Notting Hill Genesis (201913034)

REPORT

COMPLAINT 201913034

Notting Hill Genesis

30 June 2021

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 handling of the resident’s reports of problems with his boiler.
The complaint is about the landlord’s complaint-handling.

Background and summary of events

The resident has had an assured tenancy with the landlord since 28 February 2005. The property is a one-bedroom flat on the first floor. The resident lives with his three-year-old daughter. The landlord does not have any recorded vulnerabilities for the resident. At the time of the complaint, the resident had a boiler in place that was installed in 2005.
On 13 December 2019 the landlord’s engineer attended the property to check on his boiler, following reports from the resident that the system had been cutting out when the hot water was in use. The engineer advised that he would order parts and put the boiler through for a survey. The resident questioned how the engineer had identified the problem without removing the case of the boiler and checking inside, to which the engineer replied that they did not need to do this.
On 19 December 2019 another engineer attended the property. While the resident was running the hot water, the engineer opened the boiler and stated that it needed to be condemned due to flames and the presence of broken glass. The resident reported that a supervisor attending the appointment with the engineer communicated to the resident that they would put in a request for the boiler to be surveyed, however the evidence indicates that this was not actioned.
The resident has provided photos that purport to be of the contractor’s notes from 19 December 2019, which include a summary of the work done and a section entitled “Engineer notes”. The latter sets out the following: “Boiler is ID capped off, glass in main heat exchanger broke and fire was coming out of it causing some part to fail. I recommend a new boiler due to having more than 1 problem in the boiler.”
On the same day, 19 December 2019, the resident raised a formal complaint against the landlord regarding the initial contractor’s attendance on 13 December 2019 and its decision not to remove the boiler cover and conduct a thorough investigation. He stated that this had put him and his child at risk. He noted that he was seeking for the boiler to be replaced, for the landlord to provide him with records of all repairs carried out to his boiler over the previous five years and for a remedy to be put in place for his heating until the system was completely replaced. He also noted he was seeking compensation for the risk that had been caused to his and his daughter’s life.
The landlord acknowledged the complaint on the same day and apologised for the distress and inconvenience caused. On the same day, the resident replied to the landlord noting that it would be contacting ‘Gas Safe” due to the “dangerous condition” he considered the boiler to have been left in. He stated that there had been constant issues with the boiler over the previous five years requiring the replacement of a number of parts. He noted having spoken to the contractors that day who had advised an engineer would be attending the following day to replace a part in the boiler. He requested that the engineer attend with a senior supervisor so that it could be confirmed there were no outstanding safety issues.
On 20 December 2019 the engineer attended the property again with the contract manager to fit new parts and bring the boiler back into service.
On 7 January 2020 the resident emailed the landlord requesting an update on the complaint which he noted to be overdue, as he had been due a response within 5 working days.
On 9 January 2020 the contractor wrote to the resident expressing regret for letting him down. It noted that the resident was unhappy that the first engineer had made a diagnosis without removing the boiler cover. Having investigated the issue, the engineer had reported that they had made the initial diagnosis of the overheat stat tripping due to the fault code displayed on the boiler and ordered parts as a result. However it noted that the original fault was mis-diagnosed: had the boiler cover been removed, the seal would have been ordered in the first instance. It noted that because the boiler’s safety device was activating to prevent the boiler from running, there was no danger at any point to the household. It offered £50 compensation to the resident for his inconvenience.
On 13 January 2020 the resident responded to the contractor’s complaint response, noting that there had been no mention of the planned survey. He stated that the response had not addressed some of the outcomes he was seeking, and that the compensation of £50 offered was insufficient. He noted he had previously been advised that a survey would be undertaken to have the boiler replaced, but he had spoken to another member of staff more recently who advised him that there were no notes on its files regarding the boiler’s need to be replaced. He also noted the complaint response had stated the boiler was safe, which contradicted the contractor’s earlier statement. He requested that the boiler be surveyed and replaced.
On 14 January 2020 the Housing Ombudsman contacted the landlord to request it provide a response to the resident’s complaint within fifteen working days.
On 15 January 2020 the landlord wrote to the resident to note it had requested an update from its contractors in response to the points he had raised. On the same day, the resident responded to the landlord asking whether it would advise him on the replacement of the boiler, given he understood the contractors would need to be instructed by the landlord regarding the survey.
On 22 January 2020 the resident wrote to the landlord seeking a response to the complaint from both the latter and its contractors. It also noted that the landlord had not responded to his request for the boiler to be surveyed. He also requested information regarding the landlord’s complaints policy and response times.
On the same day, 22 January 2020, the landlord wrote to the resident stating that the contractors were responsible for carrying out repairs to the heating, hot water and the installation of new boilers. The landlord’s staff relied on the expertise of the contractor’s recommendations, and as the latter had not indicated in their report that the boiler needed to be replaced with a new one it could not request that this change be undertaken. It noted the contractors would shortly be providing him with a complaint response.
