Gentoo Group Limited (202000538)

REPORT

COMPLAINT 202000538

Gentoo Group Limited

20 January 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 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 request to bring forward the installation of double glazing to her property.

Background and summary of events

Background

The resident is an assured tenant of the landlord. The tenancy commenced on 30 January 2012 and the property is a one-bedroom bungalow.
The landlord has a programme to removed and replace all single glazed units with double glazing by December 2023. The resident’s property is included in this programme.

Summary of Events

On 18 December 2019, the resident’s local councillor emailed the landlord to say that he had been contacted by the resident who had requested his support with a request for double glazing to be installed at her property. The councillor also provided the landlord with the resident’s written consent for him to contact the landlord on her behalf with regards to these matters.
The councillor also attached a copy of a letter from the resident’s consultant, dated 15 November 2019. In their letter the resident’s consultant explained that the resident was suffering from rheumatoid arthritis and that they supported the resident’s ‘‘desire to have double glazing to keep her home at a reasonable ambient temperature’’.
On 19 December 2019, the landlord replied to the councillor advising that his concerns had been passed to its Asset Management Team who, the landlord said, would arrange to contact and make an appointment with the resident to have her window’s surveyed in the New Year. The landlord also advised that ‘‘despite the medical evidence, if we are to adopt a consistent approach to the requests for acceleration in the programme, the windows must be deemed not repairable’’. The councillor replied the same day. The councillor explained that ‘‘the windows appear in good order, but the house is very cold and there is a draft through the house despite draft excluders and the heating being on’’. The councillor concluded by saying that there were ‘‘Clearly terrible conditions for someone suffering from Rheumatoid Arthritis’’.
On 20 December 2019, the landlord’s Building Surveyor visited the resident’s property to conduct an inspection of the resident’s window. The surveyor noted that:
1. The windows are in a good condition for typical single glazed units.
2. At the time of the inspection the windows were free of condensation and there were no signs of mould growth.
3. The external mastic seals to the majority of the windows were in a good condition.
4. All accessible windows operated correctly.
5. At the time of the inspection the mechanical extract fan to kitchen was operational however the one in the bathroom wasn’t working.
6. At the time of the survey the house was quite cold, and the resident advised that she struggles to afford to heat her home
The Building surveyor went on to recommend that the extractor fan to the bathroom is serviced to ensure correct operation. The Building surveyor also said that ‘’if (the landlord) replaced the windows she would still have the same issue of fuel poverty’’ and asked whether the resident had been referred to the ‘‘team within the company that deals with fuel poverty’’. The landlord has subsequently advised that it had been unable find any record of a referral or any contact with the customer to discuss this.
On 7 Jan 2020, the landlord wrote to the resident regarding her councillor’s recent contact. The landlord explained that:
1. It had ‘‘produced a programme to accelerate the replacement of single glazed windows, the prioritisation of which is based on age and condition. At this point in time the windows in your home are due to be upgraded in the 2023/2024 financial year, although this may be sooner depending on budget and Contractor availability’’.
2. There were ‘‘various factors to consider when deciding whether or not window replacements can be accelerated. This requires a balance between (the landlord) demonstrating value for money and responsibly targeting window replacements on a ‘worst first’ basis, whilst being consistent with customers who request accelerated window replacements’’
3. Following the window survey carried out at the resident’s property the landlord was ‘‘unable to accelerate window replacement ahead of schedule’’. The landlord explained that this was because ‘‘Whilst your windows are clearly approaching the end of their life cycle, the condition of the windows are considered no worse than those we have prioritised and are currently replacing’’.
4. The surveyor had identified a fault with her extractor fan and that this had been passed on to its Repairs and Maintenance team to address. The landlord said that the Repairs and Maintenance team would be in contact with her shortly to rectify this.
The councillor responded to the landlord on 8 January 2020. In their letter the councillor expressed concern that the assessment carried out by the landlord ‘‘failed to consider how cold the property is and drafts in the home’’. The councillor said that he had visited the resident and experienced ‘‘how cold and drafty the property is even with the heating on full’’. The councillor also explained that the resident was ‘‘suffering from a series of medical conditions which are worsened by the cold and drafts in her home’’ and that the resident also ‘‘suffered from a series of minor respiratory issues and she is more likely than average to pick up such minor issues due to her underlying health condition’’. The councillor asked that the landlord look at the resident’s case again and ‘’ consider the specific situation (the resident) is in’’. The councillor also said that he had previously made such requests and ‘‘in both instances, which have striking similarities, (the landlord) have installed new double glazing’’. The councillor ended by saying that he was ‘‘happy to meet with (the landlord) to discuss this case’’.
On 5 February 2020, the councillor met with the landlord’s Director of Asset Management and Head of Asset Strategy. The landlord’s records note that during this meeting the landlord’s ‘‘approach to dealing with individual requests to accelerate their window replacement, as well as explaining why certain properties have been accelerated on the basis of medical grounds such as respiratory conditions (i.e. Chronic Obstructive Pulmonary Disease (COPD), etc.) On these occasions, medical evidence in relation to conditions such as these had been provided’’.
Following the meeting, the councillor contacted the landlord to say that he had spoken to the resident and she had offered to provide additional documentation on her condition, its severity, and the details of the lifelong care she will be receiving.
On 11 February 2020, the landlord emailed the councillor. The landlord confirmed that ‘‘unfortunately it is a no regarding bringing the property forward in the programme for completion’’. The landlord also confirmed that of the three cases the councillor referred to in his correspondence of 6 February 2020, two properties had their double glazing replaced ‘‘on the basis of the customer having evidence of COPD’’, the third, who had arthritis, was refused.
On 27 April 2020, the councillor submitted a Web Complaint to this service on behalf of the resident. The councillor explained that the landlord was in the process of replacing the double glazing across the resident’s estate, which was planned to go on until 2023. The councillor said that ‘‘As part of this programme (the landlord) have a policy that it will support vulnerable tenants who have a demonstrable medical need and in those cases will install the double glazing earlier than planned’’. The councillor said that the resident had requested that her double glazing be replaced early on medical grounds, but the landlord had refused. The councillor said that the landlord should ‘‘Install double glazing to the property in line with its policy to install where there is a demonstrable medical need’’.
On 29 April 2020, this Service wrote to the landlord asking that it provide the resident with a written update regarding her complaint. The landlord was also asked, if this matter was not being dealt with as a formal complaint, for it to do so and provide the resident with a response in line with its complaints procedure.
On 30 April, the landlord emailed the councillor to advise that it had received contact from this service, that the complaint had not previously been dealt with as a formal complaint and that it would respond to the resident and the councillor as a Stage 1 complaint.
The landlord issued its Stage 1 response on 5 May 2020. In its response the landlord said that it had ‘‘produced a programme to accelerate the replacement of single glazed windows, the prioritisation of which is based on age and condition. At this point in time (the resident’s) windows are due to be upgraded in the 2023/2024 financial year’’. The landlord confirmed that its building surveyor had visited the resident’s home on 20 December 2019 and following that inspection, the resident had been advised that the landlord was ‘‘unable to accelerate the window replacement ahead of schedule’’. The landlord again said that ‘‘the condition of the windows are considered no worse than those we have prioritised and are currently replacing’’. The landlord confirmed that it had met with the councillor and explained its approach to dealing with individual request to accelerate their window replacement and repeated its approach to acceleration of requests on the basis of medical grounds. The landlord also said that the resident’s case was discussed with its Chief Executive, who ‘‘concurred with the previous decision made’’.
On 14 May 2020, the resident’s councillor emailed the landlord to request an escalation of the resident’s complaint. The councillor said that he had discussed the landlord’s response with the resident, who had decided that she wished to continue with her complaint. The councillor said that ‘‘Concern remains with the fundamental unfairness of the decision’’ and that the resident was ‘‘in crippling levels of pain which is aggravated by the cold and drafts in her home’’. The councillor said that ‘‘Others have had double glazing installed and the policy which was explained was that anyone with a demonstrable medical need could have the double glazing installed early. This has then been changed to limit those who are eligible for double glazing to be installed to (the resident’s) detriment. In other cases, GP letters have been taken as sufficient recommendation, (the resident) has a recommendation from a Consultant specialising in her condition which could be valued above a GP recommendation’’.
The landlord issued it final response on 1 June 2020. The landlord confirmed its decision not to bring forward the window replacement works at the resident’s property. The landlord said that it was ‘‘applying consistent criteria across the City to all requests we receive of this nature’’ and that the resident had ‘‘not in any way been singled out’’. The landlord went on to say that it had ‘‘introduced a criteria to try and ensure that all our tenants were being treated fairly and that no one was prioritised unfairly above someone else’’. The landlord ended by advising the resident that if she was not satisfied with its response, she had the right to take her complaint to the Ombudsman.

