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Notting Hill Genesis (NHG) (202301249)

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REPORT

COMPLAINT 202301249

Notting Hill Genesis (NHG)

28 March 2024

 

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of the resident’s reports about a sewage smell from a ventilation unit.

Background

  1. The resident is a leaseholder. The property is a 1-bedroom flat on the fifth floor of a block. The lease commenced in September 2022.
  2. The flat has a mechanical ventilation with heat recovery (‘MVHR’) system. It is understood that this is an energy efficient system which extracts stale air from the flat and circulates warm fresh air via ducting and room outlets. The resident has reported since October 2022 that this system introduces a strong sewage smell into the flat. She has said that this has made her feel ill and has led to her throwing up. It is understood that as a result, the resident has not had the MVHR system fully on for lengthy periods.
  3. In October 2022, a contractor did not find any smells when checking the MVHR unit, but they smelled a smell on her balcony vent and recommended investigation of a potential leak in a flat upstairs. They also noted the resident said the smell sometimes smelled like shampoo. The landlord discussed the issue with a contractor and said that the issue would not be progressed, as a shampoo smell was not considered a defect, and there was no signs of water ingress.
  4. The resident raised the issue again, and on 30 November 2022, a contractor attended to do a maintenance service, probiotic clean, fit new probiotic filters, and commission the MVHR system. They noted that the resident could still smell a waste smell afterwards, which they could not smell until they put their nose up to the outside extract grille. They noted that damp dirt on the outside grille could suggest ducting was not fully insulated, which it should be under building regulations. They noted that this could be responsible for the smell so was recommended to be inspected They also noted that to try and remove the smell, the valves on the balcony could be re-sited, spaced further apart, and swapped so that the extract valve was the one closest to the balcony edge, allowing air to dissipate more and reducing the possibility of extracted air being sucked back in.
  5. In December 2022, the resident continued to experience the smell and a contractor attended on a couple of occasions. Their reports are not provided, but the resident says they said they would ask for a vent expert to investigate a pipe, and check some cupboards upstairs. It is understood the landlord closed the case after the contractor’s attendances.
  6. In February and March 2023, the landlord re-opened the issue after contact from the resident and agreed with the contractor to re-site an outside grille in the corner of the balcony closer to the edge of the balcony, for better air movement. It scheduled these for 4 April 2023 and told the resident noted that the issue was not a defect as the system had been signed off as being in line with the original building specification, and was being done as a goodwill
  7. The resident made a complaint. She said that just because the system was signed off did not mean hers was working properly, and she raised dissatisfaction that the works were being termed a “goodwill gesture.” After the works were completed, the resident informed the landlord that the smell was not resolved, and she raised concern that the source of the smell had not been identified and fixed.
  8. The landlord provided a stage 1 response on 14 April 2023. It apologised that a strong sewage smell continued. It noted previous actions and noted there was previously some confusion as the smell was reported to be shampoo. It noted that a contractor attended in early December 2022 and reported that they were unable to smell anything, but it was possible the soil vent was too close to the intake vent for the MVHR, and recommended the vent to be relocated further away. It noted that it arranged for a contractor to attend on 4 April 2023 to complete works which included re-locating an inlet. It said that the works were done as a goodwill gesture, as there was no evidence of a defect or installation issue and the building was signed off as built as per the specification. It apologised this had not resolved the issue and said it understood the resident’s frustration, but all steps had been taken to try to resolve the issue. It said that based on the contractor’s report there did not appear to be any offensive odour remaining after the completed works, but it was happy to visit the flat to see if there was anything further it could do. It said that if the resident disagreed with its assessment she was able to request a review by the National House-Building Council (‘NHBC’).
  9. Following this, the landlord arranged to visit on 21 April 2023, and the resident requested escalation of the complaint, as she was dissatisfied that the sewage smell was considered to be resolved when it was still there.
