EMH Housing and Regeneration Limited (202200274)

REPORT

COMPLAINT 202200274

EMH Housing and Regeneration Limited

19 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

The complaint is about the landlord’s response to the resident’s reports of heating and hot water loss.

Background and summary of events

Background

The resident is an assured tenant in a two-bedroom house and lives in the property with her two adult sons. The tenancy began in May 2000.

Legal and Policy Framework

As per Section 11 of the Landlord of Tenant Act 1985, the tenancy agreement states that the landlord is responsible for keeping in repair and proper working order the installations in the property for the supply of water, gas and electricity, and keeping in repair and proper working order the installation in the property for space heating and heating water. The law says that a landlord should repair a housing defect ‘within a reasonable amount of time’. This is not specific but depends on the circumstances and levels of urgency.
At the time of the complaint, the landlord operated a two stage formal complaints procedure, where stage one complaints were dealt with by an appropriate manager. Stage two complaints consisted of an internal panel meeting, which included a head of service and/or a director, a board member and a tenant representative, which was followed by a written response. It should be noted that the policy did not include any target timescales. The process has since been updated to comply with the Ombudsman’s current Complaint Handling Code.
The landlord’s Repairs and Maintenance Policy includes five categories of repair. For emergency repairs, there is a maximum response time of 24 hours. Where a health and safety hazard or potential serious detriment risk is identified, repairs have to be dealt with to prevent harm to the resident. A maximum response time of 24 hours is allocated to make the property safe (but not necessarily to carry out a full repair). Emergency repairs include a total loss of heating in winter.
Appointed repairs are carried out at a time and date agreed with the resident (possibly to follow on from an emergency repair). These repairs are those that, if left, could develop into a safety hazard or materially affect the enjoyment of the home. The remaining categories are non-urgent repairs that the landlord aims to complete within three months, small works that are likely to take more than two hours and cyclical maintenance. The policy advises that the timescales indicated are for guidance only and that the landlord recognises that personal circumstances and local situations can affect the true repair priority. For this reason, the landlord’s Customer Service Advisors are trained to identify these differences and are authorised to adjust an individual repair urgency accordingly
The landlord has a compensation policy for service failure, which pays between £50 and £250 for instances of service failure resulting in some impact on the resident, and £250 to £700 in cases where the landlord has found considerable service failure or maladministration, but there may be no permanent impact on the resident. The landlord will pay over £700 in recognition of maladministration or severe maladministration that has had a severe, long-term impact on the resident; including physical or emotional impact.

