Notting Hill Genesis (201813837)

REPORT

COMPLAINT 201813837

Notting Hill Genesis

22 April 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

The complaint is about:
1. The landlord’s response to safety concerns about a boiler.
2. The landlord’s response to a report of a carbon monoxide leak.
3. Complaint handling.

Background and summary of events

Background

The resident has an assured tenancy with the landlord that started in 1994. The property is managed by a housing association (which I will refer to as the agency). The property is a one-bedroom flat on the second floor of a converted house.
It is the resident’s responsibility to report to the agency promptly any disrepair or defect for which the landlord is responsible in the property and also to allow the landlord and its contractors access at all times to inspect the condition of the premises or to carry out repairs or other works.
Gas safety, servicing and most repairs are the responsibility of the landlord. Complaints about such matters are dealt with by the landlord, not the agency.
The Housing Management Contract between the landlord and the agency says that the agency should report emergency repairs that occur outside office hours to the landlord in accordance with its emergency repairs procedure.
The Reporting of Injuries, Diseases and Dangerous Occurrences (RIDDOR) 2013 is a legal requirement that covers mandatory reporting to the HSE of workplace injuries, diseases and dangerous occurrences.
RIDDOR 11(1) is the duty on the gas conveyor to make a report to the HSE if someone has died or lost consciousness, or has been taken to hospital, as a result of a gas escape.
RIDDOR 11(2) is a duty on the gas conveyor to make a report to the HSE if, where a gas fitting, flue or ventilation used in connection with gas could, in their opinion, be so dangerous that it could kill someone, make someone unconscious or cause them to be taken to hospital.
The landlord has a two stage complaints procedure. At stage one, it will respond within ten working days and at the review stage, within twenty working days.
The landlord’s compensation policy says that it may offer a discretionary payment where there has been a serious failure in service standards. Where this has had a high impact on the resident it will pay a sum in the range of £55 to £85. The maximum payable is £250.

