Tower Hamlets Homes (202107083)

REPORT

COMPLAINT 202107083

Tower Hamlets Homes

6 December 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

1. The resident’s complaint is about the landlord’s management of gas safety issues arising from the boiler at the property.

Background and summary of events

2. The resident has lived in the property since 2004. The property is a two bedroom flat on the seventh floor of a block. A boiler was installed in the property on 1 April 2009.
3. In October 2020 there was a boiler inspection and the resident states that they advised the resident that the boiler needed to be moved. The resident states that she followed this up with the landlord “with no success”. At Christmas 2020 the boiler stopped working. The landlord apologised and paid the resident £200 compensation. 
4. The landlord told the resident on 14 May 2021 that it was waiting for building control approval to install a new boiler.
5. On 3 June 2021 the resident noticed a strange smell in in the kitchen. An engineer visited and deemed the boiler to be in a dangerous position due to the distance between the flue and a window. The engineer shut the gas supply off.  This issue had not been identified in the previous annual gas safety inspections. 
6. On 9 June 2021 the resident complained to the landlord about the boiler. She submitted to the landlord that the annual gas safety inspections that had been done for the duration of her tenancy had failed to identify safety issues with the flue. She stated that in October 2020 the issue was brought to the attention of the landlord by the contractor who inspected a boiler breakdown. The resident said that a week earlier she had called the emergency out of hours service because of a smell of gas and the boiler was shut down because it was unsafe. She said that she was lucky to be alive. She noted that she was in discussions about the installation of a new boiler with the landlord.
7. The landlord’s contractor contacted the resident on 11 June 2010 to arrange a time to install a new boiler, noting that as the resident was without heating and hot water it would be a priority. The resident declined an earlier date and it was agreed the contractor would attend the property on 21 June 2021. The resident later set a text message stating that she was not comfortable with the contractor or anyone associated with the landlord and wanted an independent company to install the boiler. The contractor noted that the resident was very unhappy with the situation.
8. On 21 June 2021 the landlord advised the resident that it wished to undertake a “fumes investigation”. The resident queried why this was necessary.
9. On 21 June 2021 the resident wrote to this Service explaining that her complaint was not only the initial gas installation, failings in the annual gas installation and safety breaches but also the way in which the landlord had treated her when she raised the issues. The landlord was in the process of installing a new boiler, however the resident disagreed that the installation was compliant.
10. On 21 June 2021 internal emails set out the steps the landlord was taking to address the issue. On the 22 June it set out its consideration of possible contractors who could undertake the work.
11. The landlord sent the resident a stage one complaint response on 23 June 2021. The landlord stated that its policy is to have a 72 day window for gas safety checks to ensure that the annual gas safety certificates are obtained by the required due dates. It noted that there had been various issues regarding the installation of the new boiler at the resident’s property since the contractor first attended in October 2020. The boiler needed to be resited above worktop level – the resident had declined an open to flue out as it would require the window being replaced with a PVC panel. Other options had been considered. Ultimately it was decided to erect scaffolding to carry out the works. The resident declined a proposed installation date of 16 June 2021. On 18 June 2021 the resident advised that she was not happy with the work being done by the landlord’s contractor and she wanted an independent contractor. The landlord advised the resident that it would contact her by 24 June 2021 to move the matter forward. 
12. The resident responded to the stage one complaint response that day stating that she was unhappy with it. She stated that the complaint response had failed to confirm the terms of reference of the complaint, which were that (i) the boiler flue distance does not meet regulation or manufacturer guidelines (ii) that annual safety inspections failed to identify issues and (iii) that she needed clarification on the actual measurements of the distance between the flue opening and the opening window.
13. The resident sent the landlord a number of messages during June 2021 stating her unhappiness with the situation and her concerns that the boiler was non compliant.
14. The landlord also sent the resident a text message on 23 June 2021, from an engineer, stating that it had full confidence in the contractor it had elected to install the new boiler. It stated that it would be cancelling the proposed installation date as the resident did not want it to go ahead. It noted that as the resident did not have heating or hot water it offered to turn on the current boiler while the resident decided on the installation of a new boiler. It stated that it was happy after the most recent visit that the current boiler was compliant and met gas safe regulations.