Summary of events

On 26 January 2021, the resident reported a total loss of heating and hot water in the property. This was categorised by the landlord as an emergency repair and the contractor attended and resolved the issue on 2 February 2021.
On 29 April 2021, the resident contacted the landlord to raise a stage one complaint about the time it took to restore her heating and hot water. The landlord has not provided this Service with its stage one response but the resident escalated her complaint on 3 June 2021. The landlord responded on 12 July 2021, with its stage two response, and stated that it had agreed the following actions in order to resolve the complaint and prevent escalation to a panel hearing:
1. The landlord stated it would install an electric shower in the property and confirmed a job had been raised for this.
2. It confirmed it would pay the resident £50 compensation.
3. It would discuss with its contractor the issues the resident raised in her complaint to prevent the same problems happening in future.
On 30 July 2021, the resident reported a fault with her boiler and an appointment was booked for 10 August 2021. On 11 August 2021, the resident called the landlord to say that an operative had attended to fix the boiler but that he needed parts for the repair. She said she had no hot water in the meantime and wanted someone to return that day. The landlord told her that loss of hot water was not an emergency. The resident raised a new stage one complaint on 11 August, which stated the following:
1. She had received a date (not specified) for her boiler repair and that it was an unacceptable amount of time to be left without hot water.
2. It would affect her and her family’s rights to practice their religious beliefs as they had to wash thoroughly before prayers.
3. The hot water had stopped after the engineer had attended, even though he had said it had not been affected.
4. She said she had yet again been left without heating and hot water and that, together with having to bury her father that day, it was all getting too much for her.
On 18 August 2021, the landlord acknowledged the complaint and noted that the resident wanted her appointment brought forward. It also asked if there was anywhere the resident could go in the meantime to bathe, suggesting family or friends. The resident responded the same day and said that, due to COVID-19, she was not comfortable to bathe at family and friends’ homes. She also confirmed she had been contacted by the heating contractor, who informed her the appointment had been brought forward to 19 August 2021. She stated that, although she was relieved about the earlier appointment, she would still continue with her complaint.
The resident called the landlord at 1pm, on 19 August 2021, to say that the contractor was supposed to arrive in the morning but had still not turned up. The landlord advised that the contractor was running late at another job and would be at the resident’s property within the hour.
On 20 September 2021, the landlord sent the resident its stage one response, which stated the following:
1. It extended its sincere apologies for the concerns the resident had raised.
2. It explained that the contractor had attended on 10 August 2021 and found that parts were needed, including a spindle for the reset button that may have been damaged during the visit. It said the parts were placed on order and fitted on 19 August 2021, where the heating and hot water was restored.
3. The landlord confirmed that a routine repair had been raised, which gave the contractor 28 days to complete the job and that this was the standard completion time during the summer months. It stated that, once it received the parts, it completed the repair as quickly as possible and that it would never leave a resident without heating or hot water for longer than absolutely necessary.
4. The landlord attached information on how the resident could send feedback about its service.
The resident responded the same day to say that, although the landlord had dealt with her complaint regarding the boiler repair, it had not installed an electric shower, which it had agreed to do following her previous complaint. As a result of the landlord’s failure to install the shower, this led to further issues with the boiler and resulting stress. The resident asked how she could move forward with her complaint.
On 24 September 2021, the landlord wrote back to apologise for not mentioning the electric shower in its response. It said that, when the contractor came to fit the shower, they found a pest infestation and explained that the shower could not be fitted while there were pests in the property. It had been informed its pest control team visited on 23 September 2021. The landlord said that, once it received confirmation that the infestation had been eradicated, it would re-book the shower installation.
The resident contacted the landlord on 6 October 2021 to inform it that the pest control visit did not take place on 23 September. She added that she was still experiencing problems with her boiler not coming on or going off, and her thermostat was not working properly. The landlord responded on 8 October 2021, apologised that pest control had not turned up and raised a job for the contractor to return to look at her boiler.
The resident wrote to the landlord on 23 October 2021 to say she wanted to escalate her complaint and asked the landlord to forward her concerns to the Ombudsman. She stated that the failure to repair her boiler had left her with long periods without heating and that this had affected her mental health, finances and her employment. The landlord responded on 29 October 2021 to confirm that an appointment had been arranged for 4 November 2021, and scheduled for after 4pm, when the resident would be back from work. It stated that its complaints procedure had a second stage and that this consisted of a virtual panel hearing. It asked the resident to confirm how she wanted her complaint to be resolved.
The resident reiterated to the landlord, on 6 November 2021, that she wanted to escalate her complaint to the Ombudsman and that, despite being reassured numerous times that it would rectify the issue with her boiler, she had been left without heating for over a month. The landlord wrote back on 8 November 2021, to confirm that her complaint had been escalated to the final stage of the process.
On 10 November 2021, the resident spoke to the landlord on the telephone after the contractor had attended on 5 November 2021 with the wrong part, and had to re-book the appointment as a result. The landlord wrote to the resident on the same day and stated the following:
1. It confirmed that an appointment had been booked for 12 November 2021, after 4pm, so that the resident did not have to take any further time off work.
2. It explained that an incorrect part was delivered to the contractor, which caused further delays, and acknowledged that the resident had incurred costs from having to run temporary heaters from 6 October 2021.
3. It apologised for the delay in resolving the matter and offered compensation of £180 to cover the additional electricity costs incurred when having to use her own fan heaters. In addition, the landlord offered £100 for the time taken to complete the repair, and for the inconvenience caused.
4. The landlord had contacted its pest control team, who stated that it cancelled the visit after the resident said she had made her own arrangements with another pest control company.
On 14 November 2021, the resident wrote to the landlord and confirmed an engineer had attended on 12 November and that the work had been completed. She said she was happy to accept its offer of compensation but clarified she had not cancelled an appointment with pest control and had not made her own arrangements. She stated she had it in writing that pest control would contact her directly and that she would not be liable for the cost of the treatment.
On 19 November 2021, the landlord wrote to the resident and stated the following:
1. It was happy the repair was complete and, as the resident had accepted its offer of compensation, it would issue her with a final response letter.
2. The landlord had spoken to the pest control team, who stated that, following a conversation between the resident and a technical director, their understanding was that the resident was using a different company and therefore cancelled the appointment.
3. In order to move things forward, the landlord confirmed that pest control would attend and make contact with the resident to arrange for a suitable time to access the property.
The landlord issued its stage two response on 23 November 2021, in which it stated the following:
1. The boiler was repaired on 12 November 2021.
2. The shower installation had been delayed due to a misunderstanding that meant the pest control visit was put on hold. Now this was resolved, the pest control service would be contacting her to arrange an appointment.
3. It confirmed its offer of £180 compensation for the additional electricity cost while the boiler was being repaired.
4. It also confirmed its offer of £100 for distress and inconvenience caused.
5. It stated that it would discuss with its contractor the communication issues the resident had highlighted.
The resident wrote to the landlord on 13 February 2022 to say that the pest control visit was still outstanding and the shower installation was not complete. She confirmed her wish to escalate her complaint to the Ombudsman.
Following further reports of problems with the heating system, on 29 January and 19 February 2022, the landlord replaced the boiler on 23 February 2022.
The landlord installed the electric shower on 3 August 2022.

