Nottingham City Council (202007047)

REPORT

COMPLAINT 202007047

Nottingham City Council

31 July 2023

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:
   1. The resident’s reports of noise from the upstairs property.
   2. The resident’s reports of repairs to his toilet.
   3. The resident’s request to be rehoused.
   4. The resident’s reports of a leak.
2. The Ombudsman has also considered the landlord’s complaints handling.

Jurisdiction

3. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
4. After carefully considering all the evidence, in accordance with paragraph 42 (a) and 42(k) of the Housing Ombudsman Scheme, the following aspects of the complaint is outside of the Ombudsman’s jurisdiction.
   4. The landlord’s handling of the resident’s reports of a leak.
   3. The landlord’s handling of the resident’s request to be rehoused.

5. Paragraph 42(a) provides that the Ombudsman cannot consider complaints “that are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”  This Service has not been provided with evidence that the resident’s reports of a leak were addressed as part of the landlord’s complaints procedure. As such, this aspect of the complaint is not within the Housing Ombudsman’s jurisdiction and cannot be considered as part of this investigation.
6. Paragraph 42(k) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion: “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.

7.  In this case, the resident’s complaint regarding rehousing concerns the landlord’s decision regarding his application for a transfer and his dissatisfaction with the allocation criteria and the landlord’s decision regarding banding. This is not a complaint that this Service can investigate because this falls properly under the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). This is because the LGSCO considers complaints about local authorities handling of decisions and complaints regarding a choice-based lettings scheme. The complaints considered by the LGSCO include complaints about local authorities handling of housing allocations, under the Housing Act 1996 Part VI. They consider a landlord’s handling of applications for re-housing that meet the reasonable preference criteria, considering complaints about the assessment of such applications, how priority is awarded under the scheme, banding or a decision that the application does not qualify for reasonable preference.

8.  As such, this aspect of the resident’s complaint is not within the Housing Ombudsman’s jurisdiction under paragraph 42(k) of the Housing Ombudsman Scheme. It is open to the resident to submit his complaint to the LGSCO along with this report in support of the finding that the complaint is within the LGSCO’s jurisdiction to investigate. 

Background and summary of events

Background

9. The resident is a secure tenant of the landlord. His tenancy began in April 2020.  At the time of the complaint, the resident occupied a one-bed flat in a three storey block of flats. The flat is located on the ground floor. The resident has a mental health condition and some physical health issues.

10.  The landlord’s repairs policy provides that emergency repairs, those that pose a serious risk to health and safety, should be attended to and made safe within 24 hours, with substantive repairs completed within three working days. Out of hours repairs should be responded to within 24 hours. Priority, or non-urgent repairs, should be undertaken within 30 working days. The landlord’s Repairs and Maintenance Service Standards document provides further information about the repairs service it provides to its residents. In relation to priority repairs, it states that “We aim to attend these repairs at the first available appointment at your convenience, typically within 7 days or as a maximum within 30 working days (if the item is a renewal) of them being reported to us and to complete as many of these as possible at the first visit (Right First Time). Right First Time can be defined as a repair that is completed by the operative without the need to return a second time.” Blocked toilets and leaks from cisterns are categorised as emergency repairs. 

11. During the period the resident’s complaint relates to, the landlord was updating its complaints policy to comply with the Ombudsman’s Complaint Handling Code. The complaint procedure in place at the time the resident’s complaint was raised allowed a resident the option of having a simple complaint dealt with informally or a more complex complaint dealt with as an investigation. If the resident was unhappy with the outcome of the investigation they would be directed to a designated person or, after 8 weeks, this Service. In February 2021, the landlord’s policy was amended and the landlord now operates a two stage complaints policy. Stage one complaints are responded to within 10 working days. Stage two complaints are responded to within 20 working days. 

12. The landlord operates a discretionary compensation policy. When calculating levels of compensation the landlord will consider whether the impact of the service failure was low, medium or high. The landlord will also take into account how the situation was handled and whether the resident had to spend time, effort or inconvenience in pursuing an outcome to the event. 

