Westminster City Council (202206250)

REPORT

COMPLAINT 202206250

Westminster City Council

29 March 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:
1. The landlord’s response to the loss of heating in the property.
2. The landlord’s response to the resident’s reports of noise from the heating pipework.
3. The landlord’s complaint handling.

Background

The resident is a leaseholder and the original lease began on 19 June 1989. The lease was then transferred to the resident on 11 November 2005. The property is a one-bedroom flat, which is served by a communal heating and hot water system.
The landlord’s leaseholders’ handbook confirms that the landlord is responsible for repairs to communal heating and hot water appliances and its tenants’ handbook states: “Some of our blocks have communal systems that provide heating and hot water…Hot water is provided with these systems all year and heating usually between October and the end of May. This is flexible if the weather is very cold”.

Summary of events

On 15 January 2021, the landlord’s communal heating system developed a fault due to damaged pipework. The fault resulted in 14 properties, including the resident’s flat, having no heating. The resident was provided with two temporary heaters while the heating was off.
An email sent by the landlord on 21 January 2021 to one of the local councillors indicates that asbestos was present in the plantroom and this had to be removed prior to the engineers carrying out repairs to the communal heating system.
On 21 January 2021 an order was raised by the landlord to carry out repairs to the communal heating system to address noise from the pipework (this job was not related to the loss of heating).
The asbestos was removed from the plantroom on 22 January 2021 and the communal heating system was repaired on 23 January 2021 to restore heating to the properties affected. However, on the same day, the resident contacted the landlord to report that his radiators needed bleeding. The contractor attended on 23 January 2021 and bled the radiators.
On 24 January 2021, the resident advised the landlord that two of the radiators in the property were working but the main radiator was not providing heat. He emailed the landlord again on 25 January 2021 to say that the exit valve on the main radiator was broken. He asked the landlord whether he should continue using the two free-standing heaters that had been provided by the landlord. The landlord advised the resident to continue using them due to the cold weather conditions.
The resident wrote to the landlord on 26 January 2021 to confirm that the engineer had attended on that day and all of the radiators were now working.
The resident contacted the landlord on various occasions between January and December 2021 to report the noisy pipework.
The landlord’s repairs records show that a job was raised on 1 December 2021 to investigate noise from the communal pipework. On the same day, the resident emailed the landlord to confirm that a contractor had attended but was unable to resolve the issue because access was needed to a neighbouring flat. The resident confirmed that the noise was still ongoing.
The landlord’s repairs log shows that another job was raised on 7 December 2021 to investigate ‘noisy’ communal plumbing affecting the property. The notes in the repairs log indicate that the job was closed on 10 December 2021 as the tenant had confirmed to the contractor that the issue had been resolved.
On 17 December 2021, the resident submitted a stage one complaint to the landlord, in which he stated the following:
1. In January 2021, he was without heating in his flat and was provided with two temporary heaters. The loss of heating was for a period of 11 days and the resident said he was informed that he would receive reimbursement of £10 per heater per day.
2. He had been seeking compensation for the incident since January 2021, and he had now received an offer £22.44, which he said did not cover the use of the temporary heaters or the impact of the loss of heating.
3. In January 2021, he had reported the noise problems with the pipework, which consisted of high pitched noises occurring at various times of the day and night and therefore it affected his sleep.
4. A neighbour had reported the same noise issue to the landlord and the landlord had failed to connect the two sets of reports (the resident said he and his neighbour had reported the issue over 15 times).
5. The source of the noise was traced to a faulty tap in a neighbouring property and was resolved; however, he felt that the issue should not have taken 11 months to deal with.
6. The heating system had been switched on in September 2021 but the riser serving his property had been switched off and therefore the property did not receive heating during September 2021.
7. The resident had asked for a refund of the heating element of the service charges to cover the month of September 2021, but felt his request had been ignored.
8. He had requested the criteria for deciding whether to turn on the heating system, but had not been provided with the information.
9. The resident asked for any outstanding charges on his service charge account to be removed and for a guarantee to be given that the riser serving his property would not be switched off in the future.
On 25 January 2022, the landlord sent its reply to the stage one complaint and stated the following:
1. The landlord had checked its records and found that a job had been raised on 21 January 2021 for no heating and an engineer had attended on 23 January 2021. A further job had been raised on 25 January 2021 because the radiator in the bedroom was not working. An engineer attended the same day and then on 26 January 2021 to complete the repairs.