Assessment and findings

Scope of investigation

What this Service 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, this Service must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
In her complaint to the Ombudsman, the resident raised concerns to this Service that she had not raised in her formal complaint to the landlord. These included scaffolding being erected without any notification, ongoing pest issues and a visit from an operative without prior notification. In accordance with paragraph 42(a) of the Ombudsman Scheme, this Service will not investigate complaints that are “made prior to having exhausted a member’s complaints procedure”. If the resident remains dissatisfied with these issues, it is open to the resident to raise a formal complaint to the landlord. The resident may refer this matter to the Ombudsman if she remains dissatisfied once she has received the landlord’s final response to her concerns.

Response to the resident’s reports of heating and hot water loss

The Ombudsman has noted and wishes to acknowledge that the resident has suffered significant distress and inconvenience as a result of boiler issues and the intermittent loss of heating and hot water over a long period of time. The Ombudsman recognises how upsetting it must have been to be uncomfortable in one’s own home, and to have to live with the disruption of repeated visits by operatives; particularly at a time when grieving for the loss of a family member.
However difficult a resident’s circumstances, there is no absolute requirement or expectation that a landlord can address all of a resident’s difficulties. While the Ombudsman will take this into account in the investigation, the Ombudsman’s role is to consider the response by the landlord to a resident’s reports, whether it complied with its policies, current legislation and good practice, and whether its approach and actions were reasonable in the circumstances.
A warm home and hot water are basic needs for any household and a lack of heating or hot water does not just cause discomfort but can be a risk to health and well-being. The Ombudsman’s spotlight report on complaints about heating, hot water and energy in social housing, published in February 2021, highlighted that this Service’s investigations had repeatedly found a failure to put things ‘right first time’, caused by missed appointments that were sometimes exacerbated by operatives attending jobs without the right tools or parts. This Servicesaid that of particular concern was the promptness of landlords’ actions, given the significant impact of problems during the colder winter months. The reportrecommended that, where a problem with the heating and hot water cannot be resolved quickly, landlords should ensure residents have access to temporary heating, and provide a clear timescale for repairs.
The landlord acted correctly when it offered to install an electric shower in the resident’s property, after a fault with the boiler left her with no heating or hot water for seven days in January and February 2021. This would have provided the resident with a back-up hot water supply and, in case of any future breakdowns, it would have helped meet the resident and her family’s spiritual needs, and their requirement to bathe before prayers.
Although the landlord had stated in its stage two response of 12 July 2021 that a job had been raised to install the shower, the evidence suggests the landlord had identified a pest infestation in the property when it came to fit the shower and that this delayed the installation. It is unclear why the shower could not be fitted while there were pests in the property; however, the landlord was entitled to rely on the advice it was given about treating the infestation first. It was also appropriate that it offered to meet the cost of the pest treatment. However, it is unclear why the work to erradicate the infestation and subsequent work to fit the shower was so delayed, even after the infestation had been cleared.
The evidence shows there was some disagreement between the landlord and resident over who would be carrying out the pest treatment, which led to the landlord’s contractor cancelling the 23 September 2021 appointment. However, although the landlord stated there was a conversation between the resident and technical director in the pest control service that led to the appointment cancellation, the landlord did not provide any contemporaneous records of the discussion, or the date it was meant to have taken place, This indicates a lack of record keeping, a reliance on hearsay and suggests the landlord may have cancelled the visit in error. In addition, the misunderstanding over the cancelled appointment does not explain the subsequent delay between November 2021 and August 2022. The delays were unnecessarily protracted and, together with the lack of an alternative hot water supply, updates or follow up by the landlord, this would have contributed to the resident’s discomfort, inconvenience and distress during the periods of time she was left with no hot water.
