North Northamptonshire Council (202109405)

REPORT

COMPLAINT 202109405

North Northamptonshire Council

6 October 2022

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

1. This complaint is about the landlord’s:
   1. decision not to replace the property’s decommissioned gas fire;
   2. complaint handling.

Background and summary of events

Background

2. The resident is a secure tenant and the tenancy began in 1993. The property is a two bedroom house. The landlord is the resident’s local authority. The resident has vulnerabilities relating to her physical health. The information seen suggests these vulnerabilities increase her susceptibility to cold conditions.
3. The tenancy agreement lists a gas fire as one of the property’s internal facilities. The Ombudsman has not seen a copy of the full agreement. The landlord provided an undated tenant’s handbook. It shows the landlord is obliged to keep the structure of the property in “good repair and working order”. This includes maintaining gas appliances and pipework to ensure they are safe. The Ombudsman was unable to find a more relevant document online.
4. The resident provided the Ombudsman with a different document containing alternative wording. It shows the landlord is responsible for “repairing, maintaining or replacing” heating and hot water appliances including radiators and fires. The information seen suggests the document dates from around 2018. The same wording was found on the landlord’s website at the time of this assessment. This information is contrary to the details in the landlord’s tenant handbook.
5. The landlord operates a two stage complaints procedure. Details of the procedure can also be found online. The information shows the landlord aims to resolve complaints within ten working days at stage one. At stage two, it aims to respond within twenty working days.

Summary of events

6. The landlord’s annual gas safety record was dated 28 May 2021. It shows the landlord disconnected the property’s gas fire during an annual inspection due to its “poor condition”. It said the attending engineer signed the paperwork on the resident’s behalf because she was upset the fire had been decommissioned. It also said the engineer had measured the room so the landlord could check whether any additional radiators were required. It indicates the resident reported the property’s central heating would not sufficiently replace the fire.
7. The landlord’s contact records from 9 June 2021 show the resident called the landlord about the fire. The call notes said her medical condition meant she felt the cold and required instant heat. They show she reported the existing radiators were not sufficient to heat the property and that electric heaters were too expensive to run. Further, the resident was willing to provide a supporting statement from her GP. The wording used suggests the resident’s concerns could have reasonably been handled as a formal complaint at this point.
8. Records from 15 June 2021 show the resident had emailed the landlord about the fire. The Ombudsman has not seen the resident’s email. The landlord’s related internal correspondence said it would not replace the gas fire. Further, the room had been measured and the existing radiator was “of sufficient size to provide all the heat required”. The notes said this information was relayed to the resident.
9. Further records confirm the resident called the landlord the following day. They show she said the tenancy agreement included a working gas fire. Further, the cold impacted her medical condition, affected her mobility and could result in a loss of limbs. They said the resident had requested a call back and that a previous call back request had not been fulfilled. They suggest the resident’s call ultimately prompted the landlord to raise her concerns as a formal complaint.
10. The records show the resident chased the landlord’s complaint response on 22, 29 and 30 June 2021. Corresponding notes show she reported that running the property’s central heating for three hours had only resulted in a three degree increase in temperature. They also show the resident reported the landlord failed to return her call as expected.
11. On 1 July 2021 the landlord issued a stage one response. This was 16 working days after the resident first raised her concerns. It was also around eleven working days after the landlord raised a formal complaint. It said the landlord was obliged to ensure gas appliances were safe. Since an engineer determined the fire was unsafe, it was disconnected to protect the resident and the property. The landlord also said it did not replace gas fires, and measurements had confirmed the existing radiator was sufficient to heat the living room.
12. On 4 July 2021 the resident escalated her complaint using the landlord’s complaint form. She said she needed additional heating due to her medical conditions, and the existing radiator did not meet her needs. Further, the stress of the situation was impacting her health. As a result, she said, the landlord should replace her fire regardless of its non-replacement policy. In addition, the fire’s condition resulted from the landlord’s failure to service it during the annual gas safety check in May 2021.
13. The contact records show the resident chased the landlord again on 7,13,15 and 20 July 2021. Corresponding notes said she had initially been told to expect a response within five working days, but she had not heard from the landlord. Later notes show she reported the landlord failed to reply to her emails. The landlord eventually acknowledged the resident’s complaint at stage two on 20 July 2021. This was eleven working days after she asked to escalate the complaint.
14. On 21 July 2021 the landlord issued a stage two response. The resident’s complaint was not upheld. The response broadly mirrored the landlord’s findings at stage one. The landlord said the existing radiator was adequate and the property had hot water. Further, the resident could buy a new fire but she should obtain the landlord’s permission first. The response included referral rights for the Local Government and Social Care Ombudsman (LGSCO).
15. Further records suggest the resident spoke to an Occupational Therapist (OT) on 2 August 2021. The corresponding notes did not detail the outcome of this discussion. The landlord later told the Ombudsman that the therapist was asked to evaluate the situation, and offer any relevant advice, given the resident’s medical conditions.
16. The Ombudsman’s case correspondence shows the following events occurred in November 2021:
    1. The landlord told the Ombudsman its approach to decommissioning unsafe fires was not outlined in its “old policy”. However, it said, the approach was in line with its new “draft” policy. Further, the landlord was working towards sustainable energy and gas fires did not form part of this “agenda for change”. The landlord also said it had removed around 20 unsafe fires in similar circumstances the same year.
    2. The Ombudsman issued the landlord a Complaint Handling Failure Order (CHFO). This was based on its failure to provide this Service with information we requested for our investigation. The Order shows we chased the landlord on several occasions for the missing information. Following the Order, the landlord responded accordingly to the Ombudsman’s information request.
    3. The landlord told the Ombudsman the resident’s condition affected her circulatory system. Further, keeping warm, warm clothing, regular exercise, breathing techniques and a balanced diet could improve it. Additionally, it was “well researched” that measures such as gloves, heat pads and seat covers could also help. However, it said, there was no medical research to show the condition would benefit “specifically” from a gas fire, and the property’s temperature could be controlled through a thermostat.
17. During a phone call with the Ombudsman on 1 October 2022, the resident confirmed she had spoken to an OT about the property’s heating. The Ombudsman is unaware of any recommendations arising from the therapist’s involvement.

