Optivo (202110229)

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REPORT

COMPLAINT 202110229

Optivo

03 February 2022


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 handling of the resident’s reports of excessive noise transference from a neighbouring property.
    2. The landlord’s complaints handling.

Background

  1. The resident is a tenant of the landlord under an assured tenancy agreement. The property is a flat within a Victorian building converted into 3 flats.
  2. The resident raised concerns about noise transference from other properties within the building. She stated that this had been raised with the landlord previously and it had taken no action.
  3. The resident complained that she could hear noise, including light switches, telephone conversations and the use of toilets, throughout the day and night, which was affecting her sleep. She believed her upstairs neighbour had removed the carpet in their property and stated that recent works to her ceiling had led to an increase in noise transference. The resident had tried speaking to her neighbours, but this had not resolved the issue. She felt the sound insulation within the building was inadequate.
  4. At the informal resolution stage, the landlord investigated the issue by contacting the resident’s neighbour, who confirmed by phone that the carpets had not been removed. The neighbour was aware and mindful of noise transference within the building. The landlord concluded that the noise reported was day to day living noise. The landlord informed the resident of her neighbour’s response, explained that it would not be responsible for installing noise insulation in her property and advised of her options for moving to another property.
  5. The resident remained dissatisfied with the landlord’s investigation and its refusal to survey the property for soundproofing. She also reported squeaking floorboards in the property above. The landlord then logged a formal complaint. It attempted to arrange a virtual inspection of the upstairs neighbour’s property to verify that carpets were in place, although it is not clear from the its records whether this was completed.
  6. The landlord confirmed in response to the formal complaint that it was not responsible for installing soundproofing, citing the case of Baxter v Camden (1999). Specifically, it referred to a finding in the case that sound insulation was not part of the Right to Repair Act, thus there was no obligation on landlords to sound-insulate. The landlord recommended that the resident ask her neighbours to keep noise to a minimum and within reasonable hours. It also provided a link to its ‘Home Options’ booklet.
  7. The resident requested the escalation of the complaint to the landlord’s panel review stage. The landlord inspected the upstairs property, which had recently become vacant, and identified some floorboards in need of repair, although its operative noted that he did not hear ‘much squeaking’. The landlord also obtained a quote to overboard the resident’s ceiling with insulation and sought a quote for carpeting the property above.
  8. The resident’s request to escalate her complaint was declined following an internal case conference. The letter confirming the refusal stated that floorboards in the above property would be fixed by 1 April 2021, which should help but which would not stop day to day noise transference. It also noted that the installation of carpet may help reduce noise transference, but the landlord was not responsible for installing carpet within the upstairs property.
  9. The resident has referred her complaint to the Ombudsman as she is unhappy that the landlord has refused to take action to improve the sound insulation within her property. She has indicated that she believes the works completed to her ceiling have worsened the issues, as only thin plasterboard with no insulation was used. The landlord states that the resident never submitted any evidence of noise nuisance and confirms that there have been no reports from other residents.

Assessment and findings

Handling of reports of noise

  1. The landlord’s Anti-Social Behaviour (ASB) procedure provides examples of what will and will not be considered ASB. ASB can include ‘slamming doors’ but ‘normal behaviour occurring at unusual times’ will not normally be considered ASB, ‘provided the resident is being considerate’. The landlord will assess reports of noise and, if not found to be ASB, will record the reason why on its systems and inform the resident. When a resident reports noise that may constitute ASB, the landlord should invite them to submit 2 weeks of diary sheets or noise app recordings. Once reviewed, the landlord will then confirm whether the noise reached unreasonable levels.
  2. The resident initially reported that she could hear phone conversations, light switches, and toilets in use, which would be considered day to day living noise or ‘normal behaviour’. As the resident reported that noise was occurring throughout the night, the landlord was obliged under its ASB Policy to consider whether her neighbours were being ‘considerate’.
  3. It was a proportionate first step to contact the resident’s neighbour to discuss her concerns and to relay the responses to the resident. It was also reasonable to manage the resident’s expectations about what action the landlord could take in relation to day to day living noise. The landlord could have offered the resident diary sheets or use of the noise app, although she had been clear that she believed the excessive noise was due to a lack of insulation and so it was reasonable that it did not do so.
  4. The resident later reported that her neighbour’s door slammed, although by this time her neighbours had vacated the property and the solution she was seeking was for the doors to be altered to reduce the banging. It is not known whether the landlord considered or responded to this request. The resident also reported squeaking floorboards and an inspection of the upstairs property took place 8 working days later. The landlord stated in the complaint response that works would be completed by 1 April 2021, which in the circumstances was not unreasonable as the property was currently empty and noise transference would not be an issue.
  5. The resident’s tenancy agreement is silent on the type of flooring that should be installed at the property, although it is not known whether her neighbour’s tenancy agreement requires the installation of carpet. The landlord’s records note that if carpet in the above property had been removed, this should be replaced by the tenant.
  6. It was appropriate for the landlord to escalate its investigation at the formal complaint stage by attempting to arrange a virtual inspection of the property above. Its records indicate that it did not receive a response from the neighbour, who moved out at some point between 15 January 2021 and 18 February 2021. As part of its investigation into the complaint the landlord did seek a quote for the installation of carpet but later confirmed in its final response that it was not responsible for installing carpet in the property above, which from the available information was reasonable.
  7. The landlord’s response that it was not responsible for improvements to noise insulation within the property was correct. However, it did not investigate or respond to the resident’s concerns that previous works completed to her ceiling had reduced the noise insulation and increased the noise transference between properties. This amounts to service failure.

