London Borough of Hackney (202111008)

REPORT

COMPLAINT 202111008

Hackney Council

29 September 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 response to the resident’s concerns about noise and carbon monoxide (CO) levels as well as an increase in temperature in the property from a temporary boiler that was positioned outside.

Background and summary of events

Background

The resident is a leaseholder of the landlord. The property is a one-bedroom flat located on the ground floor of a low-rise building. The landlord is a local authority.
The lease says that the resident paying the rent and abiding by the terms of the lease should “peaceably hold and enjoy” the property. The lease also says that the landlord should keep in good and substantial repair and condition all ventilators, sewers, drains, pipes, wires, cables and conduits and any other services and conducting media and any other thing installed in the block or serving the block for the purposes of supplying services including water and heat.
The landlord’s website says that if residents smell gas or were worried that CO was escaping should contact the National Grid immediately and its repairs contact centre and gives the telephone numbers for both. The World Health Organisation considers that physical symptoms for CO would start after 6 to eight hours at exposure at 35 parts per million (ppm). The British Standard for domestic CO detectors (BS EN 50291-1:2018) does not require a CO detector to trigger an alarm below 50ppm.
The landlord has a two stage complaints procedure. It aims to respond within ten working days at stage one and within twenty working days at stage two.

Summary of events

As background, the flats in the block where the resident resides are served by their own boilers. The boiler for the adjacent block was situated in the boiler room in the basement of the block containing the resident’s flat.
On 5 February 2021 the landlord wrote to the resident saying that the boiler serving the adjacent block had failed and this had led to the siting of a temporary boiler to the side of the property to provide those residents with heat and hot water. It explained it had been experiencing some major issues with that communal heating system and decided that, rather than renew it, it would look to install boilers to each flat within that block. It said it had to bring the start of that work forward because it had had to act quickly to ensure the residents’ supplieswere maintained. It apologised that it was unable to formally consult before having to do this but said it hoped the resident understood the need of the residents in the adjoining block, especially given the time of year.
On the same day the resident expressed concerns to the landlord about the position of the temporary boiler including being unable to access their garden through the side gate, views from two of the three rooms were completely obscured and workmen were climbing over a locked fence every day into an area that belonged to her as a leaseholder.
In response the landlord said it would start the project started as soon as possible and would confirm time scales once known. It added that workmen would not be entering the area on a daily basis, only if and when required.
Following a report from the resident on 14 February 2021 of the temporary boiler being noisy and keeping her awake every night that week, a contractor attended the property the following day to investigate. They noted they had found the “temporary boiler running correctly. No loud noises could be heard. Pressure/pumps and burner checked – all working”.
On 21 February 2021 the resident told the landlord that fumes were coming out of the generator and blowing onto her garden and through her open windows. She expressed concerns about CO poisoning. In response, the landlord said that the temporary boiler had been tested and did not emit CO; it said that would only occur of there was incomplete combustion.
Two days later the resident told the landlord that the CO readings in the property had been “raised” over the previous week. She also reported noise and fumes from the generator and said that there was a health and safety issue with an open manhole and the exit being blocked to the side gate.
On 5 March 2021 the landlord confirmed that the manhole had been covered up and it was seeking to move the temporary boiler.
On 19 March 2021 solicitors acting on behalf of the resident (the solicitors) lodged a formal complaint with the landlord. They complained that:
1. Since 2 February 2021 the temporary boiler had emitted a constant loud noise throughout the day and night; the intensity of the noise was such that it regularly caused the resident sleepless nights. The solicitors noted that the resident worked from home and the noise was disrupting her working life.
2. Between 20 and 27 February 2021 the resident’s CO alarm registered between 10ppm and 28ppm; from 18 March 2021 to date the reading had risen to 28ppm. Prior to the works, the alarm did not detect any CO.
3. Since 2 February 2021 the temporary boiler had continuously released hot air which travelled directly into the property such that the temperature of the property had increased.
