Chesterfield Borough Council (202219761)

REPORT

COMPLAINT 202219761

Chesterfield Borough Council

19 August 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

1. The complaint is about the landlord’s handling of the resident’s:
   1. Concern about the condition of the property when it was let to him in 2014.
   2. Reports of repairs, including his concerns about subsidence and contamination in the garden.
   3. Concern it committed disability discrimination against him.
   4. Concern that the electric meter was not working, and that it had not provided an Electrical Installation Condition Report (EICR).
   5. Concerns about the conduct of its staff.

Jurisdiction

2. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42 of our Scheme, the following aspects of the resident’s complaint are not within our jurisdiction to investigate.

The resident’s concern about the condition of the property when it was let to him in 2014.

4. After carefully considering all the evidence, in accordance with paragraph 42(c) of the Scheme, the resident’s complaint about the landlord’s handling of his concern about the condition of the property when it was let to him in 2014, is outside of our jurisdiction to investigate.
5. Paragraph 42(c) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion: “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
6. The evidence indicates that the resident moved in to the property in 2014. We have seen no evidence to indicate that the resident raised a complaint about the condition of the property and the time, or within a reasonable period of time. Neither has this Service seen evidence which indicates the resident was unable to make a complaint about the condition of the property in 2014. Due to the time that has passed since the resident moved in, this Service would not be able to effectively assess the landlord’s handling of the matter at the time it occurred. As such, it is outside of our jurisdiction to investigate.

Reports of repairs, including his concerns about subsidence and contamination in the garden

7. After carefully considering all the evidence, in accordance with paragraph 42(e) of the Scheme, the resident’s complaint about the landlord’s handling of his reports of repairs, including his concerns about subsidence and contamination in the garden is outside of our jurisdiction to investigate.
8. Paragraph 42(e) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where a “complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings”.
9. The evidence shows that the resident raised concerns about the condition of his property in 2021, and made a formal complaint about the landlord’s handling of the repairs. The resident also raised a concern that his garden was subsiding and contaminated due to the presence of coal. The landlord instructed an independent surveyor to inspect the resident’s property in June 2021. The landlord instructed another surveying company to conduct a further survey in March 2022.
10. The resident disagreed with the findings of the surveys completed, and expressed a concern about the companies the landlord had instructed to do the surveys. As such, he was unwilling to allow access to complete repairs at the property. That repairs are required at the property are not disputed by the landlord. On 8 December 2023, the resident filed a ‘money claim’ at the county court. His claim stated that the landlord’s surveys “missed vital information on the condition of the property”. The resident sought “£1,500” to pay for a “level 3 survey” to look at the overall conditions of the property, including his concerns about the garden. On 17 January 2024, the landlord made an application to the county court for an injunction to grant access to the property to do repairs.
11. The evidence shows the resident’s concerns about disrepair in his property, including the garden, are subject to ongoing legal proceedings. This Service understands that the resident’s claim at the county court is due to be heard on 22 August 2024. The evidence shows the injunction hearing was adjourned in February 2024, and will take place later in 2024.
12. The Ombudsman will not consider a complaint where, in the Ombudsman’s opinion, the court can handle all the matters now complained of to this Service. This is because the Ombudsman ought not to make decisions on matters which will be subject to findings and orders of the court. The resident will have the opportunity to raise his concerns about the landlord’s handling of the repairs, and the quality of its inspections in the upcoming court proceedings. As such, this aspect of the resident’s complaint is not within the Ombudsman’s jurisdiction to investigate.

Concern the landlord committed disability discrimination against him

13. After carefully considering all the evidence, in accordance with paragraph 42(f) of the Scheme, the resident’s complaint about the landlord’s handling of his concern the landlord committed disability discrimination against him, is outside of our jurisdiction to investigate.
14. Paragraph 42(f) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “concern matters where the Ombudsman considers it fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
15. Throughout the duration of his complaint, the resident raised concerns about the conduct of the landlord’s staff, and that their actions amounted to disability discrimination. He stated that the landlord’s actions amounted to “direct discrimination” under the Equality Act 2010.
16. The serious nature of the resident’s concerns are acknowledged. However, this Service does not have the authority, nor the expertise, to make a determination on whether the landlord’s actions amounted to a breach of the Equality Act. This is a complaint which must, ultimately, be decided by a court of law. In accordance with paragraph 42(f) of the Scheme, we will not consider the resident’s complaint that the conduct of the landlord’s operatives amounted to disability discrimination.
17. However, this investigation has considered how the landlord responded to the resident’s complaint about the conduct its staff, and whether its response was reasonable in the circumstances.

