Bromford Housing Group Limited (202123811)

REPORT

COMPLAINT 202123811

Bromford Housing Group Limited

20 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

The complaint is about the landlord’s handling of:
1. The resident’s concerns regarding the temperature of the third bedroom within her new-build property.
2. The associated complaint.

Background and summary of events

Background

The resident is a shared owner of a three-bedroom property. The shared ownership lease started on 13 February 2019.
The landlord has no recorded vulnerabilities for the resident.

Scope of investigation

Within the resident’s communications with the landlord and this Service, she referred to several other concerns about potential defects within the property and the overall quality of the build. She also mentioned poor workmanship and outstanding works. However, these issues were not raised in the initial complaint to the landlord. The Ombudsman cannot investigate aspects of a complaint which have not exhausted the landlord’s formal complaint procedure. The resident may need to contact the landlord and, if appropriate, raise a separate complaint to get these matters resolved.
Under Paragraph 42(c) of the Housing Ombudsman Scheme (‘the Scheme’), we may not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. Therefore, whilst the historical incidents provide contextual background to the complaint, this Service uses its discretion and focuses on events from March 2021 (when the resident volunteered for her property to be monitored) up to the date of the landlord’s final response letter – 23 December 2021.
This Service recognises matters progressed since the landlord’s final response. Further investigations and additional remedial works took place, and the landlord made a compensation offer in November 2022. However, as events after 23 December 2021 have not been investigated by the landlord as a formal complaint, this Service is unable to consider them, as per the rules of the Scheme. These events have not been outlined below as they fall outside the scope of this complaint. If the resident remains dissatisfied with the landlord’s offer of compensation, it is open for her to raise a separate complaint about this.

Policies and procedures

The landlord has a two stage complaints policy. At stage 1, the landlord aims to respond within 10 working days. At stage 2, the landlord will respond within 20 working days.
The landlord’s repairing and maintenance policy states it will resolve new build defects by applying the development contract defects liability.
Under the development agreement, the defect liability period is defined as, ‘in relation to any unit the period 12 months commencing on the date that the final stage of each unit section has been constructed’. It states that any defects notified in writing before or during the defect liability period is made good as soon as reasonably practicable having due regard to the nature and urgency of the defect.
The warranty provider typically offers a ‘defects insurance period’ to remedy valid defects and damage to the home if the builder refuses to do so or has gone into insolvency. In addition, it can offer a ‘dispute resolution service’ if the policyholder is not satisfied with a developer’s response to reported defects. It can also give technical advice. Further to this, it typically features a ‘structural insurance period.’ The specific level and duration of cover is confirmed within the certificate of insurance and policy documents, copies of which have not been provided to this Service.

