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Octavia Housing (202007247)

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REPORT

COMPLAINT 202007247

Octavia Housing

16 February 2021


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the 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:
    1. The landlord’s response to the resident’s reports of noise disturbance from a neighbouring property;
    2. The landlord’s response to the resident’s reports of damage caused to the property by works carried out at a neighbouring property;
    3. The landlord’s handling of repairs to the resident’s boiler; and
    4. The landlord’s handling of communal repairs and maintenance, including to the communal entrance door lock and the use of scaffolding.

Jurisdiction

  1. 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.
  2. Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints about matters that were not brought to the landlord’s attention as a formal complaint within a reasonable period, which will normally be within 6 months of the matters arising.
  3. This complaint raises concerns about the landlord’s response to events that occurred in 2017, including leaks affecting the resident’s property and belongings and the installation of an intercom system at the property. No evidence has been provided to this investigation indicating that the resident made a formal complaint to the landlord about these issues prior to the complaint of 12 March 2020. These matters are therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme. Some information about these aspects of the complaint is included below to provide additional context.
  4. This investigation will, however, consider the landlord’s response to the resident’s reports of ongoing disrepair at the property as a result of the leak, as raised in the formal complaint. This includes whether the action the landlord took to identify and address any repairs its was responsible for was reasonable and proportionate in the circumstances.

Background and summary of events

  1. The resident has occupied the property, a 2 bed, ground floor flat, since 2002, under an assured tenancy agreement with the landlord.
  2. The resident reports that her neighbours completed substantial refurbishment works to their property in 2017, resulting in significant noise disturbance over a period of months ‘including weekends, very early hours until late at night’. During completion of the works, the resident reports that she experienced a leak in July 2017, affecting the electrics in her bathroom, which the landlord’s contractor attended. The resident states that the leak caused damage to the bathroom door frame and floorboards and damp to occur on the bathroom ceiling.
  3. In August 2017 a separate leak resulted in damage to the resident’s sofa and laptop. This was initially resolved by her neighbour’s contractors but was reported to the landlord in November 2017 after it reoccurred in the same location. The resident suspected the leak was due to the reconfiguration of pipework as part of the refurbishment and it caused significant damage to her ceiling. The landlord’s contractor attended and removed a large section of ceiling to locate and remedy the issue.
  4. The resident also reported being disturbed by noise from her neighbour’s property following completion of the works, including banging, shouting and the dragging of objects. In response to the resident’s reports of noise in 2017, noise recording equipment was installed over the Christmas period and the parties took part in mediation arranged by the landlord in February 2018. The resident reports that the parties reached an agreement to be mutually considerate, however, noise levels returned to an unacceptable level 2 months later.

