23 December 2020
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 is about the landlord’s response to residents’ reports about:
a. The landlord’s response to the residents reports about the hot water system.
b. The residents request to repair the radiators at the property.
c. The landlord’s complaint handling.
Background and summary of events
- The resident has been a leaseholder at the property since early 2000, the landlord is a local authority. The resident is required to pay a service charge to the landlord for services including heating and hot water.
- The landlord operates a two-stage complaints policy, the policy requires that complainants are kept updated throughout the complaints process. If the resident makes a complaint at the first stage, the landlord would acknowledge within two working days and formally respond within 10 working days. If the resident is dissatisfied with the response, the resident can request a formal review of the decision and this would be acknowledged within two working days and a response provided within 25 working days.
- Section 4.2.3 of the lease agreement states that the landlord’s covenants with the tenant are as follows ’The sewer channels watercourses gas and pipes electric cables television aerials and wires and supply lines and all other conducting media in it and upon the block save and except where such items exclusively service the flat’.
- Section 4.2.3 of the lease agreement states that the landlord’s covenants with the tenant are as follows ‘The boilers and heating and hot water apparatus (if any) in the Block save and except such items (if any) as may now or hereafter installed in the Flat and not comprising part of the general heating system serving the block’.
- Section 4.4 of the lease agreement states that the landlord’s covenants with the tenant are as follows ‘provided only that the amenities hereinafter in this subclause mentioned are provided to all the Flats in the Block at the date hereof but not otherwise and subject as hereinafter set out at all times during the Term to supply hot water for domestic purposes to the Flat by means of the boiler and heating installations serving the Block and also from the 1st October to the 30th April inclusive each year to supply hot water for the heating to the radiators fixed in the Flat so as to maintain a reasonable normal temperature’.
- The landlord’s housing repairs service guide highlights that ‘We repair and maintain the appliances that we installed to provide these. We do an annual safety inspection of all gas heating and hot water installations and appliances. We are responsible for the water supply from the meter, which is normally outside your home, to appliances and fittings that use water inside your home’.
- The landlord’s housing repairs service guide highlights that emergency repairs are to be attended to within two hours and repaired within 3 working days. It states that a ‘total or partial loss of space or water heating between 1 November and 30 April’ is an emergency repair. The policy states that a ‘loss of space or water heating (between 1 May to 31 October) No heating, no hot water or both’ is an urgent repair and to be completed within 5 days.
- The landlord’s housing repairs service guide states that if the landlord does not arrange for these repairs to be done within the specified time limit, the resident had the right to ask the landlord to get a second contractor to do them. If the repairs are not done within the extra time allowed for the second contractor, the resident may be entitled to compensation. The rate was set at £10, plus £2 a day for every day that the repair was not finished, up to a maximum of £50.
Summary of events
- On 22 July 2019, the resident reported that there was an issue with the hot water overheating into the cold-water supply.
- On 26 July 2019, the landlord’s operative attended the residents’ property in order to inspect the hot water system. The engineer identified that a new cylinder jacket was needed for the hot water system. The resident stated that the operative said the system was ‘archaic’ and the whole system would need to be replaced. It was the resident’s understanding that the cylinder, the cold-water tank, the other relevant parts of the system all needed to be upgraded.
- The landlord’s repairs log demonstrated that the operative attempted to contact the resident in order to arrange an appointment to carry out the works, the engineer received no response from the resident and closed the repairs job on 6 August 2019.
- On 8 August 2019, the resident reported that there was still an issue with the cylinder overheating into the cold-water supply. An appointment was booked for 27 August 2019.
- On 27 August 2019, a different engineer attended the property and inspected the hot water system. The engineer ordered the required parts but did not order a cold-water storage tank.
- On 30 August 2019, an engineer attended the property and installed a new hot water cylinder and did partial re-piping work. The engineer returned the next day and completed the re-piping works to the shower pump.
