Mid Devon District Council (202007057)

REPORT

COMPLAINT 202007057

Mid Devon District Council

10 February 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 the landlord’s decision to recharge the resident for repair costs following works on her boiler.

Background and summary of events

Background

The resident has been a Secure Tenant, in respect of the property, since 6 November 1992.
The property is a two-bedroom house.

Legal and policy framework

The Landlord and Tenant Act 1985

Under section 11 of the Landlord and Tenant Act 1985, the landlord is obligated to keep in good repair and proper working order installations such as the boiler, except where the tenant or persons living with the tenant or the tenant’s visitors have caused disrepair by failing to use the property in a reasonable manner.

Tenancy Agreement

The Ombudsman has reviewed the conditions of the resident’s tenancy. This details both the landlord’s and the resident’s responsibilities, indicating that the landlord will:
1. Keep in repair the service installations which it had originally fitted or adopted, such as those provided for the supply of water, gas, electricity and for room/water heating.
Under paragraph 4.1.2 of this document, the landlord explains however that it will not be liable for the above if the repair becomes necessary because the resident has damaged these items, whether by accident or deliberately.

Recharge Policy

Similarly, the landlord has provided this Service with a copy of its recharge policy. This reiterates the condition set out above, explaining “where works are required because the tenant, a member of their household or a visitor to their home has deliberately or accidently caused damage to the property, the tenant will be recharged. This includes damage to any [landlord] property, for example fixtures and fittings”.
The landlord’s policy explains that appeals/disputes for recharges will be dealt with as service requests and not complaints in the first instance. Where a resident is dissatisfied with the outcome, this will be treated as a complaint.

Summary of events

The Ombudsman notes that the resident made several reports of issues with her boiler between 2019-2020. The landlord’s records indicate that on 11 May 2020 the resident reported having no heating or hot water resulting from a faulty pressure sensor. This was replaced on 14 May 2020.
Again, on 21 and 26 May 2020, the resident reported issues with her heating and hot water. Records suggest that there were further issues with the system pressure, however on both occasions, the boiler was left working with no visible signs of a leak.
On 30 May 2020 the landlord’s engineer attended the resident’s property as the discharge pipe was constantly running, flooding both hers and her neighbour’s gardens. It was noted by the engineer that the filling loop had been left open causing the issue. A temporary fix was implemented, and the remaining works/parts fitted on 3 June 2020.
On the same day, the landlord wrote to the resident. It explained that further to the visits by the engineer, she would be receiving an invoice totaling £147.82. This was as, from the information it had available, it believed that the resident had been topping up the boiler and had left the filling loop open, causing the uncontainable flood and damage. It stated that parts now had to be replaced on the boiler and the resident was liable for this cost. The resident was encouraged not to touch the boiler moving forward and to review the terms and conditions set out in the tenancy agreement regarding rechargeable repairs.
On 11 June 2020 the resident contacted the landlord to discuss the recharge letter. While the Ombudsman has not seen this correspondence, the Ombudsman notes (from the landlord’s later letter) that on 12 June 2020 the resident explained that she wished for the charges to be waived on the basis that:

The gas engineers had advised her on what to do to put the boiler right
The gas engineers had attended on multiple occasions but failed to resolve the problem (although it was now working).
She had not touched the boiler, following advice from her social worker
The gas engineers had not shut the filling loop, resulting in a leak and the boiler being tampered with.

On 16 June 2020 the landlord wrote to the resident. The landlord referred the resident to its communication on 3 June 2020 and asserted that the gas engineers would not have falsified their records. It therefore believed that there was enough evidence to warrant the charge.
On 29 June 2020 the resident wrote to the landlord. The resident explained that she had no idea what a filling loop was and would not have known how to top up the boiler or what to top it up with. She stated that she wished to see the letter in which the engineer had accused her of tampering with the boiler as the accusation was false and threatened her reputation as a tenant. The resident said that the engineer was being vindictive as she had told him on three occasions that the boiler was not producing hot water.
On 1 July 2020 the landlord wrote to the resident. It confirmed that the resident’s concerns would be recorded as an official complaint and would seek to provide a response by 13 July 2020.
On 14 July 2020 the landlord provided its stage one response. The landlord stated that it believed that the filling loop had been left open on 29 or 30 May causing damage to the boiler. It noted:

