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Mid Devon District Council (202228837)

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REPORT

COMPLAINT 202228837

Mid Devon District Council

1 February 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 repairs to the heating and hot water in the property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is a flexible tenant (fixed term tenancy). She moved into the property with her husband and their young children in March 2022 by way of a mutual exchange. There are several vulnerabilities in the family that the landlord was aware of. In particular they included a premature baby and an adult with a compromised immune system. The property was heated by an air source heating pump (ASHP). There was an immersion heater that provided hot water.
  2. The resident reported problems with the heating and hot water on 23 August 2022. The landlord identified the fault and replaced the immersion heater on 25 August 2022. There was a further loss of heating and hot water on 9 December 2022. The landlord attended the same day. The fault was with the ASHP and it was unable to resolve the problem. It left temporary heaters for the resident and ordered replacement parts. It completed the repair on 16 December 2022. The resident was without hot water for 7 days and relied on temporary heaters for the period.
  3. A warning code appeared on the ASHP on 17 January 2023. The next day there was a total loss of heating and hot water. The resident asked the landlord to compensate her for the additional electricity that was being used on temporary heaters. She supplied utility bills for December 2022 and January 2023. She felt they demonstrated an increase in costs over that period.
  4. The resident emailed the landlord on 21 January 2023. She said:
    1. There was no heating and hot water.
    2. The landlord’s contractor told her it did not record the repair as an emergency. This was because there was an open repair on its file. It said the repair would be done after 24 January 2023.
    3. The contractor that had attended to this repair previously, did not know what the error codes meant. She called the ASHP’s manufacturer, who told her what the error codes were. She relayed the information to the landlord with details of the repairs required.
    4. The system should be serviced annually and she was concerned the landlord had not completed necessary maintenance.
  5. The landlord’s contractor attended on 23 January 2023 and connected the heating to the immersion heater. The parties exchanged emails the same day. The resident reiterated her concerns about increased energy costs associated with the electric heaters. The landlord’s records show it was concerned that its contractor had been allocating the wrong engineer to complete the work.
  6. The landlord spoke to the resident on 24 January 2023. It noted she was unhappy with the time taken to repair the heating/hot water. It logged the call as a stage 1 complaint. The landlord recorded some key complaint details. It wrote:
    1. There was a failing in its handling of the works and that it should uphold her complaint.
    2. It had paid the resident £500 for the use of temporary heaters and the inconvenience caused. It considered this an interim payment. It considered compensation for the use of temporary heaters. It estimated there was a total cost of £24 per day.
    3. It would “revisit this next winter” to review whether there had been additional charges in the resident’s energy bills.
    4. It planned to review the number of missed appointments. It would consider whether additional compensation was required.
    5. The last service was completed in August 2022. No issues were found.
    6. There were some issues with the contractor being used to complete the repair.
    7. It highlighted the vulnerabilities in the household.
    8. There was a period of 7 days when the resident was without heating between 9 and 16 December 2022.
    9. The resident was without heating and hot water from 18 January 2023.
  7. The landlord repaired the ASHP on 25 January 2023. The parties exchanged emails the following day. The resident said the contractor completed a temporary repair but the fault codes had returned. She was concerned the heating would fail again. She asked for compensation. The landlord arranged for an engineer to inspect the ASHP. It said it would consider upgrading the system if the problem could not be resolved. It also said it would revisit the issue at the end of the year to understand if there had been a difference in energy use. Any compensation would be determined through its complaints process.
  8. The landlord inspected the ASHP on 30 January 2023. It found several faults with the system, which included:
    1. The pipework was undersized.
    2. The immersion had been wired incorrectly. It should raise the water temperature to 45°C before the ASHP raised from 45°C to 60°C. This was not happening. The contractor had rewired it so the reverse was true, which meant the system was constantly set to 60°C. It decided to retrofit a timer to make sure it only did this once per week for a hygiene cycle.
    3. The fault codes were still occurring. It believed there was an intermittent fault that required the resident to regularly reset the system.
    4. The ASHP was poorly designed and installed. It required replacement.
  9. The resident wrote to the landlord on the same day. She said:
