Kingston upon Thames Council (202016168)

REPORT

COMPLAINT 202016168

Kingston upon Thames Council

11 November 2021

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:
1. The landlord’s response to the resident’s reports in relation to his water cylinder and other repairs and the resident’s request for compensation.
2. The landlord’s complaint handling (including the resident’s report of a breach of his confidentiality by the landlord).

Background and summary of events

The resident occupied a 1-bedroom ground floor bungalow. He had impaired mobility and a number of physical health conditions. During the course of correspondence with the landlord set out in this report, the resident stated that he had a learning disability.
The resident’s complaint referred to this service focused on the resident’s report that his energy bills had increased due to having to heat the water for an hour rather than half an hour and that the landlord had forwarded private and confidential information between the landlord’s departments. The resident wanted his repairs to be carried out properly and sought compensation for increased bills.

The legal and policy framework

Under the tenancy agreement the landlord was responsible for repairing the structure and exterior of the property and also for keeping in repair and proper working order the installations that supply water… gas and electricity and sanitation (baths, sinks and toilets) as well as keeping in repair and proper working order installations for space heating and heating water.
The resident had an obligation to give access to the landlord and its contractors in order to view and inspect the property and/or to carry out repairs. The requirement of access was limited to reasonable times of the day, and if the landlord had given 24-hours’ notice in writing stating the reasons for which access was required.
The repair policy stated that routine repairs would be carried out within one to 20 working days. Its contractors represented the landlord and were therefore expected to observe the same standards of conduct as its staff. It would resolve any complaint in relation to a contractor.
The landlord’s complaint policy provided a diagram of its procedure as well as setting the procedure out in detail. On receipt of the complaint the landlord was to identify whether the resident’s communication was indeed a complaint. It would seek to resolve the issue at the first point of contact and, if not, respond in five working days. If the response did not resolve matters, the complaint would progress to stage one. It would then be allocated to the head of the relevant service and it would complete an investigation within 15 working days. It may agree an extension, giving a reason for an extension. The reasons had to be “clear and justifiable”. If the customer did not agree to an extension but it was unavoidable and reasonable, then senior management within the service area would consider and confirm the extension. If the resident was not satisfied with the response, the complaint would be escalated to the second stage. The customer care manager would decide whether to accept the escalation. If it was not accepted, it would close the complaint and refer the resident to the Housing Ombudsman.
The compensation policy stated that it would pay compensation, at the landlord’s discretion, where it found that a service had seriously or consistently failed, including where a member of staff had not communicated appropriately or within an acceptable timescale. It would consider the resident’s time and trouble or inconvenience. It would follow the Housing Ombudsman’s guidance for remedies, which guidance was attached.

