Midland Heart Limited (202121105)

REPORT

COMPLAINT 202121105

Midland Heart Limited

27 February 2024

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 the resident’s requests:
1. That the cleaners stop using bleach or strong chemical cleaning products in the communal areas outside her home.
2. To be notified when communal works are to be completed, including gardening, window cleaning, and repairs.
3. To be informed on what pest control measures the landlord was using and for it to stop using these measures, as she feels it is cruel and potentially harmful.
The Ombudsman has also considered the landlord’s handling of the complaint.

Background and summary of events

The resident is an assured tenant of the property, which is a one-bedroom flat. The landlord is a housing association.
On 27 August 2021 the resident used the landlord’s online complaints form to contact the landlord. She said she wanted it to stop its contractors from carrying out works in the communal areas without first agreeing an appointment with the residents and to stop leaving the communal door open. The landlord responded on 7 September 2021 and said, while it apologised for any inconvenience, its policy did not require it to let residents know about communal repairs unless they would have a major impact on them. It also said there would be times when contractors would need to leave the door open, such as for ventilation during works or for access.
Between 20 September and 1 November 2021, the resident and the landlord exchanged further emails about communal works. The resident said she was not happy with communal repairs or communal gardening taking place without advance notice as it caused inconvenience to residents using the garden or entering and exiting the block. The landlord said that it had tried to call the resident to discuss her concerns. It explained that it would arrange appointments for repairs within a resident’s property and may do with the resident reporting a communal repair. It also said that it would inform residents of any cyclical, or planned, works which were arranged in advance.
The resident emailed the landlord on 11 March 2022 and said she wanted it to pass her contact details onto its contractors so that they could contact her about communal works. She also said she did not want the landlord to clean her windows, or the communal hallways, and she wanted to do this herself. She did not want its contractors to use strong smelling chemicals or bleach. She also asked what the landlord’s pest control involved and said that she did not want it to kill animals or use chemicals.
The landlord replied on 24 March 2022 and apologised for the delay. It referred her to its previous emails in October 2021 when it said it was not able to notify her about communal works. It also said it was not able to remove her from communal cleaning and window cleaning, but that its contractors did not use any harmful substances. It said its pest control contractor may use bait, but this would not be harmful to people unless ingested.
On 3 May 2022 the resident used the landlord’s online complaints form to make a stage 1 complaint. Her complaint was about:
1. Historic issues such as the landlord having taken her curtains, someone trying to get into the property, and her windows having been cleaned while open.
2. Wanting the landlord to record her contact information and give this to all its staff, with special instructions to contact her whenever there is going to be a communal repair or works.
3. Not wanting contractors to leave the communal door open.
4. Not wanting chemicals to be used by the cleaning contractor and not wanting pest control.
The resident submitted a further complaint on 11 May 2022 when she said she wanted the landlord to stop using bleach as it was affecting her health and had a strong smell. The landlord emailed her on 13 May 2022 and said it would pass her comments over to its contractor.
Following contact from the resident, the Ombudsman emailed the landlord on 14 September 2022, asking it to provide a complaint response. The landlord emailed the resident on 20 September 2022 to acknowledge her stage 1 complaint.
On 25 September 2022 the resident submitted a further complaint via the landlord’s online complaints form, which was very similar to her previous complaints. The following day the landlord called her to discuss her complaint and it provided its stage 1 response on 28 September 2022. It said:
1. It had spoken to her about her complaint and agreed the elements with her.
2. She had submitted a complaint on 5 May 2022 which it had not responded to. It apologised for this and offered £35 compensation for the failure.
3. It had updated her contact details, and these could be viewed by staff when needed.
4. It could not take any action against residents smoking in external communal areas. However, its contractors should not be. The landlord asked her to provide further information so it could speak to the contractors involved.
5. She paid for pest control as a service charge. If pests are reported the landlord will instruct a pest control company to carry out treatment. The landlord provided a website link with further information.
6. Its contractors cleaned the block as instructed and did not use harmful chemicals. It provided a website link with further information.
7. It was obliged to carry out communal repairs within 28 days and it was not possible to make every resident aware of when repairs would take place. It would however keep residents updated about repairs affecting their homes and planned works.
8. Window cleaning took place monthly, but it was unable to provide appointments, as when its contractors could attend was subject to change. It apologised for the previous incident when the resident was sprayed with water.
9. Although it asked residents to be mindful of security it cannot control how long the communal door is opened for.
10. It partially upheld the complaint, and said that she could ask to escalate it if she remained dissatisfied.
The resident and landlord exchanged emails about her complaint between 4 October and 22 November 2022. In these emails:
1. The resident reiterated her complaint points and said her home and garden were private places. She did not want contractors coming into the communal hallway or garden without an appointment. She also asked why water could not be used to clean instead of chemicals and why pest control was needed.
2. The landlord explained again that it could not make appointments for communal repairs or works, and that the hallway and garden were communal areas not private ones. It said that pest control depended upon the type of pest found, although it was happy to arrange a call with its pest control team if the resident would like to speak to it. It also said any chemicals used by its contractors were assessed as safe under the Control of Substances Hazardous to Health 2002 (COSHH) regulations. It twice advised the resident that she could ask to escalate her complaint if she wished.
The resident contacted this Service again and the Ombudsman emailed the landlord on 12 December 2022 to ask it to escalate the complaint. On 23 December 2022 the landlord emailed the resident to acknowledge the escalation. On 10 January 2023 the landlord sent internal emails and emailed its contractors about points raised within the complaint. It received replies that day with answers to the various questions it asked.
The landlord provided its stage 2 response on 17 January 2023 and said:
1. It was responsible for providing communal pest control under the tenancy agreement, and this is why a service charge was payable. It was pleased there was no current pest problem.
2. The resident did not want to pursue her earlier complaints about her curtains, delays with repairs, or someone trying to enter the property.
3. She had told it the issue with contractors smoking was historic. However, if this happened again it encouraged her to report it as that type of behaviour was not acceptable of its contractors. It also said she had raised having smelt cannabis from other flats and advised her to report this if it happened again so it could take action.
4. Its stage 1 response about communal cleaning and use of chemicals was correct. It had also checked with its contractor and confirmed that it did not use bleach. It said it chose its cleaning materials to ensure communal areas remained sanitised and disinfected, and it was its responsibility to keep them clean.
5. It did not have set days for window cleaning, as its contractor carried this out at hundreds of sites and was dependant on several factors such as weather and contractor’s availability. It also said it could not consider the incident when the resident was sprayed with water as she said this happened more than 6 months previously, and so was excluded under its complaints policy.
6. In its stage 1 response it accepted it did not have her up-to-date email address recorded on its system which was a service failure. It offered £50 compensation for this and for not previously acknowledging it.
7. The resident had said she found the complaints process and escalation difficult. In response it said it had told her how she could escalate the complaint within its stage 1 response and in further emails it sent to her, but she had not asked it to do so.
8. How she could contact the Ombudsman if she remained dissatisfied.

