Royal Borough of Kensington and Chelsea (202102981)

REPORT

COMPLAINT 202102981

Royal Borough of Kensington and Chelsea

31 March 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

1. The complaint is about the landlord’s response to the resident’s concerns that the communal fire doors are not fit for purpose and are causing an excessive whistling noise.

Background and summary of events

Background

2. The resident has been a secured tenant of the property of the landlord since 27 May 1997. The landlord is a local authority.
3. The property is within a 13-story tower block. The tower block has a central staircase, with fire doors at the entry to the staircase on each floor.
4. The landlord operates a two stage complaints policy.
5. The landlord has provided this service with a copy of a fire risk assessment for the property dated 22 May 2020. The assessment was completed by an external certified fire risk assessment provider. Regarding smoke ventilation, the report noted the landlord’s intention to carry out a “smoke and wind modelling project” and subsequently introduce a new ventilation system. As part of its assessment on internal fire spread, the report did not identify the fire doors as a concern.
6. The landlord has also provided this service with a copy of a review of smoke and venting options dated 27 August 2020 carried out by an external accredited consulting fire engineer. The review noted that as a result of the introduction of the fire doors, “the venting system no longer performed as intended.” It also noted that “there is no effective vent path for smoke to pass out the central lobby when the wind is westerly except by forcing the door to the east stair to be blown open compromising the stair with smoke.” It further noted that “the doors to the east stair are often blown open with moderate westerly winds creating a loud whistling noise.” Based on its wind modelling, the review recommended that a vent shaft should be constructed, and an extraction fan should be installed.
7. A further report from the same consulting fire engineer dated 14 January 2021 has also been provided. The report reiterated that “doors to the west stair that are often blown open, the venting is less effective and compartmentation between floors ineffective,” and that “the prevailing wind direction … also causes a loud whistling noise.” The report elaborated on the suggested works and noted that “the proposals … aim to provide effective smoke venting to the central lobby and to ensure the stair doors do not blow open … and to stop (reduce the risk / frequency of) the whistling.”
8. The landlord has provided this service with its own fire risk assessment dated 2 March 2021. The assessment notes that “when there are extremely high westerly wind conditions, the new [fire] doors to Stair 2 can open slightly.” The assessment concluded that “whilst this situation is not considered to be ideal … it is not considered to pose a particular risk to occupants.”
9. The landlord has a ‘fire strategy policy’ dated March 2021. The policy notes that the original design of the building did not include doors at the entrance to the staircase. The purpose of this design was to allow for natural wind to assist in dispersing any smoke in the staircase during a fire. Following a fire in 2015, during which there was little wind, it was determined that this design was ineffective. Subsequently, fire doors and screens were installed at the entrance to the staircase to prevent smoke entering. The policy also notes that “when there are extremely high westerly wind conditions … doors to [the staircase] can open slightly.” The policy goes on to suggest that “this is the original strategy for the building and is, in effect, the building behaving as originally intended.”

