Tower Hamlets Homes (202007679)

REPORT

COMPLAINT 202007679

Tower Hamlets Homes

31 October 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:
   1. Handling of alterations to the neighbouring property resulting in noise transference.
   2. Complaint handling.

Background and summary of Events

Background

2. The resident is a leaseholder and lives in a ground floor flat which was originally a 1 bedroom property. She completed two single story extensions, converting it into a 2 bedroom property. Her lease began in 2009 and the freehold of the property is held by the landlord.
3. The landlord’s complaints policy states that it expected most complaints to be resolved with 20 working days at stage 1. It states it would endeavour to respond to as many complaints as possible within 10 working days in line with the Housing Ombudsman’s code. If residents remained dissatisfied following the stage 1 response, they could ask for their complaint to be reviewed. An acknowledgement of the stage 2 request would be sent within 48 hours and a response would be provided within 20 working days. In more complex cases it may extend the timescales by a further 10 working days with the permission of the resident at both stages of its complaints process.
4. Section 19(2) of the Landlord and Tenant Act 1927 states that regardless of the lease, consent for alterations cannot be unreasonably withheld.
5. The landlord’s alteration’s review states leaseholders require its permission before they can conduct alteration or improvements affecting the external or internal structure of their properties. It states consideration must be given in some cases to the effect of the planned work on the structure of the building and the possible impact on other residents. It also states:
   1. It will not agree to requests to fit laminate flooring and required all rooms other than kitchens and bathrooms to be covered by carpet and underlay.
   2. Where it becomes aware of alterations that had been undertaken without its consent, the leaseholder had to submit a retrospective application for consent.
   3. When reaching a decision on whether to grant or withhold consent for external, structural changes, it would have regard for the potential of it causing a nuisance or inconvenience to other residents. If it deemed there was a possibility for other residents to be adversely affected, for whatever reason, it would not grant permission. Where other residents were required to be consulted, only one objection would be necessary for it to withhold consent.