    1. She was concerned that between moving into the property and the repairs done in January 2023, the hot water was not reaching temperatures above 50°C. She felt this meant bacteria could have survived in the tank for that period.
    2. She highlighted the vulnerabilities in her household and stressed the family were impacted by the repeat repairs. She said they were especially at risk from bacteria in the tank.
    3. The contractor had been sending out gas engineers who were unable to repair the ASHP.
    4. Only half of the radiators in the property were working. This meant that her living room, bedroom and hallway were all cold.
    5. She was still reliant on temporary heaters in the living room and bedroom.
    6. She was concerned that the landlord approved the mutual exchange without properly checking the ASHP.
    7. She was charged £900 for her electric between 13 December 2022 and 31 January 2023.
    8. The landlord’s offer of compensation did not cover the debt she had accrued with her energy supplier.
    9. The poor installation of the heat pump caused increased energy bills.
    10. She had been inconvenienced by repeatedly calling the landlord and its contractor. There had been missed appointments that meant her husband had lost work.
    11. She was told the heating system required replacement but no date was provided for the works.
  10. The landlord issued its stage 1 response on 6 February 2023. It said a provisional outcome was given to the resident on 31 January 2023. It considered the complaints to be about the poor service from its contractor, the ASHP required repairs and the financial impact on the resident. It separated its response into sections and said:
    1. It compensated the resident by giving her £500 for the use of temporary heaters and the inconvenience caused prior to the complaint response.
    2. It acknowledged there were periods where the resident had no heating or hot water. It had provided temporary heaters until the repair could be resolved.
    3. There had been a delay in attending the repair raised in January 2023. This meant that the resident had no heating or hot water between 21 and 25 January 2023.
    4. The resident’s energy bills were not unusual, given the time of year.
    5. It inspected the ASHP and found that the system was not running effectively. It gave advice on maintaining the heating until it could replace the whole system.
    6. It would contact the resident at the end of “winter 2023” to compare the energy used.
    7. It upheld the complaint and awarded an additional £350 in compensation comprising: £200 for expenses, £50 for inconvenience and £100 for its service failure. This brought the total compensation to £850.
    8. It apologised for the delay in completing the repairs. It set out the lessons learned, which included how it managed its contractors.
  11. The resident asked the landlord to escalate her complaint on the same day. She said:
    1. The response did not address her concerns about the faulty installation of the ASHP.
    2. She was concerned that the heating issues could have caused legionnaires disease. She highlighted that her husband had a compromised immune system and was particularly vulnerable to infection.
    3. The heating was only working in half of the property. She was not using all the temporary heaters as she feared an increase to her energy costs.
    4. There was conflicting information about the heating replacement date.
    5. She refused the offer of compensation. She disagreed with the amount offered by the landlord as she felt it did not account for the impact the delays had on her family.
  12. The landlord acknowledged the request to escalate the complaint on 7 February 2023. Between 7 and 16 February 2023, the resident called the landlord every 1-2 days for updates. The landlord logged the calls but was unable to give a start date for the heating works.
  13. It issued a stage 2 response on 17 February 2023. It said:
    1. There was a failure of the heating system and a period during which the resident relied on temporary portable heating. There was also a period during which the resident’s immersion was not wired as efficiently as it could be.
    2. Some of the repairs took longer than it would like to resolve.
    3. It had an obligation to ensure there was adequate heating and hot water. There was no statutory right to compensation for inefficiency or the additional cost of temporary heating.
    4. Its discretionary offer of compensation was reasonable and made in accordance with its policy. It offered to review the compensation after the heating was upgraded.
    5. It did not uphold the complaint.
  14. The resident asked the Ombudsman to review the case on 19 February 2023. She broadly restated the points raised above and the impact this had on her and her family.
  15. Between 20 February 2023 and 8 March 2023, the resident made at least 5 calls to the landlord. She was chasing it for a date the works to replace the ASHP would begin. The calls were logged, but there was no start date given
  16. The resident sent a further email to the Ombudsman on 12 March 2023. She said the issues were unresolved and she had accrued more than £1000 in debt with her energy supplier. The landlord had not given her a clear date that work would begin to replace the ASHP.
  17. The landlord visited the resident on 16 March 2023. It set out a plan with the resident to install the new heating system. The work included the resident taking up some laminate flooring and lifting some carpet. A start date was agreed for 28 March 2023. The works were complete by 31 March 2023.