2. The landlord said it could not see any evidence on its system to show that temporary heaters had been provided to the resident.
3. The landlord said that the usual rate of compensation for residents who use temporary heaters is £2 per heater per day and therefore the landlord said it apologised if the resident had been misinformed about the rate.
4. As the jobs had been attended within the expected timeframe of five days, the landlord found there had been no service failure.
5. The landlord said it could see from its records that the noise issues had been reported “throughout 2021”. The contractor had carried out investigations, and on 6 December 2021 had found that the noise was emanating from a faulty tap in a neighbouring property. The contractor therefore changed the taps, which resolved the issue.
6. In terms of the lack of heating in September 2021, the landlord had checked its system and could not find any jobs involving the shutting down of the riser in September 2021 and therefore it could not find evidence of a service failure.
7. The landlord’s conclusion was that it did not uphold the resident’s complaint.
The resident wrote to the landlord on 28 January 2022 and stated that he wanted to escalate his complaint to stage two for the following reasons:
1. The landlord had not adequately recognised the cost of running the temporary heaters and the impact of the loss of heating on the resident in its compensation offer.
2. The noise problem had been reported at the start of 2021 and initially the contractor had not carried out investigations in any of the other properties apart from the resident’s flat.
3. The noise became louder and the resident reported it several times. The resident said it had affected his sleep, work meetings and his relaxation, and he felt that the contractor should have carried out more rigorous investigations. The resident felt that the landlord had not recognised the impact of the noise in its response.
4. The resident said the contractor had switched on the riser in the boiler room (in September 2021) and the heating was returned to the property.
5. The resident said he wished to claim compensation for the lack of empathy in the landlord’s response and because the tone and approach did not take into account the impact on him.
The landlord sent its stage two response on 16 March 2022, in which it stated the following:
1. The landlord said that the heating had been off for a five-day period in January 2021 and the landlord had provided the resident with new temporary heaters. A credit of £22.44 had been paid into the resident’s service charge account in December 2021. This part of the complaint was not upheld by the landlord.
2. The landlord accepted that the resident had reported the noise problem on several occasions and apologised for the distress this had caused. The landlord said that the contractor had only been able to trace the source of the noise to a defective tap in a neighbouring property after the neighbour had reported the problem on 30 November 2021. The work to remedy the fault was completed on 7 December 2021.
3. In relation to the lack of heating in September 2021, the landlord confirmed that the heating to the property had been isolated as part of essential maintenance to the pipework.
4. The landlord said that the heating is switched on annually from October to May. However, on 2 September 2021 it had switched on the heating to test the system and carry out any repairs. The resident would have experienced a loss of heating while the works were being carried out, but on completion of the work, the service was turned back on.
5. Once the system had been switched on, air had entered the pipework in the property and this prevented the radiators heating up. A contractor attended on 27 September 2021 and reinstated the heating.
6. The landlord said that it could not consider a refund for the loss of heating in September 2021 as it was only obligated to provide heating from October and therefore there had been no reduction in the service provided. The landlord partially upheld this part of the resident’s complaint on the basis that the work had taken longer than anticipated.
7. In recognition of the service failures it had identified, the landlord apologised and offered the resident compensation of £585, which consisted of:
  1. £35 for the inconvenience incurred during works to the heating system in September 2021;
  2. £440 for the distress and inconvenience caused by the ongoing noise issue from 21 January – 7 December 2021;
  3. £100 for the time and trouble taken to pursue the noise issue;
  4. £10 for the delay in concluding the landlord’s investigation.

Assessment and findings

Scope of the investigation

The Ombudsman is unable to investigate other matters reported to this Service by the resident, which have not exhausted the landlord’s complaints procedure, including:
1. The landlord’s response to a report produced by the landlord in 2018;
2. The resident’s report that there is a lack of transparency in relation to the landlord’s compensation scheme;
3. The resident’s query as to whether it is appropriate for the Housing Department to have a separate complaints policy to the rest of the council.
The landlord needs to be provided with the opportunity to investigate and fully respond to each of these points through its formal complaints policy before the Ombudsman becomes involved. The resident will need to contact the landlord and may wish to raise a new complaint with the landlord to resolve his ongoing concerns.

