Clarion Housing Association Limited (202122599)

REPORT

COMPLAINT 202122599

Clarion Housing Association Limited

31 August 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 the landlord’s handling of: 
   1. The resident’s reports of repairs to his heating and hot water/boiler.
   2. The resident’s complaint.

Background

2. The resident is the secure tenant of a one bedroomed first floor flat.  On 25 August 2021 the landlord’s contractor attended the property to service the boiler. The contractor noted that the flue had “no fall according to manufacturer’s instructions”. It reported this back to the landlord and turned the appliance off as unsafe to use.
3. In early January 2022 work was undertaken to the flue but the set up was still not ideal and consideration was given to moving the boiler. This was determined to be problematic given its age and so the landlord decided to add its replacement to its planned works for the next year. The boiler, itself, was left with an “At Risk” (AR) sticker attached to it.
4. The  contractor confirmed to the resident that the boiler could be used in the meantime despite the AR classification. The resident was not confident/ or satisfied that this was the case and continued to press the landlord for more action to be taken. In late November/early December 2022 a new boiler was installed at the property. However, this left the kitchen in some disarray with redecoration required.
5. The resident was dissatisfied with the landlord’s handling of the situation and complained. The landlord offered compensation of £655 for the delay in getting the boiler working again between August 2021 and January 2022. However, it maintained that the resident had had heating and hot water thereafter and had been told the AR sticker did not prevent the use of the equipment. Accordingly, the landlord concluded there had been no further service failings. It did, however, offer compensation of £50 for a delay in providing its stage 2 complaint response and £50 towards the cost of decorating materials.
6. The resident was not satisfied with the landlord’s response to the complaint and referred the matter to this Service. In his view, the boiler continued to be unsafe following the repairs in January 2022 and he was left without heating and hot water for a much longer period. The resident also maintains that the landlord delayed in boxing in the flue following the repairs and left the kitchen in a mess. He does not consider the compensation offered adequately reflects the impact on him and wants this to be reviewed.    

Assessment and findings

Scope of Investigation

7. In his communications with this Service, the resident has referred to the fact that two windows in his property required repairs to the handles/locks and he wishes this issue to be considered. However, paragraph 42(a) of the Housing Ombudsman Scheme state that “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure….”
8. The window repair issue was not included in the resident’s complaint to the landlord. It has not had the opportunity to examine its handling of that repair and offer a resolution, if required. It is important that landlords are given the opportunity to put things right before they are potentially criticised for getting things ‘wrong’.
9. As this issue has not completed the landlord’s internal complaints procedure it will not be considered as part of this investigation.

