Saxon Weald (202300394)

REPORT

COMPLAINT 202300394

Saxon Weald

5 June 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

The complaint is about:
1. The landlords handling of the installation of a boiler.
2. The landlord’s response to the resident’s concerns about carbon monoxide poisoning and black stains on the walls and ceiling.
3. The landlord’s complaint handling.

Background

The resident is an assured tenant. The property is a flat.
The property had a non-condensing boiler. The landlord added the property to its planned boiler renewal programme in May 2022, with the intention of replacing the boiler with a more efficient solution.
The landlord made an appointment to inspect the property on 29 June 2022, to progress the installation of the new boiler. The resident rearranged the inspection to 6 July 2022.
The landlord’s gas engineer carried out an inspection for the new boiler installation on 6 July 2022. On the same day it carried out an annual gas safety check on the original boiler. The boiler was found to be safe for use. The gas safety certificate shows that a battery-operated carbon monoxide alarm was also tested.
The landlord contacted the resident on 14 July 2022, to make arrangements to install the new boiler. An appointment was scheduled for 22 September 2022. The resident contacted the landlord the day before the planned installation to explain that she had started a new job and was unable to take time off work. A new installation date was arranged for 12 December 2022. The landlord made a note on its records that if a boiler breakdown was reported before this, the boiler should be replaced not repaired.
The resident has told the Ombudsman that:
1. She started to feel unwell around mid-October 2022, with headaches, nausea, and dizziness. She described being tearful and generally feeling under the weather.
2. She noticed a darkening of the kitchen ceiling in November 2022.
3. By December 2022:
  1. The resident developed a cough and started having difficulties with concentration. The resident made an appointment with her doctor to address how she was feeling. She also booked an appointment with her optician due to her headaches.
  2. There was a large black area developed on the ceiling above the boiler. The resident stated that she was frequently having to wipe up a black “soot like substance” from the surfaces in the kitchen and living room.
The landlord was unable to install the new boiler on 12 December 2022 as planned, due to staff sickness. A new appointment for the installation was arranged for 13 January 2023, in agreement with the resident.
The resident emailed the landlord on 31 December 2022, stating that she had been away over the festive period. On her return, she had noticed black marks above the boiler and asked the landlord to carry out an inspection. The resident emailed the landlord on 5 January 2023, expressing concern that it had not responded. The resident provided the landlord with photographs of the ceiling and the walls. The resident asked the landlord to clean off the black marks and redecorate the kitchen.
The landlord raised a works order on 6 January 2023, for its gas engineer to carry out an inspection of the boiler. An inspection was arranged for 10 January 2023. The resident has told the Ombudsman that upon inspection, the landlord’s gas engineer asked the resident if she had been feeling sick or if she had been suffering from headaches. The resident said that she also overheard the landlord’s engineer cancelling jobs for the following day so that the new boiler could be installed. The resident stated that she was alarmed at the urgency with which the new installation was arranged. The landlord has told the Ombudsman that upon inspection, the boiler was found to be within safe tolerance levels.
The landlord installed a new boiler on 11 January 2023. A gas safety certificate was issued. The resident states that the landlord’s engineer confirmed that the black staining had been caused by “carbon monoxide”. The resident emailed the landlord the same day, expressing further alarm. She emailed the landlord again on 13 January 2023, asking if it could remove the “carbon monoxide” from the walls. The landlord treated the resident’s communications as a stage 1 complaint.
The landlord’s gas safety manager phoned the resident on 13 January 2023, to discuss the complaint. The resident told the landlord that she had been feeling unwell for several months, which she now attributed to carbon monoxide poisoning from the boiler. To remedy the complaint the resident asked the landlord to provide copies of any gas safety certificates and redecorate the kitchen. The landlord’s gas safety manager asked the resident to obtain a medical opinion in relation to her concern about exposure to carbon monoxide. It was agreed that the landlord would consider the resident’s request about redecoration.
The resident emailed the landlord later the same day expressing dissatisfaction with the tone and the manner in which its gas safety manager had spoken to her. The resident wanted to know why she had not been offered an apology and why the property did not have a carbon monoxide alarm. The resident stated that she was looking forward to the landlord inspecting the stains on the walls and making the walls good. The resident asked for a senior officer to resolve the matter.
The landlord made enquiries with its gas engineer on 16 January 2023, as part of its stage 1 complaint investigation. The landlord’s gas engineer told the landlord that no gas leak had been identified on 10 January 2023. The carbon monoxide alarm had been tested and was found to be in working order.
The landlord issued the stage 1 response on 23 January 2023. The landlord stated that the boiler and carbon monoxide alarm were tested at the annual gas check on 6 July 2022. Both were operating correctly and safely at this time. The boiler was also working correctly when its gas engineers attended on 10 January 2023. The landlord suggested that there were several possible reasons for the black staining. It was confident that the staining was not caused by the boiler. To resolve the complaint, the landlord said it was willing to redecorate the kitchen. It provided the resident with copies of the gas safety certificates issued on 6 July 22 and 11 January 2023.
The resident emailed the landlord on 23 January 2023, asking the landlord to escalate the complaint to stage 2. The resident stated that she was horrified that the landlord’s stage 1 response was issued by its gas safety manager in view of the concerns she had previously raised.
The resident and the landlord communicated several times between 23 January 2023 and 8 February 2023 about the complaint. The landlord noted that the resident’s doctor had not confirmed that the resident’s symptoms had been caused by carbon monoxide poisoning. The landlord also noted that the resident had continued to feel unwell over the festive break, despite not occupying the property. To resolve the complaint, the resident repeated that she wanted the landlord to redecorate the property.
The landlord made enquiries with its gas engineer on 1 February 2023, as part of its stage 2 complaint investigation. Its gas engineer confirmed that the boiler was checked on 10 January 2023, for “spilling”. It is understood that a flue spillage test assesses whether flue gases from a gas appliance are properly vented outside or whether they spill back into a room. The landlord’s gas engineer confirmed that 2 carbon monoxide tests were carried out during the boiler inspection, which were both negative. Its gas engineer confirmed it decided to replace the boiler due to its age and since it was already on a list for replacement. Its gas engineer suggested that the black staining had not been caused by a carbon monoxide leak. Rather it had been caused by heat rising, which had attracted fat and dust particles.
The landlord phoned the resident prior to issue of the stage 2 response. It reassured the resident that it had not identified a carbon monoxide leak when the boiler was tested. It had been unable to identify that the resident had suffered from carbon monoxide poisoning. The black marks were not indicative of a fault with the boiler. The landlord’s notes reflect that the resident disputed the landlord’s findings. It noted that while the resident emphasised being poorly, she was unable to offer a medical opinion to support her claims. The landlord told the resident that it was willing to clean and decorate the property as necessary.
The landlord issued the stage 2 response on 9 February 2023. The landlord stated that:
1. Its gas engineer attended the property on 10 January 2023, to inspect the boiler. Although its gas engineer found the boiler to be operating safely, it decided to replace the boiler. It mentioned that boiler had been scheduled for replacement in September 2022, but this had been delayed at the resident’s request.
2. In view of the resident’s concerns about black staining on the walls, its lead gas engineer had attended the property to provide an opinion. The landlord did not consider the black marks to be indicative of a fault with the boiler. It explained that when heat rises from a boiler it can attract dust particles. These dust particles can turn black when heated, causing black marks.
3. The landlord offered to clean the flat and remove the black marks as a gesture of goodwill. It recognised that its failure to give the resident a fuller explanation about the cause of the black marks at an earlier stage had added to her concerns. The landlord stated that it had taken learnings from this.
The resident brought her complaint to the Ombudsman because she disagreed with the landlord’s position. The resident believed that the boiler had been faulty. She was dissatisfied that the landlord had not agreed to paint and redecorate the kitchen and the living room.
The landlord repeated its offer to clean the property after the resident brought her complaint to the Ombudsman. The landlord told the resident that it would consider redecorating, if necessary, but this would depend on the success of the clean. The resident did not progress this further with the landlord.

