Optivo (now Southern Housing) (202208944)

REPORT

COMPLAINT 202208944

Optivo (now Southern Housing)

29 July 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 concerns is about the landlord’s:
   1. response to the resident’s reports about the condition of the radiators in the property;
   2. complaints handling.

Background

2. The resident is an assured tenant at the property of the landlord. The landlord is a housing association. The property is a house.
3. From July 2022 to September 2022, the resident and landlord corresponded about the condition of the radiators in the property. The resident stated that the radiators were rusted and were a health hazard. He requested that the landlord either repair or replace them. The landlord declined the request on the grounds that the damage to the radiators was cosmetic only, and that they continued to be functional.
4. The resident made a formal complaint, which the landlord’s records note was logged on 12 September 2022. The landlord sent a stage one complaint response on 4 October 2022. A complaint review panel was held on 2 November 2022, and a stage two complaint response was then sent on 11 November 2022. Its responses included the following:
   1. It confirmed that its heating contractor had inspected the radiators in the property and had found them to be “working and not leaking.”
   2. It explained that radiators are usually replaced every 30-40 years and that the resident’s property was built in 2012. It noted that the appearance of the radiators were not reflective of their age. It then informed the resident that it had received no reports of similar issues from the other properties built at the same time as the resident’s property and that “early deterioration of the paint on the radiator may result from wear and tear beyond that reasonably expected.”
   3. It further explained that in line with the tenancy agreement, it was the resident’s responsibility to decorate the property, which included radiators, and that it was satisfied that the peeling paint and rust reported on the radiators was a cosmetic matter.
   4. It informed the resident that the complaint review panel had upheld its decision not to repair or replace the radiators and that it was the resident’s responsibility to repaint them.
   5. It offered the resident £50 as a goodwill gesture towards the painting of the radiators and provided information on how to complete the work.
5. The landlord wrote to the resident 12 June 2023. It noted that on reviewing the evidence of the case prior to providing it to this service, it determined that there had been a delay in the resident raising a formal complaint and it logging the complaint. It acknowledged that it should have addressed this delay within its complaint responses. The landlord apologised to the resident and offered £100 in compensation.

Assessment and findings

Relevant policies and procedures

6. The tenancy agreement states that the landlord is responsible for keeping the “structure and outside of the home in a reasonable state of repair and proper working order.” It also states that the tenant agrees to “keep the interior of the home in good and clean condition and to decorate all internal parts of the home as often as is necessary to keep it in good decorative order.”
7. The landlord’s complaint policy states that when it first receives a complaint, it will look to reach a resolution outside of its complaints process. If that’s not possible, a formal complaint will be opened and it will respond to the resident at stage one within 10 working days, and within 20 working days at stage two.
8. The landlord’s compensation policy states that it will consider offering discretionary compensation to “recognise distress or inconvenience caused e.g. it may have taken repeated attempts to resolve an issue.” The policy recommends a payment from £50 in these circumstances.

Scope of investigation

9. When the resident wrote to the landlord on 29 July 2022 to request it open a formal complaint into the matter, he described the effect on the health of a member of his family caused by the condition of the radiators. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. While the Ombudsman cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

Condition of the radiators

10. When it received the reports from the resident about the condition of the radiators, the landlord had a duty to respond to the matter in line with the obligations set out in the tenancy agreement and its published policies and procedures.
11. The landlord subsequently carried out an inspection of the property. Its heating contractor found that the heating system and radiators working correctly and that the damage to the radiators was cosmetic. It is reasonable for the landlord to rely on the advice of its appropriately qualified staff and contractors when determining whether repairs are required. In this case, as the radiators were functioning correctly and not leaking, it was reasonable for it to conclude that the paint flaking off them was a cosmetic issue. The contractor did inform the landlord that the bathroom radiator had spots of rust. However, as the contractor had found the radiators not to be leaking, it was reasonable for the landlord to conclude that this was a result of general wear and tear and not from an outstanding repair.
12. There is no evidence of service failure in how the landlord responded the resident’s concerns. It has acted on the reports from the resident appropriately by working with its heating contractor to ensure that there were no outstanding repairs required to the heating system or the radiators. In then explained in reasonable detail why the issue with the radiators was not a responsive repair and not its responsibility to resolve. It was also reasonable to explain that it was the resident’s responsibility to ensure that the radiators were in good decorative order.
13. While the landlord was not obligated to complete the redecoration works, it used its discretion to offer £50 as goodwill gesture towards the costs of repainting and provided information on how best to undertake the work. This demonstrate a willingness from the landlord to amicably resolve the issue and maintain the landlord/tenant relationship.
14. While the resident may disagree with the heating contractor’s findings, in the absence of any contrary evidence, the landlord’s position was reasonable. That is not to say that there is no substance in the resident’s opinion, only that it has not been possible to substantiate his opinion with the evidence available.

Complaints handling

15. The resident called the landlord on 24 June 2022, to discuss the issue of the condition of the radiators. The landlord corresponded with the resident throughout July 2022, and looked to reach a resolution without opening a complaint. On 29 July 2022, the resident requested to open a formal complaint into the issue. However, the landlord still dealt with the issue informally. It did not open a formal complaint until 12 September 2022. It then sent a stage one complaint response on 4 October 2022, 37 working days outside of its published target of 10 working days.
16. While the landlord identified this issue in its review of the case in June 2023, this was only after the complaint had been referred to this service. While the Ombudsman encourages a landlord to review any identified failings, in this case, it appears it only did so once this service had intervened. This offer therefore has not been considered as part of this investigation.
17. Given the delays to opening a formal complaint, and the delays to the formal response, there was maladministration in this case. An order for £200 in compensation has been made to reflect the distress and inconvenience this caused to the resident. This order replaces any previous offers from the landlord.

Determination

18. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord for its response to the resident’s reports about the condition of the radiators in the property.
19. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord for its complaints handling.

Orders

20. The Ombudsman orders the landlord to pay compensation of £200 for any distress and inconvenience caused to the resident by its ineffective complaints handling.
21. This replaces the landlord’s previous offer of £100. This amount must be paid within four weeks of the date of this determination.