Summary of events

6. The resident completed an extension of her property in 2009. She states she was informed by the landlord on 2 occasions that she did not require its permission to do so. In 2018, she came across the landlord’s alterations policy which stated she required permission. She then placed a retrospective application for the landlord’s permission in December 2018. There were however delays in dealing with the resident’s application due to confusion about the payment of fees. The landlord’s investigations also found there was no alterations policy in place in 2009.
7. The landlord completed an inspection of the resident’s property on 17 October 2019 and found that she had altered the composition of her property and had changed her original living room into a bedroom. It found the works had been undertaken with planning consent and building control approval and they were unlikely to have had any significant negative impact on the overall structure.
8. In July 2020, the resident chased the progress of her retrospective application twice and explained her application had been delayed for 3 years. She stated it was affecting her wellbeing and the landlord’s lack of action was unreasonable. During this time, her neighbour applied to the landlord for and was granted permission to conduct building works in the property above her and the loft space. Her neighbour looked to convert their property into a 2 floor apartment and converted the floor above hers into a living space. The resident also attempted to seek clarification around the proposed works.
9. The resident spoke to the landlord in August 2020 about the proposed works and expressed her disagreement with it as she believed the landlord had not followed the rules in communicating major works to residents. She raised issues of health and safety and potential noise disturbance due to the proposed works. The landlord responded and explained that the statutory consultation and notification she had referred to was not applicable and that it informed leaseholders intending to conduct works to inform their neighbours. It said from time to time it did inform residents, but not until the works had received final approval. It explained the proposed works were being supervised by its surveyors, and where her neighbour was conducting roof works, its roof surveyor would be supervising them. It then asked her to elaborate on her concerns around health and safety. Her neighbour subsequently then began the works in September 2020.
10. The resident then proceeded to raise issues of noise disturbance during the building works which continued for 4 months, between September 2020, and December 2020, which the landlord acknowledged. She explained it had affected hers and her child’s health. She made suggestions to the landlord to address the issue such as a decant, temporary stop to the works and asking her neighbour to alter the intended composition of the property. The resident then raised a complaint on 16 October 2020.
11. The landlord discussed internally the resident’s reports and concluded it could not stop her neighbour from conducting works if the alterations had been permitted by it and the independent contractor was working within legal and guided allowances for noise levels and permissible hours for construction. It sought to address the issues and mediate between the neighbours. It provided the resident with two weekly schedules detailing the anticipated noise. It explained why it had engaged with both parties and provided her with her neighbour’s comments on the issues she had raised.
12. The landlord spoke with the neighbour to obtain details and discuss their requirements/about their proposed noise insulation for the property below.
13. The landlord provided its stage 1 response on 16 November 2020. It said it was aware she had raised concerns since July 2020 about the proposed works by her neighbour to the upstairs property, but at the time it could not expressly confirm that they had obtained its consent for the works so they could not start the proposed alterations to the upstairs property and loft space. It then explained she had raised further issues in August 2020 and explained her reasons for her objection to the works. It said:
    1. Although she had asked to be decanted during the period of the works, it usually did not decant leaseholders where their neighbours were conducting alterations to their property. However, it ensured the leaseholders conducting the works abide by the relevant conditions to ensure the disturbance to other residents was minimal.
    2. It noted it could be argued the works were taking place during the lockdown which meant she was working from home. This mean she would be affected by the noise generated from the works. At the time of granting consent for them, it was impossible to tell when the lockdown would end.
    3. It believed it was not reasonable to delay a valid intended alteration by a leaseholder. It had offered her a temporary respite of staying at a hotel rather than travelling daily, and at the time of the response she had not accepted the offer. It is unclear when the landlord initially provided this option to the resident.
    4. She had complained about an increase in coldness in her property, and it had told her if she provided it with her bills, it would reimburse any increase in her heating bill during the duration of the works.
    5. Regarding her neighbours living quarters being above her bedroom, her current bedroom was originally a living room and she carried out unauthorised alterations to her property, for which she now sought permission. It had no record of the communication where she was provided incorrect advice about building the extensions to her property, and she also had not provided any evidence of misleading information.
    6. The legal opinion (internally) on the matter was that it would be unreasonable for it to refuse her neighbours consent to have an open plan living room, as her reconfiguration had not been approved by it and there was no certainty that it would be.
    7. To address her issues of noise transference it had required her neighbour installed acoustic noise insulating underlay in the kitchen and living area. Its surveyor had been provided with the intended sound insulating material for assessment and to confirm they were very suitable and fit for purpose.
    8. It offered her £25 for each day since the works commenced up to when she accepted the respite (if she did) as a gesture of goodwill rather than an admittance of any liabilities. If she accepted this, it would credit her service charge account with the corresponding amount.
14. Following the stage 1 response, the landlord explained it had raised the noise nuisance issues with her neighbour, including works beginning before 8am. They had raised this with their contractors, and it was confirmed no works had begun before 8am. It was explained that there might have been the odd delivery, but this was outside of the contractor’s control. It explained the impact COVID-19 had and that it had caused changes which had a knock-on effect in terms of who was onsite. It explained the neighbour had reminded the contractors to inform them of any major changes, so they could notify it. It then provided her with a forecast of expected noise levels for the following two weeks. The resident responded and said that the landlord’s routine of emailing her was causing her upset and queried how long she had to respond to its stage 1 response.