- The resident contacted the landlord on 20 September 2019 and reported that there was no hot water at the property. The landlord sent out an engineer that identified a blockage issue due to a communal pump. The issue was fixed the same day.
- The resident contacted the landlord on 22 November 2019 to report that she had no hot water. An engineer attended the property the same day and advised that there was a blockage in the pipework feeding the hot tap. The blockage was cleared and water pressure restored.
- On 22 November 2019, a work order was raised at the property for the repair of a broken radiator in the lounge room. An appointment was booked for the 26 November 2019, and the repair was performed and completed on that day.
- On 14 December 2019, the resident reported no hot water at the property. An engineer attended the same day but was unable to restore the hot water. The repair log showed that the engineer damaged the resident’s toilet seat but advised that it would be back to fix the issue, this did not occur.
- The repairs log show that 15 December 2019 an engineer noted that the cold-water tank was the residents’ responsibility as a leaseholder.
- On 16 December 2019, the resident complained that the radiator in the living room was not working again. An engineer attended the next day and reported that ‘the pins were stuck on multiple radiators’. The engineer fixed the issue and left the heating working at the property.
- On 18 December 2019, the landlord wrote to the resident regarding the cold-water tank at the property. The landlord informed the resident that “your lease makes you responsible (see landlord’s covenants in your lease clause 4, page 22, sub clause 4.22 and 4.23) for the cold water tank which exclusively serves your property and is not part of the heating system”.
- On 18 December 2019, the resident made a formal stage one complaint to the landlord. The complaint contained the following:
a. On 30 August 2019, another engineer attended the property to preform the upgrade but was unable to finish that day and said it would return the next day and the resident would have no hot water until then. The next day the repair was complete, the resident however stated that the water was ‘running slowly and with no pressure’.
b. On 29 September 2019, a contractor attended the property to address the water pressure issue. The resident noted that the contractor was a carpenter and not an engineer and was unable to fix the issue, there was no follow up appointment made.
c. On 22 November 2019, the resident informed the landlord that there was no hot water at the property. The contractor attended the property and fixed the blockage through the use of a wet vacuum.
d. The engineer returned on 16 December 2019 to fix the issue with the hot water and said that he was not willing to try the method used on 22 November 2019 above to fix the problem.
- On 17th January 2020, the resident reported that she was not able to turn the bathroom and living room radiator on n. An engineer attended on 20th January 2020 and replaced the thermostatic radiator valves and left the radiator working.
- On 22 January 2020, the resident wrote to the landlord about the radiators at the property and stated that it should take prompt action to upgrade the heating system at the property.
- 28 January 2020, the landlord wrote to the resident and expressed that there would be a delay in providing its stage one response. The landlord stated that it would aim to provide the response by 6 February 2020. On 8 February 2020 the landlord sent the resident an email stating that it would provide a written response by 10 February 2020.
a. investigate the issues into the lack of supply of hot water;
b. provide the section of the lease that states it’s her responsibility to replace the hot water system including the water tank;
c. an explanation as to why was she only informed it was her responsibility to replace the cold-water tank on 22 November 2019;
d. a rebate for the time the resident did not have hot water;
e. a copy of the complaint procedure;
f. compensation for the inconvenience for the landlord’s failure to take reasonable care and skill;
g. a refund for the cost of a toilet seat.
