Westminster City Council (202004695)

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REPORT

COMPLAINT 202004695

Westminster City Council

26 February 2021


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 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 request to have the remaining windows at the property replaced with double glazing.

Background and summary of events

Background

  1. The resident is a secure tenant of the landlord. The landlord is the local authority. The property is a Grade II Listed building and resides in a Conservation Area. Conservation Areas are defined by planning legislation as areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance.
  2. In accordance with the Tenant’s Handbook, the landlord is responsible for the repair and maintenance of the windows, windowsills, frames, catches and locks.
  3. A landlord is obliged, in accordance with the Landlord and Tenant Act 1985, the Decent Homes Standard, and the Homes (Fitness for Human Habitation) Act 2018, to ensure that a property is fit for human habitation and free from category one hazards.
  4. The Housing Health and Safety Rating System (HHSRS) is a risk‑based evaluation tool to help local authorities identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings. Excess cold is a category one risk. As per the Decent Homes Standard, for a property:

“To be decent, a dwelling should be free of category one hazards, and the existence of such hazards should be a trigger for remedial action unless practical steps cannot be taken without disproportionate expense or disruption. Landlords should consider the circumstances very carefully in the interests of the occupiers of the dwelling before concluding that a hazard cannot be dealt with effectively, and in such cases should ensure that the occupiers are fully aware of the position.”

  1. Section 6.2 of the Decent Homes Standard says:

“The Decent Homes standard is a minimum standard …, but it does not represent the standard to which all work should be carried out. The work that is done to bring homes above this level will vary with the policies of social landlords.”

  1. Section 6.22 of The Decent Home Standard says:

“Local authorities have statutory duties and powers to take enforcement action to deal with properties containing hazards assessed under the HHSRS. Under the Housing Act 2004, local authorities have a duty to take appropriate enforcement action in relation to category one hazards.”

  1. A Guide to the Alterations of Buildings in this Conservation Area in respect of windows says:

“… every opportunity should be taken to restore the window to their original appearance. For insulation purposes, secondary glazing can be installed behind the traditional windows. Modern UPVC, aluminium or leaded light windows are unacceptable. Whenever possible, original windows should be repaired rather than replaced. Where replacements are necessary, timber units which exactly match the original double hung, sliding sashes, should be used. Special care should be taken to ensure that all dimensions of the original, including the thickness and profile of the glazing bars and frames, are adhered to.”

Summary of Events

  1. The landlord’s repair records show that a repair order was raised in November 2018 for the renewal of three of the windows in the property. It shows that this was completed on 20 March 2019.
  2. The resident raised a complaint on 14 February 2019. On 27 February 2019 there was a further inspection of the property where the resident highlighted the condition of the windows in the property that were still single glazed, contending that the poor condition meant a severe draught on windy days and the loss of heat.
  3. In the landlord’s stage one complaint response of 4 April 2019, the landlord said in relation to the windows that, following the recent inspection, it would only replace items if they were established to be beyond economic repair, which it said had not been noted as a concern. The landlord added that it would refer the resident’s query in relation to the planned upgrade of the windows at the property to its planned investment team to confirm when the windows would be scheduled for renewal.
  4. Following further contact from the resident, on 18 April 2019 the landlord wrote to him to confirm that 60% of his windows in the property had been renewed over the last two years, as they had been deemed beyond economic repair. The landlord said that the remaining windows in the property were deemed to be functioning as intended, as per the inspection in February 2019. However, because the resident had raised concerns about the loss of heat, it agreed to undertake a further inspection of the windows.
  5. In a further letter to the resident dated 24 May 2019 the landlord said the planned investment team had confirmed that, under the current major works programme, the windows would only be replaced if they were beyond economic repair. However, it would ask the local authority’s environmental health team to carry out an inspection of the property to establish if excess cold was an issue at the property due to the remaining single-glazed windows.
  6. On 16 August 2019 the landlord asked the environmental health team to inspect the property for excess cold. It did so on 2 October 2019. They concluded that the property did suffer from excess cold due to the remaining single-glazed windows in the property and that this was a significant category one hazard. As a result, the report recommended replacing all windows in the property with double‑glazed units.
  7. On 20 November 2019 the resident asked the landlord to escalate his complaint.
  8. On 3 December 2019 the landlord issued its stage two complaint response under its formal complaint procedure. It partially upheld the complaint due to the length of time taken to resolve the matter. It acknowledged that the environmental health team’s inspection of the property took longer than expected and it apologised for that delay. It explained that following the inspection, it had been actively seeking alternative funding and contractors in order to undertake the necessary works.
  9. The landlord explained that it was unable to replace the windows in the property as it was within a Conservation Area. However, it said approval had been given to install secondary glazing to all remaining single-glazed windows in the property. The landlord said that this decision was based on the condition of the remaining units, the current planning regulations and to ensure the excess cold element, established by the environmental health team’s report, would be resolved. The landlord advised that its contractors had been instructed to attend the property and measure up, so that the secondary units could be installed within ten weeks. That concluded the landlord’s complaints procedure.
  10. The Ombudsman cannot consider the actions of the landlord following the final report where the landlord has not had an opportunity to respond to any concerns raised by the resident about those events, as in this case. A brief outline of subsequent events is included here for information only. The resident raised several points to the landlord via his MP on 16 December 2019 including that the replacement of the remaining windows with secondary glazing, as opposed to double glazing, was unfair because other similar properties had had double glazing installed, including his own property.
  11. The landlord responded the following day. Its main points were:
    1. The single-glazed windows in the property were in good condition and were not currently required to be replaced.
    2. The environmental health team’s inspection in October 2019 confirmed the presence of excess cold due to the remaining single-glazed units in the property.
    3. In line with the recommendations of that inspection report, it had agreed to install the secondary glazing to all remaining single-glazed units, to resolve the excessive cold issue.
    4. The shutters the resident had installed would not be affected by the installation of the secondary-glazed units.
    5. The windows would be easier to open after the secondary glazing had been installed, rather than harder.
    6. a surveyor had been scheduled to attend the property on 18 December 2019.
  12. An inspection of the windows took place on 18 December 2019. It concluded the property would be suitable for secondary glazing and noted that an allowance would be required to take into account blinds and shutters that the resident had installed. The surveyor in attendance found that all the remaining single–glazed units were functioning as intended and no units were found to be beyond economic repair.
  13. The resident subsequently refused an appointment from the window contractor to carry out the installation of the secondary glazing. The Ombudsman understands that work to the windows remained outstanding as of October 2020.