The resident’s reports of repairs to his heating and hot water/boiler

10. There is no dispute that the landlord is responsible for the upkeep of the boiler in the property, thus supplying the resident with heating and hot water. Neither is there any disagreement over the fact this was not available between 25 August 2021 and 6 January 2022 at which point some works had been undertaken to the flue. It is the period following this where landlord and resident do not agree on the position.
11. As set out above, the landlord maintains the January 2022 works left the boiler in working condition and capable of delivering heating and hot water. If the resident chose not to use it, then that was his decision. The resident’s view is that the AR sticker left on the apparatus demonstrated that it was not safe and more was required from the landlord to put the situation right. He was therefore reluctant to use it.
12. The landlord’s records note that advice was given to the resident that he could use the system at some point between 6 January and 7 February 2022. However, he reported to the landlord on 14 March 2022 that he was still without heating and hot water as the sticker stated the equipment should not be used. The resident was advised it was safe again on 13 April 2022 and according to the landlord’s contractor, he was satisfied with the position. On 17 May 2022 the landlord noted it needed to contact the resident who was chasing it for an update and was again referring to the At Risk classification. He then repeated this contact on 1 June 2022. On 10 June 2022 the landlord sent an operative to the property to check the installation and once again the resident was advised it was safe to use.
13. This Service is not qualified to diagnose faults in boilers and heating systems or to determine what is required to resolve them. It is not, therefore, possible to assess whether the advice given by the landlord was correct or not. The resident was reluctant to put it to the test and he reasonably reported his concerns. Indeed, in one of its complaint responses the landlord acknowledged this by recognising that its advice that the boiler was safe to use was contradicted by the presence of the AR sticker which suggested the opposite was the case.
14. The presence of the AR sticker highlighted that further steps were needed to make the system function properly. Given the nature of the appliance, the landlord might reasonably have been expected to identify what was required and schedule the necessary works to take place sooner rather than later. This is especially so given that it was the middle of winter at the time. The landlord determined the boiler needed to be replaced but was content to leave that to an unspecified date in the future, possibly in a year or so. Eventually the boiler was replaced, the landlord noting that perhaps it needed doing before the next winter after all. However, by the time this was done (November/December 2022), it was 15 months since the boiler had originally been turned off as unsafe.
15. That lack of urgency on the landlord’s part was unreasonable and unfair to the resident, irrespective of whether its advice to use the equipment was right or not. Furthermore, it is apparent from the landlord’s records that the resident continued to chase for more action to be taken. It is reasonable to conclude that the landlord would not have scheduled the new installation had the resident not been persistent about it and had he not complained. There were significant failings by the landlord in the way it handled the situation overall.
16. For the sake of completeness, it is noted that following the flue works in January 2022, the kitchen was left in need of redecoration. The flue/pipework needed boxing in. The landlord’s records show it did not finalise the panelling until October 2022 and the resident replaced the boxing himself. The landlord’s Repairs and Maintenance Policy states that non-emergency repairs will be attended to within 28 calendar days of being reported. There was clearly a significant delay in finishing off the January 2022 works which was inappropriate.
17. In identifying whether there has been maladministration, the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events through the operation of its complaints procedure. The extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure. The Ombudsman will not make a finding of maladministration where the landlord has fully acknowledged any failings and taken reasonable steps to offer redress.
18. In this case, the landlord offered compensation following the initial 4 ½ month period during which the boiler was turned off. This represented an acknowledgement on its behalf that it was responsible for the state of the equipment and what was undoubtedly a delay in addressing the problem. It was important that it recognised that. However, it has not accepted any further service failings and it cannot be said to have offered reasonable redress under those circumstances. This is because any offer of compensation would not have taken account of the full situation.
19. The landlord’s Compensation Policy sets out its approach to offering financial redress for its service failings. That provides for compensation of £5 per day for a lack of hot water and £5 per day for a lack of heating. Both have a qualifying period of a week to allow the landlord the opportunity to effect a repair before it has to offer compensation for failing to do so.
20. However, in this situation, the lack of heating and hot water was not due to a breakdown – it was because the boiler had not been installed properly in the first place. In the Ombudsman’s view, the landlord might reasonably, therefore, have offered compensation from day one as this error should not have happened in the first place. This means the resident was left without facilities for 134 days between 25 August 2021 and 6 January 2022. Applying the landlord’s policy gives a calculation of £1,340 (£5 x 134 for no heating + £5 x £135 for no hot water). An order for further compensation has been made below.
21. Following this, from 6 January 2022 to late November/early December 2022 the resident had a boiler with an At Risk categorisation (suggesting he should not use it) – coupled with advice from the landlord that he should use it. The resident experienced further loss of amenities – which may or may not have been necessary. The landlord might reasonably have offered further compensation to reflect the impact on the resident of this uncertainty and the delay in providing a permanent solution. It might reasonably have taken account of the fact the resident was put to inconvenience in chasing the position and pressing the point. 
22. The landlord’s policy states that compensation in the region of £250 to £700 is appropriate in situations where residents are given contradictory information; where they have to repeatedly chase responses; and where there is a failure over a considerable period of time to address repairs. The delay in providing a boiler set up which did not require an at risk categorisation was analogous to a repair failure. The landlord might reasonably have offered further compensation in the mid to high end of this bracket and an order for £600 has been made below. This also takes account of the landlord’s failure to finish the January 2022 repairs with regard to boxing in pipework and resecuring panelling.
23. Finally, the landlord offered to pay £50 towards decoration costs. This was a fair and reasonable offer and will also be included in the order below.