- On 10 February 2020, the landlord issued the resident with its stage one formal response. The landlord acknowledged all of the appointments by its engineers above in regard to the hot water system and heating at the property. The landlord noted that it was only on 15 December 2019, that it realised that the repairs were the resident’s responsibility. The landlord addressed the following issues raised by the resident:
a. The engineer that attended the property on 14 December 2019, the landlord acknowledged that the engineer should have contacted the resident or the contractor’s office once it was advised that the person present could not wait at the property during the works. The landlord asked the contractors to ensure that its engineers try to ‘make contact with the resident should this type of scenario present itself in the future’
b. The landlord acknowledged that the engineer damaged the resident’s toilet seat and asked that the resident provide proof of purchase in order to refund the cost. The landlord apologised for the inconvenience of the issue.
c. The landlord acknowledged that someone from its service was going to inform the resident about what part of the lease indicated that the resident was responsible for the cold-water tank under the terms of the lease. The landlord highlighted that it was the cold-water tank that was causing blockages in the system.
d. The landlord apologised for the lack of hot water at the property and the length of time it took to carry out the works. The landlord asked that the resident provide dates for when the resident was without hot water and the landlord would review the charge.
e. The landlord also apologised that engineers who attended on the 22 November 2019 did not identify that the cold-water tank required replacing.
f. The landlord upheld the resident’s complaint for the following reasons:
- Length of time taken to replace the hot water cylinder at the property.
- Length of time taken to resolve the issue with the radiators at the property.
- Length of time taken to resolve the issue with the communal lighting.
- The engineer not reporting on the condition of the water tank on 22 November 2019.
- The engineer breaking the resident’s toilet seat on the 14th December 2019.
[The landlord did not offer any compensation for the above.]
- On 10 March 2019, the resident responded to the landlord’s stage one response and asked for a review. The resident outlined that she still had no running water at the property which was causing distress and inconvenience.
- The resident contacted the Leaseholder Advisory Service in order to get information about whose responsibility it was to repair the cold-water tank at the property. On 24 March 2020, the service provided a determination stating that it was the landlord’s responsibility to repair the cold-water tank at the property. The service also warned the resident that if she was seeking reimbursement for this cost of the repairs it may be difficult due to clause 3.1 in the lease agreement which excludes the residents’ right to offset and then counterclaim. The resident provided the landlord with a copy of the decision.
- On 29 March 2020, the resident sent a letter to the Housing Ombudsman outlining various issue she was having with her landlord. The resident raised the landlord’s inability to fix the issue with the hot water and radiators at the property and the landlord’s refusal to pay for the cold-water tank.
- On 6 April 2020, the landlord provided the resident with its formal stage two final response. The landlord addressed the following issues:
a. Repairs to the cold-water storage tank – The landlord’s operative attended the resident’s property and reported that it found the cold-water tank to be full of debris and scale which had blocked and restricted the cold feed. The landlord advised the resident that it was their responsibility under the terms of your lease to maintain and service the cold-water tank. The landlord did not respond to the report from the Leaseholder Advisory Service as they said it was provided by the resident after the report had been written.
b. The landlord’s complaint handling – the landlord acknowledged that there was some delay in providing its stage one response to the resident. However, the Case Management Officer investigating the matters required more time and advised accordingly by email that the response maybe delayed on 20 January 2020 and 28 January 2020.
c. In regard to the broken toilet seat the landlord partially upheld the resident’s complaint and requested proof of purchase.
- On 1 August 2020, the resident installed a new hot water system at the property for the cost of approximately £7000.
The landlord’s failure to repair the hot water system at the property.
- It is clear from the evidence that there was confusion regarding who was responsible for the repair/replacement of the cold-water storage tank at the property. Due to the evidence that has been provided it is not for this Service to make a legally binding decision on the interpretation of the lease about the responsibility to repair. The Ombudsman however will look at the landlord response to the residents complaints about the hot water system.
- It is acknowledged that there was a pattern of breakdowns to the hot water system at the property. When the resident first reported the issue on 22 July 2020, the landlord sent out an engineer to fix the problem on the 26 July 2019. This response time is acceptable under the landlord’s housing repairs service guide as it is within the required 5-day period for urgent repairs. The engineer was however unable to fix the issue and the resident was without hot water until the 31 August 2019. This represents an unreasonable 29-day delay in order to fix the problem. The landlord acknowledged the delay in its stage one response however it failed to offer the resident compensation for this.