On the same day, 22 January 2020, the resident responded to the landlord asking whether the landlord would initially arrange for the survey as a result of his concerns. He noted having been advised previously by multiple engineers from the landlord’s contractors that the boiler was in a poor condition and needed replacing prior to the incident occurring in which flames were coming from the heat exchanger. He also requested the landlord explain its complaint process to him noting he had logged a formal complaint specifically with it, which was separate to his communications with the contractor.
In a separate letter of the same day, the contractor wrote to the resident stating that it had received the “Gas Safe Register’s” formal report. This indicated that the boiler was not left in an unsafe standard. It did however note that there were four “not to current standards” defects, relating back to the period when the previous contractor was responsible for the landlord’s contract. It noted it would arrange for the necessary repairs to be carried out once it had received authorisation from the landlord.
On 28 January 2020 the resident wrote to the requesting a specific complaint response from the landlord that was outstanding, as opposed to the contractor’s response. He emphasised his position that, as his housing provider, the landlord was responsible for the upkeep of his boiler.
On 4 February 2020 the landlord wrote to the resident assuring him that it was taking the substantive matter and complaint seriously. It noted having contacted its heating and hot water department which manages the contractors to further investigate the complaint, while also requesting that this team review the resident’s request for the boiler to be replaced. It again stated its position however that given the contractors had not indicated that the boiler needed to be replaced, it could not request that this be done.
On the same day, the resident wrote to the landlord noting that regardless of the contractors’ report, the resident had reported flames coming from the heat exchanger which he considered to mean that the landlord should investigate the boiler’s condition and request a survey.
On 12 February 2020, the resident wrote to the landlord to request that the complaint be escalated, due to the lack of response from the landlord and contractors. He noted that aside from the delayed response, he was also dissatisfied with the landlord’s position that it was unable to request a survey of his boiler. He stated that he continued to be concerned for the safety of his daughter, and that the landlord had failed to provide a formal response to the complaint.
On 18 February 2020 the landlord wrote to the resident noting that the complaint had been passed to its heating and hot water department which would respond to him within ten working days i.e. by 3 March 2020.
On 27 February 2020 the contractor wrote to the resident setting out close to the same contents of their 9 January 2020 letter, with an additional emphasis on the fact that the safety systems enclosed within the boiler would have prevented any dangerous incident from occurring.
On 10 March 2020 the Housing Ombudsman wrote to the landlord requesting that it acknowledge the complaint and provide its stage two response to the resident within 20 working days i.e. by 7 April 2020.
On the same day, 10 March 2020, the resident communicated to the housing Ombudsman that:
1. The boiler had been repaired since flames had come from the heat exchanger and a part had been replaced in order to reinstate it on 20 December 2019.
2. Nevertheless, the resident felt that the boiler required replacing however the landlord was refusing to book a survey for it to be inspected. The resident noted that the attending engineer had put in a recommendation to have the boiler replaced, which the landlord denied.
3. The landlord continued to refer the complaint to the contractors, but he had addressed his complaints to the landlord and expected a full response from it.
As of 5 May 2020 the resident communicated to the Ombudsman that he had not yet received a response from the landlord. He was advised that the Ombudsman would contact the landlord again with a request for a response within ten working days, which would give them a deadline of 19 May 2020 to respond to the complaint.
On 6 May 2020 the landlord contacted the Ombudsman and noted the following:
1. It was sorry the resident had had to approach the Ombudsman again in order to seek a response. It noted that the complaint had been logged as a ‘Quick Fix’ complaint and assigned to its heating contractors to resolve, which is the stage before a stage 1 complaint where the landlord feels there is an opportunity to resolve a case quickly.
2. As the resident remained unhappy with the response, it was escalated to a team to be responded to within ten working days. However this was not done, and it apologised for this. Following the Ombudsman’s communication the landlord had escalated the case to management level and requested that the resident be contacted as a matter of urgency. It noted that it would address the delays in its response and offer compensation accordingly.
On 18 May 2020 the landlord provided its stage one complaint response in which it set out the following:
1. The boiler had failed and cut out due to the activation of the safety device. This ensured the resident was safe and not at risk.
2. A control sensor and high limit stat were fitted on a subsequent visit. The engineer had removed the boiler cover to fit the parts and established that a seal had failed on the combustion chamber, which was why the safety circuit was cutting the boiler off.
3. An engineer attended and fitted a gasket burner, inspection window and electrodes. The boiler was then tested and found to be working fine.
4. A formal report from the Gas Safe team indicated that the boiler was not left in an unsafe situation, and the contractor had offered £50 to the resident as compensation in line with its policy.
On 29 May 2020 the resident requested that his complaint be escalated. He set out the following:
1. Part of the complaint was regarding the boiler being left in an unsafe condition, but this had been resolved and his main concern was in relation to the replacement of the boiler.
2. He did not consider that the boiler cut out due to a safety device being attached. When the first engineer attended they made a snap judgement on what the issue was, and the second engineer stated that the parts the previous engineer ordered were incorrect and he condemned the boiler. He stated that as a result, he was using the boiler in an unsafe state between the first and second visit.
3. He considered the compensation was rightly offered to him for the misdiagnosis of the issue, however his acceptance of the compensation did not translate to him being satisfied with the response.
4. It noted that “Gas safe” had been unable to establish in their report whether the boiler was left in an unsafe manner, given the fact that by the time they made their assessment the boiler had already been repaired. The second engineer’s report had demonstrated that the boiler was unsafe, as it was condemned, and he was told not to use it until new parts were fitted. He also noted that there were four “not to current standard” defects.
The landlord’s internal communications on 9 July 2020 noted that there had been a failure by itself in failing to arrange for a survey to be carried out.
On 13 July 2020 the resident sought an update on the escalated complaint, to which the landlord replied on 14 July 2020 stating that the response would be sent that week. The resident chased this up again on 22 July 2020 noting he had still not received the complaint response.
On 22 July 2020 the landlord provided its stage two complaint response to the resident, with the document being dated 21 July 2020. It apologised for its handling of the substantive matter and the complaint, and set out the following in response to each of the outstanding issues:
1. Contractor’s attendance: Its contractor who attended on 13 December 2019 had diagnosed a faulty overheat thermostat on the basis of the fault code that was displayed. It apologised for the misdiagnosis of the original fault noting that had the boiler cover been removed, the seal would have been ordered in the first instance rather than at the second engineer’s attendance. It noted that the contractors had provided compensation of £50 to which it added an offer of an additional £50 to acknowledge the distress and inconvenience caused to the resident and his family.
2. Current standard of the boiler: Regarding the “not to standard” defects as per the contractor’s response of 27 January 2020, the defects listed by the Gas Safe Register did not affect the safe operation or efficiency of the appliance. The classification reflected that industry standards changed over time, meaning many existing installations did not meet current standards, though this did not necessarily deem an installation as unsafe to use. Gas operatives are required to make an assessment of the risks posed taking into account all information available regarding the impact of the boiler’s condition against the standards of the time it was installed and current ones, and it confirmed that the contractors had completed the works required to bring it up to standard.
3. Request for a replacement: It noted that, before a boiler can be replaced, its contractor would need to attend to try to repair the boiler in the first instance. If the contractor reported a boiler to be unrepairable, it would be at this stage that the landlord would look to request a new one. A request would be assessed by its management team. It noted that it appreciated the frustration of having to allow engineers to attend to the boiler for it to be repaired. It requested that the resident contact it should he have any problems with the boiler in future, at which point the contractor would attend with the aim of repairing the boiler with a referral made for a replacement if repairs were not possible. Contractors would request approval from the landlord prior to the replacement of the boiler going ahead.
4. Complaint-handling: The complaint was received on 19 December 2019 and the contractors were given the opportunity to respond as part of the landlord’s “Quick Fix Stage” of the complaints procedure. These responses were provided on 9 January 2020 and 27 February 2020. Following the resident’s expression of dissatisfaction at the responses, a stage one response was provided on 18 May 2020. Following the escalation request of 19 May 2020, the stage two response (being this document) was provided on 2 July 2020. It acknowledged the stage one complaint was not provided until five months after the complaint was first logged, and the stage two response was approximately two months after the escalation request. It considered this to be unacceptable service and offered the resident £150 total for his distress and inconvenience.
In total, the resident was offered £200 compensation which consisted of:
1. £50 for his distress and inconvenience
2. £100 for the delay in responding to the complaint at stage one
3. £50 for the delay in responding to the complaint at stage two.
The landlord concluded that there had been service failures. It noted that whilst the boiler was not deemed unsafe, the contractors could have made the resident aware of this sooner to avoid unnecessary distress. It noted that in response to the issues that had arisen, it had changed its complaints database and hired a new member of staff to deal with complaints. It had introduced a new complaints procedure and provided further training to contractors and staff, as well as specific feedback to its contractors.
The landlord’s action plan document created following a meeting on 7 April 2021 noted that:
1. There had been no outstanding reported problems with the boiler following the initial fix. It considered the original approach of not taking the cover off and working with the machine code was fair, given the machine had diagnosed a fault.
2. Considered that the resident appeared to have been without heating for approximately six days, and it wouldn’t compensate for the first 48 hours without, it considered the offer of £50 to be fair.
On 15 April 2021 the landlord’s surveyor provided a report to the landlord stating that the issues with the “not to current standards” at the time of the gas safety report were not enough of a reason to replace the boiler.

