Birmingham City Council (202113968)

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REPORT

COMPLAINT 202113968

Birmingham City Council

31 July 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:
1. Response to the resident’s reports of a faulty heating and hot water system at the property.
2. Complaint handling.
3. Record keeping.

Background and summary of events

Background

The resident is a secure tenant of a property owned and managed by the landlord which is a local authority. The property is a semi-detached house.
The resident has had a tenancy with the landlord since 2015, residing at the property in question. The landlord has no recorded vulnerabilities for the resident or her household. The resident does not speak English. She lives at the property with her three children.
The property has a heating system which consists of a 6 year old Worcester boiler and a 30 to 35 year old micro bore piping system.
The conditions of tenancy say that the landlord will keep in repair and proper working order the installations in the property for space heating and heating water.
The tenancy is subject to the implied term of Quiet Enjoyment. This means that the resident is entitled to enjoy the property peacefully and without undue interruptions which can be breached by ongoing disrepair.
The tenancy is also subject to the governments Housing Health and Safety Rating System (HHSRS) which lists Excess cold as a threat to health when temperatures fall below the minimum satisfactory levels for relatively long periods. The HHSRS Guidance for Landlords and Property Related Professionals (2006) says that a healthy indoor temperature is around 21˚C, with health related risks generally increasing in severity from below 19 ˚C. The effects of cold include respiratory conditions such as flu, pneumonia and bronchitis, and cardiovascular conditions like heart attacks and strokes.
The landlord’s repairs policy says that all urgent repairs are repairs that are concerned with protecting the health and safety of the tenant and their family or the security of the property. The completion period for these repairs shall be one, three or seven working days based on the requirements of The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994.
The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994 say that a total or partial loss of space or water heating between 31st October and 1st May should be resolved in 1 working day. The regulations say that a total or partial loss of space or water heating between 30th April and 1st November should be resolved in 3 working days.
The landlord’s complaints policy, effective December 2020, shows it operated a three-stage formal complaints procedure at the time of the complaint. At stage one the landlord aimed to resolve complaints immediately. If this was not possible it would escalate the complaint to be investigated at stage two in its process and respond to those complaints within 15 working days. If the resident remained unhappy they could ask the landlord to undertake a review at stage three in its process. The landlord says the complaint would then be looked at by an independent officer and responded to within 20 working days. The landlord’s policy says if a resident remains dissatisfied following its review it will tell them what they can do next. It says at this stage the resident may wish to contract the Local Government and Social Care Ombudsman.
Paragraph 3.4 of the Ombudsman’s Complaint Handling Code says, “Landlords should confirm their understanding of the complaint and the outcomes being sought with the resident. Clarification should be sought if the complaint is not clear.”
Paragraph 3.6 of the Ombudsman’s Complaint Handling Code says, “A landlord’s complaints procedure shall comprise of two stages. This ensures that a resident has the opportunity to challenge any decision by correcting errors or sharing concerns via an appeal process.”

