Royal Borough of Kensington and Chelsea (202224181)

REPORT

COMPLAINT 202224181

Royal Borough of Kensington and Chelsea

5 December 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 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 the repairs to the boiler and its subsequent offer of compensation.

Background

2. The resident is a secure tenant of the landlord. The property is a studio flat on the second floor. The tenancy started on 31 October 2022. The landlord has no recorded vulnerabilities for the resident. He advised us he has mental health conditions.
3. The resident reported to the landlord, that he was having issues with the gas heating system on 11 November 2022. Its contractor attended the property on 15 November 2022. Following their attendance, they diagnosed a fault with the boiler, which was under manufacturer’s warranty. The landlord proceeded to refer the boiler repair to the manufacturer.
4. Its contractor returned to the property later the same day but was unable to gain access. They left 2 temporary heaters for the resident with the neighbours and had also called him and left a voicemail. The boiler manufacturer attended the property on 18 November 2022. They fitted a new pump and the systems were in working order.
5. Following this, the resident’s family member had raised a complaint on his behalf on 21 November 2022. In the complaint to the landlord, it was said that he was unhappy with the time it had taken to complete repairs. He wanted to be compensated for the 7 days to repair the boiler and felt the landlord did not fulfil its obligations. In this period, he was unable to sanitise and had sought other places to stay, which incurred additional costs. It was also mentioned that he fell sick during this period and the experience had made his mental health conditions worse.
6. The landlord sent its stage 1 complaint response to the resident on 5 December 2022. It upheld his complaint and offered £100 in compensation. It apologised for the delay restoring his hot water and heating services and the distress he experienced. It noted it was unacceptable for its contractors’ first attendance to be on 15 November 2022, 4 days after he first reported the issues. It explained that as the boiler was under manufacturer warranty, it had contacted them, who later repaired the boiler. It further said that it gathered information and was working with its contractors to ensure repeat failures do not happen.
7. The resident remained dissatisfied with the landlord’s response, so escalated his complaint. He did not feel the level of compensation was proportionate. He said the decision did not take into consideration all the points raised, which included the severity of his mental health and additional costs. He said he travelled and stayed elsewhere for cleaning facilities and warmth.
8. The landlord sent its stage 2 complaint response on 6 January 2023. It considered the delay to repairs, the £100 it had already offered and the severity of being without hot water and heating in the winter months. It also reiterated it had taken into account his vulnerability when it made the offer. It provided a breakdown of its compensation. Using its own policy, £53.90 was for the loss of amenities. It said it used its discretion to increase that figure to £100 due to the effect on the resident. Having reviewed the complaint, it felt that the offer was reasonable.

Assessment and findings 

9. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. The principles of effective dispute resolution are:
   1. be fair, treat people fairly and follow fair processes
   2. put things right
   3. learn from outcomes
10. This Service will apply these principles when considering whether the landlord has taken enough action to put things right and learn from outcomes.

Scope of Investigation

11. The resident had said that the delay in repairs exacerbated his mental health issues and had fell ill as a result. The Ombudsman is an alternative to the courts. As such, is unable to establish legal liability for whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Additionally, the Service cannot calculate or award damages. Therefore, the Ombudsman is unable to consider the personal health aspects of the complaint. These matters are perhaps suited for consideration by a court. However, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.

The landlord’s obligations and policies

12. Section 11 of the Landlord and Tenant Act 1985 places statutory obligations on the landlord. It is to keep in repair and proper working order, the installations in the property that supply heating, hot water and dwelling for sanitation. Under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, it is to assess hazards and risks within its rented properties, which includes personal hygiene, sanitation, and drainage. Excess cold is a potential category 1 hazard under HHSRS. Therefore, the landlord is required to consider whether defective boilers in its properties amount to a hazard and require remedying.
13. The tenancy agreement says the landlord must repair and maintain the supply of water, gas, heating, and sanitation, including baths, sinks and toilets provided. It operates a compensation policy, where it will consider any failures in service delivery that have caused residents’ loss or inconvenience. It also has a dedicated section for heating and hot water. It says compensation will be based on a flat rate of £7.70, multiplied by the number of bedrooms, then multiplied by the number of days affected. It can also offer ‘ex-gratia’ payments, depending on the level of impact.
14. In its gas safety management plan and policy, it says urgent repairs to a gas boiler will be attended to within 24 working hours.

