Housing Solutions (202120691)

REPORT

COMPLAINT 202120691

Housing Solutions

29 February 2024

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 repairs to a defective heating and hot water system.
The Service has also considered the landlord’s complaint handling.

Background

The resident was an assured tenant. The tenancy commenced in 2009 and ended in December 2022. The resident lived at the property with a dependent child. Although the resident communicated with the landlord by email, English was not his first language. The landlord’s records indicated that the resident had a terminal illness, as well as mental and physical disabilities.
The resident made a stage 1 complaint on 9 February 2022, about several matters. In regard to this investigation, the resident complained that the property had been without economy 7 electric for 14 years. The resident had no hot water from the boiler unless he used the immersion boost. To resolve the complaint, the resident wanted compensation and a refund on a solar photovoltaic installation he had fitted. He had installed this because his electricity costs were high.
On 22 February 2022, the Ombudsman asked the landlord to respond to the resident’s complaint about a faulty boiler. The landlord provided an interim stage 1 complaint response on 4 March 2022, followed by a final stage 1 response on 29 March 2022. The landlord did not uphold the resident’s complaint. In summary, the landlord:
1. Noted that it had attended the property in January 2021, to tighten some loose connections on the economy 7 immersion. However, there had been no issue with hot water prior to February 2021.
2. Said it noted there were no storage heaters in the property during an electrical safety check in October 2021. The landlord found the bottom immersion heater disconnected. The resident asked the landlord not to reconnect this, because he was concerned about running costs.
3. Understood that the resident had installed his own solar panels in the garden and a separate boiler to heat water. The solar panels were the responsibility of the resident to maintain.
4. Said that the resident reported in February 2022, having no heating or off-peak water heating. On inspection, it identified the economy 7 hot water was not working because the electricity supply had been disconnected. Follow-on repairs were scheduled for 22 March 2022. During the appointment, the landlord found:
  1. The property had separate circuits for day-rate and cheaper off-peak electricity. The hot-water cylinder had been fitted with a day-rate immersion heater, which had been tested. The resident asked for this to be switched off.
  2. The off-peak circuits had been installed to run storage heaters and an off-peak immersion heater in the lower half of the hot-water cylinder. Neither of these were present at the time of the inspection, and it was unable to establish if they were present at the start of the tenancy.
  3. The resident had installed his own hot water system. This consisted of photo-voltaic panels that charged batteries, which in turn heated a hot water container.
5. Said it had offered to install storage heaters and an off-peak immersion heater, but the resident had declined. The resident had indicated he was happy with the existing arrangements. However, it was still willing to complete this work if the resident changed his mind. The landlord explained that modern storage heaters used less electricity than old-style heaters.
6. Offered to transcribe its interim stage 1 response into the resident’s first language if requested. However, it did not offer to transcribe its stage 1 final response.
The resident told the landlord on 31 March 2022, that he disagreed with the landlord’s findings. The landlord responded to the resident on 22 June 2022. It said it believed it let the property with storage heaters. It could not explain why these were no longer present. It had no record of the resident raising issues about heating. It had offered improvements to the heating that the resident declined. The landlord said it wanted to make improvements to the energy efficiency of the property, but it needed the resident’s co-operation to do this.
The resident was evicted from the property on 2 December 2022 for rent arrears.
On 17 March 2023, the Service asked the landlord to escalate the complaint to stage 3. A stage 3 complaint panel meeting was held on 13 April 2023, which the resident attended. The landlord provided an interpreter. Notes from this meeting were emailed to the resident on 24 April 2023. The Service has not been provided with a copy of the meeting notes.
The landlord provided its stage 3 complaint response on 9 May 2023. The landlord partially upheld the resident’s complaint about the boiler. It offered £750 in compensation, in recognition of failures with its service and communications. The landlord:
1. Said following the panel meeting, its panel instructed an independent electrical specialist to inspect the property. The panel also viewed the landlord’s repair and communication records, covering the period of the resident’s occupation. Its independent specialist reported:
  1. All storage heaters and the economy 7 meter had been removed. The off-peak supply had been disconnected from the off-peak consumer unit. There were no issues with the installation of the off-peak heating system. The resident had been heating the property with downflow heaters and one panel heater.
  2. The property would have had good access to off-peak hot water if the off-peak electricity had been connected. However, the resident had been heating his water via the immersion boost tank, in addition to the solar panels. The off-peak economy 7 system was designed to heat the water tank in the evening, when the electric was on a cheaper tariff. The emergency booster supply was there to provide more hot water if needed, on top of the main tank. Both tanks were connected normally. The system was designed so the main tank supplied most of the hot water on an off-peak tariff, to save money.
2. The resident did not have the intended supply of heating and hot water to the property because the storage heaters had been removed and the off-peak supply had been disconnected.
3. Repeated the outcomes following its inspection on 22 March 2022. It said that the team were trying to support the resident in understanding his options and helping him move to a cheaper system. It was satisfied that it responded to repair requests and callouts appropriately.
4. Said that although not ideal in terms of the supply and cost, compliant heating and hot water arrangements were in place. Its staff were of the understanding that the resident wanted to continue using the emergency hot water booster tank, and the panel and downflow heaters.
5. Said the resident had been impolite towards staff, had sworn and had used aggressive language. In its view, the resident’s interactions with its staff members made it harder for it to support the resident and resolve the issues.
6. Said it recognised that it had provided technical information within its communications which the resident may not have understood. While translation services had been offered, it felt translation should have been made available for verbal communications and in important emails and letters.
7. Made several recommendations, which reflected what the landlord should have done. In this regard, it accepted that it should have continued to work with the resident to:
  1. explain the costs involved when using the heating system the way it was intended, as opposed to how it was being used
  2. understand why the resident didn’t want to have the heating and hot water connected to the off-peak system and tariff
  3. install a more cost-efficient heating and hot water system to resolve the issues reported
  4. ensure there was clear communication with the resident.
The resident has since told the Service that there were no storage heaters in the property when he moved into the property. The landlord did not resolve the issues with his heating and hot water. His electricity bill continued to be high. To resolve the complaint the resident wanted the landlord to pay compensation.