13. The landlord’s anti-social behaviour policy states that a disturbance caused by general household noise will not usually be considered anti-social behaviour.  Therefore the remedies available to the landlord in addressing anti-social behaviour would not be appropriate in instances of general household noise. 

Scope of the investigation

14. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.

15. The resident has stated that he suffered a significant deterioration in his mental health over the  period that the complaint relates to. While the Ombudsman extends every sympathy to the resident for the difficulties he has endured in relation to his health, it is beyond the remit of this Service to make any findings in relation to a causal link between the condition in his property and the deterioration in his health. 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 a resident’s health. Neither can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim. 

Summary of events

The resident’s reports of noise from the upstairs property

16. The resident states that he made a number of reports about noise issues to the landlord shortly after he moved into the property in April 2020. He said that the building had poor sound insulation and he was disturbed by the noise of his upstairs neighbour’s washing machine and his neighbour walking around his flat at night. The resident said that no further action was taken by the landlord in relation to these reports. 

17. The resident reported an issue with noise again to the landlord on 21 August 2020. His landlord contacted him on 24 August 2020 to discuss his reports and it was established that the noise from his neighbour’s property was not of an anti-social nature but general everyday noise. As the resident considered that the sound insulation between flats was poor, the resident told the landlord that he preferred to speak to his neighbour first before the landlord intervened. 

18. The landlord contacted the resident again on 7 September 2020 in response to his further reports of noise. The resident said at this time that he did not wish for his report to be treated as a complaint about his neighbour. The landlord contacted the neighbour to discuss the issue and recorded that the neighbour’s property was not carpeted. The resident was informed by the landlord that the noise issue would be raised with its repairs team who would attend to do an inspection to determine if there was anything that could be done to reduce noise transference between the properties. 

19. The resident contacted the landlord two more times in September 2020 to report that he was unable to sleep due to the noise from the flat above. The resident later stated that his mental health had been impacted so significantly that he was signed off sick from his job.

20. The resident was notified by the landlord that the repairs team would be attending on 2 October 2020 to undertake an inspection. The landlord had agreed to contact the resident after the appointment with an update but did not do so. The resident states that, in response, he raised a complaint with the landlord about its communication with him but did not receive a response. It is noted that a second complaint was made by the resident around this time regarding the noise from the upstairs flat. A copy of this complaint has not been provided to this Service.

21. On 12 October 2020 the resident contacted this Service as he had not received the landlord’s response to his complaint about the landlord’s communication. This Service contacted the landlord on the resident’s behalf and was informed that a complaint would be raised.  

22. The landlord wrote to the resident on 13 October 2020 to acknowledge his complaint and advised the resident that it sought to respond by 3 November 2020. 

23. On 26 October 2020 the landlord issued its complaint response:

1. It apologised to the resident for its poor communication and for failing to provide him with an update on 2 October 2020 following the inspection of the upstairs flat. The resident was informed that this had been raised with staff and going forward it would ensure that staff return calls in a timely manner;

2. It noted that the repairs team had since contacted the resident to provide an update.

24. The landlord wrote to the resident on 5 November 2020 following a discussion that had taken place in which the resident expressed that he was unhappy that no formal complaint had been raised regarding his complaint about noise. The landlord had stated at the time of the discussion that a complaint would be raised regarding the noise but it stated in the letter that this information had been given in error. It explained that it would instead treat this as a service request as the noise issue had not been previously reported to the repairs team. The landlord apologised to the resident for providing incorrect information during the discussion.

25. There was a further conversation between landlord and resident on 28 January 2021 during which the resident said that the noise was having a significant impact on his mental health. He said there had been no progress to date regarding repairs to fix the flooring upstairs.

26. The resident wrote to this Service on 8 February 2021 to report that the works had now been undertaken by the landlord to the neighbour’s floor which had helped to reduce the noise, but he was still disturbed by his neighbour walking around upstairs at night. On the same day the resident contacted the landlord to request a plan of action to address the ongoing issue. 

27. On 26 February 2021 the landlord responded to an enquiry from this Service regarding its complaint handling. It stated that there had been three complaints made by the resident: 

1. The first complaint was in relation to the landlord’s communication in response to reports of noise. This had been addressed and closed by the landlord and there had been no request for an escalation.

