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Westminster City Council (202228383)

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REPORT

COMPLAINT 202228383

Westminster City Council

8 January 2025

 

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 leaseholder 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. The complaint is about the landlord’s handling of the leaseholder’s report that a storage heater was not working.
  2. The Ombudsman has also investigated the landlord’s complaint handling.

Background

  1. The leaseholder of the property complained to and corresponded with the landlord. However, he sub-lets the property, which is a 1-bedroom 7th floor flat, and did so at the time of the complaint.
  2. On 9 December 2022 the leaseholder complained to the landlord on a complaints form. He said that the landlord had told him that he must repair a broken storage heater in the bedroom of the property. However, he thought that the landlord was responsible. The landlord did not log this as a complaint because it decided that this was a service request. It told the leaseholder in writing on 22 December 2022 that storage heater replacement and maintenance was his responsibility.
  3. The leaseholder sent a further 3 emails during January 2023 in which he said that his position was that the landlord was responsible for repairing the storage heaters. He said that it had previously replaced a storage heater in the property in 2014 and that it had not told him about a change in policy regarding this. The landlord responded and explained that the heating system in the building was not communal and that it had previously replaced a storage heater because it was under warranty. However, according to the lease, the leaseholder was responsible for repairs to storage heaters.
  4. The resident contacted this Service for assistance and on 4 April 2023 we asked the landlord to log a complaint. The landlord acknowledged receipt of the complaint the same day.
  5. The landlord provided a stage 1 complaint response on 13 April 2023. It did not uphold the complaint. It explained that it had de-escalated his complaint of 9 December 2022 and responded to it as an enquiry. It said that in accordance with the lease the leaseholder was responsible for maintenance of the storage heaters. However, in the past there “were instances where repairs to leaseholders heaters had been done in error” and apologised for the confusion this had caused.
  6. The leaseholder asked the landlord to escalate the complaint to stage 2 of the complaints process on 18 April 2023 because:
    1. The landlord had not told him that it had closed his original complaint.
    2. In his opinion, the lease confirmed that the landlord was responsible for repairing or replacing storage heaters and he had concerns that it also prevented him from changing the storage heaters to an alternative.
    3. The landlord had replaced a storage heater in the past which had set a precedent.
  7. The landlord acknowledged receipt of the escalation request on 26 April 2023 and responded on 23 May 2023. This included the following:
    1. It apologised for the confusion caused by incorrectly replacing a storage heater in the past and confirmed that it had improved its processes to make sure this did not happen again.
    2. It confirmed that it had now given the leaseholder the correct advice. This was that it was not responsible for repair or replacement of the storage heaters at the property. This was because the heating and hot water system in the building was not communal.
    3. It apologised that following his dissatisfaction with its response to his initial enquiry it had not logged a complaint.
    4. It said that the seventh and ninth schedules of the lease stated that the leaseholder was responsible for maintenance of the storage heaters.
    5. It clarified that it did not supply heat or hot water to the property. However, it did supply electricity and he could opt out of this and install a new system in the property subject to approval. As detailed in its alterations policy.
  8. Following the period of the complaint, the landlord decided to replace the storage heater and told this Service that it did this as a gesture of goodwill. However, the leaseholder has advised that the landlord told him verbally that it replaced the storage heater because it was its responsibility.

Assessment and findings

Scope of Investigation

  1. What we can consider is called the Ombudsman’s jurisdiction and is set out in the Scheme. Paragraph 42(f) of the Scheme says that the Ombudsman may not consider complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.
  2. We are unable to give a legally binding interpretation of contractual clauses in the lease as this is more appropriate for a solicitor or the courts. Therefore, this investigation will purely focus on whether the landlord handled the leaseholders request appropriately based on the evidence provided.

