London Borough of Ealing (202103780)

REPORT

COMPLAINT 202103780

Ealing Council

30 September 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

The complaint was about:
1. The landlord’s response to the resident’s reports of remedial works following a leak to the boiler.
2. The landlord’s response to the resident’s reports of a faulty boiler.
3. The landlord’s response to the resident’s reports of overflowing guttering.
4. The landlord’s response to the resident’s reports of damage to the resident’s property following a refurbishment in a neighbouring property.
5. The landlord’s response to the resident’s reports of breaches of planning permission, covenants, and disturbance caused by building works in a neighbouring property.

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 had made a complaint about building works in the neighbouring property, including that the works breached planning, building regulations, and covenants. The resident had referred her complaint of 11 September 2020 to the Local Government and Social Services Ombudsman and a decision was made on 26 September 2020. The resident made a further complaint on 4 December 2020 and the landlord provided a third stage response in April 2021. None of the issues raised concerned housing management but other functions of the landlord, including planning and HMO (House in Multiple Occupation) licensing. The proper Ombudsman for complaints concerning those functions of a local authority is the Local Government and Social Services Ombudsman.
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.
In the circumstances, after carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s reports of breaches of planning permission, covenants, and disturbance caused by building works in a neighbouring property.

Background and summary of events

Under the tenancy agreement, and in accordance with section 11 of the Landlord and Tenant Act 1985, the landlord had an obligation to keep in repair the structure, exterior of the building, and all installations for the supply of electricity and heating. The landlord would carry out repairs within a reasonable time, giving priority to emergency repairs. It was the resident’s responsibility to repair minor plaster cracks. The landlord would undertake some of the repairs for which a resident would normally be responsible, on behalf of elderly and disabled tenants who were unable to carry them out and had no one else at the property who could undertake the repairs.
Under the repairs policy, the response times to a report of disrepair were as follows:
1. Within same working day for emergency repairs.
2. Three working days for urgent repairs.
3. 15 working days for routine repairs.
4. 60 working days for planned repairs.
5. Little or no action would be taken for repairs which were deemed to be aesthetic.
The landlord would issue decorating vouchers, where making good was required to a tenant’s home, following a repair. Where the tenant met the criteria for a discretionary repair, the contractor would be required to make good, matching the tenant’s colour scheme as far as possible.
Under the compensation policy (housing and regeneration guidance), the landlord could pay compensation as follows:
1. Failure of contractors to provide a service.
2. In relation to the resident’s time and trouble, including delays, £10 to £250.
3. £10 for the first day up to a maximum £50 for failure to complete repairs within a “target” time.
4. Discretionary compensation of up to £1,000, depending on the case.

