Midland Heart Limited (202013354)

REPORT

COMPLAINT 202013354

Midland Heart Limited

01 July 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 level of compensation offered by the landlord to the resident for acknowledged delays and failures to repair a water heater.

Background

2. The resident is an assured tenant and lives in a first floor one bedroom flat. The resident has lived in the property since 1995. The resident has given consent for a representative (the rep) to act on his behalf about this complaint.
3. On 2 February 2017, the resident reported a faulty water heater in his flat. The landlord attended but was only able to carry out a temporary repair. The operative attending recommended that the tank be replaced. The landlord has acknowledged that no follow-on appointment was arranged for replacement of the tank and that this was a service failure.
4. The resident says he has been without hot water in his flat from February 2017 until January 2021. During this time, the resident says he repeatedly boiled his kettle to obtain hot water and went to a local swimming pool to bathe, although this became more difficult during the Coronavirus pandemic.
5. The landlord says that the resident made no contact to follow up on his initial report of the faulty water heater in 2017 until 21 December 2020. The resident says that his representative contacted the landlord about his water heater on 11 December 2020.
6. The landlord raised an emergency repair for the water heater on 21 December 2020. This repair was not completed until 21 January 2021 due to the need to relocate the water heater in a different room. The landlord carried out the water heater repair along with several other unrelated repairs including a leak in the bathroom and a faulty toilet seat.
7. On 2 February 2021, the resident made a complaint about the failure to repair his water heater since 2017.
8. The landlord sent an initial response to the resident’s complaint on 5 February 2021. The landlord offered a total of £170 compensation which it said was £100 for the inconvenience and £70 for the delays caused by not raising the follow-on repair. The landlord said that “In terms of you’re the length of time you have been without hot water, I am sorry that the follow-on appointment required in 2017 was not renewed however it is reasonable for us to expect our customers to let us know that you have not been contacted about a repair you require.”
9. On 8 February 2021, the landlord contacted the resident to ensure that he understood the functioning of his new water heater. The landlord has used this date as the stopping point for its calculation of the compensation offer in its final stage complaints response.
10.  The rep sent two further letters of complaint on 25 February 2021 to the landlord. The resident said that due to the length of time he had been without hot water and the landlord’s failure to meet its repair obligations, a payment of about £2,000 would be fair compensation.
11. The landlord sent a stage one complaint response to the resident on 23 March 2021. The landlord revised its compensation offer to a total of £447.75 which was broken down as £100.00 for inconvenience, £70.00 for delays, £150.00 for the administrative error in not booking the follow up appointment in 2017, and a payment of £127.75 for no hot water from 21 December 2020- 27 January 2021 (at a rate of £3.75 per day minus 3 waiting days).
12. On the 12 April 2021, the resident confirmed he wanted to escalate his complaint to the final stage of the landlord’s complaints process saying that the compensation offered was far too low.
13. After checking with its legal team and extending the deadline for the complaint response, the landlord sent a final stage complaint response on 24 May 2021. The landlord revised its compensation offer again and this time offered a total of £854.00. The breakdown was £682.50 calculated on the basis of no hot water for six months (at a rate of £3.75 per day) and £172.50 for no hot water from 21 December 2020- 8 February 2021 (£3.75 per day minus 3 waiting days)
14. The landlord explained its reasoning for using the six month period as “our Complaints Policy does state that a complaint must be raised no later than 6 months after the date the event occurred which we would consider a reasonable time for our customers to contact us to enable us to put it right and any inconvenience would have been lessened. Although your complaint has been raised over this time period we have considered the circumstances on the basis that original follow up work was not attended and have awarded compensation for the period of 6 months.”
15. After receiving the final stage complaint response, the resident has approached this service for resolution of the outstanding issue which is the amount of compensation.