Assessment and findings

18. It is recognised the situation is distressing for the resident. It is also accepted she is concerned about the welfare impact of the landlord’s decision given her medical conditions. It may help to explain that the Ombudsman is unable to evaluate medical evidence. It is understood that the resident wants the landlord to replace the fire. The information seen suggests she would rather use the fire, in isolation, than heat the whole property using its central heating. Her initial contact with the landlord shows she has concerns around the cost of heating.
19. The resident initially linked the decommissioned fire’s poor condition to the landlord’s lack of servicing in 2021. However, this complaint hinges on the landlord’s decision not to replace the fire. This is because the resident has not objected to the fire’s removal on safety grounds. Nor was any information seen to indicate that: the original fire was poorly maintained, the fire could have been repaired or the property’s central heating is inadequate. The landlord is entitled to rely on the professional opinion of relevant engineers.
20. The tenancy agreement represents key evidence in this complaint because it sets out the respective obligations of each party. The Ombudsman has not seen the full document, so this assessment initially referred to the information both parties supplied. Further relevant information was then sought through various online searches. The tension between the wording of both parties’ undated documents was noted. As was the possibility that establishing the applicable document could result in a favourable outcome for either party.
21. Ultimately, the information seen supports the resident’s assertion that the landlord was obliged repair or replace the fire. This is because the document she  was previously issued matches the information still available on the landlord’s website. If the landlord previously updated the terms of the resident’s tenancy agreement, it should reasonably be able to provide an updated document confirming her agreement with the new terms. The landlord’s energy policy does not override its tenancy (legal) obligations.
22. It was noted the landlord failed to provide the Ombudsman a copy of its “draft” energy policy. As a result, beyond the landlord’s undated handbook which was not shown to apply, little firm evidence was seen to support its decision not to replace the fire. The landlord cannot fairly say its approach conformed to a “draft” policy, which the resident is unlikely to have seen. The landlord could have reasonably sought legal advice around its approach to unsafe gas fires. Further, it could have provided this advice to the Ombudsman as part of its case evidence.
23. The evidence therefore suggests the landlord failed to comply with its relevant obligations in relation to the fire. This represents maladministration on its part. The timeline confirms the fire’s importance to the resident. It shows she made considerable efforts to progress her complaint. No information was seen to show the resident was offered an electric heater instead. However, the contact history suggests she rejected this potential solution at an early stage of the timeline. Gas prices have increased significantly since the resident raised her complaint.
24. The landlord’s other actions in respect of the fire were appropriate. For example, it could not have left the fire in place given it was deemed to be unsafe. The evidence suggests the landlord checked the suitability of the existing radiator after the fire was decommissioned. Further, it referred the resident to an OT with a view to ensuring her medical needs were met accordingly. Nevertheless, the evidence suggests the landlord’s decision not to replace the fire was contrary to its obligations to repair, maintain or replace heating appliances.
25. To put things right, the Ombudsman’s orders will include instructions for the landlord to replace the gas fire and pay the resident proportionate compensation.