Chronology

On 9 October 2020, according to the landlord’s repair history, the resident reported that his hot water kept going cold as the boiler was not working properly. On 14 October 2020, the landlord noted on its repair records that the resident only left his hot water on for 30 minutes and needed to leave it to run for longer. The resident made a further report on 23 October 2020 stating that he needed a new water cylinder for his hot water as it kept getting cold. According to the repairs history, the landlord or its contractor was unable to contact the resident so the contractor “cold-called” on 26 October 2020. On 30 October 2020, the resident again wrote to the landlord stating that he had outstanding repairs in relation to the water cylinder not keeping water hot and the kitchen radiator not working properly. He reported that this was incurring him additional costs, and he requested compensation.
The resident wrote on 4 November 2020 to say the landlord’s contractors were unreliable and he felt there was a lack of communication between the landlord and contractors. He reported that the contractor attended on 26 October 2020 without having given notification. On 29 October 2020, the contractor did not attend an appointment at all. He further reported that the contractor attended on 30 October 2020 and carried out a second inspection of the water cylinder. He reported that the contractor stated that the insulation had “blown” and this was the cause of the water not keeping hot. He reported he had serious health issues and this was having an effect on his mental wellbeing. He also added that there was evidence of damp or condensation leaking through the shower wall into the front room. He wanted compensation for the damaged decoration.
On 11 November 2020, the landlord wrote to the resident to explain that an engineer had attended on 3 November 2020 and reported that the cylinder was in working order. It advised the resident that in order to maintain constant hot water, either the electrical immersion heater or the boiler had to remain switched on. The water in the cylinder would cool down overnight and would not heat up again until the heating circuit was in operation. It advised that the cheapest method would be to keep the boiler on hot water mode only.
The resident replied on the same day to say he had a learning disability and was in poor health and therefore did not want to communicate with several different people. He also wished to communicate by email and not by the telephone. He said the contractor did not attend on 3 November 2020 but on 30 October 2020. The contractor did not look at the radiator.
On the same day, the landlord arranged for an engineer to attend on 13 November 2020, in order to fit a cylinder jacket to the water storage tank, and also to “revisit” the issue with the radiator. The landlord requested confirmation from the resident that the appointment was acceptable or to provide an alternative date.
The resident response was to raise a number of queries, including asking why the repair had taken so long and stating that the contractor who attended had said that a new water cylinder would be required. He stated the landlord had made “false claim and comments“ in its email of 10 November 2020. He repeated his requests for compensation. He also asked what the landlord’s data protection practices were.
The landlord replied stating that no recommendation had been made to replace the cylinder. In relation to compensation, the resident had a fully-working heating system. It was unable to comment on the report of damp. The writer was unable to comment on data protection practices. It asked for confirmation that it could attend to fit the cylinder jacket on the date specified or propose a different date.
Finally, on the same day, the resident reported that a contractor was due to attend for an electrical check that day. He wanted replies to his various questions before moving forward.
On 12 November 2020, the landlord requested a reply by midday in relation to the appointment the following day.
On the same day, the resident stated that 13 November 2020 was not convenient. He repeated his previous requests for compensation as well as his assertions about the landlord making “fabrications” and unnecessary multiple visits.
On 13 November 2020, the landlord requested an alternative date for access from the resident.
The resident replied on 13 November 2020 declining to give a date until he had the landlord’s assurances that the repairs would be carried out and that he would receive an offer of compensation.
The landlord wrote again on 16 November 2020 requesting a date to inspect the cylinder and radiator while another department would deal with the damp.
On 16 November 2020, the resident wrote again asking for assurances as above. He also raised a formal complaint as follows:
1. “Housing repair issues that are costing me money.
2. Delayed response from Housing repairs.
3. Misinformation from Housing repairs.
4. Falsified details regarding Housing repairs.
5. Breach of Privacy and Confidentiality.“
He wanted the landlord to investigate, pay compensation, rectify the matter, and apologise.
On 17 November 2020, the landlord stated that it did not have a compensation policy. It repeated its diagnosis of the boiler. It offered to fit a thermal insulation jacket and to attend the property to advise how to use the cylinder to its full effect. It also requested a preferred date for it to repair the kitchen radiator and inspect the shower. The resident replied the same day stating the entrance radiator did not work properly either. He did not provide any dates but asked whether the jobs would be done at the same time, in order to save the landlord time and money. He asked the landlord not to remove addressees from the email exchanges, without providing an explanation.
