Birmingham City Council (202115796)

REPORT

COMPLAINT 202115796

Birmingham City Council

13 April2023

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 is about the landlord’s handling of the resident’s reports that their boiler and heating were not working properly.
The investigation has also considered the landlord’s handling of the resident’s complaints.

Background and summary of events

Background

The resident is a joint secure tenant of the property, a three-bedroom house, from April 1987, and the landlord is a local authority. The evidence seen shows that central heating was installed in the property in December 2003 and that the boiler was replaced on 27 February 2020. The landlord has no vulnerabilities recorded for either of the joint tenants.
Under the terms of the tenancy agreement and duties under the Landlord and Tenant Act 1985, the landlord is responsible for maintaining the installations for heating and hot water and keeping them in working order. This means the landlord is responsible for repairing the boiler, heating controls and radiators.
The landlord’s repair policy, dated 2009, provides for the following categories of repairs:
1. Emergency repairs which are defined as those where there is a danger of injury or damage to the property and says it will respond within two hours.
2. Urgent repairs which are defined as those concerning the health and safety of the tenant or security of the property. It says it will respond in one, three or seven days depending on the requirements of the right to repair regulations 1994.
3. Routine repairs which it aims to complete within 30 days but may extend the timescale if specialist materials or arrangements are needed.
The repairs policy also says that temporary heating may be provided where central heating has broken down and cannot be restored the same working day.
Its tenant handbook gives an example of restoring heating or hot water in winter as an urgent repair where it would respond in one, three or seven working days. It also says that residents are responsible for making sure their heating controls are set correctly and provides guidance on how to do this.
The landlord has a two stage complaints process. Its “your views procedure” says that it will respond to stage one complaints within 15 working days, whilst its tenant’s handbook says it will respond within 10 working days. Both documents say it will respond to stage two complaints within 20 working days.

Scope of investigation

Between March 2022 and October 2022, the Ombudsman investigated the landlord’s handling of repairs and complaints under paragraph 49 of the Housing Ombudsman Scheme. The investigation reviewed 14 cases brought to the Ombudsman during the period, identified common points of failure and made recommendations for improvement. The report was published in January 2023 and can be viewed at Birmingham-Special-Report-FINAL-January-2023-1.pdf (housing-ombudsman.org.uk). The landlord is due to publish its action plan of how it will improve its approach to repair and complaint handling within three months of that report.
Some of the events in this case took place over the same period as some of the cases considered by the Ombudsman in that investigation. However, this case was not eligible to be investigated by the Ombudsman until after the special report had been completed. Some of the findings of the Ombudsman’s special report are relevant to this case and are referred to accordingly in this report. However, we have not made any orders or recommendations which would duplicate those already made to the landlord in the Ombudsman’s special report.

Summary of events

Between 10 March 2020 and 21 July 2021, the resident made multiple reports of problems with her heating and hot water, despite the boiler being recently replaced, and the landlord raised 14 repair orders during that period. Two of the orders were cancelled and it is not clear from the evidence why this was, but the other 12 were marked as completed within the appropriate timescale for the category of repair. Nine of the orders noted that the residents were vulnerable and two specified that operatives must wear face masks.
On 22 July 2021 the resident made a formal complaint about the engineer that had attended the previous day to repair her heating. She said that he had refused to wear a face mask and was rude to her, that she had to wait for six hours for her job to be attended, and that the boiler kept breaking down. The landlord contacted its contractor for comments regarding the resident’s complaint.
On 24 July 2021 the landlord raised another repair order for no heating which was marked as completed the same day.
The landlord provided its stage one response to the resident’s complaint on 2 August 20221. It said that its contractor was sorry that she had to wait six hours for her repair and that the engineer had not worn a mask. The landlord noted that the contractor had attended several times and no faults had been found with the boiler. It said that “someone in the household is incorrectly setting the controls” and that the resident had been instructed on how to use them.
The resident escalated her complaint on 6 August 2021 saying that she had not been “messing about” with the controls and resented the implication. She said that the pressure to the boiler kept dropping and there must be a leak somewhere.
The resident reported further problems with the heating and the landlord raised an order for no heating or hot water on 22 August 2021 and another on 31 August 2021 to deal with a leaking radiator valve. Both orders were marked as completed within the target timescale for the category of repair.
The landlord provided a stage two response to the resident’s complaint on 17 September 2021. It said that the resident had agreed to wait until autumn to see if her boiler was functioning and contact the landlord if it was not.
The resident reported further problems with the heating and landlord raised two further orders for heating failures on 4 and 8 October 2021. Both marked as completed within the target timescale for the category of repair.
The landlord provided its second stage two response to the resident’s complaint on 13 October 2021. It said that she had reported numerous faults with the boiler but they were minor issues. It said that on the last two visits no faults had been found and that the boiler and radiators were functioning. The landlord concluded that there were no repairs necessary and advised that the resident had exhausted its complaint process.
Between 23 October 2021 and 3 January 2022, the resident reported further problems and the landlord raised six orders relating to loss of heating, and two for loss of heating and hot water. All were marked as completed with the target timescale for the category of repair.
The resident contacted the Ombudsman on 24 November 2021 advising that she was dissatisfied with the landlord’s handling of her reports of problems with her heating its handling of her complaints. She said that she believed that the landlord had paid the contractor to replace the radiators when the new boiler was installed in 2020 but the contractor had not done so and she wanted the landlord to replace the radiators.
On 5 January 2022 the resident made a second formal complaint saying that she had been without heating and hot water since 2 January 2022. She said that the contractor had attended but left the boiler dripping and that, although a small heater had been left, this was not sufficient as she had health issues and another resident was disabled.
The landlord contacted its contractor on 11 January 2022 to ask for an explanation of the delay and raised a further order for the repair which was marked as completed on 13 January 2022. On 21 January 2022 the contractor advised the landlord that a new repair order needed to be raised to replace a valve in the boiler and said that it would provide temporary heaters. The order was raised the same day and marked as completed on 22 January 2022.
On 21 January 2022 the landlord provided its stage one response to the resident’s second complaint apologising for the service failing and delay and confirming that a new order had been raised.
The resident escalated her complaint on 26 January 2022 saying that there were two disabled people in the household and that she was upset because the engineer that had attended the previous day refused to wear a face mask. She said that the engineer had not looked at the boiler but said there was nothing wrong with it and that she had called the out of hours service later because of the fault. The resident said that she had called that morning to chase the follow-on repair and was told that the contractor had already attended but she disputed this as she had been at home all morning. The landlord subsequently advised us that they did not respond to this escalation.
On 7 March 2023 the resident advised us that she had reported further problems with the heating system since January 2022. She explained that the radiators do not get hot, except at the bottom, and that she feels they need replacing or at least flushing out so they will work properly.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine complaints by what is, in this Service’s opinion, fair in all circumstances of the case.

