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Optivo (202006395)

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REPORT

COMPLAINT 202006395

Optivo

22 April 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 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 response to the resident’s reports about:

  • Cracks and water damage to the ceiling and the walls of the property;
  • Noise from a neighbouring property.

Background and summary of events

Background, policies and procedures

  1. The resident is an assured tenant of the landlord, with a tenancy start date of 25 September 2014. The evidence available to this investigation confirms that the resident signed a new tenancy agreement with the landlord on 16 October 2020.
  2. The original tenancy agreement, which would have been in place at the time that the resident submitted her original complaint confirms resident responsibility for “filling minor cracks in plaster”. The new tenancy agreement, which came into effect following the completion of the complaints process, also confirms tenant responsibility for “filling minor cracks in plaster” and “decorating all internal parts of the home as often as is necessary to keep it in good decorative order”.
  3. The original tenancy agreement also states that mediation is encouraged in cases involving neighbour disputes, with the case to potentially be closed should one or both parties be unwilling to attend mediation and where there is not enough evidence to support either party. Both the original and new tenancy agreement confirm tenant responsibility to ensure that all members of the household refrain from acts that might cause “nuisance, annoyance or disturbance”.
  4. The landlord’s ASB policy confirms that it will “deal with reports of ASB that affect our residents or are caused by our residents (or a person they are responsible for). We will record anonymous reports and take action where we find evidence of ASB”.

Summary of events

  1. The landlord’s records indicate that the resident submitted a complaint to it on or around 12 June 2020, about damage to her property that she believed had been caused by works undertaken by the resident of the property above hers.
  2. On 15 June 2020, internal landlord correspondence confirmed that an inspection of the property scheduled for 26 May 2020 had not yet taken place because of the impact of the pandemic, which restricted the landlord to external inspections only. Other inspections had been put on hold until 6 July 2020. However, in light of the urgency of the case and as the resident appeared to not have a concern about an internal inspection, it could offer an inspection for 17 June 2020.
  3. The landlord’s records indicate that it telephoned the resident on the same day, 15 June 2020, to discuss her complaint. The resident informed the landlord that she would not have moved into the property if she had known that the property above hers was privately owned, because of the impact of noise resulting from refurbishment works. The landlord’s notes state that it advised her that the refurbishment works were unlikely to be ongoing and that she had the option to report noise to the Local Authority, if the refurbishment works were being carried out during unsociable hours, or where she felt the noise level was unacceptable. The notes then state that an appointment was booked for an inspection to take place on 17 June 2020, to review cracks in the ceiling, which the resident said had resulted from works carried out in the property above hers.
  4. On 17 June 2020, the inspection took place. The landlord has provided a copy of its surveyor’s report to this Service. The report states that at the inspection, the landlord’s surveyor had noted that there were minor hairline cracks to the ceiling. The surveyor’s view was that re-decoration works were required to affected areas, but no repair issues were identified. The surveyor’s notes also indicate that they had discussed the noise issues with the resident and that they had advised her that they would pass her complaint on to the landlord’s ASB team.
  5. On 2 July 2020, the resident submitted a further complaint to the landlord. The resident referred to two complaints that she had previously submitted to the landlord and to its call to her on 15 June 2020.  She referred to a comment which she said the landlord’s surveyor had made during the inspection on 17 June 2020. She said that they had advised that there had been ‘shrinkage’ to the property; the resident questioned this on the basis that this shrinkage had occurred 70 years after the property was built. She said that it appeared that the landlord was taking no action to remedy the issues she had complained about.  She then referred to impressions in the ceiling which she said had possibly been caused by loosened plywood in the ceiling, resulting from unexpected heavy excavation/drilling work undertaken; she said that these were “obvious and evidently clear”.
  6. The resident said that she never had any issue since moving into the property, six years ago. She said that she was now dissatisfied with the aesthetics of the property and that this deterioration caused by the works upstairs had been accepted by the landlord. She said that her complaint had been ‘closed/dismissed’ and expressed her dissatisfaction with the way the landlord had handled the matter. She asked that a final response be issued by the landlord within seven days to enable her to approach the relevant parties, including this Service.
  7. On 3 July 2020, the landlord replied to the resident. It said that it had tried to contact her by telephone but had been unable to speak to her. It said that it had registered a formal complaint and that it would aim to respond within ten working days.
  8. On 15 July 2020, the resident emailed the landlord. She raised concerns about the landlord’s handling of the matter, particularly where it was her view that, as landlord, it should have taken action to protect her as its tenant, and the property. She said that recent changes to tenancy conditions had been imposed upon her and that this was not the case when she had signed the tenancy agreement. She said that the landlord had knowledge of building structural fault/ defects designs such as sound proofing, and of any potential future problems, such as the issues that she was currently facing. She said that it was not fair for her to have to endure the effects of the works undertaken by the owners of the property above hers. She said that the landlord had shown no interest in the situation and there had been a lack of care on its part. She said that the surveyor had only acted in the landlord’s best interest.
  9. On 17 July 2020, the landlord issued its response to the resident’s formal complaint dated 2 July 2020. It said that:

a)     During their visit on 17 July 2020, its surveyor had found no structural issue with the property and had only reported hairline cracks, which were tenant responsibility. It said that it understood the resident was unhappy with its surveyor’s report however, as she had raised no new concerns since the inspection on 17 June 2020, it did not believe a further inspection would be beneficial in this instance.

b)     The landlord then referred to the resident’s concerns about noise and said that she should report those to her Local Authority’s Environmental Health department. It said that this was because the upstairs resident was not its tenant and it was unable to take further action because of this. It said that the Local Authority had powers to take action, where there was evidence of noise disturbance.

  1. On 19 July 2020, the resident emailed the landlord. In her email, she said that the landlord’s surveyor’s report disclosed inadequate records of what she believed was evidently clear. On 22 July 2020, the landlord emailed the resident in response to her email dated 19 July 2020, to advise her of the steps to follow if she wanted to escalate her complaint.
  2. The landlord’s records indicate that the landlord received the resident’s completed review panel request form on 27 July 2020. This Service has not had sight of the completed form and it is noted that when she contacted the Ombudsman on 28 September 2020, the resident raised concerns in relation to the content of the landlord’s final response to the complaint, one of them being about the landlord’s understanding of her complaint about its handling of the noise issue and her expectations in relation to that particular aspect.
  3. On 4 or 5 August 2020, the landlord held a meeting to review the resident’s request to escalate her case to a review panel. Its internal correspondence indicates that at the meeting, it decided that it would not escalate the resident’s complaint to a review panel as it believed that there was nothing new to review and so, it believed that this would not be the appropriate course of action in this instance.
  4. The landlord’s records indicate that it contacted the resident on or around 10 August 2020, to inform her that it needed a further inspection to take place in order to respond to her request to escalate her complaint to a review panel. The notes indicate that this was arranged for 12 August 2020.
  5. On 12 August 2020, another landlord’s surveyor carried out an inspection. The landlord has provided a copy of the inspection report to this Service which included photographs of the affected areas. The surveyor’s notes state that they had only found minor cracks in areas in the property. The surveyor’s report state that they were of the view that the crack in the hall by the front door was historic though they also noted that the resident told them that it was recent. The notes also state that the surveyor had found that there were no cracks in the bathroom, only staining to the ceiling in it. The surveyor’s view was that no works were required for the landlord to undertake.
  6. On 21 August 2020, the landlord issued its response to the resident’s request to escalate her complaint to a review panel. It said that:

a)     Its senior surveyor had inspected the property and had found minor hairline cracks to the ceiling, which it said had resulted from natural movement of the property and were not a structural concern.

b)     The resident’s tenancy agreement confirmed internal decoration was her responsibility and hairline cracks would be included within this.

c)     In regard to the noise issue, the alleged perpetrator was not its tenant and it could therefore take no action. It said that it had adopted the correct approach by referring the resident to the Local Authority’s Environmental Health department, as it had statutory powers to take action against private owners where noise nuisance is proven.

d)     It said that it had formally closed the complaint at its end, in line with its complaints policy.

