessment and findings

The final letter

The landlord is legally bound to carry out annual gas safety checks on its tenanted properties. This is for the benefit of the tenants involved, but it also has a wider application in terms of protecting other neighbouring residents and the population generally. The resident does not dispute that the landlord is obliged to carry out these checks and neither does she question its right to enter her property for these purposes.
The landlord’s procedure for ensuring residents’ annual checks are carried out in time, was due to be initiated in respect of the resident, in late March/early April 2020, just as the coronavirus pandemic was gaining momentum and the first lockdown had been imposed. The pandemic has brought with it a unique set of challenges for all sectors of society, including for landlords and their tenants.
The lockdown was accompanied by law changes, rules, regulations, and guidelines, and a specific vocabulary has developed around it – “lockdown”, “shielding”, “self-isolation, “social distancing”, “PPE” and so on. As the situation has evolved, it has proved to be fluid. It is not something that has been encountered by those involved in this complaint before and, as a result, it is important that this complaint is not looked at with the benefit of hindsight and is put into context.
There is a distinction to be made between ‘self-isolation’ and ‘shielding’. The implication behind the first term is that the resident has potentially been exposed to the virus or is actually infectious with it. The resident 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. It is appreciated that the difference is subtle and the more precise meaning of these concepts has become more embedded as the situation has gone on.
In the landlord’s stage one response it stated that at the “start” of the pandemic it had placed its checks on hold for “shielding tenants”. It has not demonstrated that this was as a result of government guidance. However, if it was, then the landlord acted appropriately in following it. If it was not, then, under the circumstances at the time, the landlord’s decision was a reasonable one. There was a great deal of uncertainty and it was appropriate for it to err on the side of caution.
The landlord states that that strategy changed when it received the advice from the Ministry of Housing, Communities and Local Government in mid/late May 2020 (see paragraph 4 above). It has stated to this Service that, upon receipt of that advice, it produced its own explanatory document headed “Your guide to the annual gas safety check during the Covid-19 period”. This stated that residents who were self-isolating could rearrange checks for once their quarantine expired; and that shielding residents would still have their check but the landlord would “make all arrangements to minimise any risk to you whilst we complete the appointment”. The landlord has further stated to this Service that these two documents were then sent to ‘shielding’ residents with a letter advising that they now needed to make an appointment for the check to go ahead.
However, the landlord has not demonstrated, with evidence, that these documents were specifically sent to the resident. Based on its own position, this would only have been done had it been aware of the resident’s situation. Given that she was referring to herself as “self-isolating”, it may not have been clear to the landlord that she needed to receive this information as a ‘shielding’ resident. There is clearly scope for confusion here, through no fault of either party.
In its stage one response the landlord stated that the resident had “reported you were shielding/self–isolating at the start of the pandemic” and yet the landlord initiated the gas check process, setting appointments for 9 and 28 April, 2020, and apparently contrary to its decision to defer such checks. However, the landlord did not set out precisely when it considered “the start” to be. There is no evidence that the landlord was told that the resident was either shielding or self-isolating until she advised its operative on 28 April 2020. It is reasonable to conclude, therefore, that this was when she first raised an issue and that the landlord therefore acted reasonably by initiating the process prior to that.
Both the resident and landlord have used the terms ‘self-isolation’ and ‘shielding’ somewhat interchangeably. The resident, in her complaint correspondence, referred to self-isolation and only later, to shielding. The landlord, in its stage two response, used both terms. It is therefore clear that there may have been an element of confusion here, in that the terms have been used in place of each other, but one applies to a temporary situation whilst the other is ongoing.
When the contractor visited the property on 28 April 2020, both it and the landlord appeared to be acting on the understanding that the resident was undertaking a finite period of self-isolation after which the gas check could safely be carried out. Indeed, the resident had referred to her situation using this vocabulary at the time. A deferral would have been reasonable as the check could still be carried out fairly soon and, if the resident was self-isolating because she was (or potentially was) infectious, it would not be fair to expose the operative to that risk.
It is agreed that, after this, the resident was telephoned by the landlord to see if a further appointment could be made. There is no evidence of the date of that call (whether before or after the mid/late May 2020 government advice), nor of what was discussed. According to the landlord’s procedure, it should have been to secure an appointment and advise of the consequences of failing to do so (see paragraph 18(b) above). However, based on the evidence, it is equally possible that, as set out above, it was motivated by the landlord’s understanding that a period of quarantine had expired and a check could now proceed. Without further records of the call, it is not possible for the Ombudsman to draw any conclusions on the information that was offered by the resident or the advice given by the landlord at that time.
In light of the above, there is no documentary evidence to confirm that an ongoing deferral of the check was agreed between the landlord and the resident. Whilst this Service notes the resident’s submissions that this was agreed verbally, the Ombudsman can only rely on the documentary evidence provided to the investigation to reach conclusions on what was reasonable and appropriate in the circumstances. Given the ambiguity here, it was appropriate for the landlord to prioritise the safety of its residents and the surrounding public and adhere to the steps set out in its Gas Safety Check procedure by issuing the final letter.
It is fair to say that the letter was robust, both in terms of its tone and content. This is necessary given that it is a standard letter sent to residents in a variety of situations where it is imperative that it elicits a response. The landlord’s obligation to carry out the checks is of such importance that it may be necessary for it to take enforcement action in such cases and it must be sure that it has given residents appropriate warning of any such action. When placed into context, and without exercising the benefit of hindsight, the landlord’s actions in sending out the final letter were reasonable.
For the sake of completeness, it is noted that the landlord’s safety check procedure provided for seven days-notice of appointments to be given. Both the first and second letters arrived with the resident being given insufficient notice. However, they were both sent out in good time and there is no evidence that the delay in the resident receiving them was because of any failing on the landlord’s part. Again, this may have been an impact of the pandemic on the postal service but this Service cannot reach any firm conclusions in that regard.

