Redditch Borough Council (202102751)

REPORT

COMPLAINT 202102751

Redditch Borough Council

7 November 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

1. The complaint is about the landlord’s handling of:
   1. Ensuring energy efficiency at the property, including rendering works, loft insulation works and the energy efficiency banding.
   2. Fence repair works.
2. The complaint is also about the landlord’s complaints handling.

Background

3. The resident has been a secure tenant of the landlord, at the property, from 31 July 2017.
4. The resident complained that the landlord had not ensured the property was energy efficient or sufficiently insulated.  She also complained about the EPC rating the property was given by the landlord, with her own EPC inspection and report rendering it at a lower banding.  Additionally, the resident complained about the landlord’s response to her reports about repairs to a fence, as well as the level of customer service she received from the landlord during a telephone call and its subsequent complaint handling.
5. The landlord did not uphold the complaint.  In its stage two response to the complaint, which was delayed, for which the landlord apologised, stating this was due to staff sickness and human error, it stated that it “stood by” its stage one response.  It added that the staff member about whom the resident had complained had a different recollection of the event.  It also said that staff training in customer service had been undertaken since the incident, although this was unrelated to the resident’s complaint. 
6. In terms of the energy efficiency issue, the landlord addressed this at stage one alone, stating that it had undertaken a heating survey at the property and had carried out works to increase the energy efficiency, including installing new windows and doors and increasing loft insulation.  It explained it was increasing all properties to a band ‘C’ EPC over time but the resident’s property would not be looked at presently. In respect of the fence, it said it would inspect this when doing works to the replacement dividing fence, adding that Covid-19 had caused delay.
7. The resident remained dissatisfied with the landlord’s response, maintaining her original concerns which she feels remain unresolved.

Assessment and findings

Scope of investigation

8. It is noted that the landlord’s stage one complaint response included the landlord’s position on driving safety issues raised by the resident. This included its confirmation that the driveway was not ‘legal’ as there was no dropped kerb servicing the property. It recommended that the resident contact the highways team to make an application in this respect. This issue was not referenced later on in the evidence provided to the Ombudsman and it is reasonable to conclude that the issue is resolved.