Assessment and findings

Scope of the investigation

  1. Unlike a court, we cannot establish liability or award damages. As a result, the Ombudsman cannot determine whether the water temperature impacted the family’s health. However, we will consider the overall distress and inconvenience that the issues in this case have caused. A determination relating to damages is more appropriate for the courts and the resident may wish to pursue this in a legal setting.

Policies and procedures

  1. The landlord’s tenant handbook shows a total loss of heating between 31 October and 1 May will be treated as an emergency repair. The landlord should respond to emergency repairs within 4 hours. Where it cannot complete a repair it will carry out any follow-up work as urgent or routine repairs. Unless another form of heating is available, the landlord will provide temporary heaters.
  2. The landlord’s compensation policy shows it can pay daily compensation for the use of temporary heaters. It considers compensation for time and trouble dependent on the impact on the resident and level of responsibility of the landlord for the inconvenience caused. The payment can be between £0-£500.

The landlord’s handling of repairs to heating and hot water in the property

  1. Prior to April 2022, the landlord did not have a regular servicing program for the ASHP. It procured a contract for regular servicing and specialist maintenance from April 2022. The system has since been inspected annually. The landlord was under no legal obligation to maintain annual servicing. It would have been required to keep the ASHP in repair and proper working order. The landlord acted reasonably by identifying the lack of servicing and to procure a contract.
  2. The landlord’s records show the ASHP broke down in December 2021. The ASHP was repaired at the time. The landlord also conducted an electrical inspection of the property in February 2022 in preparation for the mutual exchange. The landlord serviced the ASHP on 3 August 2022. There were no faults recorded at the time of the service. The landlord responded to reports and acted on the information given to it by its contractors. There was no evidence to suggest it could have known about the fault before the resident’s reports on 9 December 2022.
  3. There were faults with the installation of both the immersion heater and ASHP. Once the faults were identified the landlord arranged to replace the ASHP. This was a reasonable decision given the circumstances. When the new system was installed, the resident reported a significant reduction in her energy costs.
  4. The landlord asked the resident to provide evidence of any change in energy costs to it at the end of 2023. This was to review the difference and make a finding regarding compensation. The landlord has made no additional offer after the complaints procedure was complete. The resident has shown the Ombudsman costs she incurred over the two winter periods. She was charged £677 for the heating costs in November and December 2022. The same period in 2023 totaled £356. This was a difference of £321 between the two periods. As the ASHP was not functioning correctly it is likely to have been a contributing factor to the increased charges for the period.
  5. There were delays repairing the heating and hot water in January 2023. The landlord’s contractor did respond to the repair as an emergency. The resident had to contact the landlord to ask for appointments to be brought forward. There was a delay of around 4 days to attend to an emergency repair, which was substantially outside the timescales set out in its policy. It acknowledged this delay in its stage 1 response and apologised for the inconvenience caused. Its offer of £100 for service failure and £50 for inconvenience was a reasonable means of redress for the delay.
  6. There were periods that the family went without any heating or hot water. She described times between repairs that some radiators in the property were not working. Her living room, bedroom and hallway were all cold. The resident described choosing not to run the temporary heaters fearing increased energy costs. The landlord’s provision of temporary heaters was made in line with its policy and a means to put things right for the resident. However, it did not consider the residents additional vulnerabilities and offer payments to assist with the costs incurred in line with its policy.
  7. The landlord’s compensation policy sets out that it will pay compensation for the daily use of each temporary heater provided. It is difficult to calculate the total period that temporary heaters were used with the evidence available. It is reasonable to consider that the resident was reliant on temporary heaters for around 14 days. It also shows that she used them when the ASHP did not heat the whole property between 25 January 2023 and 31 March 2023.
  8. The landlord’s offer of £500 for heating costs and £200 for out-of-pocket expenses, accounted for the period 8 December 2022 and 6 February 2023. There was no additional offer at stage 2 on 17 February 2023. The landlord did offer to review the compensation at the end of 2023. This was a reasonable decision for the potential costs related to the failing ASHP. However, it did not account for its policy to pay compensation for daily use of temporary heaters. There were around 53 days it did not consider. The total compensation was not reflective of the landlord’s policy and therefore not a reasonable offer of redress in this case. Although not intended as an exact calculation, the Ombudsman has considered the approximate number of days the resident was using temporary heaters. Given these considerations there should have been around £635 in additional compensation based on the landlord’s policy.
  9. Between 7 February 2023 and 8 March 2023, the resident made around 10 phone calls to the landlord. These were to request a date that it would replace the heating system. There was considerable time and trouble taken by the resident contacting the landlord. This could have been avoided if the landlord set reasonable expectations when the works were likely to commence. There was a failure to effectively communicate with the resident.
  10. The Ombudsman finds maladministration in the landlord’s handling of repairs to heating and hot water in the property. Its offer of compensation was not reflective of its policy. It did not address issues with communication, missed appointments or the time and trouble taken by the resident. The landlord should re-offer the £350 previously refused by the resident. It should pay an additional £300 for the time and trouble and £635 for the use of temporary heaters.

The Ombudsman has also considered the landlord’s complaint handling.

  1. In reaching a decision about the landlord’s complaint handling we consider whether the landlord followed procedure, good practice and acted in a reasonable way. Our duty is to determine complaints by what is, in the Ombudsman’s opinion, fair in all circumstances of the case.
  2. The evidence shows the landlord’s responses were issued in line with its policy timescales at both stages. It acknowledged the complaints and broadly addressed them. The landlord’s handling of the complaint at stage 1 demonstrated good resolution principles. It was fair, it put things right and showed how it could learn from outcomes. But it later failed to fulfil its offer to review the resident’s energy costs at stage 2.
  3. Its stage 2 response did not address all the concerns raised by the resident. She told the landlord several times that she was worried there was a risk of legionnaires disease in her home. She highlighted the vulnerabilities present in the household and this was clearly a source of concern for the resident. The landlord should have addressed these concerns in its response. By failing to acknowledge these concerns the landlord was not fair and caused the resident distress.
  4. The Ombudsman finds service failure in the landlord’s complaint handling. It should have provided some resolution to the concerns raised by the resident about the risks of legionnaires disease. The landlord should pay compensation of £100 for the distress caused to the resident.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of repairs to the heating and hot water in the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.

Orders

  1. Within 4 weeks of this report, the landlord is ordered to:
    1. Provide a written apology to the resident, and a copy to the Ombudsman.
    2. The landlord must review its position on the payments made for additional energy costs in 2022 and 2023 and update the resident and the Ombudsman.
    3. Pay compensation of £1385, which includes the £350 already offered. This sum includes:
      1. £300 for time and trouble in the handling of repairs.
      2. £635 for the use of temporary heaters.
      3. £100 for distress caused in its complaint handling.
    4. Provide evidence of compliance to the Ombudsman.