15. The landlord attempted to contact the resident by telephone on 2 and 5 July 2021 but was unable to reach her.
16. On 5 July 2021 internal landlord communications set out that scaffolding had been erected to accurately measure the distance between the flue and the window and it was considered that it was a safe distance. It set out that engineers would make a subjective call as they cannot measure the distance without a scaffold – which is why the scaffold was erected. It set out that it had agreed to install a new boiler and offered a fumes test to provide reassurance to the resident, however she had declined this. It noted that another contractor could be used to install the boiler, which would be placed in the same spot.
17. On 7 July 2021 the resident asked the landlord for an update on stage two of her complaint.
18. The landlord told the resident on 9 July 2021 that it would be conducting a stage two investigation.
19. The resident complained to the landlord on 2 August 2021 that she had been without hot water and heating for three months. The landlord noted that it was waiting for the resident to confirm a date for a new boiler to be installed.
20. On 5 August 2021 the landlord provided a stage two complaint response to the resident. The landlord noted that the resident’s complaint was that she had lived in the property for 16 years and there had been annual gas safety checks. However, none of these identified that the flue was too close to an opening window. The resident’s position is that the flue does not meet regulations or manufacturers guidelines and this was picked up by an independent contractor in October 2020 after a boiler breakdown. The resident advised the landlord that on 3 June 2021 she noticed an unusual smell and an emergency engineer deemed the boiler to be dangerous and shut off the gas supply. This was confirmed by an engineer visit the next day. The landlord has erected scaffolding to install a new boiler, however the resident was unable to agree the measurements for it.
21. The landlord advised that the boiler was installed on 1 April 2009. The landlord’s position was that at that time the installer “would have received a dispensation letter” from the manufacturer that the flue distance was acceptable because of the location. This is the landlord’s usual practice. The documents are no longer available for the installation, however the landlord does have the original gas safety certificate from when it was installed. The landlord stated that the engineer would have assessed the flue and, if there were no reports of gas or fumes, it would have been considered as Not To Current Standards, which is not recordable on a Gas Safety Record as it is not considered a defect. The landlord acknowledged that there was some misunderstanding among gas engineers about the NCS classification. The landlord’s position was that the installation was NCS, but this was not a gas safety defect and was not a breach of regulation.  The landlord went on to explain that it proposed to install a new boiler in the original location and the flue would be extended to overcome the issue about distance from an openable window. The installation was scheduled for 21 June 2021, however the resident told the landlord she wanted an independent company to install the boiler. The resident rejected the offer to switch on the current boiler (noting that it was compliant and met gas safety regulations). The resident also refused a fumes test – which was in response to the resident’s report of a gas smell on 3 June 2021. This was to make sure that gas or fumes were not coming from another appliance or property. The landlord stated that the proposed installation contractor was its designated repairs contractor and the landlord was obliged to use them.
22. On 19 August 2021 a contractor for the landlord attended the property to undertake an “Intrusive Quality Control – Post Gas Check”. This found “Flue within 300 mm of openable window. Boiler is already capped and warning notice issued.” The notes also stated “Boiler already capped and ID warning notice issued as outpart of air intake within 300 mm of openable window with smells of POC when was in operation. 270 mm to openable window.”
23. On 27 September 2021 a technician from Valliant (a boiler manufacturer) wrote to the resident to advise that “at the time” it “would not have given a letter of exemption allowing a horizontal termination to less than 300mm from an opening into the property. At the time we would have discussed with the installer the options of achieving a minimum clearance or moving the flue/air duct to another location The landlord stated that if there is not “minimum clearance” for the boiler then “it would be deemed as dangerous and not complying to BS 5440 or Valliant instructions”. The technician stated “there are no waivers, to my knowledge.”
24. On 14 October 2021 an independent gas work inspection, commissioned by the landlord, was undertaken at the property by an independent contractor. This found some defects that were classified as Not to Current Standards. It identified a defect with the distance of the flue from the window as being “Immediately Dangerous” and not in accordance with BS 5440. On 22 October 2021 the entity who undertook the inspection confirmed that its inspector “had agreed with the assessment made by the engineer who isolated the boiler. The flue is within 300 mm of the window … the inspector confirmed that the contractor had taken the correct steps” by isolating the boiler. It confirmed that it had not deemed the installation safe.