The missed appointment

There is a dispute as to whether the landlord’s operative attended the resident’s property for the first appointment on 9 April 2020. The resident states that she was at home all day and nobody came, but the landlord submits that its contractor did attend and was unable to gain access. In support of its position, the landlord has produced a photograph taken of the outside of the property by its operative. It is marked “090420 151159” suggesting it was taken at 3.11pm on 9 April 2020. Therefore, it is reasonable to conclude that the operative did attend that day. There is no evidence to explain why the operative was unable to make their presence known to the resident and there is no suggestion that it was due to a lack of co-operation on her behalf.
The landlord’s procedure provides for the operative to leave a card in these circumstances. The landlord accepts that this was not done on this occasion and that it failed to adhere to its procedure in that regard. This represented a minor service failing on its part, but it has apologised to the resident and she was not put to any particular inconvenience as she was already at home. Whilst it is accepted that this missed opportunity would be frustrating for the resident, in the context of the subsequent events, the landlord has offered appropriate redress for the identified failing by recognising its error and apologising for it.

Communication issues

The resident could not get through to the contractor after receipt of the final letter, either by telephone or email. She reasonably reports that she felt a sense of urgency to make contact with the contractor upon receipt of the letter and that her inability to do so caused worry and anxiety. The Ombudsman appreciates that this would have been a particularly stressful situation for the resident and that the contractor’s lack of availability does, on the face of it, represent a failure in service.
However, as explained at paragraph 21 above, the situation presented by the covid-19 pandemic was an unprecedented one and the circumstances were such that the contractor was required to operate on a reduced capacity at short notice through no fault of its own. By recognising that there was a shortfall in its service, explaining the reasons for this to the resident, and apologising for the impact upon her, the landlord has adequately addressed this part of the complaint. As a result, no further action is necessary in that regard.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in sending the resident the final letter.
In accordance with paragraph 55(b) of the Scheme the landlord has made redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaints about the missed appointment and the communication issues.

Reasons

The final letter complied with the landlord’s policy and was appropriate. There was some confusion as to the resident’s situation and, in the circumstances at the time, the landlord acted reasonably in sending it out. The operative did not leave a card when attending an appointment on 9 April 2020 and this was contrary to its policy but did not cause any significant inconvenience to the resident. The resident struggled to contact the contractor upon receipt of the final letter but this was understandable given the situation at the time. The landlord has apologised for these issues and that was a proportionate response.