Southwark Council (202114064)

REPORT

COMPLAINT 202114064

Southwark Council

30 June 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

The complaint is about the landlord’s:
1. Handling of the resident’s reports of no heating or hot water in the property between 1 January 2021 and 14 January 2021.
2. Complaint handling.

Background

The resident is a secure tenant of the landlord, and the property is a flat. The heating and hot water are provided by a communal boiler.
The resident made a formal complaint on 15 January 2021, as he was unhappy that he was left with no heating and hot water between the evening of 1 January 2021 and 14 January 2021. He said that when he raised the issue he was told that, because it was a weekend, he would have to wait until the first working day (Monday 4 January 2021) as this did not qualify as an emergency. He said he called on 4 January 2021 and was told that it was an issue with the communal boiler and it would be fixed by the end of the day. When an engineer attended his property on 14 January 2021, the engineer fixed the issue, which was attributed to a faulty ‘pin’ (an actuator, a component part of the boiler in the property), which he felt concurred with his own theory that it was not a communal issue.
As a resolution, the resident requested a refund of his heating and hot water service charges for the above period, plus additional recompense to cover his electricity usage, as he was using temporary heaters to heat his property. He also wanted compensation for the time and trouble spent pursuing a resolution.
In the landlord’s stage one complaint response, dated 22 January 2021, it provided details from its heating contractors that related to both the resident’s property and the communal boiler between 5 January 2021 and 13 January 2021. It explained that service–charge rebates are paid for outages that affect the whole block, and that are out for more than 24 hours, with a total loss of heating and hot water, as opposed to a partial loss. As such, any outages that fit this criteria would automatically be reimbursed to the resident’s rent account. The landlord apologised for the inconvenience caused but stated that compensation would not be paid for the outage as it did not meet these criteria. That said, it offered £50 compensation in acknowledgment of the time and trouble.
The resident escalated the complaint on 1 February 2021 on the basis that he felt the response was deliberately vague, especially in regard to the job references he had provided, in an attempt to downplay the length of time he was without heating and hot water and to deny the severity of the situation. He accused the landlord of mixing communal issues with individual issues, contending that any communal problems were purely coincidental, and the root cause was due to a faulty actuator which the landlord had failed to identify previously.
Due to not receiving a response, the resident re-requested that the landlord escalate his complaint to stage two on 3 March 2021. The landlord confirmed the complaint had been escalated in an email dated 4 March 2021.
A further fault was reported with the resident’s heating and hot water on 25 May 2021, with a repair subsequently completed on 28 May 2021.
In the landlord’s stage two complaint response of 6 August 2021, it partially upheld the complaint on the basis that it was clear that the resident had experienced multiple issues with his heating and hot water and not all were related to communal problems. The individual issues were not addressed at stage one and the details of the works were not provided to him. The landlord provided additional details of both the communal and individual outages, from 5 to 13 January 2021. It explained that due to the duration of the communal outages, there would not be any automatic service charge payment made, as the communal outages did not last longer than 24 hours, with the longest outage being 10 hours. This, it said, left a period between 9 and 12 January 2021 where there were no issues affecting the communal service.
Based on its records in relation to the resident’s individual property, it concluded that:
1. There was a period where the resident was without hot water from 9 January 2021 until 15 January 2021.
2. There was a period where the resident was without heating from 12 January 2021 until 14 January 2021.
It explained that, as some of the days overlapped, it was not able to award compensation for the total of eight days; but instead compensation would be based on a total of six days. It awarded compensation for the individual property outages at £3 per day. This therefore amounted to £18.
The landlord did not increase the £50 awarded at stage one for time and trouble. But it did offer a further £50 for the failure to escalate the resident’s complaint to stage two in a timely manner. Thus, the resident was offered £50 for time and trouble, £18 for the six individual days of heating and hot water outages, and £50 for the delay in providing the stage two response, totalling £118.
The resident brought this complaint to this Service as he remained dissatisfied with the compensation amount offered.

Assessment and findings

Scope of Investigation

The resident has previously brought a separate complaint to this Service relating to similar issues with the heating and hot water provision serving his property, for which this Service has made a determination on. This related to the period between September 2019 and December 2020. For clarity, though similar in nature, this was a separate complaint to the one addressed in this report and is mentioned only to differentiate between the two time periods. In accordance with Paragraph 39 (o) of the Housing Ombudsman Scheme, this Service cannot make a determination on matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.
It is also noted that the resident has raised concerns over the impact the lack of heating and hot water has had on his health and wellbeing. The Ombudsman does not doubt the resident’s comments regarding his health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is because we do not have the authority or expertise to do so in the way that a court or insurer might.