Summary of events

Annual gas safety checks were carried out at the property on 11 February 2017 and 15 January 2018 and no problems were identified.
A boiler repair was carried out at the property on 14 December 2018 by the landlord’s gas contractor (the gas contractor). A gas safety check of the boiler was due to be completed but was not because the gas contractor recommended that a new boiler be installed due to the age of the boiler and the cost of the replacement parts. They carried out temporary repairs and left the boiler operating.
The agency’s account of events on 23 December 2018 (given to the landlord on 3 January 2019) was that at approximately 17.45 pm the resident telephoned the agency saying there was a problem with the boiler and that she was unable to see the carbon monoxide appliance as it was not “within easy access”. They said that the agency told the resident to open the windows to the property and to make urgent contact with either National Grid Gas or the out of hours emergency service. The resident was asked to keep the agency updated on the situation once she had made contact.
The resident called National Grid Gas and an ambulance was called by a neighbour. The patient handover record from the ambulance service to the hospital noted the following: “CO alarm activated and still alarming … CO reading 18% … high flow oxygen commenced”.
That evening, an engineer attended the property from National Grid Gas. He completed a “gas safety warning notice” and ticked a box to indicate that the smell of gas had been detected/reported. The notice recorded “CO poisoning symptoms. Gas capped at the outlet” and had crossed through as “N/A” (not applicable) the references to reporting the matter to the HSE under RIDDOR 11(1) and 11(2) (paragraphs 7 and 8).
In the early hours of 24 December 2018, the resident was discharged from hospital. The discharge summary said that the resident had complained of a headache, that her bloods were “unremarkable” and that her COhb level (a measure of carbon monoxide in the bloodstream) was 1.9%.
The agency’s account of events on 24 December 2018 was as follows:
1. The agency received a telephone call from one of its staff members who had received a message from the resident saying she was in hospital due to carbon monoxide poisoning. The staff member said letters had been sent to all the residents informing them of the office hours during the Christmas/new year periods and that telephone numbers had been given for the landlord’s emergency repairs line and a mobile number for the agency during that period.
2. The agency then contacted the resident to find out how she was. She advised that she was now home. The agency advised her to stay with family as she was without heating and hot water while they tried to contact the landlord to resolve the problems. The resident said she was alright and that her niece would be staying with her during the period as she was aware that it was the holiday period and the landlord would not be able to do anything until after the New Year. The agency advised the resident that they would contact the landlord on 2 January 2019.
The landlord became aware of the incident on 2 January 2019. It asked an independent gas contractor to carry out a carbon monoxide alarm activation report. The landlord also spoke to both the agency and the resident that day. The landlord also asked the contractor who attended the property on 14 December 2018 to investigate. This Service has not seen a copy of the contractor’s response.
On 3 January 2019 the landlord wrote to the resident asking her to provide her hospital discharge notice and ambulance service report. The landlord noted that the boiler was switched off leaving the resident with only a fan heater and no hot water. It offered the resident a temporary decant to one of its local retirement residences.
On 4 January 2019 the landlord decanted the resident to a hotel until the new boiler was installed on 11 January 2019. On the same day the resident’s GP noted that recent events had caused the resident “anxiety and stress”.
On 7 January 2019 the carbon monoxide alarm activation investigation took place. The gas was reconnected to allow the tests to take place. The independent investigator spoke to the resident who said she had complained of “illness, headaches, nausea. The existing CO alarm did not activate”. The investigation found that the CO test peak reading was zero; the boiler passed the CO room test. It also passed the “tightness test (which tests for gas leaks in the system). The investigator carried out an ambient air test and found zero carbon monoxide; as well as a room test which also found zero carbon monoxide.
However, the investigation report also found that “the boiler flue outlet too close to an openable window and air vent”. The gas was recapped, and a danger notice placed on the boiler. This notice stated that the appliance/installation had been classified as “immediately dangerous”.
On 16 January 2019 the resident made a formal complaint to the landlord expressing her concerns about the safety of the old boiler.
On 17 January 2019 the landlord wrote to the agency expressing various concerns including:
1. There were severe delays by the agency in informing it of the incident on 23 December 2018.
2. That suggested that the person who was in contact with the resident did not understand neither the seriousness of the incident nor the procedures to contact and/or report emergencies to it.
3. The resident had been left with only a fan heater over the Christmas and New Year period.
This Service has not seen the agency’s response to that letter; however, the evidence shows that a meeting was set up between the landlord and the agency to discuss these matters further. This Service has not seen the notes of that meeting.
On 28 January 2019 the landlord acknowledged receipt of the ambulance report. It said it would respond to the resident’s complaint by 31 January 2019.
On 1 April 2019 the landlord responded to the resident at the first stage of its formal complaints procedure. The main points were:
1. The repairs carried out on 14 December 2018 did not pose a safety issue and the boiler was left in a safe condition. The carbon monoxide alarm in the property was also confirmed as being tested and working. It added it had been told that this alarm did not sound during the reported incident of 23 December 2018. [This is contrary to the ambulance report (paragraph 14)].
2. The landlord approved the new boiler; however, due to workload over a busy Christmas period, the contractor was unable to install the boiler until 11 January 2019. It confirmed the offer of compensation of £50 for the frustration caused by that delay.
3. Details were given of the new boiler that had been installed at the property and that a plume displacement kit had also been fitted which lifted the exhaust termination to achieve all correct clearances from all openings into the building, including the non-working extractor fan.
4. The hospital discharge notice advised the resident’s bloodwork was normal, and carbon monoxide poisoning was not identified. The COhb was recorded at 1.9% which was within normal tolerances.
5. A gas consultant had carried out a full fumes investigation on 7 January 2019 which confirmed no carbon monoxide leak at that time. However, they did identify that the flue was too close to an openable window and the extractor fan and the flue should have been affixed firmly to the wall. As a result of this and other repairs the gas contractor had previously identified, a new boiler was installed on 11 January 2019.
6. It had held discussions with senior management at the agency to determine how to prevent any delay in contacting the landlord to ensure it was able to act swiftly when reports of such serious incidents occur. It had been assured that all staff at the agency fully understood the process and procedure for serious incidents and, if a carbon monoxide incident was to occur in the future, it would be reported to senior management at the agency immediately and simultaneously reported to the landlord to take the necessary actions.
7. It offered £100 compensation for the delays in complaint handling.
The landlord explained how the resident could escalate the complaint.
On 25 June 2019 the resident sent an email to the landlord asking it to escalate her complaint. As she did not receive a response, she contacted the landlord again on 13 September 2019.
On 31 October 2019 the landlord issued its final response to the complaint under its formal complaint procedures. It repeated information previously given in relation to the boiler repair. In relation to the suspected carbon monoxide incident, the landlord made the following points:
1. The incident on 23 December 2018 was only raised with it on 2 January 2019 and that was a failing on the part of the agency.
2. Following notification of this incident, its process was to immediately request the relevant information on the events and the patient’s hospital discharge confirmation.
3. There was contradictory information because the hospital discharge notice said that the resident’s bloodwork was normal and carbon monoxide poisoning was not identified. The COhb was recorded at 1.9% which was within normal tolerances.
4. It had held discussions with senior managers at the agency who confirmed that their staff now fully understood the procedure for reporting carbon monoxide incidents and that there should not be any delays in reporting incidents, as there was in this case.
5. The landlord acknowledged that complaint responses had been delayed and increased the offer of compensation for this from £100 to £200. It confirmed that it had taken steps to ensure that complaints do not exceed the set timeframes in future.
The landlord signposted the resident to the Ombudsman.
When the resident contacted the Ombudsman, she said that she had concerns that she had been living with an unsafe boiler for some time. She said that the landlord had not taken responsibility or acknowledged that. She said she was seeking compensation.
The landlord subsequently told the Ombudsman that due to the proximity of the flue to the window the gas contractor “should have marked the installation as “at risk” under the Gas Industry Unsafe Situations Procedure during this visit [of 14 December 2018], and previous gas safety checks”. It added that the reason the independent gas contractor marked the installation as “immediately dangerous” during the inspection of 7 January 2019 was due to his interpretation of the Gas Industry Unsafe Situations Procedure as he was aware of the reported carbon monoxide incident and “erred on the side of caution”.