2. The second complaint was in relation to noise from the upstairs property but the landlord has spoken to the resident at this time to advise that as this had yet to be raised as a service request, they needed the opportunity to resolve it before it could be taken as a complaint. The resident was told that it he was still unhappy he could raise a complaint.
3. The third complaint was in relation to the leak from the toilet. The landlord had responded to this but the matter remained unresolved. An escalation was requested but early intervention by the repairs team resolved the issue on the same day. The landlord said that it would make further contact with the resident to enquire what further actions he wished the landlord to take.

28. In March and April 2021 the landlord was informed by the resident on a number of occasions that his mental health continued to deteriorate because of the noise which was impacting upon his ability to sleep. In response the landlord approached health services to request that they contact the resident. 

29. Following an enquiry from this Service on 19 April 2021, the landlord responded that they had been in regular contact with the resident and had carried out repairs as requested and while they have discussed further options with him to reduce noise, he said that he wanted to prioritise a move from the property and they were assisting him with a property transfer. 

30. The resident was contacted by the landlord later in April 2021 and he was informed that now that his introductory tenancy had become a secure tenancy they would be able to support him with a housing transfer application. There was some delay with this while the resident completed his housing application. An application was submitted on 12 May 2021 to the landlord’s senior management panel requesting that the resident be awarded band B on the landlord’s allocations scheme

31. The neighbour in the upstairs flat died suddenly during the month of April 2021 which the resident found extremely distressing as he said that, due to the noise transference between properties, he could hear the emergency services when they attended the property. The upstairs flat was vacant between May and August 2021.

 32. On 12 May 2021, this Service contacted the landlord on the resident’s behalf to request that a formal complaint be raised in relation to the noise issue. The landlord acknowledged the complaint the next day and agreed to respond by 27 May 2021.

33. On 13 May 2021 the landlord issued its stage one response to the resident’s complaint about the noise. The landlord said that its staff were working with the resident to secure alternative accommodation for him.

34. The resident was unhappy with the wording of the landlord’s stage one response which he felt inaccurately recorded the subject of his complaint. The landlord conceded that it had recorded the complaint incorrectly for which it apologised and sent an amended version of the response letter on 30 July 2021. 

35. On 25 June 2021 the resident was awarded a band B priority on the landlord’s allocations scheme for a period of six months with an effective date of 18 May 2021.

36. The resident wrote to the landlord in July 2021 and reported that had now been diagnosed with a sleep disorder which he said was linked to his anxiety.  Some weeks later, in August 2021, a new tenant moved into the upstairs flat and as a result the noise issues resumed and the resident reported a deterioration in his mental health to his landlord. He was referred to health services and assistance was put in place by the landlord to support him to bid for properties. The resident was offered a temporary decant by the landlord at this time but this offer was not taken up by the resident.

37. A new application was submitted on 2 September 2021 to the landlord’s senior management panel requesting that the resident be awarded band A on the landlord’s housing register and a direct offer of a property given his ongoing welfare needs. The application was supported by the police and health services.

38. On 7 September 2021 this Service wrote to the landlord on the resident’s behalf to request that it escalated his complaint about the noise in the property. The resident had informed this Service that he had asked for his complaint to be escalated verbally and also via text a number of times since he received his stage one response but had yet to receive a stage two complaint response. This Service requested that the landlord issue a stage two response within 20 working days.

39. The landlord wrote to the resident on 9 September 2021 to inform him that it had not previously received a request for an escalation of his complaint. It said that while the resident had made further contact following its stage one response, expressing dissatisfaction and asking for action, escalation was not appropriate at the time as the landlord must be allowed time to put resolutions in place. However, following the intervention of this Service, the landlord had agreed to escalate his complaint to stage two.

40. On 29 September 2021 the panel rejected the resident’s application for band A priority and a direct offer on the basis that he did not meet the criteria. The resident was informed of the panel decision by telephone on 29 September 2021. The resident and landlord agreed that, going forward he would bid on properties each week and the landlord would contact him every fortnight to see if the bids had been successful.

