Aster Group Limited (202010322)

REPORT

COMPLAINT 202010322

Aster Group Limited

30 July 2021

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

This complaint is about the landlord’s response to the resident’s report of a chimney fire at their property on 7 January 2020.
This complaint is also about the landlord’s response to the resident’s concerns about the safety of the solid fuel heating system in their property prior to the chimney fire on 7 January 2020.

Background and summary of events

The resident is an Assured tenant of the landlord. The tenancy commenced on 17 May 2010. The property is a two bedroomed terraced house with a garden, built in 1914.
The heating system in the property at the time of the fire was a solid fuel, burner/back boiler system and radiators. The system had been installed approximately 30 years previously. The landlord has provided servicing records for the boiler going back to 2014. The landlord has advised that it does not hold any service records prior to 2014. The last report was dated 7 August 2019 which the system passed with an advisory note that the chimney be swept.
On the morning of 7 January 2020 the resident called the fire brigade to report that their chimney was on fire. The fire brigade were unable to extinguish the fire by directing water down the chimney and so drilled into the brickwork to pump water directly onto the fire. The fire brigade satisfied themselves that the rest of the chimney was not on fire and returned later the same day to confirm that the fire was safely extinguished. The resident said that they then called the landlord to report the fire and that they now had no heating in the house.
The landlord attended the resident’s property over the course of the 8 and 9 January 2020. The property, including the chimney stack, was inspected by the landlord’s surveyor. The landlord noted that there was no damage to the property except for some holes that the fire brigade made in the chimney breast in order to get their hose in, which would need to be made good and that there was a build-up of soot in the chimney around the burner/back boiler which had caught fire. The landlord said that it suspected that the cause of the fire was incorrect fuel being burnt, i.e. soft wood and insufficient sweeping of the chimney and that a large tar build up within the chimney had caught fire. The property was also inspected by the landlord’s solid fuel officer/maintenance supervisor and electrical heating supervisor and officer. Following which it was recommended that the old solid fuel appliance be condemned replaced with an electric heating system, due to the chimney fire and the appliance’s age and general condition, and to prevent any further occurrences.
On 21 January 2020, the resident logged a formal complaint with the landlord, which they followed up with a further email on 23 January 2020. The resident said that they were dissatisfied with the lack of coordination and communication in the two weeks since they reported the chimney fire at their property which had resulted in them having to re–live the ‘‘terrifying and frustrating circumstances’’. The resident acknowledged that the heating system had been regularly serviced by the landlord and that they had had the chimney regularly swept. The resident also said that the heating system had never been installed correctly and that there had been a ‘‘dangerous flaw in the system…‘’ that neither (they) nor any of the qualified personnel who have serviced it could have noticed’’. The resident said that they were opposed to the removal of their current heating system and its replacement with storage heaters as that was not a practical solution due to the amount of space needed for the storage heaters which would mean that their sofa and son’s bed would no longer fit.
On 29 January 2020 the resident called the landlord for an update on what was happening following the chimney fire. The landlord noted that the resident had not heard anything and wanted some reassurance. The landlord responded the same day. The landlord confirmed that it would not be recommissioning the previous heating system and that this would be replaced by a storage heating system. The landlord said it would reply to the resident’s complaint by 7 February 2020.
On 30 January 2020, the resident sent a follow up email to the landlord acknowledging that the landlord had ‘‘finally’’ emailed them after their repeated attempts to chase the matter up over the previous week. The resident said that the email they received on 29 January 2020 did not reflect the telephone conversations they had had with the landlord and dismissed their concerns which they said had increased their anxiety and stress.
The landlord replied the same day. The landlord explained the space required for, and location of, the storage heaters and that it could offer smaller slimline panels for smaller rooms, such as the son’s bedroom. The landlord went on to say that when it removed the radiators it would fill any holes which the resident would then need to paint over themselves, although it may be able to call upon its decorating team to follow on behind the installers to ensure that the resident had as little to do as possible. With regards to the fire place, the landlord said that it would discuss this further with the resident as it could either remove the solid fuel appliance and hearth and brick up the gap, which would leave a gap in the flooring and a plastered wall the resident would need to paint. Alternatively, it could leave the appliance and hearth in place for decorative purposes. The landlord said that it would make good any damage to vinyl flooring (kitchen and bathroom) and that it would make an assessment as to the carpets after the pipes had been removed. The landlord said that the works would take approximately five days to complete and that it was ‘‘acutely aware that (the resident had) been put through a very stressful situation’’ for which it could only apologise. The landlord said that if the resident had any further questions following its email it could visit the resident again and go over things in more detail.
On 4 February 2020, the landlord issued its stage one response. The landlord said that it was sorry that the resident had had a chimney fire, which it acknowledged must have been distressing for the resident and their family, but did not agree that it had been negligent nor that it had put the resident and their family at life-threatening risk for over a decade. The landlord said that:
1. It had contacted the manufacturers of the boiler about the original installation of the flue and burner and that it was confident that the original installation was carried out in accordance with the guidance at the time and that it was installed by a professional, qualified and competent person.
2. The resident had had the chimney swept regularly but this should have been done by a qualified HEATAS engineer. The landlord also said that the if the resident had been burning anything other than coal then the chimney may have needed to be swept more than once a year to prevent the build-up of deposits in the chimney. The landlord noted that the resident had said that the deposits were like creosote which would indicate that soft wood and pine resin, and not the coal and season hardwood that the boiler was designed to burn, may have caused the build-up in the chimney.
3. As the chimney flue had been condemned it effectively meant that the entire heating system had been condemned.
4. As soon as it was aware of the fire it sent an engineer with portable heating units, and arranged for the survey to install Night Storage Heating.
5. It was satisfied that its response and visits took place in a timely manner, and that the offer of an alternative fixed heating system was made within days of the fire. The landlord said that it was made aware of a requirement for a new heating system on 17 January and immediately arranged for an asbestos survey to be done, which took place on 21 January 2020.
The resident requested that his complaint be escalated to stage two of the landlord’s formal complaints process on 13 February 2020. The resident said that they had decided ‘‘under protest’’ to go ahead with the replacement of their heating system with storage heaters. The resident said that they were not happy with the landlord’s insinuation that they had used unsuitable fuel and its insistence that the original heating system was properly installed. The resident said that the landlord’s denial that they and their family were in any danger from the situation had caused them even more emotional distress. The resident also repeated his concerns about the original installation of the flue which they said contravened the specific instructions in the installation manual.
The new heating system was installed during the week of 26 February 2020.
On 11 March 2020, the landlord issued its stage two response. The landlord apologised to the resident for any distress they felt as a result of its stage one response and assured the resident that that had not been its intention. The landlord acknowledged that there was a difference of opinion about the condition of the resident’s previous heating system but that its decision to replace it with new storage heaters, which had now been installed, was in accordance with its current practices. The landlord went on to explain that the main reason behind its decision was that the system was nearly 30 years old and overdue replacement. The landlord said that it was sorry if the resident had felt its comments about the use of unsuitable fuel was unwarranted but the reports it had received indicated a build-up of tar/resin deposits, indicating the burning of unsuitable fuel such as soft wood. With regards to the original installation, the landlord said that the boiler was installed in accordance with current practice at that time and this would have been without a ‘‘flaunting’’ plate, as confirmed by the manufacturer. The landlord also said that given the fact that the flue was encased within the chimney it would have been difficult to identify the issue during normal servicing and chimney sweeping activity.
On 12 March 2020, the resident emailed the landlord to express his dissatisfaction with the landlord’s response. The resident said that the landlord was responsible for ensuring the heating system was safe, and that claiming that there was no way of ascertaining this was completely misleading. The resident also complained about a lack of coordination by the landlord which they said led to them having to continually relive the events of 7 January 2020, damage to their flooring as a result of the heating replacement which had only been partially rectified, the landlord’s continued assertion that they had used the wrong type of fuel and that the landlord had yet to confirm that it would cover the additional cost of having to use fan heaters for the period when they were without any other form of heating.
The landlord issued its stage three and final response on 23 April 2020. The landlord said that:
1. Its investigation and assessment had concluded that as the installation took place a significantly long time ago, that the installation was in accordance with common practice at the time and with no retrospective advice received about the installation, a service failure had not taken place.
2. Although the system was correctly maintained the only way the issue could have been identified would have been to remove bricks in the chimney breast to inspect, which was how it was discovered by the fire brigade.
3. It recognised and apologised for its communication following the fire and for the completion of remedial works, which it acknowledged could have been better. The landlord also acknowledged that it had given some contradictory information and that its complaint investigation could have been handled more sensitively. In light of this, and the distress and inconvenience this had caused, the landlord offered the resident £200 compensation.
4. The landlord also confirmed that it would:
  1. Compensate the resident for the cost of running temporary heaters from 7 January 2020 to the date of the reinstatement of the new heating system.
  2. Replace the flooring in the wet room, the kitchen, the carpets on the landing and stairs as there would be holes left from the removal of the radiator, although it would not normally do so.
  3. Provide an electric fire to sit in the gap left by the removal of the solid fuel appliance which again would not usually have been provided.
  4. Not be replacing the laminate flooring as this would not usually be supplied following the installation of a new heating system.
  5. Fill the holes left by the radiator pipes in the bedrooms were minimal (12mm bore pipes) but would not be replacing the flooring in the bedrooms.
  6. Arrange for the replacement of the flooring in the sitting room, which it understood also extended to a small area in the hallway.