Assessment and findings

The landlord’s handling of the resident’s request that the cleaners stop using bleach or strong chemical cleaning products in the communal areas outside of her home

The landlord is responsible for the communal areas of its blocks, as the freehold or leasehold owner, which includes cleaning and maintenance as set out under its communal services policy. The policy sets out the standard of internal communal cleaning and says that it will sweep and mop non-carpeted floors, although does not say which cleaning products it will use.
After the resident raised her concerns about communal cleaning on 11 March 2022 the landlord assured her that it did not use harmful chemicals, but that it was responsible for cleaning which was correct. It was reasonable for it to say that it could not remove her property, or the block, from its communal obligation or to allow her to complete the cleaning herself. Allowing residents to carry out communal cleaning could mean that standards are not maintained and it could pose a health and safety risk or a public liability risk for the landlord should someone slip or fall on a wet floor.
The landlord confirmed its position within its stage 1 response and in subsequent email correspondence with the resident. It specifically said its use of any chemicals complied with the COSHH Regulations 2002. These regulations require companies to ensure all chemicals are handled and used in a safe way to prevent ill health, including carrying out risk assessments and handling chemicals in a controlled manner to reduce any risks. The landlord confirmed this again in its stage 2 response and said that it did not use bleach. The landlord had checked with its contractor before providing its stage 2 response which was the correct thing for it to have done.
The landlord’s response was correct and reasonable. It explained, several times, why it needed to clean the communal hallways, that its chemicals were safe to use and how it knew this. There was no maladministration.