Chronology

The resident’s MP wrote to the landlord on the resident’s behalf on 29 June 2020, setting out the resident’s personal circumstances. The MP set out that the boiler had broken down “again” in May 2020, causing flooding in the kitchen which damaged the kitchen cupboards. The electrics had “blown” some kitchen appliances. The resident had switched the boiler off due to it making “loud noises”. She enquired when the repairs would be carried out and a plan to replace the boiler, run an electricity test, and install a new kitchen cupboard.
According to the landlord’s internal emails, the landlord noted that a full electrical test had been carried out on 6 July 2020.
There was a gap in the evidence of any further related communication until 7 October 2020, when the landlord wrote to the resident in response to a previous communication. It enquired what internal repairs were caused as a result of the neighbouring works. The surveyor had stated, following his inspection, that it had not identified any structural damage to the resident’s property, and cladding did not need to be removed from a party wall for an inspection.
The resident’s daughter replied on the same day as follows:
1. There had been a number of boiler leaks over a long period of time. She had been told a new boiler would be installed, but not unless “something drastic” happened.
2. Water damage had occurred as a result of the leak in May 2020 to the kitchen worktops, cupboards, units, and drawers.
3. Kitchen tiles had been damaged due to the works next door and there were cracks in the ceiling of the kitchen and hallway.
4. The landlord should remove the party wall cladding and carry out a further inspection.
5. She had understood that brickwork might be required in the attic.
6. Builders working next door had damaged their garden fence and the garden pathway.
7. The guttering overflowed when it rained.
The landlord replied on 9 October 2020 as follows:
1. The boiler leak was repaired satisfactorily, therefore the gas boiler would not be replaced at that time. Gas boilers were placed on a future programme after a notional life of 12 years. The resident’s gas boiler would be added to a programme for renewal after that period.
2. Its surveyor would inspect her home to assess which repairs were required. It would arrange an appointment for the inspection.
The landlord did not provide further evidence of communications until that of 17 May 2021, when the MP wrote to the landlord as follows:
1. The MP referred to new kitchen cupboards having been installed.
2. The resident declined the option of replacing a tile damaged by the contractors with a tile of a different colour. Some tiles near the window were also defective.
3. The sink sprayed water due to high water pressure when the resident used both hot and cold water at the same time.
4. The resident continued to have issues with the boiler pressure.
5. A contractor had damaged a window.
On 24 May 2021, the contractor explained to the landlord that the existing tiles were no longer obtainable. The sink sprayed water due to high water pressure. They had explained to the resident that she could adjust the flow with the taps. The window would be repaired on 27 May 2021.
On 26 May 2021, the landlord informed the MP that it would inspect the property on 28 May 2021.
On 3 June 2021, the landlord offered to resolve the issues of the sharp edges of worktop, and the cupboards and requested convenient appointment times.
On the same day, the resident reported that one of the cupboards was too big and very close to the boiler. The worktops did not feel stable. A cupboard was mis-sized and looked out of place. The grouting and paintwork were badly done.
The MP reported on 21 June 2021 that the contractor had brought the wrong parts to the works and the resident was awaiting a fresh appointment.
On 28 June 2021, the resident’s daughter reported that, on 15 June 2021, she received notice of a joint inspection by the area surveyor and the contractor to assess the repairs required to her home on 28 June 2021. They did not attend but instead, a contractor attended in order to fit a new white tile.
The landlord wrote with it first stage response on 5 July 2021 as follows:
1. The resident had been incorrectly informed that the visit on 28 June 2021 would be a joint inspection. It apologised for this.
2. A contractor would rectify the sharp-edged and unstable worktops.
3. The cabinet size and location were in keeping with the cabinets that had been replaced.
4. The cupboard would be replaced if it was too close, according to the boiler manufacturer’s installation instructions.
5. The contractor disputed that they damaged the tiles. However, the landlord had arranged for the affected tiles to be replaced. It was unable to match the exact shade of the current tiles in the kitchen and repeated its offer to replace the windowsill tiles.
6. Once the works were complete, the surveyor would attend on a joint post–inspection with the contractor to confirm the works had been satisfactorily completed.
7. It had arranged several inspections of the party wall by the council’s repairs surveyor, party wall surveyor, and structural engineer and the landlord was satisfied that the wall was safe. It would arrange a further inspection if the resident arranged for the removal and reinstatement of the cladding herself.
8. It partially upheld the complaint in relation to the miscommunication about the appointment.
9. It invited the resident to provide her availability for the recall works.
On 12 July 2021, the resident reported an overflow from the guttering she described as “gushing into the living room”.
