Southwark Council (202015004)

REPORT

COMPLAINT 202015004

Southwark Council

2 May 2023

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 the resident’s reports about faulty heating caused by an ongoing leak.

Background and summary of events

Background

The resident is a leaseholder. The property is a ground floor flat in a block.
The property is served by communal heating which the resident confirms is turned on from around October to May each year. The landlord is obligated, under the lease, to provide and maintain the heating service at a reasonable level and keep the heating system in repair; while the resident is obligated to pay for the service via her service charge, along with an apportionment of the cost of repairs to the heating pipes and radiators at the block and individual properties.
At the time of the complaint, the landlord operated a two stage complaint procedure, where it responded at stage one within 15 working days, and at stage two within 25 working days. The housing complaint procedure is now in line with the Ombudsman’s Complaint Handling Code.
The landlord’s compensation policy of May 2021 said that for delay and distress, it awarded compensation of £250 to £1,000 based on whether this has had a low, medium or major impact. The policy said that for time and trouble, including for complaints themselves, it awarded up to £250. The policy said that heating and hot water outages should be dealt with separately to the normal compensation procedure. The landlord would pay £3 each day an ‘outage’ exceeds 24 hours, which includes reasonable costs incurred by residents for additional electricity usage, and which would be applied to the rent or service charge account dependent on tenure. The policy said that the landlord will also reimburse the heating and hot water element of rent for its tenants. The policy is not specific about if this applied to leaseholders, but it stated payments would be made onto rent or service charge accounts.

