Optivo (202010971)

REPORT

COMPLAINT 202010971

Optivo

27 August 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Response to the resident’s reports of issues with noise transference at the property.
2. Response to the resident’s reports of issues with the bathroom at the property.
3. Complaints handling.

Background and summary of events

The resident is a shared owner leaseholder of the new build property. The landlord is the freeholder of the property which is a two bedroom upper floor flat. The lease began on 6 September 2019. The resident is a joint leaseholder and whilst some correspondence with the landlord was from the resident’s joint leaseholder, for ease of reference we have referred to all correspondence from the joint leaseholders as being from the resident.
The landlord’s defects procedure says that when the developer hands over a new property to the landlord it usually enters a defects liability period for one year from the date of practical completion. During the defects period the developer is liable to rectify defects. Defects are defined in the procedure as “faults or breakdowns caused by faulty design, workmanship, or materials. Items damaged by the occupier or from general wear and tear are not covered.”
During the defects period the landlord’s aftercare team manages the property. If a shared owner reports a repair that isn’t a defect, the landlord will advise the leaseholder it is their responsibility to resolve if the repair relates to the individual dwelling. If the repair relates to a communal area, the landlord will action it as a normal day to day repair.
During the defects period the landlord’s aftercare team will send a monthly defects report to the developer. The report will show all defects raised and all uncompleted defects. The developer will respond with completion dates for each defect and the aftercare team will pursue the developer if they don’t give a date. If the developer fails to rectify a defect by the target date without an adequate reason the landlord will instruct its own contractor to compete the work.
At the end of the defects period the landlord will arrange an inspection with the developer. The leaseholder will need to be present.
The lease of the property says that the landlord shall maintain, repair, redecorate and renew the common parts, load bearing framework, structural parts of the building, the roof, foundations, joists and external walls.
The landlord’s complaints resolution procedure says that if a resident is unhappy with the landlord’s response to the complaint it can request a review. After acknowledging the review request the landlord will confirm within ten working days if it will be escalating the complaint to the review stage. If it is agreed not to progress the complaint, the landlord will confirm the reasons why.
The landlord’s compensation procedure says it can offer a discretionary payment which recognises a resident’s distress, time, trouble or inconvenience which can be up to £250 in exceptional cases. The compensation procedure also says that the maximum amount of compensation for failure to carry out a repair by a target time is £50.
On 27 November 2019 and 4 December 2019, the resident sent the landlord emails saying that she was being disturbed by noises from the flat above hers. She was concerned that the noise disturbance was a problem with the construction of the building. The resident also detailed other issues in the property, including problems with work that had been done by the developer following a leak in the bathroom. The landlord sent an email to the resident on 5 December 2019 saying, “In relation to the noise from the property above, during construction phase acoustic testing of the building was carried out and passed.”
Following a visit to the property by the landlord and the developer the landlord sent the resident an email on 13 December 2019 which included the following comments concerning the bathroom, “Following the leak from the bathroom towel rail as a gesture of goodwill the whole carpet was replaced in the bedroom – it appears that the flooring by the doorway under this has swollen and [the developer] will now take this up to inspect. They will also obtain feedback from carpet fitters regarding this. [The developer] has also agreed to replace the ensuite bathroom door and exterior skirting which has swollen slightly from the water. After consulting with my manager we will not be instructing [the developer] to take up the bathroom tiles at this time but will note this for the end of defect visit and if there has been any sign of damage or movement this will be addressed at this time. The mastic around the top of the shower will be removed by [the developer]”.
On 16 December 2019 the resident sent the landlord recordings of the noise from the flat above. Following a further email from the resident and a telephone conversation the landlord sent an email to the resident on 31 December 2019 acknowledging that she felt the noise problem was due to the construction of the building. The resident requested that an acoustic noise test be carried out and that the landlord inform her what material the building was made from and what kind of noise insulation was used. The resident subsequently sent diary sheets logging the sound disturbances to the landlord.
In January 2020 the resident contacted the National House Building Council (“NHBC”) concerning the noise transference issue. On 8 January 2020 the landlord wrote to the resident informing her that, having considered the sound logs, it considered any sound heard could be identified as day to day noise.
On 12 January 2020 the resident sent the landlord an email saying that the developer needed to remedy the following defects in the property:
1. the works needed in the bathroom,
2. bedroom and hall skirting board to be sanded down and painted,
3. floor boards to be replaced in main bedroom and en-suite,
4. window board top to be replaced in bedroom, plastered & fixed,
5. damage to ceiling corrected in living room,
6. faulty workmanship in living room to be corrected,
7. hallway carpet to be fixed down.
On 13 January 2020 the landlord sent an email to the developer asking it to inspect the noise transference issue. On 22 January 2020 the developer inspected the property and confirmed that there was no fault with the building design or construction.
On 28 March 2020 the Government issued guidance for landlords, tenants and local authorities concerning the Covid 19 pandemic. The guidance recommended that “access to a property is only proposed for serious and urgent repairs.”
On 28 April 2020 the NHBC issued its findings which confirmed that the developer’s sound test report dated 13 March 2019 indicated that the sound resisting performance of the building was compliant with NHBC’s Standards. The NHBC findings concluded that as no contraventions were recorded in the sound report, the developer did not need to take any further action.