Ensuring energy efficiency at the property and energy efficiency banding

9. The landlord undertook a heating survey at the property on 10 November 2020, which it states was in response to the resident’s reports of the property being cold. The heating survey consisted of an engineer testing the boiler, dials and controls and the proportionate size of the radiators in each of the rooms of the property. The outcome of this inspection was that the boiler and dials were sufficient and in good working order and that the radiators were sufficient to adequately heat the rooms, besides the kitchen radiator. In respect of the kitchen radiator, the landlord’s records indicate that the resident stated that she would address this herself, as she wanted “to contact a private plumber to install a bigger decorative horizontal radiator under kitchen window”.
10. The landlord’s actions to carry out a heating survey following reports of the property being cold were appropriate.  They were appropriate because it sought to establish by an in-person inspection, whether the heating system was sufficient to heat the property to a habitable standard. Having found that the system was sufficient besides the size of one radiator, the landlord appropriately and transparently communicated this to the resident, who decided she would make her own arrangements regarding the kitchen radiator. 
11. Whilst the landlord was responsible for the heating system and size of radiators at the property, this was something the resident wished to undertake herself and it was reasonable that the landlord acceded to this, given that the heating system was sufficient at the entirety of the property besides the kitchen, and was otherwise able to be adequately heated.  The resident’s desire to have her own style and positioning of radiator for the kitchen was reasonably honoured – it was the resident’s home and the landlord respected what she wanted to do in this respect.
12. It is important to note that the heating survey did not assess heat retention, however and this was something that would have been affected by the condition of windows and doors at the property and any other external structural works.  The landlord’s records indicate that prior to the heating survey, in September 2020, works were identified to the external façade of the property that included the replacement of windows and doors, soffit and fascia, repairs to brickwork and repointing. Additionally, there is note of an asbestos survey being required prior to “insulation” being re-laid, although the type or positioning of insulation referred to is not explicitly stated here.
13. The landlord’s records state that all works were carried out and completed in May 2021, although the resident disputes that loft insulation works have been carried out.  Confusingly, the landlord’s records also state that the windows and doors were replaced in March 2020, with further external window seal works in November 2020.
14. The resident makes a particular point about her dissatisfaction with the landlord in respect of the rendering works.  There is evidence to suggest that rendering works were agreed with the resident in October 2020, with reference to funding being available to do this, followed by uncertainty as to the availability of funding.  The landlord advised the resident it would contact her in January 2021 about the funding situation but it did not do so, leading to the resident chasing it at that time and being advised that there was now no funding. It is not clear if the rendering works were eventually carried out by the landlord and if not, why not or indeed how serious the problem is that requires rendering repair works. The repair records available to this investigation detail ‘external wall/rendering’ as a note dated 24.3.21, though it is unclear whether this represented works carried out at that time or an intention to carry out works or something else entirely. The landlord is obliged under the terms of the tenancy and in law, to carry out the repairs it is responsible for within a reasonable period of time, irrespective of ‘funding’ issues mentioned.  The law does not specify what a reasonable period of time is; this depends on the individual circumstances of a case. 
15. In this case, the landlord’s Repairs Policy states that it aims to carry out non-urgent works within 25 working days and that “grouped repairs” are carried out within 10 weeks on average. Where rendering repair works have been identified, the landlord is required to do this within the applicable timescale.  It is not clear when rendering works were identified, the extent of the issue or whether they have been carried out. What is clear, however, is there was a lack of expectation management around this, with the landlord stating it would carry out the works, then would not and failing to keep the resident informed as it said it would.  This was clearly an anxious time for the resident, living with the uncertainty and waiting and not being contacted when she reasonably was expected to be, following the landlord’s assertion that it would be in touch in January 2021.
16. Turning to the aspect of the energy efficiency rating and Energy Performance Certificate (EPC), the landlord is obliged to assess the energy efficiency of a property and provide a tenant with an EPC prior to renting it and it appropriately did this in 2017, prior to letting the property to the resident.  EPC certificates are valid for 10 years and so a further energy efficiency assessment and rating was not required until 2027.
17. In carrying out this task of assessing energy efficiency, the landlord is entitled to rely on the expert opinion of an independent contractor to assess the energy efficiency of a property, which it did. The Minimum Energy Efficiency Standard (MEES) is category ‘E’, with categories ‘F’ and ‘G’ requiring immediate action to bring them up to the minimum standard. The landlord assessed the resident’s property as a category ‘C’ which is within the required and legal range for energy efficiency.  Even with the resident’s own energy efficiency survey, which she later commissioned, and which stated that the property was a ‘D’ rating, this remains above the minimum requirement of ‘E’.
18. The landlord has explained in its response to the complaint that it had prioritised properties with a rating of ‘D-G’ and would seek to improve the energy efficiency of the resident’s property once this had been done.  It would then begin to work on improving energy efficiency in category ‘C’ properties. The landlord has further explained through Government initiatives and targets, it is looking to address fuel poverty by “improving as many fuel-poor homes as is reasonably practicable to a minimum EPC band C by 2030”.  This would include the resident’s, in circumstances where it had a ‘D’ EPC rating, which is currently in dispute. This is an appropriate response by the landlord because it is required, by law, to immediately prioritise the lower-level energy efficiency properties.
19. There is doubt for the resident as to the energy efficiency banding the property was given by the landlord, however, due to her own survey rating it as lower and there are indeed, discrepancies between the two certificates.  The landlord points out that the EPC issued by it was in 2017, prior to the works being carried out to improve energy efficiency at the property, however and states there has not been a reassessment of the EPC by the landlord since this time. 
20. There has been an EPC obtained since this time, however, by the resident, which was in 2021 and rates the property lower than the EPC of 2017, despite works to improve the energy efficiency of the property being carried out since.  As discussed earlier, the landlord is entitled to rely on the expert opinion of an independent contractor, as it did so in 2017.  However, given the discrepancy in ratings, aggravated by the improvement works which have taken place since, as well as the discrepancy in the comments made in the assessment of the property and the landlord’s lack of acknowledgement or response to this or the resident’s concerns, it would have been prudent for the landlord to consider a second opinion and/or to accept the property’s revised EPC rating, which it did not do. This is because the later certificate of 2021 usurps the earlier certificate of 2017 and would directly impact the timescale for improvement works as to energy efficiency and prioritisation of its housing stock on this basis.

