Yorkshire Housing Limited (202308837)

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REPORT

COMPLAINT 202308837

Yorkshire Housing Limited

4 September 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 the landlord’s handling of:
1. The replacement of a window in the resident’s property.
2. The resident’s reports of faults and damage arising from the installation of the new window.
3. The resident’s requests for window cleaning services.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is an assured tenant of the landlord, a housing association. The property is a flat on the third floor of a block. The resident is represented by her daughter in her complaint to this Service.
This complaint arose out of a fault with the living room window. This window was about 150cm in length and the frame was made of timber. The resident was in the habit of cleaning the window pane herself including the external side which she was able to reach from inside the flat.
There appears to be uncertainty as to the design of the original window and how it operated. Neither the landlord nor the resident have kept videos or images of the original window. The landlord’s records described it as having a “tilt-and-turn” design without other specific information. The Ombudsman has seen video evidence from the resident (taken at a later date) showing another window in the bedroom, which the resident said was identical in design to the original living room window. The landlord has not contested this. On a balance of probability, the Ombudsman accepts that the resident’s video of the bedroom window was an accurate reflection of what the original living room window looked like and how it operated and a full description is provided below.
The original window hung from a hinge half-way up the frame and had a restrictor and a release button on one side. When the handle was turned, the window would initially open at the bottom for a width of about 10cm and then be caught by the restrictor. If the resident pressed repeatedly on the release button, the window would gradually pivot and open wider until it was horizontal at a height half-way up the frame, leaving an opening both above and under the pane. The resident would then be able to reach through the gap to clean both sides of the pane.
The resident first reported problems with opening and shutting this window on 17 November 2022. The landlord arranged inspections on 25 and 31 January 2023 and noted the window mechanism was “obsolete” and the wood in the frame was rotting. It found the window needed a “new mechanism” to prevent jamming. It attended the property again on 10 February 2023 to measure the window size and ordered a new window made of UPVC (a plastic polymer). According to the resident, the contactor verbally reassured her twice that the replacement would be “like-for-like” and it would be able to pivot in the same way as the original one.
The landlord replaced the window on 20 March 2023. The new window hung from the top and opened at the bottom of the frame. It was not noted at the time whether a restrictor was in place.
The resident reported on 22 March 2023 that the window did not match the original design and she could no longer reach the outside of the window to clean it. She also stated there was a 3-inch gap along the frame letting in rain and draughts. According to the resident, she also spoke to the landlord at the time about the lack of a restrictor and the window opening wide without being pushed. The landlord’s written records only reflect that the resident was unhappy about a gap between the frame and the wall letting in the wind and rain, and about the new design, because it was dissimilar to the one she had had and she could no longer clean the external pane.
The landlord inspected on 13 April 2023 and confirmed it needed a “recall” as the window had not been sealed properly.
The resident remained dissatisfied about the window design and the fitting. She made a formal complaint on 20 April 2023 to say the landlord did not replace her window with a “like-for-like” design and the gap was letting in the rain and wind. The resident’s local councillor supported her in this complaint and asked for a copy of the surveyor’s report.
The landlord conducted internal enquiries and contacted the surveyor for an explanation as to why the window was replaced. Following its internal investigation, it provided a stage 1 response on 10 May 2023, summarised as follows:
1. It apologised that the resident was unhappy with the new window installation.
2. It explained it had replaced the window with a restricted opening in line with Health and Safety Executive (HSE) safety standards to reduce risk of residents falling from height.
3. It would arrange a repair of the gap on 16 May 2023.
The landlord resealed the gap on 16 May 2023 and told the councillor in an email of 5 June 2023 that it had searched for hinges similar to the original window design, but they were no longer available on the market.
The resident remained dissatisfied and asked for her complaint to be escalated. The landlord met with the resident on 12 June 2023 to offer an explanation for changing the window design and provided a stage 2 response on 13 June, summarised as follows:
1. It repeated that it had to replace the old window, which had a “tilt-and-turn” design, because there was a risk of falling from it. It stated that “only the top section opens” in the new window, which it believed was in compliance with relevant health and safety guidance.
2. It said it would normally replace facilities using a “like-for-like” approach unless it could not obtain those parts or there was a specific reason to do so, such as compliance with safety guidelines.
3. It acknowledged it could have communicated better with the resident to explain she would not be able to have a window in the original design.
4. It acknowledged the resident’s concerns about not being able to clean the window by herself and offered as a goodwill gesture, to arrange a one-off window cleaning. However it clarified it could not be responsible for future window cleaning services, which the resident would need to arrange and pay for by herself.
5. It offered vouchers worth £20 to the resident for redecoration after the window replacement works had damaged a section of the wall on its surface.
The landlord provided an additional explanation to the councillor in an email on 13 June 2023 that it could not take on the costs of future window cleaning as it was responsible for communal windows only, and the costs of arranging window cleaning for the building would mean an increase in the service charge to all the residents in the block. It said no one else in the building had asked for this service and it could not make such arrangements.
In June 2023 the landlord made further enquiries with suppliers as to whether it was possible to replace the hinges on the window so it could open wider, and it noted such a hinge suitable to the size and the weight of the window was not available on the market.
The resident referred the matter to this Service on 20 June 2023. She stated she would like the landlord to restore her window to its original “tilt-and-turn” design or alternatively, cover all the costs of cleaning the outside of her window as she could not afford to pay for private window cleaning.