On 4 May 2020 the landlord informed the resident that it had commissioned an independent acoustic engineer to investigate and carry out tests.
On 18 May 2020 the Housing Minister sent a letter to all social housing residents saying that “As we start to ease lockdown measures, landlords should be able to carry out routine as well as essential repairs for most households. There will be a backlog of repairs that they will need to address, so it may take longer than normal to carry out more non-essential work…”
On 1 June 2020 the Government issued updated guidance for landlords, tenants and local authorities concerning the Covid 19 pandemic. The guidance said that landlords “can now take steps to address wider issues of repairs and safety inspections, provided these are undertaken in line with public health advice” and that “Where workforce is available and resources allow, landlords or contractors are now able to visit most properties to carry out both routine and essential inspections and repairs, as well as any planned internal works.”
On 4 June 2020, in response to an enquiry by the resident, the landlord informed her that as the Covid 19 pandemic restrictions had been lifted it hoped to hear from the developer “booking in works shortly with yourself. I’ve chased this along for you.”
On 6 June 2020 the resident sent a formal complaint to the landlord concerning a number of issues, including the noise transference issue and defects that she had reported to the landlord not having been resolved. The resident wanted the matters addressed and compensation for the stress she had suffered.
The independent acoustic engineer carried out tests on the building on 19 June 2020.
The landlord responded to the resident’s formal complaint on 22 June 2020. In its response the landlord detailed the actions it had taken following the resident’s reports of issues with sound transference as follows:
1. It had asked the developer to investigate. The developer had done so and had confirmed there was no fault with the building design or it’s construction.
2. It had asked the NHBC to check the building. The NHBC had then reviewed the building’s design drawings and certification and confirmed the building had no fault in relation to the issue raised.
3. Although the NHBC findings would normally be the end of the process it had also instructed an independent acoustic engineer to investigate and carry out tests. It expected the engineers report to be available by 26 June 2020 and if the report found that the building was constructed according to required standards it wouldn’t take any further action. If the report found there was a fault with the building it would contact the resident to propose and agree a plan to fix the fault.
In its complaint response the landlord also addressed the outstanding defects:
1. It apologised for the poor service that the resident had received from the developer and the delay experienced to put things right in relation to the repair to the bathroom following the leak.
2. It said that its aftercare manager had met with the resident in February 2020 to agree further works, however the Covid 19 pandemic restrictions had impacted the planned actions and timescales.
3. It said that all the outstanding works would be dealt with as part of the end of defects works. It asked the resident to be patient and bear with it as due to the Covid 19 pandemic restrictions there was a back log of work but its after care team would provide the resident with an update about the works on 26 June 2020.
4. Because of the poor service the resident had received and the time she had waited for the issue to be resolved the landlord offered her compensation of £50 for failing to carry out the bathroom repair plus an additional discretionary payment of £100 for the inconvenience she had experienced.
On 26 June 2020 the landlord sent a defects definition guidance sheet and an update on outstanding works to all the residents of the building.
On 30 June 2020 the independent acoustic engineers report was produced which confirmed that tests carried out showed that the tested floors achieved the airborne and impact sound insulation performance standards specified by building regulations.
The resident says that during June 2020 she reported a problem with the living room floor to the landlord.
On 7 August 2020 the resident submitted a complaint review request form saying that she rejected the £150 compensation, would like the noise issue resolved, and building works and repairs finished to a satisfactory resolution.
On 24 August 2020 the landlord sent its review request response to the resident. In its response the landlord said that:
1. it had decided not to escalate her complaint to a review because its director of construction had been able to consider the complaint, and as two independent reports had shown that the sound levels were in accordance with British Standard EN ISO 717-1: 1997 and in compliance with NHBC standards it wouldn’t be taking any further action on the sound transference issue,
2. its aftercare manager had been in regular contact with the resident to update her on the progress of works at the property. It apologised for the delays in the works starting and said that all works should be completed by 25 August 2020,
3. it acknowledged that prior to the Covid 19 lockdown the service the resident received and works completed could’ve been better and it apologise for this.
4. it had reviewed the resident’s request for compensation and increased the level of compensation to £300 to further recognise the delays, inconvenience caused and the resident’s time and trouble in bringing matters to the landlord’s attention. The landlord also said that it had taken into account that it wasn’t able to complete any repairs during lock down.
5. it wanted to learn from the resident’s experience and was reviewing how defects were signed off and if a resident remains unhappy how it could put this right. It was also looking to introduce a satisfaction sign off form with defects and/or a text survey to make sure residents were happy once defect works had been completed. This would also allow the landlord to closely monitor the performance of its developers,
6. its aftercare manager would continue to monitor works being carried out and provide fortnightly updates to all residents of the building, until works were completed satisfactorily.
The landlord’s letter dated 24 August 2020 was its final response to the resident’s complaint, confirming that its internal complaints process had been exhausted.
On 21 December 2020 the resident sent an email to the landlord as “a last attempt to directly resolve the issues”. In the email the resident said that the works to the bathroom had been completed in November 2020. She also said that in June 2020 she had told the landlord that flooring in the living room was “unsupported” and that the developer had agreed to correct this, but it was still outstanding.

