Barking and Dagenham Council (202005996)

REPORT

COMPLAINT 202005996

Barking and Dagenham Council

31 August 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 concerns the landlord’s handling of:
1. The resident’s reports of carbon monoxide poisoning due to a faulty boiler and request to be transferred to another property due to safety concerns.
2. The related complaint.

Background and summary of events

The resident is a secure tenant. The tenancy began on 1 April 2014. The property is a three-bedroom ground floor flat.
In her 18 September 2020 communication to the Ombudsman, the resident said she and her children had been affected mentally and psychologically by the high carbon monoxide readings and that stress and anxiety caused by this had affected her pregnancy. It is not the role of the Ombudsman to investigate if there was a causal link between reports of health issues experienced by the resident and her family and the actions of the landlord. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of the complaint. As these claims are more appropriately dealt with by a court or other procedure, this element will not be investigated.
On 18 October 2019, the landlord attended the property for an annual gas service. The Gas Safety report dated 18 October states “flue terminal missing” and “had to isolate boiler as high CO reading – visual inspection only”. The engineer capped the boiler.
On 22 October 2019 the landlord’s engineer reattended to carry out a carbon monoxide (CO) investigation. The engineer’s report of the same date stated there was a CO leak reported on 19 October 2019, that had been found ‘immediately dangerous’ and that the condition of flue and terminal was poor with the flue terminal missing. The report stated action taken as: ‘renewed flue’ and said that no CO was present – atmosphere CO reading was 0PPM. The boiler was also serviced and left in a working condition.
On 1 November 2019, the resident called an independent third party company Cadent (Cadent) as she said the alarm sounded. Cadent attended and capped the gas meter. The landlord’s job notes show that a gas engineer attended as an emergency on the same date and completed full CO checks. The notes show that a further gas engineer returned on 5 November 2019 following a further report received and completed all required testing. No issues were found and the boiler was re-commissioned and left in working order.
The resident’s solicitor wrote to the landlord on 6 November 2019 claiming that the resident and her family had been exposed to CO due to a defective boiler. It said the landlord’s engineer who had attended on 18 October 2019 had confirmed this. The letter advised that the resident and her children had suffered from repeated headaches and dizziness as a direct result of exposure to CO.
The letter advised that the family had also been affected psychologically and were now too frightened to live at the property. It requested that the landlord move the resident and her family to a safer property, free from CO leaks. The letter advised that it was waiting for the results of blood tests in order to provide the resident advice regarding taking possible legal action for damages.
The landlord’s job notes show that an electrician attended the property to fit a battery powered CO alarm.
The landlord provided a response to the resident’s solicitor on 21 November 2019. It apologised for the inconvenience and distress caused to the resident. It said it was conducting a full investigation in order to resolve the matter fairly. It advised:
1. The property had a ‘natural Gas Detector’ which was checked on 21 November 2019 however as an extra measure of reassurance it had fitted the property with a battery powered CO alarm on 14 November 2019.
2. An inspection was carried out at the property on 22 October 2019 which showed that the property was safe to enter as the atmosphere CO reading was 0PPM. This meant that there was no CO detected and the boiler was operating according to its manufacture’s specification. It attached the report from this date.
3. It did not believe there had been any exposure to carbon monoxide; the appliance fitted was a ‘Worcester Greenstar 18i’ and was a ‘room sealed appliance’, which meant it was entirely sealed from the room and it took the oxygen it needed for the combustion directly from outside via the flue system.
4. An incorrect reading was found in the exhaust side during the visit on 19 October 2019 due to the flue terminal being missing. As a result, this was causing incomplete combustion. (i.e. when there is not enough oxygen, Carbon will combine with one-part Oxygen and not two). This would not release gasses into the room as it’s a ‘room sealed’ appliance.
5. In low concentrations, CO was a perfectly harmless gas; it occurred naturally and was present in the air. It said only where CO levels were above 70PPM people may develop symptoms e.g. unconsciousness, difficulties in breathing and deaths etc.
The landlord asked that the resident’s full medical records were provided within five working days so it could conduct a full investigation.
On 6 December 2019, the landlord sent an email to the resident’s solicitor’s reminding them to provide the medical records requested as its investigation was “ongoing”. It gave a new deadline of 14 December 2019.
On 5 February 2020, the resident’s MP contacted the landlord stating that the resident and her family had been exposed to carbon monoxide, causing headaches, sickness and fainting. They said that CO was detected at the property on 18 October 2019 however the existing alarm had not gone off. It said they had to wait a month for the landlord to fit a CO detector indicating the landlord had not treated the matter as an emergency.
It said the resident had contacted the landlord’s out of hours emergency services on 19 October 2019, only to be told it was not an emergency. No alternative accommodation was initially offered, although a hostel was then offered for one night. The landlord however attended the next day and advised the property was safe and they could return. The MP asked for the landlord to move the resident and requested an update from the landlord.