The resident’s MP and the resident chased the repairs in July 2021.
The landlord replied on 2 August 2021 that its delay was due to a backlog. It had arranged an appointment regarding the boiler on 3 August 2021 to carry out the repairs. It had attended the property in order to repair the guttering but was unable to carry out the repairs. It had therefore arranged for a contractor to attend, who was to contact the resident to make an appointment.
The MP wrote to the landlord on 4 August 2021: the contractor had attended the property the day before. The heating and hot water had stopped working. They rectified the issues and identified a blockage in the boiler. The hot water had stopped working again. Given its age and frequency of issues, the MP suggested the boiler should be replaced.
The resident wrote to the landlord on 6 August 2021 to report that the contractor had carried out a power flush. The engineer stated that the boiler was still overheating/cutting out, due to an airlock or a partial blockage in the system. Its performance had not improved.
The resident and her MP continued to chase the repairs in August 2021.
On 24 August 2021, the landlord reported to the MP that the contractor had attended on 10 August 2021 to rectify the air in the system. The boiler was left up and running. The contractor was due to contact the resident to arrange an appointment regarding the gutters.
On 25 August 2021, the landlord summarised its boiler contractors’ attendances as follows:
1. 25 May 2021 – all radiators were checked and no leak was leak found. Pressure dropped.
2. 28 May 2021 – the contractor attended and reported that parts were required.
3. 8 June 2021- parts were fitted and the system was left working.
4. 15 July 2021 – the contractor attended property and fitted parts to the radiator. The system was tested and reported as working fine.
5. 21 July 2021 – the property had run out of gas.
6. 3 August 2021 – a power flush was required to the heating system.
7. 6 August 2021 – a power flush to the boiler was carried out. It was still overheating and so the contractor vented all the radiators and vents.
8. 10 August 2021 – the contractor attended and reported that it aired the system, but no issues were found. He did not identify issues that warranted a new boiler.
The MP wrote to the landlord chasing the repairs to the guttering in September 2021.
The resident requested escalation of her complaint on 1 October 2021.
The MP wrote chasing the repairs to the guttering during October 2021.
There followed an inspection by the landlord’s surveyor, an internal investigation, and review of the resident’s property.
The landlord wrote on 8 November 2021 with its stage 2 review as follows:
1. The inspection of the remedial works in the kitchen identified that the repairs had not been completed satisfactorily. These included a loose, poorly–sealed kitchen sink, a loose worktop that required refixing and resealing, kitchen decorations that were poorly finished, and deficiencies in stain blocking.
2. It arranged for a different contractor to carry out the remedial works.
3. It also arranged for cracks in the kitchen ceiling to be filled, the ceiling to be treated with fungicidal wash, and for a full redecoration of the kitchen.
4. It arranged for the damaged tile to be replaced, to match as best it could with the existing tiles.
5. It had not identified any health and safety concerns in relation to the cabinets. However, if the landlord’s gas contractor should report that the cabinet adjacent to the boiler was causing an obstruction to the servicing and repair of the boiler, then the cupboard would be replaced.
6. It partially upheld her complaint regarding the poor standard of the repairs completed in the kitchen.
7. It had no cause for concern following the refurbishment works undertaken by the resident’s neighbour. The inspection of the loft area had noted some crumbling brickwork, but that there was no immediate cause for concern. Once suitable access arrangements had been made to allow a full inspection of the area, it would arrange for the loft hatch to be renewed, and once completed, it would carry out a roof inspection and raise any necessary work.
8. The party wall surveyor had stated that the wall behind the cladding had not been damaged. Although wall coverings were a tenant’s responsibility, the resident had stated that the timber cladding was present when the tenancy commenced. To bring the home in line with current standards, it had authorised the removal of the cladding, making good the wall, and full decoration to the hall, stairs, and landing.
9. A full electrical test would be carried out to include all the sockets on a wall.
10. The council had properly assessed the risk to the resident’s home following her neighbour’s refurbishment, and therefore did not uphold that aspect of her complaint.
11. It noted that several orders had been raised to clear the gutters of leaf debris. To avoid future reoccurrences, it had arranged for the installation of gutter guards following clearance of the gutters. The landlord had always taken action to address reports of leaking gutters, and the cause of the leak has not been due to council inaction, but due to external factors beyond its control. The complaint was not upheld.
The resident’s representative reported to this service on 10 November 2021 that the repairs had begun. The boiler was still losing pressure. She reported to this service in September 2022 that the household was still experiencing issues with her boiler.

