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Barnsbury Housing Association (201800265)

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REPORT

COMPLAINT 201800265

Barnsbury Housing Association

7 August 2024


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example, whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of repeated repairs to the heating and hot water system.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background  

  1. The resident moved to the property, a 2 bedroom first floor flat, with his daughter who has cerebral palsy, in 2013. It was initially a starter tenancy, which converted to an assured shorthold tenancy after 12 months. The resident lived at the flat until late 2023, when he moved to another property by way of a management transfer. The complaint refers to the tenancy at the first property.
  2. The building where the resident lived contained 12 flats and was built in 2013. It has air source heat pumps and underfloor heating which the landlord says produces a different form of heat to a gas boiler. It provides a more gentle, consistent heat over time and is designed to be kept on at a low setting to ensure adequate heat.
  3. The resident has raised issues with the heating since 2014. Following a complaint in 2018 the landlord instructed an independent expert on renewable heating systems and a specialist heating engineer. The system was serviced, a pump replaced and a recommendation made to change the controllers to allow a better distribution of heat. This work was completed and the heating system was deemed to be working fully. Having issued its stage 2 response to the complaint, the landlord paid the resident £500 compensation in November 2018, to recognise that he had had problems and as it had not dealt with the complaint properly.
  4. Matters escalated again in 2021 and the landlord has said it got the specialist heating expert to work with the resident to assess whether the heating was working and discuss how the system should be used. After this intervention and the annual service it was told the system was running effectively, supported by thermal imaging. The resident contacted this Service which suggested the landlord address his concerns under stage 3 of its complaints process.
  5. The resident instructed a solicitor that wrote to the landlord claiming disrepair in March 2022. An agreement was reached whereby some remedial work was agreed and completed in December 2022, and the landlord was told the heating was working well. However, in January 2023, the resident again said the heating was not working and the landlord explained it wanted to put monitors in to take readings to get a clear picture of the heat distribution. The resident was having difficulty with availability due to work, and asked for his complaint to be heard at stage 3, before any more visits took place.
  6. It is important to explain that, in the interests of the Ombudsman investigating issues that are still ‘live’, it is our practice to limit the scope of our investigations to a reasonable period prior to the formal complaint being made (reflected at paragraph 42(c) of the Scheme). Therefore, while earlier reports of issues provide important context to the current complaint, this investigation is focused on events from 2021 onwards, when the complaint was actively pursued most recently (albeit via stage 3 of the landlord’s complaint process).