Assessment and findings

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to its policies, procedures, and any agreements with the resident, and that the landlord behaved reasonably, taking account of what is fair in all the circumstances of the case.
Under the terms of the tenancy agreement the landlord is responsible for the repair to the structure of the building and for the repair and keeping in working order the installations in the property for space heating and heating water. The landlord’s Repairs policy also confirms the landlord responsibility to repair the chimney and flue (the structure), and solid fuel central heating systems.
Under the terms of the tenancy agreement the resident is responsible for arranging, and paying for, ‘‘small repairs’’ including the sweeping of chimneys (Tenancy Agreement Section 22.1.12).

Report of a chimney fire at their property that occurred on 7 January 2020.

The landlord’s Repairs policy includes response times to different categories of repairs. This includes:
1. Emergency out of hours and Critical Emergency – response time four hours.
2. Emergency – response time 24 hours.
3. Next working day – defects that can wait until the next working day, rather than raising a 24-hour emergency job. Examples include total loss of heating and hot water during Winter months – response time 36 hours.
4. Routine – other, non-urgent repairs – response time 20 working days.
Following the resident’s report of the chimney fire on 7 January 2020 the landlord acted appropriately, and in accordance with the resident’s tenancy agreement and its repairs policy, by attending the property within 24 hours. Over the course of 8 and 9 January the landlord’s inspections confirmed that there was no damage to the structure of the property, that the old solid fuel appliance should be condemned and that it be replaced with electric storage heaters. Given the age of the appliance (approximately 30 years), the issues raised regarding its condition, and that the chimney flue had been condemned, it was reasonable for the landlord to advise the resident that it would be installing a new more contemporary heating system.
The resident’s initial objection to the new heating system was acknowledged by the landlord and it took reasonable steps to allay the resident’s concerns by providing them with further information about the new system, offering smaller slimline panels for smaller rooms and confirming what steps it would take to make good once the radiators had been installed. The landlord also provided the resident with options with regards to the remaining fire place and confirmed that it would make good any damage to the vinyl flooring in the resident’s kitchen and bathroom.
The new heating system was installed during the week of 26 February 2020, seven weeks (49 days) after the fire. Given the extent of the works, which included an asbestos survey, this was not an unreasonable period of time for the works to be completed. This was also in accordance with Section 2.2 of the Landlord’s repairs policy states that there will be occasions that a repair may require more significant investment or is too complicated and will need to be dealt with outside of this procedure and fall into a planned, cyclical or a one-off unplanned works, which may include items such as defective boilers requiring replacement. Given that the 49 days the resident was without heating fell within the winter period it was appropriate for the landlord to provide the resident with an alternative form of heating.
The landlord also confirmed in its final response that it would compensate the resident for the running costs of the temporary heaters from the date of the fire to the date the new heating was installed. In addition the landlord also agreed to replace not only the flooring in the kitchen and bathroom, which it had previously agreed, but also the carpets on the landing, the stairs and the sitting room. This was a reasonable offer because under the terms of the tenancy agreement the resident is responsible for the internal maintenance of the property, including carpets. The Tenancy handbook also advises the resident to have home contents insurance to cover the cost if there is any damage, including fire damage, to personal items, carpets, furniture and other contents and decorations. The landlord also agreed to provide the resident with an electric fire to sit in the gap left in the fireplace. Again this was a reasonable offer as the electric fire was offered as an addition to the new heating system, which again the landlord was not required to do.
In its final response the landlord also acknowledged its failings with regards to areas of its communication with the resident, including in its coordination and communication with the resident whilst investigating the damage caused by the fire and deciding on the replacement of the heating system, and its lack of sensitivity in some of its correspondence with the resident. The landlord apologised to the resident for this and offered them £200 compensation.
In determining whether there has been service failure or maladministration the Ombudsman considers both the events that initially prompted a complaint and the landlord’s response to those events. The extent to which a landlord has recognised any shortcomings and the appropriateness of any steps taken to offer redress can be as relevant as the original mistake or service failure.
Section 2.11 of the landlord’s Compensation policy states that Discretionary compensation payments will be considered following service failure and that the landlord will seek to provide financial or other redress in recognition of loss or detriment to a customer. The Ombudsman Remedies guidance recommends compensation in the range of £50 to £250 for instances of service failure resulting in an impact on the resident but was of short duration and may not have significantly affected the overall outcome for the resident.
Having considered all the evidence, the extent to which the landlord acknowledged and apologised for its service failures, the landlord’s own Compensation policy and the Ombudsman’s Remedies guidance, I am satisfied that the landlord’s offer of £200 compensation, to replace the flooring in the bathroom, kitchen, landing, stairs and sitting room, to install an electric fire and its offer to compensation the resident for the running cost of the replacement heaters was fair and proportionate and provided the resident with reasonable redress for its acknowledged service failures.