Fence

21. The documentation provided by the landlord indicates that repair issues were reported with the fence in May 2021, although this related to “fence panels fallen and need reinstating”, rather than the issue with the fence not being set on a concrete base and so soil was being eroded from underneath, which is the issue complained about. There is no information as to if and when this issue was reported or the landlord’s response to any report. In the absence of evidence to support what did or did not happen, it is not possible for the Ombudsman to assess whether the landlord acted appropriately and reasonably, in response to a purported report of the issue.
22. The landlord does acknowledge that in response to the fence report of May 2021, that the continued impact of the pandemic meant that it was delayed in responding to required repair works, however. It explained that non-urgent works had been stockpiled during this time and it was looking at commissioning additional contractors in order to address the backlog.
23. The landlord’s repairs targets, as specified above, are targets and not definitive timescales of how long a repair may take to be undertaken.  The matter of a global pandemic and the national lockdown which rendered only emergency repair works to be legally undertaken for a time, regrettably impacted the landlord’s ability to undertake repairs at that time and for a time after, as it had then the task of ‘catching up’ on itself and the weeks and months of appointments that would ordinarily have taken place, being missed. There was little the landlord could do to remedy the situation at the time of the restrictions, although it could once these were lifted, such as hiring additional contractors, as it said it was thinking about doing.
24. There is no information as to the landlord pursuing the option of hiring additional contractors to carry out repair works, however, or if or how the backlog was cleared and specifically in this case, if the eroding ground and soil underneath the resident’s fence has been inspected and repaired. Whilst the landlord was unable to take action during the Covid-19 restrictions, it retains a responsibility to carry out repairs within a reasonable period of time once it became possible to do so.
25. The landlord’s Repairs Policy states that non-urgent works such as fencing, which “do not pose any short-term hazard or inconvenience to the occupiers of the property” may become “grouped repairs” which tend to be undertaken within 10 weeks on average.  These are repairs which are considered to “require attention at some point in the future” hence the timescale being less stringent that other types of repairs.  There is no information as to whether the landlord decided to group the fence repair as such, although it had the option to do this and explain to the resident, which it did not do.
26. Notwithstanding the uncertainty regarding the nature of the fence repair works, the landlord, in its response to the complaint, stated that it would inspect the fence “when doing the replacement dividing fence”.  This statement did not provide any information as to when this might be, failing to manage the resident’s expectations and leaving a lack of clarity and frustration over the issue.