  1. On 28 September 2020, the resident contacted this Service about the complaint.  The complaint became one that this Service could formally investigate on 18 October 2020.
  2. On 10 November 2020, this Service discussed the complaint with the resident. During the telephone conversation, in addition to raising the issues that have already been covered in this report, the resident said that there were dogs barking from the upstairs property. This Service understands from the resident that she had not reported this issue to the Local Authority. The notes state that the resident said that she believed that the landlord should have offered her the option to relocate however, this had not been formally discussed with it. The notes then state that the resident said that she felt at disadvantage, as if the residents above her had been the landlord’s tenants, they would not have been allowed to have laminate flooring in their property. As the relocation issue had not been discussed with the landlord, this Service suggested early mediation to resolve the complaint and to initiate this, on 10 November 2020, it contacted the landlord.
  3. In its internal correspondence on 7 December 2020, the landlord’s ASB manager said that the resident’s upstairs neighbour was its leaseholder and that it could open a noise case and investigate which would require the resident to provide diary sheets as per its standard procedure, with the likely outcome being an offer of mediation between both parties. It also said that as the noise that had been reported to it was ‘DIY’ noise, it would not constitute Anti-Social Behaviour, unless occurring late at night or early in the morning.
  4. The landlord also said that it had never had a complaint from the resident before and she did not meet the criteria for a management transfer so, a mutual exchange would need to be considered.
  5. On 7 December 2020, further to this Service’s contact during early mediation, the landlord emailed it to advise that its ASB team had suggested the following:

a)     The resident could provide recordings of noise nuisance via its noise app for two weeks either directly to it or to the Local Authority to demonstrate the noise was unacceptable time/level.

b)     Its leasehold team will contact the neighbour to discuss the noise issue and offer mediation.

c)     If accepted by both parties, it will make a referral to its third-party mediation service.

d)     The landlord also reiterated the information in its internal email on the same day, about the resident not being eligible for a management transfer.

  1. On 21 January 2021, this Service contacted the resident to discuss the course of action suggested by the landlord on 7 December 2020. The notes state that, during the telephone call, the resident explained that she already had a diary and that it appeared that the Local Authority had given her the diary in question. She said that the landlord had previously provided her with the options it had suggested via this Service and that she understood the landlord did not necessarily have the powers to take action against the upstairs residents.  The resident then went on to explain that the Local Authority had written to her neighbours and said that she felt that this had had an impact as the noise issue had improved during the Christmas period. The notes state that the resident said that building works were ongoing, that they would stop and then start again, and that the Local Authority had explained what assistance it could provide to her in respect of the noise issue. The notes state that the resident said that her neighbours were fostering dogs, that this had caused the noise issue to worsen at some point. She then said that the noise caused by the pets had reduced, though she believed this was temporary. 
  2. The resident also advised that the works undertaken in the property above her were major ones, that walls had been removed as part of these works and that she believed that this had contributed to the cracks in her property. The resident said that she had decorated the property and questioned whether it was her responsibility to redecorate in this instance. The notes then go on to say that the resident explained that she would be unable to relocate through a mutual exchange, as it was unlikely anyone would be willing to move into the property given the issues.  The notes also state that the resident did not feel that the landlord had acknowledged its responsibilities in this instance, that she had noted that the damage to the property was cosmetic damage, however, the fact remained that it still was damage. The resident believed that it was the landlord’s responsibility to remedy this. The resident also mentioned that she had experienced a leak which had affected her electrics.
  3. The records state that the resident indicated that she did not deem the landlord’s proposal was a satisfactory resolution to her complaint as she understood that the landlord had provided her with the information on who to approach (the local authority) in regard to the noise issue, which she had done. According to the notes, the resident advised that the Local Authority had provided her with information about what assistance it could provide. The resident also informed this Service that the Local Authority had provided her with the contact details for a mediation organisation, however, she had not called it as she tolerated the noise. The notes state that during the telephone conversation, the resident confirmed that her outstanding concerns related to the landlord’s response to her reports about the issue of the cracks.
  4. On 8 and 9 March 2021, the resident indicated in emails to this Service, that she wanted it to also review the issue of the noise.