Summary of events

  1. The resident complained to the landlord on 6 January 2021 about his heating because he said it was still not working properly and this had been an issue since 2014. He said he had no confidence in the landlord’s maintenance team. In the landlord’s response to the complaint of 8 January 2021 it said:
    1. Several engineers had inspected the system since 2018 and carried out maintenance. It acknowledged the system was complicated and difficult to operate.
    2. It was arranging for a specialist heating consultant (the consultant) to visit all 12 flats to find any commonalities with the system. It expected it to be on site week beginning 25 January 2021, but it would notify the resident in advance, asking for a preferred date and time to visit. It was the intention that the consultant would submit a report that contained a compilation of observed deficiencies with recommended actions necessary to provide residents with a heating system that was effective and easy to control. Recommended corrective actions would be undertaken by approved contractors thereafter.
    3. It would keep residents informed at each stage of this investigation.
  2. The resident reiterated to the landlord on 10 January 2021, that he was unhappy with his heating system, and as a heating engineer himself, he wanted to challenge the technical specification of the system. The landlord notified him on 26 January 2021 that the consultant would be attending on 2 February 2021. However, when it arrived that day, despite trying several times, it was unable to access the property.
  3. The landlord wrote to the resident on 2 March 2021, having been advised by this Service that he remained unhappy. It set out all the steps it had taken to resolve the heating issues and asked the resident for a time when the consultant could attend again. It wanted to look in to rewiring the system to enable each room to be controlled independently, and for the unit to be serviced. It then detailed the various steps it had taken to investigate and resolve the issues since the resident had first reported them.
  4. The landlord notes that a thermal imaging camera was used and the consultant had witnessed the heat circulating evenly within each room, so it was evident the system was working properly. Thermal imaging found there were no cold spots in the property and that a flush was not required. The consultant had also spent time with the resident explaining how the system should be used and what the consequences would be if it was not used according to the recommendations.
  5. The landlord wrote to the resident on 5 March 2021 acknowledging that he wanted his complaint considered at stage 3, which was a hearing with 2 or more board members. It followed this up with another letter on 8 March 2021 asking the resident to confirm he wanted a hearing.
  6. On 11 March 2021 the resident asked the landlord to send him copies of documentation relating to the heating. The following day, it sent him the commissioning certificate, EPC and floor plan and asked for some time to send the history of repairs (which it then did on 25 March 2021). The landlord then liaised with the resident about arranging a date for a further inspection, in order consider his further concerns.
  7. A inspection was carried out by the consultant on 13 September 2021. It said “on a visual inspection we could see that the heating system is working as intended”. It did though say it would recommend the switch for heat be rewired so any of the room thermostats could control and switch on the heating. In addition, to check air flows as the heat pump top light was indicating low pressure alarm on arrival which cuts out the compressor from running. The resident confirmed on 14 September 2021 that he was happy with the consultant’s assessment and to proceed as recommended.
  8. A copy of the report was sent to the resident on 20 September 2021. He was advised to leave the heat pump on setting 2 in colder weather and the thermostat at desired temperature, otherwise the heating circulation pump would only run for a short period and then stop to give the compressor a chance to reheat the boiler temperature back to above 50 Celsius. The landlord said the consultant was happy to speak with the resident if needed.
  9. The landlord informed this Service on 25 October 2021 that a stage 3 hearing had not yet taken place as the resident could not commit to a date as he needed more time to prepare. It explained that it had provided him with the information he had requested and offered for the consultant to assess the system. It also explained that an assessment was carried out on 13 September 2021 and found the system was working as intended.
  10. On 6 December 2021, the consultant sent the landlord thermal images following a visit to the property. It confirmed the heating was working well and could be controlled by each room. It installed a new under floor actuator and a room stat in the bedroom. It also installed a new pump and changed the filter and installed a new thermostat in the kitchen. The system was repressurised and it left with all readings at 22 degrees. The resident was advised to keep the heating on at all times to maximise the use of the compressor and minimise the use of the immersion. If he let the flat cool down before putting the heating on, it would cost more as it would run the immersion.
  11. The landlord told the resident on 9 March 2022 that it wanted to arrange a follow up visit by the consultant, but the following day, the resident rejected this. Later in March 2022, the resident instigated a legal disrepair claim against the landlord and a joint expert visit was arranged for 5 July 2022. A recommendation was made to repressurise system and replace the pump, something the resident agreed to, in November 2022, and the work was completed on 5 December 2022.
  12. The resident reported a further issue with the heating on 23 January 2023 and on the same day, the landlord emailed him to arrange for someone to visit and inspect the system. The landlord spoke with the resident on 10 February 2023 and emailed the following day to confirm a visit would be arranged. However, the resident asked the landlord to hold off arranging a further visit and the landlord agreed in its email of 24 February 2023. The landlord stressed that it wanted to arrange a visit to look at what was going on and install the remote monitoring sensors and assess any faults. 
  13. In April 2023, the resident confirmed he wanted a stage 3 hearing and, on 21 April 2023 he was notified the hearing would take place on 9 May 2023. The landlord also issued an apology on 25 April 2023 for not progressing the stage 3 review sooner.
  14. Following the hearing, the landlord issued its stage 3 response on 15 May 2023, when it said:
    1. Staff had consistently responded to the resident and on each occasion actively sought to find a solution; which the resident had confirmed.
    2. Reports from the consultant referred to the heating system working. It noted the resident disagreed with the reports, but it concluded it was reasonable for its staff to rely upon the experts/consultants’ reports, and consider the matter resolved.
    3. It had responded appropriately, followed its procedures, and taken relevant actions in response to reports of issues, so was not upholding the complaint.
    4. It appreciated the resident still reported issues so suggested:
      1. It explore the potential for a move to an alternative property that may be suitable. It could not guarantee if or when such a property could be available, but he had expressed a clear interest in that option.
      2. Upon acceptance that the heat source in the flat works, it could test the circulation of the heat through the flat via the underfloor circuit. In the first instance, it was collectively agreed to explore this using the retained gas engineer.
      3. It recommended regular communication between them to ensure the resident was aware of the progress in finding a resolution. When a solution was found, any testing and evidencing of the system working is done with both a member of the landlord staff and the resident present. Follow up testing should also occur at agreed intervals after the first evidencing of the solution being found to ensure that the heating continues to work.
      4. It accepted it would have been best to have escalated his complaint to stage 3 when he first requested it the previous year. This had not been done as the landlord had been focused on trying to resolve the issue rather than taking the complaint through the process.
      5. Although it did not uphold the complaint, it accepted the frustration he felt and offered compensation of £250 (in addition to the £500 paid in December 2018).
  15. The landlord wrote to the resident on 27 June 2023, in response to email exchanges they had in early June 2023, in relation to him remaining unhappy. It said that:
    1. At the stage 3 hearing, he had agreed for a flush of the heating system to be done.
    2. If he no longer wanted that, it could concentrate on a potential move, and he would be a priority on its waiting list.
    3. It acknowledged that he had chosen to move home and would not have done so if it was not for the problems he had experienced with the heating. It therefore felt that a disturbance payment of £1,000 would be appropriate. However, as he was in rent arrears, this would be offset against that, if accepted.
  16. The Ombudsman has not seen that the resident responded to this offer but he moved from the property in October 2023.
  17. The landlord then increased its offer of compensation to £3,000 in May 2024 by way of mediation via this Service, which was also not accepted by the resident. He made a counter-offer saying he wanted compensation of £5,500, which was rejected by the landlord in June 2024.