Summary of Events

  1. The resident states that there has been ongoing noise disturbance from her neighbours since 2017. The resident has described the near constant sounds of her neighbour’s children running and screaming, banging, dragging of objects and shouting in the communal areas. The resident has highlighted the serious impact on her health and wellbeing and that of her family since 2017, as they have been unable to adequately work, rest and sleep.
  2. The resident contacted her landlord again regarding the noise in September 2019. She requested that the landlord reinstall noise monitoring equipment and was advised to download an app. She also requested that a buildings surveyor attend to inspect the property and noise levels. This inspection was competed in mid-September and involved one staff member simulating noise in the upstairs flat ‘for a few minutes’ whilst their colleague observed from the resident’s property. The landlord concluded that an anti-social behaviour (ASB) case should not be reopened on the basis of its findings.
  3. The resident made a formal complaint to the landlord on 12 March 2020, in which she raised the following concerns:
    1. The resident highlighted the ongoing impact of the noise on her and her family, which she had reported to her Housing Officer and the landlord’s ASB team in September 2019. She stated ‘we have not reported any issues since February 2018 as we have hoped that things would improve’. However, she was now at a point where she did not feel she could approach her neighbour as he had previously reacted ‘aggressively, defensively and was un-cooperative’. Following the inspection, the landlord committed to review the history of the flat refurbishment and how sound-proofing had been dealt with but the resident had not received an update.
    2. The landlord had approved alterations to her neighbour’s property, which were completed in 2017 and caused significant disruption to the resident and her family. The works had also caused damage to her property that had not been resolved. The resident stated that she had not initially involved the landlord as she was sympathetic to her neighbour’s desire to upgrade his flat to accommodate his young family. The resident asked the landlord to respond to her concerns about the standard of the works completed and the impact this had on her property. In particular, she raised concerns about the structural integrity of the ceiling and the lack of sound-proofing. She requested that a building surveyor attend to inspect and for the landlord to clarify who was responsible for the damage to her flat.
    3. The resident stated that she had been burgled 3 times since 2013, most recently in February 2019. At the time, the police had noticed that there was no evidence that entry to the communal door was forced. The resident noted that in 2017 she had requested to have the communal locks changed after a previous tenant left, as he had retained a key and returned on a number of occasions to collect mail. The lock had only been changed weeks after the most recent burglary in February 2019. The resident noted that the closing mechanism of the new lock was too heavy, ineffective and that the door shook the walls when closed.
    4. The resident had experienced issues with her central heating over the past 18 months, including inadequate heating and inconsistent temperature. Despite visits from the landlord’s engineers, the issues had not been resolved.
    5. The resident complained that scaffolding had been in place for over a year, presenting a security risk. She noted the length of time taken to complete the works and asked when it would be removed. The resident also noted that she had received no prior notification of works to extend the boiler flue at the property until receipt of a letter dated 20 February 2020, which referred to previous attempts to contact her and the possibility of obtaining an injunction to gain access to the property.
    6. The resident raised general concerns about the landlord’s poor communication and asked why on some occasions her requests and concerns were not dealt with, followed up or taken seriously.
  4. The landlord telephoned the resident to discuss her complaint on 27 March 2020 and provided a response at stage 1 of its internal complaints process on 24 April 2020. The landlord responded to each aspect of the complaint as follows:
    1. The landlord had previously investigated the resident’s reports of ASB and concluded that the evidence indicated day to day living noise and not actionable ASB. An informal sound transference test was completed by a surveyor in September 2019, following which the case was closed. The landlord assured the resident that the staff sent to investigate the issue had the required ‘technical knowledge and expertise’. The landlord advised that it had no legal obligations to install sound insulation and did not have the resource to do so but accepted that the resident should have been informed of the outcome and apologised for the poor communication. The landlord had listened to the 3 recordings recently submitted via the noise app and ‘concluded that the noise does not constitute a breach of tenancy that would warrant further action being taken’. The landlord noted that it had previously arranged mediation between the resident and her neighbour and encouraged her to discuss her concerns with him directly.
    2. The landlord noted that works to address the damage to the resident’s property had been raised and works approved. The landlord advised that damage to personal belongings would usually be covered by the tenant’s home contents insurance.
    3. The landlord accepted that it should have considered the resident’s concerns regarding security when raised in 2017 but, due to the passage of time, it was unable to fully investigate this aspect of the complaint. It noted that a letter was sent to the resident on 11 March 2019 notifying her of the change of locks.
    4. The landlord confirmed that a gas safety certificate had been issued on 14 April 2020 and the engineer had noted the resident’s comments about the functioning of the boiler. The landlord confirmed that the boiler was not yet due for replacement but stated that it would contact the resident when non-emergency callouts had resumed to arrange an inspection.