Post complaint process events

In evidence provided to this investigation, the resident sent video evidence in July 2024 to show that, once the handle was turned, the window could swing open without any push to a width of about 30cm. In this video, no restrictor could be seen. The resident described this as a “safety issue” and said not only could she not clean the outside of the window pane, but she also had difficulties reaching out far enough to pull at the handle in order to shut it.
The Ombudsman asked the landlord to review this evidence. The landlord responded that, in its opinion, the old window design was extremely difficult to maintain and had a high chance of failure. It noted the apparent lack of a restrictor on the current window and said it would re-assess and consider retro-fitting a restrictor to mitigate any danger. It said it had spoken to a specialist supplier to check if it could fit an alternative design that would pivot far enough to enable the resident to clean the outside of the pane while maintaining safety standards.

Assessment and findings

Scope of the investigation

As set out above, we obtained further video evidence from the resident in July 2024. Considering the landlord had not previously had the opportunity to review this evidence, we asked it to provide comments. The landlord has subsequently carried out further assessments at the property and proposed further actions to address the issues raised in July 2024. Whilst these events have happened after the original complaint had completed the landlord’s complaints procedure, these actions are directly linked to the subject matter of the complaint, and therefore this investigation will take into consideration the landlord’s responses from 17 November 2022 up until July 2024.

