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Southwark Council (202220469)

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REPORT

COMPLAINT 202220469

Southwark Council

27 March 2024


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 the landlord’s handling of the resident’s reports of radiator issues on the ground floor of the property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is a secure tenant of the landlord, a local authority. The property is a 2-bedroom maisonette. The tenancy started on 18 August 2008.
  2. The resident has asthma, which the landlord is aware of.
  3. On 31 November 2021 the resident complained about the heating issues on the ground floor of his property. On 9 December 2021, he instructed solicitors to act on behalf of his complaint. On 17 December 2021 his solicitor wrote to the landlord explaining his disrepair claim. The Pre-action Protocol (the protocol) included grounds that the property was unfit for human habitation, there was excess cold, and there was asbestos and manufactured mineral fibres.
  4. During the protocol, the resident and the landlord did not pursue the complaint through its internal complaints procedure. On 30 May 2022, the landlord arranged a heat assessment with the resident for 6 June 2022 and its contractors noted a chemical flush was required. It visited the property on 28 June 2022 and flushed the heating system. It tested the radiators, and they were working. On 29 June 2022, both parties agreed to a Part 36 offer of £2,500 compensation for damages, and this was paid to the resident. The offer took into consideration instances of excess cold due to heating issues in the months of December 2017, January 2019, January 2020, and from October 2021 to December 2021. On 6 October 2022, both parties signed the post completion document that all works regarding the disrepair claim had been undertaken.
  5. On 7 November 2022, the resident reported to the landlord by email that all 3 radiators on the ground floor of the property were not heating properly. On 24 November 2022, the resident complained by email about this to the landlord. He said he was asthmatic and could not face these issues every winter. He was seeking legal advice again about the matter and wanted a permanent solution to resolve the radiator issues. The resident called the landlord on 2 December 2022 and 6 December 2022. On 6 December 2022, he said he was told over the phone that his case was not an emergency as the upstairs radiators were working.
  6. The landlord sent a stage 1 complaint response on 7 December 2022 to the resident. It had booked an appointment for its contractors to attend that day. It asked the resident to update it on the status of the heating after its contractors visited. The resident replied to the landlord on the same day. He told it the contractors were unable to get the radiators to function properly and a chemical flush was needed. He was told by the contractors that the chemical flush would be arranged as soon as possible. He said hat he wanted compensation for all the heating issues since 2020. On 13 December 2022 he added to the landlord, that he was having to take stronger medication for his asthma because of the cold conditions.
  7. The resident was unhappy with the landlord’s response and through this Service he escalated his complaint. The escalation request was sent to the landlord on 11 January 2023. On the same day, the resident had sent us a medical note from his doctor explaining how the cold is affecting his asthma. The landlord told the resident it would respond by 15 February 2023.
  8. On 24 January 2023 it attended the property, and a survey was carried out. On 8 February 2023, its contractors had attempted to visit the property, but the resident was at work.
  9. In the landlord’s final response of 12 February 2023, it acknowledged a delay between the attendance of 7 December 2022 until 31 January 2023 (when it had booked the chemical flush). It acknowledged the distress caused to the resident and agreed to pay £150 in total, this consisted of £105 for time and trouble and £45 for delays. The resident remained dissatisfied with the landlord’s response and referred the matter to this Service on 14 February 2023. He wanted higher compensation as he felt his health had been affected since the winter of 2020. He also outlined that on 13 February 2023 he tried to rebook the chemical flush for 16 February 2023but was told it would have to check the contractors’ availability.
  10. After the landlord’s internal complaints procedure, its contractors tried to attend the resident’s property on 13 March 2023 but was unable to gain access. On 29 May 2023, it flushed the heating system several times but due to a blockage, the system needed re-piping. On 9 June 2023 its contractors were unable to gain access again. The contractors attended the property on 5 October 2023 and a survey was carried out for a new pipe route. The landlord’s records show the resident was unsure if he wanted the proposed route for the new pipes or if he wanted the pipes to be put back in the ground the same as it was. Ultimately, it advised a full re-pipe was needed for the downstairs floor and it was awaiting a response from him.

Assessment and findings

Scope of investigation

  1. Paragraph 42a of the Scheme states the Ombudsman may not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted the landlord’s complaints procedure, unless there is evidence of a complaint-handling failure.
  2. The resident told this Service he has had inadequate heating since 2020. His solicitors initiated a disrepair claim to the landlord through the protocol on 17 December 2021. Both the Ombudsman and the courts will look to see that alternative dispute resolution (ADR) has been attempted in the first instance. There is no evidence following instructions to his solicitors, he pursued the complaint outside the protocol, or contacted this service. Hence, there is no evidence that his formal complaint about heating issues stemming from 2020 exhausted the landlord’s internal complaints procedure in line with paragraph 42a of the Scheme.
  3. Therefore, the scope of this investigation will start from 7 November 2022, when the resident reported radiator issues on the ground floor of the property. This is because prior to his reports of radiator issues in November 2022, the heating was restored in June 2022. Ultimately, he had accepted a Part 36 offer of £2,500 for damages partly regarding excess cold on 29 June 2022. On 6 October 2022 he confirmed that the repairs in the protocol were completed. Several months had passed since the repairs to the heating in June 2022 and there is no evidence that he disputed the quality of the repairs of June 2022 shortly after they were made. As such, events prior to November 2022 have been included in the background for context only.
  4. It is noted the resident said that without adequate heating, his health was affected. The Ombudsman does not doubt the resident’s concerns about his health, but this Service is unable to draw conclusions on the causation of, or liability for, effects on health and wellbeing. Therefore, we cannot confirm the effect of the landlord’s actions or inaction on the resident’s health and the resident may wish to seek independent advice if he wishes to pursue this aspect of his complaint. However, the resident had raised these concerns directly with the landlord, so we can consider how it responded to these issues. We have also considered the general distress and inconvenience which the radiator issues caused the resident.