Assessment and findings

The safety of the old boiler

In its complaint response of 1 April 2019, the landlord said that the repairs carried out on 14 December 2018 did not pose a safety risk and that the boiler was left in a safe condition (paragraph 27). It is reasonable to presume that, had the gas engineer considered the boiler not to be safe on 14 December 2018, he would have put it out of use.
However, the gas engineer who attended the property on 7 January 2019 classed the boiler as “immediately dangerous” and put it out of use (paragraph 22). Given that the problem identified with the boiler was the positioning of the flue in relation to the window and extractor fan, it is reasonable to presume that this issue was long-standing. Accordingly, the landlord’s view that the boiler was in a safe condition was at odds with the qualified independent gas engineer who attended on 7 January 2019.
Given that this problem was likely longstanding, it raises serious concerns about how the boiler and flue installation had passed previous gas safety checks before the issue was identified and the boiler put out of use in January 2019.
Whilst it is reasonable for the landlord rely on the actions and assessments of its contractors in relation to gas safety (as they have the relevant expertise) it is of concern that two contractors had such different views about the safety of the same boiler installation.
Given this discrepancy, it would have been reasonable for the landlord to have investigated this matter further to satisfy itself both that the boiler had been operating safely prior to January 2019 and that its (and its gas contractor’s) policies, procedures and working practices were fit for purpose. Whilst it is evident that the landlord now recognises that there was likely a problem with the positioning of the boiler flue and has accepted that its gas contractor should have given the boiler an “at risk” rating in 2018 and in previous years, there is no evidence that it has carried out such further investigations. Given the potential seriousness of this matter, an order has been made for an independent investigation to be carried out and any learning points and service improvements identified.
This matter evidently caused frustration and distress to the resident. While the old boiler was replaced, the resident believes that she lived with an unsafe boiler for a long time. The absence of an investigation into what happened meant that her concerns have persisted.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In this case the sum of £200 is proportionate redress for the distress and frustration caused to the resident. This takes into account the length of time this uncertainty has continued but acknowledges that there was no danger from the boiler during this period, as it had been replaced.
As there is a serious health and safety aspect to this complaint and in line with the Ombudsman’s Memorandum of Understanding with the Regulator of Social Housing, we will notify the RSH as a matter of procedure.

