Hammersmith and Fulham Council (202333680)

REPORT

COMPLAINT 202333680

Hammersmith and Fulham Council

9 May 2025

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example, whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s response to the resident’s concerns regarding:
   1. The landlord’s decision to replace the windows as part of major works.
   2. The reasonableness and level of the window replacement cost payable through the service charge.

Background

2. The resident is a leaseholder of a one-bedroom flat on the 4th floor of a purpose-built block (the block). The lease started in September 2017. There are 56 flats within the block.
3. The landlord told us it had no known vulnerabilities recorded for the resident.
4. After consulting with residents, in June 2021 the landlord entered into an agreement with its nominated contractor for provision of responsive capital works (responsive capital works contractor).
5. On 21 July 2023, the landlord issued the residents (of the block) a consultation notice of intent to carry out major works. The description given of the main works was: ‘the removal of cladding, and the replacement of existing windows and external door sets with new aluminum framed windows/doors to match the existing design.’
6. In relation to windows the notice stated that:
   1. The existing ones were reaching the end of their useful life and needed to be replaced.
   2. The spandrel infill panels adjacent to the windows also needed to be changed as they were a potential fire hazard.
   3. Leaseholders had an obligation to contribute towards the cost of these works, however they would not be asked to pay for the cost of the cladding (infill spandrel panel).
   4. It proposed to use its ‘retained’ responsive capital works contractor. It provided a ‘statement of estimate’.
   5. The notice invited residents to submit comments and advised the consultation period ended on 25 August 2023.
7. On 31 July 2023, the resident raised objections to the major works proposed. This included an objection to the landlord’s claim that the windows were reaching the end of their useful life. He stated the windows were still performing, and did not need to be replaced, and believed they were less than 25 years old. The resident stated the landlord should allow residents to opt-in or opt-out of the proposed replacement given the relatively good state of the windows.
8. In its 21 August 2023 response, the landlord:
   1. Reiterated that the windows were reaching the end of their useful life and needed to be replaced.
   2. Said that under the terms of the lease, windows costs were not an optional opt-in or opt-out cost. When the window works were carried out, leaseholders would have to pay their contribution as per the terms of the lease. This was regardless of whether they benefit from windows in their property or not.
   3. Stated that the cladding adjacent to the windows also needed to be changed as it was a potential fire hazard.
   4. Stated that a lot of the cost of the works would not be charged to the resident as a leaseholder, including the spandrel panels.
   5. Said that the cost of scaffolding had been apportioned between cladding and non-cladding works.
9. On 8 October 2023, the resident raised a formal complaint in relation to the major works. On 16 October 2023, the landlord provided its stage 1 complaint response. The details of the complaint and the landlord’s response have not been included here as the issues raised at this stage of its complaints process have not been considered in this investigation (explained further below).
10. In his stage 2 complaint dated 18 November 2023, the resident stated that the landlord had not been able to provide details of the original windows therefore it had not been able to confirm their expected life span.
11. In its stage 2 final response dated 15 December 2023, the landlord acknowledged the resident has escalated his complaint partly on the grounds that it had not clearly defined the necessity of the window replacement. The landlord stated:
    1. Whilst its team did not presently have records on the original installation date, it considered the units were approximately 25-30 years old. As the windows did not have Fenestration self-assessment scheme (FENSA) certificates, this indicated they were older than 2002 when such certification was introduced.
    2. There had been approximately 50 window repairs (for the block) over the last 3 years where components of the windows (e.g. seals, handles, etc) had been repaired. This included the resident’s property in December 2020 when new seals had to be fitted to the lounge and bedroom to stop rainwater entering.
    3. It was considered a false economy to delay replacing windows while scaffolding was in place because lessees could benefit from the cost of scaffold being pro-rata. If it was to omit this component, the need to continue patching the windows would continue, leading to additional expense, and the cost of renewing the windows in 3-5 years was likely to only increase.
    4. Instead, it sought to mitigate the impact on homeowners by offering extended repayment terms.
    5. It had asked its project management team to assess a further representative sample of windows on site. This was presently ongoing.

Post the landlord’s final response

12. The landlord engaged third party surveyors to complete a survey of the windows at the block. The report titled: ‘window condition photo survey’ was completed on 19 December 2023 (window condition report). This stated that generally the condition of the windows externally was poor with signs of gaskets deteriorating, rubber seals coming away from the window openings and large gaps around the windows allowing draughts to enter the properties.
13. In the resident’s reply to the landlord dated 22 December 2023, he:
    1. Reiterated that the windows did not need replacing and stated his surveyor had assessed the condition of the windows in his flat and they found them to be in a satisfactory/good condition and were not at the end of their useful life.
    2. Stated that all repairs highlighted were minor.
    3. Attached a copy of the report dated 16 December 2023.
14. The window replacement works at the block began in January 2024 and on 7 February 2024 the landlord sent its window condition report to residents.

