Welwyn Hatfield Borough Council (202106370)

REPORT

COMPLAINT 202106370

Welwyn Hatfield Borough Council

30 November 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 is about:
1. The landlord’s handling of the resident’s request to investigate a leak and noise from the flat above his, occurring between December 2018 and March 2019.
2. The landlord’s handling of the resident’s request to investigate a leak and noise from the flat above his, occurring between March 2019 and April 2020.
3. The landlord’s handling of the resident’s request to investigate loose floorboards and consequent noise from the above property in February 2021.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s handling of the resident’s request to investigate a leak and noise from the flat above his, occurring between December 2018 and March 2019.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historic it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
This is in accordance with paragraph 39(e) of the Scheme, which states that the Ombudsman will not consider complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.
In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to March 2019. The historical issues provide contextual background to the current complaint, but the assessment is focused on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in February 2021.

Background and summary of events

Background

The property is a ground floor maisonette held under a lease agreement, with one maisonette above it. The leaseholder is identified as ‘the resident’ in this report.
The landlord has confirmed that it was made aware that the resident has a disability in previous correspondence but could not find any records showing the specifics of this disability.
On 17 December 2019, the resident contacted the landlord and ask that is assist him in resolving a leak that was coming from the property above his. However, a couple of days later, the resident informed the landlord that he no longer required assistance as a leaseholder (his neighbor) in the above property sought advice from a plumber.
In February 2019, the resident contacted the landlord again and raised concerns about a leak in the property above his. The landlord wrote to occupants of the flat above and received assurances that an inspection had taken place and no leaks were found. It informed the resident of this and asserted that it would have expected physical evidence of a leak in his property, given the time that had passed since it was first reported.
In March 2019, the resident disputed that there was no leak and offered his opinion on why the leak had not caused any physical damage. However, the landlord set out that it would not assist further without any evidence of the leak. Because of this, the resident stated that he would get a professional plumber to inspect the pipe works from within his property.
There is no evidence of whether the resident’s inspection went ahead or any further communication between the parties about the reported leak until 30 December 2019. In an email, the resident explained that the leak had appeared to have stopped until returning recently. He asserted that he could hear dripping on his bedroom ceiling that was coming from the property above.
On the same day, the landlord responded and explained that it had instructed building services to inspect and determine the exact cause of this issue. It explained this was because it needed to determine whether it or the property above was responsible for remedying the reported leak. Further, if it were its responsibility, it would instruct contractors to complete repairs and then charge the residents accordingly under the terms of the leases. However, if it were the above property’s responsibility, it would advise the resident of what action it would take to enforce repairs under the lease.
Between December 2019 and April 2020, a plumber investigated the above properties flat and found no leak.
There is no evidence of further communication between the parties about the reported leak until 3 April 2020. On this date, the resident contacted the landlord and explained that the leak had stopped but recently returned. In his email, the resident assumed that the landlord had implemented a short-term fix after his previous report and asked that the landlord complete another one until the coronavirus restrictions allowed a long-term fix to be implemented.
On 17 April 2020, the parties discussed the reported leak over numerous emails in which the resident provided a sound file of the noise caused by the reported leak. The landlord’s responses were as follows:
1. It had previously investigated the leak and found no disrepair. It would have expected physical signs of the leak, given the resident’s first report was over a year ago.
2. The noise on the sound file was likely caused by expanding pipes within the heating system because it did not have a steady rhythm to it as expected with a leak. The time the resident reported the sound occurring might coincide with when the heating was turned on in the morning, which may have changed; thus, the sound had stopped.
3. The noise was in control of the tenant above, it might be able to act under the noise nuisance provisions of the lease if it was deemed statuary noise by Environmental Health.