Assessment and findings

  1. The landlord acted appropriately in response to the resident’s report of heat loss from the property by instigating an inspection by the environmental health team who are responsible for establishing whether there is a risk under the HHSRS (paragraph 5). There was a three-month delay by the landlord in asking the environmental health team to inspect the property (paragraph 13). The landlord acknowledged that delay and apologised for it in its final complaint response (paragraph 16). That is a proportionate remedy to that minor service failure.
  2. In October 2019, following the outcome of that inspection, the landlord became aware that the property suffered from a category one risk. It was obliged to take remedial action. As the property is a Grade-II listed building in a Conservation Area, the landlord was required to take action to make the property “decent” but this would also have to been in line with its other obligations as the property is in a Conservation Area (paragraph 8).
  3. The landlord’s decision not to install double-glazed units in the property was appropriate because it was in line with its obligations under the Conservation Area guidelines. It considered secondary glazing would be an effective solution and, in doing so, reasonably relied on the informed opinion of its qualified staff and contractors. Therefore, the landlord’s decision to proceed with the works recommended by its surveyor to address the excess cold by installing secondary glazing was appropriate.
  4. There was a further delay by the landlord once the environmental health team’s inspection was completed in October 2019. It would have been appropriate at that stage for the landlord to have written to the resident setting out its action plan to address the category one hazard. Once it was aware of the category one hazard it would be appropriate for the landlord to take robust action to address this. There is no evidence the landlord did so and instead was prompted to respond by the resident’s escalation of the complaint the following month (paragraph 15). That delay was a service failure.
  5. When the resident later raised legitimate concerns about the proposed secondary glazing via his MP, the landlord responded and in doing so fully addressed the issues raised (paragraph 19). That was a reasonable response by the landlord which sought to give the resident reassurance on the points he had raised.
  6. There is no evidence that secondary glazing has been installed at the property. The resident has therefore continued to live in a property with excess cold.
  7. As part of the Ombudsman’s consideration of redress, he considers if the resident’s own actions mitigate the extent of the compensation being considered. In this case, the resident’s refusal to allow the works to go ahead meant that the length of time this matter has been on-going was extended. Therefore, an apology from the landlord for the delay in taking action once the category one hazard had been identified is proportionate redress.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to the resident’s request to have the remaining windows at the property replaced with double glazing.

Reasons

  1. The landlord acted appropriately in response to the resident’s report of cold within the property. Its decision to install secondary glazing, rather than double glazing, was appropriate. There was service failure by the landlord in failing to take swift action once the category one hazard had been identified.

Order

  1. The landlord shall apologise to the resident within four weeks of the date of this report for the service failure in failing to take swift action once the category one hazard had been identified.

Recommendations

  1. It is recommended that the landlord takes the following action:
    1. Rearrange a suitable time with the resident for the remedial works to take place, to address the excess cold issue.
    2. Carry out a post-inspection of the remedial works, to ensure the secondary glazing has addressed the excess cold issue.