Complaints handling

27. Responding to a complaint provides a landlord the opportunity to demonstrate that it has heard and understood the concerns raised and to seek to put things right.  Ways in which the landlord may seek to do this includes acknowledging what went wrong, explaining why and what actions it has taken or intends to take as a result and prevent a recurrence.  Additionally, where appropriate to do so, expressing empathy and understanding towards the individual making the complaint can be important in resolving the issue and rebuilding landlord-resident relations which may have broken down. It is important too, for the landlord to adhere to its own complaints procedures and policies, including timeframes in which it provides a response, and to offer compensation where reasonable.
28. The landlord stated in its stage one response to the complaint, that it could not find any formal complaint made by the resident and no evidence of a formal complaint having been made has been provided to this Service by either party.  As an evidence-based service, it is not possible to find a service failure attributed to delay, where evidence of a formal complaint being made cannot be evidenced. Using, therefore, the Ombudsman’s contact with the landlord requesting that it provide a complaint response to the resident, in June 2021, the landlord responded to the request within good time, in accordance with the Ombudsman’s complaint handling code.  
29. However, the stage one complaint response did not provide detail of escalation rights, as the Ombudsman expects.  Nor did the complaint response comprehensively address the different aspects of the complaint and the resident’s desired outcome as required by the Ombudsman. Whilst the landlord is not obliged to provide a resident with the outcome they request, they are required to investigate and thoroughly respond to a complaint, in doing so demonstrating that it has taken the matter seriously and seeks to put things right in the most appropriate and equitable way possible.
30. Specifically, the landlord did not address the resident’s concerns about the energy efficiency banding at the property – disputing the banding was her main point – underneath this was works to improve efficiency.  It failed to properly address this. The landlord failed too, to address the resident’s request for rendering works at the property.  The response consequently left questions unanswered and understandable dissatisfaction.
31. There is no evidence of investigation having taken place in respect to responding to the complaint at stage one, besides a telephone call to the resident to discuss the issues where the resident described being “screamed at” by the landlord, which it denies. No transcript of this telephone call, or telephone call note has been provided to this investigation and the Ombudsman takes this opportunity to remind the landlord of its record keeping obligations at this juncture. Whilst a transcript would not be expected to be retained, a summarising case note would be expected. This is particularly important if a call does not proceed straightforwardly, as was clearly the case here.
32. The landlord’s stage two response to the complaint was slightly delayed, being outside of the 20-working day timeframe set out in the Ombudsman’s Complaint Handling Code, which the landlord appropriately acknowledged and apologised for, explaining the reason for this being due to staff sickness and human error.  Whilst human error does occur, it did not explain what it had done to help prevent a recurrence, which would have demonstrated both good complaints handling and an understanding of the importance of learning from mistakes. 
33. Further, the landlord’s assertion that customer service training had since taken place but this was in no way linked to the complaint made, was an unnecessary and inflammatory statement.  Although the landlord did not accept that it “screamed” at the resident, as she asserted it did, it had no evidence to support what was said or how that call was handled.  It missed an opportunity to reconcile landlord-resident relations by simply explaining that it had taken matters seriously and although it had a different recollection of events, reassure the resident that its staff had recently undertaken further planned training. The landlord’s handling of the complaint overall was very poor, with its review of the complaint also missing the review aspect, with an internal email stating that the decision would remain unchanged with no independent review having taken place or explanation of why this should be the case.
34. Additionally, the landlord failed to respond to the Ombudsman’s request for information across a protracted period of time, contrary to its obligations as a member of the Scheme. The landlord’s duty to cooperate with the Ombudsman includes cooperate with the Ombudsman’s requests for evidence and provide this within 15 working days. If a response cannot be provided within this timeframe, the landlord shall provide the Ombudsman with an explanation for the delay. If the explanation is reasonable, the Ombudsman will agree a revised date with the landlord. Paragraphs 10 and 11 of the Housing Ombudsman Scheme set out the Ombudsman’s expectations in relation to the provision of information, specifically, “the member must provide copies (without charge) of any information requested by the Ombudsman, that is, in the Ombudsman’s opinion, relevant to the complaint”.  Failure to provide evidence to the Ombudsman in a timely manner may result in the Ombudsman issuing a complaint handling failure order. 

Determination

35. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord, in respect of the complaint about ensuring energy efficiency, including works and EPC banding.
36. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord, in respect of the complaint about fence repair works.
37. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord, in respect of the landlord’s complaints handling.

Orders

38. Within 28 days of the date of this report, the landlord is ordered to pay the resident £250 compensation, comprised of:
    1. £100 for the service failure identified in respect of the energy efficiency and EPC rating aspect of the complaint.
    2. £50 for the service failure in respect of the fence works.
    3. £100 for the maladministration identified in its complaints handling.
39. If not already done so, the landlord to accept the revised EPC rating of ‘D’ and include the resident’s property in the long-term planned schedule of works to improve energy efficiency and to reduce fuel poverty and to let the resident know an expected timeframe for this, where possible. Alternatively, the landlord to commission a second EPC survey and act accordingly thereafter, based on the outcome.
40. If not already done so, the landlord to arrange an inspection of the property in respect of the need for possible rendering works and loft insulation and to act on any outcome accordingly.
41. If not already done so, the landlord to arrange inspection of the fence at the property, specifically the soil erosion underneath and possible need for a cement plinth and act accordingly thereafter, depending on findings.
42. The landlord to ensure that this Service is provided with evidence of compliance with all the above orders within 28 days of this investigation report.