It took two months for the landlord to acknowledge to the resident that the pest control visit for September 2021 had been cancelled. It is unclear why the landlord was unaware the appointment had been cancelled and indicates there was a lack of communication between the landlord and its contractor. Regardless of whether the landlord’s pest control service or a different company was due to carry out the pest treatment, there is no evidence the landlord had followed up with the resident on the progress of the shower installation. Had it agreed to provide the resident with regular updates on the progress of the works, the issues that were holding up the work could have been resolved sooner and the work to fit the shower could have been completed within a reasonable timescale. In addition, the resident may have had the benefit of the electric shower by the time she lost her hot water supply again. Instead, poor communication and lack of a resident focused approach meant the shower the landlord had committed to provide in its stage two response of July 2021 was not installed until August 2022; over a year later.
There is no evidence any other support was offered during the seven days the resident was left without heating in January and February 2021. There was no offer of any temporary heating, which would have been particularly important, considering this was during the winter period. Similarly, there is no indication the landlord offered temporary heaters when the resident was left without heating or hot water for a month, between 30 July to 19 August 2021. It is recognised the need for heating during the summer months is not as essential; however, internal correspondence indicates that resident had not been made aware, until 5 November 2021, that the landlord could have provided her with temporary fan heaters. This was nearly a year after the resident reported the initial fault in January 2021. This again demonstrates poor communication and a lack of resident focus, as well as a failure to identify the potential health risks to the resident from the loss of heating. The failure of the landlord to provide an alternative source of heating for long periods left the resident no option but to source her own fan heaters, as well as pay additional electricity costs. It was appropriate for the landlord to offer the resident £180 compensation to cover the cost of using fan heaters while her boiler was being repaired but it should have provided heaters at the outset. The failure to do so left the resident and her family with a cold property for longer than necessary
There is no evidence the landlord offered any alternatives when the resident lost her hot water supply. Although it was not unreasonable for the landlord to suggest the resident could ask family and friends for assistance, it is understandable that she would not have been confident to do this due to the COVID-19 risk. There is no indication the landlord considered options, such as offering the resident a move to temporary accommodation while the problems with her hot water were being addressed or, for example, temporary gym membership so the family had access to bathing facilities. This meant the resident was left with no access to hot water for longer periods than necessary, causing significant discomfort and distress.
Although the delivery of an incorrect part caused further disruption and left the resident without the use of her boiler for a further nine days, the landlord informed the resident that the repair was categorised as routine, which gave the contractor 28 working days to complete the job. It also stated that this was the standard completion time in the summer months. Other than for emergency repairs, where the 24-hour response time is quoted, the Repairs and Maintenance Policy does not give any other timescales and therefore it is not clear where the 28 days originates from. There is nothing in the landlord’s policy that informs residents of this timescale.
The spotlight report recommends that landlords should provide a clear timescale for repairs. It would therefore have been appropriate for the landlord to have advised the resident about the 28-day completion date at the start. It should also be noted that the landlord had not mentioned what the completion date was for routine repairs during winter months, and whether or not it had met its timescales when the resident’s boiler broke down in January and October. It would have been helpful if this information had been provided in the repairs policy. Although the evidence shows the landlord had generally attended to emergency repairs within 24 hours, the repairs log shows that an emergency repair in winter took seven days to complete, which is in breach of the landlord’s repairs policy. This is because a total loss of heating in the winter is considered an emergency repair and there is no indication the landlord considered the health and safety risks or made any attempt to ‘make the property safe’ by, for example, providing an alternative source of heating. This was a significant failure by the landlord to follow its obligations as set out in its Repairs and Maintenance Policy.
It was appropriate that the landlord replaced the boiler on 29 April 2022; however, given how regularly the resident had reported faults, it was unclear whether the landlord considered an earlier replacement. There is no information regarding the age of the boiler and it was appropriate that the landlord tried to fix it before arranging a replacement; however, considering the number of callouts over a 15 month period, an earlier replacement could have avoided repeated inconvenience and distress to the resident, who was periodically left without heating and hot water, sometimes for long intervals. It would have also avoided the disruption of repeated call-outs and the need for the resident to take time off work to accommodate the engineers’ visits.
The Ombudsman’s Dispute Resolution Principles are:

a. Be fair – treat people fairly and follow fair processes

b. Put things right

c. Learn from outcomes

The landlord took some steps to put things right by apologising for the delays and offering £280 in compensation to cover the additional expense of running fan heaters, and in recognition of inconvenience and distress. It also undertook to share the resident’s complaint with its contractor in order to improve the service. However, in the Ombudsman’s opinion, the landlord’s offer does not adequately reflect the impact on the resident of lengthy and avoidable delays, long periods of time spent without heating and hot water, the disruption caused by repeated visits by operatives and the landlord’s failure to install an electric shower within a timely manner. With the above in mind, further redress is required to put matters right.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s reports of heating and hot water loss.

Reasons

Following repeated boiler breakdowns, the landlord left the resident without heating and hot water, often for lengthy periods of time. It offered the resident no temporary heating or any options regarding alternative hot water supply. It provided little or no updates to the resident while the boiler was being repaired. In addition, the resident had to live with the disruption of repeated visits by operatives while repairs turned out to be only temporary. Although it offered the resident some redress, this did not properly recognise the impact on the resident while having to wait for around 15 months for an electric shower to be installed and for the landlord to provide a permanent solution in the form of a boiler replacement.

Orders

In addition to the £280 compensation that the landlord has already paid to the resident, the Ombudsman orders the landlord to pay compensation of:
1. £250 in recognition of the inconvenience and distress of being left without hot water;
2. £250 in recognition of the inconvenience and distress of being left without heating;
3. £100 for the delay in fitting an electric shower;
The total additional amount of £600 must be paid within four weeks of receiving this determination.

Recommendations

The landlord to review its Repairs and Maintenance Policy and give timescales for appointed repairs in order to inform residents when they should expect those works to be completed. It should also make the policy more accessible by publishing its policies on its website.
The landlord to review the service level agreement with its heating contractor and its own customer services standards to ensure residents receive regular updates when repairs take longer than 24 hours. It should ensure it effectively monitors its quality of service and communication and follows up with the resident on repairs, and provides regular updates on progress.