The landlord provided a response to the resident’s solicitor on 24 February 2020 advising that there was no evidence of CO poisoning – all gas appliance had been checked and leak tested and were found to be working to manufacturer specifications. The landlord said it had previously requested medical evidence in relation to the alleged CO exposure but this had not been provided. It asked for this evidence to be provided by 16 March 2020 to enable a further investigation.
The resident’s MP request wrote to the landlord on 17 March 2020 asking it to treat the resident’s complaint as a corporate complaint. It attached an email from the resident who said she understood that blood test results had already been provided to the landlord however she was requesting medical records from her GP.
On 11 May 2020, the resident contacted Cadent due to experiencing symptoms she suspected was due to carbon monoxide poisoning. Cadent visited the property and took a reading of 100 CO PPM from: “around the boiler casing” and capped the boiler.
On 13 May 2020, the landlord’s engineer visited the property to carry out its own checks in response to the further report of a CO leak. The CO investigation report of the same date shows it found no issues with the boiler and took a reading of 0 PPM.
The landlord’s engineer attended on 23 June 2020 following a report from the resident that she felt unwell. The engineer capped the boiler.
The landlord contacted the resident’s MP on 26 June 2020 advising that the blood test result showing 2% carboxyhaemoglobin level (a test used to diagnose CO poisoning) is the level to be expected in a typical non-smoker and it said this was naturally present in all of us. It said the resident’s GP’s notes provided were a record of what the resident was concerned about and no diagnosis, treatment or referral appeared to have been made. The tests are dated in October and November (2019) not in the last week and the boiler had been tested following the last report of a CO leak.
Within its response, the landlord said it had appointed an independent company, to complete a new CMDDA1 test in the property but said before this could proceed the resident would need to provide the new blood test results.
On 1 July 2020, an independent company attended the property to carry out checks. This report showed that all three tests carried out passed and within the report they commented: “Cadent’s reading of 100 ppm is a reading I would expect to get on the inside of the inner flue combustion reading. Which leaves me thinking where did they test the boiler to get this reading which isn’t clear on their paper work”.
On 10 August 2020, the resident’s MP wrote to the landlord advising that the resident had just given birth and reiterating that she was “terrified” each day as living in the property was bringing all sorts of stress and illness, and bad memories. It asked for the landlord to provide “a final response” as the MP wanted to escalate the issue. He also asked the landlord to confirm its position on the resident’s request to be re-housed.
On 17 August 2020, the landlord advised the resident’s MP that it would not be moving the resident to an alternative property as it had completed thorough tests of the whole property and boiler which confirmed the property was safe to occupy. The test results for CO poisoning consistently demonstrate normal levels of CO. The landlord said it was sorry that the resident felt anxious about CO poisoning, but this did not constitute sufficient grounds for a management transfer.
On 18 September 2020, the resident wrote to the Ombudsman advising of events leading to her contact with this Service and said she was terrified about the impact of the leak. She also gave details of the blood tests she and her children had following suspected poisonings. The resident said that on attending Accident and Emergency (A and E) after the initial 18 October 2019 report, she was told by doctors she had a small amount of CO- 1.1%. However, as her five year old child then started to feel unwell with a high temperature, they had a blood test for CO poisoning on 25 October 2019 which showed a 2 % carboxyhaemoglobin level. The results of further blood tests she and her children had on 2 November 2019 due to the CO alarm sounding were 0.9% for her, her then 17 year old son was 1.1%, 14 year old girl 1.2%, and 5 year old 1.0%. She said she was unhappy about the landlord’s refusal to move them.
Following further contact from the resident, on 23 March 2021 the Ombudsman wrote to the landlord asking it to provide a copy of the final response to the resident’s complaint or escalate it to the next level.
The landlord emailed the resident on 24 March 2021 asking her to provide medical evidence to support her stage one complaint.
The resident wrote to the landlord on 27 April 2021 advising she already sent blood test results of herself and her children to the landlord and had feedback that the amount of CO indicated normal percentages. She reiterated that the first high CO reading was taken by the landlord’s engineer on 18 October 2019 and despite assurances that the defective boiler had been repaired, they began to experience symptoms in May 2020 when Cadent visited the property and took another high reading of 100 ppm. The resident explained the negative impact of this on her and her family and she reiterated her request to be re-housed. She referenced comments made by the landlord’s relationship manager during a call including a suggestions that she should ask the children’s father to find them somewhere to live and questioning what she would have done if she owned the property. She felt very angry and upset by his comments.
Although the landlord had assured her that the defective boiler had now been repaired, she was still anxious and very worried about the matter and request that the landlord made it a priority to re-house them as a matter of urgency.
