Notting Hill Genesis (202010053)

REPORT

COMPLAINT 202010053

Notting Hill Genesis

30 March 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

1. The complaint refers to:
   1. The landlord’s handling of a heating test carried out at the resident’s property and level of compensation offered in respect of this.
   2. The resident’s concerns related to his service charge.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The resident’s concerns related to his service charge. 

4. Paragraph 39(g) of the Scheme states:

“The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern the level of rent or service charge or the amount of the rent or service charge increase”.

5. In his communication with this Service, the resident has said that he should not be paying a service charge for the services he receives from the landlord, as the landlord does not have any control over the building his property is in. Complaints that relate to the level, reasonableness, or liability to pay rent or service charges are within the jurisdiction of the First-Tier Tribunal (Property Chamber) and the resident would be advised to seek independent legal advice  in relation to how to proceed with a case, should he wish to do so.

Background and summary of events

6. The resident is an assured tenant of the landlord. The property is within a block of flats for which the landlord is not the freeholder. The freeholder employs a managing agent which handles any repair issues at the property. The landlord is responsible for checking the repair issues are being handled by the managing agents within the timescales published in its policies and procedures.
7. The managing agent emailed the resident on 8 September 2020 and advised that as the weather had started to change it was important for it to check the heating systems in the building to ensure everything was running well. It confirmed that an engineer was on site on 9 and 10 September and asked which day would be convenient for the engineer to look over the system for the resident’s flat.
8. The resident responded on the same day and advised the 9 September 2020 would be the most convenient. He explained that his underfloor heating took some time to heat up and asked the landlord what time the engineer would be arriving so that he could turn the heating on an hour before.
9. The following morning, the managing agent confirmed that the engineer would visit the resident’s flat at around 10:30am to check everything was working correctly.
10. The resident emailed the managing agent at 11:42am on 9 September 2020 to advise that the heating engineer had not visited his property and that he would turn his heating off at 12pm as he did not need the heating on and could not afford it.
11. The managing agent responded at 12pm the same day and apologised for any delay in getting back to the resident. It confirmed that everything was working as normal at his property and that the engineer had checked his riser cupboard. It advised that it would continue to monitor the heating system throughout the winter season.
12. The resident responded soon after and advised that he was upset with the managing agent’s previous response. He was dissatisfied as he had not been told that his heating could be turned off sooner and had “made him look stupid”. He also raised concerns with the service provided by the managing agent. This information was passed to the landlord.
13. The landlord emailed the resident later that day and advised that it did not intend to go to ‘war’ with the resident. It explained that sometimes things go wrong, and this could not be avoided. It confirmed that the resident had been informed that his heating system was in working order after following up on the matter and whilst this may have been frustrating, the member of staff had apologised for the delay. It advised the resident to end any future issues or complaints directly to the landlord who would then follow-up with the managing agent on his behalf.
14. The resident then emailed the landlord again on 9 September 2020 in order to raise a formal complaint. He expressed dissatisfaction that the engineer had apparently confirmed that his heating system was in working order remotely without visiting his property and asked how this could be the case. He said that he had been asked to turn his heating on and if he had not contacted the managing agent it would have been on for much longer. He asked who would pay for his unnecessary heating bill. He also expressed concern that the managing agent was not trustworthy.
15. The landlord issued a stage one complaint response to the resident on 18 September 2020 regarding his complaint related to the heating test appointment and explained the following:
    1. It apologised for any miscommunication regarding the heating test and said that the landlord was taking a proactive approach to ensure that any issues with the heating systems were identified early as it was approaching the winter months and it was aware of the previous issues the resident had experienced with his heating during colder weather.
    2. It advised that the resident was made aware of the appointment at 10:30 which the engineer had attended. The engineer did not need access to the resident’s property although this may not have been clearly explained to the resident. The landlord confirmed that the engineer had looked at the resident’s riser cupboard, located outside the resident’s flat, to ensure everything was working as it should be.
    3. As a goodwill gesture, the landlord offered the resident a £10 voucher to cover the extra hour he had to leave his heating on. It advised that if the resident had further questions or would like his complaint reviewed, he could get in touch within the next 20 days.
16. It is noted that the resident wished to escalate his complaint and the landlord issued a stage two complaint response to the resident on 22 October 2020 and advised the following:
    1. It understood the resident’s complaint to be related to the issue that the engineer had not entered the property and the resident was unsure how they established that the heating was working; he believed the managing agent to be untrustworthy and felt it was ‘playing games’ with him; he did not fully understand why he had been asked to turn his heating on and who would cover the extended usage; he did not feel his complaint was resolved at stage one; and he felt that the £10 voucher was insufficient.
    2. The landlord summarised the events of 9 September 2020 and confirmed that it had discussed the matter with the managing agent the same day to confirm what had happened. It explained that engineers were on site twice a week and that the managing agent was not aware of which days they would attend until the Monday of that week. It also confirmed that the heating test was completed to ensure everything was working as it should be in view of the approaching winter season, and the issues the resident had experienced the previous year.
    3. It confirmed that as the riser cupboard was outside the resident’s property, once the engineer was assured the heating had been turned on, they were able to check if the flow pipes were heating up and flowing correctly without needing to enter the property. It noted that this test was completed at 10:30am as advised.
    4. It confirmed that the managing agent had acknowledged that it should have advised the resident to switch his heating off, but there had been a delay due to another engineer on site. It then swiftly confirmed that the test had been completed following the resident’s email querying this.
    5. The landlord did not uphold these aspects of the resident’s complaint as the engineer was not required to enter the resident’s property, and they did not test the heating remotely but from a cupboard situated outside the flat. It advised that there was no evidence of any motive for distrust from the managing agent, rather it had acted proactively. It acknowledged that the communication could have been better in terms of telling the resident to turn his heating off, but it did not consider this to be untrustworthy. It also advised that the heating would need to be on for the test to be completed and apologised that his heating was on for 90 minutes longer than it needed to be. There was also no evidence of the manging agent ‘playing games’.
    6. It confirmed that it had previously acknowledged and apologised for this miscommunication and offered the resident a £10 gift voucher as a gesture of goodwill based on his heating being on longer than necessary. It advised that based on the average hourly rates for heating, this cost could be anywhere from 0.18p to £2 per hour. With this in mind, it did not feel that the gift voucher for £10 was unreasonable. It confirmed that this aspect of the resident’s complaint was not upheld.
    7. The landlord noted that the resident’s remarks about a member of its staff was unacceptable and asked the resident to refrain from using derogatory language when communicating with its staff. It asked the resident to confirm if he would like to accept the £10 gift voucher.