Assessment and findings

Scope of the investigation

To coincide with the scope of the landlord’s own investigation into the complaint, this investigation considers the landlord’s handling of repairs to a defective heating and hot water system between October 2021 and May 2023. The Service has also referenced events outside of this period, where relevant to the resolution of the substantive complaint.

Relevant policies, procedures, legislation, and guidance

The landlord had a contractual and statutory obligation to keep in repair and working order, the installations for the supply of electricity, space heating, and the heating of hot water. This was in accordance with its tenancy agreement and under section 11 Landlord and Tenant Act 1985.
The landlord was required to do repairs within a reasonable period. The landlord’s repairs and maintenance policy states that its maintenance engineers will endeavour to complete repairs in 1 visit. Where this is not possible a second appointment will be arranged at a date and time convenient to the resident.
The landlord’s planned maintenance investment policy states that:
1. Residents have the right to request permission to make improvements to their homes, in writing. The landlord will not unreasonably withhold permission, but no works should be started until permission has been granted. (This is also referenced as a contractual obligation of the resident in the tenancy agreement).
2. It will carry out stock condition surveys to all of its properties on a 3 yearly rolling programme.
3. Its approach to planned maintenance will be guided by the need to meet the decent homes standard, as a minimum requirement. To this aim, the landlord will assess all its properties. Of specific relevance to the substantive complaint, the policy indicates that the landlord will consider:
  1. whether the property has effective insulation and efficient heating
  2. the age and condition of key components such as boilers and storage heaters
  3. whether there are any potential hazards to a resident’s health and safety, for example through excess cold.
An energy performance certificate (EPC) provides an energy efficiency rating for a property. EPCs are carried out by qualified persons, using a site visit and property survey. An assessor uses a standard assessment procedure (SAP) to compare the energy and environmental performance of a property. The former department of communities and local government (DCLG) produced guidance in 2006, called ‘A Decent Home: Definition and guidance for implementation’. The guidance suggests that a SAP rating of less than 35 could indicate a category 1 excess cold hazard, under the housing health and safety rating system (HHSRS).
Under the Homes (Fitness for Human Habitation) Act 2018, landlords must ensure that a home is fit for human habitation. This means that properties must be safe, healthy, and free from hazards that could cause serious harm. If a property cannot be adequately heated it is not safe and healthy. To ensure a property can be adequately heated, a landlord must supply heating in proper working order and ensure that the property is insulated.