Background

18. The resident is a secure tenant of the landlord in a 3 bedroom house, and his tenancy started in June 2014. The evidence shows the resident reported being vulnerable due to having physical, and mental health conditions, and is registered as disabled.
19. On 9 November 2022, the landlord attended the resident’s property to complete an EICR. The resident contacted the landlord on 3 February 2023 and expressed a concern that it had not provided him with a copy of EICR. He said it should have been provided within 28 days in line with the “revised” safety regulations. The resident also supplied a picture of his electric meter, and said it was unsafe and the landlord was “breaking the law”. He said the landlord had been aware of the issues with the meter since 2019.
20. The resident contacted the landlord again on 6 February 2023 to make a complaint about its handling of the EICR and electric meter issue. He said he had been trying to get the meter repaired for “4 years”, and the landlord had incorrectly told him the meter was the responsibility of the supplier. He said the landlord was “breaking the law” as it had not provided him with a copy of the EICR within 28 days. The resident also raised a concern about the conduct of the landlord’s staff stating they were committing “negligence of a serious nature” and specific members of staff should be “sacked”. The resident asked the landlord to consider the complaint at “stage 3 due to the nature of the complaint”.
21. The landlord sent the resident a stage 2 complaint response on 14 March 2023. It said that it no longer had a 3 stage complaint procedure, but had sent the resident a stage 2 response, in line with his request. It said that its position was that it understood the electricity meter to be the responsibility of the supplier. It advised him that any concerns about faults would need to be raised with his electricity supplier. It explained that the changes in regulations, in terms of supplying a copy of the EICR, did not apply to local authority tenants. But, it had provided a copy of the EICR with its response. It noted the resident’s “serious allegations” about its officers, but it was “not possible to respond” at that time. It said his concerns would be “looked into” and dealt with as an “internal matter”.
22. The resident contacted this Service on 10 October 2023 and confirmed he wanted us to investigate his complaint. He said he was unhappy with the landlord’s handling of the substantive issues of the complaint.

Assessment and findings

Scope of investigation

23. Throughout his complaint, and when in discussions with this Service, the resident raised a concern that the landlord’s handling of the substantive issues in the complaint impacted on his health and mental wellbeing. The serious nature of this is acknowledged and we do not seek to dispute the resident’s comments. However, this aspect of the resident’s complaint ultimately requires a determination of liability for personal injury. Claims of personal injury, including damage to health, can be considered via a landlord’s public liability insurance or in a court of law. Such claims will take into consideration medical evidence and allegations of negligence. These matters fall outside of the Ombudsman’s remit.
24. The resident may wish to seek independent advice on making a personal injury claim, if he considers that his health has been affected by any action or lack thereof by the landlord.
25. The evidence shows the resident has complained about substantive issues in his complaint dating back to 2019. As outlined above, some of the concerns the resident raised are outside of our jurisdiction to investigate. As such, this investigation has focused on the events around the aspects of the complaint we can consider. The period this investigation has considered is from when the landlord completed the electrics testing in November 2022, and the associated complaint made about the issue. The complaint about the conduct of the landlord’s staff was also made around this time.

Concern that the electric meter was not working, and it had not provided an EICR.

26. The Social Housing (Regulation) Act 2023 amended the rules on mandatory testing for electrical safety to include registered providers for social housing. The Act came into force in July 2023. The electrical safety standards state that a landlord must complete an EICR every 5 years, and provide the resident with a copy of the EICR within 28 days.
27. The government guidance on electricity meters states that if a resident has a concern about the electricity meter, they should contact their supplier as it is the supplier’s responsibility to maintain electricity meters. If the resident remains concerned about the functionality of their meter, the supplier should arrange for an “independent test” of the meter.
28. On 29 March 2023, the resident raised concerns with the landlord about the contractor who completed the EICR. It is not within the scope of this investigation to consider this aspect of the resident’s complaint as it was raised after the resident had exhausted its complaint procedure.
29. The evidence shows that the landlord completed electrical testing at the resident’s property in November 2022. This was appropriate in the circumstances and in line with its obligations with regard to electrical safety. While the resident’s concerns are noted, the landlord was not required to share EICR under the regulation in force at that time. The landlord has only been obliged to share a copy of a EICR from July 2023 when the Social Housing (Regulation) Act became law. As such, that it did not provide a copy of the EICR in November 2023 was reasonable in the circumstances.
30. After the resident raised his complaint, in February 2023, the evidence shows the landlord investigated his concerns about the electricity meter. An internal email from 7 March 2023 shows it sought clarification from the relevant department who confirmed its position that the concerns about the meter would need to be raised with the resident’s supplier.
31. That the landlord decided to take the resident’s complaint about this matter straight to stage 2 was a shortcoming in its complaint handling. It is noted the landlord sought to abide by the resident’s request to take his complaint straight to the final stage. However, by doing so it went against the approach set out in the Ombudsman’s Complaint Handling Code (the Code) which states “landlords must only escalate a complaint to stage 2 once it has completed stage 1.” It is acknowledged this did not cause the resident a detriment as it was acting as he had asked, but the landlord’s approach was not in line with the Code.
32. The landlord used its stage 2 complaint response, of March 2023, to set out its position on the electric meter. While it is noted the resident disagrees with its position, we have seen no evidence to indicate that the landlord’s position was incorrect, or unreasonable. The government guidance on electric meters in residential properties sets out the maintenance of electric meters is the responsibility of the supplier to that property. If the resident remains concerned about his electric meter, he may wish to raise his concerns with his electricity supplier.
33. The landlord’s stage 2 complaint response also set out its position on the EICR. It explained it was not required to provide it, which was a correct application of the regulations at the time. However, that it provided a copy of the EICR with its response is evidence the landlord had due consideration for the resident’s concerns. The landlord showed understanding of the resident’s concerns about electrical safety, and acted with transparency by sharing the EICR with him. This was appropriate in the circumstances.