Also on 17 November 2020, the landlord requested details in order to progress the resident’s complaint. There followed a correspondence between the complaints team and resident in relation to clarifying the complaints procedure. The landlord provided the website link to its complaints procedure. The landlord also continued to seek dates for access to carry out repairs.
The resident wrote to the landlord on 27 November 2020 chasing a response regarding the electrical inspection and an update on compensation.
On 1 December 2020 the landlord offered to attend to look at repairing items and investigate the reported damp/condensation. The landlord was investigating the missed appointments. It also offered to investigate any airlock in the hot water system as well as to carry out the outstanding works. It accepted that the contractor did not attend on 3 November 2020 but on 30 October 2020 and apologised for the error in getting the date wrong. It referred the resident to its insurers in relation to compensation. It also offered to arrange an appointment to deal with the cylinder, radiator, shower room and an unsupported flue.
On the same day, the contractor confirmed to the landlord that it had had the following “jobs”:
1. “22/10/20 radiator in kitchen.
2. 26/10/20 unsupported flue after smart meter install,
3. 23/10/20 tenant thinks a new water cylinder is required”.
It noted the engineer was not aware of the radiator issue on his visit on 30 October 2020, but he had explained to the resident the position in relation to the cylinder. The contractor also confirmed it had not been provided with access since 30 October 2020.
The resident’s complaint was logged on 3 December 2020 as the landlord felt it had a clearer picture of the nature of the complaint.
The resident stated on 4 December 2020 that repairs would only proceed once compensation was paid.
On 8 December 2020, the landlord wrote responding to the resident’s further queries regarding its complaint processes. On 9 December 2020, in response to a further email from the resident, the landlord replied that it had replied to the resident’s questions and that the repairs team would address the housing repairs. It referred to a “trail of emails with seemingly no end”. It asked the resident to follow its guidance when making a complaint by being as specific as possible and to state the outcome he would like from the complaint.
On 10 December 2020, the landlord wrote to the resident with its stage one response as follows:
1. It stated that it used the Housing Ombudsman guidance in relation to compensation, but the resident would have to go through the complaints procedure.
2. It did not uphold the request for compensation as the landlord had tried to work with the resident in getting the repairs resolved at his convenience. However, the resident had not accepted its offer.
3. It accepted that the contractor could have responded to the repair sooner and been more accurate with its communication but that did not warrant compensation.
4. It assured the resident it would like to assist in concluding the repairs.
5. An appointment was agreed for 8 December 2020.
6. It also explained how to request a review of its complaint response and what information would be required.
The landlord wrote on 11 December 2020 providing guidance on how to escalate the complaint but it would not continue correspondence in an “unofficial manner” due to the nature of the language used and the tone of the resident’s emails. It would only respond via the complaints process. It explained how the resident could raise a complaint.
The resident wrote on 11 December 2020 to explain he was in a poor state of health, he queried the complaint process and requested evidence of the landlord’s investigation.
On 15 December 2020, the resident requested that his complaint be escalated to stage two on the basis that he considered the landlord’s responses were inadequate. The landlord acknowledged his request on 18 December 2020 and provided further explanation of its complaints processes. It would respond within 15 working days.
According to the landlord’s records, the landlord considered its approach, given the resident’s stated learning disability he had reported on 7 January 2021. On 8 January 2021, it asked the resident to specify in what way he was dissatisfied with the stage one response and what outcome was he seeking. According to the landlord’s records, by way of response the resident referred the landlord back to their correspondence.
The landlord responded with its second stage response on 17 January 2021. It stated that it had reviewed the correspondence and had not identified any evidence that would change the outcome from the stage one response and confirmed that the stage one response was the final response.
In March 2021, the landlord or its contractor identified a “slight” leak from the cylinder and so it replaced the cylinder on 17 March 2021. As at 1 April 2021, it was arranging works to the shower room. In response to further reports a full power flush was conducted in the heating system and two automatic air vents were fitted on 8 June 2021. According the landlord, on 17 June 2021, the resident stated he was “happy”.
On 21 and 25 May 2021, there was evidence that the landlord had considered feedback the resident provided about the contractor.
On 5 November 2021, the resident reported to this service that he was experiencing issues with his shower and the water temperature, and that the landlord had advised him to increase the heating time.