4. The resident’s suggestion that the sound was intermittent and in control of the tenant above would indicate that the reported issues were not a matter of disrepair. Thus, it was not its responsibility to complete repairs.
5. It provided its complaints procedure in response to numerous expressions of dissatisfaction from the resident.
On 17 April 2020, the resident’s responses were as follows:
1. While the noise had ceased, it was unreasonable for him to hear dripping from the property above at any time of the year.
2. There was no physical evidence of the leak because the floors were solid concrete.
3. The landlord had failed to carry out the necessary investigation into the leak and he would raise a complaint the next time the issue occurred.
4. Contacting Environmental Health would not help resolve the situation as it would not be able to complete repairs.
Correspondence on 17 April 2020 ended with the landlord offering to send another plumber to the property to investigate the issue and explaining that the cost would be billed to all leaseholders in accordance with the lease’s terms.
On 20 April 2020, the parties continued to discuss the reported leak and the landlord’s offer to send a plumber in multiple emails.
The resident’s responses were as follows –
1. He accepted the landlord’s offer to send a plumber, but he would not be paying the associated cost.
2. It was unlikely that the tenant was causing the sound and it had stopped within a few days of him reporting it to the landlord.
3. He asked the landlord to confirm when the property above had been previously inspected and questioned why his property was not inspected at the same time before asserting this could have contributed to the leak not being found.
4. The sound file that he previously sent to the landlord could be interpreted in different ways and he felt it replicated a steady drip indicating a leak.
The landlord’s responses were as follows:
1. Under the terms of the lease, it could recharge the leaseholders for sums incurred when carrying out its obligation. The resident’s refusal would constitute a breach of the lease and recovery action would be taken.
2. The recent warmer weather may have changed the timer/thermostat due to less of a demand; hence the sound stops.
3. There were no physical signs of the leak and it had diagnosed the problems based on the facts due to its knowledge and expertise.
4. The internal systems that solely serve individual properties were not its responsibility, but it would continue to investigate the residents’ concerns as it suspected the issue would return.
In July 2020, the landlord instructed a plumber to inspect both properties to try and find the reported leak; however, no leak was found. The resident has asserted that it was agreed that the landlord would monitor the issue. The Service has not been provided any evidence of the outcome of this inspection or any subsequent agreements.
The resident, on 9 February 2021, reported that the pipes in the above property were hammering after every toilet flushed, keeping him up at night. He also raised concerns about the floorboards creaking from above in the bathroom/hall area and hitting a pipe causing noises.
In its response, of 10 February 2021, the landlord explained that the pipework appeared to have been correctly installed when investigating the leak and that any movement was within expected tolerance. It reiterated that for the matter to be considered disrepair under the lease, Environmental Health would need to deem a statutory nuisance. It stated that if the resident’s noise complaint was successful, it would arrange further investigations.
On the same day, the resident argued that the landlord had previously inspected the property in the summer of 2020. Thus, given the time that had passed, it was reasonable that another issue may have occurred or the previous one had progressed. He stated that the landlord agreed to monitor the issues in the last inspection. He found the landlord’s request for him to contact Environmental Health as being unreasonable, as the floorboards were part of the maintenance of the building and would likely only need a few screws to resolve the reported issue.
The landlord reiterated that it was responsible for the items of disrepair as per the lease terms. It explained that the resident had not reported an item of disrepair to date, but a noise, which it had already explained would only be considered disrepair if deemed sufficient to constitute statutory noise. The landlord suggested that the resident employ a third party to investigate the issues and provide a report confirming that it was responsible for remedying it.
On 19 February 2021, further discussions took place between the parties about the reported issues and their obligations under the lease. The resident’s responses were as follows:
1. The landlord was responsible for keeping the structure of the property in good condition, including the floors. The loose floorboards could indicate a more serious issue.
2. The lease did not stipulate that certain repairs could only occur if deemed a statutory noise nuisance.
3. The landlord’s stance was contradictory as it had previously investigated a leak after he reported a dripping sound.
4. Because of his previous dealings with Environmental Health, he doubted that its ability to identify noise nuisance or the need for repair.