Assessment and findings

Complaint about noise transference at the property

It is not the role of this investigation to discuss and assess the technical detail of the noise transference issue. Rather this investigation has assessed the landlord’s response to the resident’s reports of issues with noise in the property with reference to its statutory obligations, its obligations under the lease as well as the Ombudsman’s own assessment of what was fair, given all the circumstances of the case.
The law does not require a landlord to make improvements to a property where leaseholders accept the property without satisfying themselves as to its condition and are subsequently dissatisfied with it. Therefore, the landlord was under no obligation to improve the sound insulation in the property.
A leaseholder purchases a lease subject to the condition of the property at the time. It is the leaseholder’s responsibility to inspect the property and its condition to their own satisfaction. This is in accordance with the principle of ‘caveat lessee’ (let the leaseholder beware). Unless there is an express provision in the lease agreement, the landlord is not under any obligation to disclose, or take any future responsibility for latent or inherent defects that may be discovered subsequently.
However, contracts for new buildings have defect liability periods within which the landlord can ask developers to repair any inherent defects that are discovered. If the sound insulation issue was considered to be a defect (a fault or defect in the construction of the property because of a fault with the design, quality of materials, or poor workmanship) then the landlord would be obliged to take reasonable steps to ensure that the developers remedied the defect.
It was therefore appropriate that the landlord responded to the resident’s reports of noise transference problems by raising his concerns with the developer.
As well as raising the resident’s concerns with the developer the landlord did the following:
1. asked the NHBC to consider the noise transference issue,
2. commissioned an independent acoustic engineer to carry out an inspection of the building.
Having taken the above steps, the landlord informed the resident that as both the NHBC findings and the independent acoustic engineer had found the noise insulation at the building to be compliant with building regulations it would be taking no further action. Whilst it is not for this Service to dispute or endorse this decision (this would be a matter for the courts) the landlord did take reasonable steps to investigate and pursue the matter with the developer.
The landlord’s actions in responding to the resident’s reports of problems with noise transference at the property were appropriate and in accordance with its obligations under the lease. Its obligations in this case were to take reasonable steps to pursue the issue with the developer. There is no evidence of any service failure in this regard and the landlord’s responses to the resident’s reports and complaint demonstrated a resolution focused approach.

