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Southwark Council (202322410)

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REPORT

COMPLAINT 202322410

Southwark Council

12 December 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

  1. The complaint is about the landlord’s handling of the resident’s dissatisfaction about its proposal to install a condensing boiler.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is secure tenant. The property is a 4th floor flat.
  2. According to the landlord’s records, there are no vulnerabilities recorded for the resident. The resident has not informed the Ombudsman of any vulnerabilities.
  3. The property had a non-condensing boiler, which was coming to the end of its lifespan. The landlord contacted the resident in June 2023, with proposals to replace the boiler with a new condensing boiler.
  4. Condensing boilers are essentially water heaters, fuelled by gas or oil, used for heating systems. When operated in the correct circumstances they can achieve a high efficiency. These boilers work by condensing water vapour found in the exhaust gases of the boiler’s heat exchanger, to preheat circulating water. This recovers the latent heat of vaporisation, which would otherwise be wasted by conventional boilers.
  5. Condensing boilers produce acidic water vapour that needs to be discharged via a pipe (a condensate pipe) from the boiler into the drainage system. The purpose of the condensate pipe is to ensure the safe and efficient operation of the boiler.
  6. The resident raised the stage 1 complaint on 23 June 2023. The resident mentioned that she had gone through a lot of abuse with her neighbours “when it came to noise and cyber–making”, which she had previously reported to the landlord, the local authority noise team, and the police. The resident said that she was unhappy with the landlord’s proposal to install a new gas boiler, with a pipe that needed to pass through the hallway, the toilet, and the bathroom before reaching a connection. The resident asked the landlord to “listen to her plea” and to install a gas boiler without any pipe connections, like her existing boiler.
  7. The landlord issued the stage 1 response on 7 July 2023. The landlord did not uphold the complaint. The landlord:

a.     Said its surveyor had attended the property to discuss its proposal to install a new condensing boiler, after the resident raised the formal complaint. It said its surveyor had explained that the existing boiler was at the end of its lifespan, which meant it would be unable to obtain spare parts. It said its surveyor had recommended the existing boiler be replaced to avoid potential issues later on.

b.     Noted that the resident was mainly concerned about “the high-level surface run condense” connecting the pump into the waste system. It clarified that condense pipe would be routed across the toilet and would terminate at the wash hand basin. It added that its engineering services department had affirmed this was the only viable option, due to the property being on the 4th floor and there being no drain gullies on the external walkway.

c.      Explained that a condensate pipe’s main function was to safely transfer acidic waste produced from a boilers’ condensing process, via an external drain. It reassured the resident that the condensate was only slightly acidic and by fixing it to the wash hand basin, the water would be regularly diluted and taken away by the external drain.

  1. The resident raised a formal request to escalate the complaint to stage 2, which the landlord said was received on 15 August 2023.
  2. The landlord issued the stage 2 response on 8 September 2023. The landlord:

a.     Said it had reviewed the stage 1 complaint, its stage 1 response, and subsequent communications between the parties. It did not uphold the complaint and confirmed that it was unable to install a non-condensing boiler when the current boiler was replaced.

b.     Explained that it had been compulsory since 2007 for all new or replacement boilers installed, to be condensing boilers. It added a link to the British gas website, detailing this.

c.      Explained that when fitting a new or replacement boiler, “the condensate discharge pipe should be connected to an internal gravity discharge point,” such as an internal soil stack, or an internal kitchen or bathroom waste pipe. The landlord said this may be the sink, basin, or shower waste. It added a weblink to the heating and hot water industry council website, detailing this.

d.     Said that the routing of the boiler condensate pipe to a wash hand basin waste pipe was a common way to route the boiler condensate pipe, where it was not possible to connect to an internal soil stack. The landlord accepted that the resident was worried about this but hoped that it had reassured her and provided answers.

  1. The resident responded to the landlord’s stage 2 response on 15 September 2023. The resident said she was not satisfied with the outcome because the landlord’s main focus was on the efficiency of the boiler rather than the risk factor presented by the condense pipe, from the acidic water. The resident also said the landlord had not addressed her concern about the condensate pipe. The resident said, “the pipeline is more suspect for us as we believed that it is easily hacked by cyber agents to disgrace and humiliate the people living in the council flats”. The resident maintained that the acidic water presented a risk to the health of her household and that a non-condensing boiler would be a better option.
  2. The landlord did not immediately respond to the resident’s email. It later directed her to escalate the complaint to the Ombudsman, if she remained dissatisfied with the stage 2 outcome.
  3. The resident brought her complaint to the Ombudsman in October 2023, after the original boiler broke. The resident said that the landlord’s position concerning condensing boilers was wrong and was dangerous. The resident said the landlord should offer her a non-condensing boiler.

