Red Kite Community Housing Limited (202012377)

REPORT

COMPLAINT 202012377

Red Kite Community Housing Limited

24 January 2022

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 decision to recharge the resident for electrical works carried out in the property.

Background and summary of events

The residents occupied a three-bedroom house under an assured tenancy. The residents were originally secure tenants of their local authority which tenancy began on 30 October 1989. The property was transferred to the current landlord in 2011 following a stock transfer from the local authority to the landlord.
The residents communicated with the landlord through an advocate. The residents had a number of health issues that they had reported to the landlord.
The resident had previously complained about the electrical works in the property. The background of the recharge was included in a previous complaint regarding electrical works, which were investigated by this service, under complaint reference 201915237. This report will refer to the evidence and findings in the Ombudsman’s investigation report for this previous complaint dated 24 March 2021.
The Ombudsman’s investigation reference 201915237 concluded that the landlord has a responsibility to keep in good repair the electricity supply to the property and it was reasonable to rely upon specialist contractors expert knowledge in this area. The report therefore concluded that the landlord’s subsequent decision that a full re-wire was required to the property.

Legal and policy framework

Under the tenancy agreement, the landlord was obliged to keep any installation provided by it for electricity in good repair and proper working order. Under section 9a of the Landlord and Tenant Act 1985, the landlord is obliged to keep the property fit for habitation.
Under the tenancy agreement, the resident agreed not to tamper with, among other things, electricity supplies, as well as working with the landlord to minimise the risk of fire at the property. Residents were permitted to make improvements to the property with the written consent of the landlord. Failure to seek such consent was a breach of the resident’s obligations under the tenancy agreement.
Under the repairs booklet, the landlord advised residents not to remove or add electrical fitting or make repairs or adjustments without the landlord’s permission.
The then recharge policy stated that, in all but exceptional circumstances, it would recharge residents where the landlord had to carry out work for which the residents were responsible or where the landlord had to provide extra services and resources as a result of their breach of tenancy. It aimed to notify the resident at the outset as soon as it became aware there may be a recharge. Circumstances included unauthorised alterations. It would also add a charge of £20 plus VAT for administration. Where there was a breach of tenancy, it would recharge its costs for staff time and any other additional resources. If the resident failed to pay within six months, it reserved the right to suspend work not paid for, unless the property or the residents were at risk and/or to pass the debt to a debt collection agency.
In some exceptional circumstances, such as the death of a tenant, significant vulnerability, such as lack of mental capacity or a customer being unable to pay for a repair which endangered life or property, the landlord could decide not to recharge the full amount or agree a repayment plan over a longer period or consider writing off the debt.
Under the current policy, which was revised on 26 March 2021, in addition to the above, the landlord would agree a repayment plan over a longer period and it would not charge an administration fee for any rechargeable works. It had removed the provision regarding adding the landlord’s own costs.