The landlord’s replacement of the window

Under section 11 of the Landlord and Tenant Act 1985, the landlord has a responsibility to keep in repair the structure and exterior of the building. As specified in the tenancy agreement, that would include the window sills, window catches and window frames including necessary external painting and decorating. The landlord’s repairs policy further confirms this and states that for non-urgent repairs it would attend and complete repairs within 28 calendar days.
HSE safety guidance states that landlords have a responsibility to manage the risk of falls from windows by adequately assessing the premises and the service users, including doing a risk assessment. Where the resident is identified as vulnerable to risk of falling from height and a window is large enough for a body to pass through, a restrictor should be fitted so that the window could only open to 10cm or less. The restrictor should be robust enough to resist forceful opening and be secured using tamper-proof fittings so that it cannot be removed. The restrictor can either be fixed in place, or can only be overridden with the use of a special removable key or device.
In this case the resident reported in mid-November 2022 that she was having difficulty with the window handle and it would frequently get stuck. The landlord carried out its first inspection on 25 January 2023. Although not the resident’s primary concern in this complaint, this was more than a month in excess of the timeframe set out in the landlord’s repair policy, which the Ombudsman considers would have caused the resident inconvenience.
At the time of the inspection, the landlord identified that the mechanism was faulty and the wooden frame was rotten, causing the jamming. It therefore decided to replace the whole window. The new window had a top-hung design different to the old one, and was installed in late March 2023.
In the event of a potential window safety issue arising, the Ombudsman would expect the landlord to carry out a risk assessment in line with HSE guidance. It would be good practice to include an image or video record of the window, to clearly document the nature of the hazard. On this occasion, there was no record of a risk assessment in the landlord’s records for either the old or the new window.
The video evidence seen by this Service in July 2024 indicates that the new window had no restrictor in place. Once the handle was loosened, the window would swing open at the bottom to a width of about 30cm without force being applied to it.
There is no record of a post-installation inspection and neither the landlord nor the resident had retained any image or video evidence from March 2023 (immediately after the window’s installation) which would have confirmed whether the window was installed without a restrictor. However, as per HSE guidance, any restrictor installed on the window should have been tamper-proof. Since the evidence in July 2024 showed the window without a restrictor, it is of concern that the new window may not have been installed in line with HSE safety standards and could constitute a risk of fall from height.
The lack of a post-inspection was concerning. The landlord’s repairs policy states that “post-inspections are automatically generated by [the landlord’s] system and are generated during the invoice process”, and will be “undertaken using a mixed approach – by desktop surveys or visiting customers in their homes”. There was no record of either a desktop survey or a post-inspection visit by a surveyor in the records.
Records show that the landlord’s staff had attended the property on at least 3 recorded occasions from March to May 2023 after the window replacement as the resident reported multiple issues with the window (including a gap between the frame and the wall). There was no record to show the landlord identified the lack of a restrictor on the new top-hung window during any of these visits. The evidence indicates the resident was essentially left with a potentially unsafe window from March 2023 until July 2024.
The resident stated to this Service that she had reported the safety issue verbally to the landlord soon after the installation. The written complaint correspondence (including the emails between the councillor and the landlord) reflect that the resident’s major concern at the time was that the new window design was not a “like-for-like” replacement and she could not clean the window as before. Whilst the resident’s account that she had reported the safety concerns to the landlord is noted, given the discrepancies between the resident’s version of events and the email records, the Ombudsman cannot say with reasonable confidence that she alerted the landlord to the safety issue early on.
However, and irrespective of whether the resident had told the landlord or not about any safety concerns, it had a responsibility to ensure the new window came with a restrictor and was safe to use, and to then communicate with the resident how the new window can be safely operated. There is no evidence that it met those obligations.
The Ombudsman has considered the landlord’s communication with the resident. The resident stated that the landlord’s contractors reassured her multiple times before the window was installed that it would be a “like-for-like” replacement, giving rise to her expectations that the new window would be identical to the old one. Since the new window’s design is different from the old one, she considered this to be a breach of trust, which she stated was the main factor in her distress and frustration.
The landlord has stated in its complaint responses that from its perspective, the new UPVC window was “copied like-for-like” with the original and in keeping with the rest of the building. It explained to the resident it would usually do its best to provide a “like-for-like” replacement unless it was against the safety guidance or it could not source the parts from the market. It acknowledged in its complaint responses that it did not discuss adequately with the resident as to what type of window it would install, giving rise to undue expectations.
Having reviewed the video evidence, while the new window was similar in appearance to the old window in that it had a white frame of similar size and thickness, it was significantly different to the old window in terms of how it could be operated and how it hung from the frame. The landlord’s responses indicated that this was not communicated to the resident before or during the replacement. It is important to acknowledge that the landlord was not under a policy obligation to replace the window with an exact “like for like” replacement and in this case that was not possible or practicable, however, it was the landlord’s duty to communicate with the resident to ensure she was aware of how to safely operate the newly installed window. Its failure to do so caused the resident distress and inconvenience.
There is no dispute that the new window could not pivot as the old window did and the resident was not able to clean it as she was used to. The Ombudsman does not doubt that it was important to the resident that she is able to independently clean the window. The landlord stated that it checked with its supplier at the time and the supplier could not find an option that would pivot in the same way. Following our enquiries, the landlord has since then spoken with a specialist supplier who said they could offer another option which may pivot in a similar, but not identical, manner which possibly could allow the resident to clean the outside of the pane safely.
There is no legal or policy requirement for the landlord to guarantee the outside of the window could be cleaned from inside the flat. If there were no suitable window parts on the market identical to the former design, the landlord cannot be held at fault for not being able to supply this. The landlord’s most recent attempt to source a new window from a specialist supplier is a positive step towards repairing its relationship with the resident and the Ombudsman considers this is sufficient to resolve this concern.
In summary, due to the reasons set out above, the Ombudsman finds maladministration regarding the landlord’s replacement of the faulty window. This is because there was a lack of a recorded risk assessment, no evidence that it installed a restrictor on the new window, a failure to post-inspect, and poor communication on the design and operation of the replacement window.

