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Southwark Council (202017575)

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REPORT

COMPLAINT 202017575

Southwark Council

25 January 2022


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 reports about the heating and hot water system at the property. 

 

Background and summary of events

 

Background

 

  1. The resident has been the secure tenant of the landlord at the property (‘the property’), a three bedroomed house for over thirty years. The landlord and Tenant Act 1985 confirms the landlord’s implied obligation to maintain and repair the structure and exterior of the property, including the heating and hot water system.

 

  1. The landlord’s Repairs Guide sets out the service level residents can expect depending upon whether the fault is an emergency, urgent or non-urgent. Loss of heating/hot water is given as an example of an emergency with an initial response time of 24 hours – but the Guide cautions that repairs may not be completed on that first visit. No specific time target is given thereafter.

 

  1. The landlord operates a Complaints Policy which provides for compensation in situations where there has been a delay which has caused a resident “to suffer an injustice”. The policy sets out how compensation will be calculated.

 

  1. Awards for delays and associated distress are divided into three categories, depending on the impact upon the resident concerned, namely low, medium and major. For both delay and distress the level of compensation provided for is £5 pw; £10 pw or £20 pw depending upon the impact category applied.

 

  1. The landlord can also make an award of compensation for the extent of inconvenience suffered by the resident – referred to as “time and trouble”. The parameters for this are £50 minimum – £250 maximum.

 

  1. The policy also provides for the landlord to reimburse costs incurred by a resident which would not have arisen had there been no delay.

 

Summary of events

 

  1. On 2 March 2021 the resident’s heating/hot water system at the property stopped working. He reported this to the landlord, who attended the property the following day, on 3 March 2021. It was found that a spare part was required to complete a repair, and this needed to be ordered from a supplier abroad.

 

  1. On 4 March 2021 the landlord ordered the spare part. It also had contact with the resident’s councillor and agreed to supply two fan heaters to the property noting that the resident was a senior tenant and vulnerable.

 

  1. There was a ten day wait for the part and on 15 March 2021 the landlord’s contractor attended the resident’s property to fit it and test the system. Unfortunately, this did not resolve the problem and further issues were noted at that attendance, including that a power flush was required.

 

  1. On 17 March 2021 the resident telephoned the landlord to complain about the delay as he continued to be without heating and hot water and the repair had failed.

 

  1. The landlord’s internal records show that on 18 March 2021 it decided to replace the boiler to avoid any further delays in trying to repair the existing one. A decision was therefore formally made for replacement and the resident was advised of this by email the same day. 

 

  1. On 22 March 2021 the landlord wrote to the resident acknowledging his complaint and provided its stage one complaint response.  It confirmed that there had been a delay in sourcing parts and that when they had finally arrived, they failed to solve the issue and a new boiler had been authorised. This was due to be fitted on 24 March 2021. In the meantime, it apologised for the inconvenience and offered compensation of £146 in recognition of the impact on the resident. It did not set out how this figure had been calculated. The resident replied the same day stating he did not accept the level of compensation offered and that he was going to seek legal advice.

 

  1. On 23 March 2021 the landlord confirmed to the resident that the amount of compensation had been calculated in accordance with its “policy” for the cost of running the fan heaters until 24 March 2021 (when they would no longer be required as the new boiler was due to be installed). The resident replied, requesting a copy of the policy and questioning why it had taken 28 days to affect the repair, that is from 2 to 29 March 2021 (when he understood the replacement was scheduled to be carried out).

 

  1. On 25 March 2021 the landlord forwarded the resident a copy of its Complaints Policy and explained that it would pay £2 per day for the cost of running the fan heater and £2 per day for use of a back-up immersion heater and/or for the generation of hot water using kettles and saucepans. It reiterated that it had expected the spare part would resolve the issue. This had taken ten days to arrive from abroad but had not been successful in resolving the problem. At that point a decision was made to replace the boiler rather than trying to locate further parts.

 

  1. On 30 March 2021 the resident emailed the landlord complaining about the fact its contractors had attended his home to fit the boiler on 24 March but had refused to wear face masks. This had happened again on a repeat visit on 29 March. He stated the boiler/hot water was still not working, as had been the case since 2 March 2021. The landlord responded the same day, confirming it had asked its contractor to provide an update to him.

 

  1. The landlord’s contractor attended the property again on 6 April 2021 at which point the installation was completed and heating and hot water restored to the property.

 

  1. On 7 April 2021 the resident emailed the landlord stating that the work done was, in his view, “poor” and asking for it to be inspected. The landlord responded the same day confirming it would arrange an attendance. Later that day, the landlord’s contractor reported to it that is was due to attend the property again the following Tuesday, 13 April 2021 to look at resolving any issues and to carry out a power flush of the system.

 

  1. On 13 April 2021 the resident emailed the landlord reporting that its contractor had been to the property that day, as arranged, and he still considered the work done was inadequate. He requested a visit for the work done to be checked. The landlord emailed in reply, the same day, and confirmed that one of its inspectors would attend the property together with one of its contractor’s supervisors.