Assessment and findings

Scope of the investigation

  1. Paragraph 42.a of the Scheme states that “the Ombudsman may not consider complaints, which in the Ombudsman’s opinion are made prior to having exhausted the landlord’s complaints procedure, unless there is evidence of a complaint handing failure and the Ombudsman is satisfied that the landlord has not taken action within a reasonable timescale”.
  2. The Ombudsman notes that the resident raised several concerns during the complaint process about the landlord’s proposal to install a condensing boiler. The landlord addressed some of the resident’s representations, within its complaint responses. But it did not address the resident’s specific concern that the landlord’s proposal could result in “cyber-hacking”. The landlord did not provide the resident with a final response concerning this, despite the resident pointing out that this was an outstanding matter. The Ombudsman believes that this was a complaint handling failure. This in turn brings this issue into the Ombudsman’s jurisdiction. The Ombudsman will investigate the landlord’s handling of the resident’s concerns about this.
  3. The investigation will focus on the landlord’s actions between 16 June 2023 and 16 October 2023. This being the date the resident first raised the substantive matter of complaint, through to when the landlord’s complaint process was exhausted. Events that happened outside of this timeframe are outside the scope of this investigation.

The landlord’s obligations, policies, and procedures

  1. Landlords have a legal obligation under Section 11 of the Landlord and Tenant Act 1985, to keep installations such as boilers and pipes, in repair and in good working order.
  2. There have been several changes in the Building Regulations since 2005, relating to new boilers. All new gas boilers installed in the UK since 1st April 2005, have been required by law to be condensing boilers. This is regardless of whether the boiler is a combi, open vent, or a sealed system boiler. The same rule came into effect for oil boilers on 1st April 2007. New “Boiler Plus Legislation 2018”, came into place on 6 April 2018, which specified that all new boilers must have a 92% efficiency rating and have time and temperature controls fitted.
  3. British standards and Building Regulations provide guidance to installers on how condensate discharge pipes should be routed to a drain. It is the Ombudsman’s understanding that condensate pipes may be run internally, externally, or a combination of both, depending on what is most appropriate to the situation.

The landlord’s handling of the resident’s dissatisfaction about its proposal to install a condensing boiler

  1. The landlord was statutorily obliged to keep the installations for supplying heating and hot water in the property in good repair. It was positive the landlord had proactively identified that the boiler was coming to the end of its lifespan and was looking to replace this, to avoid issues with obtaining parts in the future.
  2. The Ombudsman does not find fault in the landlord’s position, that it must replace the existing boiler with a condensing boiler. While the resident may have preferred the landlord to install another non-condensing boiler, the landlord was legally obliged to install a condensing boiler.
  3. The Ombudsman was encouraged that the landlord’s surveyor attended the property on 5 July 2023, following the resident’s complaint. This shows that the landlord was endeavouring to understand the resident’s concerns about the proposed installation. During its attendance, the landlord’s surveyor explained that non-condensing boilers were no longer available, and it would be better to change the boiler before it failed. It explained that the only viable option, given there was no external drain on the walkway and with the property being on the 4th floor, was to route the condensate pipe internally. The landlord was entitled to rely on the expertise of its surveyor to decide on the most appropriate solution for the property.
  4. The resident became particularly worried about the acidic nature of the condensate, after the landlord mentioned that it would be unable to discharge the condensate directly onto the lawn, since this would kill the grass and the tree. The Ombudsman recognises that the resident was extremely concerned that the condensate might splash onto her body, if the pipe discharged into drainage serving the hand wash basin. The resident suggested that this could be a particular issue if the sink ever got blocked.
  5. Information viewed by the Ombudsman on the websites of several well-known boiler manufacturers, suggests that condensate is essentially water and is “not generally considered to be dangerous”. The manufacturers did, however, advise against draining the condensate into garden soils because it was “slightly acidic”. This mirrors the information given to the resident by the landlord.
  6. The landlord endeavoured to reassure the resident during the complaint process, that its proposal for routing the condensate pipe was normal. It suggested that by connecting the condensate pipe to the hand wash basin drainage, any condensate would be regularly diluted and thereafter taken away via the external drain. It said it would always recommend residents ensure their sink waste pipe was free flowing. But reassured the resident that if the sink was to become blocked, the boiler would automatically shut off. It was positive that the landlord provided several web links to trusted websites within the stage 2 response to support its position. The Ombudsman finds the landlord’s response about this was reasonable, well evidenced, and informative.
  7. However, the Ombudsman notes that the resident was also reluctant to have a condensing boiler fitted, because she felt the condensate pipe could be “easily hacked by cyber agents, to disgrace and humiliate the people living in the flats”. This was raised by the resident several times between 23 June 2023 and 15 October 2023. The Ombudsman would have expected to have seen evidence of the landlord taking steps to understand the resident’s concerns about this. As a minimum, it might have provided the resident with appropriate advice or support thereafter. But the landlord’s records are silent regarding this issue, which suggests that the landlord may not have treated the resident’s concern with the attention that was deserved. Given the resident’s evident and continued worry about this, this was troubling and addressed as part of the landlord’s complaint handling.