Summary of events

10. The following is based on the landlord’s notes provided to this service:
    1. On or around 19 February 2020, the resident reported to the landlord that there were issues with wind noise in the building. The resident advised that the noise had become an issue following the installation of the fire doors, which he considered not to be safe, as they opened and closed in the wind.
    2. The resident had numerous conversations with the landlord’s fire safety officer throughout February 2020, during which, the landlord’s fire safety officer acknowledged that the fire doors would blow open, but that this did not pose a fire risk as it allowed smoke to be channelled from the lobby area, as per the building’s original design. In March 2020, the landlord’s fire safety officer also advised that the London Fire Brigade had evaluated the building and deemed it to be “suitable and appropriate.” This service has not been provided with any copies of reports from the London Fire Brigade. The landlord’s fire safety officer also advised the landlord was considering options to address wind issues in the building and was speaking with specialist engineers to provide quotations. They advised they would provide updates in due course.
    3. On 29 June 2020, the landlord’s fire safety officer advised the resident an expert assessment of the wind movement in the building was currently being undertaken and that an update should be available by the end of July 2020. The landlord’s fire safety officer also advised the resident that its recent external fire assessment had determined the fire risk at the building was “tolerable.” Throughout July 2020, the parties continued to liaise regarding the fire safety at the building, during which, the landlord’s fire safety officer attempted to answer his questions about the landlord’s responsibility to carry out inspections, and his queries regarding a ventilation room in the building.
11. The resident subsequently raised a formal complaint about the landlord’s response regarding the safety of the fire doors and the wind noise. The landlord provided its stage one response on 24 august 2020. It reiterated that the original design of the building was for there to be internal wind paths, but that fire screens and fire doors had subsequently been added to improve safety. It acknowledged that strong winds could cause the doors could blow open, but that this in turn allowed smoke to escape. It also reiterated the building had been assessed and determined to be safe, and that it was intending to carry out works to mitigate the wind whistle noise.
12. The landlord also advised it considered the amount of time, detail, and frequency of communication the resident had with its fire safety officer to have been appropriate to address his concerns, and as such, it was not upholding his complaint.
13. Following further concerns from the resident, the landlord provided a stage one follow up response on 10 September 2020. It noted his concerns that the fire door opening would allow for the spread of fire, and that he had had discussions with the London Fire Brigade which confirmed this. He also expressed his concern that the external fire assessors were not made aware of the fire doors blowing open during their assessment. The landlord advised it had “discussed the matter with London Fire Brigade who understand our technical assessment and have deemed the building to be ‘broadly compliant’,” and also confirmed that the external assessor was “explicitly made aware of the matter prior to their assessment.” It also provided an updated that following its wind modelling, it had approved a design to address the wind noise, which would be implemented during the course of its major works project in relation to the external cladding on the building.
14. The resident subsequently requested evidence the landlord had made its external assessors aware prior to their assessment, following which, the landlord requested that the resident escalate his complaint to stage two if he desired a further response.
15. In March 2021, the resident expressed concern that his complaint was still outstanding, to which the landlord advised it had not received a request to escalate the complaint to stage two. On 22 April 2021, the resident advised that he wished for his complaint to be escalated on the basis that the fire doors continued to blow open and the wind noise was still an issue.
16. The landlord provided its stage two response on 12 May 2021. The landlord reiterated its position that it considered the function of the doors to be appropriate and that it had confirmed this with its external assessors and the London Fire Brigade. It also reiterated it was taking steps to address the wind noise as part of its current external works project. It also advised that there were monthly public meetings in relation to this project at which the resident could obtain further information.
17. On 19 May 2021, the resident requested copies of the design specifications for the building, following which, the landlord referred the resident to its freedom of information (FOI) team. On 17 June 2021, the resident advised this service that he is yet to receive any of the documents he has requested.
18. As of 31 March 2022, the resident has advised that the issues are still present. On the same date, the landlord has advised that its external works project is underway and that it anticipates the works to address the whistling noise to be completed within approximately one year. The landlord has also noted the resident is in regular attendance of its ongoing monthly public meetings regarding the project.

Assessment and findings

Fire doors – fit for purpose

19. This service does not have expertise in assessing whether a fire door is fit for purpose. This investigation will instead assess whether the landlord carried out a reasonable investigation to the complaint raised by the resident, and whether its subsequent formal responses were reasonable in the circumstances.
20. It is not disputed that the fire doors blow open in the wind. In his initial communications to the landlord, and in his communications to this service, the resident has expressed concerns that the fire doors installed in the building were not intended to blow open in the wind. The resident has advised throughout the period of the complaint that he considers that the doors blowing open is likely to result in the opposite of their intended purpose, namely, to prevent fire or smoke from passing through the fire door. The resident has advised that he has had this concern confirmed during conversations with the London Fire Brigade, however, this service was not present during these conversations, and no evidence has been provided to confirm this is the London Fire Brigade’s position.
21. The landlord’s fire strategy policy notes that the original design allowed for external wind to dispel smoke through the open staircases. This design was discovered to be flawed in instances where there was low external wind. As a result, to limit smoke entering and gathering in the staircases, fire doors were installed.
22. In their discussions with the resident throughout February and March 2020, the landlord’s fire safety officer acknowledged that in cases where there was high external wind, the fire doors blew open. They repeatedly advised that in their opinion, this did not create an increased risk as if there was high wind causing the fire doors to be open, the smoke would be disbursed as per the original design of the building. In instances where there was not high winds (i.e. the circumstances in which the original design was flawed) the fire doors would not be blown open, and would therefore prevent smoke or fire from entering the staircase. On this basis, it was the landlord’s position that the fire doors did not pose a risk.
23. It is evident that in May 2020, an external assessment of the building’s fire safety determined the risk to be “tolerable,” which it is indicated is the lowest risk rating. In their communications with the resident, the landlord’s fire safety officer appropriately informed the resident of this finding.
24. Following the resident’s formal complaint, the landlord appropriately reiterated its position in its formal response. In its stage one follow up response, it also appropriately addressed the resident’s concerns that the external assessors were not aware of the issue with the fire doors blowing open, and advised that the London Fire Brigade had deemed the building to be ‘broadly compliant’, and that the external assessor was “explicitly made aware of the matter prior to their assessment.” The Ombudsman notes that this service has not been provided with copies of correspondence relating to either of these two assertions, which given that the landlord has relied upon them in its formal response, would have been helpful for this investigation.
25. The Ombudsman also notes, however, that the external assessor’s assessment report, while not explicitly referencing that the fire doors blow open, does not raise any concerns about the fire doors. There is no evidence to suggest this assessor is not capable of making a competent assessment, and so it was therefore reasonable in the circumstances for the landlord to have relied upon their report in informing its position that the fire doors do not pose a risk.
26. Additionally, while the landlord’s consulting fire engineer reports identify that smoke can pass into the staircase when the fire doors are blown open, the report does not conclude that this poses a risk. The reports are instead concerned with improving the overall ventilation and solving the whistling noise (discussed below) and so it was reasonable for the landlord not to have considered these reports to demonstrate that the fire doors posed a risk.
27. Given the above, it was reasonable for the landlord to have reiterated its position in its stage two response and for it to have outlined the steps it had taken to investigate the issue. In summary, the landlord’s communication with the resident was reasonable and it took appropriate steps to outline its position to the resident. It was also reasonable to have formed this position based on the expert reports available to it.
28. The resident has expressed to this service and the landlord his continued concern that the fire doors being able to blow open poses additional risks. The landlord has informed the resident that his complaint has completed its internal complaints procedure and that it will not open a new complaint on this issue.
29. The Ombudsman notes that the landlord is undertaking works (discussed further below) to improve the ventilation in the building, with the intended result that the whistling noise is reduced and that the fire doors are no longer able to blow open. A recommendation has been made below that should the problem persist following these works, the resident should not be prevented from making a new complaint on the basis that the circumstances would have changed since the original complaint. As part of the investigation into any further complaint, the landlord should carry out a further external assessment which specifically addresses any risks in circumstances where the fire doors are blown open, to demonstrate to the resident, and potentially ultimately to the Ombudsman, that its investigation was thorough.