15. The landlord responded to the resident on 7 December 2020, apologised for the delay in responding. It explained the purpose behind its emails was to try to engage with all parties, and ensure the matter was resolve amicably, disruptions were kept to a minimum and issues raised reasonably addressed. It apologised for causing upset, said this was not its intention and provided a further noise schedule. It also arranged for a member of its staff to attend the building to check on the noise levels and requested a recording, if possible, as it was trying to monitor them at different times of the day. The resident responded on the same day, explained the schedules do not reflect her experience of the intolerable disturbance. She then said she would prefer not to engage in the routine as it felt pointless to be drawn into conflict that did not resolve the problem. She said it left her feeling obliged to make time to reply to insist that the situation was not okay.
16. The resident continued to report ongoing issues with noise transference into her property from the living space above following the stage 1 response. Between 2019-2021 the resident had raised numerous complaints with the landlord. She provided it with a response to the different complaints it was dealing with on 26 March 2021. She reiterated her reasons for objecting to the works initially and added it was a “permanent increase in disturbance.” She stated the solutions she had suggested were also not implemented. That when it responded to her complaints, it suggested that she commute to a hotel to work. It then failed to acknowledge her complaint that this was not possible during a pandemic and that this was different from a decant for the duration of the work. When she reiterated that her and her child had health concerns, it persisted with the same hotel proposal. She then raised issues with the landlord’s handling of the works as the disruption continued for 4 months. She said the landlord’s offer of redress was misleading, it failed to appropriately consider the layout of the property above hers, and it failed to apologise in any meaningful way.
17. In August 2021, the landlord provided a supplementary response to its stage 1 response, following the resident’s contact of 26 March 2021. It said it was at the point where it could legally conclude the matter of her extension. It said the points of her letter had previously been addressed in its response of 29 January 2021. It said many aspects of the case related to historical issues which had since ceased as the works to the property above had been completed and the builders had left the site. It told her that the only item it had not addressed was the damage to the ceiling that she referred to and this was the first time it had been raised. It said it would endeavour to have the matter addressed, if permitted, it would send its surveyor to assess the damage and they would oversee the remedial works. It then:
    1. Apologised for the inconvenience or stress caused during the duration of the building works, and said, with the benefit of hindsight it would have done things differently if given the option to do them again. It had learned from the issues, and it was a truly unique event that its staff had no experience of. It believed its staff had spent time trying to ensure all parties involved were communicated with.
    2. Explained that COVID-19 had brought challenges and said it knew she had to endure the ongoing noise from the works whilst working from home and caring for her child whilst recovering from an operation.
    3. Said thankfully as the works had stopped, she should be able to get back to some sort of normality, but it was still enduring the effects of COVID-19 on its service provision. It told her that hopefully, in time she would be able to rebuild a harmonious relationship with her neighbours. It stated it had previously set out the compensation it was willing to pay her and confirmed that it would be a direct payment to her and not a credit to her service charge account. It would ask that she consider it as “full and final settlement” and if she did not agree, what other remedy would she seek.
18. On 16 August 2021, the resident requested for her complaint to be escalated to stage 2 of the landlord’s process as she was not satisfied that the matter had been resolved due to several outstanding issues that needed to be addressed. The landlord responded 2 days later and told her to provide her reasons for dissatisfaction by 19 August 2021.
19. On the same day, the resident responded to the landlord. In her response she made several requests such as asking it to provide information on why she was not consulted, apologise, set out the sums of compensation, ensure she did not deal with a specific officer again, and acknowledging that the conditions were unacceptable.
20. The landlord provided its stage 2 response on 20 September 2021. It made several acknowledgements and apologies to the resident. It also reiterated the points it had made in its stage 1 and supplementary responses and:
    1. Explained it had an obligation to both the resident and her neighbour. It said it did not usually decant leaseholders, but in hindsight, it should have considered the option, and apologised.
    2. Apologised for its offer of hotel accommodation as this was not suitable to her family’s needs. It acknowledged the matter caused a disturbance to her and it could have made more efforts to get the works suspended for three days while her daughter recovered from surgery and apologised.
    3. Acknowledged that its alterations policy also referred to the effect of planned works on the structure of the building and other residents and that in retrospect it should have approached the matter differently.
    4. Told the resident that stopping building works required a court injunction and the court would have needed to balance hers and her neighbour’s situations. It also told her it had ensured that she would not have to deal with the specific officer she raised concerns about.
    5. Told her it did not have the authority to impose further conditions on the alteration works when it came to insulation and the configuration of the flats. Explained it and her had liaised with the environmental health team to address the noise and were told, the noise was essentially permissible.
    6. Said that its surveyors had reviewed the flooring material and confirmed that they were adequate and would ensure there should be no considerable impact on the noise levels to her home. It explained that the underlay installed was a higher specification which reduced the potential of any noise impact, and as such disagreed that the insulation installed was ineffective.
    7. Stated due to her reconfiguration, her bedroom was now below the living space for the property above and had that not occurred, this would not have been the case.
    8. Explained it had completed an inspection of the premises to assess the noise levels and communicated with her and her neighbour. It said it had done what it could in the rather exceptional and difficult circumstances but recognised in hindsight, more could have been done. At the time it believed the offer of a hotel was the most practical option for either respite or alternative accommodation.
    9. It offered to provide £400 in costs towards mediation between the resident and neighbour. It explained its previous offer of compensation amounted to £2150 but then suggested this should be doubled and offered £4300 in “full and final settlement” of her complaint. It said this was based on the quality of its consultation, handling of her requests to be decanted and works to be paused and to account for any heat loss and costs whilst the roof was removed.