Summary of events

The resident says that she reported that her heating was not working in December 2018. While this is not evident from the information seen, it is evident that in March 2019, the resident made reports about a lack of heating at the property, after which the landlord’s records note that its contractor attended on 6, 7 and 21 March 2019. The resident says that the contractors informed her that as there had been three visits and the heating kept failing, there may be a problem with her ‘stack,’ and they would get back to her. The resident says that she was not contacted and the issue was not progressed further, as she went away and the communal heating was turned off in the summer.
On 1, 8, 19, 22 and 29 November 2019, the resident made reports of no heating. The landlord’s contractor attended on two occasions and cleared sludge and air from the radiators and left them working, however the resident updated that the heating had stopped working after the contractor had left and that an operative said clearing sludge would not permanently resolve the issue. The landlord cancelled one appointment as there was a general outage at the block. The landlord arranged a further visit by its contractor, where the resident updated that she was informed that follow on works were needed to change four radiator valves to allow the radiators to reach the required temperature within the property. The resident says that she continued to have no heating after this visit. The same month, the issue was referred to the landlord’s complaints procedure.
In early December 2019, a repair was raised which said “further work isolated and drained and removed lots of sludge in system noticed pressure was not the best alternated between flow and return rad valv.” The landlord updated the resident that its contractor had submitted a quote for further works, and at the end of December 2019 it asked its contractor when these would be done.
In January 2020, an appointment was scheduled for 17 January 2020 to fit four radiator valves in order for the correct temperature to be reached, and on 13 January 2020, the landlord issued a stage one response to the complaint. It detailed events and noted that the resident had reported a lack of heating on three occasions prior to the complaint. It noted the appointment scheduled for 17 January 2020. It said checks of the communal riser would also be carried out when there was a block shutdown to make sure that this had not been turned down.
The 17 January 2020 visit was cancelled and rearranged to 27 January 2020, and the following day the resident updated that she was informed it was a morning appointment and works had needed to be stopped when she had to go out in the afternoon. She said that the engineer had told her that someone would have to attend in the evening to check there was not a leak, but this had not happened even after being informed an operative would be with her after midnight. The landlord subsequently confirmed that it had arranged a visit for 31 January 2020, after which the resident reported that a change of all the radiator valves had not solved the problem. The radiators were only lukewarm and hallway and bathroom radiators had been shut off, so she now only had heat in her bedroom and living room.
In February 2020, the resident contacted the landlord after not hearing anything, and a visit was arranged for a senior engineer to ascertain why the radiators were not retaining heat. After this, the resident updated that the engineer adjusted the valves but said that two of the radiators (in the bedroom and living room) were too big and needed to be changed. In correspondence, the resident has raised dissatisfaction that the radiators identified as too big were installed by the landlord’s contractor in the first place. The following month, appointments were scheduled to fit radiators, however the landlord then informed the resident that the works had been placed on hold due to the Covid-19 pandemic.
In April and May 2020, further repairs were raised for the living room and bedroom radiators, and in July 2020 the living room radiator was replaced after the resident reported this was outstanding.
In August 2020, the bathroom radiator was replaced after the resident reported this was outstanding, and she says that at this point she was unable to tell if the replaced radiators worked, as the heating was not on in the summer. Soon after, the resident reported that she had noticed damage to her floor and realised that the living room radiator was leaking. The landlord provided details of its insurance team to discuss a claim, and arranged for its contractor to attend. The resident subsequently reported that the contractor did a temporary fix and had said they needed to return to do a permanent one. Following this, the landlord noted that the contractor said they had no record that the operative would return to complete works, and raised a new repair.
The same month, the information provided advises that the resident experienced a leak from above her property, which is not the subject of this complaint. This was repaired around February 2021. In August 2021, the resident experienced a further leak, which was repaired around January 2022.
In September 2020, the resident reported that she had not heard from the contractors about coming to properly fix the radiator. The landlord chased a repair to resolve a slow drip to the radiator and a repair was completed. The resident says that at this point she was still unable to tell if the radiators worked as the heating was not on.
On 19 October 2020, the landlord raised a repair for no heating from the communal boiler, which was completed the same day. The resident says that the heating worked for thirty minutes but then stopped working again, and on 26 October 2020, the landlord raised a repair for a radiator not working. While this is not recorded as completed, the resident says that she had to have an operation around this time and did not progress the issue. The following month, the landlord raised a repair for no heating, which was completed the next day.
On 3 December 2020, the landlord raised a repair for a report that “three out of four of my radiators can work, if I turn two off I get a small amount of heat in one,” and that this was completed on 10 December 2020. The resident says that following this, the heating worked for thirty minutes and stopped working again.
On 11 December 2020, the resident reported that she had no heating throughout the property. The landlord arranged for an engineer to attend that day who noted “attended property for no heating all rads were switched on and had no air in them flushed via living room rad alternating between flow and return system full of sludge continued until rads were hit and water cleared tenant said it’s a ongoing issue all rads are stelrads ajd [sic] isolations are new if issue occurs again FT to attend.” The resident updated the landlord that as always, the heating had lasted for thirty minutes and then stopped, apart from in a bathroom. The same day, the issue was referred for escalation to the second stage of the landlord’s complaints procedure.
On 14 December 2020, the landlord informed its contractor that following the works on 11 December 2020, the heating had failed again. The contractor said that the issue may be the plant room and engineers were being arranged to attend, however on 17 December 2020 it was noted that the resident was still without heating. The landlord contacted the contractor to investigate the heating issue and queried what ‘FT’ mean (as per the contractor’s report on 11 December 2020). The contractor clarified this meant a supervisor.
In emails on 19 and 21 December 2020, the resident reported that her floorboards were warping and her flat was now full of mould, which she suggested was due to not having had heating for so long. She said that she suspected that the heating was not working in her bedroom and living room because pipes were leaking under flooring. She supplied photos of damaged flooring and said it was damp under some loose floor tiles. She acknowledged that further investigation was needed to confirm this, but she expressed concern at the contractor repeatedly taking the same actions and lacking interest in solving the issue, despite the heating clearly not working. The information provided advises that the property was continuing to experience a leak from above at this point.
The landlord passed on the resident’s concerns to its contractor, and a visit by an engineer to do a pressure test was scheduled to 11 then 18 January 2021 due to the resident’s preferences. The appointment was then rescheduled to 21 January 2021 as an operative lacked the necessary equipment. The report for the 21 January 2021 visit notes “carried out pressure test on heating circuit within property, found pressure drop also heat from hall floor, visable [sic] water in rising cupboard coming from under floor from hall, subcontractor to attend to carry out survey for repair.” The resident updated the landlord that the engineer confirmed there were signs of a leak, which was passed to the officer handling the complaint.