Summary of events

On 26 February 2019, there is a contact note within the landlord’s records stating the resident called to discuss the top bedroom, insulation, and the advice of having a new radiator fitted. This Service has not seen evidence to show exactly what was discussed at this time.
In April 2019, the property developer addressed the resident’s concerns regarding the low temperature of the third bedroom. It believed replacing the single convector radiator with a double panel convector radiator would resolve the problem. The resident referenced replacement radiators in her submission to this Service, however no records have been provided to show when this took place. Additionally in April 2019, the landlord’s records show that as several properties within the development were experiencing a similar problem, the developer would arrange testing.
In November 2019, the resident reported that after bleeding the radiator in the third bedroom, the room was still not getting warm. She suspected a problem with the insulation. The landlord referred this to the developer who said unless evidence is provided, they would not progress this issue.
The landlord booked an appointment to look at the heating for 3 December 2019. It is not clear whether this appointment took place. There are records of the landlord chasing the resident for a response and informing her that if no contact is made within 7 days, the job would be closed and picked up during the end of the defect liability period.
The landlord’s records show it reported several defects to the developer at the end of the defect liability period on 3 December 2019. One of these was, “issues with the third-floor bedroom not heating up sufficiently despite radiator being on full.”
The developer arranged a survey throughout November and December 2019 to investigate reports of low temperatures being experienced primarily on the top floor of the property.
The subsequent report concluded that the reasons for the failure of the upstairs bedroom to maintain a satisfactory temperature appeared to be the positioning of the thermostat within the hall and/or inadequate radiator size in the bedroom. It also said the upstairs bedroom was likely to have inherently higher heat losses than other rooms due to its location in the roof, and thus a greater requirement for heat.
The report stated that the thermal imaging survey had not provided any indications of heat losses which do not appear to be simply inherent to the design of the property. It had however, indicated some areas that could be investigated further if the revisions to the heating system suggested do not resolve the issues, or further evidence is forthcoming that the heating loads are higher than they should be. If further investigations were necessary, then it was recommended for an air pressure test to be conducted to confirm that the air tightness of the property conformed to design standards.
In July 2020, the resident’s association (of which the resident is part of) expressed concerns that the developer had no plans to do any monitoring after remedial works were completed to ensure they had the desired impact. Following this, the landlord informed the resident’s association that the developer had arranged for an independent consultant to monitor 4 properties within the development to be satisfied that the remedial works to resolve the temperature complaints were successful. The monitoring was to take place during a cooler season.
In March 2021, the resident offered for her property to be included in the monitoring exercise.
The resident’s property was monitored by an external consultant in March 2021. However, she was concerned that the data collected would not reflect the problem as the ambient temperature in March was higher than in January or February. The landlord acknowledged her concerns and said the developer checked with the consultant, and they were satisfied the data loggers would still record relevant and useful data to make an assessment.
In July 2021, the resident chased the landlord for an update regarding the outcome of the monitoring.
The report following the monitoring in March 2021 was issued on 15 October 2021. It explained while data was collected during the spring of 2021, further analysis was conducted on the data covering a two-week period from 1 April 2021. It stated that overall, the bedrooms seemed to be able to achieve 18°C when external conditions were freezing and potentially below -3°C. This Service has not been provided with evidence to explain why the report took so long to be issued. We have not seen anything to indicate the landlord regularly chased the developer for an update.
The landlord wrote to the resident on 24 November 2021. It said the report confirmed the properties that were monitored met the design criteria and the results indicated the homes reached the desired temperatures. It said that both the landlord and the developer considered matters resolved and it directed the resident to her warranty provider should she have further concerns.
The resident raised a complaint the same day. She said:
1. The report did not provide the data relevant to her home.
2. The report recommended undertaking enquiries as to whether the resident had the window open during the monitoring period or if she moved the monitors. She confirmed no such enquiries were made and that she did not have the window open or move the monitors. As such, she believed the variations in temperature required further investigation.
3. The monitoring was done in March 2021, when it was unseasonably warm and outdoor temperatures were not monitored simultaneously to the indoor temperatures.
4. She was not satisfied that the case had been concluded and wanted it to remain open as the issues remain.
5. She wanted a full copy of the report including the raw data obtained from her property.
6. She wanted full monitoring of every room (including thermal imaging) to be conducted in the depth of winter by a mutually agreed independent provider.
The landlord acknowledged the resident’s concerns the same day and informed her that the complaints team would respond.
The landlord issued its stage 1 response on 8 December 2021. It said:
1. It reviewed the historic notes relating to the matter in addition to the surveys completed.
2. The surveys completed at the resident’s property showed inconclusive results.
3. It cannot guarantee the cause of the results, but it remained confident there were no issues with the resident’s heating system.
4. If the resident felt she had further issues with the heating system, she should contact the warranty provider.
On 13 December 2021, the resident disagreed with the landlord’s stage 1 response. She said:
1. She asked to see the full survey report several times, however only received summaries of the findings.
2. The findings were inconclusive, and the landlord did not check with the resident whether she had opened the windows or moved the monitors.
3. Further investigation was required to establish the cause of the temperature variation.
4. She had recorded her own temperature readings and shared these within a graph. She believed the results showed inadequate insulation.
5. On 13 December 2021, she arranged for an air tightness test to be completed at the property. She said the test recorded an overall air tightness of 4.91 whereas the EPC stated it was below 3. The engineer identified multiple places where excess air was entering the property. She had not yet received the full report but would send this to the landlord as soon as it arrived.
6. To resolve the complaint, she wanted:
  1. Provision of the full report or a written explanation as to why this cannot be shared.
  2. Acknowledgement that the report was inconclusive and further investigations were required.
  3. Rectification of the issues identified by her independent air test and any additional issues identified by the further investigations required to fully understand and rectify the issues with the temperature in the top bedroom.
  4. Compensation recognising both the expense and time spent trying to resolve the outstanding issues.
Records demonstrate the landlord located one instance when the resident requested a copy of the report, but no records of multiple times. Internal records show the landlord said the resident is long outside of the defect liability period and so she needed to contact the warranty provider with any concerns and share her reports with them so they can investigate.
On 23 December 2021, the landlord issued its final response letter to the resident and provided a copy of the report. It said:
1. It was not going to escalate the complaint to stage 2 of its complaint procedure.
2. It urged the resident to contact the warranty provider and share the report she obtained with them if she felt there were outstanding issues.
3. This letter was its final response and the end of its formal complaint procedure. It provided referral rights to this Service.