Summary of events

The landlord’s repair log shows that concerns relating to the heating and hot water system was reported from 1 February 2017.
The repair log shows 22 callouts recorded in relation to the heating and hot water system at the resident’s property from 1 February 2017 until the resident made her formal stage one complaint on 9 July 2021. 12 of these callout’s related to the heating system failing in all rooms of the property, 5 related to water leaks, 3 related to the heating system failing in some of the rooms of the property, and 2 callouts related to the heating system vibrating and banging.
On 9 July 2021 the resident formally complained to the landlord that the radiators in the property were not heating up. The resident said that when radiators were changed in the property the old piping was not replaced.
At the time the resident raised her stage one complaint the landlord’s contractor had made three referrals to the landlord that the property needed a full new system.
On 16 July 2021 the landlord provided its complaint response at stage one in its process. This response said that the senior gas technician had attended this property and found no faults or defects with the radiators or the boiler. It said there was therefore no work required and it would always seek to repair wherever possible. The landlord said that it would not replace the low surface temperature radiators in the property as it considered that would be an upgrade, the work not arising from a defect. The landlord said its contractor could only renew parts and fittings when they were completely beyond repair or where a repair was uneconomical.
On 21 July 2021 the resident telephoned the landlord asking that it review her complaint. The resident said she remained unhappy with its response. Call records from this date show the resident told the landlord that the radiators were still not working as they did not give off the correct heat inside the property. The resident also said that her children were cold all the time. The resident asked to speak with the landlord about the matter as she was confused because she said the contractor was telling her different things to what the landlord had said in its complaint response.
On 16 August 2021 the landlord provided its stage two complaint response letter. The landlord’s stage two response said it had reviewed the resident’s complaint. The landlord repeated its decision from its stage one response, that its senior gas technician attended the property and found no faults or defects with the radiators or the boiler.
On 20 September 2021 the resident contacted this service about her complaint. In ongoing communications with this service, the resident said that the problems with heating in the property were persisting and she had reported these same problems over ten times to the landlord.
The resident continued to report ongoing problems with the property’s heating and hot water system after completing the landlord’s complaints process.
On 26 October 2021 the resident reported that the heating system was making a banging noise and was not working properly in all rooms of the property, saying the radiators were warm but not getting hot. On 27 October 2021 the repair log shows the contractor noted it made a fourth referral to the landlord recommending a new system. The contractor commented on the age of the heating system and its radiator type. The contractor said there was insufficient heating for the property which would be cold in the winter months. The contractor also named staff who were aware of the problems at the property. The repair log shows that more time was required to complete the repair, but it is not clear why. On 19 November 2021 it was noted that a repair to leaking pipework was required, work to fill a vent and test the radiators. A further note was made on this repair on 24 November 2021 to confirm the job was completed following the replacement of thermostatic radiator valves.
On 29 November 2021 the resident contacted the landlord as she was without a heating and hot water supply in the property. The contractor attended this same date, and the repair log shows it noted this to be the fifth referral for this property to have a full system replacement. The contractor again noted the age of the system and radiator type. The contractor also recorded that the property was only 14.5 degrees with heating on during the snow and said that all the new thermostatic radiator valves were leaking, and the boiler was dropping pressure.
On 4 December 2021 the contractor reattended. The repair log for this date says, in bold font, ‘NO HEATING OR HOT WATER- VULNERABLE TENANTS HAS BEEN WAITING SINCE THE 29TH FOR AN OOH JOB.’ Throughout December 2021 the repair logs demonstrate the contractor attended five times to attempt repairs to the resident’s heating and hot water systems. The repair log entries note the resident was without heating and hot water at these times or that the central heating had failed in all rooms and the boiler was broken.
A repair log entry dated 10 December 2021 shows the contractor made its sixth referral for a replacement system to the landlord. Ten days later, on the 20 December 2021, the contractor notes making its seventh referral to the landlord.
On 30 December 2021 the repair log lists another callout to the property regarding heating and hot water problems. The contractor attended on 31 December 2021. The repair log says the “radiators are old and potentially need replacing and parts need replacing these are the previous things that engineers have pointed out.”
On 12 January 2022 the contractor made an eighth referral request to the landlord for the property to have a full central heating system replacement.