Chronology

In its previous report on complaint reference 201915237, the Ombudsman investigated whether the property required rewiring and other electrical works. It did not investigate whether the residents had undertaken electrical works in the property without the landlord’s consent and whether it was reasonable for the landlord to recharge for remedial works. This investigation will focus on the landlord’s decision to recharge for works.
On 19 June 2015, the landlord wrote to the residents stating that they intended to carry out any repairs required, including replacing sockets, light fittings, and extractor fans. There is no evidence of what works were carried out. A Domestic Electrical Installation Certificate was issued by an electrical contractor on 15 July 2015 and countersigned on 5 August 2015 stating that the consumer unit was replaced and it had removed a large amount of “DIY wiring” in the property.
On 29 June 2016, the landlord wrote to the residents to state the electrics were safe and had been tested. It had not located any permission to build a conservatory and suggested it be removed, given it was leaking. It noted there was no approval for works to the kitchen and toilet. It requested a copy of the landlord’s written permission for those works.
On 10 August 2018, a further electrical certificate was issued and countersigned on 28 September 2018. It stated the condition was satisfactory, but the electrical contractor had only reviewed 25% of the installation. The contractor was unable to test certain aspects due to not having been granted access to some parts of the property, including a cupboard and two rooms.
On 26 June 2019, the electrical contractor attended the property but could not issue an electrical certificate. The contractor told the landlord that there was “DIY wiring” throughout the property installation, and the outbuildings had many visible defects. He noted that this was a health and safety issue as well as an electrical one. The contractor said that “a qualified electrician would not have installed the wiring in such a poor way”. The contractor noted that the last electrical inspection report did not mention any DIY wiring and the outhouses had not been tested at that time. Once the landlord became aware of the poor state of the electrical installations in the property, it arranged a second inspection.
On 10 July 2019, the landlord wrote to the advocate to inform her that it would be carrying out an electrical test to the property the following day. It stated that there would be a recharge if, during the full electrical check, any electrical issues were identified as having occurred due to the residents’ actions. The advocate replied the same day denying the residents had undertaken any electrical works as they were not electricians and objected to the recharge, given the funds the residents had spent making the property “habitable”.
On 12 July 2019, the electrical inspection of the property was completed. It found the condition of the electrical installation to be “unsatisfactory”. It said there were multiple extension leads feeding power and lighting which were a trip and fire hazard and that supplies were overloaded for the outbuildings. It stated that the dangerous items in need of immediate remedial action were disconnected at the time of the test. They included the electricity supply to the outbuildings, kitchen lights which had been plugged into an extension lead, and lights which had been powered from a double socket and an extension lead respectively. The contractor also identified fifteen issues which were potentially dangerous and where urgent remedial action was required.
The electrical works began on 7 October 2019. On 10 October 2019, a domestic electric installation certificate was completed following a full re-wire of the property and the installation of a new fuse board. On 15 October 2019, the electrical contractors invoiced the landlord for the remedial works which amounted to several thousand pounds.
On 4 December 2019 the landlord wrote to the resident that its decision to carry out an electrical test was due to poor quality DIY electrical works that had been undertaken in the property, including inappropriate fittings owned by the residents.
On 27 January 2020, the landlord wrote to the residents requesting a date to reattend to complete the making good works from the electrical works including moving garage light switch, re-instating a light to the back garden and installing an additional light in the kitchen, as a gesture of goodwill.
The landlord wrote to the resident on 31 July 2020 as follows:
1. Despite its position that the residents had installed a conservatory and installed or altered a toilet, it would accept responsibility for further (but not historical) repairs.
2. Following an inspection on 26 June 2019, it became aware that the residents had carried out electrical works at the property without its permission and in breach of the tenancy agreement. It cited Clause 43 of the tenancy agreement which read as follows:
  1. “You may make improvements, alterations and additions to your home.. provided that you have first obtained our written consent and all necessary approvals (for example planning permission or building regulations approval). It shall not unreasonably withhold its consent but may make it conditional upon the works being carried out to a certain standard. Failure to seek our consent or to comply with our conditions shall be a breach of your obligations under this tenancy.”
3. It referred to the assessment and rewire works on 7 October 2019 until 13 October 2019. It had had an opportunity to review the extent of the unauthorised electrical works carried out by the residents at the property and the cost which had been incurred by the landlord in rectifying this. It would require the residents to pay the landlord this amount as “damages” for its breach of tenancy agreement. If they failed to make this payment, it would take legal action to recover the outstanding sum from the residents. It apologised for the time it has taken to finalise this. It would send the resident a detailed breakdown of the costs and the full amount within the next 10 working days.