41. On 6 October 2021 the landlord issued its stage two complaint response in relation to the resident’s complaint about noise:

1. It said that the resident’s initial reports of noise were made in August 2020 at which point steps were taken to try to resolve the issue with the neighbour.

2. In October 2020, a repair appointment was attended and insulation between the properties was investigated and found to be of the usual standard for a property of that type.
3. In March 2021 the landlord agreed to submit a management recommendation to request increased priority for a transfer to a one bedroom property on a top floor to reduce the potential for noise disturbance.
4. Further enquiries were also made regarding works to the property however it was determined that no work was required as there was no legal requirement to retrospectively bring properties up to current buildings regulations in terms of noise standards.
5. In April 2021 a management recommendation was submitted. At the end of the month the case was reviewed and it was noted that it was waiting for the resident to submit a housing application in order to process the recommendation.
6. On 18 May 2021 the management recommendation was approved for band B on condition that the resident set up a payment plan to clear arrears
7. On 24 August the landlord was informed that the resident was experiencing a medical crisis. Arrangements for an emergency decant were offered to the resident but was not taken up.
8. On 22 September 2021 the management panel met and considered the request for a direct offer but determined that the resident was not eligible.  The resident was informed that the landlord would be asking for this decision to be reviewed.

42. The resident wrote to the landlord in response to its stage two complaint, on 11 October 2021, querying the information included in the complaint and expressing the view that the landlord’s findings were “dismissive and inaccurate”. He said that he wished to pursue the matter further.

43. The resident received an email from the landlord on 14 October 2021 providing assurances that the matter of his housing had not been closed. It said that it had been working with the police, medical professionals and other agencies and were aiming to submit a further report to senior management panel which was due to be held the following Tuesday to consider whether additional priority could be awarded for rehousing. It hoped to provide an update after 22 October 2021. 

44. The resident was informed by letter dated 2 November 2021 that the panel had now approved his application to join band A priority on the housing register and a direct offer request. The landlord told the resident that they were now looking for a suitable property for him. Shortly after this, the resident was offered a one-bedroom property which he accepted and moved to in the New Year.

The resident’s reports of repairs to his toilet.

45. On 13 October 2020 the landlord’s repairs log show that an emergency repair was raised to repair the toilet which was attended to the following day. The repair was raised again on 23 October 2020 to investigate and repair a possible leak on the condensing pipe connection to the soil pipe. The landlord’s repairs log record that this was repaired on 26 October 2020.

46. On 18 November 2020 the resident reported an emergency repair with his toilet. Two appointments were raised but contractors did not attend. Contractors attended the following day. 

47. At some point between 18 November and 11 December 2020, the resident raised a complaint about missed appointments to repair his toilet adding that when the operative did attend they were unprofessional and his toilet seat had been broken while the operative was undertaking the repair. A copy of this complaint has not been provided to this Service.

48. A further repair was raised on 27 November 2020 to renew the toilet seat and this was recorded as completed on 3 December 2020. 

49. On 11 December 2020 the landlord issued its complaint response:

1. It said that there was a delay in attending the appointment on the 18 November due to the amount of emergency orders raised that day.

2. It stated that the resident had been given conflicting information about when an engineer would be attending and the landlord apologised for any inconvenience caused.
3. It reported that the allegations about the operative had been raised with the contractors. The landlord apologised for any inconvenience caused and provided assurances that feedback would be provided to the operative regarding professionalism.
4. It confirmed that it has now replaced the toilet seat and the resident had said that the repair had been completed to his satisfaction.

50. The resident asked to escalate the complaint about his toilet on 19 January 2021 as he was informed during the engineer’s initial visit that the toilet had been repaired but that it was leaking again. An emergency repair was raised and attended to the same day. A follow-on appointment was raised and recorded as having been completed on 27 and 28 January 2021.

51. On 3 March 2021 an emergency repair was raised regarding the toilet leak which was attended to the following day. On 4 March 2021 a job was raised to reroute the condensate pipe from the toilet and this repair was marked on the landlord’s repair records as closed on 5 March 2021.