Policies and Procedures

The landlord’s repair guide stipulates that the landlord is responsible for the repair and maintenance of installations that bring services like water, gas, electricity, boilers and heating. The repair guides categorise three types of repair: emergency, urgent, and non-urgent. The total or partial loss of heating or hot water between 1 October and 31 March is classified as an emergency repair. For emergency repairs, the landlord’s contractor will attend within 24 hours.
The landlord’s complaint policy stipulates that it has a two-stage complaint procedure. At stage one, the complaint will be acknowledged within three working days, fully investigated and a full written response will be provided within 15 working days. At stage two, the complaint will be acknowledged within three working days and the it will aim to respond within 25 working days. In some cases, this may take longer; and if so a tenant will be informed via post if there are any delays in investigating the complaint.
In the appendix of the complaints policy, in use at the time of the complaint was raised (effective from April 2013), it stipulates the levels of compensation that can be awarded when it is appropriate and proportionate to do so. The landlord had three categories detailing the severity of the impact on a complainant as follows:
1. Low impact: where the complainant has just cause but has not suffered significant inconvenience or distress as a result of the events.
2. Medium Impact: The events are clearly an injustice to the complainant and the service has failed to meet the required standards. A repeated failure by it to address the shortcoming, even of a low impact event, could give rise to consideration of medium impact level of compensation.
3. Major Impact: A serious failure in service standards. It could either be the severity of the event or a persistent failure over a protracted time or an unacceptable number of attempts to resolve and address the complaint. Major impact could also apply to expenses incurred by the complainant.
For time and trouble, compensation between £50 and £250 will be considered when, for example, response times are not adhered to and if the complainant has required to put unnecessary time and effort to resolve an issue.
For loss of opportunity, compensation between £50 and £250 will be considered if the landlord is unable to remedy any loss of opportunity and an apology under the circumstances does not seem to be enough.
In the landlord’s compensation policy, effective from 1 May 2021, it includes a section detailing the compensation guide for the loss of heating and hot water, which states that:
1. For communal heating or hot water outages lasting longer than 24 hours, it will automatically pay £3 for each day for the duration of the outage. This payment takes into consideration the reasonable costs incurred by residents using electric fan heaters during outages in relation to the additional electric usage. In addition, it says that properties with individual boilers, the same tariff will be applied when a complaint is submitted.

The landlord’s handling of the resident’s reports of no heating or hot water in the property between 1 January 2021 and 14 January 2021

