Shepherds Bush Housing Association Limited (202015921)

REPORT

COMPLAINT 202015921

Shepherds Bush Housing Association Limited

8 January 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 concerns how the landlord handled the resident’s reports of fumes from the heating flue in the property below.

Background and summary of events

Background

2. The resident is an assured tenant of the landlord, which is a housing association. The property is a flat in a communal building. Both the resident and her husband have corresponded with the landlord and this Service during the period of the complaint. For reasons of clarity, the complainants have been collectively referred to as “the resident” in this report.
3. The resident has made the landlord aware that one of her children has asthma.
4. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to acknowledge the complaint within two working days and provide a response at stage one within ten to 20 working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.

Summary of events

5. On 30 March 2021 the landlord called the resident to discuss an ongoing disrepair complaint and the associated legal case. The landlord’s records of the call state that during the conversation, the resident also raised an issue with fumes escaping from a waste pipe outside the property.
6. The resident called the landlord on 5 May 2021 and requested to raise a complaint into the issue of the fumes coming from a waste pipe and the effect that this has had on the household’s health.
7. The landlord called the resident on 7 May 2021 to discuss the matter. The notes of the call state that it informed the resident that a complaint had been opened and a response would be provided by 20 May 2021. The notes also state that it arranged an inspection of the property to be undertaken on 12 May 2021.
8. The stage one complaint response was sent to the resident on 14 May 2021. The landlord informed her that:
   1. It had undertaken an inspection of the building which had found that the flues are in compliance with building regulations as they are over the minimum clearance of 300mm from an open window.
   2. It recognised that water vapour from the flues could cause a nuisance to residents in the building but noted that the flues in the building were placed at the same distance on every floor and even if they were moved to a different side of the window, the nuisance would remain.
   3. The flue that the resident had raised concerns about is in a property not owned by the landlord and there was no guarantee that the leaseholder of the property would agree to reposition the flue as its current position was in compliance with building regulations.
   4. A fumes investigation was undertaken at the property. The landlord provided the resident with a copy of the report which stated that no combustible products were detected. The landlord noted that boiler and cooker in the property were also inspected as part of the investigation.
9. The resident wrote to the landlord on 10 June 2021 and informed it that:
   1. She had spoken to the leaseholder in the property below and they had stated that they would have no objection to the flue being repositioned.
   2. She accepted that flue may meet building regulations, but the fumes had still caused medical issues for her and her family and resulted in one of her children having to be taken to A&E.
   3. She did not believe that the fumes investigation was properly undertaken as the boiler in the property below was not switched on for a significant period of time while the inspection went ahead.
   4. As a resolution to the issue, the resident requested to be transferred to a a new property and to have her transfer banding reassessed on medical grounds.
10. The resident contacted the landlord again on 6 July 2021 and requested an escalation of the complaint.
11. The landlord agreed to the escalation and a stage two complaint response was sent to the resident on 2 August 2021. The landlord informed her that:
    1. It confirmed its position as stated in the stage one response that there was no evidence of products of combustion in the vapour or from appliances within the resident’s property.
    2. It had been in contact with the leaseholder of the property below and had arranged an appointment for 3 August 2021 to inspect the boiler and look at options to reposition the flue.
    3. An appointment had been arranged for 5 August 2021 to install a data logging carbon monoxide alarm in the resident’s property.
    4. It noted that the vapour entering the property would be considered household smells and that there would be no guarantee that another property would be free of household smells if the resident were to move. The landlord then confirmed the resident’s current banding and also advised her to contact the local authority and consider a mutual exchange as further options to move to another property.

Assessment and findings

12. Section 3.4 of the tenancy agreement describes the landlord’s obligations relating to the upkeep of the property. This, in part, states that the landlord will “keep in repair the structure and exterior of the property, including chimneys, chimney stacks and flues, but not including sweeping”. 
13. The landlord was therefore obliged to investigate the matter when it was informed by the resident of her concerns of the fumes coming from the flue from the property below.
14. The landlord’s response was to open a complaint at the request of the resident and to arrange a fumes investigation of the property. This was appropriate action for the landlord to take in line with its obligations as set out in the tenancy agreement.
15. Overall, the landlord has acted appropriately in this matter. When informed by the resident of her concerns of fumes coming from the flue, it arranged for an inspection of the property which found carbon monoxide to be within acceptable levels. It was reasonable for the landlord to rely on the recommendations of appropriately qualified contractors and staff. It was also appropriate for the landlord to install a carbon monoxide alarm in the property to allow continuous monitoring and to assure the resident that any carbon monoxide present in the property was at a safe level.
16. When the resident informed the landlord that the leaseholder was willing to consider having the flue repositioned, the landlord arranged an appointment with the leaseholder to examine the boiler and explore repositioning options. This showed that although the landlord had received professional that the vapour was safe, the landlord recognised that it was still a nuisance to the resident and that it was willing to work with all parties to reach an acceptable resolution.
17. The resident has provided a video which she says shows the fumes entering her property from the flat below. Whilst the Ombudsman considers all information which is sent to us, we do not place significant weight on video or photographic evidence. This is because we cannot verify the exact circumstances of the footage or images. The video would not outweigh the results of the investigations carried out by the landlord as although it shows fumes near the resident’s property, it does not confirm whether the fumes are causing a safety risk.
18. The resident has also stated that the matter had caused damage to her health and the health of her family. The Ombudsman does not doubt the resident’s comments regarding her and her family’s medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts as a personal injury claim.
19. This is in line with paragraph 39(i) of the Housing Ombudsman Scheme, which states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
20. In order to resolve the situation affecting her family, the resident has asked the landlord to transfer her to another property. The landlord has accepted the resident’s request for a transfer on the grounds that her current property is overcrowded. She has been awarded band C and she considers that this banding should be higher in view of the effect the fumes are having on hers and her family’s health. The resident has provided letters from hers and her child’s doctors in support of her transfer request. As explained above, the Ombudsman is unable to draw conclusions regarding health and wellbeing. Also, banding for rehousing is set by the local authority rather than the landlord. If the resident wishes to dispute the banding, she can contact the local authority. If she is dissatisfied with the local authority’s response, she may be able to refer her concerns to the Local Government and Social Care Ombudsman (LGSCO). The LGSCO is able to investigate complaints about the allocation of bandings for rehousing and the housing Ombudsman is unable to investigate complaints about this. This is in accordance with paragraph 39(m) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which fall under the jurisdiction of another Ombudsman, regulator or complaints handling body.
21. The landlord gave the resident the correct advice in response to her transfer request by telling her to contact the local authority and explore the option of a mutual exchange. Going forward, the landlord should continue to support the resident with her transfer request.
22. Therefore, there is no evidence of service failure in how the landlord responded to the resident’s concerns of fumes from the flue in her neighbour’s property.

Determination (decision)

23. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled the resident’s reports of fumes from the heating flue in the property below. 

Reasons

24. The landlord flowed its obligations by arranging an inspection of the property to ensure carbon monoxide quantities were within acceptable levels and safe. It was installed a carbon monoxide alarm and looked to work with the leaseholder of the property below to reposition the flue. It gave the resident appropriate advice regarding her transfer request.