    5. The landlord asked the resident to provide dates to its Asset Management team for works to be completed to the flue.
  5. The resident made a written request to escalate her complaint on 27 April 2020, which was acknowledged by the landlord on 13 May 2020. She outlined her outstanding concerns:
    1. The resident repeated that she did not consider that the noise she was experiencing was ‘ASB in its true definition’ but was as a result of inconsiderate behaviour. The resident felt that the landlord had not done enough to assess and respond to the noise. She noted that the recent recordings represented 30 seconds out of a day and did not reflect the impact of the continuous disturbance on her and her family. She also did not consider the 15 minute sound transference test an adequate means of assessing the noise and noted the impracticalities of using the noise app to evidence continuous noise. The resident noted her participation in mediation and felt it was inappropriate to ask her to speak to her neighbour again when he had since been ‘defensive, aggressive and lied to the police and our neighbours’.
    2. The resident was dissatisfied with the landlord’s response to her complaint about damage caused as a result of the works carried out by her neighbour. The landlord had not addressed her concerns about why the works were approved or that she had been seeking a response from the landlord for 3 years.
    3. The resident highlighted that it had taken over 2 years for the landlord to act on the issues with the entrance door lock.
    4. The resident repeated her request that the boiler be inspected and the necessary repairs approved.
    5. The resident was confused by the landlord’s response regarding the scaffolding and clarified that her complaint was about the length of time the scaffolding had been in place and not about works to the flue.  
  6. The resident completed a form indicating the outstanding issues and desired resolution of her complaint. She requested a report on what works the landlord approved to be carried out to the neighbouring flat and for the landlord to attend to assess the damage caused to her property. She requested that a ‘sound detector’ be installed to obtain evidence of the noise she reported experiencing 24 hours a day. The resident requested that works be completed to the entrance door lock and to approve the repair or replacement of her boiler. She also requested confirmation of when the scaffolding would be removed.
  7. Following a desktop panel review held on 13 July 2020, the landlord wrote to the resident on 15 July 2020 to confirm the outcome of the final stage of its internal complaints process. The complaint was partially upheld. The panel review reached the following conclusions on each aspect of the complaint:
    1. The resident’s complaints about the landlord’s response to reports of noise and sound transference in 2017, damage to the property following refurbishment of a neighbouring property and the installation of an interphone were outside the scope of the complaints process due to the length of time since the issues arose. The panel noted that the resident should have been informed of the interphone installation and so used its discretion to uphold this aspect of the complaint.
    2. The landlord had inspected the property in July 2020 and had agreed to carry out remedial works to repair cracks and repair and redecorate architraves. 
    3. The resident had been provided with a noise app to record instances of noise from the neighbouring property, however, the evidence she provided did not constitute ASB and so the landlord was unable to take further action.
    4. The landlord provided a copy of a letter sent to the resident on 11 March 2019 informing her of the appointment on 18 March 2019 to change the entrance door lock.
    5. Following the resident’s complaint, works were completed to the entrance door lock in July 2020 and the landlord attended to inspect her boiler. The landlord had determined that the boiler should be replaced. These aspects of the complaint were therefore upheld.
  8. The panel review concluded that compensation in the sum of £65 was appropriate, including £25 for failing to inform residents prior to installation of the interphone system, £25 for the delay in completing works to the entrance door lock and £25 for the delay in identifying that a new boiler was required.
  9. The resident wrote to her MP on 19 July 2020. She disagreed with the findings of the panel review for the following reasons:
    1. The resident stated that the landlord’s reference to an ‘incident’ of noise was inaccurate as the situation has been ongoing for 3 years ‘without any outcome or proper communication’. Similarly, the installation of the interphone system occurred 3 years ago but the resident states that she had been seeking a response during all that time.
    2. The resident noted that the damage to the property was raised with the landlord at the time and on ‘numerous occasions’ since and it had failed to act. The works agreed more recently were only a partial remedy, as they did not include works to address the carpentry and floor damage.
    3. The resident’s noise complaint was not about ASB but about sound transference due to poor insulation and inconsiderate behaviour by her neighbours. Her comments about the ineffectiveness of the noise app for recording evidence of the noise had not been addressed. 
    4. The resident had been reporting issues with the boiler for 18 months and following numerous visits the resident had been informed that the boiler would need to be replaced, or parts replaced, to restore it to full functionality. Works had been completed previously but were not effective and the most recent visit on 1 July 2020 had resulted in a substantial leak the following day. The boiler was replaced on 6 July 2020 and the resident had been without heating and hot water for 4 days.
    5. The resident reported that the scaffolding had been removed in July, however, it had been erected in 2018 and was not in use ‘for months’ prior to the pandemic.