Policies and Procedures

The landlord’s repair policy sets out that it is responsible for repairs to the gas installations such as the boiler.
The resident’s tenancy agreement sets out that the landlord is responsible for keeping in good repair and proper working order any installations provided by the trust for space and water heating. It also states that the resident has the right to have certain repairs carried out by the landlord which, if not carried out within a specified period, are likely to jeopardise the health, safety or security of the resident.
The landlord’s complaints policy sets out:
1. A complaint can be considered at the ‘quick fix’ stage, with a response to be provided or action taken within two working days of the complaint being made such as booking a new appointment, providing a response to an enquiry or responding to negative feedback. If the issue cannot be resolved, it should be logged as a complaint.
2. The resident should be contacted within two working days, and a formal response provided within ten days of receipt of the complaint.
3. The resident can request a review of the complaint within 20 working days from the date of the stage one response or from the date that follow-up actions were to be completed. This request should be acknowledged within two working days and the formal response provided to the resident within 20 working days.
The landlord’s compensation policy sets out that the landlord will calculate compensation for the loss of heating (after the first 48 hours during October to March only) and loss of hot water (after the first 48 hours) on the basis of 10% of a resident’s weekly rent. Compensation will be paid if a qualifying repair is not carried out within the relevant target completion time, with a maximum of £50 being payable. This sets out that the landlord has a response time of 1 working day in the case of total or partial loss of space or water heating between 31 October and 1 May.