Complaint about issues with the bathroom at the property

During the course of this investigation the resident has informed this Service that she has experienced further leaks in the bathroom at the property. Though it is appreciated that this would have been distressing for the resident, the Ombudsman’s role is to investigate complaints brought to it that have exhausted a landlord’s internal complaints process. This investigation report, therefore, concerns the matters which were the subject of the resident’s formal complaint in June 2020, and which were the subject of the landlord’s final response on 24 August 2020.
It is not disputed that there was service failure on the part of the landlord in its response to the resident’s reports of issues with the bathroom at the property as:
1. the work carried out by the developer following the leak had not remedied the situation and the resident had repeatedly had to report the issue to the landlord,
2. despite the provisions of its defects policy there is no evidence that the landlord pursued the developer for a completion date for the works to the bathroom between its visit to the property with the developer on 13 December 2019 and February 2020 (see paragraph 25.b above)
When there are failings by a landlord, the Ombudsman will consider whether the redress offered by the landlord (an apology, review of defects procedure, commitment to complete the outstanding works and compensation) put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord acted fairly by apologising for the poor service that the resident had received from the developer and for the delay she experienced in putting things right in relation to the repair to the bathroom following the leak.
The landlord demonstrated that it had learnt from outcomes by reviewing how defects are signed off and if a resident remains unhappy how it could put this right. The landlord said that it was also looking to introduce a satisfaction sign off form with defects and/or a text survey to make sure residents were happy once defect works had been completed in order to allow the landlord to closely monitor the performance of its developers. The measures outlined demonstrated that the landlord had considered the resident’s concerns and was willing to offer her reassurance as to how it aimed to avoid service failures of this kind recurring in future.
The landlord also sought to put matters right by arranging to carry out the works to the bathroom as part of the end of defects works.
The landlord also offered compensation of £300, made up of £50 for failure to carry out the repair and £250 to recognise the delays and inconvenience caused and the resident’s time and trouble in bringing matters to the landlord’s attention.
Both the £50 compensation and the £250 compensation were the maximum compensation levels set out in the landlord’s compensation procedure (see paragraph 9 above). The amount of £300 was also within the range of awards set out in the Ombudsman’s Guidance on Remedies for cases where the Ombudsman has found considerable service failure, but there may be no permanent impact on the complainant. Examples could include a resident repeatedly having to chase responses necessitating an unreasonable level of involvement by that resident.
The Ombudsman considers that the compensation offered by the landlord was proportionate to the impact that its failures had on the resident in incurring time and trouble in repeatedly having to chase the landlord and the inconvenience caused by the delay in addressing the issues in the bathroom.
In summary, the combination of the landlord’s apologies offered, service improvements proposed, and compensation awarded represented appropriate redress for the service failures identified in the way it responded to the resident’s reports of issues with the bathroom at the property. In accordance with the Ombudsman’s Dispute Resolution Principles, it was fair in its assessment of the service failure, took steps to put things right and demonstrated it had considered learning points.
During the course of this investigation the resident has informed this Service that a number of defects remain outstanding at the property, including the issue with the living room floor. This issue was not specifically raised during the resident’s formal complaint and has not formed part of this investigation. However, the Ombudsman has made a recommendation that the landlord carry out an inspection of the property to clarify whether there are any outstanding defects.

Complaints handling

The landlord’s complaints resolution procedure at the time the resident made her complaint allowed it to refuse a resident’s request to escalate a complaint to the review stage of its complaints procedure (see paragraph 8 above). The landlord therefore acted appropriately and in accordance with its policy in refusing to escalate the resident’s complaint and there was no service failure in its complaints handling. However, in practice the landlord’s policy meant that the resident only had access to a one stage complaint procedure.
The Ombudsman’s Complaints Handling code which came into effect on 31 December 2020 says “A landlord’s complaints procedure shall comprise of two stages. This ensures that a resident has the opportunity to challenge any decision by correcting errors or sharing concerns via an appeal process.”
It is noted that the landlord has now revised its complaints procedure and the new procedure no longer allows it to refuse to escalate a complaint to the review stage.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints about:
1. the landlord’s response to the resident’s reports of issues with noise transference at the property,
2. the landlord’s complaints handling.
In accordance with paragraph 55 of the Housing Ombudsman Scheme the landlord has offered reasonable redress in respect of the complaint about its response to the resident’s reports of issues with the bathroom at the property.

Reasons

The landlord’s actions in responding to the resident’s reports of problems with noise transference at the property were appropriate and in accordance with its obligations under the lease.
The landlord acted appropriately and in accordance with its complaints resolution procedure in handling the formal complaint.
The landlord acknowledged and apologised for the service failures in its response concerning the issues with the bathroom, arranged for the outstanding repairs to be carried out, awarded proportionate compensation and advised of appropriate means by which it expects to be able to improve service delivery and these actions were sufficient to put right its initial failures.

Recommendations

Within four weeks of the date of the determination the landlord to pay the resident the £300 compensation previously offered if this has not already been paid.
Within four weeks of the date of the determination the landlord to contact the resident to see if any of the defects outstanding at the end of the defects period are still outstanding and, if so, within 2 weeks of this liaise with the developer and confirm in writing to the resident what works will be carried out and the target date for these to be completed.