Assessment and findings

17. The Tenancy Agreement confirms that the landlord (through the managing agent) would be obliged to keep installations for space and water heating at the property in good repair and proper working order. The landlord has confirmed that a managing agent takes ownership over any repairs at the property.
18. The landlord’s actions in respect of the managing agent are limited as the managing agent is separate from the landlord. In this instance, it was appropriate for the landlord to investigate the resident’s concerns and seek to establish what had happened to resolve the matter.
19. The resident remains dissatisfied with the managing agent’s handling of a heating test at his property. As there had been previous issues with the resident’s heating and hot water in the winter months, it was reasonable for the managing agent to carry out a heating check to ensure that the resident’s heating system was in working order. The resident has questioned why, if the engineer did not need to enter his property, he was asked his availability to be at home. The landlord has advised that in order to check if the heating was working from the external riser cupboard, the heating would need to be turned on. It was therefore reasonable that an appointment was arranged so that the resident could be at home to turn his heating on and turn it off again after the appointment if he wished to.
20. The resident has expressed concern that previously, when he had issues with his heating, the engineer had needed to enter his property to fix his heaters. He advised that he did not understand why the process was different in this case. Whilst this Service cannot make findings on the resident’s previous repair issues, the evidence shows that this was a heating test and not a repair; therefore, the engineer may not have needed to enter the property to carry out the test as the heating was functioning and the resident had not reported any repair issues at the time. It was reasonable for the engineer not to enter the resident’s property if the test could be completed from an external cupboard, although it would have been helpful for the resident to be informed of this prior to the test being carried out.
21. The resident had expressed dissatisfaction because he had not been advised that he could turn his heating off as soon as the test had been completed. The landlord has investigated this matter with the managing agent and acknowledged that the communication at the time could have been more efficient and the delay in advising the resident to turn his heating off led to the heating remaining on for 90 minutes longer than needed. It has provided a satisfactory explanation for the delay and advised that another engineer was on site and needed to speak to the managing agent, meaning that an email could not be sent straight away, and the resident was not informed.
22. The landlord has made a reasonable offer of redress to the resident in respect of the handling of the heating test at the resident’s property. In view of the miscommunication and the additional 90 minutes where the heating had been left on unnecessarily, the landlord offered the resident a £10 gift voucher as a gesture of goodwill. The resident has advised that the £10 voucher was insufficient and did not take into account his time. The landlord has advised that it feels this amount to be proportionate as the additional heating cost to the resident during the 90-minute period would be in the range of 0.27p to £3. The landlord’s compensation policy recognises that remedies of this form and amount are suitable where the landlord had failed to provide a good service and has taken longer than expected to respond to a resident.
23. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord (an acknowledgment of its error, an apology, and a goodwill gesture) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
24. The landlord acted fairly in acknowledging its mistake and apologising to the resident. It put things right by investigating the issue and offering a £10 gift voucher as a gesture of goodwill. The landlord would not be expected to offer further compensation to the resident for the time he had spent at the property whilst the test took place as in line with the tenancy agreement, residents are expected to provide reasonable access to their property for the landlord to carry out necessary repairs and checks. Whilst there was a 90-minute delay in the landlord confirming the appointment was completed, the resident did not have to spend significantly longer in the property after the test and the overall compensation of £10 is reasonable, taking into account this delay. The landlord would not be expected to provide additional compensation for this delay.
25. The compensation award was in line with the Ombudsman’s own remedies guidance. The landlord offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident in relation to any failings in communication. For the reasons set out above, the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily. The measures taken by the landlord to redress what went wrong were proportionate to the impact that its failures had on the resident.

Determination (decision)

26. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in respect of its handling of a heating test carried out at the resident’s property and level of compensation offered prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

27. There is no evidence to suggest that the resident has been significantly disadvantaged by the managing agent’s lack of communication. The landlord has satisfactorily investigated the matter with the managing agent and has acknowledged that its communication could have been better and the delay in communicating had caused the resident’s heating to be turned on for 90 minutes longer than needed. The landlord has offered a £10 gift voucher as a gesture of goodwill which is proportionate to the level of inconvenience experienced by the resident.

Recommendations

28. It is recommended that the landlord provides the resident with the £10 gift voucher as previously offered, as the finding of redress was based on this offer.