Handling of the resident’s reports about her boiler and heating

The Ombudsman’s special report highlighted the following common points of failure in the landlord’s handling of repairs which are relevant in this case:
1. Residents having to make multiple attempts to get repairs resolved, often over a prolonged period.
2. Poor record keeping resulting in delays, misdiagnosis of repairs and lack of clarity on whether a repair had been completed or not.
In this case, the landlord raised 29 repair orders in response to the resident reporting issues with the heating between 10 March 2020 and 21 January 2021. The evidence seen shows that the reports made by the resident and the orders raised were managed in isolation on each occasion, resulting in a new timescale being applied each time. Although the appropriate category and timescale was given to each order, no evidence has been seen that the landlord or its contractor gave any consideration to the overall period that the resident had been reporting issues or questioned the repeated reports. This delayed the resolution of the heating issues and caused distress and inconvenience to the resident. The Ombudsman’s special report included recommendations that the landlord review its repair process and escalate recurring repair reports appropriately.
The contractor’s response to the landlord on 2 August 2021 suggests that the contractor believed that incorrect use of the controls was cause of the heating issues. Despite the tenancy agreement saying that residents are responsible for making sure their heating controls are set correctly, the landlord still has a responsibility to ensure that residents are given appropriate instruction to be able to do so. No evidence has been seen of any instruction given to the resident when the new boiler and controls were installed in February 2020. It is noted that the tenants’ handbook gives some guidance on this but is not the solution for some residents, such as those who cannot read, and may be difficult for some to understand even though the instructions are basic and written in plain language.
It would have been reasonable for the landlord to have considered giving further instruction on using the controls at an earlier stage, and to check the resident’s understanding afterwards. However, the evidence suggests that the landlord did not check that the resident was confident in using the controls until 5 February 2022, despite the contractor advising on 2 August 2021 that instruction had been given.
Although most repair orders were marked as completed it is not clear what work was undertaken on each occasion or why some were cancelled. As set out in paragraph 22, the order raised on 3 January 2022 did not fix the problem, despite it being marked as completed. It is unclear why, after the resident contacted the landlord on 5 January 2022, the landlord appears to have taken no action until 11 January 2022 when it contacted the contractor and raised another order.
Similarly, it is not clear why it took the contractor until 21 January 2022 to advise that the valve needed replacing. Regardless of the reasons, the evidence suggests that the resident was without heating and hot water for 20 days (from 2 January 2022 until 22 January 2022) which is outside of the landlords timescale for this category of repair. Furthermore, there is no evidence that additional temporary heating was provided despite the resident telling the landlord on 5 January 2022 that the one heater provided was not sufficient. The Ombudsman’s special report made recommendations that the landlord improve oversight of its repair service and its record keeping.
The resident told this Service that she believed that the landlord had paid its contractor to install new radiators as well as the boiler in 2020. This belief is not supported by the evidence seen as the landlord’s repair history shows that no radiator replacement was ordered. oH The resident told us that she continues to have issues with the radiators not getting hot, which remains unresolved despite further visits from the landlord’s contractor. An order has been made for the landlord to assess the radiators and complete any work necessary to ensure they are working effectively.
For the reasons set out above there was maladministration in the landlord’s handling of the resident’s reports that her boiler and heating were not working properly.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman considers whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
In this case, the resident continues to have issues regarding her heating system despite multiple visits from the landlord’s contractor over a three year period. As such, orders have been made to assess the radiators and complete any repairs needed, apologise to the resident, and pay £350 compensation. This amount considers the distress and inconvenience caused to the resident by the length of time the issue has been ongoing without resolution. It also considers the resident’s vulnerability – their age and disability and need to keep warm. The Ombudsman considers these vulnerabilities as aggravating factions when considering redress which justifies an increased award to reflect the specific impact. It is also within the range of amounts that Ombudsman can order when he has found evidence of maladministration, including cases where repair issues have been outstanding for a prolonged period.