The landlord provided a final response to the resident on 3 June 2021. It acknowledged her complaint about problems with her boiler experienced since October 2019. It acknowledged the resident had said that due to experiencing symptoms of CO poisoning from the boiler that she and her children had become scared and traumatised and wished to be moved to safer accommodation.
The landlord said she previously raised this matter with her MP in February 2020 and continuously raised with them for several months. It is unclear why she did not raise this as a complaint at the time however it acknowledged she then raised this via the Housing Ombudsman in March 2021. The landlord said it then wrote to the resident on 24 March 2021 asking her to provide further medical information and clarification on her complaint. It did not receive a reply and it wrote to her again on 21 April 2021. It received a reply from her on 27 April 2021.
The landlord acknowledged her comments that she had to attend A and E on 19 October 2019 and again on 2 November 2019 for tests and treatments as she was suffering from symptoms that she believed to be caused by CO poisoning. She initially raised her concerns via a solicitor who wrote to it on 6 November 2019. It confirmed that:
1. A new boiler was installed in August 2018.
2. It attended on 18 October 2019 to carry out an annual gas safety check but the service was not completed as the boiler was found to require a strip down and clean. The boiler was turned off due to incorrect flue gas analyser readings.
3. On 22 October 2019, it replaced the flue terminal and completed a full CO investigation and no issues were found. The boiler was serviced and left working safely and efficiently.
4. On 5 November 2019, it attended and completed all required testing. No issues were found and the boiler was re-commissioned and left in working order.
5. It wrote to her solicitors on 21 November 2019 and advised that her property was fitted with a natural gas detector alarm and it was the correct type of alarm but due to her concerns an extra battery powered CO alarm was fitted in the kitchen above the boiler on 14 November 2019. The letter also reiterated that it would not be possible for she or her family to have been exposed to carbon monoxide (CM) because her property was fitted with a room sealed appliance meaning that the boiler was sealed from the room and it took the oxygen it needed for the combustion directly from outside via the flue system.
6. In regards to her solicitor’s claim that when the gas engineer attended her property on 18 October 2019, he left a warning note that the house was ‘immediately dangerous’ , it said that rather, an incorrect reading was found due to the flue terminal being missing. As a result, this was causing incomplete combustion. However, this fault would still not release gasses into the room as it was a room sealed appliance.
7. In regards to the blood tests results she provided the landlord said that they did not support the allegation that she or her family had been exposed to high levels of CM. The letter from her GP dated 7 February 2020 did not add any weight to her case as the letter makes reference to ‘suspected carbon monoxide poisoning’. It did not confirm that she did actually suffer from CO poisoning and furthermore, no subsequent medical reports or test results that verify her allegations had been provided.
8. It acknowledged her report that she called Cadent in May 2020 after her children started to experience symptoms again and that the engineer recorded a carbon monoxide reading of 100ppm around the boiler casing and turned the gas supply off. The Cadent report also shows the engineer ticked the box for the option that says that the smell of gas was reported/detected. The landlord said CO was an odourless gas, so if gas could be smelt this would indicate it was possibly a gas leak. Following this incident its engineer attended two days later on 13 May 2020 and carried their own checks and found there to be no issues.
9. It acknowledged that she reported feeling unwell on 23 June in the kitchen and its gas team attended and although he found no issues, due to the number of reports, he was instructed to turn off the gas. It was decided that it would be beneficial to arrange for an independent company to make checks. An engineer from an independent company attended on 1 July 2020 and carried out a series of room sweeps, these results came back within normal PPM ranges. He also completed a Landlord/Homeowner Gas Safety Record and a fumes investigation report and found no cause for concern. This engineer also spoke to the resident about Cadent’s report as their report did not make clear where they carried out their test as a 100ppm reading was what could be expected from the inner flue combustion. None of these tests concurred with the findings of Cadent. The resident’s boiler and cooker were left in working order.
The landlord said in conclusion, based on the reports, it could not verify her claims that she had been living with a defective boiler that had contributed to any medical health conditions and on that basis, there was no justification to fulfil her request to be rehoused to another property.
However, it acknowledged that the resident was caused inconvenience due to her gas being turned off on 23 June 2020 leaving her with no hot water or cooking facilities for seven days. However, it said having looked at the history of the case and the number of reports she had made, it was reasonable for it to engage the services of an independent contractor to verify its findings. It apologised that she was not kept informed about the appointment date and as a temporary cooker was not provided to her, it offered a compensation payment of £75.
Evidence provided to this service include the resident and her family’s blood test results from October and November 2019, letters from her GP including one dated 7 February 2021 and a letter from Cadent dated 23 May 2020 stating that it took a CO reading of 100 ppm “around the boiler casing and broken water flue” and confirmed that they capped the meter outlet on that date.