Policies and procedures

  1. Section 11 of the Landlord and Tenant Act 1985 places statutory obligations on the landlord. It is to keep in repair and proper working order, the installations in the property that supply heating and hot water. Under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, the landlord is to assess hazards and risks within its rented properties. Excess cold is a potential category 1 hazard under HHSRS. Therefore, the landlord is required to consider whether defective radiators in its properties amount to a hazard and require remedying.
  2. The landlord has 3 tiers for responses to repairs. Emergency repairs will be attended to within 24-hours, in circumstances affecting residents’ health and wellbeing, it will aim to attend in 2 to 4 hours and make the area safe. Urgent repairs will be attended to within 3 working days and non-urgent repairs will be attended to within 20 working days. The landlord’s repairs policy states total or partial loss of heating or hot water between 1 October and 31 March will be treated as an emergency repair. Outside of this period, it will be treated as an urgent repair.

Radiator issues on the ground floor of the property

  1. As the resident is a secure tenant of the landlord, the landlord is responsible for repairs to the radiators and heating system. Where there are admitted failings by a landlord, 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 assesses whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles. This says landlord’s should be fair, put things right and learn from outcomes.
  2. When the resident first reported that repairs were required to the 3 radiators on 7 November 2022, he did not hear back and complained on 24 November 2022. It was not until 7 December 2022 that the landlord’s contractor visited the property. This meant it had taken 22 working days for it to attend to investigate the reported issue. There has been no justification provided as to why the landlord was not treating the resident’s reports as an emergency. Its policy states that between the beginning of October and end of March, partial heating loss will be treated as an emergency repair, which is the period the resident was affected. Although the resident had radiators upstairs that were working, the downstairs were not. Therefore, it was inappropriate for the landlord to have taken 22 working days to attend the property.
  3. Additionally, in his initial report the resident had told the landlord due to his asthma he needed the house warm, so it was aware he was vulnerable from the outset. This Service would have expected to see the landlord’s clear decision making regarding the risk to the resident. It should have assessed the risk of continuous living without working radiators on the ground floor of the property. The ongoing risk assessment ought to have considered the known vulnerability and considered interim mitigations such as temporary fan heaters or support referrals. The landlord had not demonstrated it paid due regard to the resident’s circumstances or made any adjustments to its service delivery, which was unfair, not customer focussed and unreasonable in the circumstances.
  4. The landlord also missed points of escalated risk. The resident emailed the landlord on 13 December 2022 that he was having to take stronger medication because of his living conditions. He also obtained a doctor’s note dated 11 January 2023 which said that inadequate heating and temperature differences could affect asthma. By the landlord not taking this into consideration, the resident remained confused as to how his situation was not being treated as an emergency, which would have caused him distress.
  5. From the information provided with regards to the repair, when the landlord’s contractors attended on 7 December 2022, it was unable to repair the radiators. The records showed it noted that 1 pipe might have been blocked and a chemical flush was needed. Despite the resident’s concerns about the downstairs of the property being too cold, he was not provided any temporary heating which would have been reasonable, considering the time of year.
  6. The landlord’s contractors had told him on 7 December 2022 a follow up appointment would be arranged for the chemical flush as soon as possible, but this was not booked until 31 January 2023, for 8 February 2023. There is also evidence that without notifying the resident, the contractors attended on 24 January 2023 to inspect the property. This then led to further inconvenience to the resident as the ability to make a right first-time repair or diagnosing the underlying issue was missed.
  7. It is unclear why a chemical flush had not been arranged earlier as the landlord was aware this was required from the first visit of 7 December 2022, so it had taken 36 working days to book this appointment. As above, no justification had been provided why this was not being treated as an emergency repair. In any event, this far exceeded the landlord’s timescales on non-urgent repairs which was inappropriate. However, the landlord had acknowledged these delays in its final response.
  8. On 8 February 2023, the landlord was unable to gain access to the property to attempt the chemical flush as the resident was not at home. This was beyond the landlord’s control. The Ombudsman would expect to see clear communication from the landlord. The resident said when he tried to reschedule an appointment on the phone on 13 February 2023, the date he had chosen was not confirmed to him as it depended on contractor availability. It is unclear from the evidence provided exactly when both parties had agreed another appointment date. However, prior to this, the evidence does not support that the landlord communicated proactively with the resident. Knowing the resident continued to face issues with the radiators and given his vulnerability, it would have been reasonable for the landlord to have been more proactive with its communication to try and reschedule the work.
  9. Access issues continued for the landlord’s contractors on 13 March 2023. It was not until 29 May 2023 that it gained access and after flushing the system, noted the system needed re-piping. Although some of the delays that occurred were outside of the landlord’s control, ultimately it had taken 139 working days since the resident’s initial report for the chemical flush to be carried out. The landlord has not provided contact notes regarding the arrangement of the booking from 8 February 2023 until 29 May 2023. Nevertheless, there was an unreasonable delay, and the landlord should have performed the chemical flush much sooner than it did. This caused avoidable inconvenience to the resident who was without functioning radiators in part of his property for a prolonged period.
  10. This Service acknowledges that as of 5 October 2023, the landlord was awaiting confirmation by the resident as to how he wanted the re-piping repairs undertaken.
  11. Overall, the landlord had not acted in line with its repairs policy. Although it made attempts to put things right and offered £150 in compensation to the resident, it had not acknowledged all its errors or evidenced any learnings. There was a disregard for the resident’s vulnerability, poor communication throughout and a lack of temporary measures. In line with the Ombudsman’s remedies guidance, in the Ombudsman’s opinion, the compensation is not fully proportionate to the distress and inconvenience that this caused the resident and requires further redress to put matters right.
  12. As such, this Service has found maladministration in the landlord’s handling of the resident’s reports of radiator issues on the ground floor of the property. Orders to put things right have been made and take into consideration the cumulative effect on the resident. An order has also been made for the landlord to contact the resident with a view to arranging the required repair to re–route the pipework.