Assessment and findings

16. Section 11 of the Landlord and Tenant Act 1985 gives landlords a statutory obligation to carry out basic repairs, including the structure and exterior of the property and installations for the supply of water, gas and electricity, sanitation and space heating and heating water.
17. The tenancy agreement between the landlord and tenant also obliges the landlord “to keep in good repair and proper working order any installations, fixtures and fittings provided by (the landlord) for space heating, water heating and sanitation and for the supply of water, gas and electricity, including: water heaters, fireplaces, fitted fires and central heating installations.”
18. The landlord has acknowledged that it failed to meet its repair obligations over an extended period. It has apologised to the resident for this and attempted to put things right by making an offer of financial compensation.
19. The landlord says that its failure to meet its repair obligation is mitigated by the lack of follow up from the resident for a period of over two years between February 2017 until December 2020. The landlord has said that “our tenancy agreements are explicit about the need for both our customers and ourselves to work together to ensure repairs are completed.”
20. The tenancy agreement does state that the resident has a responsibility to report issues promptly to the landlord. Section 4.2 of the tenancy agreement states that the tenant must “report to (the landlord) quickly any repair or fault for which (the landlord) is responsible.”
21. While it is accepted that the lack of follow up from the resident was a mitigating factor, the tenancy agreement only places a responsibility on the resident to report the repair (which was done) and not to follow up or chase the landlord for failure to respond to the report. A recommendation has therefore been made below for the landlord to review their standard tenancy agreement if they intend to rely on this argument in future situations.
22. The landlord’s complaints policy says that “financial compensation is a final option for (the landlord) and will only be paid in cases where the loss or suffering is considered to warrant such a payment or where the customer has suffered significant inconvenience as a result of (the landlords) or their contractor’s or agent’s actions.”
23. The calculation made by the landlord in its final stage complaint response for the period from December 2020 when the resident followed up on his initial report of a faulty water heater until 8 February 2021 is reasonable. The landlord’s repair policy has not been seen by this service, but a three day response for an emergency repair response is reasonable since the landlord’s website indicates that during high demand its response time to emergency repairs is 72 hours. The figure of £3.75 for each additional day after this is also reasonable. Therefore, the payment of £172.50 was fair for this period from December 2020 until February 2021.
24. It is noted that there is some slight discrepancy between the resident’s version of events and the landlords during December 2020, since there is some evidence that the report of a fault may have been made earlier by the resident’s representative on 12 December rather than on 21 December. However, given that the landlord has ended the period on 8 February 2021 rather than when the repairs were completed on 25 January 2021 this discrepancy is not significant enough to make the compensation award for this period disproportionate or unreasonable.
25. The main dispute therefore is the amount of compensation awarded for the period from February 2017 until December 2020.
26. By the end of the complaints process, the landlord had given this matter careful consideration and consulted its legal team about the compensation amount. The landlord has demonstrated a resolution-focussed approach to resolving the complaint and has used its discretion to make a six month compensation award in addition to the period from December 2020 until February 2021.
27. The landlord’s complaints policy says that “a complaint does not cover an issue that is more than 6 months old: A complaint must be made no later than 6 months after the date the event occurred. The time limit will not apply if (the landlord) is satisfied that there are exceptional circumstances involved.”
28. The landlord appropriately decided to use its discretion as indicated in the policy to consider the complaint. The landlord felt that awarding a six month (or 182 day) payment of £3.75 a day was reasonable since this would be the amount paid if the resident had made his complaint within the time specified in the complaints policy. The landlord therefore made an offer of £682.50 for the period from February 2017 to December 2021. This was a logical approach to judging the amount of compensation to be offered.
29.  It is important to appreciate that this service cannot make rulings on disrepair claims or claims for damages in the same way a court can. The Ombudsman provides an alternative method of dispute resolution which focusses on consideration of the actions of the landlord and assessment of whether the landlord acted fairly and in accordance with its policies and procedures.
30. Having considered our remedies guidance and the overall amount of compensation paid for both time periods, the landlord has provided reasonable redress for the acknowledged failure to meet its Section 11 repair obligations.
31. Our remedies guidance says that payments of £700 and above can be made in recognition of severe long-term impact on the complainant. The resident has described how the landlord’s failure to provide hot water in his home has affected his ability to wash and bathe and this affected him more acutely during the Coronavirus pandemic. The detriment to the resident has therefore been severe enough to warrant a payment close to this £700 threshold.
32. The level of compensation for the period from 2017-2020 is close to this threshold being £682.50, while the total amount of compensation offered is £854 which is reasonable, fair and in accordance with the landlord’s relevant policies. 

Determination

33. In accordance with paragraph 55b of the Housing Ombudsman scheme, the landlord has offered reasonable redress to the resident for its acknowledged delays and failures to repair a water heater.

Recommendations

34. It is recommended that the landlord review its tenancy agreement to ensure that the resident’s obligations on repairs are clearly set out.
35. It is recommended that the landlord pay the resident its compensation offer of £854 within four weeks.