Assessment and findings

Reports of carbon monoxide poisoning due to a faulty boiler and request to be transferred to another property due to safety concerns

Landlords are responsible for carrying out certain safety checks and this includes gas safety checks which must be done once a year. This is to ensure gas appliances are safe and prevent fires, explosions and carbon monoxide poisoning; whilst carbon monoxide is a naturally occurring gas, if levels are found to be higher than normal due to an unsafe gas appliance, this may cause poisoning.
In the resident’s case, a gas safety engineer visited the property on 18 October 2019 to carry out the annual gas service in accordance with its requirement. The gas safety record of the same date stated they isolated the boiler due to a high CO reading and that there was a missing flue terminal. The landlord arranged for a gas safety engineer to attend on 22 October to carry out a CO investigation. The corresponding carbon monoxide report echoed that there had been CO leak and stated that the rectification work undertaken was to replace the flue terminal. The report also stated the boiler had been made safe, that there was an 0 PMM atmosphere CO reading and no further defects were identified.
Therefore, the reports indicate that there was a higher than expected CO reading taken on 18 October 2019 due to a missing flue (although the exact reading is not clear from the evidence). Whilst this understandably was a concern for the resident, the evidence shows the landlord took reasonable steps to address this issue on 22 October 2019 by replacing the flue terminal. It is clear that there was no CO detector/alarm installed at the property, however, as this was not a requirement at the time and as the landlord did subsequently install a CO detector/alarm on 15 November 2019, it acted reasonably in this regard.
The resident made a further report of a CO leak on 1 November 2019. The landlord attended on the same day as an emergency however found that Cadent had already turned off the boiler due to the CO alarm sounding. This Service has not seen any gas safety report for this date but the landlord’s job records indicate that its gas safety engineer carried out checks on this date and again on 5 November 2019 in response to a further report received from the resident of a CO leak and that no issues were found on either date and the boiler left in a working condition.
In a letter to the landlord dated 6 November 2019, the resident’s solicitor stated that the resident and her family had been exposed to CO. In its initial response of 21 November 2019, the landlord said it did not believe that it would be possible for the resident or her family to have been exposed to CO because her property was fitted with a room sealed appliance meaning that the boiler was sealed from the room and that it takes the oxygen it needs for the combustion directly from outside via the flue system. Nevertheless, the landlord asked her solicitor to provide evidence of the resident’s medical records so it could investigate this complaint further. This was a reasonable request as such evidence would enable the landlord to verify the claim of CO poisoning and take appropriate action.
Based on the resident’s communication to the Ombudsman dated 18 September 2020, the blood test she had on 18 October 2019 showed only a small amount of CO- 1.1%. It is noted that the blood test result for her five year only child provided to this Service dated 25 October 2019 showed a 2 % carboxyhaemoglobin level. Further, blood tests she and her children had on 2 November 2019 showed their CO levels were between 0.9 % and 1.2%. In response, the landlord advised these were within a normal range which it said was between 2 % and 4 %. On balance the landlord’s response was reasonable as its advice given in regards to expected levels of CO was accurate.
The landlord sent a further gas engineer to the property on 5 February 2020 to carry out checks to the gas boiler following a report from the resident that she had called Cadent as the CO alarm had sounded. This action taken by the landlord was appropriate. The gas safety report from this occasion shows a CO atmosphere reading of 0 CO PPM.
The resident contacted Cadent again on 11 May 2020 who attended and took a reading of 100 ppm. In her later formal complaint, the resident said she and her children had been experiencing symptoms prior to this that she suspected was carbon monoxide poisoning. The Cadent report provided to this Service confirms a reading of 100 CO PPM was taken “around the boiler casing” and notes that it capped the boiler. On 13 May 2020, the landlord’s engineer visited the property to carry out its own checks which it said had indicated there were no issues. The CO investigation report dated 13 May 2020 confirms this as it shows a CO atmosphere reading of 0 CO PPM. It is unclear from the evidence as to why the two results differed but by completing a CO investigation in response to this report, the landlord acted reasonably.