The solicitors said that the resident was unable to open the windows which faced the boiler which increased the temperature of the property, and she was concerned that she would not be able to use the garden in the summer. They also said that contractors had jumped over the fence into the property on a number of occasions and had taken water from the outside tap connected to the property without permission. The solicitors added that the resident’s access to the garden was limited by the pipes running into the manhole and the boiler was placed where she usually parked her electric vehicle as that was the only space close enough to reach the charging point installed at the property.
The solicitors said the resident was entitled to pursue court proceedings to seek damages for the duration of the nuisance, together with costs. They added that the noise from the boiler could amount to a statutory nuisance, and the resident was within her rights to apply to court for a nuisance order, ordering the landlord to abate the nuisance and/or pay compensation. The solicitors asked the landlord to take various action including rehousing the resident while the boiler was sited outside the property and for the boiler to be tested for CO.
On 22 April 2021 the landlord responded to the solicitors at stage one of its formal complaints procedure. It apologised for the delay in responding. It reiterated why it had had to place the temporary boiler outside the property. The main points were:
1. It had considered other sites for the temporary boiler including the service road or the parking bays but these had been discounted as they would have required scaffolding for the pipework but that was deemed unsafe as any leak could potentially “land on a pedestrian”; the high temperature of the water in the pipes that would have been on the scaffolding was also a health and safety risk.
2. It said that the additional generators at the location were the capacity needed to carry the services that was required to keep the heating and hot water supply running in the block. (The landlord later clarified that there were no generators on site.)
3. The contractor had given an assurance that they were doing everything possible to complete the work on time and that it would await the CO readings from the resident.
The landlord explained how the complaint could be escalated.
On 6 May 2021 the landlord told the resident that surveys had been completed and the installation of boilers in the flats would start that week.
On 14 May 2021 the solicitors asked the landlord to escalate the complaint. They said they believed several issues at the property had not been addressed namely the CO levels; the excessive noise and the increased temperature. They said additionally there was a hot pipe in the garden which was a danger to the resident; they asked the landlord to confirm the temperature of the water it contained.
The solicitors asked for compensation for the resident as she was looking to rent another property for the duration of the works which it expected to cost about £2,000 a month plus utility bills. It asked that the landlord reimburse the resident for the costs incurred. It also asked that the landlord asked a professional company to test the CO levels at the property. This Service understands that the resident vacated the property in early June 2021.
On 18 May 2021 a gas services inspection took place of the boiler room but not the property, as the resident was not available. The landlord noted that the engineer had confirmed that the boiler flue was three metres from the property with a 45-degree end to the flue pointing away from the property, and CO readings outside were zero. It would attend again when the resident made contact.
On 19 May 2021 the landlord acknowledged the solicitor’s escalation request and said it would respond by 15 June 2021.
On 25 May 2021 an engineer from the gas distribution network attended the property following reports of a gas leak. A report was later sent to the resident saying that they had found no trace of gas readings in the basement and no further works were required.
On 26 May 2021 a gas services inspection took place at the property. It found no CO present around the temporary boiler or in the kitchen of the property. It noted the boiler and cooker passed all tests and that the CO alarm displayed the last, highest level of CO detected and that the reading of 28ppm that was displayed on their return from holiday would have most likely been from when they last cooked prior to going on holiday and was not the level of CO in the property when they returned home. It noted further that the alarm has never activated and the installation was safe.
On 4 June 2021 the landlord carried out a noise measurement report at the property. It noted a vibration noise that lasted from three to five minutes and “couldn’t be ignored” but could not identify the source of the noise. It also noted that nothing was observed when recording within the property for ten minutes or within the original boiler room (although it noted new covers would dampen down the sound of the primary water tank filling up) and it was “very quiet” outside the temporary boiler room even when it fired up.
On 11 June 2021 the landlord responded to the solicitor at stage two of its final complaint procedure. The main points were:
1. There had been no trespassing on the property when the boiler was installed outside as the area located directly outside of the kitchen and second bedroom did not fall within the resident’s demised property. This was communal land and was owned by the freeholder. It said it did not find that it had breached the terms of the lease and, as such, prior written notice of the installation of the pipes would not have been required.