The landlord’s handling of the repairs to the boiler and its subsequent offer of compensation

15. From the information received, the resident reported the issues on 11 November 2022. The landlord’s records show that the attendance to the property was first raised with its contractor on the same day at 4.50pm. The target date was recorded as 12 November 2022.
16. However, the landlord’s contractor did not acknowledge the emergency visit until 14 November 2022. Its contractor attended the property on 15 November 2022. It had admitted that the initial delay was not appropriate. From the evidence provided to this Service, it is unclear as to why its contractor did not acknowledge the repair earlier. It did demonstrate learning however, as following this, it had spoken with its contractors about emergency repairs to avoid repeat errors from occurring.
17. At that stage, the resident was without heating or hot water for 4 calendar days. This Service has not seen evidence that it had taken measures to update him, despite it being an urgent repair under its policy. Nor did it make contact with its contractor after the emergency visit was not acknowledged by 12 November 2022. This Service would have expected it to have sought further communication with him when it realised the repair had not been actioned within its 24hour timescale. It needed to understand the impact it had caused. Overall, it would have been reasonable for it to have attempted to diagnose and repair the issue as soon as possible.
18. Following the landlord’s contractors attendance on 15 November 2022, it promptly diagnosed the boiler was faulty. The contractors returned later that day but had no access to the property. They had intended to provide the resident with temporary heating provisions, which is what this Service would expect and was appropriate. The contractors had made attempts to contact him and left a voicemail. They left the radiators with a neighbour so he could retrieve them.
19. Although the landlord had provided temporary heating facilities, it had not factored the need for suitable washing, cleaning, and sanitising facilities. In its communication with this Service, it said that no hot water bowser was allowed as the volume of hot water could have been dangerous. It is evident it did consider the lack of available hot water. However, this was not appropriate as it could not guarantee when his hot water services would be restored. Even if this was the case, there was no mention of other sources of hot water. Additionally, by not suggesting other alternatives, it did not pay due regard to his sanitation needs. As it had failed to recognise this, the Ombudsman feels it would be reasonable to provide further compensation with regard to the lack of suggestions for alternative washing facilities.
20. In order to repair the boiler, the landlord decided to use the manufacturer’s warranty. We acknowledge it said the timescales for manufacturer’s repair is beyond its control, but it still had legal obligations to repair. Ultimately, it is the landlord’s responsibility to have explored available options to have completed the repairs urgently. The time taken between the manufacturer referral and completion of repairs was 3 working days, which was reasonable. Although the resident was provided with 2 heaters on day 4 of 7, we would have expected to have seen clear communication with the resident. The landlord should have assessed the risk posed to him and considered if any further adjustments were required.
21. The landlord should also have looked at whether the resident incurred additional costs as a result of the faulty boiler. He had informed the landlord that he travelled and stayed at friends’ and family’s homes. He felt the conditions of the property were unsuitable. This situation could have been mitigated if interim measures for both hot water and heating were offered earlier. This Service had not seen evidence of additional financial costs to the resident. Nonetheless, it is clear the landlord had not taken these potential costs into consideration when making its compensation offer. It had the opportunity to have asked for evidence of any costs incurred, which would have been reasonable in this case.
22. It was positive that the landlord had made an offer of redress to put things right and showed a willingness to learn. However, the resident remained dissatisfied with the level of compensation after exhausting its internal complaints procedure. The Ombudsman will not find maladministration for when the landlord had provided reasonable redress. The offer consisted of 7 days at £7.70 per day (£53.90), which was appropriate for the delay in repair.
23. However, the landlord’s compensation policy enables it to use its own discretion when assessing the impact on the resident. The landlord’s testimony was that prior to the complaint being logged, it was not aware that the resident was vulnerable. In the discretionary element of its compensation offer, it had said vulnerability was taken into account. Furthermore, the £46.10 discretionary offer did not factor all the failings identified in this report. Therefore the £46.10 offered is not proportionate to the impact on the resident, given the circumstances.
24. As such, the total redress of £100 was not proportionate to the identified failings. The landlord acknowledged some of the failures in this case. However, it needed to account for all the failures. With that in mind, this Service therefore makes a finding of service failure in the landlord’s handling of repairs to the boiler and its subsequent offer of compensation. The order considers its compensation policy. It also considers the distress and inconvenience experienced by the resident and the lack of alternative washing facilities or suggestions made.

Determination

25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of repairs to the boilers and its subsequent offer of compensation.

Orders and recommendation

Orders

26. The landlord is to write to the resident to apologise for the service failures detailed in this report.
27. The landlord is to pay the resident compensation of a total of £178.90 as follows:
    1. £53.90 for the delays in repairs to the boiler, in line with its compensation policy
    2. £125 for the distress and inconvenience experienced by the resident and for not having been provided alternative washing facilities – where he resorted to travel elsewhere

If any of the £100 it previously offered has been paid, it can be deducted from this total.

28. The landlord must contact the resident and record his current vulnerabilities appropriately in its systems and agree any reasonable adjustments.
29. The landlord must confirm compliance with the above orders within 4 weeks of the date of this report and provide evidence it has done so.

Recommendation

30. It is also recommended the landlord familiarises itself with the Ombudsman’s spotlight report on knowledge and information management, published in May 2023.