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Canterbury City Council (201812829)

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REPORT

COMPLAINT 201812829

Canterbury City Council

30 March 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

  1. This complaint is about:
    1. The landlord’s handling of the resident’s reports of sound transference from the flat above.
    2. The landlord’s complaint handling.

Background and summary of events

Background

  1. The resident is the leaseholder of a first floor flat for which the landlord is the freeholder. The lease commenced on 4 January 2016.
  2. The neighbouring property, that is the subject of this complaint, is on the floor above and is also a leasehold property for which the landlord is the freeholder. The leaseholder of the neighbouring property lets the property to tenants and does not live in the property themselves.
  3. At the time of the complaint, the resident and her neighbour’s flat were managed by an Arm’s Length Management Organisation (ALMO) but has since been taken back under the management of the landlord, which is a Council.

Summary of events

  1. On 27 May 2018, the resident wrote to the landlord to complain about the level of noise from the flat above hers and that the flat above did not have adequate flooring.
  2. On 6 June 2018, the landlord responded to the resident’s report. The landlord noted that the resident had claimed that the noise was due to the quality of the carpets in the flat above being insufficient and that she had requested that the carpets be inspected. The landlord said that under the terms of their lease, the leaseholder of the flat above was responsible for fixtures and fittings, which would in include carpets. The landlord said that it was not for it to comment or decide what quality of carpets should be used.
  3. The resident wrote to the landlord again on 6 August 2018 to say that the wooden flooring in the flat above hers was rotting and that she would like it inspected. The landlord replied on 13 August 2018 stating that the wooden flooring in the flat above was not its but the leaseholder’s responsibility and that it had received no reports of structural issues with regards to the floor in the flat above.
  4. On 3 September 2018, the landlord emailed the leaseholder of the flat above the resident’s property to advise them that it had received a complaint about excessive noise coming from his flat which was being caused by rotten floorboards. The landlord asked the leaseholder to confirm if he was aware of any issues with the floorboards in his flat, particularly if they were in need of repair. The leaseholder called the landlord the same day. The landlord then wrote the resident, again on the same day, to say that the leaseholder of the flat above had confirmed that there were no issues with rotting floorboards in his flat. The landlord also said that he had advised that he had spent ‘‘considerable’’ amount of money on sound proofing, thick underlay and carpeting. Based on this information, the landlord said that it did not believe, as the freeholder, it was in breach of any covenants under the terms of the resident’s lease.
  5. On 7 October 2018, the resident wrote to the landlord to complain about the service she had received regarding her concerns about the level of noise from the flat above hers. The resident said that the noise from the flat above was ‘‘horrendous’’ and was having a detrimental effect on both herself and her one year old son who was constantly being woken by the noise. The resident said that she had been into the flat above and the carpet was not fitted, the underlay did not fit, the wooden floor was rotting, and filler had been used between the floorboards. The resident said that she had sent photographic evidence of this to the landlord on 3 September 2018. The resident also said that the lease states that the fixtures should be kept in “ good repair “ which the leaseholder of the flat above was not adhering to.
  6. In an internal email of 18 October 2018, the landlord’s Enforcement and Regulations team manager emailed the Homeownership team to confirm that the noise was not anti-social or malicious and so it would not take any enforcement action.
  7. The landlord issued its Stage 1 response 19 October 2018. The landlord confirmed that neither the carpet nor the wooden flooring in the flat above were the responsibility of the landlord. The landlord apologised to the resident that she did not receive a reply to her email of 3 September 2018. However, based on the photographs she had provided and first-hand accounts from the leaseholder of the flat above, it had no reason to believe that the floor is structurally unsound or in disrepair. The landlord concluded that it had acted appropriately in this instance and could not uphold the resident’s complaint.
  8. On 5 November 2018, the resident wrote to the landlord to express her dissatisfaction with its Stage 1 response. The resident said that the lease requires the leaseholder to keep the flat in ‘‘good tenable repair’’, yet the floorboards were rotting and had filler in between the boards. The resident also asked that she had spoken to tenants in the above flat and they had assured her that they had never spoken to anyone from the landlord with regards to the floor.
  9. The landlord responded on 7 November 2018 to confirm that her complaint had been escalated to Stage 2 and that it would aim to issue its response, which would be from a senior manager, by 19 November 2018.