The resident subsequently chased on three occasions later in January 2021. She expressed concern that she had not heard anything about her complaint. She said that the engineer had told her that she would have to live in a hotel and the floor ripped out. She queried if and when this would happen and the long term plan. She reported that while awaiting replies, she had no heating in sub-zero temperatures; black mould growing on the walls; and damp causing damage to walls, floors and clothing. The information provided advises that the property was continuing to experience the leak from above at this point.
The landlord subsequently noted an attempt to call the resident about her complaint, but by 8 February 2021 she contacted an MP and councillors as she had still not heard anything.
On 9 February 2021, the landlord noted that it again attempted to call the resident but she was in a meeting, and she did not pick up further calls. The same day, the landlord asked its contractor to deliver two fan heaters. It also noted that the resident had requested dehumidifiers, and it was waiting to hear if these could be requested and claimed back on building insurance. The landlord asked its contractor what the latest update was following the 21 January 2021 report of a drop in pressure and a request for a survey, and the contractor responded that they had dropped off two heaters and a pressure test was required.
On 10 February 2021, the landlord queried the delay in progress. It said that leaks could not just be left to cause damage, and if leaks were suspected since December 2020, it would have thought that a pressure test would have been carried out straight away and leaks isolated on initial attendance.
On 12 February 2021, the resident discussed the complaint with complaint staff and the landlord asked its contractor for an urgent update. It queried what pressure test was required since the contractor’s operative had already done one. It flagged that while heaters had been supplied, the resident lacked heating and had received no further contact or an action plan. The contactor confirmed they had carried out a pressure test, and said that to remedy the leak they or the resident needed to lift up the floor, but they did not want to be liable to put the floor back if they lifted the floor. The landlord queried if this was what was needed to resolve the lack of heating, but it is not evident this received a reply.
The same day, the resident emailed the landlord about making an insurance claim for the leaking pipes, which had led to a lack of heating and a damp problem. She said that there was damaged hallway, bedroom and living room flooring; swollen doors; and swollen skirting board, which would all need replacement. She said that there were also mouldy walls which may need replastering. The information provided advises that the property was continuing to experience the leak from above at this point.
On 16 February 2021, the landlord chased its contractor, and asked them to take steps to get the resident to sign a disclaimer to allow them to lift up the floor to repair the leak.
On 26 February 2021, the landlord raised a repair to investigate a leak in a riser cupboard, which was completed on 1 March 2021. Following this, the resident updated that the contractor had visited to look at the leak but had said that they did not lift floors up for leaseholders. She asked for confirmation that she needed to get someone to lift up the floors so that the contractor could look at the leak.
On 2 March 2021, the landlord emailed the resident about her complaint. It apologised for the delay, due to awaiting responses from different departments. It said it had received confirmation that her claims were accepted but were unable to be settled until the ongoing leak was resolved. It said that it had passed on her comments that the contractor could not go under the flooring. It said that service charge and electricity reimbursements were not usually given and she would have to claim through the building insurance. It said that it would provide a full response in due course. The same day, the landlord’s contractor reported that the resident did not trust them to lift up the floor and wanted the landlord to do this. After the landlord clarified with the resident that she was not refusing this, the contractor was asked to continue with the works, and a repair was raised to trace and remedy a leak under the kitchen floor.
The landlord subsequently liaised with the resident for works to the heating pipework to be done on 10 May 2021. The resident reports that she moved out of the property for this, arranged by insurance, and that works to fix two leaks were completed on 11 May 2021. The same day, the resident contacted the landlord and asked when a surveyor could come and check the works. She said that once insurance had taken away all the flooring and damp had dried, the contractors would need to return to put insulation around the pipes (as the engineers said this would get damaged if done then). She asked the landlord if she could have call to discuss the next steps of the complaint. Following this, the landlord’s records report that a post inspection was scheduled to 24 May 2021, and then to 6 July 2021 due to the landlord running late for the previous appointment. The information provided then advises that a further leak was identified and resolved on 6 June 2021.
On 24 June 2021, the landlord issued its stage two response to the complaint. It apologised for the service the resident had received for both the repair and complaint. It acknowledged that, from repairs history, there were clear failings in identifying and resolving the issue in the property. It explained that learning had been identified for the way it handled similar issues, and recommendations had been made so that repeat issues triggered reviews and discussions by the landlord and its contractor. It noted that the resident had requested information about what the contractor had charged for works and visits, and it detailed the costs of works the contractors had done. However, it explained that the costs were not always passed on in full to the landlord, due to the nature of the contract. It said that when the resident received her actual service charges, it could look into any concerns she had about these. It awarded £2,750, which it said reflected a period of 29 months between December 2018 and May 2021 and comprised:
1. £1,250 for ‘medium’ impact delays.
2. £625 for ‘low’ impact distress.
3. £625 for time and trouble.
4. £250 for complaint handling.
On 9 July 2021, the landlord’s records report that it post inspected and checked the new pipework for leaks, finding no leaks, and that a pressure test was being arranged at the resident’s request.
On 16 September 2021, the landlord responded to some queries the resident raised following its final response. It acknowledged that the impact on the resident had been ‘high,’ and it increased its compensation award to £3,625. It confirmed that it would award additional compensation when she was back in the property and remedial works were completed, but it would pay the £3,625 in the meantime. It also supplied a breakdown of the service charge and repair charges for the previous two years, and said it had requested its service charge team to contact the resident about her service charges. It explained that the revised compensation comprised:
1. £1,875 for the delays being agreed to be of ‘high’ impact.
2. £875 for distress, which included an amount based on the period between December 2020 and May 2021 being agreed to have had a ‘high’ impact.
3. £625 for time and trouble.
4. £250 for complaint handling.
In October 2021, the information provided advises that a repair was raised to lag pipework and carry out a pressure test, which the resident requested to be done after leaks from above were resolved and other works were done to the property.
On 4 January 2022, the resident issued a housing claim in respect to the leaks from above, damp and mould damage, and her insurers’ refusal to reinstate the property until confirmation that the leaks from above were fixed. The resident’s solicitors have been in recent discussions with the landlord’s solicitors about finalising a settlement and in February 2023, the resident received a £10,000 interim payment towards a settlement. She claims that her overall costs in respect to all the issues at the property are closer to £40,000.
The resident contacted this Service and says she did not move back into her property until August 2022. She reports that following this, a new pipework leak occurred due to the fault of a contractor, which is part of ongoing claims. The resident has raised concern about jobs being marked complete when the heating issue was ongoing since 2019. She has raised concern about leaseholders paying for inadequate repairs, and says that she had queried if the contractor’s charges had been charged back to her or her block, but received no answer. She has raised concern about paying a service charge for the heating when she had not received a heating service, and says that the landlord had informed her that it would not reimburse these. She has said that she wanted some of her service charges removed because she moved out of the property due to disrepair caused by the leaks, but received no answer. She raises concerns related to the recent pipework leak, such as the landlord having not surface mounted the pipework in the May 2021 works and not committing to do so recently.

