Optivo (now Southern Housing) (202211719)

REPORT

COMPLAINT 202211719

Optivo (now Southern Housing)

29 September 2023

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:
   1. The landlord’s handling of reports of damaged flooring and inadequate ventilation.
   2. The landlord’s response to a damaged boiler pressure tank.
   3. The landlord’s handling of a report of carbon monoxide poisoning.
   4. The complaint associated with the carbon monoxide poisoning.

Jurisdiction

2. The Scheme the Ombudsman is set up under defines the complaints the service can and cannot consider. Complaints this service cannot consider are regarded as outside jurisdiction.
3. Paragraph 42(a) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable time scale.
4. The Ombudsman has not seen evidence that the resident has exhausted the landlord’s internal complaint process concerning complaints 1(a) and (b) above. Therefore, these complaints are outside our jurisdiction under paragraph 42(a) of the Scheme.

Background

5. The resident has an assured tenancy which is dated 5 February 2020. The resident moved into his property in 2020. The property has a gas-fired boiler which the landlord inspected on 12 February 2020, 28 January 2021, and 10 January 2022.
6. During the gas safety inspection on 10 January 2022 an engineer noticed a flue cap was missing on the resident’s boiler. As this was a fault, the engineer switched the boiler off and the meter was capped. The cap was replaced on the boiler on 11 January 2022 by a second engineer.
7. Following the January 2022 inspection, the resident attended a hospital. The accident and emergency department told him that his symptoms were consistent with carbon monoxide poisoning.
8. On 24 January 2022, the resident complained that he had symptoms of carbon monoxide poisoning from an allegedly faulty boiler. Carbon monoxide is a colourless, odourless, and non-irritant gas which can cause symptoms like headaches, tiredness, and dizziness. Long-term or severe exposure can lead to serious health problems or death.
9. The landlord referred the complaint to its health and safety team two days later. On 3 March 2022, the resident made a claim to the landlord’s insurer. He claimed as follows:
   1. That carbon monoxide was leaking into his property between the two gas checks his landlord did on 28 January 2021 and 10 January 2022 because of a missing flue cap.
   2. He became unwell and lost his job because of his ill health which he attributes to carbon monoxide poisoning.
   3. His landlord and its contractor had been negligent in maintaining the boiler.
   4. He lost income of £10,124.30 between 20 May 2020 and 13 August 2020 due to unpaid sickness.
10. The landlord’s insurer responded on 4 April 2022 stating:
    1. It denied the resident’s claim.
    2. There was a carbon monoxide alarm fitted at the resident’s property and no reports were made of it either being activated or not working at any point.
    3. The boiler passed its gas safety inspection in 2021 and the flue cap was not missing then.
    4. There were no reports of the carbon monoxide alarm being triggered or the resident being unwell before 2022.
    5. No work was carried out on the boiler between 2021 and 2022 by the landlord and it is not known how or why the flue cap became detached.
    6. The supporting letter from the accident and emergency department recorded a carbon monoxide reading which was within normal parameters.
    7. The landlord had fulfilled its obligations by having the boiler checked annually.
11. The landlord submitted the resident’s claim form to its insurer in September 2022 and responded at stage 1 on 15 September 2022. At stage 1 the landlord said that as there is a live public liability claim it could not comment further and its insurer would deal with this.
12. The resident requested an escalation of his complaint on 16 September 2022. After a discussion with the resident, the landlord responded at stage 2 on 6 February 2023 stating:
    1. There was no evidence of any cover-up, and the incident was logged with its health and safety team.
    2. It notified its insurers of a potential personal injury claim. The comments the resident made about the impact on his health would be considered as part of this claim.
    3. The report of warped flooring and poor ventilation made in the discussion was not part of this complaint and so would not be considered as part of the response.
    4. It could not uphold his complaint as the complaint had been superseded by the resident’s liability claim for carbon monoxide poisoning.
    5. The insurer wrote to the resident’s solicitor on 14 April 2022 and was awaiting their response.
    6. It was reviewing the rules in place for gas certification to ensure consistency and accuracy.
13. The resident contacted this service and alleged that there was a safety risk caused by damage to a pressure tank in the boiler. He also requested that this service investigate his complaint.

Assessment and findings

Policies and legal framework

14. Under the Gas Safety (Installation and Use) Regulations 1998, the landlord must arrange for an annual gas safety check to be conducted every 12 months. This must be conducted by a Gas Safe registered engineer on a boiler and flue. The regulations allow for a check to be conducted from 9 months after the last one. Appendix 3 of the Regulations outline the appropriate inspection standards. The regulations also require an engineer to identify any defect found and any remedial action taken.
15. The landlord’s gas safety policy reflects this and requires the landlord to perform a gas safety inspection at the first occupation of a property and every 12 months thereafter.
16. Under the landlord’s gas safety management plan if an engineer finds a fault, which is a future danger, then the appliance should be turned off.
17. The landlord’s responsive repairs policy regards an emergency repair as anything that causes a risk to health, safety, or security. The landlord must visit and make things safe within six hours.
18. The landlord’s compensation and complaint policy excludes complaints or compensation requests that relate to insurance claims.
19. Section 11 of the Landlord & Tenant Act 1985 requires landlords to keep boilers in repair and property in working order.
20. Section 4 of the Defective Premises Act 1972 places an obligation on landlords to take such care as is reasonable to see that any resident is reasonably safe from personal injury or damage by any defect. The Housing Health and Safety Rating System requires landlords to avoid risks caused by carbon monoxide.