It is not disputed by either party that the resident had experienced some loss of heating and hot water in his property in the early part of January 2021. What is in dispute, however, is the duration the resident was without these facilities. The resident states he was without heating and hot water for almost 14 days, as well as the root cause of the issue, which he attributed to an issue with a component part of his boiler. In contrast, the landlord concluded that the resident was only without heating and hot water for a total of six days, between the dates of 9 to 15 January 2021, with the remaining outages (dated from 5 January 2021) being attributed to communal boiler issues, which were fewer than 10 hours in duration and thereby not eligible for compensation because they did not meet the criteria of a 24 hour outage.
When there is a disagreement regarding the root cause of an issue and the length of time that the said the issue was apparent, the onus is on the landlord to provide documentary evidence showing how it satisfied itself that the cause of the outage was not solely an individual issue, and that the length of time without heating and hot water could be clearly established. In this case, the landlord’s records do not satisfactorily establish either of these two factors.
The landlord came to its conclusion using its repair records for both the resident’s individual property as well as the communal outage reports for the period from 5 to 15 January 2021. To be clear, it is reasonable for a landlord to rely on its repair records when determining what repairs took place and when. The issue, however, is that the landlord’s records in this instance were not sufficient enough to establish a clear timetable.
For example, in the resident’s initial complaint, dated 15 January 2021, he informed the landlord that he first reported this on the weekend (Saturday 2 or Sunday 3 January 2021) having discovered he was without heating and hot water on the evening of 1 January 2021. He also said he made contact again on 4 January 2021 and daily thereafter only to be told that the issue had been resolved. However, from the information provided by the landlord, there is no clear record of when the issue was first reported. The landlord did not dispute the dates the resident provided, but equally did not use them to calculate the length of the outages. The landlord’s records do not provide specific information about a first report.
More importantly, as this was a total or partial loss of heating or hot water between 1 October and 31 March, this should have been classified as an emergency repair. For emergency repairs, the landlord’s contractor should attend within 24 hours. Whilst the repair records do demonstrate the landlord attended within 24 hours on most occasions after 5 January 2021, it does not show that it attended following the resident’s initial report of the matter on 2 or 3 January 2021, as there was no call log provided.
Similarly, the repair records, along with the landlord’s complaint responses, do not offer an explanation as to the root cause of the issue, which could have, in turn, provided an indication of the duration the resident was without heating and hot water. In other words, if it was an individual component on the resident’s boiler that was only later repaired, this could have implied that the communal issues were merely coincidental and the resident’s claims that this was solely an issue relating to his boiler were likely accurate. However, from the information provided, it is still unclear as to what the root cause of the issue was.
Having conducted its investigations during the ICP, the landlord could either conclude what the cause of the issue was or that it would need to undertake investigative works. Indeed, if the landlord sought the expert opinion of its contractor as to the root cause, it may be the case that the landlord could conclude whether it was likely that the issue would have left the resident without heating and hot water for the entire duration (approx.13 days), or whether this was unlikely. These issues were not addressed however.
It is worth noting that even the landlord mentioned its unclear record keeping being unhelpful to its investigation in its stage two complaint response in which it apologised for not investigating the errors in relation to job references, stating that these errors should have been looked at more closely.
Moreover, a further lack of clarity was apparent when, in internal emails, dated 19 July 2021, the landlord acknowledges that a work order was recommended in January 2021 to change the pin/insert but was not carried out at the time due to Covid restrictions. Other internal correspondence, however, dated 21 January 2021, states the insert was changed on 13 January 2021. Correspondence from the resident suggest this was completed on 14 January 2021, whereas the landlord’s stage two response was unable to confirm when the repair took place.
In this situation, the landlord should be relying on the repair records to offer clarity as it would be expected that these are detailed enough to show what repairs took place and when. The landlord’s records do not provide clarification on the two contested issues: the duration of the loss of heating and hot water in the property and the root cause of the issue.
In terms of the resident’s complaint that the compensation was inadequate:
1. The resident has claimed that the landlord initially agreed to cover the difference in the electricity bills but later rescinded this offer, due to a change in policy. This offer was not part of the complaint and supporting information about the complaint was not provided with the case. Therefore, this report will not comment further on the matter. Nevertheless, we will take into consideration whether the landlord’s offer of compensation was proportionate and reasonable.
2. The resident has provided copies of his electricity bills as evidence of his additional costs incurred. However, much like the previous case which did not use the electricity bill increase to determine the compensation amount, this report too will refrain from doing so for the same reason: that it would be difficult to base this compensation on the resident’s electricity bill because there may be various reasons why electricity usage may be higher compared to the same period the previous year.
As noted above, it is unclear how many days the resident was without heating and hot water. It was, however, established via the landlord’s records that there were six days that could not be attributed to communal issues and, therefore, as a process of elimination, were attributed to an issue with the resident’s boiler. The landlord acknowledged this failing and ordered compensation accordingly.
In the previous case, the Ombudsman found that the landlord did not consider compensation for the individual outages similar to those awarded for communal outages. In May 2021, the landlord duly changed its compensation awards to reflect this anomaly, and thus, from May 2021, the same tariff would be applied to to properties with individual boilers who suffered a heating or hot water outage that lasted longer than 24 hours (£3 for each day for the duration of the outage).
In view of this, the landlord’s offer of £18 for the six-day outage identified was in line with its compensation policy, which also takes into consideration the reasonable costs incurred by residents using electric fan heaters during outages.
It is acknowledged that the resident believes that the compensation should increase because the outage happened before the change in policy in May 2021. However, this Service is satisfied that the offer provides a proportionate amount that satisfactorily resolves the complaint.
In regard to the £50 offered at stage one in recognition of the time and trouble spent chasing a resolution, this was in accordance with the landlord’s compensation guide for time and trouble as the resident put unnecessary time and effort to resolve an issue. Whilst it is unclear how many times the resident chased a response from the landlord, the duration was not excessive.
In summary, whilst the landlord has acknowledged some failings and offered proportionate redress as a result, there were issues with its record keeping that merit further redress to put matters right for the resident.

The landlord’s associated complaint handling

It is not disputed that there was a delay in escalating the resident’s complaint to stage two, for which the landlord offered £50 compensation in recognition of the failure to escalate the complaint in good time. However, this amount does not provide proportionate redress when we consider the length of the delay.
Having escalated his complaint on 1 February 2021, the resident did not receive an acknowledgement of this request until 4 March 2021, which was considerably outside the expected three working days as set out in the complaints policy, with the resident having to chase a response on 3 March 2021.
Even so, the landlord did not escalate the complaint until 7 July 2021, according to the stage two response. Yet further still the resident did not receive the stage two response until 6 August 2021, which was again an excessive delay and outside the 25 working days with which the landlord aimed to provide its response.
The landlord acted appropriately in apologising to the resident for the delay and it clearly recognised and accepted that its service had been poor. However, the compensation offered was disproportionately low.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its:
1. Handling of the resident’s reports of no heating or hot water in the property between 1 January 2021 and 14 January 2021.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in the:
1. Associated complaint handling.

Orders and recommendations

The Ombudsman orders the landlord to pay the resident compensation of £268, comprising:
1. £18 for the six-day outage identified in the stage two complaint response;
2. £50 for time and trouble;
3. £100 for its poor record keeping; and
4. £100 for the landlord’s failings in its complaint handling.
The above amount includes the £118 previously offered during the ICP. If this amount has already been paid, the remaining amount to be paid is £150. The above should be completed within four weeks of the date of this assessment.
It is also recommended that the landlord write to the resident confirming whether the repair in May 2021 was related to the January 2021 repair, and whether it has now provided a permanent resolution.