The landlord’s handling of the resident’s reports of faults and damage arising from the installation of the new window

The resident raised three issues about faults and damages arising from the installation of the new window:
1. A gap between the frame and the wall which was letting in rain and draughts.
2. Wall damage.
3. Lack of a covering of the external wood panels on the wall underneath the new window sill.
The resident reported to the landlord in March 2023 about the window not being sealed properly, leaving a gap between the frame and the wall which let in the rain and wind. The landlord resealed the frame within 28 days and the resident had not raised further similar issues. The Ombudsman considers the landlord took timely action to resolve this issue.
The resident reported to the landlord around March 2023 that the wall damage occurred from the installation, which the landlord has not contested. The Ombudsman has reviewed the resident’s photographs sent to the landlord at the time. This showed scratches along the wall on all four sides of the window frame and peeled paint.
Section 7 of the landlord’s repairs policy states that where damage was caused to the decorations of a tenant’s property, following a standard repair, the landlord would provide a discretionary decoration allowance to the resident. The policy does not mention that the landlord would consider “making good” the damage. The landlord has offered £20 worth of vouchers to the resident for redecoration, which the resident stated was inadequate as the scratches needed filling, sanding and then painting over. The resident states she has not used any of the vouchers to this date.
In general, a landlord will make good any damage resulting from standard repairs, either by doing the work itself or offering a voucher or allowance for a resident to do the work themselves. The landlord would often be in a much better position to do this work than the resident, as the contractor responsible for repairs normally would already have the technical skill and knowledge to complete this, as well as access to paint and tools. The resident would be put to considerable trouble and inconvenience if they have to fix the damage caused by the landlord’s repairs themselves. However when the redecoration is not easily practicable (for example, if the resident’s decoration is highly personalised) the landlord should consider offering an allowance for the costs of redecoration. This should be an alternative option. Accordingly, a recommendation has been made below for the landlord to review this part of its repairs policy.
In this case, it is understandable that scratches and peeling of paint might easily occur during the removal of an old window frame and installation of a new frame on the wall. To complete the installation process, the landlord could have repaired this damage at the time or shortly afterwards, which was minor work that could have done at little expense of time and costs. It was not reasonable or fair to expect the resident to do this herself, taking all the circumstances into account, and this amounts to a failure in service. The Ombudsman has accordingly made an order below for the landlord to attend, re-assess and fix the damage.
The resident had further referred to the lack of an external cover on the window sill. She stated this was present in the old window, which acted as a protective barrier against rain and helped to prevent the wood panels outside from rotting. She was concerned that, as there was no cover on the new window, the wood panels would rot and eventually cause damp and mould issues within the flat. She stated she had spoken to the landlord about this during the internal complaints process. There is no evidence of this in the records. However, the Ombudsman considers there is an opportunity for the landlord to address these concerns as it is currently reviewing the safety of the existing window and exploring the possibility of replacement.
Due to the reasons set out above, the Ombudsman finds service failure in the landlord’s handling of the resident’s report of wall damage from the installation.

The landlord’s handling of the resident’s requests for window cleaning services.

As part of the complaint, the resident has asked that, as she could no longer clean the window herself, the landlord should pay the costs of arranging window cleaning. The landlord has explained that, while it had offered to do this on a one-off basis, it could not do so long-term. It clarified that this was not within its contractual duties, and doing so would add to the service charge for all residents in the whole building, which may not be fair to other residents who had not asked for a similar service.
The Ombudsman considers the landlord’s response to be reasonable. There is no specific requirement in the tenancy agreement about window cleaning. However, as the resident’s flat is in a block of flats, it is likely that other flats in the block have the same or similar windows and other residents may have similar concerns around cleaning them. The provision of a window cleaning service by the landlord would require consultation and residents may be required to pay for this via service charges. The landlord may wish to carry out a consultation exercise to set out the potential cost implications and to see if residents would like a window cleaning service to be provided.
The Ombudsman finds no maladministration in the landlord’s response to the resident’s request for window cleaning services, but has made a recommendation below for the landlord to review the need for window cleaning as appropriate.