Assessment and findings

Outside of jurisdiction

15. Paragraph 42.d of the Scheme states that the Ombudsman will not consider complaints that concern the level of rent or service charge or the amount of the rent or service charge increase. Also, paragraph 42.f states that the Ombudsman will not investigate complaints concerning matters where we consider it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
16. In his formal complaint the resident raised concerns regarding the estimated cost of the window replacement to individual leaseholders and the reasonableness of this cost. Therefore, in accordance with paragraphs 42.d and 42.f, the Ombudsman is unable to consider the resident’s complaint regarding the reasonableness and level of the window replacement cost payable through the service charge. These types of complaints fall within the jurisdiction of the First-Tier Tribunal (FTT). The resident is aware that he may need to consider making a claim via the FTT in relation to this complaint.

The resident’s concern regarding the landlord’s decision to replace the windows as part of major works.

17. Under the terms of the lease the landlord is obligated to repair and maintain the common and structural parts of the building including the windows and external window frames. The landlord has a legal obligation to consult with residents whenever it intends to carry out major works to the building where a resident’s individual contribution is expected to exceed £250.
18. The landlord must issue a notice of intent of major works as part of the consultation process which states why the work is needed. In the landlord’s 21 July 2023 consultation notice issued to residents in this case, it stated that the window replacement was needed because the windows at the block were reaching the end of their useful life. Therefore, by stating the reason for the proposed works, the landlord acted appropriately.
19. In his comments on the landlord’s proposal, the resident however disputed that the windows needed replacing as he said they were still performing and were less than 25 years old. He also asked the landlord if residents could opt-in or opt-out of having the windows of their property replaced. In its 21 August 2023 response, the landlord explained why leaseholders could not opt-in or opt-out of the works. As it addressed the resident’s request, referencing the relevant terms of the lease, this aspect of its response was reasonable. However, the landlord did not offer any further information in support of its previously stated position that the windows were reaching the end of their useful life span. As the resident had challenged this point, we would expect the landlord at this stage to have given more information to justify its decision to replace the windows.
20. In his stage 2 complaint made nearly 2 months later, the resident complained that the landlord had not provided details of the original windows, therefore it had not been able to confirm their expected life span.
21. In its final response, the landlord acknowledged that it did not have records of the original installation date but said it estimated the units were 25 to 30 years old based on the lack of FENSA certificates for the windows.
22. Additionally, the landlord provided further explanation for its decision including that there had been approximately 50 repairs to windows at the block over past 3 years. It said the need to repair components of the windows would continue, leading to additional expense and the cost of renewing the windows in 3-5 years was likely to increase. The landlord has supplied its repairs records which confirms there were approximately this number of repairs in the previous 3 years (in relation to 56 flats). However, the severity or cost of the repairs undertaken is unclear from the repair records provided.
23. In its response the landlord also stated that carrying out the window replacement works while scaffold was already in place for the cladding works would benefit lessees as the cost of scaffold would be pro-rata.
24. Under the circumstances, there was no maladministration in landlord’s reliance on the lack of FENSA certificates for the properties even though it did not complete an inspection of the windows until after the internal complaints procedure to ascertain the specific age. Since the landlord could reasonably confirm through the lack of FENSA certificates that the windows were older than 2002, this meant that at the time of the stage two response in December 2023, the landlord could reasonably conclude the windows were around 22 years old. This is on the basis that we counted the windows age from 2001 (the year before the FENSA certificates were introduced since there was no other information regarding when the windows were installed).
25. Even if the windows were 22 years old at the time of the internal complaints procedure (therefore not at the full end of the life cycle), there was no maladministration in landlord’s subsequent decision to replace them when taking the following factors into consideration:
    1. The costs associated with the full replacement for all the residents in the block. We have considered the fact that splitting the works over the years to complete different window replacements would have increased the costs for the landlord and residents overall.
    2. The other major works ongoing at the same time meant the costs were lessened because all the works could be completed at the same time. This is particularly considering the fact that the landlord stated that carrying out the window replacement works while scaffold was already in place for the cladding works would benefit lessees as the cost of scaffold would be pro-rata’d. Under the circumstances, it was reasonable for the landlord to progress with all the works within the same timeframe.
26. In its final response the landlord told the resident it was in the process of assessing a sample of the windows on site. This action was appropriate. Under the circumstances, we expect landlords to follow through with any promises made during the complaints process. The landlord here has shown it engaged independent surveyors to assess the windows as promised and that it sent the window condition photo survey report to residents with an update on 7 February 2024. This report set out the findings to residents, one of which was that many of the windows were last renewed in 1998.
27. Having considered everything above and the landlord’s handling of this issue, it is our view there was no maladministration.

Determination (decision)

28. In accordance with paragraphs 42.d and 42.f of the Scheme, the resident’s concern regarding the reasonableness and level of the window replacement cost payable through the service charge is outside of our jurisdiction to consider.
29. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in its response to the resident’s concern regarding the landlord’s decision to replace the windows as part of major works.