Birmingham City Council (201915592)

REPORT

COMPLAINT 201915592

Birmingham City Council

29 January 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 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

This complaint is about the landlord’s response to:
1. The resident’s Subject Access Request.
2. The resident’s reports of outstanding repairs to his boiler.
3. The resident’s concerns that the Gas Safety Certificate for his property is not valid.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
The resident has complained that he had made two Subject Access Requests (SARs) but that the landlord had not provided the information requested. The resident said that he had to make at ‘‘least two, probably three, requests and even after the requests had been acknowledged they still took approximately 90 days to actually supply the data – which failed to comply with the security requirements of the act. The data was sent insecurely despite containing sensitive information, including live passwords’’. The resident also complained that incorrect data is held about him.
Paragraph 39(m) of the Housing Ombudsman Scheme states that: “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s response to his Subject Access Request is outside of the Ombudsman’s jurisdiction.
This is because this complaint relates to a reported breach of Data Protection regulations and as such complaints about these matters fall with the remit of the Information Commissioners Office (ICO) and is not a matter the Ombudsman can consider.

Background and summary of events

Background

The resident is a secure tenant of the landlord, which is a Council. The resident’s tenancy commenced on 20 September 2004.
A Gas safety check was carried out at the resident’s property, by a Gas Safe Register engineer, on 8 April 2019, a copy of which was sent to the resident. The certificate stated that the boiler had been inspected and was safe to use.

Summary of events

On 12 August 2019, the resident reported a repair regarding his heating. Prior to this the last record of the resident reporting concerns with his heating was on 9 February 2018. The repairs log notes that the resident had hot water only. The records give a target date of 15 August 2019 but do not include a completion date for these works.
On 6 December 2019, the resident again reported concerns about his heating. The landlord raised a job, and attended, the same day.
The resident contacted the landlord again about his heating on 27 January 2020. The job was given a target date of the same day; however, the records indicate that the landlord did not attend until 4 February 2020.
On 30 January 2020, the resident received a call from the landlord’s contractor arranging an appointment for an engineer to attend on 4 February 2020. The resident said that, ‘‘From the call, it seems the engineer will replace faulty components and, basically, remedy the problems to the boiler’’. The resident said that this should have been done two years ago and that, ‘‘The Council have failed to appreciate the full extent of the problem – that being heating and hot water, not just hot water’’. The resident said that the heater from the kitchen should also be replaced, that it should have been replaced two years ago, and that the during his call with the contractor they said they would look into this. The resident also said that he had had no response to his complaint.
The same day, the resident logged a formal complaint with the landlord. The resident complained that his boiler was faulty and had been ‘‘unreliable, unstable, not functioning correctly and hasn’t functioned properly for the last two years”. The resident said that the boiler is over 15 years old, does not function as it should and over the last few years, the landlord had been called out several times with regard to “progressive” faults, including that he cannot have heating on and use hot water together without issues. The resident said that a landlord’s operative said that the boiler ‘‘was fitted incorrectly to start with when it was fitted (approx. 15 years ago)’’ and that the problem was unresolved. The resident said that the boiler needed replacing and fitting correctly.
The landlord acknowledged the resident’s complaint on 31 January 2020. The landlord said that it had started an investigation and would provide the resident with a response within 15 working days. The landlord also advised that if it were unable to respond in full by that date, it would contact the resident to explain why it was taking longer.

On 5 February 2020, the resident emailed that landlord to say that at 8:30am the previous day a gas engineer called at his property to install new/replace parts to his boiler