4. It reminded the residents that in accordance with Clause 43 of the tenancy agreement, the residents were not permitted to carry out any works in their home without the landlord’s permission, subject to conditions.
5. As planned, it intended to carry out further electrical works to assist the resident.
On 3 August 2020, the advocate wrote to the landlord stating that it had “accepted” the structures were present at the time of the stock transfer. The residents refused the claim the residents built them and offered to show photographic evidence to support that the residents had not carried out any electrical works.
On 7 August 2020, the landlord wrote to the residents’ advocate stating that the electrical contractor who carried out the electrical inspection of 12 July 2019 had confirmed that there were several DIY/substandard installations within the home. It sent the residents a copy of the electrical overview on 26 May 2019 and this was re-sent to the advocate. Its “Home Safety Manager” noted during her visit in August 2019 that several installations, previously disconnected at the time of the electrical inspection on Health and Safety grounds, had been reconnected. The landlord had reiterated the potential risks, asking that they be disconnected and left until a professional electrician could undertake the rewire.
The landlord acknowledged that it had not sent the recharge letter sooner. It had intended to carry out any “making good” works required prior to issuing this recharge. However, due to the ongoing issues regarding gaining access to carry out these works, it did not want to delay this matter any further. A breakdown of the costs would be sent, as explained in its letter of 31 July 2020.
The landlord wrote again on 12 August 2020. It had evaluated the recharge element of the electrical works due to the dangerous condition of the electrics following unauthorised works. It had hoped to complete all making good and resolve outstanding issues but the lack of access had delayed the works and therefore it was submitting its “statement of charge”. It appended a list of items which determined the basis of the recharge. The photographs and comments were provided by its specialist contractor. The works had contributed to the need to carry out a rewire, were not safe and sub–standard and were considered dangerous. Circuits had been removed or isolated as dangerous circuits had previously been reconnected. The costs were £640 being the cost of two electricians working one full day. It had added its standard £20 administration fee. It had added the invoice to the resident’s account.
The appendix attached set out a number of defects with photographs for easier identification.
The advocate wrote on 25 August 2020 with the appendix to the landlord’s email the residents had annotated with comments stating the defective equipment and fittings were already present when the residents moved in or that they were installed by the landlord. There were also drawings and further photographs with comments stating the same and that a mains switch had been stolen. Her view was that “the landlord had condemned its own work” and was trying to recharge the residents for this work. She stated that the car port was put in at the residents’ request by qualified electricians prior to the stock transfer. She requested an itemised bill.
On 11 September 2020, the advocate wrote to the landlord stating that the recharges had been added to the rent account, even though it was disputed and she had requested a breakdown.
On 6 October 2020, the landlord wrote to the advocate asking her to clarify what further detail was needed so that it could review the matter. It offered a reduction of £50 in relation to a missing remote control/USB charger as a gesture of goodwill and sent an amended invoice for £610.
The advocate replied on the same day to state that while she appreciated the offer, it was refused.
On 23 October 2020, the landlord wrote to the advocate to say it was unable to provide any additional detail for the charges. It was based on the labour of two electricians on site for one full day, which was the time taken for them to remove and remedy the electrical items that were identified as being non-compliant. The recharge did not include any materials, only labour. The work the electricians undertook was detailed in an attachment to the recharge letter sent to in August 2020.
It confirmed that the debt had not been applied to the rent account and was a separate charge. However, the statement would display all costs due to the landlord. It apologised for the confusion but reassured the advocate that the recharge had not been applied to the residents’ rent account.
The advocate wrote to the landlord on 6 November 2020 as follows:
1. She asked the landlord to treat their email as a formal appeal to their complaint in regards to the electrical recharge.
2. The landlord had not sent an itemised summary despite their request. It noted that it would recharge for “any material items” to undo electrical work that allegedly the residents did themselves. The residents did not know what items the landlord was referring to.
3. She stated that the electrical work was work carried out by the landlord.
4. The residents had purchased some “quality equipment” that they asked the landlord’s contractors to install and on the recommendation of the electrical contractors.
5. The residents had built the carport prior to the transfer of ownership to the landlord but had paid professional electricians to install it. It passed all electrical safety checks since 2011.
6. The landlord ignored the electrical tests carried out “every year, year on year”.
7. The residents used bulbs that were compatible with a particular device, which was not an electrical DIY.
8. She asked the landlord to review the evidence in the document and the electrical certificates for the past 9 years.
The landlord wrote to the resident on 19 November 2020 as follows:
1. It explained why it had not logged the email of 12 August 2020 as a new complaint, which would give the residents the opportunity to request a review of its response.
2. It summarised the resident’s complaints, most of which it had already dealt with in previous complaints. They included:
  1. It would address the complaint that it had “condemned its own work” and was now seeking to recharge the residents for this work.
  2. The recharge invoice did not show what the charges relate to.
3. It would not address the complaints already dealt with (including in relation to the recharge).
4. It did not consider the annotations on the attachment to the recharge letter provided any additional information which changed its position.
5. The residents were notified of its intention to recharge for these works, and the reasons why, prior to the works being carried out. It considered that the matter had been fully investigated and addressed as part of its investigation.
6. It referred to its letters of 12 August 2020, 6 October 2020 and 23 October 2020, apologising for the delay in responding. It agreed that the electric bulbs were not an electrical safety issue or rectified as part of the rechargeable works.
7. It was satisfied it had provided sufficient details in relation to the costs.
8. It addressed the residents’ point that “all” previous electrical tests had “passed”.
  1. It carried out periodic electrical tests (EICR) every 5 years. In January 2015, its electrical contractor attended to replace and test the consumer unit during which it removed a large amount of wiring which it considered to have been installed by a non-professional. The electrical items the contractor removed had been dangerous.
  2. In August 2018, the same contractor carried out a periodic EICR and inspected 25% of the fittings in accordance with the British Standards BS 7671 – Requirements for Electrical Installations. The engineer’s note stated that he was unable to gain access to certain rooms areas during this test, however if the engineer had received a poor meter reading during this test, he would have investigated further.
  3. While the next electrical test was not due for several years, it undertook a further electrical inspection in the summer of 2019 as a result of electrical safety concerns that had been identified whilst dealing with a disrepair case. The readings on this occasion indicated that further investigation was needed and this highlighted a significant amount of substandard DIY wiring throughout the property.
9. It enclosed again the original electrical report produced in response to the most recent electrical installation test. It was the professional opinion of its electrical contractor, which it agreed with, that electrical works undertaken on the installation had not been carried out by a qualified electrician as they did not comply with relevant standards. The electrical works were not carried out to required standards, nor was permission sought to undertake the electrical works. It did not accept that the substandard works were carried out by the landlord’s contractors. The contractors were accredited electrical specialists, and it had a legal responsibility to respond to any areas of safety as a priority. It relied on the advice of its accredited contractors and took appropriate action accordingly. The 2019 electrical test was so critical of the standards of some of the electrical work that the contractor was not able to leave the property without taking action, and accordingly, he had disconnected some of the electrical equipment in the property.
10. The landlord had arranged to move one of the sockets, as its placement was not ideal and it carried out some further snagging works and, as a gesture of goodwill, carried out some other minor electrical works. It attributed the delay in responding to the resident’s request to the amount of correspondence between the parties.
11. It acknowledged the recharge itself was issued a while after the works were carried out. It was delayed while it worked through the residents’ ongoing concerns regarding the works but apologised for any inconvenience and offered £25 as a gesture of goodwill, in recognition of these delays.
On 28 November 2020, the advocate wrote to the landlord to appeal the complaint on the following grounds:
1. It had not provided any evidence that supported that the “substandard” electrical work was installed by the residents.
2. Their property had posed numerous issues due to its age and lack of maintenance. The electrics identified in 2019 were the electrics that the residents inherited in 1989.
3. The electrics had not been modernised, yet electrical certificates were issued. The residents would not install “substandard electrics”.
4. The recharge item had remained on the rent account.
The advocate wrote on 4 December 2020 stating the residents wanted the electrics to the carport reinstated due to injuries they had both sustained, one due to a leak in the property. She asked for reimbursement of the items that had been removed. She explained this was affecting their mental health.
The landlord responded with a final response as follows on 14 December 2020.
1. It apologised for any inconvenience or distress the matter had caused the residents.
2. On a balance of probabilities, it stated that it was reasonable to draw a conclusion that these DIY electrical works were carried out by the residents or electricians they had employed (whether professional or not) without consent from the landlord. The electrical reports and the professional opinion of its qualified electrical contractor supported this conclusion.
3. It was satisfied that it had provided a detailed explanation why it was necessary to undertake a rewire of the property and gave reasons regarding safety.
4. It had provided an explanation of how the property had passed previous electrical inspections.
5. It provided a further breakdown of the works with seven separate items, all priced, and described as tracing and removing DIY electrics, cables and wiring.
6. The charge did not apply to the re-installation of the electrical socket and light in the garage, nor to the external lights.
7. The work in the carport was deemed to be potentially dangerous and therefore it was necessary to remove the electrics.
8. It confirmed again that the recharge had not been applied to the rent account. It increased the goodwill gesture in recognition of the delay in submitting the costs, to £50.