Assessment and findings

Policies, procedures, and agreements

The tenancy agreement sets out the rights and responsibilities for the landlord and the resident. In general terms, the landlord is required to maintain and keep in good repair the structure of the building (e.g. the windows).
The landlord’s Guidance for Exceptions to the Window Replacement Programme acknowledges that ‘‘there may be times that individual circumstances require window replacement works to be ‘pulled forward’ in the programme’’.
The Guidance provides details of the process it is to follow should a resident request that their windows are replaced at an earlier date. The landlord states that this it to ‘‘ensure that we are fair and consistent in our approach to this as it is appreciated many of our tenants want this work to be completed as soon as possible’’. The Guidance states that the landlord will:
1. In any event (whether a formal complaint or just an enquiry) a Building Surveyor will be asked to visit the property to establish the condition of windows.
2. They will determine whether the windows are ‘adequate’ from a repair point of view, accepting that they may not be satisfactory from an occupant’s point of view.
3. Minor repairs may be issued following the visit (e.g. replacing seals) or a view taken that following assessment, the windows are beyond repair.
4. If they are beyond repair, it will be recommended that the windows are replaced sooner than originally planned.
5. In the case of the query resulting from a condensation / mould problem, the Building Surveyor will also consider any impacting repair works such as:
  1. Whether extractor fans are working and are used in the property
  2. If air bricks are present or are, they obstructed
  3. Are there any other repairs required to alleviate the problem?
6. Where an occupant’s health is worsened by single glazed windows, medical evidence that explicitly states their health may be being exacerbated by the presence of single-glazed windows / mould growth / condensation can be grounds to accelerate the property in the programme. This typically would be COPD, or any other serious respiratory condition.
7. The Senior Building Surveyor and relevant Neighbourhood Operations Manager will review each case and agreed on any action required.

