Royal Borough of Kensington and Chelsea (202126427)

REPORT

COMPLAINT 202126427

Royal Borough of Kensington and Chelsea

3 May 2023

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:
   1. the landlord’s compliance with a court judgement from 2015.
   2. the landlord’s handling of a boiler repair and replacement.
   3. the landlord’s handling of the associated complaint.

Jurisdiction

2. 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.
3. Paragraph 41(c) of the Ombudsman Scheme states, “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given.”
4. After carefully considering all the evidence, the complaint about the landlord’s compliance with the court order cannot be investigated by this Service. This is because there have been legal proceedings and an order of the court was granted. As such, the Ombudsman has no jurisdiction to investigate this, under paragraph 41(c) of the Scheme. The resident can return to court for enforcement of the order made.

Scope of investigation

5. This Service has investigated the landlord’s handling of the boiler disrepair but cannot consider historic issues dating back seven years as the lapse in time makes it difficult to fairly investigate. From the information we have seen, the more recent problem with the resident’s boiler occurred in November 2021 and so, our investigation will only focus on the landlord’s response to this.

Background

6. The resident occupies a two-bedroom property. The resident has medical conditions which make him vulnerable.
7. On 15 November 2021, the resident made a complaint to their landlord about the effectiveness of its heating contractors. He also complained about the behaviour of a customer service agent.
8. On 26 November 2021, the landlord responded at stage one of its complaint procedure. It acknowledged the resident had reported issues with their boiler over many years, especially relating to the loss of water pressure. It stated that:
   1. It had received no repair requests to the boiler until November 2021 when the resident made two reports of a loss of heating and hot water because of a boiler fault.
   2. It had contacted the resident on 24 November 2021 and made an appointment to repressurise the boiler on 25 November 2021 which left the boiler in working condition.
   3. After a further inspection on 26 November 2021, it agreed to replace the boiler.
   4. It invited the resident to provide further details about the customer service agent he spoke to, so it could investigate further.
9. The resident chased their landlord to say that the boiler had not been replaced.
10. On 27 January 2022, the resident complained that:
    1. An engineer visited the day before and had told him that the boiler replacement would occur on 27 January 2022.
    2. However, the landlord’s gas installer stated that the boiler needed a flue pipe to be fitted and the works would not be completed until 14 February 2022.
    3. The resident requested escalation of his complaint to stage two of the landlord’s procedure.
11. On 11 February 2022, the landlord responded to the resident’s complaint at stage two, stating:
    1. It appreciated the resident had experienced reoccurring issues with their boiler with a fault identified around two or three years ago.
    2. There was a delay replacing the boiler because the gas inspector sent an inspection report to an incorrect email address. This was not noticed until January 2022.
    3. When the contractor’s surveyor visited the property on 26 January 2022, he was mistaken in telling the resident that the boiler did not need an external flue pipe. The gas installer advised that a flue pipe was needed and offered to fit it on 27 January 2022, but the resident’s relative postponed the installation until 1 February 2022.
    4. The landlord rebooked the boiler replacement appointment for 1 February 2022 with a follow-up appointment with an electrician booked for 3 February 2022. It installed the external flue as planned but the electrician did not make the appointment or call to re-arrange.
    5. The resident’s contractor re-arranged for an electrician to attend on 14 February 2022, and for the necessary post-inspection and cosmetic work (making good) to take place on the same day.
    6. The landlord stated that the reason the boiler was not replaced earlier was that it did not meet the criteria for replacement, it was only replaced on a discretionary goodwill gesture basis.
    7. The landlord apologised for the inconvenience caused by its errors and offered £150 in recognition of the impact on the resident.
12. On 11 February 2022, the resident rejected the offer on the basis that there was some electrical and cosmetic work outstanding. He also said that the compensation did not fully recognise the issues he had experienced over the last seven years.

Assessment and findings

13. As already set out above, the Ombudsman has investigated this complaint from November 2021. This means we will not assess the landlord’s handling of matters going back over several years.

The handling of the repair

14. Under section 11 of the Landlord and Tenant Act 1985, the landlord must keep heating installations like the boiler in proper working order. The resident’s tenancy agreement also requires the landlord to repair installations for the heating and hot water.
15. Landlords are required to inspect and repair within a reasonable time. The landlord’s repairs policy (2019 to 2022) has pre-assigned categories for prioritising repairs. Repairs needed because of an emergency involving a loss of water or power require a 24-hour response whilst routine repairs require a response within 20 working days. The landlord and contractor must keep to appointments made.

Did the landlord comply with these obligations?