Assessment and findings

Relevant policies, procedures, and legislation.

The landlord’s responsive repairs policy sets out the timescales for completing repairs. The landlord states that it will respond to emergency works within 24 hours. These are repairs that pose a health, safety, or risk to the resident, or to the property. For all other repairs, the resident will be offered the next available appointment. How quickly the landlord can attend to the repair depends upon the level of demand at the time. However, its target completion time for non-emergency repairs was 10 working days.
The tenancy agreement states that:
1. The landlord will keep in good repair and in working order, any installations provided by the landlord for space heating, water heating, and sanitation. It will also keep in good repair any installations for the supply of water, gas, and electricity. The landlord will inspect, service, and certificate all gas appliances, installations, and pipe work owned by the landlord at least once in every 12-month period.
2. The resident is expected to promptly report any disrepair or defect with the property to the landlord. The resident will also decorate all internal parts of the property as often as is necessary to keep them in a good decorative state.
The landlord’s gas and solid fuel safety policy states that the landlord is committed to ensuring that all gas or solid fuel-fired appliances and installations for which it is responsible are effectively maintained and are safe to use. It will ensure that an annual safety check is carried out on all relevant installations and flues. The landlord considers that it is best practice to remove ageing and / or obsolete gas appliances from its rented properties and replace them with safer and more energy efficient alternatives.
The Smoke Alarm and Carbon Monoxide Alarm Regulations 2015 (as amended), imposes a legal requirement on social landlords to ensure there is a carbon monoxide alarm in any habitable room containing a gas appliance (excluding appliances used for cooking purposes). This includes habitable rooms where there is a gas boiler. Before 1 October 2022, this requirement only applied to rooms where solid fuel appliances were used. The regulations do not specify the type of alarm to be used. The alarm may be hard wired, or battery powered.