5. He was reluctant to make a noise complaint because of historical issues with ASB with the property above, which he feared would be exacerbated.
The landlord’s responses were as follows:
1. Without the noise being deemed a statutory nuisance, it would not take any further action.
2. There may have been inconsistency around how it had previously dealt with the resident’s noise report as it had acted outside of its obligations.
3. To ensure avoid similar errors in future, it would communicate internally to remind the parties of its obligations under statute and the lease.
4. Under the terms of the lease, the floorboards were the leaseholder’s responsibility and pipework repairs would depend on whether the pipe was serving multiple properties, or a single property.
5. The resident’s complaint had been raised on numerous occasions and previous investigation had found no disrepair.
6. It offered to contact the relevant team to help the resident raise his noise complaint and start the relevant process.
The resident raised a formal complaint, stating that the issues were not the same as previously reported. He expressed disappointment that the landlord would not carry out the inspection. The resident stated he was registered disabled and that the landlord was failing or unwilling to make any reasonable adjustments considering the reported issues.
In its stage one decision, of 17 March 2021, the landlord explained that its stance remained unchanged upon reviewing the situation. It also reoffered to contact the relevant team to start the process of investigating the noise.
On the same day, the resident responded as follows –
1. The landlord had harassed him because of his complaints about the leak and its failure to carry out scheduled maintenance and repairs over the past two years.
2. It had failed to acknowledge his disability or understand how it could be a factor.
3. In July 2020, it had agreed to monitor the reported issues because it could not determine what was causing the sound.
4. He cited the Equality act 2010 and explained that his disability meant he could not hold his phone for sustained periods to capture the noise.
5. He asked that the complaint be progressed to stage 2.
The landlord confirmed its position, on 18 March 2021, and set out the next steps as follows:
1. It offered to help the resident start the process to investigate the sound as a statutory nuisance.
2. It offered to complete an inspection to investigate the reported issues but explained the cost would need to be reimbursed if no faults within its responsibility to resolve were found.
3. It offered to progress the complaint to stage 2.
In his response, the resident clarified that the complaint was about the landlord’s lack of acknowledgement for someone with a disability when considering its approach to repairs. He highlighted covenants in the lease that he believed supported his assertions that the landlord was responsible for investigating the reported issues and stated that the landlord should have provided a handbook with the lease as some of the terms were ambiguous.
In its response, the landlord explained that the issues were concluded to have likely been caused by thermal expansion during its previous inspection, which was to be expected in the pipework. It acknowledged the resident’s disability and explained that it would consider how this affected his ability to monitor the noise. However, it asserted that ultimately this would not impact either party’s legal responsibilities under the lease.
On 23 March 2021, the resident asked for the complaint to be escalated to stage 2 for the second time. He explained that the landlord had not previously mentioned thermal expansion and asked why it failed to acknowledge that it had previously agreed to monitor the situation. He also stated that the pipes were not physically inspected in 2020. Furthermore, the complaint raised in 2021 was about noisy pipes and creaking floorboards in different arears to previously reported and it was unreasonable for the landlord to keep reverting to its investigation of 2020.
On 9 April 2021, the landlord issued its stage two response as follows:
1. The resident had not provided any evidence of physical damage that would lead to inspection or suggest there was an issue with the pipework in the form of leaks or other physical damage.
2. It had inspected for noise issues associated with plumbing previously and found no specific fault and heard no sounds that would not be expected of a property.
3. It understood the resident believed the noise to be caused by different factors but reiterated that there was no evidence to support the resident’s claim, such as recordings.
4. It had previously advised him how to prove that there was an unreasonable level of noise and stated that it was willing to speak to the relevant department for him and discuss any specific needs he may have in this process if the app was not suitable.
5. It offered to undertake an inspection but confirmed the cost would be recharged to the resident should no fault be found, or a fault be found, which is not its responsibility under the lease.
6. It had a duty to ensure that public funds are used appropriately and cannot inspect matters which are not its responsibility to do so.