Post Internal complaints procedure.

21. The resident continued to raise concerns about noise transference with the landlord. In August 2022, it discussed internally about the insulation installed by the resident’s neighbour. It also queried if there were any noise levels residents had to adhere to when conducting works, and what was deemed unacceptable. It said if the noise alleged was a result of normal household living, it could not be held liable for it. However, if the alteration had made matters worse, the leaseholder should make all efforts to mitigate the noise impact.

Assessment and findings

Scope of investigation

22. The resident has stated that she was misinformed by the landlord about the requirement of consent for her extensions back in 2009. Due to the length of time which has passed, it would be difficult to obtain accurate records to investigate about issues going back this far. As such this investigation has primarily focused on the landlord’s handling of her recent reports in relation to the landlord’s handling of the noise transference and alterations to the neighbouring property.

Handling of alterations to the resident’s neighbour’s property and noise transference into her property.

23. The landlord appropriately tried to mediate between the resident and her neighbour due to the issues around the works. It also positively tried to provide her with a schedule of anticipated noise. This shows that it tried to take a customer focused approach in trying to ease the issues faced by the resident and restore the relationship with her neighbour.
24. The landlord also appropriately explained to the resident why it had not told her about the proposed works by her neighbour and provided an explanation about why she was not consulted about the works despite it being above her property.
25. It appropriately told her neighbour to install insulation for the flooring and when it became aware they had installed wooden flooring, took appropriate action and requested they fit carpets in the living area.
26. It was also reasonable that the landlord worked with environmental health to try and identify whether the noise nuisance raised by the resident during the works was permissible according to best practice, the law, planning/alteration conditions and construction standards/code of practice. It also arranged for visits to the building at different times of the day to measure the levels of noise, during the works. This shows that it tried to take a customer focused approach in monitoring and trying to evidence any excessive noise to see if any action could be taken. However, despite all the positive actions taken by the landlord, there were however some failings in how it handled matters.
27. Although appropriate that it explained its reasoning for not consulting with her, as it was due to have a direct impact on her, in the Ombudsman’s opinion, the landlord should have exercised its discretion and spoken with the resident about proposed works, before granting permission for her neighbours works. This would have allowed it to gain an insight into the potential issues the works would have caused her at an earlier point and allowed it to make an informed decision.
28. The landlord was aware of the change in the composition of the resident’s property 9 months before it received her neighbour’s request for the works. It was aware that she had converted her original living room into a bedroom. It failed to evidence that it had considered this, or the impact of her neighbour building a living space above her bedroom would have on her. It also failed to evidence whether it considered any mitigating actions it could take around any impacts it might have identified. This goes against its alterations policy which says it would consider the potential of changes causing a nuisance or inconvenience to other residents.
29. Despite the fact the landlord had not granted permission at the time, it remained that the room was being used and regarded as a bedroom and the landlord was aware of this. Its actions suggests that it did not take appropriate consideration of the potential for nuisance to the resident, or that she would be “adversely affected, for whatever reason” in allowing the neighbour’s planned alterations, and this was unreasonable. It was aware of the application for consent and did not indicate it would be enforcing the lease and asking her to restore the property to its original layout.
30. It was also inappropriate of the landlord to dismiss the resident’s concerns about allowing the space above her bedroom to be used as living space by stating she had not been granted permission for her alterations. In the Ombudsman’s opinion, this is unacceptable as it suggests that the landlord inferred the resident’s actions contributed to the situation. This caused the resident frustration and distress as she worried about potentially being told she had forfeited her lease. The landlord’s approach to this issue was unsympathetic.
31. The landlord discussed with the neighbour about insulating the flooring and completing sound tests. Its surveyor also considered the quality of the insulation and deemed it to be high quality. However, no evidence has been provided to show that either party completed any tests to reach such a conclusion and satisfy the landlord that what was installed was satisfactory. Had this been done, this would have allowed the landlord to offer the resident reassurance that the appropriate type of insulation had been installed. The landlord could have done more to ensure that the insulation provided was fit for purpose. The failure to do so has led to ongoing frustration for the resident, led to her having to take the time to repeatedly raise the issue and caused her distress.
32. In this service’s opinion, the landlord should also have queried if sound testing was conducted as part of the tests in obtaining the building certificate on the property to ensure the insulation had been checked. There is no evidence that it did this.
33. This service has also not been provided with any evidence of the investigations into the resident’s reports of noise nuisance or transference into her property, to support that a thorough investigation was completed. There has been no evidence of noise recordings or noise diary sheets provided. Although it is acknowledged that the landlord appropriately attended the block to monitor the noise levels, there is no evidence to suggest it attended the resident’s property to gain an idea about the level of noise transference.
34. Despite the noise being regarded as everyday noise, this service would have expected the landlord to have shown that it took steps to assess whether there were other contributing factors to the level of the noise. These could be things such as building defects. Given that the resident repeatedly reported noise disturbance after the completion of the works, enough to disturb and affect members of her household, it would have been appropriate for it to have investigated whether there were any contributing factors to the noise from the property. A recommendation has been made below for the landlord to review the Ombudsman’s noise complaints spotlight report.
35. In its stage 2 response, the landlord apologised and offered the resident £4300 compensation. It is the view of the Ombudsman that the amount offered was reasonable considering the resident’s circumstances and the level of distress and inconvenience caused. The amount exceeded the Ombudsman’s guidance on remedies for maladministration. Its offer suggests that it recognised there had been failings which had a significant impact on the resident. It also provided explanations of where it had identified failings and showed that it had learned from the experience by identifying where it could have taken an alternative approach. Despite this however, this service identified further failings by the landlord that it had not considered in its response. Had it done so, it is likely that a finding of reasonable redress would have been found rather than maladministration. No further offer of compensation has been made.
36. In summary, several of the landlord’s actions were positive and appropriate, however there were failings in how it handled the issue. Although it appropriately considered the impact of some of its actions in its stage 2 response there were still other issues it did not identify. It inappropriately dismissed her concerns as it had not granted her permission for her alterations. It did not provide any evidence that it assessed the insulation installed by the neighbour, to confirm that it was satisfactory. It could have done more to try and identify the cause for the noise transmission once notified it persisted after the works were completed. Based on this the Ombudsman finds that there was maladministration.