The landlord’s complaint handling 

  1. In terms of timeliness, both the stage 1 and stage 2 responses were in line with what is expected by the Ombudsman in the Complaint Handling Code (the Code). After receiving the resident’s complaint escalation request, it acknowledged the complaint at stage 2 promptly and communicated that a response would be provided by 15 February 2023. This was positive and appropriate by the landlord.
  2. However, an email to the resident from the landlord on 7 December 2022 only referred to the repair order that was raised on that day and asked the resident to update it after its contractors had attended. When the landlord provided this Service information regarding this case, it said that its email dated 7 December 2022, was its stage 1 complaint response. The Ombudsman would expect a full response to the resident’s complaint at stage 1. At completion of stage 1, the response should include the following:
    1. the complaint stage
    2. the complaint definition
    3. the decision on the complaint
    4. reasons for any decisions made
    5. details of any remedy offered to put things right
    6. details of any outstanding actions
    7. details of how to escalate the matter to stage 2 if the individual is not satisfied with the response.
  3. The landlord had only provided the complaint stage and some detail that a contractor would be attending. This response was not satisfactory as it was not in line with the Code. By not including key elements, the resident was deprived of the opportunity for a potential early resolution to the problems he was facing, which was inappropriate.
  4. Shortly after the landlord’s first email of 7 December 2022 to the resident, it sent a follow up email. It said that he had previously included issues with the radiators in his legal disrepair claim and that he should send any queries via his solicitor to the landlord. The protocol does not constitute legal proceedings and ADR can be pursued at any stage of the protocol. Ultimately this was a new issue first reported in November 2022 and therefore not included within the disrepair claim. The Code states landlord must not refuse to escalate a complaint through all stages of the complaints procedure unless it has valid reasons to do so. It was not reasonable to have not been clear with the resident that it would continue handling his complaint through its internal complaints procedure, which would have affected his complaint journey.
  5. The landlord had not acknowledged any failings for its complaint handling in its final response. Hence, for the above failings, we find service failure in the landlord’s complaint handling. The orders include additional compensation in respect of the complaint handling failures and the landlord’s failure to address these during the resident’s complaint journey.

Determination 

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s reports of radiator issues on the ground floor of the property.
  2. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.

Orders and recommendation

Orders

  1. Within 4 weeks of this determination, the landlord is ordered to:
    1. Apologise to the resident for the failings identified in this report.
    2. If it has not done so already, it is to contact the resident to outline any outstanding repairs or next steps regarding the 3 radiators on the ground floor of the property. This includes arranging the required repair to re-route the pipework.
    3. Pay directly to the resident’s bank account, £600 in total compensation comprised of:
      1. £150 it offered at stage 2 of its internal complaint procedure.
      2. £400 for the distress and inconvenience, and time and trouble experienced by the resident regarding the radiator issues.
      3. £50 for the service failures arising from the landlord’s complaint handling.

If the landlord has already paid the resident the £150 compensation that it previously offered in its stage 2 complaint response or offset this against any arrears owed, it can be deducted from this total.

  1. The landlord is to provide evidence of compliance with the above orders to this Service.

Recommendation

  1. The landlord should review the Ombudsman’s ‘Guidance on Pre-Action Protocol for Housing Conditions Claims and service complaints’.