Assessment and findings

Although the flat above advised the landlord that there was no leak in February 2019, it was reasonable for it to arrange an inspection in response to the resident reports that the leak remained unresolved in December 2019.
The landlord was proactive in managing the resident’s expectations before the inspection, setting out what action it could take if a leak was found. This was important because under the terms of the lease, the lessor (landlord) and leaseholder are responsible for different pipes in the building according to their location. So, the action the landlord could take would depend on where the reported leak was coming from. Under the lease terms, the landlord would have to complete repairs if the leak was coming from a pipe serving multiple properties or instruct the property above the resident to complete repairs if the leak was coming from a pipe that solely served its property.
While the inspection of the above property did not find a leak, it was unreasonable for the landlord not to inform the resident of the outcome before he raised further concerns in April 2020. Given that the resident suggested the sound had stopped between December 2019 and April 2020, it was reasonable for the landlord to consider the issue intermittent.
Having inspected the above property and not finding evidence of a leak, it was reasonable that the landlord then provided an alternative cause of the issue based on the timing and description of the noise in response to the resident’s report in April 2020. It was also appropriate that the landlord reconsidered its stance after the resident provided new evidence in the form of sound recordings. However, the landlord determined that the recordings only demonstrated normal occurrences of expanding pipes linked in the heating system, concluding there was no disrepair.
The landlord’s conclusions were based on the findings of appropriately qualified operatives and staff. Thus, the Ombudsman has no basis for arriving at a contrary conclusion on the cause of the reported noise, as the expert personnel made their finding after conducting physical inspections of the above property and completing desktop evaluations based on the evidence provided by the resident.
This Service acknowledges that after being satisfied that there was no evidence of a leak or evidence of disrepair, the landlord continued to consider other ways to help the resident. It was reasonable for the landlord to explain that further consideration could be given to the issue under a noise nuisance complaint, particularly as the resident had suggested that the sound was in control of the tenant above.
The landlord correctly referred the resident to Environmental Health to determine whether the reported noise was a statutory nuisance and set out the steps it could take under the lease in response if the resident successfully proved the noise, was a statutory nuisance.
Also, in offering to have another plumber complete a further inspection once the national restrictions allowed, the landlord showed an appreciation for the distress the reported noise was causing the resident and demonstrated a willingness to try and resolve the ongoing issues amicably.
The landlord’s request for the resident to contribute towards the cost of the inspection was in line with the fourth schedule of the lease. Clause four states the resident must pay 25% of all sums incurred by the landlord with its obligations infer clauses 4(111) and 4v. The investigation and any subsequent repair would fall under clause 4(v) of the lease. Thus, the landlord needed to notify the resident of charges for the inspection, particularly as it did not charge for the inspection completed between December 2019 and April 2020.
While the resident has raised concerns about the limitations of the inspection completed in July 2020, he has not provided an alternative inspection report for the Service’s consideration. This Service acknowledges that no leaks were found when both properties were inspected as part of the landlord’s investigations. Also, there is no evidence supporting an agreement between the resident and landlord to monitor the issue in July 2020. However, despite this, the fact remains that no evidence has been provided to this Service of disrepair or statutory noise, thus, the landlord is not required to take any other action under the lease.
In February 2021, the resident was no longer complaining about a leak, but the noise coming from the pipes after the toilet was flushed and floorboards hitting the pipes. In its initial response, the landlord did not acknowledge that the resident was no longer suggesting the noise from the pipes was being caused by a leak or that the loose floorboard hitting the pipes had not previously been raised. This does not mean its request for further evidence was unreasonable as this Service understands the landlord’s initial reluctance to inspect the pipes, having done so when investigating the resident’s reports of leak in December 2019.
The first schedule of the lease described the demised premises as including the floors, ceilings and any pipes that serve the premises exclusively. The fourth schedule(i) sets out that the resident is responsible for the repair of the interior and all other parts of the premises which the lease has not identified as the landlord’s responsibility. Based on this, the landlord correctly asserted that it was not responsible for floorboards potentially being loose in the above flat. It was reasonable that it explained to the resident that it may not be responsible for the pipe he reported was causing an issue.
The resident suggested that the landlord should have provided a guide alongside the lease because some of the terms were ambiguous and it was difficult to ascertain the landlord’s responsibilities. This Service acknowledges that a guide could benefit leaseholders as the initial lease was signed in 1980. However, it must be clarified that the landlord has no obligation to provide a guide and the resident signed the lease which is a legal contract and should have considered consulting his solicitors on the terms prior to doing so. Moreover, while a separate repairs policy for leaseholders may be beneficial the underlying issue here is that the landlord has concluded that an item of disrepair has not been reported.
The lease does not stipulate that specific repairs can only occur if deemed a statutory noise nuisance. However, the landlord was not responsible for the floorboards in the above flat. The landlord would not be able to take any further action unless the noise that the resident reported was deemed a statutory nuisance, thus allowing it to address the issues with the above flat under its ASB policy.