Assessment and findings

Handling of repeated repairs to the heating and hot water system

  1. The Tenancy Agreement says the landlord will keep installations in good repair, such as central heating systems, fitted fires and water heaters.
  2. The landlord’s Home Loss, Disturbance and Compensation policy says compensation may not be paid for a heating failure that occurs between 1 April and 30 September unless the tenant can evidence significant vulnerabilities that require heating. The landlord’s ‘Guide for looking after your home’ (the Guide) says if a home has no heating or hot water and it is between 30 September and 31 March it would treated as an emergency.
  3. The Guide says in an emergency, the landlord will aim to make a repair safe within 4 hours and finish within 24 hours. If the work is complex or parts or equipment have to be ordered, it may take longer but its aim is to get it resolved in 20 working days. It says it aims to complete routine repairs in 20 working days. Repairs are classed as ‘planned works’ if it thinks it likely it will take more than 30 days to finish. These repairs may be part of a larger job so the longer deadline would be less disruptive and/or less costly or a little extra time would let the landlord find the best contractor for the work needed. Completing these jobs may take up to a year.
  4. The resident did not report that he was without heating in January 2021; he actually made a complaint about having had issues with the heating system for a number of years. This had been a longstanding issue but despite that, the landlord addressed this within 2 days. It arranged for someone to attend to inspect the heating system, 19 working days after the complaint was made. As it was not an emergency, it was appropriate that the landlord treated it as a routine repair; and it ensured the visit was arranged in a timely way.
  5. The consultant was unable to gain access on 2 February 2021, so the landlord took a proactive approach to encourage the resident to agree another date. When access was ultimately obtained on 13 September 2021, it was reported that the system was working as intended, although a couple of recommendations were made. An email sent by the resident the following day shows he was happy with how the visit went.
  6. As the resident had reported issues with the heating system several times over the years, the landlord took the sensible step of deciding to carry out a follow-up visit in December 2021, which confirmed the system was still working well. This again shows the landlord took a proactive approach to ensure there were no further issues, having had several reports from the resident in the past.
  7. The resident instructed a solicitor to write to the landlord in 2022 about having reported issues with the heating system for many years. It was agreed a joint expert visit should be arranged and this took place on 5 July 2022. A recommendation was made following that visit, but the landlord could not act on that without the resident’s approval. Once the resident agreed to the work being done, the landlord arranged the repair within days, so complied with its obligations.
  8. Although the resident complained there were further problems with the system in January 2023, the landlord was unable to investigate the matter further as he said he wanted his complaint addressed at stage 3, before any further visits were made. Upon completion of stage 3, it was apparent the resident wanted to move. Steps were then taken to allow that to happen, and he moved in October 2023, before any more investigative work could be carried out.
  9. It is clear from comments made, that the resident wanted to challenge the technical specification of the heating system and felt strongly there was a fault with it. Although the resident has expertise in this area, it is not for this Service to determine whether the system was faulty or not. Instead, it is to consider whether the landlord complied with its obligations, and the evidence indicates that it did.
  10. From 2021 the landlord took a proactive stance of wanting to investigate the resident’s concerns that there was an issue that needed addressing, and called upon the consultant to provide advice, instead of just relying upon its own maintenance team. The evidence shows that, overall, the system was deemed to be in working order and any minor repairs were carried out promptly. Therefore, there was no obligation on the landlord to pay the resident any compensation. Despite that, although the landlord did not uphold the complaint, it did offer a one-off payment of £250 compensation to recognise that the resident had been frustrated by complaining. It also made more offers of compensation later in the hope of resolving the complaint, which were all rejected by the resident.
  11. As the evidence shows the landlord acted reasonably, the Ombudsman has concluded there has been no maladministration in relation to its handling of reports of repairs being needed to the heating and hot water system. It is therefore at the discretion of the landlord as to whether it wishes to keep any offer of compensation already made to the resident open for him to accept.