The landlord issued its initial response to the resident’s complaint on 13 February 2020. The landlord said that it had spoken with its contract works officer to get the resident’s complaint resolved. The landlord said that it had arranged for an engineer attended the resident’s property on 19 February 2020 to check the heating and hot water. The landlord said that another job had been raised to ‘‘supply and fit round top single or double convector radiators, supply & add de-sludge treatment to central heating system, supply and add approved inhibitor, flush out, refill & Turn on & test run, Supply and fit angle pattern lock shield wheel head radiator valve and install 15mm copper tube’’.
The landlord apologised to the resident for the delays he had experienced, and the inconvenience caused as a result. The landlord ended by advising the resident that if he was unhappy with the way it had dealt with his complaint, he could ask for his complaint to be reviewed. The landlord said that it would look into his enquiry again and send him a final complaint response within 20 working days of the date it received his request.
On 21 February 2020, the resident emailed the landlord regarding its response of 13 February 2020. The resident said that he was assuming that the response related to his complaint of 30 January 2020 as he had more than one complaint with the landlord. The resident stated that since he logged his complaint on 30 January 2020 he had had no response from the landlord. The resident also said that the timescales covered in his complaint do not go back far enough. The resident stated that he had first raised issues with the landlord over two years ago, but the response only refers back as far as the previous year. The resident went on to say that he was often without hot water and/or heating during some of the coldest of winter months. The resident also said that the heater was still missing from his kitchen.
The landlord attended the property and completed the check of the resident’s boiler, arranged for 19 February 2020, on 25 February 2020.
The resident contacted the Ombudsman on 9 March 2020, following which the Ombudsman wrote to the landlord to ask that it address the resident’s complaint about outstanding repairs to his boiler and the electric heater in his kitchen being removed from his kitchen and not replaced.
The landlord wrote to the resident on 16 March 2020. The landlord said that it was sorry if the resident felt that he had been let down, but it had responded within the specified time scale for such repairs. The landlord also said that it was aware that the replacement heater in the kitchen remained outstanding, and that it would be making further enquires with the contractor about getting it replaced.
On 23 March 2020, the landlord wrote to the resident to say that it would be attending to carry out its annual gas safety check on 1 April 2020.
On 27 April 2020, the landlord sent the resident a Notice before exercising power of entry. The notice stated that the landlord’s gas contractor had attempted several times to gain access to the resident’s property to carry out a gas safety inspection, without success. The notice warned the resident that unless he contacts the landlord before 4 May 2020, the landlord would force entry to his property. The resident disputed that he did not give access saying that he stayed at home all day, but no one came, and no one contacted him.
On 28 April 2020, the landlord issued its final response to the resident’s complaint. The landlord noted that the resident had stated that his central heating boiler had been defective for several years and that it had failed to respond. The landlord said that having looked at the repairs history over the last year, there had been six requests for assistance, all of which had been responded to. The landlord also said that in 2018 only one defect was reported on 9 February 2018, and repaired on 12 February 2018, and in 2017 no faults were reported.
The landlord refuted the resident’s statement that it had failed in its duty of care and been negligent. The landlord also said that by law it has to carry out an annual gas safe check to all appliances within its housing stock, letters from the gas contractor had been sent to the resident giving him an appointment slot for this to take place, that the gas safe check had always been undertaken with the resident’s cooperation and that the boiler had always passed its annual inspection.
The landlord went on to explain that all its contractors are instructed to carry out repairs while the appliance remains economical to do so and components are available, and in this case the resident’s boiler does not require replacement as he had requested. The landlord also said that the repair to replace the heating in the kitchen remains open, and will be completed after the current social distancing observations are lifted. The landlord noted that the resident had requested compensation but, as there was no legal liability, it was unable to make any payment in respect of any claim received.
The landlord ended by confirming that this response concluded its formal complaints process and that this response had been recorded as a Stage 3. The landlord said that as a matter of courtesy, a copy of its letter had been sent to the Housing Ombudsman and that the resident can go back to this Service should he remain dissatisfied with this response.
On 29 April 2020, the annual gas safety check was carried out at the resident’s property, by a Gas Safe Register engineer, and a letter sent to the resident providing him with a copy of the report. The certificate stated that the resident’s boiler was inspected and safe to use. The resident has claimed that the certificate was not valid because the ‘Record received by’ section of the certificate said ‘Covid 19’.
The resident referred his complaint to this Service on 1 May 2020. The resident explained that he had recently received a response from the landlord, not from any of his emails or emails sent via their web site, but after the landlord received communication from the Ombudsman. The resident said that the landlord’s response ‘‘only adds insult to the negligence and failings. The response received is inaccurate, misleading and not true. It is clear from the response that the complaint has not been fully considered and that the information being referenced is not accurate, factual or safe’’.
The resident sent further emails to this Service on 3 May and 22 June 2020; the resident said that ‘‘a recent Gas Safety Inspection that failed to comply with legislation, in that it did not occur within the legal time frame, a Gas Safety Inspection Certificate has been issued – but, it’s not valid’’. The resident also said that:
1. His “boiler that was fitted incorrectly fifteen years ago was running in reverse and could not be controlled and was considered and reported as dangerous, but they failed to take appropriate action.”
2. “Several years ago, (approximately 10 years ago) the heater in the kitchen burst. The problem was so serious the heater had to be removed…” from his kitchen in 2016 and was not replaced until 2020.
3. When the gas inspection was carried out for his property it did not take place within the one-year time frame and the certificate issued was issued to ‘Covid 19’ so it is not legally valid.
4. The landlord’s failings had “resulted in considerable suffering, misery, discomfort and paying for gas that was heating a boiler that was running in reverse’’.
On 2 July 2020, the landlord emailed the resident. The landlord explained that:
1. It was ‘‘continuing to work with contractors and residents to complete the annual gas safety checks, where it is safe to do so. There has been no relaxation by the Government, of our statutory obligation to complete these annual gas safety checks’’.
2. It was ‘‘very sorry for any upset or inconvenience caused but the safety of gas appliances is more important now than ever, with so many families at home during the national lockdown. Your service date was changed as the contractors gas service engineer was also self-isolating, and that days service work was unable to be distributed to other employees as they had work allocated to them’’.