The landlords handling of the installation of a boiler.

The landlord identified itself in May 2022, that due to its age, the boiler should be added to its boiler replacement programme. This was good practice and was in line with the landlord’s gas and solid fuel safety policy. After identifying the need to replace the boiler, the landlord promptly arranged to inspect the property, which enabled it to prioritise and schedule the required works. It was unfortunate that the date for the proposed inspection was not convenient for the resident. However, this was beyond the landlord’s control. It was positive that a new inspection date was arranged in a timely manner.
Following the inspection in July 2022, the landlord scheduled the boiler replacement for September 2022 in agreement with the resident. The landlord had no reason to schedule an earlier appointment, having just completed an annual gas safety check on the existing boiler. It was unfortunate that the installation had to be deferred until 12 December 2022, at the request of the resident. Again, this was beyond the landlord’s control.
The landlord could not have predicted that its gas engineer would be sick on 12 December 2022. The Ombudsman understands that the landlord may not have been able to arrange a different engineer to complete the boiler installation at short notice. A new appointment was scheduled for 13 January 2023, in agreement with the resident. It has not been possible to determine whether the landlord could have arranged to install the boiler sooner. The Ombudsman notes that the landlord brought forward the installation to 11 January 2023, after the resident raised concern that the existing boiler was faulty.
Overall, the Ombudsman finds no maladministration in the landlord’s handling of the installation of a boiler.

The landlord’s response to the resident’s concerns about carbon monoxide poisoning and black stains on the walls and ceiling.

Carbon monoxide is a poisonous, odourless, and colourless gas. Common symptoms of carbon monoxide poisoning include dizziness, headaches, and nausea. These symptoms usually lessen when a person is no longer in contact with the gas.
Gas boilers can produce carbon monoxide when fuel is not burned completely due to insufficient oxygen. Under normal circumstances this gas will be safely carried out of a property through a flue. However, if the flue becomes blocked or damaged, the carbon monoxide may escape into habitable spaces rather than being vented outside. Carbon monoxide may also be present if there is a leak in the boiler or its components.
The landlord had a legal obligation to install a carbon monoxide alarm in any habitable room containing a gas appliance with effect from 1 October 2022. Such alarms are designed to alert an occupant in the event of a release of carbon monoxide into a room. The landlord has provided evidence that there was a working battery-operated carbon monoxide alarm in the property on 6 July 2022 and 11 January 2023. It is understood that this alarm was in the kitchen.
The resident had a responsibility under the tenancy agreement to report the black staining on the ceiling above the boiler when she first noticed this in November 2022. This would have allowed the landlord to inspect the boiler and take appropriate action if necessary. The resident did not report her concerns about this until 31 December 2022.
The landlord’s website states that the best way to report a repair is through its self-service portal or by emailing the landlord. The website states that residents should always phone the landlord if it is an emergency. It is noted that the resident reported her concerns via email, which suggests that the resident did not consider the matter to be an emergency.
The landlord responded by arranging to inspect the boiler 5 working days after receiving the resident’s email. This indicates that the landlord was treating the resident’s report as a non-emergency repair. Based on the information available to the landlord at the time, the Ombudsman considers the landlord’s classification of the repair to be reasonable. This is because the landlord had recently carried out a gas safety check on the boiler. There was a functioning carbon monoxide detector in the property, which would have sounded had it detected carbon monoxide spilling back into the room. The resident did not mention feeling unwell.
The Ombudsman recognises that the resident may have been alarmed on the day of the inspection, when asked by the landlord’s gas engineer if she had been feeling unwell. Since dark, sooty staining on or around a gas appliance may indicate there is a problem with the boiler, it was appropriate for its engineer to make such enquiries. This information would have assisted the landlord’s engineer when arriving at a diagnosis. It is understood that the resident did not tell the engineer that she had been feeling unwell.
It is understandable that the resident may have felt further alarm when the landlord’s senior engineer was called to join the inspection. But in the Ombudsman’s opinion, this shows the landlord was giving the resident’s concerns the attention they deserved. It also suggests that a thorough investigation was being carried out, which was encouraging.
It was reassuring that no issues were identified with the boiler after it was tested. Even though the resident had not openly declared that she had been feeling unwell, had there been an issue with the level of carbon monoxide in the room, this would have been identified by the gas engineer who tested for carbon monoxide twice during the inspection. Given these findings, it was reasonable for the landlord to conclude that there must be another explanation for the staining.
The evidence shows that the landlord’s working diagnosis for the staining on the walls and ceiling, was that it was caused by airborne debris such as dust and fat. The Ombudsman understands this phenomenon to be called thermal tracking. This is where airborne debris is swept along as air moves through a property. The airborne debris then sticks to damp surfaces, leaving black marks. The landlord was entitled to rely on the expertise of its gas engineer to make this diagnosis. However, it is noted that this was not fully explained to the resident at the time, which added to the resident’s anxiety. It is encouraging that the landlord recognised this itself in its stage 2 response and indicated that it had taken learnings.
The Ombudsman recognises that the resident was distressed by the urgency with which the new boiler was arranged following its inspection on 10 January 2023. The Ombudsman has seen no evidence to suggest that there was an urgent need to bring forward the boiler replacement from 13 January 2023 to 11 January 2023. This appears to have been an operational decision, which the landlord was at liberty to make. It is accepted that the resident’s perception about this may have added to the resident’s anxiety.
The Ombudsman has been unable to verify from the landlord’s records that its gas engineer told the resident on 11 January 2023, that the staining had been caused by “carbon monoxide”. The Ombudsman cannot make a finding unless there is clear evidence which supports either the landlord or resident’s account.
After the resident expressed concern that her symptoms were consistent with carbon monoxide poisoning, the landlord asked the resident to secure a medical opinion. In the Ombudsman’s opinion this was a reasonable and proportionate request in the circumstances. It is noted that no medical evidence was provided by the resident to support a formal diagnosis of carbon monoxide poisoning. Furthermore, the resident’s symptoms did not lessen over the festive period as might have been expected, while she was staying with relatives.
In summary, the landlord fulfilled its legal and contractual obligation by completing an annual gas safety check, which was valid at the time the resident reported the staining around the boiler. The landlord had issued the resident with a battery-operated carbon monoxide alarm in line with the relevant regulations. There was no evidence that the carbon monoxide alarm detected an issue with carbon monoxide levels in the property at any point. The property showed no readings to indicate a carbon monoxide leak when the landlord attended the property on 10th January 2023. Although the boiler was found to be safe, the landlord made an operational decision to replace the boiler on 11 January 2023.
Overall, the Ombudsman finds no maladministration in the landlord’s response to the resident’s concerns about carbon monoxide poisoning and black stains on the walls and ceiling.