The engineer who attended on 26 May 2020 checked the Pressure Relief Valve (PRV) and bled the radiators (finding a bit of air). The hot water, heating and system pressure were all checked and working fine. The resident was also shown that the hot water was working before the engineer left.
The Out of Hours (OOH) engineer who attended on 30 May 2020 and 3 June 2020 noticed that the filling loop had been left open. The filling loop was closed and the pressure on the boiler was lowered to 1.5 bar. The expansion vessel was checked, and this was at 0 bar. A new expansion vessel and PRV was then ordered.
According to the second engineer, during the inspection on 30 May 2020, the resident admitted that her neighbour had messed with her boiler the day before. The landlord believed that this was why the filling loop was open.
As per section 4.1.2 of the tenancy agreement, it would not be liable if repairs became necessary because a resident had damaged the items, whether by accident or deliberately.

The landlord therefore concluded that, as the resident’s neighbour had tampered with the boiler, the resident was liable for the costs of the repairs totaling £147.82. The landlord noted that it could not find any evidence that the engineers had made any negative comments regarding the resident or sought to tarnish her reputation. The landlord shared the engineers’ notes and clarified that it was its own decision to apply the charges.
On 6 August 2020 the resident wrote to the landlord. She explained:

She was the only person to touch the boiler, and this was a reset following the landlord’s instruction.
It was untrue that her neighbour had tampered with the boiler. The only time her neighbour had got involved was in a conversation with a call handler as the landlord had refused to send someone out.
The landlord should revisit the telephone call.
The engineer had to return on several occasions as he did not know what he was doing.
The engineer had ruined her name as a tenant.

On 20 August 2020 the landlord provided the resident with its final response. The landlord apologised for the several issues that the resident experienced with her boiler and explained:

It had revisited the evidence as well as the letter sent by the resident, and had listened to the call recordings. It noted that from this, it appeared that the filling loop had been opened in the hours or days immediately prior to 30 May 2020 and after 26 May 2020. The landlord stated that during this time, no engineer had entered her home. The landlord explained that the cause of the fault was excessively high pressure due to the opened filling loop. As the previous issue related to excessively low pressure, this would not have been a by-product of the fault.
It had listened to the call recordings and asserted that it had not refused to send someone out. Instead, it was explained that the repair would be sent to gas engineers to prioritise (at which point the resident confirmed that she had heating and hot water). The landlord noted that a call was made by the resident’s neighbour and it was arranged for an engineer to attend soon after.
While the resident had stated that the neighbour had not touched the boiler, the engineer would not have been aware that the neighbour had any involvement if the resident had not told him.

The landlord therefore concluded that in light of the evidence it had available, the damage had not been caused by wear and tear or through negligent or accidental damage from its gas engineers. It confirmed that it would therefore seek to recharge the repair cost and would not be upholding the complaint. It added, however, that if the resident was adamant that her neighbour was not the person who had opened the loop, and that the comments made had been misunderstood, the record would be corrected.