  10. On 19 December 2018, the resident wrote to the landlord again regarding its response to her reports of noise transference from the flat above and the detrimental effect it was having on both her and her one year old son. The resident repeated her allegations that the flat above did not have adequate flooring, that the flooring was rotting and that filler had been used between the boards. The resident said that the landlord was making decisions without inspecting the floors or sending anyone to listen to the noise. The resident said that she had written to the landlord on several occasions but the landlord either took 14 days to reply or did not reply at all. The resident said that she had asked for a senior manager to look into this situation on 5 November 2018 but was still awaiting their response.
  11. On 25 January 2019, the landlord advised the Ombudsman that the resident’s complaint had been escalated to Stage 2. The landlord said that on 21 January 2019 it had apologised to the resident for the delay and had advised her that her complaint had been escalated to its Chief Executive to response to.
  12. In an internal email of 17 February 2019, the Complaints team requested an inspection of the flat above. The Complaints team said that the resident had complained that the noise from that flat was ‘‘horrendous’’. On 26 February 2019, the landlord emailed the resident to advise her that an inspector had been asked to visit the flat above hers in order to check the floor and make sure the floorboards and carpets were adequate.
  13. On 20 March 2019, the landlord emailed the resident to advise that an inspector attempted to visit the flat above but there was no one at home. The landlord said that a card had been left asking the occupants to contact them. The landlord also said that the inspector would call again that week and had been asked to make contact as soon as possible.
  14. On 8 April 2019, an inspection was carried out of the flooring in the flat above the resident’s property. The inspector sent his report to the Homeownership and Complaints teams on 15 April 2019. The report confirmed that:
    1. The floorboards in the kitchen were bowing in the centre of each floorboard, and the floorboards were uneven. The report said that the solution for this would be to ‘‘lift the lino’’ and then ‘‘board over the flooring in the open area in the kitchen and then relay the lino’’.
    2. There was a loose floorboard in the hallway and several loose floorboards in the lounge. The report said that ‘‘the carpets needs to be lifted in order for the floorboards to be inspected and then screwed down’’.
  15. On the 18 April 2019, in an internal email to the complaints team, the Homeownership team said that as both properties were leasehold, ceilings and floors form part of the demise and were therefore the leaseholder’s responsibility. The Homeownership team went on to explain that the landlord should not be carrying out works, but that there would not be an issue with advising the leaseholder of that flat of the landlord’s findings/recommendations.
  16. On the 23 April 2019, the resident contacted the landlord to ask for an update on the report following the inspection on 8 April 2019 and, on 3 May 2019, to ask when they were going to revisit to have a closer inspection.
  17. On 24 May 2019, the landlord wrote to the leaseholder of the flat above to advise them that the complaint about noise from his flat had been escalated to Stage 2 of its formal complaints process. The landlord forwarded the recommendation made in its inspector report and said that in its opinion the issues identified may be attributing to the noise issues. The landlord ended by saying that, as floorboards are leaseholder’s responsibility it would be grateful if they could consider the recommendation made and advise if they had any intention to carry out any of the above works.
  18. 27 June and 12 August 2019 the resident contacted the landlord for an update.
  19. On 28 August 2019, the resident wrote to the landlord regarding her complaint. The resident said that she had been complaining for over a year having sent her initial complaint letter to the landlord on 19 December 2018. The resident said that an inspection on the 8 April 2019 had stated that the flooring needed to be further inspected but no further action had been taken. The resident said that her health was suffering due to the ongoing noise from the flat above.
  20. The landlord responded on 9 September 2019 advising the resident that its Homeownership team had contacted the leaseholder of the flat about regarding the noise she was experiencing. The landlord said that it was awaiting a response from them.
  21. On 13 December 2019, the resident emailed the landlord. The resident said that she had still not heard anything from the landlord and there had been no change to the issues she had reported. The landlord responded the same day referring to an email it had sent the resident on 9 September 2019 saying that the homeownership team had contacted the leaseholder of the flat above hers and was awaiting a response from him.
  22. On 25 March 2020, the landlord wrote to the resident to explain that the person who had been dealing with her Stage 2 complaint had now left the organisation. The landlord confirmed that an inspection had taken place at the neighbouring property and that it had contacted the leaseholder of that property regarding the flooring. The landlord said that the leaseholder of the neighbouring property had advised that 9 years ago a specialist soundproofing company carried out works to his property. The landlord said that the floorboards were the leaseholder’s responsibility and therefore it would not be carrying out any works to the floorboards.
  23. Following contact from this service, the landlord emailed the resident on 15 April 2020 to acknowledge that its response of 25 March 2020 did not make it clear that that was its final response to her complaint. The landlord also provided the resident with information about referring her complaint to the Housing Ombudsman or the First Tier Tribunal which it had not provided in its response of 25 March 2020.