Concerns about the conduct of its staff

34. When investigating a complaint about a member landlord, we will consider the response of the landlord as a whole, and will only comment on the actions of individuals only as far as they are acting on behalf of the landlord. Therefore, if the actions of an individual member of staff give rise to a failure in service, the Ombudsman’s determination and any associated orders and recommendations would be made against the landlord rather than the individual.
35. It is noted the resident accused individual officers of “negligence” in his complaint, of February 2023, and said the landlord should dismiss them. While we can look at staff conduct in some cases and we may award compensation or order an apology or staff training due to staff misconduct. What we cannot do is order the landlord to take disciplinary action against individual staff members.
36. The Ombudsman will not form a view on whether the staff member’s actions themselves were appropriate. Instead, it is this service’s role to decide whether the landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it. For staff conduct complaints, landlords should carry out an investigation. This may include conducting interviews and gathering evidence from all parties, to make an informed decision based on its findings.
37. While the serious nature of the resident’s concerns are acknowledged, whether the landlord’s officers were negligent in their application of the electrical safety standards must, ultimately, be decided by a court of law. It is worth noting that we have considered the landlord’s response to his concerns about the conduct of its staff, and whether its approach was reasonable in the circumstances. What we have not done, is make a determination on whether the landlord’s staff committed “negligence” by not acting in accordance with the law.
38. The landlord’s stage 2 complaint response, of March 2023, was inappropriate in relation to the resident’s concerns about the conduct of its staff. That the landlord did not set out what it was going to do to look into his concerns, and that it could not respond at the time was dismissive of his concerns. This caused an inconvenience as the resident was left not knowing what actions the landlord planned to take.
39. We would not expect the landlord to set out any specific disciplinary action it had taken. However, it is reasonable to expect the landlord to set out the actions it had taken to investigate, and give a finding on whether it had upheld that aspect of the resident’s complaint. The landlord’s stage 2 response lacked transparency, and left the resident not knowing what actions it had taken to consider his concerns. We have seen no evidence that it sought to interview the resident about the issue, or that it conducted an appropriately thorough investigation. Considering the serious nature of the resident’s allegations, the landlord’s response was inappropriate and amounted to service failure.

Determination

40. In accordance with paragraph 42(c) of the Housing Ombudsman Scheme the landlord’s handling of the resident’s concern about the condition of the property when it was let to him in 2014 is outside of the Ombudsman jurisdiction to investigate.
41. In accordance with paragraph 42(e) of the Housing Ombudsman Scheme the landlord’s handing of the resident’s reports of repairs, including his concerns about subsidence and contamination in the garden is outside of the Ombudsman’s jurisdiction to investigate.
42. In accordance with paragraph 42(f) of the Housing Ombudsman Scheme the landlord’s handling of the resident’s concern it committed disability discrimination against him is outside of the Ombudsman’s jurisdiction to investigate.
43. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s concern that the electric meter was not working, and that it had not provided an EICR.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s concerns about the conduct of its staff.

Orders

45. Within 4 weeks the landlord is ordered to:
    1. Apologise for the failing identified in this report.
    2. Pay the resident £75 in recognition of the inconvenience caused by its handling of his concerns about the conduct of its staff.
    3. Write to the resident to set out what it had done to investigate his concerns about the conduct of its staff, and the findings of its investigation.