The landlord’s response to the loss of heating in the property

The landlord’s repairs policy states that repairs to communal heating systems are responded to within 24 hours.
The landlord’s compensation policy states that compensation “…is applicable to breakdowns in communal systems supplying heating and/or hot water. It is payable when a breakdown of over 24 hours has occurred and is paid in respect of full 24 hour periods only”. It goes on to say: “For prolonged breakdowns, an out of pocket payment could also be considered, for example, if the tenant has incurred additional heating costs through the use of temporary heaters”.
The landlord has confirmed to this Service that its policy is to switch on the communal heating system on 1 October each year.
The resident’s stage one and two letters identify two periods when his property did not receive heating from the communal heating system. The first was in January 2021 and the second was in September 2021.
In terms of the loss of heating in January 2021, the landlord’s stage one response stated that heating from the communal system was unavailable from 21 to 23 January 2021 and that one of the radiators in the property was not working from 25 to 26 January 2021. The landlord’s stage two response was consistent with its stage one letter and stated that the resident had been without heating for a five-day period in January 2021. However, the evidence, in the form of internal emails sent by the landlord, shows that there was no heating from the communal system from 15 to 23 January 2021 and that the main radiator in the property was not working from 23 to 26 January 2021. Therefore, the property was without adequate heating for 11 days during January 2021, and it was inappropriate for the landlord not to reflect this in its complaint replies.
Although the landlord had said in its stage one reply that it could not find any evidence to show it had supplied temporary heaters, the landlord corrected this in its stage two response and accepted that it had supplied the resident with two free-standing heaters during the period.
In December 2021, the landlord offered the resident compensation of £22.44 to cover the period he was without adequate heating. The figure appears to have been calculated based on a figure of £2 per day per temporary heater used, as stated in the landlord’s stage one reply. However, as the level of compensation was calculated based on incorrect information about the length of time the property was without heating, the amount of financial redress was not proportionate to cover the loss of heating and the additional electricity costs incurred. Also, the resident stated in his stage one complaint that he had been seeking compensation since January 2021 for the heating breakdown and he had “been routinely sent round the houses”. The landlord’s stage one reply confirmed that the resident was offered £22.44 in December 2021. Therefore, it took ten months after the incident for the landlord to offer the resident compensation. This delay in offering compensation was unreasonable.
The landlord’s compensation policy makes it clear that residents should be compensated for a loss of communal heating after the first 24 hours. Therefore, as the resident experienced a loss of heating for 11 days, the resident should have been offered compensation to cover ten days’ loss of heating. The landlord should have been aware from its records that the property had been without adequate heating for 11 days and therefore should have offered appropriate financial redress within a reasonable timeframe after the service was restored. The landlord’s failure to do so, meant that it did not take appropriate steps to put things right. The impact on the resident was that he did not receive timely reimbursement of his additional electricity costs and he faced the time and trouble of pursuing the landlord for compensation, including going through the landlord’s complaint process. This Service has therefore ordered compensation of £320 for the loss of heating in January 2021, which is made up as follows:
1. The additional electricity costs in using the temporary heaters: £140
2. The delay in repairing the communal heating: £30
3. Time and trouble in pursuing the compensation: £150
The amount the resident was told he would receive for using the temporary heaters is disputed. The resident states that he was advised he could claim £10 per heater per day, whereas the landlord has said that its rate is £2 per heater per day. This Service has therefore calculated a level of compensation that the Ombudsman considers to be reasonable. The additional electricity costs have been calculated using average electricity unit costs published by the Government (the calculation covers ten days because the landlord advised the resident to continue using the heaters after the communal heating had been partially restored). The figure for the delay in repairing the communal heating is based on the formula used in the Right to Repair Regulations 1994.
In terms of the loss of heating in September 2021, the landlord stated in its stage two reply that on 2 September 2021 the heating had been turned on in order to allow testing of the system prior to the winter period. The landlord said that the resident experienced a loss of heating while works were carried out to the system. Air was then found to have entered the pipework, which prevented the property receiving adequate heat. The resident disputes this version of events and in his stage two complaint refers to a conversation he had with one of the heating engineers in September 2021. The resident states that the engineer pressed a button in the boiler room and the heating was restored to the property.
Whilst this Service is not questioning the information provided by the resident, the landlord’s tenants’ handbook states that communal heating is switched on in October each year and therefore this supports the explanation given by the landlord, particularly as September 2021 was a very warm month (the second warmest on record for the UK according to the Met Office). Therefore, based on the available evidence, the landlord acted reasonably in switching the heating on in September 2021 to test the system. The air within the pipework that was preventing heat from reaching the property was addressed by the landlord’s contractor on 27 September 2021 and therefore the resident’s property was able to receive heating from the system before 1 October 2021, which is the usual date for switching on the heating.
Based on evidence provided to this Service by the resident and the landlord, the landlord did not notify residents in advance of its actions to switch on the heating for testing and therefore there was a shortcoming in relation to its communication with residents. This Service understands the resident’s frustration that he was not made aware in advance that the heating was to be switched on and also that his property did not receive heating, while others did. Therefore, it was right that the landlord offered him compensation. The landlord offered the resident £35 compensation “for the inconvenience incurred during works to the heating system in September 2021”, which was a reasonable level of financial redress in the Ombudsman’s view.