Assessment and findings

Scope of the investigation

The Ombudsman may only investigate matters that have progressed through a landlord’s complaints process and then been referred to this Service. The focus of this investigation is therefore the complaint about the heating for which the landlord provided its final responses for June and September 2021. This investigation will not assess the leaks from above the property, the repairs and insurance claim for which it is understood greatly impacted the length of time it took for the resident to move back in. The Ombudsman will also not assess the resident’s ongoing housing claims, or the landlord’s offers under Part 36 of the Civil Procedure Rules and interim compensation of £10,000. In addition, the Ombudsman will not investigate recent concerns the resident has raised about pipework not being surface mounted when works were carried out in May 2021, as these concerns arose after the complaint and it would be hard for this Service to find a service failing. The Ombudsman does however make a recommendation to the landlord in respect to this.
The Ombudsman may also not investigate complaints which concern the level of service charge or where a remedy can be sought via another procedure. The First-Tier Tribunal (Property Chamber – Residential Property) can determine the appropriate level and amount of service charges recoverable by a landlord; decide if the charges were reasonably incurred; by whom they are payable, and when. This means that the Ombudsman will not decide whether the resident’s service charges are payable or should be removed. However, we can assess whether the landlord followed proper procedure, followed good practice and responded reasonably, taking account of all the circumstances of the case – which this assessment goes on to do.

The landlord’s handling of the resident’s reports about faulty heating caused by an ongoing leak