52. On 19 April 2021 in response to contact from this Service, the landlord wrote to advise that it had not escalated the resident’s complaint about his leaking toilet on 19 January as works had been taken to repair the toilet that day. However, it would now provide a further written response to the resident and consider redress if necessary. 

53. The landlord issued its stage two complaint response in relation to the resident’s leaking toilet on 23 April 2021. In its response the landlord stated that:

1. There had been a delay in responding to the resident’s complaint as it had understood that the resident did not wish to progress with the complaint escalation but it has since noted that this was incorrect.

2. When the resident first reported that his toilet required repair on 18 November 2020, it was unable to attend that day due to high demand for emergency repairs. However, it sent a contractor to attend the following day who repaired a pan connector at the rear of the toilet. The landlord apologised for this delay and offered a goodwill payment of £50 for the missed appointment.
3. It attended a second time on 18 November 2020 to fix a leak in a condensate pipe which was resolved the same day. It was noted on the date of the appointment that the toilet seat was broken and this was then replaced.
4. The landlord advised that it was reviewing how they resource emergency repairs works in order to reduce delays in times of high demand.

54. On 30 July 2021 an emergency repair regarding the leaking toilet was raised and repaired on 30 July 2021. Works were raised on 10 August 2021 to unblock the toilet and the landlord’s records show that this was repaired the following day. Works were raised again on 20 August 2021 and it was noted that the toilet was constantly blocking due to no outlet pipe. This repair was recorded as completed on 10 September 2021. On 14 September 2021 the resident contacted the landlord to express thanks that someone had contacted him that morning to check that works had been completed and to explain the problem to him. He felt reassured that the job had been resolved. 

55. On 14 September 2021 the landlord issued a stage one investigation letter regarding multiple repair visits regarding his toilet. The landlord stated that it had dispatched the wrong trades to carry out the repair to the toilet, instead of a plumber attending, the planners dispatched a gas engineer. The issue had been resolved as of Friday 10 September 2021 and the repair was completed correctly. The landlord apologised for this.

56. On 6 October 2021 a repair was raised regarding the leaking toilet. Another repair was raised on 8 December, 13 December and 15 December when a repair was raised to relocate the condensate pipe which was attended to on 17 December 2021 and the repair was completed.

Assessment and findings

The landlord’s handling of the resident’s reports of noise from the upstairs property

57. The resident reported that he first raised the issue of noise with the landlord shortly after his tenancy started in April 2020. He said that he made further reports between April 2020 and August 2020 but no action was taken by the landlord in response. This was a missed opportunity by the landlord to take action at an early stage to consider the resident’s reports and to explore what action could be taken in response.

 58. When the resident reported the noise again to the landlord in August 2020 the landlord’s notes record that the resident wanted to speak with his neighbour first before the landlord intervened. The resident had conceded that the noise was general household noise and not deliberate noise nuisance. It was appropriate that the landlord did not make further enquiries of the neighbour at this time if the resident had requested it did not do so. Further, it would have been inappropriate for the landlord to treat the resident’s reports as it would an anti-social behaviour noise nuisance complaint as it was agreed that the issue was noise transference between properties and therefore not deliberate.

59. When the resident raised this again with the landlord in early September 2020, the landlord contacted the resident’s neighbour in an effort to mediate and the resident was informed by the landlord that the repairs team would be asked attend the neighbour’s property to investigate and report on any works that could be undertaken to reduce noise transference. This action was reasonable and proportionate.

60. The resident made two further reports to the landlord in September 2020 regarding the impact of the noise on his mental health. In response to the resident’s reports, it would have been appropriate for the landlord to have considered what it could do to support the resident either by linking him in with tenancy support services or by seeking the resident’s agreement to liaise with his GP or mental health services. The records provided to this Service by the landlord do not evidence that it did so at this time.

61. Following attendance by the repairs team on 2 October 2020, it is regrettable that the landlord did not update the resident as agreed. This was addressed by the landlord in its complaint response letter dated 26 October 2020 in which it apologised and confirmed that going forward this would be addressed with staff.

62. It is clear that the resident was frustrated about the time it had taken for the landlord to undertake works to the neighbour’s flooring to address the noise transference, however as the works were arranged between the landlord and a third party, we do not know whether the delays were caused by the landlord, neighbour or other factors and therefore this Service can make no finding in relation to this.