The landlord’s handling of repairs to a defective heating and hot water system.

1. The resident stated that there were no storage heaters in the property when he moved in, and he had to buy heaters to heat the property. In addition, the resident said that the economy 7 meter had not worked for 14 years. The landlord has provided the Service with a weblink to a published energy EPC for the property, which predated the tenancy by 4 months. The 2009 EPC stated that the property was heated by storage heaters and there was no secondary source of heating, such as room heaters. Water was heated by an off-peak electric immersion. The property had a SAP rating of 31.
2. The Service has seen no evidence that the landlord instructed removal of the storage heaters. However, a new EPC in June 2019, noted that the property was heated by electric room heaters and an off-peak electric immersion. There was no secondary source of heating recorded. The property had a SAP rating of 34. It is noted that the resident told the landlord in February 2012, that he was thinking of changing the heating as the existing heating was expensive to run. In accordance with its planned maintenance investment policy, the landlord told the resident to write in for permission. The landlord said that it might not grant permission for such alterations. There is no evidence that the resident sought written permission to change or modify the space and hot water heating arrangements in the property.
3. It has not been possible to determine based on fact whether there were storage heaters in the property at the time the property was let, which suggests an issue with the landlord’s record keeping. Nonetheless, the landlord had the opportunity to assess the adequacy of the space and water heating serving the property several times over the course of the tenancy, at its 3-yearly stock condition survey. The Service asked to see copies of the landlord’s completed stock condition surveys for the property. However, it was only able to provide the most recent survey completed in 2023, since previous surveys had been digitally overwritten. There is evidence that the landlord telephoned the resident in March 2021, to discuss upgrading the heating system, which the resident refused. The landlord has shown learning by committing to making changes to its processes, so it retains data from previous stock condition surveys.
4. In view of the DCLG guidance, it was probable that a property with a SAP rating of 34 was unlikely to deliver an adequate level of thermal comfort. Excess cold hazards can cause fuel poverty and contribute to death and ill health associated with excess cold. It is the opinion of the Service that the resident and his daughter may have been at elevated risk from excess cold, in view of the resident’s vulnerabilities and his daughter’s age. The landlord had a duty to keep the property free from category 1 hazards and keep its stock in good order for future use. The Service would have expected the landlord to have made reasonable efforts to understand why the resident did not want to accept the heating upgrade. The landlord should have considered arranging a follow-up meeting with the resident to discuss his reservations and should have endeavoured to resolve his concerns. It would have been prudent for the landlord to have taken legal advice before accepting the resident’s position.
5. In October 2021, the landlord completed its 5 yearly electrical condition inspection of the property. During its inspection, its electrical engineer noticed that the storage heating had been disconnected and had been removed from the property. Furthermore, the resident had installed a 12v solar panel system to heat his water and provide lighting. During follow-on works on 27 October 2022, the resident told the landlord’s engineer not to reconnect the bottom immersion heater, as this was too expensive to run. There is no evidence that the landlord acted on its engineer’s observations. The landlord should have considered granting or refusing permission retrospectively for alterations made without its consent. Moreover, this was a missed opportunity for the landlord to revisit the adequacy of the space and water heating in the property.
6. Had the landlord proactively reviewed its repairs records, it would have noted that there had been historical issues with hot water and the immersion. Of note, in 2015, its electrical engineer had reported that the resident was running the immersions off plugs and was switching between both. In March 2019, there was a works order to renew the off-peak bottom entry immersion heater, however it is unclear from the evidence if this work was completed. In 2020, the landlord attempted to book an appointment to service the boiler, however the resident refused access as he was shielding during the covid-19 pandemic. He told the landlord that he was liaising with his energy provider, as the landlord had not checked his property, and he was only using “the emergency button”. It is unclear from the evidence seen if the landlord returned to service the boiler.