Actions post-complaint process

On 31 January 2022, the developer contacted a third-party expert to discuss arranging a thermographic survey to the resident’s property. Two days later, the developer asked the landlord to contact the resident and obtain her consent for the survey to take place to satisfy whether the previous works were successful. The landlord recommended that she takes advice from the warranty provider as her independent arbitrator. No evidence has been provided to this Service to explain why the developer decided to arrange an additional survey.
On 23 February 2022, the landlord explained to the resident that the developer offered to conduct a non-invasive thermography survey to try and establish or discount whether there were structural flaws, material weaknesses or installation errors within the resident’s property and it was up to the resident whether she wanted this to take place. It also reiterated for the resident to use her warranty to seek advice and to share her reports with the warranty provider. It informed the resident that if she remained dissatisfied with the landlord’s response, she could escalate her complaint to stage 2 or contact the Housing Ombudsman Service if she remained unhappy with the landlord’s actions to date.
The Ombudsman has seen no evidence that the subsequent offer to escalate to stage 2 was taken up by the resident.

Assessment and findings

The Housing Ombudsman provides an informal dispute resolution service. Our approach is framed by three principles – be fair, put things right and learn from outcomes. It is not within the role or expertise of the Ombudsman to conduct independent technical assessments of suspected defects. In investigating this complaint, the Ombudsman has investigated the landlord’s handling of the issue and considered its obligations, policies, and best practice. This Service has not investigated the actions of the developer.

The landlord’s handling of the resident’s concerns regarding the temperature of the third bedroom within her new build property.

During the defect liability period, the Ombudsman expects a landlord to function as an intermediary; coordinating between the developer and the resident to ensure defects are investigated and remedied (if applicable) to a satisfactory standard within a reasonable timeframe. This includes passing reports of defects to the developer and providing regular updates to the resident. In this case, records indicate the defect liability period ended on 3 December 2019. However, as the alleged defect in question was initially reported before this date, the Ombudsman finds it was appropriate for the landlord to continue consulting with the resident and developer over this specific issue whilst investigations were ongoing.
The landlord’s records indicate that following the monitoring period in March 2021, there was no contact between the landlord and resident from 28 April 2021 to 24 November 2021. This Service finds it was unreasonable for the landlord to not update the resident for over six months. Its failure to communicate meant the resident was inconvenienced by having to contact it for updates and she was not sure what the next steps were. The communication failings exacerbated a stressful situation that had been ongoing since she moved into the property and therefore worsened the impact on the resident. In the Ombudsman’s opinion, it would have been appropriate for the landlord to manage the resident’s expectations with regular updates.
Records show the data loggers were collected on 29 April 2021, yet the report was not produced until October 2021. While this Service understands it was the developer who arranged for the report, we would expect the landlord to take reasonable steps to drive this forward to a resolution, such as actively chasing the developer for updates. The landlord has not shared full records of its communications with the developer. The Ombudsman finds that the landlord should have provided detailed records to evidence its actions, communications with all parties and decision making at this time. Without this information, this Service cannot conclude that the landlord acted fairly or reasonably. This is a record keeping failure.
From the information provided to this Service, the Ombudsman finds that the landlord failed to manage the expectations of the resident and failed to actively manage its relationship with the developer. The landlord’s complacency here delayed the outcome to the resident and caused her additional distress and inconvenience.
The landlord contacted the resident on 24 November 2021, concluding that following receipt of the consultant’s report, both the developer and the landlord found the rectification works undertaken previously to be a success. Ultimately, the landlord relied on the findings of the consultant appointed by the developer, who deemed that after completing a period of monitoring, the bedroom appeared to be able to achieve 18°C when external conditions were freezing and potentially below -3°C. A landlord is entitled to rely on the conclusions of qualified experts and at this time, the landlord had not been presented with any contradictory evidence to dispute the findings of the consultant. However, it is noted within the report that all properties surveyed experienced a temperature variation within the third bedroom and the reason for this was undetermined. This should have put the landlord on notice that the matter was unresolved.
The report said that from the data available it was impossible to determine the causes of the temperature variability, but factors may include the duration of the heating programme, individual radiator settings, the main thermostat set point, and when and for how long windows were left open. Within the resident’s complaint, she confirmed she did not open the windows or move the monitors. The landlord’s internal communications following this demonstrates that the landlord did not actively listen to the resident regarding this and instead focused on referring her to the warranty provider, rather than considering further investigations or discussions with the developer. This is a further failing on the landlord’s part.
The resident then provided her own temperature readings showing a variance and explained her own engineer had identified multiple places where there was excess air ingress into the property, and that the overall airtightness was higher than had previously been recorded. At this point, the Ombudsman finds the landlord acted unreasonably by refusing to listen to and investigate the resident’s points. The landlord’s inaction and lack of acknowledgement minimised the resident’s concerns and it failed to take them seriously. It did not recognise that the information provided by the resident supported the position that there was a variance in temperature that was unexplained. There was also a delay in sharing the report with the resident, further adding to the trouble and distress she experienced.
Overall, as the resident disagreed the matter was resolved, the Ombudsman concludes it was appropriate for the landlord to initially refer the resident to her warranty provider in its response dated 24 November 2021. One of the key functions of the warranty is to help resolve disputes between developers and owners, if the developer has not put right any defect reported to it. As such, this Service finds the landlord acted reasonably in its actions. However, following the resident’s email dated 13 December 2021, the landlord should have done more to engage with the resident and liaise with the developer to explore her concerns – particularly as the resident made it clear she had obtained further evidence to support her position that the root cause of the temperature variation was not identified. The landlord appeared ingrained in its stance to direct the resident to the warranty provider, rather than consider the new evidence the resident had obtained. The landlord’s actions here amount to service failure.