Assessment and findings

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to its policies, procedures, and any agreements with the resident, and that the landlord behaved reasonably, taking account of what is fair in all the circumstances of the case. This investigation has not sought to assess the standard of the works carried out by the landlord nor is it the Ombudsman’s role to do so.
The Ombudsman is an alternative dispute resolution process to taking legal action. That means that we cannot make the same findings that a court would, and we do not operate in the same way as a court does. We do not make binding decisions on matters such as negligence and liability.

Policies, procedures, and agreements

The tenancy terms and conditions set out the rights and responsibilities for the landlord and the resident. In general terms, the landlord is required to maintain and keep in good repair the structure of the building, including installations for space heating and water heating. The resident is also required to allow the landlord, and any person authorised by the landlord, to inspect for or to carry out repair and maintenance work.
The landlord’s repairs policy states that response to:
1. Emergency repairs (where there is a danger of injury or damage to the property) is required within 2 hours.
2. Urgent repairs (that are concerned with protecting the health and safety of the tenant and their family or the security of the property) shall be one, three or seven working days based on the requirements of The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994.
3. Routine repairs are targeted to be completed within 30 days of them being reported.
The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994 state that:
1. Heating or hot water not working between 31 October and 1 May should be responded to within 1 working day.
2. Heating or hot water not working between 1 May and 31 October should be responded to within 3 working days.
The landlord’s complaints policy states that once it has investigated a complaint and reviewed it, if a tenant was to continue to complain about the same issue without raising any new issues, the landlord will not investigate the matter further.
The landlord has a three stage complaints process.
1. Stage 1 – where the landlord seeks to resolve the issue straightaway
2. Stage 2 – Complaint will be escalated to Stage 2 if the landlord is unable to resolve the complaint at Stage 1. The policy states that the service will investigate the complaint and provide a response within 15 working days.
3. Stage 3 – If the complainant is unhappy with the landlord’s Stage 2 response, they can request that their complaint be escalated to Stage 3. The complaint will then be looked at by an independent officer and a response will be provided within 20 working days.

The resident’s concerns that the Gas Safety Certificate for his property is not valid.