The landlord missed a further opportunity to investigate and support the resident in December 2021, after the resident expressed concern about large electricity bills. Landlords have a role to play in supporting residents and making them aware of where to go for help if they are struggling to pay bills or want advice. It is noted that the landlord has a webpage, which provides helpful advice in this regard. It is unclear if this webpage was operational at the time of the complaint. However, the landlord could have signposted the resident to other agencies, such as citizens advice or directed him to the energy provider. The Service has seen no evidence that this happened, which was inappropriate.
After receiving a complaint on 9 February 2022, the landlord was expected to investigate and where appropriate, work with the resident to put things right. The resident complained that the economy 7 [meter] had not worked for 14 years, and the boiler only worked when using the immersion emergency boost. The landlord acted promptly by arranging a works order to inspect and remedy the problem. It was unfortunate that the inspection had to be rearranged, after the resident became unwell. When the property was later inspected on 23 February 2022, its engineer identified that the electricity supply had been disconnected from the economy 7. As the matter could not be resolved in 1 visit, the landlord arranged follow-on works for 22 March 2022. This was appropriate and was in line with its repairs policy.
The evidence shows that the landlord carried out a thorough property inspection on 22 March 2022. It found that there was a healthy supply of electricity to the top immersion heater when energised. The resident did not want this switched on as he was happy using a solar powered hot water tank, which he had installed. However, it noted that there was no off-peak (economy 7) electricity supply available to the property and the off-peak circuit was “redundant”. The off-peak supply would have powered the storage heaters and the bottom immersion element. While it assessed the property for new storage heating, the resident said that he did not want the landlord to install any type of central heating. The resident dismissed the landlord’s suggestion to meet again to discuss his options. The resident’s response was unhelpful and made resolution of the substantive issue more challenging.
The findings from its inspection were fully explained in the landlord’s stage 1 response on 29 March 2022. The landlord said that it would fit modern storage heaters and an off-peak hot water system if the resident permitted it to do so. While this showed willingness by the landlord to resolve the resident’s complaint, this left the decision entirely with the resident. It was reasonably foreseeable from the resident’s previous response that he was unlikely to change his mind, even after the landlord briefly explained some of the benefits that a heating upgrade might bring. Consequently, no follow-on works were ordered, and the matter remained unresolved. It was unfortunate that the landlord incorrectly told the resident that a new meter would need to be fitted which was capable of supplying an economy 7 tariff. This caused frustration to the resident, as well as increased time and trouble liaising with his energy provider.
Ultimately, the landlord had an obligation to provide a property that was fit for human habitation throughout the tenancy. While the landlord stated that the heating was compliant, the landlord did not explain its rationale for this. It is appreciated that the resident was not keen to meet the landlord to discuss options. However, when providing its stage 1 response, the landlord should have recommunicated its offer to meet the resident. Better still, it could have offered to provide a translator to promote better understanding between the parties. In line with its vulnerable customers policy, it might also have considered raising a request with its tenancy support team, to provide additional support. These actions would have demonstrated an open and continued commitment to working with the resident to find a resolution. It was inappropriate that the landlord did not satisfy itself that that the resident understood the implications of not proceeding with proposed works.
The evidence shows that the resident continued to protest that the landlord had not fixed the problem. In response, the landlord reoffered heating upgrades and reinstatement of the off-peak immersion. Each time the landlord placed the onus on the resident to get in touch if he was willing to accept. Landlords should avoid taking actions that solely place the onus on the resident. The landlord’s approach was inflexible and ineffectual.
In its stage 2 response on 1 November 2022, the landlord provided technical information about proposed works and set out expected timeframes for completing the work if the resident was willing to accept. This was an attempt by the landlord to move matters on. However, in view of the language barriers, it was unlikely that the resident would have understood the information provided without translation, which it did not offer. This was inappropriate.
It is recognised that this was a challenging case for all concerned. The resident’s own behaviour was unhelpful and made the substantive issue more difficult to resolve. But overall, there was a lack of creativity by the landlord in finding a resolution. There was an absence of positive action to ensure there was fully functional and adequate space and water heating. The resident was so concerned about the cost of electricity, that he resorted to heating his water by solar panels and refused to allow the landlord to bring his existing heating system back into working order. There is little evidence that the landlord recognised the potential implications of this, nor of it considering the welfare needs of the resident or his dependent daughter. The resident continued to express concern about the affordability of utilities and accrued a large debt, while the substantive issue remained unresolved. The resident was later evicted due to rent arrears.
Failings identified in this report had an adverse impact on the resident, in regard to distress and inconvenience. On balance, the Service finds maladministration in the landlord’s handling of repairs to a defective heating and hot water system.