The landlord’s handling of the associated complaint

The landlord adhered to the Housing Ombudsman’s Complaint Handling Code (“the Code”) by issuing its stage 1 response within 10 days. This was also in line with its own complaint handling policy.
When addressing the complaint, this Service finds that it would have been appropriate for the landlord to explain what its obligations were under the terms of the lease regarding any potential defects and investigate whether it met these, in accordance with any relevant policies and procedures. The Ombudsman has not seen any evidence to indicate the landlord did this within its complaint investigation or stage one response. As such, we cannot determine that the landlord communicated clearly to the resident regarding this.
The landlord declined to escalate the complaint to stage 2. Section 4.13 of the Code that was in force at the time states, “where a landlord decides not to escalate a complaint, it should provide an explanation to the resident. It should make clear that its previous response was its final response to the complaint and provide information on referral to the Housing Ombudsman.” In this case, the landlord referred to the letter dated 23 December 2021, as its final response rather than its stage 1 letter. This is not in line with the Code. The Ombudsman recognises referral rights to this Service were provided. Therefore, the Ombudsman concludes the resident was aware of the escalation option available to her. Nonetheless, the landlord failed to actively listen to the resident or use the complaint process as an effective dispute resolution tool, contributing to the resident’s distress and frustration.
The Code says under section 4.11 that, “landlords should not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action.” The Ombudsman is not satisfied that the landlord clearly explained its reasons for its refusal to escalate the complaint to stage 2 and it did not reference its own complaint handling policy when doing so. By refusing to escalate the complaint, the landlord did not act in accordance with the dispute resolution principles. Offering only one complaint response meant that the resident was not given a fair opportunity to comment on or challenge the landlord’s position. The landlord’s decision therefore provided no scope for it to consider any potential oversights or new information that it may not have considered in its initial stage 1 response. This was a significant failure.
The landlord, in its communication with the resident, was unresponsive within its final response and at times, dismissive. The landlord did not treat the matter with an appropriate level of regard. Within the stage one and final response, the landlord did not demonstrate that it thoroughly investigated all the resident’s complaint points. While it mentioned the consultant’s report, it acknowledged the result was inconclusive and it did not explain why it relied on this. It would have been appropriate for the landlord to thoroughly investigate and respond to the individual points raised and consider the impact on the resident. In failing to do this, it failed to show it actively listened to the resident. Furthermore, the landlord provided no evidence to this Service to demonstrate how it investigated the resident’s complaint at the time or that it learnt from the resident’s experience during the scope of this complaint.
Overall, the failings in the landlord’s handling of the resident’s complaint meant that the complaints procedure was not used as an effective tool to resolve the dispute. The complaint handling failures identified above constitutes maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s concerns regarding the temperature of the third bedroom within her newly built property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Reasons

The landlord failed to communicate effectively with the resident or demonstrate that it actively listened to and investigated her concerns, particularly when the resident provided more information to support her position.
The landlord refused to escalate the complaint to stage 2 without giving a clear explanation to the resident or citing the relevant section in its own policy. This meant the resident was not given fair opportunity to dispute the landlord’s position or provide new information that it may not have considered initially.

Orders and recommendations

Orders

Within four weeks of the date of this report, the landlord is ordered to pay the resident £300 compensation. This is comprised of:
1. £150 for the distress and inconvenience caused because of the landlord’s communication failings from March 2021 to 23 December 2021, which exacerbated an already stressful situation and worsened the impact on the resident.
2. £150.00 for the complaint handling failures up to 23 December 2021.
The landlord is to provide evidence of compliance with the above orders to this Service.

Recommendations

It is recommended the landlord contacts the resident to discuss any issues that fall outside the scope of this complaint and to open a formal complaint to consider these if requested by the resident.
The Ombudsman acknowledges the landlord self-assessed against the Code in March 2022 and its complaint handling policy has been updated since it issued its final response on 23 December 2021. Nonetheless, it is recommended for the landlord to review its complaint handling procedures to ensure the failings identified within this report do not happen again.