Assessment and findings

The investigation was somewhat hampered by gaps in the landlord’s evidence, however this did not prevent this investigation being carried out. The evidence indicated there was missing correspondence and no repair records were provided. The Ombudsman will make a recommendation in that regard,

The landlord’s response to the resident’s reports of remedial works following a leak to the boiler.

The water damage to the kitchen occurred in May 2020. There was no evidence whether the leak, severe as it was, was the fault of the landlord. However, it was not disputed that the landlord had accepted responsibility for the remedial repairs. The Ombudsman would expect the works to be of a reasonable standard.
The evidence indicated that the remedial works were carried out prior to October 2020. The landlord reasonably offered to inspect the property, following the MP’s report. It also carried out a full electrical test within a reasonable time. The remaining issues included the placement of cupboards, which could be deemed to be aesthetic, but was causing inconvenience and distress to the resident. These included unstable worktops and a poorly sealed sink which would create issues over time. It was reasonable of the landlord to carry out a thorough inspection and further works, as well as instruct a different contractor, which the Ombudsman considers went a significant way to resolve matters.
The Ombudsman bears in mind that there were several lockdowns in 2020 and 2021, and that a backlog of repairs arose, caused by the pandemic. Nevertheless, there was an unreasonable period, from October 2020 to November 2021, in which insufficient action was taken. The landlord did not explain these delays, except to refer to a “backlog”. While the landlord recognised its service failure and went a significant way to resolve the matter, in the Ombudsman’s view, it should have considered offering the resident some compensation, given the efforts and frustration experienced by the resident, and her circumstances.

The landlord’s response to the resident’s reports of a faulty boiler.

The role of the Ombudsman is not to assess the functionality of the boiler but to consider the landlord’s response to the resident’s reports. The Ombudsman would expect the landlord to treat a report about a boiler not working as an emergency or as urgent, depending on the nature of the report. The evidence indicated that, as far as the evidence showed, the landlord attended within a reasonable period to repair the boiler. While the issues were standard, such as an air lock, given the number of occasions that repairs were required to the boiler, it was reasonable of the landlord to consider whether the boiler and/or central heating system required replacing. It was then entitled to rely on the opinion of their contractor.
It is noted that the heating is still causing issues for the household. It is also noted that the landlord stated that it would replace a boiler that was over 12 years old. According to the resident, the boiler was over 16 years old. The Ombudsman bears in mind the vulnerability of the family members.
In the circumstances, the Ombudsman would have expected the landlord to have reviewed the matter, which it has had ample opportunity to do. In the circumstances and given the landlord’s policy, the Ombudsman will make an order that the landlord arranges for an experienced boiler engineer to inspect the heating system and assess whether a replacement is required and, if the boiler is over 12 years old, that it is considered for a replacement and if over 16 years old, replaced.

The landlord’s response to the resident’s reports of an overflowing guttering.

The evidence showed that the landlord attended in response to the resident’s reports of the overflowing gutters, although there was evidence of delays. There was no evidence that it was the fault of the landlord that the gutters overflowed. The landlord acted reasonably in considering the matter holistically and arranging to carry out works to prevent a reoccurrence. The Ombudsman considers that the resolution constitutes reasonable redress of the delays in repairing the gutters.

The landlord’s response to the resident’s reports of damage to the resident’s property following a refurbishment in a neighbouring property.