Complaints handling

  1. The landlord’s Complaints Resolution Policy states that it will first try to resolve complaints informally. If a resident remains unhappy and a formal complaint is logged, it will provide a response within 10 working days. If the resident is still dissatisfied, they can request a review by a panel. Following a case conference, the landlord will write to the resident to confirm whether the complaint has been escalated to panel review. If the complaint is not escalated, the landlord will write to the resident to explain the reasons why. Reasons to decline a panel review include, ‘if the outcome won’t change, we’ve already complied with the complainant’s request(s) or a Director has already reviewed their case’.
  2. The Ombudsman’s Complaints Handling Code states that the landlord’s complaints procedure must have a minimum of 2 stages and ‘if the complaint is not resolved to the resident’s satisfaction it shall be progressed to the next stage in accordance with the landlord’s procedure’. The landlord should ‘not unreasonably refuse to escalate a complaint through all stages … and must have clear and valid reasons for taking that course of action’, which should be explained to the resident in the landlord’s final response.
  3. The landlord’s complaint responses did not separate the substantive issue of noise transference from the complaint about its own actions or inaction. Whilst it was appropriate for the landlord to seek to resolve the substantive issue, or to manage the resident’s expectations about what action it could take, its investigation into the complaint should also have considered whether it had responded to the resident’s concerns in a timely manner, followed its policies and procedures and kept to the law.
  4. Part of the resident’s complaint was that the landlord had not responded to her previous reports of noise transference. There is no evidence that the landlord investigated whether it had failed to respond to previous reports, although it is noted that no evidence has been provided of previous reports of noise disturbance.
  5. The landlord’s letter confirming that it would not escalate the complaint to the review panel stage did not explain the reasons why it had reached its decision. The landlord listed the additional action it would take to resolve the complaint, and confirmed its position, but did not explain why the complaint would not be escalated. Its internal notes suggest that this was because it had identified further actions to put things right for the resident, although its initial response to the complaint would not change as it was not required to provide the requested remedy. This reasoning should have been clearly communicated to the resident.
  6. In line with the Ombudsman’s Complaints Handling Policy, it was not unreasonable for the landlord to refuse to escalate the complaint to a panel review, as it had carried out a second review of the complaint at a case conference and provided a final response to the resident referring her to this Service.
  7. However, the Ombudsman considers that there was service failure by the landlord because it failed to explain to the resident why her complaint would not be escalated, and it failed to investigate and respond to her complaint that previous reports had been ignored.
  8. Proportionate compensation is ordered, in line with the Ombudsman’s Remedies Guidance, to reflect the time and trouble the resident took to pursue her complaint, the landlord’s failure to investigate and respond to some of her concerns, and its failure to explain the reasons for refusing to escalate the complaint to a panel review.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s reports of noise transference between the properties.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in the landlord’s complaints handling.

Orders and recommendations

  1. Within 28 days of the date of this report the landlord is ordered to:
    1. Pay the resident £75 compensation for the failures identified in its handling of her reports of excessive noise transference between properties.
    2. Pay the resident £50 in recognition of the failures identified in the landlord’s complaints handling.
    3. Investigate and respond to the resident’s complaint that the works completed to her ceiling have reduced the noise insulation between properties and increased noise transference. Identify whether the landlord is responsible for completing any additional works to reinstate the level of noise insulation that existed previously and ensure that any such works are completed within 6 weeks of the date of this report.