Assessment and findings

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

The landlord’s response to a faulty heating and hot water system at the property

It is noted that at all times the contractors were acting on behalf of the landlord in its dealings with the resident.
The repair log shows 18 completed callouts to the resident’s property from 1 February 2017 until the resident made the formal complaint on 9 July 2021. That is an average of 4 callouts per year relating to the central heating and hot water.
Between 9 July 2021 and 12 January 2022, the repair log shows a further 8 completed callouts to the resident’s property. All of which were related to reports of issues with the property’s central heating and hot water system. This is an average of 1.3 callouts per month over this 6 month period.
The landlord failed to act upon a total of eight referrals by the contractor that the property required a full heating system replacement. The landlord said in its complaint response that any such full system replacement could only be made in instances where items were completely beyond repair or where a repair is uneconomical. This approach is supported by the landlord’s Repairs Policy.
However, the problems with the resident’s central heating system were not remedied by the repairs carried out over time by the contractors. Despite referrals made to the landlord by its contractor for the required replacement system, the landlord failed to act. The contractor repeatedly drew attention to the age of the system in callout notes, that the systems had failed and that a new system was required. The contractor also named staff in the callout notes on the repair log, suggesting that it had taken steps to escalate concerns to the landlord. The fact that the landlord did not act on the contractors’ referrals and concerns, and carry out necessary work to the heating system, is indicative of a flawed interpretation of its repairing obligations under the law and the tenancy agreement, which was then exacerbated by its Repairs Policy.
It is of concern that the landlord failed to respond to the eight referrals. It is also of concern that the landlord missed opportunities to remedy this oversight on each of the occasions the resident returned to it to report a recurrent problem. This is especially true of the callout on 4 December 2021 when the landlord noted that the resident was vulnerable as it had been waiting on assistance from it since 29 November 2021 without heating or hot water. Based upon the evidence this service has seen, the landlord failed to arrange the required service for the resident following its attendance on 29 November 2021.
Whilst it is unclear if the resident was without any heating and hot water for the entire period, from 29 November 2021 to 12 January 2022, the evidence we have seen supports that the resident and her family’s central heating and hot water supply was ineffective throughout this time. It is concerning that despite the contractor’s comments that the property was only 14.5 degrees with heating on during the snow, drawing attention to the resident’s circumstances, no action was taken by the landlord at this time. The landlord’s Urgent Repairs policy, in line with The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994, says that repairs requested between 31 October to 1 May attract a one working day response time. The landlord failed to comply with this.
This service has identified further instances where the landlord has failed to comply with urgent repair response times. Because of the lack of information shared with this service it is unclear if there is any good reason for such delays. However, given the overall number of callouts, the landlord did predominantly adhere to the applicable response timescales, as per The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994. Out of 26 completed call outs:
1. 6 were completed the same day
2. 11 were completed within 1 day
3. 2 were completed within 2 days
4. 1 was completed in 3 days
5. 1 was completed in 4 days
6. 1 was completed in 5 days
7. 2 were completed in 7 days
8. 1 was completed in 11 days
9. 1 was completed in 29 days.
In all, the delay experienced by the resident rests in the landlord’s failure to take the appropriate action following each subsequent callout the contractor made. On 11 March 2021 contractors made the first referral to the landlord that the property required a full system replacement. The resident continued to report faults with the heating system after this date and the contractor made repeated requests supporting that the heating system is inadequate for the needs of her property and needs to be replaced. To this date the resident has experienced an ongoing delay of one hundred weeks from the time the first contractor referral was made to the landlord to install a new heating system.
The landlord had numerous opportunities to put right what was wrong, and it did not. The landlord’s actions led to the resident and their family being without adequate heating and hot water for protracted periods, often during the colder months of the year.
The resident has told this service that as a result of the problems with the property’s heating system her mental and physical wellbeing has been impacted. This service has seen a copy of a letter the resident’s doctor provided to the landlord in November 2021 which says that the problems with the heating system had caused the resident distress and led to a chronic back problem. The resident has also raised concerns about the impact her living environment has had on her children.
Whilst this service cannot draw any conclusions in relation to the causality of the resident’s back problems, it is evident that the situation has been extremely distressing for the resident for a prolonged period. As at March 2023 the Ombudsman noted the resident reported the problems with the property’s heating to be ongoing, which amounts to a period of one hundred weeks since the time the first referral was made to the landlord that the property needed a new heating system until the present date. The resident’s heating system has not been replaced.
The landlord’s failures in this case, in terms of its response to the faulty heating system at the property, are so significant that a finding of severe maladministration has been made.

Complaint handling

The Ombudsman’s Complaint Handling Code, paragraph 4.6.’ says that the complaint investigation should be fair, and the complaint officer should act independently and have an open mind and consider all information and evidence carefully.
Paragraph 4.9 of the Complaint Handling Code also says that as part of a landlords’ complaint policy the resident shall be given a fair opportunity to:
1. set out their position.
2. comment on any adverse findings before a final decision is made.
In the landlord’s complaint responses, it said that a senior gas technician attended the property and determined that no work was required, and no faults or defects were found with the radiators or the boiler. The landlord went on to say that wherever possible repairs would be undertaken, and the contractors could not undertake a replacement of radiators which would be considered an upgrade because it was not defective.
This service has seen that as part of its complaint handling process the landlord made one internal enquiry before responding to the stage two complaint response.
The landlord did not make any supplementary enquiries or checks to determine the series of events leading up to the resident’s complaint or check pertinent information such as the repair logs.
When the resident responded to the landlord on 21 July 2021, following receipt of its stage two complaint response, the resident asked that the landlord contact her to discuss the matter. The call notes show the resident was confused following receipt of the complaint response because it contradicted what the resident said the contractor was telling her, that there were faults which required a replacement heating system. The landlord did not communicate with the resident about her ongoing concerns or her adverse position to its stage one decision before issuing its final decision, which is not in line with paragraphs 3.4, 3.6 or 4.9 of the Complaint Handling Code.
The landlord’s complaint responses failed to assess in any detail what had gone wrong and why, therefore indicating that the investigation into the issues complained about was inadequate. The investigation at both stages of the landlord’s complaint process failed to identify the three referrals made by that time by contractors for a replacement heating system or the problems cited by operatives as irreparable.
The landlord’s stage three complaint response demonstrated a lack of sufficient review of its stage two decision.
The landlord’s investigations lacked care and attention and failed to utilise the appropriate resources and tools to ensure a thorough consideration. These failings have inextricable links to the protracted nature of the resident’s experience in relation to unremedied repairs. Had the landlord a more robust approach in its complaints handling it could have lent itself to both resolving the resident’s complaint sooner and initiating the required repairs.
Taken altogether, these failings amount to severe maladministration in the landlord’s complaint handling.