Assessment and findings

Response to reports of noise nuisance

  1. The Ombudsman does not seek to determine whether residents were subjected to ASB or nuisance by their neighbour. Instead, the Ombudsman’s role is to consider the appropriateness and adequacy of the actions taken by the landlord to investigate and respond to the resident’s reports of noise from a neighbouring property. The Ombudsman considers whether the landlord has acted reasonably, proportionately and in line with its policies and procedures.
  2. Under the landlord’s ASB policy, complaints about noise are generally categorised as either Category C ASB, where noise is repeated, persistent, unreasonable and at a level that breaches noise nuisance legislation, or as a ‘neighbour dispute’. Noise will be categorised as a neighbour dispute where it is ‘not persistent, unintentional, happens during normal working hours, or does not breach noise nuisance legislation’. When assessing incidents the landlord will consider how frequently the behaviour occurs, whether it is deliberate and how the resident is affected.
  3. Paragraph 5 of the landlord’s ASB Policy states that in response to reports of a neighbour dispute it will, ‘work with all parties to try to increase understanding and agree practical solutions’. This may involve suggesting the parties enter into a good neighbour agreement, facilitating discussions around reasonable behaviour and arranging mediation. The landlord notes that it will not be possible to take legal action where the problems reported are ‘infrequent, not intentional and have not caused serious harm’.
  4. The resident has accepted that she did not raise the ongoing noise disturbance with the landlord between February 2018 and September 2019, as she hoped things would improve. The Ombudsman has therefore considered the landlord’s response since the resident reported her concerns in September 2019. As the resident reported an unreasonable level of noise from a neighbouring property at anti-social hours, it was appropriate for the landlord to act to assess the noise as potential ASB in accordance with its ASB Policy.
  5. The landlord has discussed the resident’s concerns with her, provided a noise recording app and reviewed the findings, which were reasonable first steps to determine the nature and frequency of the noise. The landlord has also informed the resident that it will continue to review evidence submitted and to assess whether further action can be taken. The landlord complied with the resident’s request to attend to inspect the property in September 2019, however it failed to inform her of the outcome in writing and to manage her expectations as to the action it could take to address the noise.
  6. During the complaints process, the resident raised concerns about the operation of the noise app and has stated that it does not effectively record the level, frequency and duration of the noise she and her family are experiencing. The landlord has failed to respond to the resident’s comments, to suggest alternative ways of gathering evidence, or to demonstrate that it has given adequate consideration to the resident’s request for noise monitoring equipment to be reinstalled in the property.
  7. The landlord has confirmed to this Service that the evidence submitted has not reached the threshold to open an ASB case and draw up an action plan. However, the landlord’s ASB Policy requires it to work with the parties to try to reach a mutually agreeable solution where a neighbour dispute is identified. There is no evidence that the landlord has taken steps to support the parties to achieve a resolution, such as discussing the noise levels with the resident’s neighbour, proposing the use of a good neighbour agreement or considering further mediation. A significant amount of time has elapsed since mediation was arranged in February 2018 and so it would be reasonable and proportionate for the landlord to reconsider further action and involvement at this time.
  8. The landlord has accepted that it failed to follow-up on its commitment to explore the sound insulation between the properties. The landlord explained during the complaints process that its policy is not to carry out sound insulation improvement works to individual properties as it does not have the resources to do so. Ordinarily, a tenant would be responsible for satisfying themselves as to the condition of the property before signing the tenancy agreement. However, in this case, the resident has indicated that the works to the property above, as approved by the landlord, may have altered the condition of the property and increased the noise transference between flats. The landlord has a responsibility to ensure that alterations will not cause a nuisance to other resident’s in the building when considering whether to grant permission. The landlord has failed to address this aspect of the complaint, to investigate whether the works may have increased the sound transference between the properties and to explain the steps it took to assess the impact on neighbouring properties before granting permission for alteration works.
  9. The Ombudsman considers that there was service failure by the landlord in its handling of the resident’s reports of noise disturbance by her neighbours. The landlord failed to adequately support the resident by considering the informal action it could take and providing assistance in gathering evidence. The landlord also failed to communicate the outcome of its inspection, and its position in respect of undertaking works to improve soundproofing, until the formal complaint response. The landlord has not provided an adequate response to the resident’s enquiries about the works undertaken in the property above and whether this has increased the sound transference between properties.