Given the outcome of its previous investigation into a leak based on noise, it was reasonable for the landlord to require further proof of the reported issues. It was reasonable that the landlord considered the likely impact to other leaseholders, with respect to the inspection cost, as they could be subjected to an unnecessary recharge. Furthermore, the landlord is entitled to consider how it uses its limited financial resources. As the resident as the leaseholder resident opted not to progress as a noise complaint or underwrite costs of a further inspection there was no further action which the landlord could have undertaken.
The landlord’s suggestion for Environmental Health to be contacted was based on its conclusion that the core issue to be investigated is the noise impact. As the resident and his neighbour are leaseholders, it was necessary for it to ascertain that statutory noise was occurring, as this would determine any further actions by the landlord. Despite the resident’s expressed concerns about the expertise of Environmental Health it is the council department which is responsible for investigation noise nuisance and requiring landlords to resolve it where necessary.
The landlord may have acted outside of its responsibilities in the past when investigating leaseholder reports of disrepairs. However, this does not create an obligation to continue to do so. Thus, its decision to not inspect the property without charging the resident is not a failing. It was reasonable that it addressed the inconsistencies and clarified its obligations within the lease.
The landlord’s offer to assist the resident in starting the noise nuisance process was reasonable. It acknowledged the resident’s difficulty with using his phone to record the noise and agreed to speak to the relevant team about alternatives to the app.
It was fair that the landlord requested further evidence before contacting the above flat and asking that it arrange another inspection that may require intrusive methods. It cannot enforce the lease and request that the neighbour complete repairs when disrepair is not confirmed. The landlord must give fair consideration to the rights of the flat above in any decision that it makes. The resident has cited his relationship with the above flat deteriorating as his reason for not making a noise complaint. However, ultimately the landlord would need to contact the above property to discuss reports of a leak or any required repairs.
When considering its duties, the landlord would have to consider whether the resident is under a disability within the meaning of the Equality Act 2010. It is not for the Housing Ombudsman to consider whether a breach of the Equality Act 2010 has occurred, but only to consider the landlord’s response to the resident’s reports, including what it considered or did not consider.
While the landlord has acknowledged that the resident has a disability, it does not have records of specifics of this disability or how it affects the resident. There would be an expectation for the landlord to engage with the resident to ascertain the nature of his disability and how it could affect its request for evidence of statutory noise. Although, the Ombudsman notes that the landlord would not be investigating statutory noise but take direction from the outcomes of the investigations carried out by other parties, such as Environmental Health.
The landlord has investigated the resident’s concerns around disrepair and is satisfied that there are no faults that are currently its responsibility. It would not be reasonable for the landlord to instruct further inspections to investigate disrepair in response to the resident’s difficulties with getting evidence of statuary noise.
This Service would expect further considerations to be given to what adjustments are required to assist the resident in getting evidence that can be used in a noise complaint. This could include installing noise monitoring equipment that would stop the resident from having to use the app. But given the council has two teams that will investigate and address reported noise, the statutory noise nuisance team and anti-social behaviour team’. The landlord’s offer to liaise with these teams to ensure they consider the resident’s disability is reasonable, particularly as they will have to make the adjustments to assist the resident in getting evidence that proves the reported noise is an item of disrepair. The Ombudsman cannot speculate the outcome if a noise complaint is raised but accepts that reasonable adjustments cannot be considered further if the resident refuses to engage with the relevant teams around excessive noise.

Determination (decision)

In accordance with paragraph 39 (e) the landlord’s handling of the resident’s request to investigate a leak and noise from the flat above his, occurring between December 2018 and March 2019 falls outside of the ombudsman jurisdiction.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of:
1. The landlord’s handling of the resident’s request to investigate a leak and noise from the flat above his, occurring between March 2019 and April 2020.
2. The landlord’s handling of the resident’s request to investigate loose floorboards and consequent noise from the above property in February 2021.

Reasons

While the resident has been reporting an issue for a prolonged period the landlord has not be provided any evidence of disrepair.
The landlord made reasonable attempts to investigate the reported issues and acted in line with the terms of lease when declining further investigations.
The landlord has set out what evidence it would need the resident to provide before taking any further action and made reasonable offers to help the resident get the required evidence.

Recommendations

The landlord could consider developing a guide to help leaseholders understand both its and their own obligations under the lease.
The landlord could consider developing a separate repairs guide for leaseholders to manage their expectations around disrepair.
The landlord should reoffer to inspect the resident’s property and determine whether any significant noise can be found.
The landlord should reoffer to help the resident contact Environmental health, so the reported noise can be investigated.
The landlord should discuss the resident’s disability with him and then consider if it needs to make any reasonable adjustments.