In accordance with the lease, the landlord is responsible for heating within the property. This Service’s February 2021 spotlight report on complaints about heating confirms this is a basic need for any household, and that loss of heating can be a risk to health and wellbeing. As a result, it was necessary for the landlord to investigate the resident’s reports of heating issues and take steps to resolve the issues.
In this case, it is evident that the resident was without a lasting repair for the issue, which meant that she did not receive a heating service in the winter months for over two years. In the timeframe of the complaint, this adds up to around 516 days for the affected winter months when it is understood the heating will have been on. It was therefore appropriate for the landlord to apologise to the resident and award compensation, which totalled £3,625 for the delays, distress, time and trouble and complaint handling.
The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. This further assessment therefore considers whether the landlord has offered reasonable redress for its acknowledged failings, in line with the Ombudsman’s Dispute Resolution Principles to be fair – treat people fairly and follow fair processes; put things right; and learn from outcomes.
In this case, while steps were taken to try to resolve the heating issue, it is not disputed that this took far too long, which seems to have been avoidable. There were an unreasonable number of contractor visits, at least fourteen. While the resident did not observe damage to her floor until August 2020, there was a missed opportunity in January 2020 to rule out a leak, when the resident reported an engineer said someone should attend to check there was not a leak. This was a year prior to January 2021 when it is first evident that the contractor did check for a leak. There were failings to act promptly after reports, for example after an operative noted low pressure and water on a cupboard floor in January 2021, the contractor took three weeks to review next steps and initially recommended a pressure test which had already been done. There seems to have been ineffective communication about the floor being lifted up, despite the contractor being instructed to write to the resident about this, which caused further delay. The resident could have sourced heaters herself, however the landlord did not supply any until February 2021, which is not entirely satisfactory given its responsibility to supply heating to the property.
The resident will have been caused distress from the heating not working, particularly in cold periods, which will have increased the longer time and the issue went on. The resident will have been caused distress at her inability to heat the property using the communal heating to help alleviate issues with damp and mould and a leak from above the property. The resident’s insurance claim will, in a practical sense, have addressed the issue alongside others that affected her home, however she will also have been caused distress by damage and disruption due to the leaking heating system. The landlord’s final award of £1,875 demonstrates that it acknowledged that the resident had been caused significant distress by the issue, and this amount is within the range that the Ombudsman would consider applicable for the failings and impact evident in the case.
The resident went to much time and trouble to progress the repair and complaint. She sent numerous emails and waited in for many contractor visits, some of which were missed. The resident escalated the complaint in December 2020, but complaints staff did not contact the resident until two months had passed. The landlord did not then provide a final response until 24 June 2021. This was six and a half months later. The landlord’s award of £875 for time and trouble and complaint handling demonstrates that it acknowledged that the resident had been caused significant time and trouble in respect to the repair and complaint, and this amount is within the range that the Ombudsman would consider applicable for the failings and impact evident in the case.
The landlord’s compensation of £3,625 was positive and went a long way to recognise the impact of the delays, distress, time and trouble and complaint handling, but it does not demonstrate that it fully considered matters in accordance with its compensation policy. In March 2021, prior to its final response, the landlord informed the resident that service charge reimbursements were not usually given, and it continued this approach in its complaint responses by not offering any compensation related to this. However, the landlord’s compensation policy says that for heating outages it can pay £3 per day, and reimburse a heating element of rent back to the rent or service charge. This shows that the landlord could have considered compensation based on the service charges the resident had paid as well as her individual circumstances.
The Ombudsman, as noted above, does not make decisions about whether service charges are payable or should be removed. However, we can take into account the presenting levels of service failure, the level of service charges, and the impact on a resident.
The resident provides information, based on service charge data from the landlord, that she paid the following for heating and hot water during the winter months around when the heating will have been on:
1. March to May 2019 (circa 91 days) – £232.07.
2. October 2019 to May 2020 (circa 213 days) – £520.11.
3. October 2020 to May 2021 (circa 212 days) – £728.39.
This shows that the resident paid £1,480.57 for heating and hot water for the period affected (circa 516 days). This includes a heating service that, for a lengthy period of time, the resident repeatedly reported she was not receiving.
In the Ombudsman’s opinion, the compensation is not fully proportionate to the inconvenience that this caused to the resident, and requires further redress to put matters right. This means this Service considers it appropriate to make a finding of service failure, which would have been a finding of maladministration had the landlord not taken some positive steps to acknowledge and provide redress for its failings. It is not evident that the hot water service was affected as well as the heating, and therefore the Ombudsman orders the landlord to pay the resident £740, in recognition of the further inconvenience she will have been caused by paying for a service that she repeatedly reported she was not receiving.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the resident’s reports about faulty heating caused by an ongoing leak.

Reasons

The landlord acknowledged service failures for the heating issues and went a long way to remedy the complaint. However, it did not demonstrate that it considered compensation in accordance with its compensation policy, nor was the compensation offered fully proportionate to the inconvenience caused to the resident.

Orders and recommendations

Orders

The landlord to, within four weeks, pay the resident:
1. £3,625 it offered previously, if this has not already been paid.
2. £740 for the further issues identified.
The landlord to, within six weeks, review the case to ensure it awards compensation in accordance with its policy. As part of this, it should consider if any clarifications or changes are required to its compensation policy and process, to ensure that compensation for loss of heating and hot water service is considered and processed where relevant by appropriate complaints, repairs and service charges departments.

Recommendations

The landlord to review the case and this Service’s spotlight report on complaints about heating, to consider further learning.
The landlord to liaise with the resident to provide written response to her queries about her service charges.
The landlord to review the approach for communal heating pipework leaks, including whether works to repair or replace leaking pipework at a property should include surface mounting them to make any future leaks easier to resolve.
The landlord should inform the Ombudsman of its intentions in respect to the above recommendation within four weeks.