In summary

  1. The landlord met the resident to discuss her concerns about its proposal to install a condensing boiler in the property. It provided a reasoned and evidenced explanation for why it could not install a non-condensing boiler. It provided reassurance to the resident around the acidity of the condensate. But it did not show that it had considered the resident’s concerns about the condensate pipes being open to “cyber-hacking”. In the Ombudsman’s opinion, the landlord ought to have provided advice and support to the resident in relation to this. However, this was unlikely to have changed the outcome for the resident, given the landlord’s legal obligations.
  2. Therefore, on balance, the Ombudsman finds no maladministration in the landlord’s handling of the resident’s dissatisfaction about its proposal to install a condensing boiler.

The landlord’s complaint handling

  1. According to the landlord’s complaint policy, the landlord had a 2-stage complaint process. The landlord committed to acknowledging stage 1 complaints within 3 working days and issuing a full stage 1 response within 15 working days from the complaint being raised. The landlord aimed to issue the full stage 2 response within 25 working days of the escalation request. The landlord’s website suggests that that the landlord has since reduced this to 20 working days, in line with the Ombudsman’s Complaint Handling Code (the Code).
  2. The landlord also committed to providing within any complaint acknowledgement, the complaint handler’s details, the subject of the complaint, and the deadline for its response. The landlord listed various measures that it might offer, to help remove potential barriers for residents accessing its complaint process. Such measures included arranging a “home visit”. In regard to compensation, the landlord said it would only consider offering compensation where a complaint investigation had identified maladministration.
  3. The resident raised past issues with “cyber making” in the stage 1 response, on 23 June 2023. It was not immediately evident what the resident meant by this, or how this related to the landlord’s proposal to install a condenser boiler. The landlord acknowledged the stage 1 complaint on 26 June 2023, setting out its timeline for responding. While the acknowledgement was sent within expected timescales under its policy, the landlord did not confirm the subject of the complaint, or who was investigating the matter until 5 working days after the complaint was raised by the resident.
  4. The Ombudsman would expect a landlord to check their understanding of a complaint and the outcomes that a resident may be seeking, within the complaint acknowledgement. If any aspect of the complaint is unclear, the Ombudsman would expect the landlord to ask the resident for clarification and agree the full definition of the complaint with the resident. Again, this is set out in the Code.
  5. The landlord did not set out a comprehensive understanding of the complaint or the outcomes the resident was seeking in the stage 1 acknowledgement. But its complaint handler did arrange for the landlord’s surveyor to meet the resident at the property on 5 July 2023, to help inform its investigation. This was encouraging, given the lack of clarity concerning the reasons for the resident’s complaint.
  6. The landlord’s surveyor captured the main points that were discussed with the resident on 5 July 2023, in a timely internal email. There was no mention of the resident raising concerns about the risk of condense pipes becoming “cyber-hacked”. Either the resident did not raise this with its surveyor at the time, or the conversation between the parties was not fully documented by the landlord’s surveyor.
  7. However, the resident did send a further email to the landlord’s complaints team on 5 July 2023, after meeting its surveyor. This email explained more clearly, the meaning behind the resident’s previous reference to “cyber-making”. The resident explained that the landlord should not fit a condensing boiler because she was concerned that if the landlord fitted a condense pipe, it may become “hacked” by “scammers”.
  8. In the Ombudsman’s view, the landlord ought to have sought further clarification at this stage, concerning the complaint and then agreed a full complaint definition with the resident. This would have been in line with the Code. The landlord’s failure to confirm the scope of its complaint investigation, created disappointment for the resident when her concerns were not fully addressed at stage 1. This was inappropriate.
  9. The Ombudsman notes that, overall, the stage 1 complaint was issued within the landlord’s expected timescales.
  10. The resident emailed the landlord on 16 July 2023, stating that she had not received a response to her complaint dated 7 July 2023, which suggests that the resident may have attempted to escalate the complaint to stage 2. The Ombudsman has been unable to verify this from the evidence seen. The landlord directed the resident on 24 July 2023, to “click on the link at the bottom of the stage 1 response”, to escalate the complaint.