Concerns about the safety of the solid fuel heating system in their property prior to the chimney fire on 7 January 2020.

Following the chimney fire on 7 January 2020, it became apparent that a piece of equipment on the back boiler/burner, the ‘’flaunting’’, was not present. The resident said they believed this to be the cause of the fire and that the landlord was negligent in that it failed to ensure that the heating system was safe when the property was let to them almost 10 years earlier. The resident also complained that the landlord should have periodically checked the boiler and if it had the fire would not have occurred. This is disputed by the landlord who said that it suspected that the cause of the fire was incorrect fuel being burnt and insufficient sweeping of the chimney which had resulted in a large tar build up within the chimney which had caught fire.
Whilst the fire was clearly and understandably a very traumatic experience for the resident and that the resident was clearly upset by the landlord’s conclusions as to the cause of the fire, the Ombudsman cannot draw conclusions on negligence nor the causation of, or liability for, damage to property as this would be more usually dealt with either as an insurance claim or through the courts. What we can consider is what actions the landlord took once it became aware of the issue and whether those actions were fair and reasonable given all the circumstances.
Section 1.3 of the landlord’s Gas, Oil and Solid Fuel Servicing Policy states that, as far as is possible, the landlord is to ensure that all fossil fuel burning appliances i.e. gas, oil, solid fuel used in properties owned by the landlord and for which as landlord has a responsibility, are in a safe condition and that all the customers of and persons visiting these properties are in no danger from such appliances.
When the landlord became aware that the ‘’flaunting’’, was not present it took reasonable steps to address the issue and to satisfy itself as to whether there had been a service failure on its part with regards to the maintenance of the back boiler/burner. This it did by contacting the manufacturer to satisfy itself that the original installation was in accordance with common practice at that time. Through its contact with the manufacturer the landlord also satisfied itself that there had been no retrospective advice to check and install flaunting plates after the original installation.
With regards to the resident’s complaint that the landlord should have periodically checked the boiler. Section 2 of the landlord’s Gas, Oil and Solid Fuel Servicing Policy states that the landlord will:
1. Section 2.1 – Ensure that each appliance falling under its responsibility will be serviced and checked within 12 a month period by an engineer registered under an appropriate competent persons’ scheme.
2. Section 2.2 – When servicing heating equipment in its homes also test the carbon monoxide and smoke detector units where they are fitted.
3. Section 2.3 – Ensure that when an appliance is serviced, anything that doesn’t meet the appropriate regulation or manufactures instructions and is a potential Health and Safety risk will be isolated and a warning sticker applied if it cannot be repaired at that time. In this situation the customer will be offered a temporary source of heating if in the winter months.
The landlord has provided evidence of its compliance with its obligation both under the terms and condition of the tenancy agreement and Section’s 2.1 and 2.2 of the above policy by providing copies of its annual safety check services of the resident’s solid fuel back boiler/burner going back to 2014. On each occasion the appliance was noted as having passed the inspection and no concerns were raised about the installation of the appliance. In its final response the landlord explained that the only way to have identified the issue would have been to have removed bricks from the chimney breast. In their complaint of 21 January 2020, the resident acknowledged that the heating system had been regularly serviced by the landlord and that neither they nor any of the qualified personnel who had serviced it could have noticed that the flaunting plate was not present.
Overall, and having considered the evidence, I am satisfied that there was no service failure by the landlord in respect of its response to the resident’s concerns about the safety of the solid fuel heating system in their property prior to the chimney fire on 7 January 2020.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme there was reasonable redress by the landlord in respect of its response to the resident’s report of a chimney fire at their property on 7 January 2020.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about the safety of the solid fuel heating system in their property prior to the chimney fire on 7 January 2020.

Reasons

The landlord recognised its responsibility to repair and acted promptly in response to the resident’s report of the fire, attending the property within the timescales set out in its repairs policy. The landlord arranged for the timely replacement of the heating system at the property and offered to replace floor coverings and to provide a new electric fire which it was not required to do under the terms of the tenancy agreement. The landlord also offered the resident £200 compensation for its acknowledged service failures with regard to the coordination, communication and lack of sensitivity in some of its correspondence with the resident.
The landlord complied with its obligations with regards to the regular servicing of the back boiler/heater. As soon as the landlord became aware of the issue with the ‘‘flaunting’’ it took steps to replace the appliance and to satisfy itself what the position was with regards to the original installation and that there had not been any retrospective advice that it should have followed with regards to the installation.

Recommendation

If it has not done so already the landlord is to:
1. Pay the resident the £200 compensation offered in its final response.
2. Replace the flooring in the bathroom, kitchen, landing, stairs and sitting room.
3. Install an electric fire to sit in the gap left in the fireplace.
4. Compensate the resident for the running cost of the replacement heaters.
The finding of reasonable redress is conditional upon the above recommendation being implemented.