Complaint handling

  1. The landlord’s complaints procedure at the time of the complaint, had 3 stages to it. The Ombudsman can see that the landlord has since updated this, to be in line with this Service’s Complaint Handling Code. However, at the time of the resident’s complaint, once stages 1 and 2 had been exhausted, he could request a stage 3 hearing with one or more board members which would be arranged within 1 month of the request.
  2. At the hearing, the resident would have the opportunity to present his case, or have a representative or advocate speak on his behalf. The landlord would inform the resident of the outcome of the appeal within 5 working days of the hearing to advise him of the outcome and any actions to be taken as a result.
  3. In this case, the resident had exhausted stage 1 and 2 of the complaints procedure in 2018. When he made a new complaint in 2021, the landlord did actually issue a response 2 days after the new complaint was made. However, it was not deemed to be either a stage 3 response or a ‘new’ stage 1 response. The resident then contacted this Service and was advised that he ought to ask the landlord to consider his complaint at stage 3, as he had exhausted the previous 2 stages. Therefore, on 5 March 2021, after our involvement, the landlord acknowledged this was what the resident wanted. While addressing a complaint at stage 3, some 3 years after the stage 2 response was sent, is not in line with the landlord’s complaints procedure, as it was at this Service’s suggestion, no criticism can be levied at the landlord, for not complying with its own procedure.
  4. Having accepted the complaint should be investigated at stage 3, steps were not then taken to arrange a hearing promptly. The landlord took steps to investigate the heating issue and after a few months, the resident asked the landlord to provide him with copies of documentation about his case. This supports the landlord’s comment that the resident was not ready for a hearing at that time.
  5. Having said that, as the resident had asked the landlord to address the complaint at stage 3, an appropriate course of action would have been for it to have communicated clearly with the resident. Either agreeing with him to put the stage 3 on hold, or ensuring it was more proactively dealt with.
  6. The landlord has acknowledged to this Service that it took a long time to move the complaint through the stages and it could have been clearer about the stage the complaint was at. It attributes its focus on trying to diagnose any issues with the heating, sometimes a lack of contact from the resident or a refusal of access and the resident’s behaviour as having been mitigating factors. While the Ombudsman notes the landlord’s comments and in particular that it was prioritising investigating the substantive issue, in the hope of resolving the resident’s concerns, this could have been done in parallel with stage 3.
  7. Overall, having committed in March 2021 to instigating stage 3 of its complaints process, even allowing for the period of time when the resident was not ready for the hearing, it should not have taken over 2 years for the hearing to take place. That is unreasonable, and certainly not in line with its complaints procedure. This amounts to maladministration.
  8. When considering what remedy is appropriate, there was clearly a period in 2023 when the resident particularly wanted the hearing to take place before any further visits were arranged. Prior to that, there is little evidence that he objected to the landlord focusing on investigating the heating system rather than progressing the formal complaint. In fact, on 14 September 2021, he said he was happy with the consultant’s assessment following the visit and to proceed as recommended. Therefore, giving the impression at that time, that his complaint may have been resolved.
  9. Ultimately, the landlord did ensure the resident had a hearing in line with its stage 3 process and it relayed the outcome in writing within 4 working days, ensuring it complied with the timescales set out in its complaints procedure. Correspondence that followed, showed the resident was unhappy with the outcome of the landlord’s investigation, but the notes of the hearing demonstrated that a thorough investigation was carried out.
  10. The landlord made a number of additional offers of compensation to the resident from 2021, in an attempt to resolve his complaint. None of these were accepted, nor were they made in order to recognise a deficiency in its complaint handling. Knowing it had not arranged a hearing within a month of the request, and had not therefore complied with its complaints policy, the landlord failed to make an offer of compensation, to specifically recognise this shortfall, and the impact it may have had on the resident.
  11. Although there was significant delay in the landlord dealing with the complaint at stage 3, the resident did hold off agreeing to the hearing for a period. He also engaged with the landlord in order to focus on investigating the problem with the heating itself, and did not complain about that approach. Therefore, this should be reflected in any award of compensation, and in this case a payment of £400 would be reasonable to recognise the delay and inconvenience caused to the resident.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was:
    1. No maladministration in relation to the landlord’s response in relation to repeated repairs to the heating and hot water system.
    2. Maladministration in relation to the landlord’s handling of the resident’s formal complaint.

Orders and recommendations

Orders

  1. Within four weeks of the date of this report, the landlord is ordered to:
    1. Apologise to the resident for the complaint handling failings identified by this investigation.
    2. Pay the resident £400 compensation to recognise the delay and inconvenience caused to the resident, by failing to promptly arrange a hearing at stage 3 of the complaint procedure.