South Tyneside Metropolitan Borough Council (19 004 008)

Category : Environment and regulation > Trading standards

Decision : Upheld

Decision date : 18 Oct 2019

The Ombudsman's final decision:

Summary: The Ombudsman found initial delay with the way the Council investigated Mr D’s report about a gas heating company wrongly claiming his boiler needed repairing to the value of £800. The delay of about 7 weeks caused no significant injustice to him. There was no fault in the way the Council dealt with his formal complaint. It investigated and responded to his complaint within published time scales.

The complaint

  1. Mr D complains the Council’s trading standards team failed to properly investigate his report of a gas heating company wrongly claiming, after a brief inspection, that his boiler needed repairs to the value of £800; as a result, this caused him a great deal of stress and frustration and he is concerned the failure means residents remain unprotected from this company’s practices.

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The Ombudsman’s role and powers

  1. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

  1. I considered all the information Mr D sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I did not send him a complete copy. This is because some of the information was sent on the basis it remained confidential as it concerned third parties. This means I could not send it to Mr D or refer to it in my decision. I sent a copy of my draft decision to Mr D and the Council. I considered Mr D’s response.

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What I found

  1. Mr D had a maintenance contract with Company X for the servicing of his gas boiler. His contract covered an annual service and some repairs, but not leaks, for example. When it was time for his annual service in August 2018, Company X subcontracted the service to Company Y who asked an engineer (engineer 1) to visit.
  2. According to Mr D, engineer 1 visited, stayed 4 minutes, during which time he removed the boiler front cover, and took a photograph. Engineer 1 left saying the boiler leaked and there was rust on the heat exchanger. The job sheet he completed stated the heat exchange leaked.
  3. Mr D found out about the cost when he called Company Y which also told him about sludge and slurry in the boiler. Company X told Mr D the repair works, costing £800, were not covered by his contract.
  4. As Mr D disagreed with the engineer’s findings, Company X arranged for an independent engineer (engineer 2) to visit. Engineer 2 carried out a small repair to a leak at the top of the boiler costing £30 and confirmed there was no other problem. Nor was there rust as the boiler contained stainless steel. Engineer 2 told him it was in excellent condition. Mr D claims when he called Company X, it also told him it could not agree to a repair because the problem was caused by ‘sludge and slurry’.
  5. The Council decided not to take any further action on Mr D’s report who is unhappy both with this decision and the way it dealt with his complaint.

The investigation:

  1. The records show the Council received Mr D’s report about Company Y in October 2018. An officer from trading standards contacted him the following day. The record shows the officer asking Mr D for a copy of engineer 2’s report. Mr D said while engineer 2 did not write a report, he would send all the information he had by email or post. Later that day, he sent the officer an email saying he had a letter from Company X upholding his complaint and the report/work sheet from engineer 2. He could send copies of these to the officer either by post or email if it helped and ended by saying he awaited the officer’s instructions. Mr D also told the officer his partner accidentally deleted the email he received from Company Y.
  2. The following day he sent the officer the documents. While he had not heard from Company X about his request for a copy report, he would pass it on as soon as he received it.
  3. The next record is for December. This notes a conversation between Mr D and the officer. The officer was waiting for a copy of the report he had asked from Company X. Mr D said he had still to receive it. In response to my draft decision, Mr D said he made it clear previously that he had no reports from either company and did not expect that he would get them. The same day the officer contacted the manager at Company Y for a copy of the report. The officer received a copy of engineer 1’s report a few days later. Later the same month, the officer again spoke to Mr D. The officer would contact him after Christmas following receipt of the report from Company X.
  4. In January 2019, the officer received an email from Mr D asking for an update. The same day, the officer emailed Company Y chasing the previously requested information. The officer told Mr D the Council received a copy of the email Company X sent Company Y about his report. It said nothing about £800 repair costs. While Mr D disputed whether the officer saw the entire email, he had no evidence of the costs following the accidental deletion from his computer.
  5. At the end of the month, the officer emailed Company Y asking for a copy of the quote attached to its email to Company X. The information the officer received showed the cost of the repair parts was about £330 to which 4 hours labour costs needed adding. The hourly cost was not shown.
  6. In February, the officer emailed Company Y wanting to visit to discuss Mr D’s report. The visit took place shortly afterwards. The officer then wrote to Mr D explaining the manager of Company Y agreed with engineer 1’s report about the leaking heat exchange. The officer explained the manager was reminded of obligations under both consumer protection law and unfair trading regulations when giving a diagnosis and estimate to customers. The letter concluded advisory intervention was the best way for the Council to deal with this case. It would take no further action.