  10. The landlord provided a stage 2 response on 12 June 2023. It explained that smells would not be accepted as defects as these are defined as a state of disrepair due to a breach of the NHBC standards. It noted that it had agreed to review and attempt to alleviate the resident’s distress from the smell as a goodwill gesture, previously carrying out a maintenance service and probiotic clean and relocating an inlet in April. It noted that she was upset by actions being referred to as goodwill, and it explained this meant a discretionary gesture to recognise service shortcomings. It noted that on 21 April staff had visited, confirmed there was no evidence the smell was coming from a defect in the flat, and highlighted a drainage pipe outside the flat as a potential source. It said it had recommended a CCTV survey of this to confirm there were no leaks releasing the smell. It said that as it was not believed the smell related to a defect in the flat, it would not investigate further within the flat. It said that if the resident did not agree with its decision, she had the right to take this to the NHBC. It apologised that it was not much further along since October 2022, acknowledged the impact, and awarded £125 for the time taken.
  11. The resident raised dissatisfaction with the response. She said that it was the air ventilation outlet that was producing the strong odour, which was then sucked into the flat by the inlet next to it, and she said the 4 April works were different from a contractor’s suggestion in December 2022 to use a camera to look into a pipe/vent to identify the source of the smell. She disputed there being sufficient basis to not investigate the air ventilation.
  12. In July 2023, the landlord arranged for a contractor to check the MVHR system in the flat. They noted that the unit and all airflows were fine and no follow up was needed. They noted that there was a smell coming from the outtake, but sewage could also be smelled coming from outside the flat. They noted that the resident said 3 other residents had the issue, which indicated it was a communal issue and not the ventilation system itself. They noted that the resident had had the MVHR turned off for 9 months and that she was advised to keep it on for 1 to 2 weeks to see if the smell went. They noted that if it did not, it will be a communal issue, or external air pollution due to the flat being near train tracks and a river. Following this, it is understood that the resident emailed the landlord, but there were issues in her emails coming through.
  13. In September 2023, the landlord provided a stage 2 follow on response, after  the resident called to request an update. It noted that the outcome to the July visit lined up with its understanding of the issue, as on 21 April a sewage smell from the balcony outtake had been present, but there had been no smells on the inlet or vents inside the flat. It noted that there seemed to be a wider communal issue, and on a recent inspection a drain around 30 metres away had a pungent sewage smell. It noted that the resident was unhappy that the contractor said odours in flats close to railways was normal, but it said this remained a plausible explanation for a communal issue. It said it understood the issues the resident experienced with smell, and it understood her decision to turn off the ventilation system, but it noted this went against advice of specialists and in their opinion could damage the unit. For next steps, it noted that it had asked a contractor to do a CCTV survey from the roof downwards and review surrounding drains, which it would attend. It said it would also ask the local authority to do their own investigation of drains in the area, and it provided details on how to contact the local authority about environmental nuisance.
  14. In early November 2023, the resident contacted the landlord. She said that the sewage smell was not resolved, and she had not heard back about proposed actions. Following this, the landlord chased a contractor and confirmed that a drainage survey was scheduled for 24 November, however it later says that a first stage of the CCTV survey of the stack pipes at the block was carried out in January 2024.
  15. In February 2024, the resident arranged for a vent specialist to inspect the MVHR in the flat, at a cost of £216. They noted that a smell similar to waste was most noticeable at the exhaust, but was also present at the supplies and the MVHR unit. They noted that they stripped down the unit, disconnected ductwork and inspected. They noted that no faults was found with the unit and no smells were present when airflow was not present. They noted that they suspected that something from the ceiling void was being dragged into the ventilation system, but were unable to prove this, and they recommended investigation of the ductwork.
  16. The landlord says that there was a delay in completing a second stage of the CCTV survey, as a certificate was required to investigate the rest of the roof. The information provided advises that a CCTV survey was subsequently done on 29 February 2024, and the landlord told the resident that it would advise further once it had received the report and recommendations for next steps.