25. On 20 October 2021 the landlord sent a letter to the Mayor’s office, who had intervened in the matter. The landlord set out that the report had found that the flue was less than the minimum distance from the openable window. It noted that the report stated that it was the Engineer’s decision to deem whether this is unsafe in the circumstances. It stated that it had offered to replace the existing boiler with one with an extended flue. It had erected the required scaffolding and scheduled the installation for 21 June 2021 however the resident had notified it on 18 June 2020 that she did not want to proceed with the installation. The landlord also noted that the resident refused the landlord’s offer of a fumes test and to recommission the existing boiler so that the resident had heat and hot water. The resident refused. It noted its understanding that, at that time, the resident did not want the new boiler to be installed or the existing boiler to be recommissioned. It noted that some time would be needed to erect scaffolding to install a new boiler.  This letter was forwarded to the resident.
26. The resident sent the landlord a number of communications during October 2021 emphasising the detrimental impact the matter was having on her mental health. This included a communication on 21 October 2021 where the resident acknowledged that the landlord had offered to install a new boiler with an extended flue or switch on the current boiler “which had been deemed safe” but she did not wish to proceed with either offer. The resident stated that she needed trust to proceed with either option, which she did not have. She stated that she needed the landlord to “accept this reality” so that trust could be “restablished” and the new boiler installed.
27. On 25 October 2021 the resident sent an email to a number of parties including the landlord. She sought clarification of some of the abbreviations in the report and noted her concerns about the annual gas safety inspections. She stated “I would like this boiler reinstated asap/no need to wait for scaffolding because you are all so sure it’s safe.”
28. The landlord responded on 26 October 2021 that the existing boiler could not be recommissioned as it had been marked as Immediate Danger by the engineer. It stated that the best option was to install the new boiler with an extended flue as previously scheduled for 21 June 2021.
29. On 26 October 2021 the resident wrote to the landlord stating that the new boiler could be installed now that there was an understanding that the current boiler was not safe and was “indeed dangerous”.
30. The landlord wrote to the resident on 5 November 2021 advising her that the scaffolding was due to be erected on 15 November 2021 and proposing that the boiler installation occur on 16 November 2021.
31. The resident refused access on 10 November 2021. She stated that she was expecting a detailed response about how the installation would take place. She also complained that her neighbours were given a choice about the boiler placement. She stated that she would not give access without a detailed plan about the location and the name of inspectors and “method used to assure quality”.
32. The landlord wrote to the resident on 18 November 2021. It confirmed that its contractor attended that day and was ready to install the boiler in the same location with a relocated flue. It stated that it had now authorised the complete relocation of the boiler, as had occurred in the neighbour’s flat. It assured the resident that the installation would be carried out by Gas Safe engineers and would be compliant once completed. The resident responded negatively to the communication the next day and stated that she was finding the matter very distressing.
33. On 19 November 2021 the landlord advised the resident that it would not be able to install the boiler that day and asked the resident to provide a convenient date. It offered temporary electrical fan heaters. The resident responded negatively, using inappropriate language. The resident asked the landlord not to call her. Later that day the landlord confirmed to the resident that contractors would attend at 9:30 am the following Monday morning.
34. On 22 November 2021 the resident complained about the number of contractors from the landlord who attended that morning. The resident confirmed that she was advised that the installation would take place the next day.
35. On 25 November 2021 the resident raised concern about the brand of boiler control that was used. The landlord advised her that the brand it proposed using was standard. The resident refused to let the control be installed as she was unhappy with the brand of the control. The landlord asked the resident for access to fit the control and attend to some other minor works on the property. The resident complained that she considered the landlord was undertaking procurement fraud.
36. On 14 December 2021 the landlord advised the resident that it was looking into her complaint of procurement fraud.
37. On 12, 13 and 14 January 2022 the landlord asked the resident about a time to complete the outstanding jobs.
38. On 20 January 2022 the landlord advised the landlord that the contract with the contractor undertaking the works was competitively tendered for ten years ago and was due to end soon, at which point there would be another competitive tender. It confirmed that there had not been procurement fraud. It explained that it used a different brand of boiler control because they were more robust and replaceable if needed. The other control had been returned without charge.