Storage heater

  1. The heating within the property is powered by a cyclo-control heating and hot water system. Residents of the block pay the landlord for the electricity they use in their individual properties via a service charge. The leaseholder handbook of 2021 states that this is an internal system within each property and not a communal system. It says that leaseholders are responsible for repairs to their “in-flat system”.
  2. The seventh schedule of the lease at paragraph 5 states that the leaseholder should “keep in good and substantial repair and condition… all fixtures and fittings…including cisterns, tanks, drains, pipes, cables, and any other things installed for the purpose of supplying gas, electricity…installed or used only for the purposes of the demised premises excluding installations for the communal supply of heat and hot water to the property”.
  3. The ninth schedule of the lease states that the landlord is responsible for keeping in good repair the main structure of the property excluding “electrical and other fittings inside any individual flat for which the Owner thereof is responsible under any provisions in his lease corresponding to Paragraph 5 of the seventh schedule”.
  4. When the resident reported the issue, the landlord replied within a reasonable time and gave a reasonable explanation why it was not responsible for replacing the storage heater. It gave full details on the cyclo-control heating system and an explanation of why this was not a communal heating system. It later apologised for the confusion caused by it replacing a storage heater in error previously and gave assurance that it had amended its procedures to ensure that this would not happen again.
  5. Within the complaint responses it gave a reasonable explanation of why it was not responsible for replacing the storage heater based on its understanding of the lease. It also clarified its position on the leaseholder’s concerns regarding installing an alternative heating system.
  6. However, there is evidence that the landlord previously replaced a storage heater in the property in 2014. There is also evidence that the landlord noted on its system in June 2019 that because a leaseholder owned the property it should not raise any further jobs to repair the heating or hot water unless the issue was caused by the cyclo-control heating system itself.
  7. The fact that the landlord had replaced a storage heater in the past raised the leaseholders’ expectations that this was its responsibility. Its records indicate that it realised this error in 2019. While it would have been good practice for it to inform the resident of this at that time to clarify what heating and hot water repairs it was responsible for and prevent any further confusion, it was not obliged to do so.
  8. Therefore, there was no maladministration in the landlord’s handling of the leaseholder’s report that a storage heater was not working. While it was a good use of discretion to later replace the storage heater, confusion remains regarding this. Therefore, a recommendation has been made for the landlord to clarify its position in writing.

Complaint handling

  1. The landlord’s complaint policy says that if it decides not to accept a complaint it will advise its’ customers why their issue is not covered by the policy and what other action they can take.
  2. The Housing Ombudsman’s Complaint Handling Code (the Code) in place at the time said that “if a landlord decides not to accept a complaint, a detailed explanation must be provided”.
  3. The leaseholder complained on 9 December 2022 using the landlord’s complaint form. The landlord decided that this was a service request, not a complaint, and de-escalated it. However, it did not communicate this to him or advise him what other action he could take. This failure to follow its policy and the Code cost the leaseholder time and trouble because he had to contact the Ombudsman for assistance. It also delayed his access to an investigation by this Service.
  4. The landlord failed to acknowledge this error and offer to put things right. Therefore, there was service failure in the landlord’s handling of the leaseholder’s complaint and an order has been made for it to pay £75 compensation to reflect the time and trouble this caused. This is in line with the Ombudsman’s remedies guidance.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme there was no maladministration in the landlord’s handling of the leaseholder’s report that a storage heater was not working.
  2. In accordance with paragraph 52 of the Scheme there was service failure in the landlord’s complaint handling.

Orders and recommendations

Orders

  1. The Ombudsman orders the landlord to pay £75 compensation to the leaseholder for the time and trouble caused by its complaint handling failure.
  2. The landlord must apologise to the leaseholder in writing for the service failure identified.
  3. The landlord must provide proof of compliance with these orders within 4 weeks of the date of this report.

Recommendations

  1. The landlord should clarify its position regarding its repair responsibilities for storage heaters and the heating and hot water system in writing to the leaseholder.
  2. The landlord should consider communicating with all leaseholders of properties that use cyclo-control heating to ensure that they are fully informed of the landlord and leaseholder repair responsibilities.
  3. The landlord should ensure that the measures it detailed in the stage 2 complaint response to improve processes so that it does not replace storage heaters in error again have been implemented.