The landlord’s response to the resident’s reports of noise from the heating pipework

The landlord’s compensation policy states that the one-off compensation rate in relation to distress and inconvenience is “£500 – £2000 per year dependent on the severity, number of people affected and risk to health and safety”.
The landlord’s repairs log shows that it raised an order on 21 January 2021 to carry out repairs relating to noisy pipework. The repairs log does not show whether a contractor attended to investigate the noise and, according to the repairs log, the landlord did not raise further orders to investigate the noise until 1 and 7 December 2021. The notes to the latter job state that the resident confirmed the noise had been resolved by 10 December 2021. The problem therefore took the landlord over ten months to resolve, which was excessive. The landlord confirmed in its stage one and two letters that the noise had been caused by a defective tap in one of the other flats served by the communal heating and hot water system.
The landlord has accepted that it was contacted by the resident several times during 2021 to report the noise problems, and in its stage two reply, the landlord apologised for the distress this had caused him. It went on to say that more should have been done to find the fault and that the resident should not have been subjected to the noise for such a long period of time. The landlord offered compensation of £540 for the delay in dealing with the noise problem. This sum was calculated as follows:
1. 21 January to 7 December 2021 was 321 calendar days. The pro-rata calculation was therefore (321/365)*£500, which was £440 (rounded);
2. An additional £100 was offered for the time and trouble in pursuing the matter with the landlord.
It is clear from the resident’s correspondence, including his stage one and two complaints, that the noise from the pipework caused him a great deal of stress. The landlord said a mitigating factor was that the design of the estate had made it “extremely difficult to trace and resolve” the issue. However, given the delay in addressing the problem, it was right for the landlord to apologise for the delay and to offer financial redress. The amount offered by the landlord was in the range of levels stated in its compensation policy for cases where there has been distress and inconvenience. Therefore, the landlord’s apology and offer of financial redress for the delay in dealing with the noise problem were appropriate for failing to deal with the repair in a timely manner.
In contacting this Service, the resident said that he had experienced “psychological trauma” as a result of the noise. This Service cannot draw conclusions on the impact of issues on the health and wellbeing of residents. Such matters are usually dealt with through the courts as part of a personal injury claim.