63. Works were completed to the flooring in the neighbour’s property in early February 2022. There were investigations in relation to the underfloor insulation, and it was determined that it was adequate for a building of its type and age, and there was no legal duty for a landlord to retrospectively bring buildings up to the standard of current building regulations.

64. In the Ombudsman’s opinion, the landlord took proportionate steps to explore what it could do to reduce noise transference in the property and all available options, including discussion with the neighbour, works to the flooring and making enquiries about underfloor insulation, were considered. The landlord had a discussion with the neighbour about putting rugs or carpet down on the wooden flooring to assist with sound insulation, however, in the absence of a term in the tenancy agreement prohibiting hardwood flooring, this was not something that could be enforced. There were some steps the landlord could have taken to reduce the impact of noise from the upstairs flat such as providing anti-vibration mats for under white goods in the neighbour’s property, however this would not have resolved the issue of noise transference in the resident’s bedroom.

65. After April 2021, when the resident became eligible to apply for a transfer, the landlord focused its efforts on supporting the resident’s request for a move to another property. It took a proactive approach by submitting applications to the senior management panel for higher banding on the housing register. Given the pressures on social housing, the landlord also managed the resident’s expectations by providing realistic timescales for a successful property bid dependent on banding. It also agreed to liaise with the resident on a fortnightly basis to monitor his bids on their choice-based lettings system.

66. In August 2021 in response to the resident’s reports that he sought urgent medical treatment for his mental health, the landlord offered the resident a temporary decant to assist him with a move in the short term until more suitable permanent accommodation was identified. While this offer was rejected by the resident, in making the offer the landlord demonstrated that it had adopted a solution-focused approach in responding to the resident’s immediate needs.  

67. The landlord’s communication with the resident, however, was lacking. The resident repeatedly sought answers from the landlord regarding how it proposed to resolve the noise issue, involving local councillors and this Service when he felt that his complaint was not being prioritised. Information was not always shared with him in a timely manner. Better communication with the resident would have helped manage his expectations of the service and provide a clear picture of the actions that were being taken to address the issue. Further, although the landlord did link in with other services supporting the resident, it would have been appropriate for the landlord to put together an action plan at an earlier stage, particularly when it was clear from the resident’s communication that his mental health was deteriorating. This would have ensured that all services were kept up to date about what was happening. It would also have provided some reassurance to the resident that matters were in hand.

68. After careful consideration, this Service has identified that there were service failures in the landlord’s handling of the resident’s reports of noise from the upstairs property. There was a missed opportunity to address the problem at an early stage which caused detriment to the resident. Further, the landlord’s communication with the resident was lacking as information was not always communicated to him clearly or shared with him in a timely manner.

69. After August 2020, it is the Ombudsman’s view that the landlord’s actions to investigate the resident’s reports were proportionate. When it determined that the issue was noise transference and not anti-social behaviour, it then took appropriate action by raising repairs and mediating with the neighbour. When the landlord had exhausted options in relation to repairs, it was proactive in pursuing a transfer application on behalf of the resident, which is what the resident had informed the landlord he wanted it to do.

The landlord’s handling of the resident’s reports of repairs to his toilet

70. Over the period of just over a year, the records show that the landlord attended on 14 occasions to repair the resident’s toilet. The repair was first raised with the landlord in October 2020 and completed to the resident’s satisfaction on 17 December 2021.

71. Although the landlord responded each time within its target timescales for emergency repairs, the works undertaken did not resolve the issue. The landlord had an obligation to identify the cause of the problem and to carry out suitable repairs to permanently resolve this. Some repairs works and investigations were undertaken, however the landlord failed to treat the issue as an ongoing problem. This did not accord with the landlord’s Repairs and Maintenance Service Standards ‘Right First Time’ approach in which it states the landlord aims to resolve repairs at first visit. Callouts were actioned as emergency repairs and while follow-up appointments were raised, they were attended to and closed as having resolved the problem only for the resident to raise a further reports sometimes days later. Frequent callouts should have alerted the landlord that this was a complex issue warranting further investigation.