Assessment and findings

The landlord communicated with the resident by replying to him within his emails and vice versa, using different colour coding. This method was also used in its formal stage one response to the resident’s complaint. it is appreciated that this mode of communication may be the one instigated by the resident. However, this mode of correspondence did not appear, ultimately, to facilitate communication for either party. Given the comments on comments became more and more layered, the correspondence was difficult to follow and led to unwieldly email trails.
While the landlord was in the main responsive to this service’s request for records, the Housing Ombudsman also notes that the records provided to this service were not complete. The landlord provided the relevant repairs records but there was a gap between October 2020 and March 2021. This investigation was able to piece together events sufficiently from the parties’ correspondence and the key facts were not in dispute, but the Housing Ombudsman would expect complete records including the repairs records. The Ombudsman is making a recommendation in that regard.
The landlord’s response to the resident’s reports in relation to the hot water cylinder was appropriate and timely. The landlord had a legal obligation to keep the installations for heating water in repair and proper working order. While it was not entirely clear from the records, it had established within a few days of the resident’s initial report of 9 October 2020 the cause for the hot water not reaching or maintaining sufficient temperature. It responded appropriately again to the resident’s further reports, in that its contractor attended the property on 26 October 2020 and then again on 30 October 2020. It confirmed an issue was with how the resident used the cylinder. It did not identify a fault but recommended that the insulation be improved. The landlord offered to fit a cylinder jacket, however the resident declined access. While the resident was not happy that the visit on 26 October 2020 was unannounced, it was not unreasonable for the landlord to attempt this as it had not been able to get hold of the resident and the landlord did not have any reason at the time not to seek to respond to the resident’s report.
There was a dispute about whether it was the contractor or the resident who requested a replacement cylinder. There is no substantiating evidence that the contractor proposed a new cylinder, indeed the evidence points to the contractor attributing the fall in water temperature to how the resident operated the system. However, the main issue was whether the cylinder was malfunctioning. The landlord was entitled to accept the opinion of its contractor that it was not malfunctioning.
During the course of events covered by this investigation, the resident made a number of reports, which included issues with his radiators in various rooms, an unsupported flue, and his shower causing damp. The landlord offered to address the repairs and inspect the property, but again, the resident did not provide access. In the circumstances, the Ombudsman has not found that there was service failure by the landlord for not taking any action during the period the resident did not give access for repairs.
The landlord acted reasonably in seeking to address the resident’s reasons for denying access, which was that he required answers to his questions. The landlord stated it would not be paying compensation (which issue will be addressed later on in the report in detail). The Ombudsman would not expect a landlord to offer compensation as a prerequisite for the resident giving access so that the landlord could effect repairs. The resident has an obligation to give access in those circumstances. Moreover, compensation would have to be considered as part of its complaints process.
The landlord apologised for its error regarding a date, it explained it needed to investigate the shower before promising repairs. The Ombudsman noted that the resident raised numerous questions that it was not necessary to set out fully in this report, which, as stated above, is a summary not an exhaustive account. Many of the resident’s questions were difficult to address or not directly relevant to the repairs and providing access. Nevertheless, the landlord made reasonable attempts to address them. While the resident did not explain the nature of his learning disability, by seeking to resolve the issues and address the resident’s issues as far as it reasonably could, the landlord recognised the vulnerabilities of the resident. The landlord also acted reasonably and, in the Ombudsman’s view, assiduously by offering appointments in order to address the resident’s reports.
The landlord did what it could to address the obstacles the resident raised and no service failure is identified as it was unable to access the property from 30 October 2020 until the conclusion of the landlord’s internal complaint process (17 January 2021). The period after 18 January 2021 is beyond the scope of this investigation as the landlord has not had an opportunity to respond to any complaint in relation to events after that date. However, it is noted that during subsequent visits in March 2021, a leak was identified. There is no evidence the leak could have been identified, or was present, sooner. In any event, the landlord and its contractors were unable to access the property for a considerable period.
It is further noted that the landlord continued to respond to the resident’s reports and take steps to address them. It is also noted that in May 2021, by which time it is reasonable to conclude that the landlord had further information, the landlord reasonably considered the resident’s feedback regarding its contractors regarding multiple visits.
While the resident has reported there are further ongoing issues in relation to the water temperature, that is beyond the scope of this investigation which covers up to the period of the landlord’s internal complaints process. The Ombudsman has noted events that occurred after the conclusion of the complaints process, but it has not investigated those events. That is because, as stated above, this service investigates the responses by the landlord and the landlord has not had the opportunity to respond to subsequent and more recent events through its complaints process.