2. The resident had a parking permit which allowed her to park in any available bay as the parking bays were unallocated. It did not find evidence therefore that she had been placed at a disadvantage as the parking bays located directly outside of the property were unallocated, meaning anyone who held a permit could park there.
3. Noise investigations had been undertaken on 15 February and 4 June 2021. It noted no noise had been identified. It attached copied of the noise reports. The landlord added that on or around 19 May 2021 it had installed additional lagging around the pump within the boiler to lessen any noise levels and that that the local authority had advised that the noise levels reported externally, internally and from within the boiler room located directly beneath the property were well within normal levels.
4. The project manager had confirmed that the temporary boiler was not emitting CO. The landlord said that on 25 May 2021 an engineer from the gas distribution company had found no traces of gas found. On 26 May 2021 an inspector had carried out a CO test within the property and the readings with both the windows opened and closed were 0 ppm which it said the resident had witnessed. It added that, on examination of the resident’s CO alarm, the inspector advised that the reading of 28ppm would always show as the last recorded reading within the property. It was explained to the resident that this was a one-off reading and would most likely have been from when they were cooking within the kitchen.
5. When the inspector attended on 26 May 2021, he reported that there were no excessive temperatures within the property; the landlord also referred to comments recorded in the officer’s report who attended the property on 4 June 2021. It added it understood that the current set up with the temporary boiler would not alter the temperatures within the property.
6. The landlord apologised for the length of time taken to complete these works but explained they were critical and would be completed as soon as possible for everyone’s benefit.
7. It said the resident’s claim for compensation (for the cost of rent incurred as a result of having to move out of the property while the works were carried out) had been passed to its insurers.
In conclusion the landlord apologised to the resident for any frustration caused with the siting of the temporary boiler. It added that, unfortunately the failure of the original boiler was something outside of its control. It said it had taken all reasonable steps to ensure that all residents within the block were able to continue receiving services and also to alleviate any concerns the resident had. It said it was working to ensure a new boiler was put in place as soon as possible and, once time frames had been agreed it would update all affected residents. The landlord signposted the resident to the Ombudsman.
On 18 June 2021 the solicitors wrote to the landlord saying its response did not reflect the true position. In brief, they said:
1. The noise readings alone were not representative of the resident’s experience.
2. The whole of the temporary boiler’s casing emitted heat and the temporary boiler itself was positioned only 2.5 meters from the property; the pipe connecting the boiler with the temporary boiler was only 70cm from the kitchen window of the property and it too emitted heat. No evidential basis was offered in support of the inspector’s assertion on 26 May 2022 that the temperature in the property was not high.
3. The resident had to step over the hot water pipe to access the outside tap to water the garden.
The landlord noted that an insurance claim had been made for the costs of renting a different property which was likely to continue for some time. It asked that this letter was passed to the insurance team for its consideration.
On 30 June 20212 the landlord’s insurance team wrote to the solicitors saying, should they wish to make a claim for the resident’s material losses (including alternative accommodation), they should provide them with a letter of claim, detailing the allegations against the landlord and provide details/evidence of the losses incurred by the resident. The landlord told the Ombudsman that it has not received such a claim.
In October 2021 the solicitors told the Ombudsman that the resident considered there had been structural damage to the property caused by the works and there had been delay by the landlord in arranging a structural engineer to inspect the property.
The temporary boiler was decommissioned on 30 November 2021 the landlord noted that the temporary boiler had been decommissioned that day. The temporary boiler was removed on 7 December 2021 and the fencing was removed the following week.
When the resident approached the Ombudsman, she said that she and her partner had had to seek alternative accommodation due to excessive heat, noise and compromised quality of living due to the temporary boiler. She said they were given no notice of the boiler’s arrival or information on about why it was there. The resident added that the windows and light in two of their four rooms had been “entirely blocked by” the temporary boiler and they suffered “severe lack of sleep” prior to moving out of the property. She added that she and her partner both worked from home and the living conditions from the noise and heat “were untenable”. The resident said that she was seeking financial compensation for the rental costs of relocating for three months.