72. It was apparent that there was poor management of the repairs by the landlord. In this instance, a lack of co-ordination and communication resulted in contractors undertaking inspections relating to the same repair without follow-on works resolving the issue and, on one occasion, the wrong contractor being sent to the appointment. The landlord’s records indicate that the cause of the problem was identified by contractors on 4 March 2021, however these works were not completed until December 2021. This was an unreasonable delay.

73. A landlord should establish good internal communication procedures so that matters are followed up, outcomes recorded and post-inspections undertaken, in order to facilitate an effective and responsive service to its residents. Overall there was a lack of accountability and oversight by the landlord.

74. The landlord’s communication with the resident was also unsatisfactory. The resident was put to time and effort in repeatedly reporting a blocked toilet before works were progressed to completion. Where the wrong contractor was sent or an appointment missed, this would have added to the resident’s frustration and dissatisfaction. There was only one occasion recorded when the resident was contacted by the landlord following an appointment to check that works had been completed satisfactorily.

75. The resident was experiencing a decline in his mental health at this time. Being without toilet facilities would have caused him significant distress and inconvenience, coupled with the impact on his dignity. The landlord has provided no evidence that consideration was given to offering the resident a temporary solution, such as a chemical toilet, while his toilet was out of use. The resident also said that he could not have visitors or guests at times when he did not have a functioning toilet, which would have added to his isolation.

76. After careful consideration, the Ombudsman’s view is that the threshold for a finding of maladministration has been met concerning this aspect of the resident’s complaint. The resident’s toilet was in disrepair for in excess of 12 months with interim repairs proving ineffective. During this time, the resident was struggling with deteriorating mental health. The delays with this repair would have compounded his distress. While it is recognised that the landlord offered the resident £50 in compensation at stage two of the resident’s complaint, in the Ombudsman’s opinion this did not go far enough. Consequently, this Service orders that the landlord pays an amount of £600 in compensation to the resident, which is within the range of compensation the Ombudsman can award for maladministration, particularly where there are aggravating factors, such as when a particularly vulnerable resident is impacted. 

The landlord’s complaints handling

77. Member landlords are required to comply with the Ombudsman’s ‘Complaint Handling Code’ which was published in July 2020. The Code provides that stage one complaints should be responded to within 10 working days of receipt, with stage two complaints within 20 working days. The timescales for response in the landlord’s Complaint Policy in force at the time of the resident’s initial complaint were not compliant with the Code.

78. The landlord’s complaints policy was updated in February 2021 to comply with the Ombudsman’s Complaint Handling Code. This coincided with the passage of the resident’s complaints through the landlord’s complaints procedure. It is necessary, therefore, to consider the complaint that was addressed in accordance with the criteria in the landlord’s pre-February 2021 complaints procedure and the complaints dealt with under the new complaints procedure.

79. While it was in accordance with the landlord’s complaints policy that the resident’s initial complaint regarding noise was treated as a service request for repairs, a complaint should have been raised once it was clear that the issue persisted, works were delayed or when the resident continued to express dissatisfaction with the landlord’s response to the noise issue. How the landlord dealt with the complaint, either as a ’fix and resolve’ or an ‘investigation complaint’ in accordance with its then complaints procedure, should have been agreed between the landlord and resident. The works had been undertaken by the landlord to the neighbour’s flooring in February 2021 and the resident continued to express dissatisfaction in relation to the noise after this date.

80. It was not until this Service intervened in May 2021 that the landlord agreed to issue a response at stage one of its revised complaints procedure, which it did the following day. The landlord’s revised complaints procedure states that complaints can be made by email, in writing, by telephone, in person or by Facebook or Twitter. Therefore the landlord’s failure to accept a complaint until May 2021 was not in line with its policy and constitutes service failure.  

81. Further, the resident stated that he had contacted the landlord between May 2021 and September 2021 by various means to request that his complaint be escalated but this was never actioned. The landlord stated in correspondence with this Service that it would not have escalated the resident’s complaint at this time as it felt that this was not appropriate as the landlord needed to be given time to put interventions in place. The landlord provided a similar response to this Service when the resident’s request to escalate his complaint in January 2021 regarding the repairs to his toilet had not been actioned by April 2021.