Record keeping

Record keeping failures underpin the landlord’s inability to action both repairs and complaint handling robustly. This service has identified failings by the landlord in its record keeping. The only documentation the landlord provided to this service relating to the repairs was a repair log spreadsheet and the resident’s formal complaint.
The Ombudsman has not seen copies of the following that it requested from the landlord as part of this investigation:
1. Any records concerning the Landlord’s investigation into the resident’s reports, associated monitoring, outcomes, and actions, aside from the brief contractor summary in the repair log.
2. Copies of any survey or inspection reports, including associated photographs and communications.
3. Copies of the referrals made by the contractor.
4. Copies of any correspondence or notices sent to the resident concerning the landlord’s findings.
5. Copies of the resident’s call logs and associated documentation, including the landlord’s internal communications, following the resident’s reports of problems with the property’s heating system.
6. Copies of all communications and system records relating to repairs, both internal and those with the resident. Including all exchanges by email, letter, telephone, and electronic system notes and files.
This has limited the Ombudsman’s ability to thoroughly investigate the landlord’s response to the resident’s reports of heating problems within the property. One key aspect this service was unable to determine without the requested information is around the eight referrals the contractor made. The Ombudsman could not draw any conclusion as to what happened after the referrals were made, only that it is documented they were made for a new heating system. As such we could not conclude what processes were followed.
It is vital that appropriate records are maintained to demonstrate that the landlord has met its obligations under its repairs policy. These failings amount to maladministration by the landlord in its record keeping.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in respect of the complaints about the landlord’s:
1. Response to the resident’s reports of a faulty heating system at the property.
2. Complaints handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Reasons

The landlord failed to carry out repair works in line with its obligations. It failed to take appropriate steps to remedy the resident’s reports of heating and hot water problems at her property, or when its contractor repeatedly notified it of the need for a replacement heating system. This failure led to the resident being without appropriate heating levels and hot water within her property for a prolonged period of time. Consideration has been given to the repeated missed opportunities by the landlord, the landlord’s failure to identify and acknowledge the issues during its complaint process, its internal repair response and record keeping failures, the impact this had on the resident and their family, and that the landlord ultimately failed to meet its repairing obligations and replace the heating system. This resulted in a great deal of time, trouble and distress for the resident in pursuing the matter.
The landlord failed to comply with its complaints policy and was in breach of the Ombudsman’s Complaint Handling Code. The landlord did not fully engage with the resident during its complaints process. It failed to use its complaints policy to put right what was wrong, and in doing so perpetuated the problems the resident was experiencing in progressing her concerns about an inadequate heating and hot water system in the property.
There were failings by the landlord in its record keeping, which adversely affected the Ombudsman’s ability to consider all aspects of this complaint.

Orders

The landlord is ordered within four weeks of the date of this report to replace the relevant parts of the central heating and hot water system in line with its contractors’ multiple recommendations.
This service orders the landlord to address any ongoing heating and hot water problems within 4 weeks of this report and confirm in writing to the resident and this service what works have been completed.
Within four weeks of the date of this report the landlord is ordered to write to the resident, acknowledging its failings in respect of the resident’s experience and apologising to the resident for the failures identified by this investigation. This service asks that the landlord considers a reasonable adjustment in this communication with the resident and arranges for the letter to be translated into Arabic.
The landlord is ordered within four weeks of the date of this report to pay the resident £3,525 compensation, broken down as follows:
1. £2,935 for the distress and inconvenience caused by its handling of the repair.
2. £490 for the distress and inconvenience caused by its poor complaint handling.
3. £100 for its record keeping failures.
The landlord must update this service when payment has been made. Payment is to be made directly to the resident and without any deductions.
Within six weeks of the date of this report the landlord should carry out a senior manager review of its handling of the repairs (considering in particular when an item is no longer repairable), record keeping and formal complaint in this case, and consider how it can ensure that the identified failings do not arise again. The findings of the review should be provided to this service.