The carbon monoxide incident

As the landlord has the repairing obligations with regard to the boiler (paragraph 4) any failures by the agency are also the landlord’s failings.
The gas conveyor who attended the property on 23 December 2018 did not consider it appropriate to report the incident to the HSE (paragraph 15) and the investigation of the boiler on 7 January 2019 did not identify any carbon monoxide leak (paragraph 21). The discharge note from the hospital also did not make any reference to carbon monoxide poisoning (paragraph 16) although this is in contrast to the ambulance handover note which said that the resident’s carbon monoxide reading was 18% (paragraph 14).
However, it is not the Ombudsman’s role to establish if a carbon monoxide leak took place. Our role is to assess the appropriateness and adequacy of the landlord’s actions in responding to the reports of such a leak at the property.
The evidence shows that the landlord had serious concerns about the agency’s handling of the resident’s report boiler problems on 23 December 2018 (paragraph 13). This Service notes that in the final complaint response, the landlord noted that it had had discussions with senior management at the agency and had been assured by them that their staff understood the process relating to the reporting of serious incidents (paragraph 27). Evidence of those discussions was not made available to this Service.
The agency’s response on 23 December 2018 was not appropriate because the landlord should have been made aware of this incident immediately in line with its management contract (paragraph 5). Therefore, an order has been made, below, for a case review to take place and for learning to be identified.
Once the landlord became aware of the incident on 2 January 2019 it took appropriate action by arranging an independent gas contractor to examine the boiler, asking the original gas contractor to investigate the matter and speaking to the agency and resident to get more information about what had happened on the evening of 23 December 2018 (paragraph 18). The following day it offered the resident a temporary decant and on 4 January 2019 arranged for her to stay in a local hotel while the boiler was replaced (paragraph 20).
However, the landlord did not acknowledge the inconvenience and distress that would have been caused to the resident by the lack of adequate heating and hot water over the Christmas and New Year period when the boiler was not in use.
Regarding redress, the Ombudsman cannot order damages; as that would be for a court to decide on. The Ombudsman also cannot decide on any poor health that a resident claims they have experienced because we are not qualified to establish a causal link between the health effects that the resident says are linked to the landlord’s failures.
In this case, the sum of £240 is proportionate redress for the absence of heating and hot water over this period (£20 a day). That takes into account the fact that it was a holiday period and that the resident had a guest staying with her. This amount is within the range of amounts that the Ombudsman can order when he has found evidence of considerable service failure or maladministration. This includes cases where a resident has been left without heating and hot water for a period of time.

Complaint handling

There was a delay by the landlord in issuing the stage one response – it took two and a half months to do so. At stage two, it took the landlord over four months to issue the stage two response. The landlord did not act appropriately because there were excessive delays, well outside the timescales set out in its complaint procedures (paragraph 9). There is no evidence that the landlord gave revised timescales to the resident or maintained contact with her about those delays.
In its final complaint response, the landlord offered £200 for the inconvenience caused to the resident by these delays. That amount is at the upper end of the discretionary payments the landlord may pay where there has been a serious service failure in service standards. It is also within the range of amounts that the Ombudsman can order when he has found evidence of considerable service failure or maladministration. This includes cases where there have been delays in complaint handling. Accordingly, the redress offered by the landlord was proportionate to its complaint handling failures and satisfactorily resolves the complaint with regard to complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to safety concerns about a boiler.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to a report of a carbon monoxide leak.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolves the complaint with respect to complaint handling.

Reasons

The landlord’s view that the boiler was safe in December 2018 was at odds with the gas contractor’s view in January 2019 that it was an immediate danger. The landlord did not look into this further to establish what had happened and what, if anything, had gone wrong.
The landlord took appropriate action when it became aware of the incident of 23 December 2018. However, it did not consider if compensation was appropriate given that the resident was without heating and hot water over Christmas and New Year.
There were lengthy delays in the landlord’s complaint handling. It has offered proportionate redress to reflect the detriment caused to the resident by those service failures.

Orders and recommendations

The landlord shall take the following action within four weeks of the date of this report:
1. Pay the resident compensation of £640 comprising:
  1. £240 for the inconvenience and distress caused by having no heating from 23 December 2018 to 4 January 2019.
  2. £200 for the distress and frustration caused by the landlord’s failure to properly investigate the events following the boiler being classed as an immediate danger.
  3. The £200 previously offered for poor complaint handling.
The landlord shall take the following action within six weeks of the date of this report:
1. Engage a suitably qualified, independent gas safety consultant to investigate the previous annual gas safety checks carried out at the property; the boiler repair on 14 December 2018 as well as the carbon monoxide incident of 23 December 2018 in order to establish what happened, what went wrong and if there are any service improvements the landlord needs to make to prevent a similar situation happening in future.
Within eight weeks the landlord shall:
1. Share a summary of the findings of the independent investigation and any recommended actions it will be taking with both the resident and the Ombudsman.
Once the independent investigation is complete, the landlord shall within four weeks:
1. Carry out a case review to verify that its (and its gas contractor’s) policies, procedures and working practices in regard to gas safety are fit for purpose. The landlord shall identify any required amendments and report them back to the Ombudsman and the resident.