  11. The Ombudsman has been unable to verify that the resident followed the landlord’s direction. But the resident emailed the landlord again on 15 August 2023, expressing concern that she had not heard anything following her complaint. The resident repeated that she had concern about “the new condense pipe boiler”, that the landlord “wanted to impose on her”.
  12. The landlord sent the stage 2 acknowledgement on 15 August 2023, referring to the resident’s “complaint” being received on the same day, and setting out a timescale for issuing the full stage 2 response. This suggests that the landlord may not have received an earlier complaint escalation request from the resident, or if it had, this was not logged by the landlord as such.
  13. The landlord sent a further email 3 working days later with the subject heading “new condense free boiler installation”. The landlord’s complaint handler explained that the case had been escalated to stage 2 and invited the resident to provide additional information or talk about the complaint. This was good practice. But the landlord did not explicitly set out its understanding of the resident’s continued dissatisfaction and the outcomes being sought. Had it done so, the resident may have recognised at any earlier stage, that the landlord had not fully understood her complaint and then alerted the landlord.
  14. The stage 2 response was issued within expected timescale under the landlord’s policy. The landlord said that it had reviewed the initial complaint request, the landlord’s stage 1 response, and subsequent correspondence between the parties to inform the stage 2 investigation. Given this, the landlord ought to have noticed that the resident’s worries about the condensate pipe becoming “cyber-hacked” had not been addressed at stage 1. It could have put things right by addressing this issue within the stage 2 response. But the stage 2 response was silent in this regard.
  15. The resident highlighted to the landlord on 15 September 2023, that it had not addressed all of her complaint at stage 2. The Ombudsman has seen no evidence that the landlord responded, which was inappropriate. In the Ombudsman’s view, this was a further missed opportunity to put things right for the resident. After the resident emailed the landlord again a month later, the landlord advised the resident of her right to escalate the matter to the Ombudsman.
  16. The Ombudsman appreciates that the stage 1 complaint raised by the resident was unclear. The landlord set out to support its understanding of the resident’s complaint, by arranging to meet her. While there was no evidence that the resident raised her concerns about “cyber-hacking” during the meeting, the resident did provide the landlord with additional information about this following the meeting. The landlord missed an opportunity to address this concern in the stage 1 response, which left that substantive matter of complaint unresolved for the resident.
  17. The landlord offered to talk about the complaint with the resident, following escalation to stage 2. But the landlord did not explain its understanding of the resident’s continued dissatisfaction or the outcomes she was seeking, so the resident could challenge this at the time. The landlord subsequently missed opportunities to address the issue retrospectively, after the resident told the landlord that it had not addressed all of her complaint.
  18. Therefore, on balance, the Ombudsman finds service failure in the landlord’s complaint handling.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was:

a.     No maladministration in the landlord’s handling of the resident’s dissatisfaction about its proposal to install a condensing boiler.

b.     Service failure in the landlord’s complaint handling.

Orders and recommendations

Orders

  1. The landlord must write to the resident for the failures identified in this investigation.
  2. The landlord must pay compensation of £50 directly to the resident, which has been determined in line with the Ombudsman’s remedies guidance for its failures in complaint handling.
  3. The landlord must endeavour to meet the resident at the property to:

a.     Address her concerns about the risk of the condensate pipes becoming “cyber-attacked”. The landlord must act accordingly thereafter. As a minimum, it should consider if there is any advice and / or support it might provide to the resident, as may be appropriate in the circumstances.

b.     The landlord must provide evidence to the Ombudsman that it has complied with the above orders, within 4 weeks of the date of this decision.

Recommendation

  1. The landlord should agree next steps in relation to replacing the existing boiler, which is now not working. If it has not already done so, the landlord should consider if the existing boiler can be temporarily repaired and that the resident has an alternative temporary source of heating and hot water, pending the boiler replacement. If the resident will not agree to the boiler being replaced, in accordance with the regulations, the landlord may need to seek legal advice on the options available to it.