Assessment and findings

In the course of the Ombudsman’s previous investigation of the resident’s complaint about the electric works carried out in the property, the Ombudsman investigated whether the electrics works, including rewiring, were necessary. It found no maladministration in relation to the electrical works. The reason for its findings was as follows:
1. “The landlord acted appropriately by deciding to carry out a full re-wire of the property to rectify the issues identified by the electrical contractor. The landlord gave the residents adequate notice of the works; gave details of the work to be undertaken and took reasonable action to resolve the issues that the residents expressed dissatisfaction with following the electrical works. It was reasonable that the landlord sought further evidence to support the residents’ claims that the contractors had damaged items in the property”.
Having investigated and made those findings, the remaining issue for the Ombudsman to investigate is whether the landlord acted reasonably in recharging an element of that work to the residents.
It is noted that there is a dispute between the parties as to which party carried out the works that the landlord identified as substandard and dangerous. However, the Housing Ombudsman cannot conclusively say who carried out the works based on the evidence available. The role of the Ombudsman is to consider whether the landlord acted reasonably and to determine whether the landlord’s decisions, processes and communications were reasonable and appropriate, in the light of its legal obligations and its policies, and the evidence available to it.
It was reasonable that the landlord relied on the findings of its specialist contractors who a) identified and removed “DYI” wiring in 2015 and further “DIY” wiring in 2019 and b) described the quality of the installation as being substandard and dangerous. If the landlord had installed the wiring, the works would have been reflected in its records. There was no evidence there were records that those works were identified in the property or of any permission for the residents to carry out any works, such permission being a requirement in the circumstances. It was reasonable that the landlord concluded that the substandard works were not carried out by it or its contractors, given their accreditation, expertise and legal obligations and therefore were carried out or arranged by the residents.
It is noted that there were a number of additions to the property, including the conservatory, toilet, bathroom and carport (the addition of which last the resident acknowledged) for which the residents could not show they had had written permission. It is also noted that the electrical works were judged substandard, including those in the carport that the residents did accept they had had installed. It is also noted that the resident stated that they had effected improvements to the property. The evidence also showed that the residents, despite having been told that some installations were dangerous, indicated the residents had reinstated them. It also showed that some of the issues related to the use of extension leads which required no specialist electrician to install. These were all factors that the landlord was entitled to take into account. In the circumstances, it was reasonable of the landlord to conclude that, on the balance of probabilities, the residents were responsible for the substandard works and it could therefore recharge them for remedial works.
While it will be frustrating for the residents, given the landlord cannot absolutely prove the residents carried out or arranged the works, a finding on the “balance of probabilities” is the approach a court would take and therefore, in the Ombudsman’s opinion, reasonable in all of the circumstances.
In the circumstances, it was reasonable for the resident to be recharged.
It was reasonable that the landlord sought to provide the residents with as detailed an explanation for the costs and the apparent discrepancy the residents reported in relation to the safety certificates. The explanation was reasonable and consistent with the evidence. The scope of the 2018 test was limited, however the landlord reasonably and, in accordance with its obligations regarding safety, sought a further inspection, which found the condition of the electrics to be unsatisfactory.
The reasons the landlord gave for the delays in providing the statement of costs were reasonable, given it was seeking to resolve matters first. It was reasonable of the landlord to apologise for the delay and offer £50 compensation, given it was both unsolicited and reasonable in amount. The landlord was reasonably of the opinion that explaining that the costs represented two-man days was sufficient. It had also set out in detail what items were at issue. It was also reasonable for the landlord to go further and set out a breakdown of costs in terms of the items themselves.
The position regarding whether the landlord had added the costs to the residents’ rent account was confusing, given its letter 12 August 2020 stated it would do precisely that. However, it was reasonable of the landlord to reassure the resident that the costs had not, in fact, been added to the rent account which was evidenced by the rent statement. In any event, any confusion and delays did not, in the Ombudsman’s opinion, impact the residents as it did not seek to take steps to recover the costs.
The residents required the permission of the landlord to make any alterations and making improvements without the landlord’s written consent, which was a breach of the tenancy. It was reasonable and proportionate of the landlord to limit its response to seeking payment of a contribution of costs, given its options ranging from an increased recharge to taking legal action for breach of tenancy.
While the landlord was entitled to seek a recharge where damage had been caused by a resident, the Ombudsman would expect a social landlord to consider the impact of charging any money to residents who were dependant on benefits. Moreover, the recharge policy required the landlord to exercise its discretion in “exceptional circumstances”. The policy went on to explain what might constitute “exceptional circumstances”. The most applicable circumstance was a resident being unable to pay.
In this case, the landlord’s actions were appropriate and reasonable. The landlord limited what it was claiming from the residents in that it did not pass on all of the costs of the rewiring, which were considerably more. It acted reasonably in only seeking a contribution for the labour and not the parts. It carried out additional works in order to assist the resident. It deducted £50 from the invoice in relation to a claim without asking the resident to substantiate whether it was the landlord’s liability. It offered to accept payment in instalments. While the Ombudsman recognises it was a large sum for a person on benefits, the Ombudsman considers the landlord made sufficient adjustments for the residents.
However, the Ombudsman would expect any instalment plan to be affordable and the Ombudsman will make a recommendation in that regard. Equally, the Ombudsman would expect that the costs were not added to the rent account in any circumstances, as a default in rent arrears could be the grounds for possession proceedings. The Ombudsman will make a recommendation in relation to those aspects as well.

Determination (decision)

In accordance with paragraph 54 of the Ombudsman’s Scheme, there was no maladministration in relation to the landlord’s decision to recharge the resident for electrical works carried out in the property.

Reasons

Based on the evidence available to it, the landlord was entitled to conclude that the substandard electrics were the responsibility of the resident. It sought to limit the amount it recharged the resident and it explained its position and the basis of the recharge clearly.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should set out a payment plan with the resident with a repayment period of two years.
2. The landlord should not add the recharge costs to the rent account but maintain a separate account for the charges.