Assessment and findings

Cracks and water damage to the ceiling and walls of the property

  1. In reaching a decision, this Service considers whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Its duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case. This Service has a very specific role in considering whether the landlord has met its obligations to a resident and taken reasonable steps to resolve the complaint.
  2. It is not disputed that the landlord has an implied responsibility to complete repairs to the structure and exterior of the property, in accordance with its obligations under the Landlord and Tenant Act 1985. Having received reports from the resident about possible repair issues resulting from works at a neighbouring property, it was appropriate that the landlord scheduled an inspection to determine the extent of any issues and whether it had a responsibility to provide a resolution.
  3. The landlord completed a survey on 17 June 2020, its surveyor advised the landlord that they had found that there were only minor hairline cracks and that their professional judgement was that remedial works would only consist of redecorating the affected areas. As such, it was appropriate that the landlord concluded that the resident was responsible for any remedial action, as the tenancy agreement confirms tenant responsibility for resolving minor cracks and redecoration works.
  4. The resident disputed the landlord’s position. This was understandable, given her view that it had been the actions of a third party that had caused the aesthetic changes to her ceiling. However, the landlord was entitled to rely on the expert opinion of its qualified surveyor in reaching its decision. Furthermore, the landlord completed a further survey, this time by a senior surveyor at a later date (12 August 2020), which confirmed the findings of the initial inspection.
  5. It was a reasonable exercise of the landlord’s discretion to carry out further exploratory works, given the complaint and the resident’s clear sense of frustration at the situation. Having completed two inspections that confirmed that the issues at the property were the resident’s responsibility to resolve, it was appropriate that the landlord closed this aspect of the complaint down. As no new information was provided by the resident in relation to her request to escalate the complaint further, it was also appropriate to not escalate further through the complaints process.

Noise reports

  1. This Service can consider complaints about how a landlord has handled or dealt with reports of ASB. These can include noise nuisance and neighbours’ disputes, even where ASB has not been substantiated. Residents experiencing these issues are often understandably distressed and upset by the problems that they report to their landlord. This Service’s role in such cases is to consider how the landlord has dealt with the resident’s reports, including whether it acted in line with its own policies and procedures, and whether its actions were reasonable and proportionate in the circumstances.
  2. For the sake of clarity, it is not the Ombudsman’s role to decide if the matters reported amounted to ASB but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably. Progressing all cases through the relevant aspects of its ASB procedure will enable a landlord to make an informed decision as to whether a reported issue amounts to ASB and if so, what action it should take in the circumstances.
  3. In this instance, the landlord’s complaint responses informed that the resident in the property above was not its tenant and it therefore could not take any action. However, it is evident from the correspondence postdating the complaints procedure that, whilst the neighbour was not an assured tenant of the landlord, they were a leaseholder of theirs. The landlord’s options for taking action against a leaseholder differ from actions it might be able to take against an assured tenant. Nonetheless, as confirmed by the landlord’s email to this Service of December 2020, it had options, including contacting the neighbour, requiring the resident to complete diary sheets and offering mediation. The landlord also referred the resident to the Local Authority Environmental Health team – this was appropriate, given the Local Authority’s statutory role in investigating noise disturbance.
  4. It is of concern that the neighbour’s residency status was not picked up during the complaints process. Taking earlier action may have resulted in an improvement in the resident’s standard of living at an earlier point. For example, mediation may have resulted in greater consideration from the neighbour in respect of any noises emanating from their property.
  5. Whilst the failures detailed above are a cause for concern, it is relevant that the resident’s contact with this Service, as detailed above, confirms that she had in fact already been aware of the landlord’s limited powers for taking action prior to the Ombudsman’s attempts to mediate the case. She also said that her main cause for concern was her reports of damage to the property, as considered above, as she tolerated the noise.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme (the Scheme), there was no maladministration in respect of the landlord’s response to the resident’s reports about cracks and water damage to the ceiling and walls of the property.
  2. In accordance with paragraph 54 of the Scheme, there was service failure in respect of the landlord’s handling of the resident’s reports about noise from a neighbouring property.

Reasons

  1. The landlord carried out inspections of the resident’s property and reasonably relied on the report of its suitably qualified staff. Having identified minor cracks and water staining at the property, the landlord acted appropriately in concluding that these were the responsibility of the resident to resolve.
  2. The landlord failed, during the complaints procedure, to identify that the upstairs neighbour was its leaseholder and therefore missed an opportunity to progress down its ASB procedure.

Orders and recommendations

Order

  1. The landlord to pay the complainant compensation of £100 in respect of the service failures identified in relation to the noise issues within four weeks of the date of this report.