Response to repairs issues

  1. The resident states that she has reported concerns about the damage caused to her property by her neighbour’s refurbishment works since 2017, however, no evidence has been provided to this Service indicating that these issues were raised with the landlord prior to the formal complaint. Under clause 2(3) of the resident’s Tenancy Agreement the landlord is responsible for repairs to the door frames and plaster work at the property. On receipt of the complaint, the landlord contacted the resident to arrange an inspection of the property and it has agreed to complete remedial works to repair cracks to the plaster and damage to the architraves of the bathroom and front doors. The Ombudsman considers that since the complaint the landlord has taken reasonable steps to assess the damage and has agreed to complete proportionate remedial works to address the defects identified.
  2. The resident has also raised concerns about the standard of workmanship carried out to her neighbour’s flat in 2017. As no report from the inspection in July 2020 has been provided to this investigation, it is unclear whether the landlord’s surveyor also inspected the structural integrity of the ceiling and sound insulation, as requested by the resident. The landlord has assured the resident that it has had sight of the building inspector’s report, however the Ombudsman recommends that the landlord write to the resident to explain how it has satisfied itself that the works were completed to the required standard.
  3. The resident has complained that the landlord has not agreed to address damage to her flooring. The Tenancy Agreement is silent on the responsibility for repairs to the property’s flooring, however, it is noted that the resident is responsible for internal decorations under clause 10. In its complaint responses the landlord has suggested that the resident should claim for any damage to her personal belongings caused by the leak via her contents insurance. It is recommended that the landlord write to the resident to clarify its responsibilities in relation to the flooring. The Ombudsman is otherwise satisfied that there was no service failure by the landlord in relation to this aspect of the complaint.
  4. The landlord has provided evidence of a letter sent to the resident on 11 March 2019, informing her of the works to replace the communal door lock, which the resident denies receiving. It is not possible to conclusively determine whether or not the letter was sent, however, it is reasonable to conclude that the landlord took adequate steps to inform her of the works. The resident has questioned why these works were not completed sooner, following burglaries to her property in 2017 and 2019. The Ombudsman is satisfied that the landlord has taken appropriate steps to respond to this aspect of the complaint and has offered £25 compensation for the delays in addressing her concerns.
  5. The resident reports that she had been experiencing issues with her boiler for 18 months prior to the formal complaint, resulting in inconsistent water temperature. The landlord’s repairs records evidence that jobs have been raised to address both defective heating and a defective boiler on 9 occasions since December 2017. According to the landlord’s repairs records, in the 18 months prior to the formal complaint, operatives attended on 10 September 2018, 4 October 2018, 21 October 2019. No details are provided as to whether the boiler was left in full working order following each visit. There is no evidence that the resident requested the replacement of her boiler prior to the formal complaint and so it was reasonable for the landlord to attend on each occasion a problem was reported to attempt a repair. Although it is clear that a number of issues have occurred in recent years, there is no documentary evidence that the resident has complained of an ongoing issue.
  6. In the stage 1 complaint response the landlord offered to attend to inspect the boiler once non-emergency appointments had resumed. The Ombudsman understands that an inspection took place, following which works were carried out which proved to be ineffective and the boiler has now been replaced. It will usually be reasonable for a landlord to attempt a repair and to consider replacement as a last resort and the Ombudsman is satisfied that following the formal complaint the landlord took appropriate steps to investigate and address the issue. The landlord has also offered £25 compensation for the delay in ordering the replacement of the boiler. On the basis of the evidence provided, the Ombudsman considers that there was no service failure by the landlord in its handling of repairs to the resident’s boiler.
  7. The landlord has confirmed that scaffolding was erected at the front of the building on 22 August 2018 and at the rear of the building on 8 October 2018 to carry out cyclical works and works to meet the Government’s energy standard. All scaffolding was removed by 28 August 2020. The landlord states that a consultation was held prior to commencement of the works and letters were sent to all residents explaining the process. It is not known whether these letters contained an estimated date for completion or indicated the likely duration of the works, however, it is reasonable to expect a landlord to keep residents updated.
  8. The Ombudsman appreciates that the presence of scaffolding is aesthetically unappealing and may in some circumstances present an additional security risk or aid access for pests. The erection of scaffolding was clearly necessary to undertake extensive works to the building. The Ombudsman is not in a position to comment on the length of time taken to complete the works and whether this is reasonable, however, the landlord explained in its complaint response that the scaffolding must remain in place until completion of roof works. The Ombudsman encourages the landlord to ensure residents are kept up to date on the progress of future works but finds no service failure in the landlord’s decision to leave the scaffolding in place until all works were completed.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
    1. service failure by the landlord in its handling of the resident’s reports of noise disturbance from a neighbouring property; and
    2. no maladministration by the landlord in its response to the resident’s reports of damage to her property caused by works at a neighbouring property; and
    3. no maladministration by the landlord in its handling of repairs to the resident’s boiler; and
    4. no maladministration by the landlord in its handling of repairs to the communal entrance door and the use of scaffolding.