16. The landlord’s records suggest the repair to the boiler was raised on or around 9 November 2021. The landlord stated its contractor attempted to contact the resident by mobile and text on 9, 15 and 19 November 2021 to arrange an appointment. It was not until 24 November 2021 that it managed to get through on an alternative number provided by the landlord. The landlord’s contractor made an appointment for 25 November 2021 to repressurise the boiler.
17. The delay in arranging the repair was because the contractor had the incorrect number for the resident. This delay was avoidable because the landlord could have given the contractor all contact numbers for the resident. This delay meant that the resident was 17 days with no heating and hot water during a winter month which was unreasonable.
18. The landlord agreed to replace the resident’s boiler on 26 November 2021 but failed to send the recommendation and report to the correct email address. This meant there was a two-month delay in its contractor attending the property to install the new boiler. It was not until the resident enquired about the progress on the new boiler installation in January 2022 that the landlord investigated this and discovered the error.
19. This indicates poor control systems and oversight by the landlord, having recommended the replacement of the boiler it would be reasonable to expect it to check on the progress of this. It was not until 27 January 2022 that the landlord was able to complete the new boiler installation and flue. The delay in arranging a replacement was avoidable and unreasonable, causing the resident frustration, however the resident had hot water and heat for this period.
20. There was some confusion between the advice of the landlord and its contractor about whether the new boiler needed an external flue pipe however the installer clarified this within 24 hours.
21. The landlord offered for the replacement to take place on 27 January 2022 and the evidence shows that the resident’s relative rescheduled this for 1 February 2022. The landlord is not responsible for the delay between 27 January 2022 to 1 February 2022.
22. The landlord’s contractor made an appointment for an electrician to complete some works on 3 February 2022, which was missed by the contractor. The Ombudsman expects landlords and their contractors to call and re-arrange appointments if it cannot attend. The delay added to the resident’s frustration and disappointment. No explanation was given to the resident and there is no evidence this was rearranged. Consequently, the work to the boiler, involving electrical work and some snagging was eventually finished on 14 February 2022.
23. Therefore, the Ombudsman has decided that there was an unreasonable delay of 93 days, made up as follows:
    1. 17 days delay in initially repairing between 9 November 2021 and 25 November 2021, when the resident was without heating and hot water;
    2. 62 days delay in installing the new boiler between 26 November 2021 and 27 January 2022;
    3. 13 days delay in completing the works, including electrics, between 1 February 2022 and 14 February 2022.
24. The frustration was exacerbated by the missed appointment and the resident having to chase the repair.

The landlord’s handling of the complaint

25. The landlord’s complaint policy requires it to respond to stage one complaints within ten working days and stage two complaints within 20 working days.
26. The resident’s complaint was raised on 15 November 2021 and responded to on 26 November 2021 – which was ten working days. The resident escalated the complaint to stage two on 27 January 2022 and the landlord responded speedily on 11 February 2022 in 12 working days.
27. When investigating complaints, the Ombudsman applies its Dispute Resolution Principles: to be fair – treat people fairly and follow fair processes; put things right and learn from outcomes. This Service will apply these principles when considering whether any redress is appropriate and proportionate for any failures identified.
28. The landlord accepted three different service failures relating to:
    1. the error in sending over the report to its contractor which delayed the boiler installation.
    2. the error made by its contractor’s surveyor in deciding the flue did not need to be replaced; and
    3. the subsequent missed appointment by their electrician.
29. The landlord acknowledged the frustration and distress caused to the resident and offered £150 to the resident as compensation.
30. It was appropriate for the landlord to identify the mistakes it had made and the impact that this had on the resident in its apology. However, the level of compensation offered did not, in the Ombudsman’s opinion, adequately reflect the likely level of inconvenience, distress and discomfort the resident experienced. This is especially given the resident was without heating and hot water for 17 days, combined with his ill health. Moreover, the resident has a history of long-running concerns about their property which would have increased the resident’s level of frustration and lack of trust in his landlord.
31. When assessing compensation, the Ombudsman’s Guidance on Remedies states that a starting point for compensation could be the rent paid by the resident. Therefore, the landlord should pay compensation to recognise the resident’s loss of enjoyment of his home during those 17 days of a full rent refund.
32. In respect of the delay between 26 November 2021 and 27 January 2022 (62 days), and later between 1 February and 14 February 2022, the resident did have heating and hot water during this period and there is no evidence his use or enjoyment of the home was affected. The delay was avoidable and there was a missed appointment – so the compensation should be paid for distress, frustration and upset. The Ombudsman considers £350 is fair to recognise the negative emotions caused by the landlord’s errors.
33. Where claims are made that a person has been injured or a medical condition has worsened due to a landlord’s actions or inactions, the Ombudsman must consider the available documentary evidence. When this type of dispute arises, the courts rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration. Without that evidence, the Ombudsman is not able to draw any conclusions on whether the resident’s health has been injured in the way in which the landlord handled the boiler repairs. This question may be better for the courts to decide.

Determination (decision)

34. In accordance with paragraph 52 of the Ombudsman’s Scheme, there was maladministration in the landlord’s handling of the resident’s boiler repair and replacement.
35. In accordance with paragraph 52 of the Ombudsman’s Scheme, there was no maladministration in the landlord’s handling of the resident’s associated complaint.

Orders

36. The Ombudsman orders the landlord to:
    1. Pay the resident compensation for the loss of amenity and enjoyment of his home based on 17 days rent between 9 November 2021 (when the repair was raised) until 25 November 2021 which is the date when the repair was completed to restore the heating and hot water.

Example

* Based on average social rents in E09000011 Greenwich for 2021/22: Live_Table_702_Jan_23.ods

2. Pay the resident the £350 already inclusive of the £150 already offered for the distress and upset caused for the delays and missed appointment until 14 February 2022. This includes compensation for the time and trouble of having to raise a complaint and not offering a commensurate level of compensation.

37. The landlord must pay the compensation within 28 days of the date of this determination. It must also provide evidence of the payment to this Service by this deadline, together with a full breakdown of its calculation for the compensation of 17 days rent.

Recommendations

38. It is recommended that the landlord review and consider assurance and quality checks to ensure ordered works are properly requested and completed within the policy timescales and chased up at regular intervals.
39. It is recommended that the landlord crosscheck and share all contact information for residents with contracts, considering its GDPR obligations.