 

  1. On 14 April 2021 the landlord’s heating inspector reported to it that he had visited the property. The resident was reported as being unhappy with the installation, specifically the way a gas run had been installed. He also stated the back of a base unit in the kitchen had been damaged along with cracks being caused to several tiles in that room. Repairs were offered but the resident declined, stating his main concern was that he had spent 28 days without heating and hot water. The inspector concluded a further site visit was required to replace a broken boiler spur. 

 

  1. On 23 April 2021 this Service contacted the landlord on the resident’s behalf. The landlord took this contact as a request to escalate the matter to the second stage of its complaints’ procedure, an initial response having been given on 22 March 2021.

 

  1. The landlord’s internal records, dated 10 May 2021, record that the resident had now agreed to the base unit being repaired and had also contacted Gas Safe and requested an independent inspection of the installation.

 

  1. On 13 May 2021 Gas Safe carried out that inspection and produced a report dated 17 May 2021. This confirmed that the inspector had found faults with the gas supply to the property, namely, the emergency control valve was not labelled with the “on” and “off” positions; the meter regulator was not sealed to prevent its settings from being interfered with; and the gas meter was not supported to minimise strain on any connections. These defects related to the resident’s gas supplier rather than the landlord. However, the inspection further identified that the pipework located behind the cooker in the kitchen of the property required extra support on a vertical section, although there was no sign this was causing a problem at that point. Gas Safe required this defect to be corrected by the landlord’s contractor.

 

  1. On the question of the boiler installation, Gas Safe identified the following issues, namely notification had not been given to the relevant Building Control Authority of the installation; and an internal wall seal had not been installed. It held the landlord’s contractor responsible for resolving both of these issues too.

 

  1. The resident forwarded the report to the landlord the same day, that is on 17 May and on 18 May 2021 the landlord confirmed the report was being considered as part of the stage two complaint review it was now conducting.

 

  1. On 27 May 2021 the landlord wrote to the resident with its stage two complaint response. It understood the complaint to be that the resident had been without heating and hot water from 2 March 2021 to 6 April 2021 and that he was unhappy with the delay. It noted that due to COVID-19 the resident had been unable to use alternative facilities to shower/bathe during that time – for instance at a friend’s home or a local gym. It understood the resident was dissatisfied with the quality of the work carried out and that he considered he should not have to pay rent for the period in question.

 

  1. The landlord confirmed it had reviewed the situation and its’ findings were as follows: –

 

  1. It had completed the outstanding works identified in the Gas Safe report where they were its responsibility (as opposed to being up to the resident’s gas supplier to carry out). It stated all works were completed by 26 May 2021 and it was now looking to offer compensation to the resident for the period of 2 March 2021 to 25 May 2021.

 

  1. It could not offer to refund the resident’s rent as it was bound by its complaints and compensation policies, which only allowed for compensation for delay, distress and inconvenience.

 

  1. Its repairs guide set out that an attendance for heating and hot water issues should take place within 24 hours which it had complied with. No specific timeframe for completion of any repairs was included in the policy because they were not always straightforward, but it conceded a reasonable time for completion, in the resident’s case, was one week. It therefore accepted a delay of 4 weeks – that is from 9 March to 6 April 2021.

 

  1. The landlord offered total compensation of £443 made up as follows: –

 

i)                    It categorised the impact on the resident of the situation as “medium” according to its policy, for the time there was no heating/hot water, and “minor” thereafter. It therefore offered compensation of £10 per week (9 March – 6 April 2021), total £40, and £5 per week for the remainder of the delay (7 April – 25 May 2021), total £35.

 

ii)                  For the resident’s distress, it took into account that alternative facilities for washing could not be used, but that no impact to health had been identified. Applying its “medium” assessment again, it calculated that compensation of £10 per week for the four weeks the facilities were out of action was appropriate, total £40.

 

iii)                The landlord conceded the resident had been put to time and trouble, having to accommodate repeat visits to his property. It stated that no offer had been made in this regard in its stage one complaint response but noted that events had taken place after the complaint was made. It offered £100 in total for this aspect of the complaint.

 

iv)                Finally, the landlord applied a daily compensation rate to reflect the cost of heating the property/water by other means. It offered £2 per day for immersion/kettle heaters and £2 per day for the cost of running the fan heaters, across the period of time the facilities were lacking, namely 38 days. This equated to £76 for the immersion heater/kettle and £76 x 2 for the two fan heaters.

 

  1. Hence the compensation was calculated as:

 

a)     Impact     £  75

b)     Distress     £  40

c)     Time and Trouble   £100

d)     Cost of running Immersion/Kettle £  76

e)     Cost of running 2 x fan heaters £152

 

f)       Total     £443

 

 

  1. The resident has reported to this Service that he remains dissatisfied with the level of compensation offered.

 

Assessment and findings

 

Scope of investigation

 

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (“the 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. One of those reasons is that the matters complained of are, or have been, the subject of legal proceedings (Rule 39h).