Assessment and findings

This report has considered the complaint issues raised which resulted in the landlord’s final response of 11 June 2021. The issue of the delay in the surveyor inspecting the property that was brought to the attention of the Ombudsman has not been through the landlord’s formal complaint procedure and therefore will not be considered in the report. It is open to the resident to raise a fresh complaint with the landlord about this matter.
The landlord has obligations to the resident (paragraph 3); it is reasonable to presume that it also had obligations to the residents in the adjacent block to continue their supply of heating and hot water. The evidence suggests that the options available to the landlord as to the siting of the temporary boiler were limited (paragraph 17.a); it acted reasonably in considering these options before placing the temporary boiler next to the property. However, we recognise the resident’s frustration as to the inconvenience caused to her and her partner by the temporary boiler as well as the concerns it raised.
The landlord acted promptly in responding to the concerns about noise from the temporary boiler by investigating the next day when this matter was first raised on 14 February 2021 and again in early June 2021. Neither investigation reached a view that there were high levels of noise from the temporary boiler. This Service notes that on the later visit the inspector noted a vibration sound but was unable to identify its source. The landlord also acted reasonably by installing additional lagging to dampen down any noise. In the absence of any raised levels of noise identified from the temporary boiler by specialists engaged by the landlord, it was reasonable for it not to take further action.
In relation to the concerns of the resident relating to CO poisoning, the landlord said that the temporary boiler had been tested and did not emit CO (paragraph 11). It is reasonable to presume that the CO detector in the property did not sound an alarm given that the CO reading was 28ppm and the minimum level for an alarm is 50ppm (paragraph 4). Some three months later, in May 2021, the landlord arranged for a gas inspection which found no concerns about the CO levels in the property and reassured the resident about the level recorded by the CO alarm (paragraph 25).
Given the resident’s concerns, it would have been good customer service for the landlord to have provided her with information when she first contacted it about the CO levels. This could have included signposting to online resources and/or advising her to contact the National Grid if she had urgent concerns. While this information was on the landlord’s website, the landlord could have been more proactive in responding to the resident’s concerns and its failure to do so is a service failure.
The concern about the increased temperature in the property was raised in the complaint from the solicitor. The stage one response did not address this; at stage two the landlord said that its contractors and/or staff who had attended the property on 26 May and 4 June 2021 had not identified any increased temperature. It would have been reasonable for the landlord to have asked for evidence to support the resident’s concerns; it could then have obtained an expert view as to whether the temperatures in the property were outside what could be considered within normal levels. The landlord missed a second opportunity to potentially reassure the resident about her concerns and that was a service failing.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
It is evident that the resident was caused inconvenience and frustration by the landlord’s failure to take swift action on the concerns she raised about CO levels and the temperature within the property. The landlord missed an opportunity to try to resolve matters at the earliest opportunity. Financial compensation of £200 is appropriate here to reflect the impact on the household and the time and trouble in pursuing these matters. This amount is within the range of amounts that the Ombudsman can order when he has found evidence of service failure or maladministration. This includes cases where there has been poor delay in addressing concerns raised by a resident.
The Ombudsman cannot order damages as that would be for a court to decide on as acknowledged by the solicitor (paragraph 16). The landlord’s decision to refer the solicitor’s claim for compensation to its insurer was appropriate because the insurer can decide whether or not the landlord was at fault and therefore if there was any resulting liability in respect of the claimed additional accommodation costs.
It is evident that the siting of the temporary boiler caused inconvenience and frustration to the resident. While we cannot say that there was any failing by the landlord in placing it next to the property, the landlord could have acknowledged the impact that would have on the resident and her partner and offered a goodwill payment to recognise that. This might have prevented the matter from escalating and would have demonstrated the landlord’s willingness to achieve a resolution in this matter. I have made a recommendation for the landlord to consider such a goodwill payment in future cases where residents are inconvenienced by its actions. Such recommendations are made when the Ombudsman considers there are actions a landlord could take to improve its service and learn from the outcomes of the complaint that we have investigated.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s concerns about noise and levels as well as an increase in temperature in the property from a temporary boiler that was positioned outside.

Reasons

The landlord should have acted more quickly to reassure the resident about her concerns about the CO levels; it should also have taken an evidence-based approach to identify if the temperature in the property had increased to an unreasonable level. The landlord’s decision to refer the matter to its insurer was appropriate; however, it could have considered offering compensation to the resident when she first raised concerns to recognise the impact the temporary boiler would have on her and her partner.

Orders

The landlord should take the following action within four weeks of the date of this report and provide the Ombudsman with evidence of compliance with these orders:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident compensation of £200 for the impact these failings had on her.

Recommendations

It is recommended that the landlord takes the following action:
1. Write again to the solicitors inviting them to submit a letter of claim.
2. Consider a goodwill payment in future cases where a resident is inconvenienced by its actions.