The landlord’s complaint handling

The landlord has a 3 stage complaint policy and procedure. Although the Service favours a 2 stage complaint process, it is noted that the landlord consulted with its residents in 2020, who supported the retention of a 3 stage complaint process.
The landlord has a separate compensation policy, which states that it will consider paying compensation where practical actions alone are insufficient to restore a resident to their position prior to a service failure.
When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. The 3 principles are: to be fair, put things right and learn from outcomes.
The landlord offered to translate its stage 1 response on request and provided an interpreter for the stage 3 complaint panel meeting, which was appropriate. However, it was unfair to the resident that the landlord did not consistently apply this, by offering to translate its stage 2 and stage 3 responses.
The landlord showed that it was giving the resident’s complaint the attention it deserved by carrying out a thorough investigation of the substantive issue at stage 3 and reviewing its communications. It also arranged for an independent electrical contractor to inspect the property and inform the panel of its findings. This was good practice and showed good complaint handling.
The landlord acknowledged that it should have explained the heating and hot water arrangements that were in place at the property. It recognised that it should have helped the resident to understand the electricity costs that he was incurring. It appreciated that it should have tried to understand why the resident did not want to have the heating and hot water connected to the off-peak system and tariff. It said that it should have explained the tariffs that were available. It also recognised there were failings in its communications. This shows that the landlord was taking accountability for the failings it had identified. This was appropriate.
As the resident had been evicted, it was unable to place the resident back in the position he was in before the failings occurred. To try to put things right and in line with its compensation policy, the landlord offered £750 compensation. The level of compensation offered was in line with the Ombudsman’s remedies guidance. However, there was a lack of evidence that the landlord had learned from its failings, or that sufficient change would be implemented to prevent a reoccurrence. While the landlord made its own recommendations, these highlighted what the landlord should have done, rather than how it would apply any learnings into its operations.
When considered cumulatively, the Service finds service failure in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of repairs to a defective heating and hot water system.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Orders

Within 4 weeks of the date of this report, the landlord must write to the resident to apologise for the failings identified in this report.
Within 4 weeks of the date of this report, the landlord must pay compensation of £850 directly to the resident. This is reduced to £100 if the landlord has already paid the compensation, it previously offered. This compensation has been determined in line with the Ombudsman’s remedies guidance and is broken down as follows:
1. £750 in compensation, in recognition of the distress and inconvenience caused to the resident by the landlord’s handling of repairs to a defective heating and hot water system.
2. £100 compensation, in recognition of the resident’s distress, time and trouble, caused by failures in complaint handling.
The landlord must provide evidence to the Service that it has complied with the above orders, within 4 weeks of the date of this decision.
Within 6 weeks of the date of this report, the landlord must arrange for an appropriate manager to initiate and complete a review of the issues identified in this case and identify learnings. Where learnings are identified, the landlord should commit to bringing improvements into its operations within 3 months of the date of its review. As a minimum, the landlord must consider:
1. Its procedures for documenting and retaining information on the condition of a property and its building components, at the time of a new letting.
2. Enhancements required to its planned maintenance investment policy to address the issues surfaced in this case. In particular, the landlord should define the steps that it will take when a resident refuses proposed improvement works, so this is clear to staff and residents.
3. The benefits of adopting a mediated approaching complex cases such as this, using a third-party mediator and translation services, where English is not the resident’s first language.
The landlord must provide evidence to the Service that it has complied with the above orders, within 6 weeks of the date of this decision.

Recommendations

The landlord may wish to consider the adequacy of information given to a resident at the start of a tenancy in connection with space and water heating. If the landlord does do so not already, it should consider providing:
1. clear information about how to operate heating and hot water systems, set thermostats, and use systems efficiently
2. information on how residents can minimise unnecessary heating costs and how to access relevant support as and when required.
The landlord should confirm its intentions in relation to this recommendation within 6 weeks of the date of this decision.