Handling of the resident’s complaint

The Ombudsman’s special report highlighted the following common points of failure in the landlord’s handling of complaints about repairs which are relevant in this case:

a) The landlord’s complaint policy not being compliant with the Ombudsman’s Complaint Handling Code (the Code) in respect of response timescales.

b) Incomplete and inaccurate complaint responses.

c) Missed opportunities to put things right at an early stage.

d) Poor liaison with contractors, often taking a contractor’s response at face value rather than challenging where necessary.

e) Believing repairs had been completed despite resident’s reports to the contrary.

f) Not considering compensation for service failings in its complaint process.

As noted in paragraph eight, the landlord’s complaints policy and tenant handbook give different timescales for responding to stage one complaints. This is confusing for residents, and the landlord’s policy is not compliant with the Code. The Ombudsman’s special report included recommendations that the landlord update its policy and ensure compliance with the requirements of the code.
In this case, the evidence shows the landlord appropriately made enquiries with its contractor when the resident first complained. However, the contractor’s responses were inadequate in responding to the issues raised and there is no evidence of any challenge by the landlord to get the answers it needed. As a result, the landlord’s response did not explain why the engineer had not worn a mask or address the resident’s allegation of rudeness. It is not clear why the landlord felt it was relevant to state that the heating issue was caused by incorrect use of the controls, given that the contractor had advised that instruction had been given to the resident. That it did refer to this was inappropriate as it may be perceived as blaming the resident for the problem, this is evidenced by the resident’s response saying she resented the implication.
Some of the landlord’s complaint responses incorrectly signposted resident to Local Government and Social Care Ombudsman (LGSCO), for example its second stage two response of 13 October 2021. There was no detriment to the resident due to this as the landlord had provided the correct details in its first stage two response of 17 September 2021. However, the landlord should ensure that the correct Ombudsman details are given on all its complaint responses. It is also noted that the landlord’s website does not reference the Housing Ombudsman Service and a recommendation has been made below for the landlord to rectify this.
The landlord’s stage two response of 17 September 2021 and its response of 21 January 2021 to her second complaint were late. Neither of the responses acknowledged this or explained the reason for the delay. Nor did they put things right for the resident as the landlord did not acknowledge that the resident was continuing to have issues. This meant the opportunity of resolving the issue was missed throughout the complaints process and caused further distress and inconvenience to the resident. Furthermore, the landlord did not respond to the resident’s escalation of her second complaint on 26 January 2021 and has given no explanation of why this was missed.
The landlord noted that the resident is vulnerable in 16 of its repair orders and the resident told the landlord about her health issues and disabilities in her complaint of 5 January 2022. However, the landlord says it does not have any vulnerabilities recorded for the resident and should now update its records.
The landlord did not comply with the Code in the aspects set out above and did not put things right for the resident. As such, there was maladministration in the landlord’s handling of the resident’s complaint. In relation to the failures identified, an order has been made for the landlord to pay compensation of £150 to the resident in recognition of the evident frustration and inconvenience caused.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s handling of the resident’s:
1. Reports about her boiler and heating.
2. Complaint.

Reasons

From the evidence seen, the resident is still having issues with her heating despite the landlord’s contractor attending multiple times over three years.
The landlord’s complaint handling did not comply with the code and missed opportunities to put things right throughout the complaint process.

Orders and recommendations

The landlord is ordered to take the following action within four weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
1. Assess the radiators at the resident’s home and take appropriate action to ensure they are all operating and the heating system is working effectively.
2. Write to the resident to apologise for the shortcomings identified in this report.
3. Pay the resident compensation totalling £500 in recognition of distress and inconvenience caused by the failures highlighted in this report. The compensation must be paid to the resident and not offset against any arrears. The compensation comprises:
  1. £350 for the landlord’s handling of the resident’s reports about her boiler and heating.
  2. £150 for the landlord’s handling of the resident’s complaint.
4. Update its record’s regarding the resident’s vulnerabilities.
The Ombudsman recommends that the landlord:
1. Take steps to make sure that the correct Ombudsman contact details are given on future complaint responses.
2. Update its website to include contact details for the Housing Ombudsman Service.