The resident’s complaint

24. The landlord operates a Complaints Policy which sets out a two stage approach to investigating and reviewing complaints. The landlord aims to provide an initial response within ten working days. If the resident remains dissatisfied they can escalate the complaint to a review stage, giving reasons. The landlord then aims to carry out that review and provide a written response within 20 working days. In both instances the landlord can ask for extra time and provide an alternative timetable if necessary.
25. The landlord’s complaints responses detail two communications they took to be complaints, one dated 6 December 2021 and the other, 1 June 2022. Neither communication has been provided, although it is reasonable to conclude, from other documentation, that they related to the situation as outlined above (and that the windows issue was not raised as already determined). The first complaint is recorded as having been closed in January 2022 after a stage 1 response and upon the landlord’s offer to pay compensation of £655. That response has also not been provided.
26. The landlord took the second communication to be a fresh complaint, although it continued to be about the compensation offer and the fact the boiler “remained condemned” in the resident’s view. A stage 1 response was sent within the ten day time limit (on 10 June 2022) and the previous offer of compensation offered again – although the landlord recorded that it was aware that this sum had already been rejected. It is reasonable to conclude from this that the resident did have some subsequent contact with the landlord following the original complaint response.
27. Further, on 26 July 2022 this Service contacted the landlord. The resident had reported he had tried to escalate his complaint(s) “multiple times” without success. His communications are not reflected in the documents provided, but the landlord might reasonably have taken the contact of 1 June 2022 to be an escalation request in respect of its response of January 2022. This is because, whilst some time had elapsed since then, the issues remained the same and the outcome was being questioned by the resident. Further, the landlord’s policy does not set out a time frame for the resident to ask for escalation – only that they should give reasons for their request.
28. Given the stage this complaint had reached, this Service’s communication should have been treated as an escalation request. Indeed this was the landlord’s approach. However, it was 12 working days late giving its written response on 9 September 2022 and it did not address the ongoing issue of the boiler’s at risk classification. 
29. The landlord then provided a further Stage Two response dated 1 December 2022 responding to the original complaint of 6 December 2021 and reiterating what it had already said. Additionally, it confirmed a survey had taken place on 3 November 2022 for a boiler replacement which was to happen shortly.
30. It can be seen that there was confusion in the handling of this complaint. A final resolution to the At Risk categorisation was only confirmed in the final communication, one year after the original complaint was made. This was substantially outside the timetable envisaged by the landlord’s policy.
31. The landlord’s handling of the complaint fell below the standard the resident was reasonably entitled to expect. The landlord acknowledged this to some extent and offered compensation of £50 for a late stage two response. It also explained that it had been subject to a cyber security incident which had caused considerable disruption. However, this cannot account for the whole period between the initial complaint and the final response – an entire calendar year.
32. The offer of compensation is not considered to be adequate under these circumstances and the landlord has not offered reasonable redress. An order has been made below for further compensation. The resident was put to significant time and trouble in pursuing his complaint, including having to enlist the assistance of this Service to get the matter escalated.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of: –
    1. The resident’s reports of repairs to his heating and hot water/boiler
    2. The resident’s complaint.

Orders and recommendations

Orders

34. The landlord should pay the resident compensation of £2190 calculated as:
    1. £755 previously offered if this has not already been paid.
    2. A further £685 for loss of amenities – Heating and Hot Water.
    3. A further £600 for the distress and inconvenience incurred by the resident as a result of the landlord’s failings in its response to his reports of repairs.
    4. A further £150 for the time and trouble incurred by the resident as a result of the landlord’s complaint handling failures.
35. The landlord should confirm with this Service that it has complied with the Order within four weeks of receiving this determination.