Shepherds Bush Housing Association Limited (202314963)

REPORT

COMPLAINT 202314963

Shepherds Bush Housing Association Limited

14 November 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 resident’s complaint is about the landlord’s response to her concerns about the lack of openable windows in the property.

Background

The resident is an assured tenant of the landlord. Her tenancy at the property began on 5 August 2016. The property is a 1 bedroom second floor flat in a new build residential block. The resident lives there with her young child.
The resident made a complaint to the landlord on 25 May 2023. She expressed dissatisfaction that her property had “no windows”. She said this was causing the property to become extremely hot and she was having to “have fans running 24/7 to try and keep it cool” for her child. The resident said the property did have balcony doors, but she could not keep these open as it was not safe with a young child in the property. She asked the landlord to reimburse her for the cost of running the fans.
The landlord provided its stage 1 complaint response on 8 June 2023. It said that it:
1. Had no record of the resident bringing this matter to its attention before.
2. Was unable to reimburse the resident for the costs of running the fans.
3. Was concerned that the property did not have any windows and had arranged for a surveyor to inspect it.
The landlord’s surveyor visited the property the same day. They confirmed that the property did not have any openable windows and was reliant on the 2 balcony doors for ventilation.
The resident asked the landlord to escalate her complaint to stage 2 of its process on 24 August 2023. She said the landlord had told her it would not change the windows to ones that opened. She said she felt she was “not getting anywhere” with the issue.
The landlord provided its stage 2 complaint response on 19 September 2023. It said that:
1. The property was fitted with a mechanical ventilation heat recovery (MVHR) unit which delivered air throughout the flat. However, this was not a cooling or air conditioning system.
2. It had serviced the MVHR, and it was working as it should be.
3. The property was compliant with building regulations and had balcony doors to provide natural ventilation.
4. It understood the resident was hesitant to open the doors, but this was “one of the reasons” why the temperature in the property was so high.
5. It encouraged her to open the balcony doors. The balcony had sufficient railings to ensure the safety of occupants.
The resident asked the Ombudsman to investigate her complaint on 20 September 2023. She expressed dissatisfaction with the landlord’s position and said she wished for it to either install openable windows or move her from the property.

Assessment and findings

Scope of the investigation

As well as her concerns about the windows, the resident raised issues with her electric fuse board, CCTV in the block and the services paid for by her service charge in her original complaint. The landlord’s stage 1 complaint response appropriately addressed all these issues. The resident asked to escalate her complaint to stage 2 as she felt the issue with the windows remained unresolved. In its stage 2 response the landlord said that “You have not stated that any other part of the Stage 1 response was unresolved, so I have only investigated the matter of the windows”. This investigation will also consider only that matter.
When bringing her complaint to this Service, the resident claimed that her son’s health had been affected by the high temperatures in the property, caused by the lack of ventilation. Whilst this service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider this aspect of the resident’s complaint, which is better suited to consideration by a court or via a personal injury claim.