- The landlord does not have a compensation policy however the landlord’s housing repairs service guide states that the resident is intitled to compensation for delay in repairs.It is not clear from the documentation provided if there was more than one engineer sent out to perform the works in order for the resident to qualify for the compensation. Regardless, it is established that there is a failure and compensation should be calculated at the specified rate of £10, plus £2 a day for every day that the repair is not finished, up to a maximum of £50. It is inappropriate in this situation for the landlord to set a cap on the amount of compensation as it does not allow it to take into consideration all the relevant factors. The appropriate compensation for this delay would be £2 x 29 days = £58 + £10 = £68.
- The resident has said that she was also without hot water for a period from 14 December to 1 August 2020. It is unclear from the documentation provided if there was a full loss of water at the property during this time. There is evidence that suggests the issues were ongoing up until 31 April 2020 but limited detail after that. The landlord notified the resident that she was responsible for the replacement of cold-water storage tank on 18 December 2019. It is accepted that the landlord’s engineers failed to identify the issue with the water tank back from July 2019.
- The landlord apologised for the mistake in its stage one response however failed to take action to make the problem right. It would have been reasonable in the circumstances for the landlord to take alternative measures inline with its repairs policy such as treating the issue as a rechargeable repair. This would have ensured that the works were performed and then the landlord could have sought reimbursement from the resident rather than leave the property with no hot water for a period of time. This failure caused the resident distress and inconvenience for which additional compensated is required to put right.
- Due to the circumstances it makes it difficult to calculate compensation in this situation as the landlord was of the opinion that it was the resident responsibility to fix the cold-water tank. However, it was not appropriate for the landlord to leave the resident in a situation without any hot water considering its obligation under Section 4.2.2 of the lease agreement to maintain running water to the property. It should have taken proactive steps to investigate restoring the supply even if it did not agree with replacing the cold-water tank. There is no evidence that this happened.
- Accordingly some level of redress for the distress and inconvenience caused is appropriate in this case. Looking at similar circumstances and length of time in other cases without hot water the amount of £300 would be adequate for the residents’ distress and inconvenience. This amount represents £40 per month times the 7.5 months (£40 x 7.5 =£300). The landlord also offered to review the service charge for the dates in which the resident was without hot water which is appropriate in this situation.
- The resident raised that she paid approximately £7000 for a new heating system at the property in order to fix the ongoing issues. The evidence suggests that this has been done without the consultation of the landlord. The Ombudsman is not able to make a legally binding decision about repairing obligations. If the resident wishes to seek costs, this would be a decision for the courts. If the resident was seeking reimbursement for this cost it may be difficult due to clause 3.1 in the lease agreement which excludes the residents’ right to offset and then counterclaim. This means effectively that the resident cannot carry out the repairs and then seek to recover the cost from the landlord by way of deduction or offset against sums due to the landlord
The residents’ request to repair the radiators at the property.
- The evidence suggests that there was intermittent issues with the radiators at the property. It is not disputed that the landlord had an obligation under Section 4.2.3 of the lease agreement to repair and maintain the radiators at the property. This Service was provided with a list of visits made by the engineer to the resident’s property in response to her reports that the radiators were not working. The first issue was raised on 22 November 2019, an engineer attended the property and fixed the issue on 26 November 2019. This was in line with the landlord’s housing repairs service guide of five days for an urgent repair. The resident reported another issue with the living room radiator on the 16 December 2019. The landlord’s engineer attended the property the next day and promptly fixed the issue in line with its urgent repairs timeline. The resident reported an issue with the radiator nob on 17 January 2020, the landlord attended on 20 January 2020 and fixed the issue in line with its policies.
- The dispute between the parties in this situation is whether or not the radiators should be repaired or replaced. The resident had argued that the radiators were old and need upgrading. In this case it is the Ombudsman’s role to assess whether the landlord had properly responded to the substantive issue in line with its obligations under the lease agreement and relevant policies and procedures.