Assessment and findings

In this case, the parties (the resident and the landlord) dispute how the filling loop came to be open. Based on the evidence available the Ombudsman cannot determine how this happened or who was responsible. The Ombudsman’s role in disputes where the parties disagree on the substantive issue is to consider whether the landlord’s actions have been fair and reasonable in all of the circumstances, and whether there is any evidence of service failure by the landlord.
As per the Landlord and Tenant Act 1985, and the landlord’s above policies, the landlord will not be held accountable where there is damage caused by the resident (or someone acting on behalf of the resident). It was therefore appropriate for the landlord to consider applying a recharge to the resident, where it believed that her boiler had been tampered with by her neighbour. In the Ombudsman’s view, however, there was insufficient evidence to support this finding and to sufficiently exclude the possibility that the damage was caused by someone else, such as an error by the landlord’s engineer.
In identifying responsibility for the damage, the landlord relied on the statement of its gas engineer. It was explained that, according to the engineer, the resident had advised that her neighbour had tampered with the boiler. The landlord therefore concluded, in its complaint responses, that the filling loop had been left open by the resident’s neighbour at some point between 26 and 30 May 2020, during which time no engineers had attended. While it was reasonable to put this to the resident as grounds for recharge, in the Ombudsman’s view the engineer’s recollection was not enough. The Ombudsman has reviewed the notes made by the engineer and cannot see that any record was made of the alleged conversation/confession.
Furthermore, whilst the resident had first been advised of the recharge on 30 May 2020, the landlord did not advise her of what its engineer had alleged until some six weeks later, in its stage one response. This was the first record that the Ombudsman has seen of the landlord putting the allegation to the resident that her neighbour had been responsible for the damage, based on what she had allegedly advised its engineer on 30 May 2020.
It is not clear to the Ombudsman why this had not been raised with the resident sooner, as the landlord’s decision to raise the recharge was based on a recollection of a conversation that had happened some six weeks previously, and the resident had not been given an earlier opportunity to provide her own account. As set out above there was no contemporaneous record of this alleged conversation and the time that had passed may have impacted on both parties’ ability to recall exactly what was said at the time. This was not fair to the resident as she was not given full details of the reasons behind the landlord’s decision to recharge until six weeks after it had first raised the charge in question, or a reasonable opportunity to provide her own account at the time.
Additionally, the Ombudsman is not sufficiently satisfied that the damage was not caused by the landlord’s engineer. The Ombudsman notes that the resident experienced several issues with the pressure on her boiler and, as a result, the landlord’s gas engineers made several visits to her property. In particular, on 26 May 2020, an engineer attended the resident’s property to address issues with excessively low pressure, during which the radiators were bled. In repressurizing the boiler system and following the radiator bleed, there would have been interference with the resident’s filling loop. It is therefore a possibility that this was mistakenly left open by the engineer on 26 May 2020 and discovered by the second engineer on 30 May 2020. The landlord stated in its final response that there had been no evidence to suggest that the damage had been caused by negligent or accidental damage by its engineer however the Ombudsman cannot see that this possibility was adequately explored or that questions concerning the filling loop were raised with this engineer.
Within the landlord’s final response, it stated that if the resident believed that the gas engineer had misunderstood her comments, and her neighbour had not opened the loop, the records would be corrected. In the Ombudsman’s opinion, it would have been appropriate to do this as the resident maintained throughout her complaint that her neighbour had not touched or tampered with the boiler.
The Ombudsman has therefore concluded that it was unfair for the landlord to pass the charges for the replacement parts/works on to the resident. Whilst the Ombudsman cannot definitively conclude, based on the evidence available, how the damage was caused or by whom, in the Ombudsman’s opinion there was insufficient evidence to suggest that the repairs became necessary as a result of damage caused by the resident (or resident’s neighbour) accidentally or deliberately and the landlord did not provide the resident with its reasons for the recharge until some six weeks after the event itself.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was a service failure in respect of the landlord’ decision to recharge the resident for repair costs following works on her boiler.

Reasons

The Ombudsman has arrived at the above determination as the Ombudsman cannot see that there was sufficient evidence to justify the landlord’s decision to recharge the resident for repairs to her boiler. The Ombudsman has seen no contemporaneous records from the engineer indicating the resident’s neighbours involvement nor sufficient evidence to rule out the possibility that the filling loop could have been left open by the landlord’s engineer. In the Ombudsman’s view, the landlord should have taken adequate steps to confirm that the engineer on 26 May 2020 had not caused the issue. What’s more, the landlord should have brought the engineers account, which it was relying on as evidence of the resident’s involvement, to the resident’s attention soon after the event. This would have removed any uncertainty regarding the engineer’s recollection (where no contemporaneous notes were made) and enabled the resident to offer her own account. It was unfair to raise and rely on this some six weeks later.

Orders and recommendations

Orders

In order to put things right and in recognition of the landlord’s service failure, the Ombudsman orders the landlord to waive the charge of £147.82.
The landlord should remove this charge within four weeks of receiving the Ombudsman’s determination.

Recommendations

Where the landlord intends to implement its recharge policy, specifically in relation to deliberate or accidental resident damages, it should ensure that there is adequate evidence to support the conclusion and that any allegations about a resident’s actions are put to them in a timely manner.