Window concerns

In its stage 1 complaint response, the landlord said that the resident had not brought the lack of openable windows to its attention previously. Its records support this statement. The landlord’s complaints policy allows it to exclude ‘service requests’ – where it has not yet had the opportunity to address an issue – from its complaints procedure. However, as it was required to provide a stage 1 complaint response to address the other matters raised, it was reasonable for the landlord to still include the windows within this.
The landlord told the resident that it could not reimburse her for the cost of her running fans to keep the property cool. This was reasonable, as it had not previously been made aware of the issue and given the opportunity to investigate it. A reimbursement of this nature would only be appropriate if the costs had been incurred due to the landlord failing to meet its obligations.
The landlord also said it was “concerned” by the resident’s report that the property had ‘no windows’ and had arranged for a surveyor to inspect it. This was an appropriate course of action. The surveyor attended the property on 8 June 2023 and confirmed that the property had no openable windows and relied on the balcony doors for ventilation – as the resident had stated in her original complaint.
Internal emails show that the landlord confirmed that the property met building regulations and had received certification to this effect on 28 April 2016. It also confirmed that the block’s fire risk assessment supported a ‘stay put’ fire strategy due to compartmentation of the building – negating the need for windows as an emergency exit.
The landlord’s surveyor returned to the property on 6 July 2023 to inspect the ventilation. Following this, the landlord raised an order for an engineer to service the MVHR system in the property. The engineer attended on 22 July 2023 and reported that the system was functioning as it should. The engineer noted that the resident had incorrectly been advised the MVHR was a cooling/air conditioning system and clarified that it was designed only to circulate ambient air to prevent condensation and mould. It is therefore apparent that the property was solely reliant on the balcony doors to lower the internal temperature.
The landlord visited the resident on 3 August 2023. It explained that the property was compliant with building regulations, and it did not plan to make any alterations to the windows. This was a reasonable position as the tenant had accepted the property with the current windows in place, and the landlord was under no obligation to replace them whilst they were ‘fit for purpose’.
During this visit, the landlord discussed the resident’s housing options with her. It appropriately signposted her to the local authority housing register and mutual exchange. This was in keeping with its allocations and lettings policy which says that “due to the high demand for housing outweighing supply; we expect that residents, especially those who are statutory overcrowded, to present themselves to the local authority or apply for a Mutual Exchange.”
The resident also told the landlord that the temperatures in the property were affecting her child’s asthma. There is no evidence she had raised this with the landlord prior to this visit. The landlord reasonably agreed to consider the resident for a management transfer on medical grounds. This was in keeping with its allocations and lettings policy says that it will award a management transfer where a household member has “a significant medical need or disability which means that you are unable to remain in your current home”.
On 16 August 2023, the landlord’s independent medical advisor determined that the resident should not be granted a management transfer based on the medical evidence she had provided. It was reasonable for the landlord to rely on the opinion of its qualified medical advisor. It again signposted the resident to bid for properties through the local authority and seek a mutual exchange.
The resident escalated her complaint, on 24 August 2023, as she felt the landlord was not providing a solution to the issues. In its stage 2 complaint response, the landlord confirmed to the resident that the property was compliant with building regulations. It advised that she should use the balcony doors to ventilate the property, and that the balcony had railings to ensure the safety of occupants – which were also compliant with building regulations.
The landlord was aware of the resident’s concerns about ventilating the property using the balcony doors, due to her young child. It would have been appropriate for it to consider providing restrictors, or similar, to enable the resident to open the doors without allowing her child unrestricted access to the balcony.
The resident has provided this Service with photographs of electronic thermometer readings taken within the property during the summer of 2023 which exceeded40°C. The Housing Health and Safety Rating System lists excess heat as a hazard which can impact health. It notes that “mortality increases in temperatures over 25 degrees Celsius”.
The landlord’s stage 2 response stated that the resident’s reluctance to open the balcony doors was “one of the reasons the temperature in the flat has been so high”. This indicates that it believed there were other contributory factors within the property. The resident has also told this Service that, even with the balcony doors open, the temperature inside the property remains uncomfortably high.
There is no evidence that the landlord carried out its own investigation of the temperatures in the property, in order to determine whether they may be hazardous and to identify any mitigating actions it could take. This is concerning given the presence of a vulnerable young child within the property and the health concerns raised by the resident.
In summary, the landlord’s position that the property met building regulations, and it would not make alterations to the windows was reasonable. However, it failed to appropriately investigate the resident’s concerns about the high temperatures in the property or consider other means by which it could address these. Due to this the Ombudsman makes a finding of maladministration.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concerns about the lack of openable windows in the property.

Orders

Within 4 weeks of the date of this determination, the Ombudsman orders the landlord to:
1. Pay the resident £250 compensation for the distress and inconvenience caused by its maladministration identified by this report.
2. Inspect the balcony doors to identify whether a restrictor/catch can be fitted to enable them to be opened without granting ready access to the balcony.
3. Write to the resident committing to carrying out a thermal survey of the property in summer 2025 to investigate whether the temperatures in the property represent a hazard and if so identify any works it can complete to address this.

The landlord should provide evidence of compliance with these orders to this Service.