Fire doors – noise

30. As part of his initial concerns reported to the landlord, the resident reported that there was a loud whistling noise caused by wind rushing through the building. He reported that this had become an issue following the installation of the fire doors. Following the resident’s reports, the landlord appropriately advised it was taking steps to address this issue, which included commissioning expert engineers.
31. While the Ombudsman considers it best practice to provide an indicative timeframe for such steps, the Ombudsman understands that the assessment of a 13-story building is a complex operation, and the availability of expert engineers is not immediately discernible. It was therefore reasonable that the landlord only advised that it would provide updates in due course.
32. Based on the consultant reports provided to this service, considerable effort has been taken to ensure the flow of wind in the building has been professionally modelled and a detailed scope of works has been designed with the aim of reducing the whistling noise.
33. The landlord appropriately updated the resident in June 2020 that an assessment to solve this issue was underway, which it reiterated in its stage one response. It also appropriately provided a further update in its stage one follow up that it had determined a scope of works to address the problem which would be carried out as part of its major works project in relation to the external cladding on the building.
34. While the resident has expressed his dissatisfaction of having to live with the whistling noise for an extended period of time, it is not evident that the solution to the noise is a simple fix. The landlord took steps within a reasonable timeframe following the resident’s reports to begin investigating a solution, and given the complexity of the works required, it is also reasonable that they be completed as part of its major works project. It was therefore reasonable that the landlord’s stage two response also reiterated its intention to complete these works and that it did not find service failure.
35. While it is evident that there were monthly public meetings relating to this project, it would nevertheless have been best practice to have used its formal response to document the anticipated timeframe for these works. Given the public meetings, however, the absence of this advice does not constitute service failure in this instance. The landlord has advised this service that the works are now underway and are expected to be completed within a year. For the avoidance of any doubt, a recommendation has been made below that the landlord update the resident in writing as to the indicative timeframe for completion of the works.
36. As with above, a recommendation has also been made that should the whistling noise persist after the works are completed, the resident should not be prevented from raising a further complaint.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s concerns that the communal fire doors are not fit for purpose and are causing an excessive whistling noise.

Reasons

38. Following the resident’s reports of concerns about the fire doors being fit for purpose, the landlord appropriately advised its position in detail, which was based on expert reports. In the absence of any expert evidence to the contrary, it was reasonable for it to conclude that the fire doors did not pose a risk.
39. The landlord’s level of communication with the resident throughout the period of the complaint was also reasonable.
40. The landlord also took appropriate steps to investigate a solution to the resident’s concerns about a whistling noise. Given the complexity of the works involved, it was reasonable for it to include the works in its planned major works project, and its communication regarding these works with the resident was reasonable.

Recommendations

41. The resident to write to the landlord within four weeks of the date of this determination and provide an indicative timeframe for completion of the works to reduce the whistling noise and to prevent the fire doors from blowing open.
42. Should, following the completion of the works, the whistling noise persist, the resident should not be prevented from raising a new complaint.
43. Should, following the completion of the works, the fire doors continue to blow open, the resident should not be prevented from raising a new complaint. As part of the investigation into any further complaint, the landlord should carry out a further external assessment which specifically addresses any risks in circumstances where the fire doors are blown open.