82. While the landlord’s complaints procedure does provide that it can refuse to escalate a complaint, it is silent as to the reasons a landlord can rely on for not doing so. Paragraph 4.13 of the Ombudsman’s Complaint Handling Code provides that “Where a landlord decides not to escalate a complaint it should provide an explanation to the resident. It should make clear that its previous response was its final response to the complaint and provide information on referral to the Housing Ombudsman”. It is not evident, from the information provided to this Service, that this was done.  

83. A complaint procedure should be fair, accessible and transparent so that a resident is clear as to what constitutes a complaint and the grounds under which the landlord will consider a complaint or a complaint escalation. In the Ombudsman’ opinion, the resident had reasonable grounds to escalate his complaint if he was dissatisfied with the landlord’s actions. If the landlord felt that the complaint did not have merit, it had the option not to uphold its stage two complaint in response. In failing to escalate the resident’s complaint in a timely way, the landlord unreasonably prolonged the complaints procedure which would have added to the residents distress and denied the resident the opportunity to make a referral to this Service at an earlier stage. 

84. In summary, the resident needed to spend considerable time and trouble in navigating the landlord’s complaints procedure. On more than one occasion, the landlord unreasonably failed to raise or escalate a complaint, only agreeing to do so following the intervention of this Service. Consequently, it failed to act in accordance with either its policy or the Ombudsman’s Complaint Handling Code. These service failures were not addressed in any of its complaint responses. As such the landlord is ordered to pay additional compensation of £300 to the resident in recognition of the distress and inconvenience caused to him, particularly in light of his vulnerabilities, as a result of the identified complaint handling failures.

Determination (decision)

85. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its handling of the resident’s reports of noise from the upstairs property.

86. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s reports of repairs to his toilet.

87. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of its complaint handling. 

Reasons

88. The landlord then took reasonable and proportionate action by raising repairs, mediating with the neighbour and supporting the resident with a transfer to another property. The landlord also liaised appropriately with health services and the police when the resident reported a deterioration in his mental health.  However, there was an initial delay in the landlord responding to the resident’s reports of noise which prevented action being taken at an earlier stage and its communication with the resident was lacking.

89. The delays in identifying the source of the problem with the resident’s toilet meant that he was without the use of toilet facilities periodically throughout the pandemic when government restrictions meant that people were confined to their homes. The resident had to spend time and effort in following this up with the landlord which was particularly distressing for him given his mental health needs. 

90. The landlord did not raise or escalate the resident’s complaint when requested. It did not provide the resident with written reasons as to why the complaint had not been escalated or signpost the resident to this Service. As a result, the resident was not able to progress through the landlord’s complaints procedure in a timely way. 

Orders and recommendations

Orders

91. Within four weeks of the date of this determination the landlord is to write to the resident to apologise for the service failures identified in this report.
92. Within four weeks of the date of this determination the landlord is ordered to pay the resident a total of £975 which comprises of:
    1. £75 in recognition of the impact on the resident due to delays in responding to his initial reports of noise.
    2. £600 in recognition of the delays, time, trouble, distress and inconvenience caused the resident by the landlord’s failure to repair his toilet. This includes the landlord’s previous offer of £50 which can be deducted from the sum above it this has previously been paid to the resident.
    3. £300 in recognition of the distress, inconvenience, time and trouble caused to the resident by the landlord’s handling of the associated complaint.

93. Within ten weeks of the date of this determination the landlord is to review its complaints policy with reference to the Ombudsman’s Complaint Handling Code to ensure that it provides clarity as to when it can refuse to consider or escalate a complaint and how this is communicated to residents.
94. The landlord should reply to this Service within the timescales above with confirmation of compliance with the above orders.

Recommendations

95. The landlord should consider reviewing its procedures so that when repeat repairs are raised where initial attendance does not resolve the problem, this is flagged for further investigation.
96. The landlord should consider reviewing its policy/procedures in relation to noise complaints with reference to the recommendations in the Ombudsman’s Spotlight Report on Noise Complaints (October 2022).