Landlord’s response to carbon monoxide poisoning allegation

21. When considering the resident’s complaint this service must look at how the landlord applied its policies and whether it acted reasonably and treated the resident fairly.
22. The evidence shows that the landlord completed a gas safety check on 12 February 2020 when the resident moved into the property. It also performed a check on 28 January 2021 and 10 January 2022. These checks were evidenced by the landlord issuing a gas safety certificate. This was in line with its policies, procedures, and legislation.
23. When the landlord attended to the gas safety inspection in January 2021 the photograph it took at the time showed the flue caps in place. Although the Ombudsman could not review the metadata to say when the photograph was taken – the landlord noted in the gas safety report in 2021 that the flue was safe. On the balance of probabilities – the Ombudsman finds the cap was most likely in place at that time given the inspection report noted it was and that there is no evidence to suggest the photograph was taken at some later time. 
24. The landlord identified a missing flue cap when it inspected the resident’s boiler a year later in January 2022. It recorded this fault. At this point, it was on notice that there was a defect as this was a health and safety risk.
25. The landlord’s contractor acted appropriately in switching the boiler off and capping it at the metre when he attended on 10 January 2022. This action allowed the boiler to be made safe and satisfied the landlord’s duty under the Defective Premise Act 1972 and the Housing Health and Safety Rating System.
26. With the appliance made safe another contractor returned the next day and replaced the missing cap. This allowed the boiler to be switched on. The landlord was responsible for keeping the resident’s boiler in good working order. This action was therefore consistent with the resident’s tenancy and section 11 of the Landlord & Tenant Act 1985. The landlord’s actions were reasonable because it repaired the defect within a reasonable time after it became aware of its existence.
27. The landlord also acted reasonably by directing the resident’s complaint about a potential gas leak to its health and safety team. This is because this team was best placed to investigate and respond. The landlord made internal inquiries and pulled together relevant documents, like notes from inspections and gas safety certificates.
28. The resident alleged negligence and deceit on the part of the landlord’s contractors. He claimed the landlord’s alleged failure to safely maintain his boiler caused him financial loss and ill health. It was appropriate for the landlord to refer these claims to its insurer and inform the resident that this was the correct process to follow. This is because the landlord’s insurer deals with public and legal liability claims.
29. This service acknowledges that the landlord’s insurer denied liability. This service has no jurisdiction to assess the insurer’s decision. The Ombudsman’s role is to consider what is fair in all the circumstances in respect of the landlord’s handling of the matter. Which in this case turns on whether the landlord’s decision not to award compensation was fair.
30. This service is not bound by the same rules of evidence as a court, but it must consider the documentary evidence. A court would normally require an independent medico-legal report. This would provide an expert opinion on the cause and extent of harm to a resident’s health. Often these types of claims are better dealt with by the courts who can assess causation. 
31. The Ombudsman has not been provided with such a report. We have seen a letter from an accident and emergency department. This letter indicates that the resident was discharged without treatment. It records the resident’s carboxyhaemoglobin (level of carbon monoxide in the blood) level as 1.3% at the time of presentation. The insurer’s view on this was that this was not an elevated level. This service has also seen a letter from a medical practitioner saying the letter from the hospital indicates the resident has been exposed to carbon monoxide. Neither of these letters is a medico-legal report or shows that the resident was exposed to such levels of carbon monoxide that would lead to serious ill health. This is because the cap was replaced within a day and after the boiler was made safe. Furthermore, no evidence shows either the landlord was responsible for the missing cap or that it ought to have known it was missing before it inspected the boiler in 2022.
32. On this basis, the Ombudsman cannot fault the landlord for not awarding compensation.

The landlord’s complaint handling

33. The landlord’s formal response to the resident was not made until 15 September 2022, this was a long delay of 234 days since the resident made the complaint. The landlord should have told the resident that it was unable to consider his complaint involving an insurance issue under its complaint policy much earlier. It should have also informed the resident earlier of his right to refer his complaint to this service. This is a requirement of paragraph 1.9 of the Ombudsman’s complaint handling code which the landlord is required to follow. This delay was a service failure. The delay prevented this service investigating earlier and is likely to have caused the resident some level of distress.
34. The resident expressed dissatisfaction with the landlord’s response a day later but only received a response at stage 2 on 6 February 2023. This is a delay of 152 days which was another long delay.
35. In fairness the landlord’s insurer told the resident on 16 September 2022 that it would be dealing with his claim. The landlord’s insurer also told the resident that his landlord could not respond to his claims under its complaint policy. The landlord also reiterated its position to the resident on 26 September 2022 and in its stage 1 response. The resident was aware of how his claim was being considered and suffered no detriment by the delay at stage 2.
36. This service is unable to consider the resident’s complaint about his flooring, ventilation, and boiler pressure tank. As noted, this is because these complaints have not exhausted the landlord’s internal complaint process.

Determination

37. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the report of carbon monoxide poisoning.
38. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the associated complaint handling.

Orders

39. The landlord must pay the resident the sum of £150 within 28 days of the date of this determination. This is to reflect the distress that was likely caused to the resident by the delay in responding to his complaint.