Assessment and findings

39. The resident’s complaint raises two key issues. Firstly, the landlord’s management of gas safety issues regarding the boiler. Secondly, the manner in which the landlord communicated with the resident and managed the resolution of the matter.
40. The Ombudsman notes that there is reference in the evidence to the resident’s complaint that there was procurement fraud by the landlord regarding the controls it was installing for new boilers. The evidence indicates that a complaint was made to the landlord to which it responded. However, the evidence does not indicate that the matter has gone through the landlord’s full complaints process. As such, the Ombudsman has not considered that complaint ground in this Determination. If the resident wishes this to be considered the matter would need to be escalated appropriately with the landlord in the first instance.

Management of gas safety issues

41. The landlord’s position on the issue has developed somewhat over time. During one inspection, after putting up scaffolding to assess the distance when it could be more easily measured, it concluded that there was a sufficient distance between the flue and the window. It has submitted photos that the engineer at the time stated showed these measurements.
42. The landlord’s position at the time it sent its second stage complaint response letter on 5 August 2021 was that, whilst it may not be technically compliant, it was not a safety risk. It submitted that this was confirmed when the scaffolding was erected. Its ultimate position is that it has acknowledged that the boiler flue does not meet the relevant standards about the required distance between the flue and the window. However, it submits that at the time the boiler was installed it would have obtained a “dispensation letter” from the manufacturer. It does not have relevant records due to the amount of time that has passed. Its view is that it would not have been identified by previous gas safety inspections as  – whilst it was “not to current standards” – it did not represent a safety risk.
43. This view was called into question by the independent survey undertaken on 14 October 2021 by Gas Safe Register. This concluded that the flue was not the required distance from the window and that this issue was an “Immediately Dangerous” fail.
44. The role of the Ombudsman is to determine if the landlord has acted in a reasonable manner. The Ombudsman is not a regulatory body and does not regulate compliance with specific gas safety technical standards. The Ombudsman further notes that in this case the issue appears to be a matter of a difference of centimetres in a difficult to measure location. The Ombudsman therefore does not consider it appropriate to make a finding whether there was a technical failure regarding the compliance of the boiler placement with relevant standards. However, the Ombudsman has considered whether the landlord has handled the issue of gas safety and risk to the resident in a reasonable manner.
45. The Ombudsman has been provided with evidence that the boiler was inspected a number of times over a number of years. The Ombudsman has been provided with Gas Safety Certificates from 16 November 2011, 23 October 2012, 28 September 2013, 4 August 2014, 25 May 2015, 22 April 2016, 22 February 2017, 20 January 2018, 22 November 2018, 11 October 2019 and 19 August 2021 (which noted an ongoing issue with the boiler). The issue with the distance to the flue was not potentially identified until October 2020 and it was not until 3 June 2021 that an inspector took the view that the boiler was not the required distance and this was a safety issue. This contractor shut the gas supply down.
46. The Ombudsman notes that we have not been provided with evidence that there was an identified live safety issue resulting from the flue placement – in other words, the issue that was identified was that the flue did not comply with the measurements required by a specific standard. This is different to evidence of a material live safety issue and a conclusion that the resident had been at a material risk of harm resulting from gas safety since the boiler was installed in 2009. The Ombudsman acknowledges that the independent report in October 2021 referred to the situation as “Immediately Dangerous”. However, this reflects the language used for the categories in the assessment and, in the context, does not appear to have been an assessment that there was and had been, a material  risk to the resident.
47. The Ombudsman acknowledges that the resident referred to gas fumes, however she declined for these to be further investigated by the landlord. The Ombudsman has not been provided with evidence that the distance between the flue and the window was causing dangerous levels of gas fumes to be present.
48. The Ombudsman is satisfied that the landlord undertook the required annual safety checks and these did not identify a safety risk. It was reasonable for the landlord to proceed on the basis that there was not a safety risk from the boiler until such time as a gas safety inspector took the view that there was an issue.
49. The Ombudsman acknowledges that the resident has provided evidence of a communication from a representative of the boiler maker who said that a dispensation letter would not have been written at the time the boiler was installed in 2009. The Ombudsman is not persuaded that this is sufficient evidence to dismiss the possibility that a dispensation letter was signed. It is unfortunate that the landlord did not retain the relevant documentation from the time period of the installation. However, this is not crucial to the Ombudsman’s determination as – given the number of gas safety checks conducted since the installation – it was reasonable for the landlord to rely on those as ongoing assessments of the safety of the boiler.
50. The evidence indicates that, when an engineer concluded in 3 June 2021 that the boiler should be shut down as a safety risk, the landlord took steps to address the issue in a prompt fashion.
51. On 11 June 2021, eight days after the contractor visit, the landlord contacted the resident to arrange the installation of a new boiler, that would comply with the flue and window distance requirements. The Ombudsman therefore finds that – when presented with the safety issue – the landlord proposed a solution to it to address the resident’s concerns.
52. The resident declined the installation and it was not installed until sometime late November 2021. The resident was without heating and hot water during this period. The Ombudsman appreciates that this was distressing for the customer. However, the Ombudsman is satisfied that the landlord had taken reasonable steps to install a new – compliant – boiler. It was the resident’s decision not to proceed with that.
53. In summary, the Ombudsman does not consider it appropriate to make a finding whether there was a technical failure regarding the compliance of the boiler placement with relevant standards. However, the Ombudsman has considered the manner in which the landlord has handled issues of gas safety regarding the boiler. The Ombudsman is satisfied that the landlord undertook annual gas safety checks over a number of years that did not identify a safety issue. When a contractor concluded that there was, the landlord took reasonable steps to address this and took steps to install a new boiler, which the resident inititally declined.
54. Therefore, and taken altogether, the Ombudsman finds that there has not been a service failing regarding the landlord’s handling of gas safety issues.