The landlord’s engineer visited again on 23 June 2020 following a further report from the resident that she was experiencing symptoms that she suspected were CO poisoning. On this occasion the landlord’s engineer capped the boiler. In its letter to the resident’s MP dated 29 June 2020, it explained that whilst the checks undertaken showed that the property was safe to occupy, it had appointed an independent company to complete a new CMDDA1 test pending evidence of the resident’s further blood tests results. In its final complaint response the landlord said this decision to cap the boiler on 23 June 2020 was made due to the high number of previous reports made by the resident.
Given the history of reports, the landlord’s decision to appoint an independent company to carry out checks was appropriate. The independent report dated 1 July 2020 shows that a series of “sweeps” were carried out in the room (the kitchen), the boiler and the cooker that gave readings of 0, 3 and 19 ppm respectively, which the report stated were all passes as these were within acceptable levels. It stated that the boiler and cooker were left in working order. Comments in the report also referred to seeing the resident’s “negative” blood test results and about Cadent’s 100ppm reading potentially being taken from the inner flue combustion although it was noted that this was not clear from their report as it did not state where the reading was taken.
Therefore, the resident’s further reports of CO leaks were all promptly investigated by the landlord’s gas safety team and ultimately by an independent company whose tests results showed the resident’s gas appliances were safe. It is acknowledged that their results differed from the 11 May 2020 Cadent reading, however the explanation it gave for the CO 100 pm reading (that it was taken from the inner flue combustion) may account for this.
In its final response the landlord relayed this to the resident and also maintained its position that CO poisoning had not been shown, referring to the blood test results dated 23 June 2022 as well as those from 2019 which it said demonstrated the resident and her family’s CO levels were within a normal range.
In regards to the resident’s requests to be re-housed due to her safety concerns about the defective boiler, throughout its communications to both the resident’s solicitor and her MP regarding the boiler/suspected carbon monoxide poisoning, landlord said there was no justification for her request to be rehoused to another property on account of her safety concerns as it maintained the boiler was safe. As this review has found that the landlord carried out appropriate checks to ensure the boiler was safe following the initial report of a high CO reading and in response to further reports, its position given in response to the resident’s request to be re-housed, was reasonable.
Nonetheless, following the initial report of “high” CO levels on 18 October 2019, it was reasonable to expect the landlord to have made arrangements for the resident and her family to stay in alternative temporary accommodation until further investigations were able to confirm that the boiler to be safe. According to the resident, the landlord did arrange for her and her family to stay one night stay in a hostel however as the CO investigation did not happen until 22 October 2019, it was reasonable to expect the landlord to provide alternative temporary accommodation for the full four nights. Therefore, the landlord’s failure to do so is evidence of a failure in the service provided. It is also noted that there is no evidence of the landlord offering to provide the resident with temporary heating or a cooker on any of the occasions her boiler was capped which would have been reasonable to expect on occasions where she had no hot water/heating for a day or more.
In its final complaint response the landlord acknowledged that the seven days without hot water and cooking facilities from 23 June 2020 when it capped the boiler, until it was re-commissioned on 1 July 2020 by the independent company, would have been inconvenient for the resident. It apologised for not providing a temporary cooker and also for failing to keep her informed of the pending visit during this timeframe. On this basis it offered her a compensation payment of £75.
Whilst the landlord’s acknowledgement of this issue, apology and offer of compensation indicates it made efforts to put right this failure, as it did not acknowledge other instances where this review has found its service provided did not reach the expected level, the landlord has not taken sufficient steps to resolve the complaint.