Reasons

  1. There was service failure in the landlord’s handling of the resident’s reports of noise disturbance from a neighbouring property as it failed to consider the informal action it could take to support the resident to resolve the issues with her neighbour, or to assist her with alternative methods of gathering evidence. The landlord also failed to address the resident’s concerns about lack of soundproofing between the properties, which may have been exacerbated by works to her neighbour’s property that were approved by the landlord.
  2. There was no service failure in relation to the landlord handling of damage to the resident’s property following works in the neighbouring flat, repairs to the her boiler, repairs to the communal entrance door lock and the use of scaffolding. On the basis of the evidence provided, the landlord took adequate steps to investigate and respond to these aspects of the complaint during the complaints process and has identified any actions it is required to take to meet its repairing obligations. The Ombudsman is satisfied that the landlord’s approach was reasonable and proportionate, and that it has identified areas where its service could have been better.

Orders

  1. Within 28 days of the date of this report the landlord is ordered to:
    1. Contact the resident to discuss the informal action the landlord may take, in line with its policies and procedures, to assist the resident in resolving the complaint about noise nuisance, including the support it can offer to address the issues with her neighbour and to help her to acquire evidence. The landlord should then write to the resident to confirm the outcome of this discussion and the steps it intends to take.
    2. Write to the resident confirming the landlord’s conclusions as to the level of sound transference between the properties and whether this has been affected by the alterations completed to the property above. The landlord should outline its obligations in relation to sound transference, its processes for considering the impact on neighbouring properties when granting permission for alterations and any action it intends to take to address the resident’s concerns.

Recommendations

  1. It is recommended that the landlord:
    1. Write to the resident to confirm whether the landlord is responsible for addressing damage to the resident’s flooring caused by a leak from the neighbouring property.