Communication and management of resolution of the matter

55. The Ombudsman has also considered the manner in which the landlord communicated with the resident and managed the resolution of the matter.
56. The Ombudsman acknowledges that this has clearly been a source of significant distress to the resident over an extended period of time. The resident has stated that she feels that the landlord has discriminated against her on the basis of sex and race. She feels that the landlord has communicated poorly with her and not taken sufficient steps to address and progress the matter.
57. The Ombudsman is not persuaded that the evidence demonstrates that the landlord has treated the resident differently due to her sex or race. The Ombudsman is satisfied that the evidence indicates that the landlord communicated to the resident in a courteous and appropriate manner. The landlord attempted a number of times to arrange to install a replacement boiler.
58. The Ombudsman understands that the resident felt that she couldn’t “trust” the landlord. However, the Ombudsman does not consider that this can reasonably be considered to be due to failings by the landlord in the way in which it handled the matter. The landlord had offered to install a new boiler in June which met with the requirements for the distance between the flue and the window. It is not clear why the resident continued to pursue the matter when the resolution to the cause of her concern had already been offered.
59. The Ombudsman does not wish to dismiss the resident’s distress at the matter. However, it cannot be reasonably found that this was the result of failings by the landlord in its communication and management of the issue.

Determination (decision)

60. In accordance with section 54 of the Housing Ombudsman Scheme there has been no maladministration by the landlord with respect to its management of gas safety issues arising from the boiler at the property.

Reasons

61. The Ombudsman does not consider it appropriate to make a finding whether there was a technical failure regarding the compliance of the boiler placement with relevant standards. However, the Ombudsman has considered the manner in which the landlord has handled issues of gas safety regarding the boiler. The Ombudsman is satisfied that the landlord undertook annual gas safety checks over a number of years that did not identify a safety issue. When a contractor concluded that there was – the landlord took reasonable steps to address this and took steps to install a new boiler, which the resident declined.
62. The Ombudsman acknowledges that the resident has suffered significant distress and understands how concerned she has been by the issues raised. However, it cannot be reasonably found that this was the result of failings by the landlord in its communication and management of the issue.