Assessment and findings

Scope of the investigation

  1. The resident also brought a complaint to us about a moth issue, but confirms this is now resolved and she would like the focus of the investigation to be on the sewage issue.

The landlord’s handling of the resident’s reports about a sewage smell from a ventilation unit

  1. The Ombudsman understands that the issue the resident experiences is very distressing for her. She reports since October 2022 that the mechanical ventilation with heat recovery (‘MVHR’) system introduces a strong sewage smell into the flat. She has said that this has made her feel ill, led her to throw up, and led her to have the MVHR system turned off for lengthy periods. The landlord and resident’s accounts differ about the level of a sewage smell in the flat when the MVHR is on, as the landlord/its contractors generally seem to only be able to smell a smell on her balcony where the air from the flat vents out. The landlord is understood to be in receipt of reports of sewage smells from other residents at the block, but it is understood that only the resident associates the issue with the MVHR.
  2. The landlord has provided explanation about how the issue is not considered a ‘defect’ under National House-Building Council (‘NHBC’) standards. The landlord is reasonable to say there are no ‘defects’ if the building has been completed in line with what has been agreed, as formal ‘defects’ are issues that go against agreed plans and will have implications for contracts and the NHBC process. This does not however mean that the landlord would not be obligated to investigate unintended issues such as those here.
  3. The landlord seems to have recognised this and acknowledged the impact of the issue on the resident. It arranged for the issue to be investigated in October 2022; arranged a maintenance in November 2022; arranged inspections in December 2022; arranged for balcony vents to be re-located and a visit in April 2023; and arranged CCTV drain surveys in January and March 2024 and possibly November 2023. It has acknowledged the time taken to investigate the issue, and awarded £125. This demonstrates it has taken positive steps to attempt to resolve the issue and acknowledge service issues. However, there are some aspects where the landlord’s handling has not been satisfactory.
  4. The landlord said in its June 2023 stage 2 that it would carry out CCTV investigation of drains, and it does not dispute that these have been delayed. The CCTV surveys being carried out in January and February 2024, and possibly November 2023, was too long.
  5. The communication and management of the resident’s expectations in December 2022 undermined her confidence about whether everything was being done to investigate the source of the smells, and other communication to her has not always been effective. It is not clear that she has always been told the outcomes of visits when cases were closed. The landlord acknowledges that it misunderstood the resident’s issue as relating to a shampoo smell, which will have delayed matters and caused frustration. The resident was told of action plans such as the re-location of the vents relatively late. The resident would have benefited from more timely communication, and more clear explanation about any action plans and what these aimed to do.
  6. The issue clearly involves technical complexities, which it is not clear that the landlord has engaged with fully at times. The evidence suggests that the 4 April 2023 works to re-locate vents were those recommended on 30 November 2022. However, different terminology is used to describe the November 2022 recommendations and the April 2023 completed works. It would have been helpful if the landlord clearly demonstrated that it confirmed what was done in April 2023 fulfilled what was recommended in November 2022.
  7. The landlord said in June 2023 that it did not consider the issue to be in the resident’s flat, and suggests that the issue may be due to environmental smells. This is reasonable if all potential avenues of investigation in the flat have been exhausted. It is unclear if this is the case, as a 30 November 2022 report said that damp dirt on the balcony grille indicated that ducting was not insulated in line with building regulations, and inspection of the duct was recommended as this could be responsible for the smell. The resident says a contractor suggested investigation of a pipe/vent in December 2022, which could refer to the duct, but limited information about the visit means it is not possible to say.
  8. The resident also provides information that her own contractor (who confirmed smells at the supplies and MVHR unit, not just the exhaust) recommended investigation of the duct. It is not evident however that the ducts were inspected as recommended in November 2022, to assess if they were insulated in line with building regulations and to rule out their being a source of the smell. The landlord was reasonable to not consider this straightaway if other solutions were being explored, however when the resident reported that the issue continued, it should have demonstrated that inspection and further investigation of the ducts were considered, such as a CCTV inspection.
  9. The above leads the Ombudsman to find a service failure and to make orders including to reimburse the resident for the MVHR inspection she arranged, which on balance may not have been necessary but for the issues identified. If further investigation of the duct, consideration of the resident’s MVHR report, and investigation of the drains do not identify any clear issues, the landlord seems reasonable to attribute the smell to environmental causes rather than an issue with the flat ventilation.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the resident’s reports about a sewage smell from a ventilation unit.

Orders and recommendations

Orders

  1. The landlord to, within 4 weeks, pay the resident £516. This comprises the £125 originally offered; £175 for the issues identified; and £216 to reimburse the resident’s MVHR inspection.
  2. The landlord to, within 4 weeks, provide the resident with a written update on the CCTV investigation of the drains, if it has not done so already, with the outcome and any next steps.
  3. The landlord to, within 6 weeks:
    1. Review the November 2022 recommendation and the April 2023 works, and confirm what was done is in line with what was recommended.
    2. Inspect the ducting, review whether it is insulated in line with building regulations, and carry out a CCTV survey to confirm there are no issues.
    3. Consider the resident’s contractor report and any other potential actions.
  4. The landlord should then write to the resident with the outcome to the above.

Recommendations

  1. The landlord to take steps to ensure that residents are communicated with about the outcomes to contractor visits and cases opened in response to alleged defects.