The landlord’s complaint handling

The response time of the landlord of 10 December 2020 to the resident‘s complaint of 16 November 2020 was delayed. However, while the response was due on 30 November 2020, it is appreciated that the landlord had difficulty establishing what the complaint was about. It was not unreasonable of the landlord to seek clarification of the nature of the complaint, given the function of the complaints team was to triage complaints. It was appropriate, as it was in accordance with its complaints policy, to refer the complaint to its repairs team. However, it would have been appropriate, to have written to the resident in the meantime to explain the complaint response would be delayed and either agree or set an extension.
The landlord acted reasonably in seeking to address the resident’s queries in relation to the resident’s request for clarification of the complaints process and it was also reasonable to eventually draw a line under the resident’s questions. However, the landlord’s language bordered on the inappropriate in referring to “trail of emails with seemingly no end” – a trail that was also of the landlord’s making.
The response time of the 17 January 2021 to the resident’s request to escalate the complaint of 15 December 2020 was also delayed. Again, the response was due after 15 working days, on 8 January 2021. The Ombudsman has noted that the landlord did not seek clarification until the day the response was due. Again, it is appreciated the landlord required clarification as the resident did not provide any specific reasons for his dissatisfaction except to say the landlord’s response was inadequate. It had explained what it required but the resident did not respond except to refer to the existing correspondence. It was also noted that the Christmas holiday period intervened. While the delay was marginal and understandable, it would have been appropriate and in line with its policy to have extended the time for its response.
However, while the resident felt frustrated at the delay to the response, in the Ombudsman’s view, there was no significant impact caused by these delays.
It was reasonable of the landlord to do just as the resident suggested, which was to review the correspondence. Given there was no investigation, no investigating officer contacted the resident, however the landlord sought to ascertain from the resident the grounds for escalation. Having reviewed the matter, the landlord was entitled to conclude that there were no grounds to escalate the complaint on the basis that it found no grounds to change its decision. This was a review in itself.
It was an inappropriate omission that the landlord did not address the resident’s complaint that the landlord had breached his confidentiality by sharing information with other teams, However, the resident’s complaint appears to be that the breach of confidentiality was the landlord sharing information with other teams. Sharing information with other teams within the landlord’s organisation does not constitute a breach of confidentiality and indeed not doing so would prevent the proper functioning of the landlord’s organisation and impact on its quality of service. Moreover, the resident himself asked that his correspondence continued be copied into a wide number of staff and objected to the landlord seeking to reduce the numbers of parties to the correspondence without an explanation.
The landlord accepted that the responses by, and communication with, the contractor could have been better. The landlord stated there was evidence of missed appointments. It apologised it made an error about dates. There was no evidence that the error constituted a falsification or a fabrication as reported by the resident. There was no evidence of bad faith on the landlord’s part, only of a minor error in dates for which it apologised.
The landlord is responsible for the acts of its contractor and any failings by the contractor could adversely affect the landlord-tenant relationship. Lack of communication would have been frustrating for the resident. However, and in the Ombudsman’s opinion there was no significant impact on the resident, in particular as inspections were carried out within reasonable timescales and the resident himself refused access.
It was inappropriate of the landlord to stated that the landlord did not operate a compensation policy and to refer the resident to its insurers and/or this service. This was confusing. However, there was no significant impact on the resident, given the landlord did not deem compensation was payable, as it had offered to carry out the repairs and did not accept there had been a service failure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was:
1. No maladministration in relation to the landlord’s response to the resident’s reports in relation to his water cylinder and the resident’s request for compensation.
2. No maladministration in relation to the landlord’s complaint handling (including the resident’s report of breach of his confidentiality by the landlord).

Reasons

The landlord responded to the resident’s reports in relation to his water cylinder but did not identify a fault. It offered insulation and also offered inspections and repairs in response to the resident’s further reports but the resident did not provide access. Given the landlord offered to carry out repairs within a reasonable period, and there was no evidence that the water cylinder was malfunctioning so as to increase the resident’s energy costs, there were no grounds for paying compensation.
While there were delays in the landlord’s complaint responses and the Ombudsman identified other flaws, there was no evidence of significant impact of those delays and flaws on the resident.

Recommendations

The landlord, if it has not done so already, to review the contractor’s performance in relation to the contractor’s handling of repairs and appointments, and to review any appropriate actions that could be taken to improve service delivery.
The landlord operates what is effectively three stage complaints process. There may be good reasons for an initial stage in some instances, particularly where it is clear it is a straightforward matter that can be resolved quickly. However, the landlord should consider either using the informal approach with caution or limiting the process to a two-stage process so as not to prolong the process. The landlord is referred to the Housing Ombudsman Complaints Handling Code Complaint Handling Code – Housing Ombudsman (housing-ombudsman.org.uk).
The landlord should ensure its personnel refers requests for compensation to the complaints team so that such a request is addressed with due process.
The landlord should avoid email correspondence consisting of inserting text of previous emails, in order to maintain clarity for all concerned parties and provide a clear audit trail of events.
The landlord should share the comments made in this report about the use of language and delays in responses with all staff who respond to complaints and consider any further training needed.
The landlord should ensure that it maintains and provides complete records to the Housing Ombudsman Service when requested.