The landlord’s handling of the resident’s request to be notified when communal works are to be completed, including gardening, window cleaning, and repairs

The landlord’s communal services policy sets out its responsibilities for communal repairs, window cleaning and gardening. The policy set out the standards for gardening and that grass will be cut between March and October. It also explains how windows will be cleaned, but not the frequency. Under the policy, and the resident’s tenancy agreement, the landlord is responsible for communal repairs including to doors, windows, and flooring.
The landlord has consistently advised within its emails and complaint responses that it was unable to notify the resident, or agree appointments in advance, for communal repairs or works. It explained this was because of contractor availability, the number of properties the contractors attended and factors beyond its control. It is accepted industry practice for landlords not to notify residents of any repairs or services being performed which do not directly affect them, and which do not require access to their homes. In this way the landlord can provide the most efficient service by being able to attend to repairs or perform services with a degree of flexibility.
The landlord also correctly said that it was not required to make appointments for communal work under its policy. While it accepted that some inconvenience could be caused, it confirmed it limited works to between ‘office hours’ to minimise this. The landlord was also correct when it highlighted that communal areas were not private spaces, unlike the resident’s home.
If resources permitted the landlord could consider notifying residents through a text message or email message system, of when works will take place, however the landlord is under no obligation to do this. Its responses to the resident were clear and reasonable. There was no maladministration.

The landlord’s handling of the resident’s request to be informed on what pest control measures it was using and for it to stop using these measures, as she feels it is cruel and potentially harmful

The landlord’s pest control policy, which is set out on its website, states that it is responsible for pest control within internal and external communal areas. The resident also pays for this service as part of her service charge under her tenancy agreement.
When the resident enquired about pest control in March 2021 the landlord answered her questions. It further explained the process within its stage 1 response and provided a website link to further information, which was helpful, and solution focused. It also, in a later email, offered to arrange a call to discuss pest control, which again was a solution focused approach.
Within its stage 2 response the landlord confirmed it had a duty to provide pest control and noted that there was no current pest problem, so the resident’s concerns were hypothetical at that point. The landlord’s response to the resident’s concerns was fair and reasonable and there was, therefore, no maladministration.

The landlord’s complaints handling

The resident made her complaint on 3 May 2022, and the landlord failed to acknowledge it. She made a further complaint on 11 May 2022 which the landlord did acknowledge although as a comment and not a complaint. The landlord’s complaints policy defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.” It will acknowledge complaints within 5 working days and respond within 10 working days.
However, the policy also says that a ‘comment’ will not be a considered a complaint, and defines this as “Disagreement with, or an opinion about, a policy or service standard will be treated as a comment since a service failure has not occurred.” It was reasonable for the landlord to consider the resident’s complaint of 11 May 2022 as a comment or disagreement with its working practice in cleaning.
The landlord did raise a new stage 1 complaint after the Ombudsman emailed it, emailed the resident to acknowledge the complaint within its 5 working day timeframe, and provided its response within 10 working days. Within its response it accepted that it had not responded to her complaint made on 3 May 2022, apologised, and offered £35 compensation for the failure. The landlord fully addressed the resident’s complaint and explained how she could ask to escalate it if she wished to.
After being emailed by the Ombudsman the landlord agreed to escalate the complaint. It pointed out that it had advised the resident how to ask for an escalation and had not received a request, which was correct. However, it could have been more proactive in its complaints handling, as it was clear from the email the resident sent to it after its stage 1 response that she remained dissatisfied with it. It also failed to acknowledge escalation within its 5 working day timeframe.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes, as well as our own guidance on remedies.
The landlord accepted that it had not responded to the resident’s complaint within its stage 1 response and offered compensation, which was in line with its policy amount for a low impact service failure which was reasonable redress. However, it should have escalated the resident’s complaint after she expressed continuing dissatisfaction with its stage 1 response, and failed to acknowledge escalation within its policy timeframe which was a service failure. This caused additional time and trouble for the resident in pursuing her complaint. In line with the Ombudsman’s remedies guidance, an order has been made that the landlord pay £50 addition compensation.

Determination (decision)

In accordance with Paragraph 52 of the Scheme, there was service failure in relation to the landlord’s complaints handling.
In accordance with Paragraph 52 of the Scheme, there was no maladministration in relation to the landlord’s handling of the resident’s request:
1. That the cleaners stop using bleach or strong chemical cleaning products in the communal areas outside of her home.
2. To be notified when communal works are to be completed, including gardening, window cleaning, and repairs.
3. To be informed on what pest control measures the landlord was using and for it to stop using these measures, as she feels it is cruel and potentially harmful.

Reasons

There was service failure in the landlord’s complaints handling as it delayed in escalating the complaint to stage 2 of its process and exceeded its policy timeframe to acknowledge the escalation.
There was no maladministration in the landlord’s response to the resident’s requests as it explained its policies and obligations in relation to communal repairs, pest control and window cleaning and gardening. Its responses were reasonable and fair.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Provide a written apology to the resident for its complaints service failure.
2. Pay directly to the resident further compensation of £50 for the additional time and trouble caused by its service failure.

Recommendations

It is recommended that the landlord pay the £85 compensation it offered to the resident within its stage 1 and 2 responses to the resident if it has not already done so.