Assessment

The landlord has produced a programme to accelerate the replacement of single glazed windows, the prioritisation of which is based on age and condition. The landlord has advised that the resident’s windows are due to be upgraded in the 2023/2024 financial year.
The resident has complained about the landlord’s refusal to bring forward the replacement of her windows. The resident contends that the landlord’s decision was ‘‘fundamentally unfair’’ as other resident’s had had their windows replaced early on medical ground, and that she had provided medical evidence to support the landlord also doing so in her case.
It may help if I first explain that the role of this service is not to make its own assessment of the resident’s medical evidence, nor is it qualified to do so. 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.
The landlord has confirmed that its Guidance for Exceptions to the Window Replacement Programme, which provided the current situation as at January 2021, was ‘‘the first written one’’. However, given the landlord has also confirmed that ‘‘everything (other than the numbers) that is in the document have been applicable for the last 12 months + and have been used to influence decisions’’, I am satisfied that it is reasonable to use the information provided in that document as part of my investigation of this complaint. It is of concern however that the landlord did not have a written version of its process prior to this being requested by this service. Formal, written policies and procedures improve overall organisational performance by keeping everyone “on the same page” when it comes to expectations and issues. While organisations can operate without written housing policies and procedures, operations tend to be much more consistent, efficient, and effective with them in place.
In accordance with its guidance, and within 2 days of receiving the councillor’s initial email on 18 December 2019, the landlord’s Building Surveyor attended the resident’s property to establish the condition of resident’s windows and to determine whether the windows were ‘adequate’ from a repair point of view. In accordance with the landlord’s guidance, the surveyor carried out the inspection and reported back to the landlord the same day advising that the windows and seals were in a good condition, the windows were free of condensation and that there were no signs of mould growth. On the basis of this report, and the landlord’s guidance, it was reasonable for the landlord to conclude that the replacement of the windows did not need to be bought forward from a repair point of view.
Having been provided with a contemporaneous letter from the resident’s Consultant Rheumatologist supporting the resident’s request to have her windows replaced to keep her home at a reasonable ambient temperature, given that she suffered from Rheumatoid Arthritis, it was appropriate, and in accordance with its guidance, for the landlord to consider whether the medical evidence provided by the resident might be grounds to accelerate the replacement of the resident’s windows. As the letter from the resident’s consultant did not explicitly state the resident’s health may be exacerbated by the presence of single-glazed windows and as the surveyor’s report had confirmed that the property was free of condensation and mould, I am satisfied that it was reasonable, and in accordance with its guidance for the landlord to refuse the resident’s request.
Following its decision, the landlord also met with the councillor to explain its approach to dealing with individual request to accelerate their window replacement and the resident’s case was also discussed with its Chief Executive, who ‘‘concurred with the previous decision made’’.
In his report, the Surveyor also raised concerns about the resident struggling to afford to heat her home and asked whether the resident had been referred to the ‘‘team within the company that deals with fuel poverty’’. The landlord subsequently confirmed that it does not have a team that specifically deals with fuel poverty but does have a team that looks at maximising income by completing benefit checks and offer budgeting advice. It is therefore of concern that on investigation the landlord was unable find any record of a referral or any contact with the customer to discuss this.
The Surveyor also identified that the extractor fan in the resident’s bathroom was not working and so recommended that it be serviced. This was in accordance with the landlord’s guidance.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of its response to the resident’s request to bring forward the installation of double glazing to her property.

Reasons

The landlord acted appropriately with respect to its investigation into the replacement of the windows being bought forward from a repair point of view. The landlord also acted appropriately, and in accordance with its guidance, by considering the resident’s request to have her window replacement bought forward on medical grounds.

Recommendations

Within the next 4 weeks, the landlord is to arrange for the resident to be contacted by its team that looks at maximising income by completing benefit checks and offer budgeting advice, to discuss her concerns about the affordability of heating her home.
That within 6 weeks of this determination, the landlord produces a formal written version of its Guidance for Exceptions to the Window Replacement Programme to ensure a clear, consistent, efficient, and effective approach to informing and supporting its decision-making processes.