There was no evidence that the landlord was responsible for the damage caused by the neighbouring works. However, the Ombudsman would expect the landlord to ensure that the property remained in safe and reasonable repair. The evidence showed that the landlord inspected the party wall. It was entitled to rely on the opinion of a number of inspections. It exercised its reasonable discretion in accepting the responsibility for the cladding and arranging for its removal which would reassure the resident. The Ombudsman is of the view that the landlord acted reasonably in assessing the safety of the resident’s property.
There was no dispute that the landlord accepted responsibility for undertaking the remedial repairs and redecoration which had arisen due to the works next door. Its explanation regarding the replacement of the tile was reasonable and was in accordance with its repairs policy. It sought to find a solution and, in the end, it attended to each issue that the resident had raised. While the works and delays may have been disruptive to the resident, the landlord investigated appropriately whether the structure was affected.
While there were considerable delays, the landlord not only undertook the works but reasonably reassessed the standard of the remedial works. It addressed and resolved the resident’s complaints as a result. In the circumstances, the Ombudsman considers that the landlord has provided reasonable redress.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the resident’s reports of remedial works following a leak to the boiler.
In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s reports of a faulty boiler.
In accordance with Paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the resident’s reports of an overflowing guttering.
In accordance with Paragraph 55(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the resident’s reports of damage to the resident’s property following a refurbishment in a neighbouring property.
In accordance with Paragraph 39(m) of the Housing Ombudsman Scheme, in the Ombudsman’s view, the resident’s complaint about the landlord’s response to the resident’s reports of breaches of planning permission, covenants, and disturbance caused by building works in a neighbouring property was outside the Ombudsman’s jurisdiction.

Reasons

While the landlord recognised and rectified the poor standard of the remedial works, there was a significant delay to the works being rectified which created frustration, inconvenience and distress to the resident. While it is noted that the events occurred during a pandemic, the landlord did not offer an explanation for the delays. The landlord should have considered a payment of compensation.
The landlord considered the necessity of replacing the boiler and was entitled to rely on the opinion of its contractor that it was not necessary. However, given the passage of time, the vulnerability of the resident and the age of the boiler, the Ombudsman would expect the landlord to have reviewed the matter.
The landlord attended to the resident’s reports of the gutters, however there were delays in addressing the issue. The landlord took steps to reduce the risk of blockages which constituted reasonable redress.
While there were issues of delays with the remedial works caused by the building works, which were principally aesthetic, the landlord took steps to rectify the matter in accordance with the resident’s wishes as far as it was reasonably able to do so, which the Ombudsman considers constituted reasonable redress.

Orders

The landlord is ordered to pay the resident compensation in the amount of £250 within 28 days in relation to the delays in carrying out the remedial works following the boiler leak and re-assessment of the boiler.
The landlord should arrange for an experienced and independent boiler engineer to inspect the heating system and boiler, and to assess whether a replacement is required, such inspection to be carried out within 28 days.
The landlord should make the necessary arrangements within 21 days of the inspection to carry out the engineer’s recommendations.
If the inspection states that the boiler does not need replacing, and the boiler is over 12 years old, the landlord should, within 21 days of the inspection, place the boiler on a replacement programme, together with confirmation to the resident and the Ombudsman. If the works will take place within 6 months, the inspection will not be necessary.
If the boiler is over 16 years old, the landlord should take steps to replace the boiler in any event within 28 days of this report, together with confirmation to the resident and the Ombudsman of those arrangements. In that case the inspection will not be necessary
The landlord shall evidence compliance with the order relating to the boiler by providing the Ombudsman with the engineer’s report within 21 days of the inspection, together with confirmation to the resident and the Ombudsman of any appointment or arrangements for its replacement as set out above.
The landlord should provide to the Ombudsman evidence of the age of the boiler, unless it is to be replaced in any event.
The landlord should confirm compliance with the order to the Housing Ombudsman Service with the above orders within 28 days of this report.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should ensure that it undertakes a timely review of its actions and monitors the performance of its contractors.
2. The landlord should ensure that it proactively updates residents of any delays and provides an explanation for any delays.
3. The landlord should ask the resident whether she would like the landlord to record her vulnerabilities in its relevant systems.
4. The landlord should ensure that it provides all relevant documentation to the Ombudsman for the purposes of investigations. The landlord is reminded that the Ombudsman can consider a complaint handling failure order where there is a failure to provide documents and that it could draw adverse conclusions due to lack of full documentation.