Analysis

  1. I make the following findings on this complaint:
      1. While the officer waited for Mr D to send a copy of the report following his initial contact, the case drifted when he failed to do so. Almost 2 months passed before there was any further action or contact on the case and this was in response to Mr D chasing the Council about his report. I consider this delay amounts to fault. The officer should have allowed a reasonable period for Mr D to provide the copy report, after which the officer would take steps to obtain it, if necessary for the investigation.
      2. Many of the officer’s initial actions were in response to Mr D making contact.
      3. When reaching the conclusion not to take formal action against Company X, the officer had obtained information from Mr D, both Company X and Y, and had interviewed the manager of Company Y. The officer had seen the worksheets completed by both engineers and the photographs taken by engineer 1.
      4. The officer saw photographs of the boiler showing streaks running down its side and evidence that pooling had appeared to have taken place at some point around its base. Mr D does not accept there was pooling. The photographs, therefore, supported engineer 1’s claim about leaks. Indeed, I note Mr D accepted there was a small leak and, ‘lime scale deposits on the outside of the heat exchanger’. He also accepted engineer 2 replaced the ‘top gasket’, where the leak had originated, and a ‘rectification probe’ which had been damaged. Both were noted on engineer 2’s worksheet. This means there was some truth in engineer 1’s statement that a leak and two parts needed repairing.
      5. Following the meeting with the manager of Company Y, the officer had two conflicting views as the manager did not agree with engineer 2. As work was done on the boiler following engineer 1’s visit, the officer could not instruct a further engineer to view it as it was no longer in the same condition it was during that visit. Put simply, the evidence would not have been strong enough to take action through the courts. Company Y could have defended any proceedings by arguing engineer 1’s conclusion about the leak, the need for repairs, and likely costs, were reasonable on the facts.
  2. Although the delay caused Mr D some avoidable injustice, I am not satisfied this was significant. While I accept he felt some frustration and inconvenience having to chase the Council about progress, for example, I also took account of:
  • the fact Mr D could have told the officer earlier he had not obtained a copy of the report the officer wanted; and
  • the time taken from receiving his report, to the Council making a decision on it, was about 4 months. While it is likely this period could have been reduced but for the initial delay, the outcome of the Council’s decision would have been the same.

Complaint process:

  1. Mr D is unhappy with the way the Council dealt with his formal complaint about its handling of his report against Company Y.
  2. These are the key dates for Mr D’s formal complaint:
  • 4 February 2019: Mr D sent the Council his formal complaint about the way it dealt with his case. The Council sent its stage 1 response 4 days later. About 2 weeks later, the Council wrote to Mr D explaining officers met with the manager of Company Y about the issues he raised.
  • 5 March: Mr D asked for his complaint to go to stage 2. While dated 5 February, an internal Council email noted it was delivered by hand on 5 March. Two days later, the Council confirmed it escalated his complaint to stage 2. The email to Mr D said the intention was to send a response within 15 working days.
  • 15 March: The Council sent Mr D its stage 2 response. This acknowledged the gap between him contacting the officer and the next contact that took place 2 months later after Mr D chased for a response.
  • 25 March: The Council acknowledged his request made the same day to go to stage 3 and told him it would respond within 20 working days.
  • 17 April: The Council sent him its stage 3 response on 17 April. Mr D says he never received this letter and had to chase the Council about it in June.

Analysis

  1. The Council’s complaints procedure has the following stages:
  • Stage 1: The service manager or senior colleague will look at the problem and let the complainant know within 10 working days how they might help. The focus is to put things right, so the Council does not usually send a written response at this stage unless requested.
  • Stage 2: The complaint it passed to a senior manager to carry out an investigation. The target response time is 15 working days, but the Council will let a complainant know if it might take longer.
  • Stage 3: The Chief Executive will appoint a colleague to investigate the complaint on his or her behalf. A full response is sent within 20 working days and again, if it is likely to take more time, the complainant is told.
  1. I found no fault in the way the Council dealt with his complaint. It responded within the time periods set out under its complaint’s procedure. He may disagree with the outcome of his complaint, but the Council was entitled to reach the conclusions it did.

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Final decision

  1. The Ombudsman found fault on Mr D’s complaint about delay, but this caused no significant injustice to him, and no fault about the way the Council dealt with his complaint.

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Investigator's decision on behalf of the Ombudsman

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