The landlord’s complaint handling

The Ombudsman’s dispute resolution principles are clear that landlords are encouraged to embrace a positive and ethical complaint culture. Landlords should treat residents fairly, investigate the issues raised by the residents in a fair and accurate manner, and seek to put things right. This is also reflected in the landlord’s own complaints policy which states a complaint would be investigated thoroughly.
The resident’s main concern was that the new window design was different to the old one. The landlord’s explanation in its stages 1 and 2 complaint responses is that the old “tilt-and-turn” design was “unsafe” and constituted a fall risk as such windows could open wide, which was a justification for changing to a new, safer design. This did not appear to be consistent with the contemporaneous notes made at the time of the inspection in January 2023, which did not identify an issue with the design of the old window, only that the mechanism was jamming and the frame was rotting.
During its internal investigation, the landlord was unable to refer to a contemporaneous risk assessment or report to show what the old window design was like. The email records show that the landlord asked the surveyor to provide an additional, retrospective explanation. The surveyor stated a new hinge that would pivot in the same way as the old window was not available on the market. They also told the landlord that the new window had a restrictor installed. (As later evidence indicated, the old window appeared to have had a restrictor in place, whereas the new window did not have a restrictor installed.) Based on such communication, the landlord explained to the resident that it changed the window design for safety reasons.
Later on the landlord acknowledged to this Service that the reason for the new window design was that it could not source a window with an identical design at the time.
The inconsistencies in these different explanations are unhelpful and could undermine the resident’s trust and confidence in the landlord. The Ombudsman considers these conflicting explanations made it the basis for the landlord’s decisions unclear at times, and this added to the resident’s frustration and upset.
The landlord also described at stage 2 that the new window “opened only at the top section”, which did not seem accurate. The window hung from the top and opened at the bottom.
The landlord has a duty to investigate thoroughly under its complaints policy. It should base its complaint responses on contemporaneous records, rather than extrapolate on the recollections of contractors months later. It should have collected evidence to understand how the old and new windows operated. Even if it did not have inspection reports nor images of the old and new windows, it could have obtained this by asking the resident for a description, photographs or videos, or carried out a visit to the flat. There was a missed opportunity to understand the issue and respond to the resident’s complaint in a fair and transparent manner. As a result, the resident has experienced distress and inconvenience.
The Ombudsman therefore makes a finding of service failure regarding the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman finds:
1. Maladministration in the landlord’s handing of replacement of a faulty window.
2. Service failure in the landlord’s handling of the resident’s report of wall damage arising from installation of the new window.
3. Service failure regarding the landlord’s complaint handling.

Orders and recommendations

Orders

Within 4 weeks from the date of this report, the landlord is to provide a written apology to the resident to acknowledge the failings identified in this report, specifically:
1. Failure to conduct risk assessments and post-inspections.
2. Failure to ensure the new window was properly installed with a restrictor.
3. Poor communication in failing to explain to the resident why the new window design would be different and how it should be operated.
4. Failure to conduct a thorough investigation of the complaint and failure to provide an accurate, evidence-based response.
Within 4 weeks from the date of this report, the landlord is pay to the resident £450 in financial compensation, broken down as follows:
1. £300 in recognition of the distress and inconvenience caused by lack of risk assessment, failure to ensure the new window was safe and poor communication.
2. £50 in recognition of the inconvenience caused by not repairing the wall damage.
3. £100 in recognition of the distress and inconvenience caused by poor complaint handling, in particular the inconsistent responses.
Within 4 weeks from the date of this report, the landlord is to conduct a re-assessment of the resident’s window (if it has not already done so) for safety and carry out appropriate remedial work, including fitting a restrictor if appropriate. It should also take the opportunity to assess if there needs to be a covering for the wood panels under the window sill, and make good the wall damage at or around the same time. It should cancel the £20 vouchers it previously offered to the resident.
As the landlord has identified a potential new supplier who may be able to provide a window with a similar design as the previous one, the landlord should confirm whether this is an option it can pursue, and if so, what timescale it would need for a replacement window. It should then advise the resident of its plans and any works needed to make the existing window safe in any interim period.
The landlord is to write to this Service within 4 weeks from the date of this report with proof of its re-assessment, any remedial work done, and an update on what it had discussed with the resident.
Under paragraph 54.g of the Scheme, within 8 weeks from the date of this report, the landlord is ordered to formulate an action plan for service improvement based on the learning it has taken from this case. This should include the following aspects:
1. Conducting risk assessments for window-related complaints as per HSE guidance, both before and after any repair work, so as to identify and mitigate hazards in a timely manner.
2. Keeping records of survey reports and use image/videos to inform decision-making and complaint handling, where applicable.
3. Communicating with tenants to ensure they are aware of the operation and safety of new windows.
The landlord is to send this action plan to this Service within 8 weeks from the date of this report.

Recommendations

The landlord should carry out a consultation with the residents in the block to identify whether there is a demand for window cleaning services.
The landlord should review section 7 of its repair policy where it was stated the landlord would pay a decoration allowance where a standard repair process caused damage to the resident’s property. It should consider taking on responsibility for “making good” any damage that arose during standard repairs or offering vouchers as an alternative to this.