Assessment and findings

The landlord’s response to the repair issues with the resident’s boiler

The evidence demonstrates that the resident was given information by the landlord on 13 December 2019 which conflicted with the latter diagnosis made on 19 December 2019. The landlord has acknowledged that its contractor made a mistake in its initial 13 December 2019 diagnosis of the problem with the boiler. It has justified the actions of its contractor as relying on the fault code displayed on the boiler which indicated the apparent fault which appears to have been incorrect. This would usually be a reasonable piece of evidence for contractors to rely on in assessing a reported problem with the boiler.
Nevertheless, it has acknowledged that the fault was misdiagnosed which was not established until 19 December 2020. It acted promptly to resolve the problem after this, with contractors attending on 20 December 2020 to resolve the issue and finalise the repair. It was appropriate that both the landlord and the landlord’s contractor offered compensation to the resident for the distress and inconvenience of the initial misdiagnosis and the delay of approximately a week total in which the resident’s heating was affected. The amount of £50 offered was in line with the maximum amount payable for such an instance under the landlord’s compensation policy and was in addition to the £50 offered by the contractor which was accepted by the resident.
The evidence provided to the Ombudsman demonstrates that the boiler was not left in an unsafe condition at any point during the process. While the resident has stated on multiple occasions that he wished for the landlord to replace his boiler, the evidence and the landlord’s policies do not support the position that the landlord is obligated to do this. Considering the period of approximately a week between the two initial December appointments, the landlord has taken the position that there was no risk to the resident’s safety given the activation of the safety device, which was part of the cause of the boiler’s repair issue in the first place. While the resident disagrees with the position that there was no safety risk, based on his accounts of conversations with the attending contractor and observation of the boiler without the cover, the ‘gas safety’ report and the landlord’s complaint responses maintain that there was no risk to the resident based on its reasonable investigations.
The “not to standard” defects referenced in the gas safety report have been adequately explained by the landlord to indicate the developing standards of the industry over time and its contractors’ examinations of the boiler confirmed that there was no evidence that these affected the safety or efficiency of the boiler. When the survey was eventually caried out, it supported the finding that the condition of the boiler did not justify its replacement.
The landlord has acknowledged a service failure in its internal review of 8 July 2020 that it should have carried out the survey as requested by the resident. While the evidence does not demonstrate that it was obliged to do this given it reasonably relied on the position laid out in the reports of its contractors and the gas safety report, it would have been prudent for the landlord to carry out the survey, given the resident’s multiple requests and the fact that this would have addressed a key issue much earlier in the process. There is some disputed evidence as to whether the landlord’s contractors committed to carrying out the survey in the first instance, given there was no formal log of this in the notes of the appointment. Nevertheless, it was not obligated to do so under its policy considering the reasonable steps it took to address the repair issue and ensure the resident’s safety along with the evidence in relied upon to justify this course of action. Additionally, the compensation of £100 total offered to the resident by the landlord and contractor acts as reasonable redress for the inconvenience suffered by the resident through the process.

Complaints-handling

The landlord failed to adhere to its complaints policy timeframes for responding to the resident’s complaint and escalation request. The initial complaint was raised on 19 December 2019, with a stage one response being provided on 18 May 2020. An escalation request was then made on 19 May 2020 and responded to on 2 July 2020. The landlord considered the contractors to be dealing with the complaint initially which goes someway to explaining the initial delay and on this basis it directed the resident to its contractor’s responses in the initial stages of the complaint. However, the resident rightly pointed out on multiple occasions that he had made a formal complaint specifically to the landlord and made it clear that he was expecting a separate formal response from it as it was acting as his housing provider. Therefore, these delays were largely unjustified given the resident set out his request for a complaint response from the landlord on multiple occasions.
It was appropriate that the landlord recognised the delays that occurred during the complaint process as these caused distress and inconvenience to the resident who was required to chase the landlord for updates and contact the Ombudsman for assistance. Given the recognised distress, the offer of compensation was an appropriate step for the landlord to take in recognition of its failings and their impact on the resident. The total offer of £150 was appropriate considering the circumstances of the case.
In addition, the landlord has undertaken steps to ensure the mistakes of this case are not repeated. These steps included:
1. Changing its complaints database and hiring a new member of staff to deal with complaints.
2. Providing further training to its staff and contractors.
3. Providing specific feedback to its contractors.
These actions demonstrate a willingness by the landlord to learn from its mistakes and improve on its future service delivery to residents.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord regarding its handling of repairs to the resident’s boiler.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord regarding its complaint-handling.

Reasons

There was a service failure by the landlord in its initial response to the repair issue with the boiler. Once this was recognised, it was addressed promptly and the evidence supports the position that the resident’s safety was ensured by the actions of the landlord’s contractors. Though the resident has requested a survey be carried out and his boiler replaced, the landlord was not obligated to undertake these steps. Nevertheless, in light of all the circumstances which include the landlord’s failure to properly address this request, the landlord’s offer of compensation to the resident was appropriate.
The landlord recognised the delays and other failings in its complaint handling process, acknowledging and apologising to the resident for these. It offered appropriate compensation to the resident in recognition of the impact this had on him, and undertook policy changes to ensure similar incidents did not occur in future.

Recommendations

I make the following recommendations:
1. The landlord, within the next four weeks, to pay to the residents its offer of £50 for the failings in its handling of the repair to his boiler. This is in addition to the £50 offered to the resident by the landlord’s contractor previously which has already been accepted.
2. The landlord, within the next four weeks, to pay to the resident its offer of £150 for the failings in its complaints process.