The landlord’s complaint handling.

The landlord had a 2-stage complaint process. The policy states that an appropriate service manager will investigate stage 1 complaints, which will be acknowledged within 5 working days. During the investigation, the service manager will contact the resident to try to agree a resolution. Stage 2 complaints will be investigated by the landlord’s performance and insight manager. At both stages, a full complaint response will be issued within 10 working days. If the landlord is unable to provide a response or a resolution within this timescale it will contact the resident to explain its reasons, giving an indication as to when a response will be received.
The landlord’s compensation policy sets out what compensation or other recompense the landlord may award in relation to service failure. The landlord will try to restore the resident to the position they would have been in had the service failure not occurred. The landlord may offer a gesture of goodwill, such as a bunch of flowers. Alternatively, it may offer a practical solution to resolve the complaint or a discretionary payment.
In accordance with its policy, the landlord’s gas service manager contacted the resident during the investigation to try to agree a resolution. The landlord’s gas service manager issued the stage 1 response within expected timescales. However, in the Ombudsman’s opinion, since the resident had expressed concern about the gas service manager’s tone and manner, it would have been fairer to the resident had the landlord reallocated the complaint to another member of staff. To remedy the complaint, and in line with the resident’s desired outcomes, the landlord agreed to redecorate the kitchen.
Although the landlord delivered its stage 2 response just outside of expected timescales, there is no evidence that the resident was significantly inconvenienced by this. Furthermore, the evidence shows that the landlord was in regular contact with the resident throughout the stage 2 complaint process. The landlord accepted that it should have given a fuller explanation as to the cause of the staining on the walls and showed that it had taken learnings from this. This was encouraging.
In its stage 2 response, the landlord said that it was willing to clean off the black marks as a gesture of goodwill but made no mention of carrying out any redecorating. If the landlord had revised its offer, it should have explained its reason for this.
The landlord repeated its offer in December 2023, to clean the stains off the walls and ceiling. It also offered to carry out some redecorating if the cleaning was successful. This was encouraging and showed that the landlord was trying to find a resolution. It is understood that the resident has not progressed this with the landlord.
In the Ombudsman’s opinion, the failings identified in this report in relation to the landlord’s complaint handling were minor and were unlikely to have caused the resident significant detriment. The landlord offered the resident a practical solution by way of redress, which was in line with its compensation policy. The landlord’s offer of redress was broadly in line with the remedy sought by resident herself.
The Ombudsman therefore finds no maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in:
1. The landlords handling of the installation of a boiler.
2. The landlord’s response to the resident’s concerns about carbon monoxide poisoning and black stains on the walls and ceiling.
3. The landlord’s complaint handling.