Complaint handling

The landlord has a two-stage complaints procedure which requires it to respond to complaints within 10 working days (at stage one) and 30 working days (at the final review stage).
From November 2019 the landlord was in communication with resident’s solicitor’s regarding the alleged carbon monoxide poisoning and then from February 2020 with the resident’s MP. As there had been no formal complaint raised at this stage, this was reasonable. However, on 17 March 2020, the resident’s MP asked for the resident’s case to be treated as a corporate complaint. As the issues were ongoing, it was appropriate for the landlord to log a complaint at this stage, in accordance with the resident’s MP’s request. Its failure to do so constitutes a complaint handling failure.
On 10 August 2020, the resident’s MP reiterated that the landlord provide a final response in order that they could escalate the issue, to no avail. The MP repeated the request in December 2020 after advice from the Ombudsman that the matter needed to have exhausted the landlord’s complaints process before it could be escalated. It was only following two subsequent requests from the Ombudsman itself in March 2021 and May 2021 that the landlord provided the resident with a “final” complaint response on 3 June 2021.
The Ombudsman Complaint Handling Code makes clear that a landlord’s complaint’s process should be accessible and should not have unreasonable restrictions on how a complaint can be made. In the resident’s case, the landlords’ refusal to log a complaint and delay in providing a final complaint response significantly prolonged the complaints process.
Additionally, some aspects of the resident’s 27 April 2021 complaint were not responded to by the landlord in its 3 June 2021 final complaint response, for example her complaint about comments made by its member of staff.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling reports of carbon monoxide poisoning due to a faulty boiler and a request to be transferred to another property due to their safety concerns.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s complaint.

Reasons

For the main part the landlord responded appropriately to reports of high CO levels at the property by arranging investigations to be carried out and providing repairs and capping the gas boiler where appropriate. However, there were instances where it did not provide sufficient support to the resident and did not acknowledge this in its final complaint response.
The landlord’s refusal to treat the resident’s communications (or those communications made on her behalf) as a complaint after multiple requests for the same, was unreasonable and evidence of a complaint handling service failure by the landlord.

Orders and recommendations

The Ombudsman orders that the landlord pay the resident £450 in compensation comprising:
1. £200 for not providing sufficient support to the resident by way of offering temporary accommodation, cooking and heating facilities.
2. £250 for the complaint handling failure.
The Ombudsman recommends that the landlord consider including guidance on compensation for residents in the event of gas appliances/supplies being capped due to safety concerns.