- It is appreciated that the resident believed that the heating system was not working properly and was frustrated by the landlord’s position. However, the landlord was entitled to rely on the professional opinion of its suitably qualified staff in confirming its position on any investigation into the radiators. Therefore, it was reasonable in the absence of any evidence to the contrary, that the landlord had complied with its obligation to repair under the lease agreement and its housing repairs service guide.
The landlord’s complaint handling.
- The landlord operates a two stage complaints policy; If the resident makes a complaint at the first stage, the landlord should acknowledge within two working days and formally respond within 10 working days. If the resident is dissatisfied with the response at the first stage, they can request a formal review of their complaint. The documentation provided shows the initial formal complaint from the resident was made on 18 December 2019. The landlord provided a formal response on the 10 February 2020 this represents a 30-working day delay in providing the response to the resident. The landlord did send a holding letter to the resident, but this was already two weeks after the due date of the response, the landlord then missed the new deadline it set by 4 days. The landlord’s complaint handling at stage one of the complaints process was not in line with its complaints procedure.
- The resident was unhappy with the decision and asked for a formal review on the 10 March 2020. The landlord provided its formal stage two response on the 6 April 2020, within the 25-working day period required. At this stage of the complaints process it would appear that the landlord had fully complied with its complaints policy.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the complaint about the landlord’s response to the resident’s reports about the hot water system at the property.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of the complaint about the landlord’s response to the residents’ request to repair the radiators at the property.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the complaint about the landlord’s complaint handling.
- The landlord should have taken a more pro-active approach in investigating restoring water at the property regardless of the disputed repairing responsibility. There were also delays by the landlord’s engineers attending the property and addressing the issues regarding the boiler. It is accepted that the resident was without water at the property for an extended period of time and should be compensated for this failure. The Ombudsman is not in a position to give a binding decision regarding the cost of the boiler as this is a decision for the courts to decide if the resident chooses to pursue the amount.
- The landlord complied with its obligations under the lease agreement and relevant policies and procedures to repair the radiators at the property. There was no failure on the landlord’s behalf and its decision not to install new radiators was in line with its relevant policies and procedures.
- The complaint handling by the landlord was not in line with its internal policies at stage one of the complaints procedure. There was a significant 30 working day delay in providing the resident with the stage one response. There were no issues with the complaints handling at stage 2 of the complaints process.
Orders and recommendations
- The Ombudsman orders the landlord to pay compensation of £418 comprising:
- £68 in respect of the delay in repairs to the hot water system at the property.
- £300 in respect to the landlord’s inaction in restoring water at the property.
- £50 in respect of the distress and inconvenience experienced by the resident as a result of the highlighted complaint handling delays and errors.
- The landlord is asked to make this payment to the resident within 4 weeks and to update this service when payment has been made.
- The resident to provide the landlord a copy of the proof of purchase for the new toilet seat for reimbursement.
- The resident to provide the landlord a list of dates when she was without hot water for the landlord to review the service charge during that period.
- The landlord to establish a system of record keeping that ensures that all contact from a resident (and any representatives) is recorded and retained.
- The landlord should review its complaints policy – earlier this year, the Ombudsman published a Complaint Handling Code which provides a framework for high-quality complaint handling and greater consistency across landlord’s complaint procedures. This applies to all members of the Housing Ombudsman Scheme. It will enable landlords to resolve complaints raised by their residents quickly and to use the learning from complaints to drive service improvements. It sets out good practice for the sector that will allow landlords to respond to complaints effectively and fairly. The Code will help residents in knowing what to expect from their landlord when they make a complaint and how to progress their complaint. Non-compliance with the Code could result in the Ombudsman issuing complaint handling failure orders. The Code can be found here: https://www.housing-ombudsman.org.uk/wpcontent/uploads/2020/07/ComplaintHandling-Code.pdf