Assessment and findings

Relevant policies, procedures and agreements

  1. Under the terms of the lease the landlord is responsible for the structure of the building. The lease also obliges the leaseholder to keep the interior of the property in good tenable repair to permit the landlord, upon giving the requisite notice, to enter the property and examine the condition of the property.
  2. The landlord has not provided this service with a copy of her neighbour’s lease but has confirmed that all leases in the block would be the same.
  3. The Complaints policy in place at the time of the resident’s complaint, describes a two stage complaints process.
    1. At Stage 1 the policy states that the landlord will aim to respond to the complaint within 10 working day but if that is not possible, the landlord will keep the complainant informed of its progress and advise how long the investigation will take.
    2. At Stage 2 the policy states that the complaint will be reviewed by the Chief Executive (CEO) or a Director independent of the initial investigation. Again, the landlord will aim to issue its response within 10 working days but will advise and keep the complainant informed if that is not possible.

The landlord’s handling of the resident’s reports of sound transference from the flat above.

  1. The resident first reported her concerns about the level of noise coming from the flat above her on 27 May 2018. The resident did not complain that the noise was caused by inappropriate behaviour by the tenants in the flat above but rather that the level of noise was due to the condition of the flooring in the flat above. The resident has told this service that she can hear conversations in the flat above, people walking around and taking showers and the ‘‘horrendous’’ sound of the washing machine.
  2. Initially the resident claimed that the level of noise was due to the flat above not having adequate flooring. As flooring and carpeting fall within the leaseholder’s obligations in the lease it was reasonable for the landlord in the first instance to advise the resident that it could not comment or decide on the quality of the flooring used.
  3. The landlord’s Enforcement and Regulations team also considered that resident’s reports and confirmed that the noise was not anti-social or malicious and so it would not take any enforcement action.
  4. Following further reports from the resident on 6 August 2018, stating that the wooden flooring was rotting, it was again reasonable for the landlord to advise the resident that the leaseholder of the flat above was responsible for floor coverings. As that was the case it was appropriate for the landlord to email the leaseholder of the flat above, on 3 September 2018, to inform him that it had received a complaint and to ask if he was aware of any of the issues raised by the resident. The landlord spoke to the leaseholder of the flat above the same day and then advised the resident that he had told them that there were no issues with rotting floorboards in his flat and that he had already carried out soundproofing works and laid thick underlay and carpet.
  5. The resident continued to contact the landlord about the level of noise transference from the flat above through October, November and December 2018. In her correspondence with the landlord on 19 December 2018, the resident raised further concerns that the landlord was making decisions without inspecting the floors or sending anyone to listen to the noise. On 17 February 2019, following contact from this service about the progression of the resident’s complaint, the landlord’s complaints team requested an inspection of the property above the resident’s flat.
  6. Within four weeks of the request for an inspection of the flat above, an inspection attempt was made but there was no one at home. The inspector left a card and asking the tenants to contact the landlord and within a further two weeks, on 8 April 2019, the inspection was carried out. The inspection identified the floorboards in the kitchen were bowing in the centre of each floorboard, and the floorboards were uneven. The inspection also identified that there was a loose floorboard in the hallway and several loose floorboards in the lounge. However, the inspection did not find any evidence to support the resident’s claims that the floorboards were rotten nor did it identify any structural repairs for which the landlord was responsible.
  7. As the landlord was not responsible for the repairs to the flat above, it was appropriate for it to send the findings and recommendations from the report to the leaseholder of that property, which it did on 24 May 2019. As the landlord had stated that in its opinion the issues identified may be attributing to the noise issues it was also appropriate for the landlord to ask the leaseholder to confirm what actions, of any, they would be taking in response to the recommendation made in the report. However there is no evidence of the landlord doing so at that time.
  8. Through June and August 2019 the resident chased the landlord for an update and on 9 September 2019, the landlord wrote to the resident to say that it was still awaiting a response from the leaseholder in the flat above. The landlord gave the same response following further contact from the resident on 13 December 2019.
  9. In its final response the landlord confirmed that the leaseholder of the flat above had been in contact and said that specialist soundproofing works had been carried out at his property 9 years ago. It was appropriate for the landlord to forward the findings of the inspection to the leaseholder of the flat above, as the report did not identify any serious concerns about the condition of the property, nor any structural repairs for which the landlord was responsible, it was also reasonable for the landlord to inform the resident that it would neither be pursuing, nor carrying out any works itself, to the property above.
  10. Following the landlord’s final response the resident continued to raised concerns about the level of noise from the property above and suggested that the landlord was failing to enforce the lease of the leaseholder of the flat above in regard to his obligation to keep the interior of the property in good tenable repair. Any matters relating to alleged breaches of a lease would be for the courts, and not this service, to decide upon and so has not been considered in this investigation.