The resident has reported that the Gas Safety Certificate issued on 29 April 2020 was “not legally valid’’. The resident has claimed that when the gas inspection was carried out for his property it did not take place within the one-year time frame and that the certificate was not valid because the ‘Record received by’ section of the certificate said ‘Covid 19’.
Under the Gas Safety (Installation and Use) Regulations 1998, the landlord must also arrange for an annual gas safety check to be carried out every 12 months by a Gas Safe registered engineer.
In accordance with the above regulations, a Gas safety check was carried out at the resident’s property in 8 April 2019, a copy of which was sent to the resident. The certificate stated that the boiler had been inspected and was safe to use.
Again, in accordance with with the above regulations, on 23 March 2020, the landlord wrote to the resident to say that it would be attending to carry out its annual gas safety check on 1 April 2020, within one year of the date of the previous Gas safety check on 8 April 2019.
Under the resident’s tenancy terms and conditions, the resident is required to allow the landlord, and any person authorised by the landlord, to inspect for or to carry out repair and maintenance work.
On 27 April 2020, the landlord sent the resident a Notice before exercising power of entry. The notice stated that the landlord’s gas contractor had attempted several times to gain access to the resident’s property to carry out a gas safety inspection, without success. The resident disputed that he did not give access saying that he stayed at home all day, but no one came, and no one contacted him.
On 29 April 2020, the annual gas safety check was carried out at the property, and a letter sent to the resident providing him with a copy of the report. The certificate stated that the resident’s boiler was inspected and safe to use.
The Gas safety check was completed on 29 April 2020, one year and 21 days since the previous check had been carried out. However, the landlord said that it had experienced difficulties gaining access and later explained that the service date was changed as the contractor’s gas service engineer was self-isolating, and that the work could not be distributed to other employees as they had work allocated to them.
There was therefore no service failure by the landlord in respect of the annual Gas safety check at the resident’s property as there is no evidence to contradict its above account of the reasons for the relatively brief 21-day delay in carrying this out, which were reasonable and beyond its control. There is also nothing to indicate that the gas safety certificate is invalid as it was completed by an appropriately qualified gas engineer. There is also nothing to indicate that the inclusion of the words ‘Covid-19’ has any bearing on whether the certificate is valid or not.

Response to the resident’s reports of outstanding repairs to his boiler.

In reaching a decision as to whether there has been any maladministration or service failure by a landlord, the Ombudsman will consider what is fair in all of the circumstances. We will consider any relevant legislation, such as the Landlord and Tenant Act 1985, and where this has been provided, look at what the landlord has committed to do under its repairs and maintenance policies and procedures.
The resident said that his complaint goes back to 15 years ago when the boiler was first installed and that over that time the landlord had been called out several times with regard to “progressive faults’’, but the landlord’s response only refers back as far as the previous year.
Given that prior to the resident’s report regarding his heating, on 12 August 2019, the last record of the resident reporting similar concerns was on 9 February 2018, more than a year earlier, it was reasonable for the landlord not consider matters prior to 12 August 2019.
This is because, while the landlord’s complaints policy does not have a time frame for bring formal complaints, the Ombudsman encourages residents to raise complaints with their landlord in a timely manner, in a reasonable period usually within six months of the events occurring. This is so that the landlord has a reasonable opportunity to consider the issues while they are still “live” and while the evidence is available to reach an informed conclusion on the events that occurred.
The above summary of events shows that the resident experienced a series of problems with his boiler, which the landlord attended, on five occasions in the six months between 12 August 2019 and 25 February 2020.
1. On 12 August 2019, the resident contacted the landlord to report issues with his boiler. The repairs log notes that the resident had hot water only. The records give a target date of 15 August 2019 but do not include a completion date for these works. However, it is reasonable to assume that the landlord did do so as the resident has not complained about either delays or non-attendance by the landlord.
2. On 6 December 2019, the resident contacted the landlord to report that he had no heating or hot water. The landlord raised a job, and attended, the same day. Given the time of year this repair was reported, the landlord acted appropriately and in accordance with its repairs policy, by responding within one working day.
3. The resident contacted the landlord again about his heating on 27 January 2020. The job was given a target date of the same day; however, the records indicate that the landlord did not attend until 4 February 2020. In this case the landlord’s response was not reasonable. This is because, given the time of year, the landlord’s repairs policy states that it should have responded within one working day but did not do so for six working days.
4. On 19 February 2020, the landlord raised a job for the resident’s heating and hot water to be checked. The records indicate that this was completed on 25 February 2020. In this case the landlord’s response was not reasonable. This is because, given the time of year, the landlord’s repairs policy states that the landlord should have responded within one working day but did not do so for four working days.
5. On 21 February 2020, the landlord raised a job to replace the heater in the resident’s kitchen. In its final complaint response, the landlord said that this job remained open, and would be completed after the current social distancing observations are lifted.
Having reviewed the evidence, while there is evidence of the landlord responding appropriately to the repairs raised, there was service failure by the landlord in that, on two separate occasions, it did not attend in line with its repairs policy. In its Stage 1 complaint response the landlord has acknowledged that there were shortcomings in the service and apologised for this. However, an apology alone does not offer the resident sufficient redress for the delay and inconvenience caused by the failure of the landlord to respond to the resident’s reports on 27 January and 19 February 2020. Therefore, an order has been made in respect of this below.
That said, the substantive matter of the resident’s complaint is not whether there were delays in carrying out repairs to his boiler, but rather that the landlord did not provide a permanent solution to the issues the resident was experiencing with his boiler. The resident has said that his boiler is over 15 years old, does not function as it should and over the last few years, the landlord had been called out several times with regards to “progressive” faults, including that he cannot have heating on and use hot water together without issues.
It is not disputed that the boiler required repeated repairs, which was understandably inconvenient and frustrating for the resident. However, whether full replacement or a repair is required can be a source of dispute, for example, in the case of an ageing boiler. When deciding whether the landlord acted fairly and proportionately, the Ombudsman would expect to see evidence explaining how the landlord made its decision including any relevant specialist technical advice.
The landlord has provided this Service with evidence of five of the six repair reports it had received in the six months between 12 August 2019 and 25 February 2020, four of which (12 August 2019, 6 December 2019, 27 January 2020, 19 February 2020) related to the resident’s boiler and all of which the landlord responded to. There is no evidence that where a fault was identified it was not resolved, and the boiler was working when the operative left the resident’s property.
The landlord also said that in 2018 only one defect was reported on 9 February 2018, and repaired on 12 February 2018, and in 2017 no faults were reported.
In its final complaint response, the landlord explained that all its contractors are instructed to carry out repairs while the appliance remains economical to do so and components are available, and in this case it was satisfied that the resident’s boiler did not require replacement as he had requested. The landlord also said that the gas safe check had been carried out annually and that the boiler had always passed its annual inspection.
While it is appreciated that the resident has concerns about his boiler; the landlord’s response to his request to have his boiler replaced was reasonable. This is because the landlord was entitled to rely on the opinion of its contractors, who are employed to provide it with specialist advice. In the absence of any evidence to the contrary, it was therefore fair and reasonable for the landlord to continue to carry out repairs to the boiler until it was advised otherwise.
When carrying out our investigation, where possible, we look beyond the circumstances of the individual complaint and consider whether anything can be improved in terms of process and systems. The Better Homes Standards refers to the yearly gas safety inspections recording the condition of the boiler, but the landlord should also have a process, when a boiler is breaking down frequently and requiring repeated repairs, to identify that it would be practical and reasonable to replace it. While this not a service failure in itself, a recommendation in relation to this has been made below.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s reports of outstanding to his boiler.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns that the Gas Safety Certificate for his boiler is not valid.