The landlord’s complaint handling

The landlord operates a two-stage complaints process. It aims to respond to stage one complaints within ten working days and stage two complaints within 20 working days. The policy states that some complaints may take longer to investigate than the published timescales. Where this is the case, a holding response will be sent explaining the reason for the delay and the timescale for the resident to receive a full response.
The resident submitted a stage one complaint on 17 December 2021 regarding the loss of heating in January and September 2021 and the noise issues with the pipework. The landlord replied to the stage one complaint on 25 January 2022, which was 24 working days after receiving the complaint. The landlord therefore took longer to respond than its published timescale and the landlord did not apologise for the delay in its stage one letter. Also, this Service has not seen any evidence that the landlord sent a holding letter or email to the resident to explain the reason for the delay. The time taken to respond to the stage one complaint was therefore inappropriate.
In terms of the quality of its stage one letter, the landlord did not identify that the property had no heating from the communal heating system from 15 to 23 January 2021 and that the main radiator in the property was not working from 23 to 26 January 2021 (ie the property had been without adequate heating for 11 days). The landlord had also failed to identify that two temporary heaters had been provided to the resident by its contractor. Finally, although the landlord acknowledged that the resident had reported the noise problems with the pipework “throughout 2021”, it did not apologise for the delay in resolving the issue or offer any financial redress. Some of the contents of the landlord’s reply suggest that it did not adequately investigate the issues raised by the resident and therefore this was unreasonable. The Ombudsman’s complaint handling code (available on the Housing Ombudsman’s website) states: “A complaint investigation must be conducted in an impartial manner, seeking sufficient, reliable information from both parties so that fair and appropriate findings and recommendations can be made”.
The resident also commented in his stage two complaint that he was unhappy with the tone and approach of the stage one response. As has already been mentioned, the landlord should have apologised for the delays in responding to the complaint and dealing with the noise problem, and the landlord should have offered financial redress to put things right. The Ombudsman’s complaint handling code states: “Where something has gone wrong a landlord must acknowledge this and set out the actions it has already taken, or intends to take, to put things right”. The landlord’s failure to do so, meant that the resident had to pursue his complaint to the next stage in order to seek a fair outcome.
The resident wrote to the landlord on 28 January 2022 to ask for his complaint to be escalated to stage two and the landlord responded on 16 March 2022. The landlord therefore took 33 working days to respond, which was again longer than its published timescale. However, the landlord did acknowledge the delay and offered the resident £10 “for the delay in concluding this investigation”. Although it was right for the landlord to offer financial redress, given that there was a delay at both stages of the complaints process and the landlord had failed to apologise for the delay in its stage one reply, the view of this Service is that the offer of £10 was not proportionate. Compensation of £50 would be reasonable in the circumstances, as it is in line with the Ombudsman’s remedies guidance where there has been a failure by the landlord and it did not appropriately acknowledge this.
In terms of the quality of its stage two response, again the landlord did not identify the correct period that the resident had been without adequate heating due to the defective communal heating system and therefore this was unreasonable. It meant that the resident was not appropriately compensated as the landlord’s compensation offer was based on incorrect information. The Ombudsman has therefore ordered further compensation of £50 to reflect the lack of adequate investigation by the landlord at both stages of the complaints process, which resulted in inaccuracies. The remaining aspects of the landlord’s stage two reply were, however, reasonable in that:
1. The landlord had carried out sufficient investigations to confirm that the resident had been given two temporary electric heaters;
2. The landlord provided an explanation for the loss of heating in September 2021 and offered financial redress for the inconvenience incurred;
3. The landlord acknowledged that it had taken too long to resolve the noise problem and offered financial redress for the “distress and inconvenience”;
4. The landlord acknowledged and apologised that aspects of the resident’s complaint were not adequately addressed at stage one of the process.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the loss of heating in the property.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in its response to the resident’s reports of noise from the heating pipework.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its complaint handling.

Reasons

The landlord did not offer adequate financial redress to the resident for the loss of heating and the cost of running the temporary heaters during January 2021. Also, the landlord failed to offer compensation within a reasonable timeframe after the heating was restored.
The landlord apologised and offered appropriate compensation for the delay in dealing with the noisy pipework.
The landlord delayed responding to the resident’s stage one and stage two complaints. Also, the landlord’s replies contained inaccuracies, suggesting a lack of adequate investigation prior to responding.

Orders

The landlord is ordered within four weeks of this report to:
1. Pay the resident a total of £320 for the loss of heating and use of temporary heaters in January 2021 (this sum includes the £22.44 already offered by the landlord);
2. Pay the resident the £35 offered by the landlord for the heating issues in September 2021, if this has not already been paid;
3. Pay the resident £100 for complaint handling failures (this includes the £10 already offered by the landlord).

Recommendation

The landlord should reoffer the resident the £540 for the delay in resolving the noisy pipework, if this has not already been paid.