The landlord’s complaints handling

  1. The landlord’s complaints policy states that the landlord will aim to issue its response to complaints at Stage 1 within 10 working days.
  2. The resident logged a formal complaint with the landlord on 7 October 2018. The landlord issued its Stage 1 response 10 working days later, in accordance with its complaints policy.
  3. On 5 November 2018, the resident wrote to the landlord to express her dissatisfaction with its Stage 1 response. The landlord wrote the resident two days later to confirm that her complaint had been escalated to Stage 2 and would be responded to by 19 November 2018.
  4. The resident chased the landlord’s Stage 2 response in December 2018. On 21 January 2019, the landlord apologised to the resident for the delay and advised that the complaint had been escalated for its CEO to respond to.
  5. Despite further contact from the resident regarding her complaint, the landlord did not issue its Stage 2 and final response until 25 March 2020, over four months after the landlord had written to the resident to acknowledge her escalation request.
  6. In its final response the landlord said that the delay was due to the person who had been dealing with the resident’s Stage 2 complaint having left the organisation. Whilst that may have been the case, it does not provide a reasonable explanation as to why it took over four months for it to provide a response, which its policy states it will aim to issue within 10 working days. Nor does it explain why, if it were unable to issue its response, it did not act in accordance with its complaints policy and keep the resident informed of its progress and advise how long the investigation will take.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of its response the resident’s reports of sound transference from the flat above.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaints handling.

Reasons

  1. The resident made it clear that she did not believe the noise to be due to Anti-social behaviour but rather the quality and condition of the floor above. As the leaseholder of the flat above is responsible for the interior of his flat, including the maintenance and repair of the flooring, it was reasonable in the first instance for the landlord to pass the resident’s concerns to him for his attention. Following further reports from the resident, the landlord initiated an inspection of the property above the resident’s flat on 8 April 2019, to establish the condition of the flooring and to identify if there were any structural repairs for which it was responsible. Given that the inspection report did not identify either any structural issues, which the landlord would be responsible for, or any serious repair issues it was appropriate for the landlord to send a copy of the report to the leaseholder of the flat above for his attention and to say that it would not be taking any further action.
  2. The landlord responded to the resident’s complaint appropriately at Stage 1. However, despite the resident contacting the landlord to chase it Stage 2 response, the landlord did not issue its Stage 2 response until more four months after it had written to the resident to acknowledge her escalation request. This was not appropriate nor in accordance with the landlord’s complaints policy.

Orders and recommendations

Orders

  1. That within 6 weeks of the date of this determination the landlord pay the resident a total of £50 compensation for its complaint handling failure.
  2. The landlord shall contact this Service within 6 weeks of the date of this determination to confirm that it has complied with the above order.