The landlord’s complaint handing

26. The timeline points to a number of failures in the landlord’s complaint handling. For example, it shows the landlord could have reasonably raised a formal complaint on 9 June 2021. This is because its contact history used the word “complained” to describe the reason for the resident’s call. Since it took the landlord until around 16 June 2021 to raise a complaint, the evidence suggests there was an avoidable delay of around five working days at this point.
27. The timeline also indicates the landlord failed to return the resident’s calls and emails on a number of occasions at both stages of its complaints procedure. It is reasonable to conclude the resident may have deemed further contact with the landlord was unnecessary if it had set her expectations about its complaints process. For example, her contacts on 7,13,15 and 20 July 2021 could have possibly been avoided if the landlord had promptly issued a stage two acknowledgement, which included its relevant response timescale.
28. Similarly, no information was seen to show the landlord acknowledged the resident’s complaint at stage one. As a result, the timeline suggests the landlord’s complaint handling required a disproportionate level of involvement from the resident. It is reasonable to conclude this involvement caused her avoidable distress and inconvenience. It is noted that the Ombudsman’s updated Complaint Handling Code, effective from 1 April 2022, requires complaints to be acknowledged within five working days at stage one.
29. The landlord failed to consider its complaint handling in either of its responses. As a result, it failed to identify or redress the above issues. It also missed an opportunity to improve its services by learning from the resident’s experience. It was also noted the landlord’s stage two response incorrectly referred the resident to the LGSCO. That said, no information was seen to show this incorrect referral caused her any additional inconvenience.
30. Given the above, there was maladministration in respect of the landlord’s complaint handling. To put things right, the Ombudsman will order the landlord to pay the resident compensation proportionate to the impact of its identified complaint handling failures.

Determination (decision)

31. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s:
    1. decision not to replace the property’s decommissioned gas fire.
    2. complaint handling.

Reasons

32. The information seen suggests the landlord’s decision not to replace the property’s gas fire was contrary to its relevant obligations. The landlord’s energy policy does not override its tenancy (legal) obligations.
33. There were delays and failures in the landlord’s complaint handling. The resident experienced unnecessary distress and inconvenience as a result.

Orders and recommendations

Orders

34. The Ombudsman orders the landlord to provide the resident a replacement fire within four weeks. If the resident agrees, it could provide an equivalent electric heater, as an alternative, given current gas prices.
35. The landlord pay the resident £450 compensation within four weeks comprising:
    1. £300 to redress any distress and inconvenience she was caused by the landlord’s apparent failure to comply with its obligation to replace the gas fire.
    2. £150 to redress any distress and inconvenience she was caused by the above identified complaint handling delays and failures.
36. The landlord to seek legal advice in relation to its non-replacement of gas fires policy. This is to ensure the landlord’s policy is consistent with its obligations. Evidence of this advice should be provided to the Ombudsman within four weeks.
37. The landlord to share the report’s complaint handling findings with its relevant staff. This is ensure they can confidently identify, raise and acknowledge complaints. They should also consider the landlord’s complaint handling during complaint investigations to allow any delays or failures to be addressed.

Recommendations

38. The landlord to ensure relevant staff are familiar with the Ombudsman’s updated Complaint Handling Code. This is with a view to ensuring acknowledgments are issued in line with its requirements.
39. The landlord’s complaint responses to include standard paragraphs containing referral rights to both the Housing Ombudsman Service and the LGSCO. This wording should include a brief explanation around the role of each service. This is to prevent complainants from approaching the wrong service.
40. The landlord should provide the Ombudsman evidence of compliance with the above orders and confirm its intentions regarding the recommendations within four weeks.