 

  1. In September 2021 the resident instructed solicitors to send a letter of claim to the landlord asserting the property was in disrepair. (Indeed, he had instructed a different solicitor to make a similar claim about the property in June 2019 and before the events that gave rise to this complaint). However, as there is no evidence that this contact was followed up through the actual issue of court proceedings – and this would be needed to satisfy the definition of “legal proceedings”. Accordingly Rule 39h does not prevent an investigation into the matter complained of. 

 

The heating and hot water system

 

  1. There is no dispute that the landlord was responsible for repairing the resident’s heating/hot water system. It correctly categorised the repair as an “emergency” and attended within 24 hours, thus meeting its service standard.

 

  1. Unfortunately, the repair could not be completed straightaway, and the landlord was hampered by the availability of spare parts. Once it became apparent the situation was still not going to be resolved, it made the decision to replace the boiler at the property. However, the evidence demonstrates that the impetus was then lost, and it took another 2 ½ weeks before the heating/hot water was restored. The Ombudsman takes note of the fact these events took place in late winter when it would have been cold, and the resident, who the landlord acknowledged as vulnerable, reasonably reports finding his living conditions challenging during this time, notwithstanding the fan heaters supplied by the landlord.

 

  1. The landlord has accepted there was a delay. It has not tried to use the difficulty it experienced in securing the spare part to excuse part of the time it took to resolve matters. Its offer of compensation included a finding that one week would have been a reasonable timeframe for completing the repairs and restoring heating and hot water at the property. Such a timeframe presents as reasonable in the circumstances and the landlord’s subsequent identification of a service failure here was appropriate given that it did not complete the boiler replacement until 38 days after the resident’s initial report.

 

  1. When the resident remained unhappy with the quality of the work, the landlord responded with a prompt attendance at the property which was also appropriate. However, it took an independent report from Gas Safe to secure resolution of ongoing teething problems with the installation and the resident was put to the inconvenience of arranging this.

 

  1. It was appropriate that the landlord refused the resident’s request that his rent be refunded for the period in question due to the failures in resolving this issue as rent liability and compensation for identified landlord service failures are separate and distinct issues. The landlord has offered compensation in accordance with the one week timeframe it identified as a reasonable period within which to resolve the heating and hot water issues at the property. This was a fair approach to take as the fact that the boiler broke down did not, in itself, mean the landlord had failed in some way. There was always, therefore, going to be a period of time whilst the situation was sorted out during which the resident’s standard of living was impacted.

 

  1. The landlord categorised the impact on the resident as ‘medium’, according to its policy, whilst there was no heating and hot water and ‘minor’ thereafter until the residual issues were resolved. Had the resident not been offered fan heaters and had he had no opportunity to heat water by alternative means, this categorisation would not have been reasonable as this would have left a vulnerable tenant without any form of heating and hot water during a cold part of the year for an unacceptable length of time. However, in the circumstances, given the mitigation of the landlord providing the temporary resolutions detailed, the landlord’s assessment here is considered both reasonable and proportionate.

 

  1. In terms of calculating the compensation, the landlord has applied the correct weekly rates to the different categories, that is for the impact and distress. With regard to the figure for time and trouble caused to the resident, some of this would have happened anyway, had the repair taken place as planned and there been no service failing – it is only later repeat visits to correct faults and the resident’s organisation of a Gas Safe inspection that can be taken into account. The figure offered is therefore considered to be appropriate and proportionate.

 

  1. The landlord also offered to pay £6 per day for the associated costs of using kettles/saucepans/fan heaters and so on (£2 per day per item). There is no evidence of the actual additional cost the resident incurred for utility costs during this period, therefore the landlord’s calculations, which are consistent with similar figures used elsewhere across the social housing sector, is considered both reasonable and proportionate.

 

  1. Whilst there was a delay in resolving this repair, and whilst the resident was left with uncomfortable living conditions, the Ombudsman’s view is that the landlord has offered reasonable redress with the admissions it has made and the compensation it has already offered.

 

Determination (decision)

 

  1. In accordance with paragraph 55(b) of the Scheme the landlord has offered reasonable redress in respect of its handling of the resident’s reports about the heating and hot water system at the property. 

 

Reasons

 

  1. The landlord acted appropriately in accepting there was a delay in restoring the resident’s heating and hot water and that there was then further inconvenience to him whilst residual issues were resolved. It offered a reasonable and proportionate amount of compensation to reflect the impact of these failures, which it calculated in accordance with the provisions contained within its Complaints Policy.

 

Recommendation

 

  1. The landlord to re-offer the compensation of £433 to the resident, if this has not already been paid, as it recognised genuine elements of service failure and the above finding is made on the basis of that sum being offered.