Complaint handling.

37. The landlord provided its stage 1 response 11 working days outside of the Housing Ombudsman’s code. It has provided no evidence that it requested an extension from the resident, or that it updated her on the progress of her complaint during the period of delay. In the Ombudsman’s opinion, this was unsatisfactory and shows poor communication by the landlord. Whilst the landlord’s actions were unsatisfactory, there is no evidence that the delay caused a detriment to the resident.
38. After its stage 1 response, the resident asked the landlord how long she had to respond to its stage 1 response. There is no evidence provided that the landlord provided her with an answer to this. In the Ombudsman’s opinion, this was not satisfactory.
39. The resident then continued to report issues with noise. The landlord should have taken this as evidence that the matter was not resolved and considered whether it should escalate to stage 2 of its process as she continued to express dissatisfaction with the ongoing situation. Further, following her query on her response timescales after the stage 1, the landlord should have also asked if her response in March 2021 was an attempt to escalate to stage 2. In the Ombudsman’s opinion, these were both missed opportunities to potentially resolve her complaint at an earlier point.
40. Following her email of March 2021, the landlord provided a supplementary stage 1 response 5 months later. It is unclear why a supplementary response was provided instead of a stage 2 response. However, in the Ombudsman’s opinion, the length of the delay in providing any response to her correspondence was unreasonably.
41. The landlord then provided its stage 2 response 5 working days outside of the Housing Ombudsman’s code and its complaint’s policy. Although this is unlikely to have caused the resident significant detriment, this was unsatisfactory. This is because the landlord has provided no evidence that it communicated to explain the delay in its response, or that it requested an extension to allow it to provide its response late. In total the complaints process took a period of 10 months to complete due to several delays.
42. Within its complaint response, when providing the resident with compensation, it used the terms in “full and final settlement.” In the Ombudsman’s opinion, this blurs the lines between a gesture of goodwill to put the situation right due to acknowledging its failings, and a legally enforceable agreement that the resident will not pursue her claim further if she accepted the compensation. This has the potential to confuse resident’s and deter them from appropriately escalating their claims to relevant services where necessary where compensation is accepted.

Determination (decision)

43. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration by the landlord in its handling of alterations to the resident’s neighbour’s property and noise transference into her property.
44. In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was service failure with the landlord’s complaint handling.

Reasons

45. The landlord was aware that the resident had reconfigured her property and was using her old living room as a bedroom. It did not take into consideration the layout of the resident’s home when granting permission for the neighbouring alterations. Although it continued to receive reports about noise transference after the building works, it provided no evidence that it conducted further investigations. Even if it was everyday noise, it should have an approach to this such as considering if anything could be done to address the matter.
46. There were several delays in the landlord’s complaint handling. It also failed to provide any evidence that it explained the reasons for the delays to the resident or that it requested any extensions from her to provide its responses late.

Orders and recommendations

47. Within 4 weeks of this report, the landlord must:
    1. Provide the resident with a letter of apology around its failings.
    2. Pay the resident compensation of £4400, comprising of:
       1. £4300 previously offered if it has not been paid to the resident.
       2. £100 for its complaint handling failings.
    3. Meet the resident to understand the current position on any noise transference issues. If there are any ongoing issues, consider any further interventions it could assist with, and explain its position on this to the resident by creating an action plan with clearly defined timelines.
    4. Provide proof of compliance with these orders.