Reasons

The landlord recognised its obligation to repair the resident’s boiler and, on each occasion a fault was reported, arranged for an operative to attend and rectify that fault. However, the landlord failed to respond to two reports of repair to the resident’s boiler on 27 January and 19 February 2020 within the timescales given in its repairs policy. With regard to the resident’s request for his boiler to be replaced, in the absence of any technical advice to the contrary, it was reasonable for the landlord to continue to carry out repairs to the boiler until such time it was advised that the boiler was beyond reasonable repair.
The landlord ensured that the annual gas safety check in the resident’s property was carried out by a Gas Safe engineer. The check was carried out 21 days after what would have been exactly 12 months since the previous check was carried out. However, the landlord has provided a reasonable explanation for this in that it had difficulties gaining access to the property, that the gas service engineer was self-isolating, and that day’s service work was unable to be distributed to other employees as they already had work allocated to them.

Order and recommendation

Order

That within 6 weeks of this determination, the landlord to pay the resident a total of £100, made up as follows:
1. £50 compensation for the two occasions on which the landlord failed to attend the resident’s property to carry out repairs to his boiler within the timescales given in its repairs policy,
2. plus a further £50 compensation in recognition of any distress and inconvenience that he experienced by its failure to do so for a total of eight working days in winter.
That the landlord report back to the Ombudsman with the details of the steps it has taken within 6 weeks of the date of this Order.

Recommendation

The landlord to ensure that it has a formal process in place to identify when a boiler is in need of replacement, particularly when there are repeated reports of failures in a resident’s supply of hot water and heating.
The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.