Peabody Trust (202112807)

REPORT

COMPLAINT 202112807

Peabody Trust

31 August 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

The complaint concerns how the landlord handled:
1. Noise nuisance from a scrapyard near the property.
2. The sale of the property to the resident.
3. The associated formal complaint into these matters.

Background

The resident is a shared owner of the property with the landlord, which is a housing association. The property is a flat in a communal building.
The resident moved into the property in October 2020. On 29 March 2021, the landlord opened an investigation after being informed by the resident of noise nuisance from a nearby scrapyard. Several visits were then made by the landlord to the property and the development. The landlord informed the resident that it was satisfied that the property had proper soundproofing and advised her to contact the local authority about the noise from the scrapyard.
The resident wrote to the landlord on 13 August 2021 and requested to raise a complaint into the matter. She described the elements of the complaint as:
1. She was not given an opportunity to properly view the property before the purchase.
2. She was unable to open the windows in the property during the scrapyard’s opening hours due to the level of noise.
3. She had developed tinnitus as a result of having to sleep wearing ear plugs because of the noise.
As a resolution to the complaint, the resident requested that the landlord cover the costs of installing secondary glazing to the property windows to lessen the impact of noise penetration.
A stage one complaint response was sent on 12 October 2021. The landlord explained that it had arranged a joint visit of the property with the builder’s construction inspector on 11 October 2021. It informed the resident that it found the noise from the scrapyard to be within tolerance when the windows were closed and that when the windows were open, while the noise was notably louder, it was still found to be within tolerance and deemed to be acceptable. The landlord also noted that the resident had reported the noise to the local authority, who had also concluded that noise levels were within tolerance.
The landlord provided an excerpt of the acoustic sound test undertaken in March 2020 by the builder prior to the handover of the development to the landlord. It explained that this showed that the noise transference between the walls and floors of the resident’s property was found to be satisfactory. The landlord then explained that in light of these findings, it had declined the residents request to cover the costs of secondary glazing. The landlord also provided the resident with information on how to receive authorisation for the works to proceed if she wished to arrange the installation of the glazing herself.
Following an escalation request by the resident, the landlord sent a stage two complaint response on 9 November 2021. It addressed the outstanding issues highlighted by the resident point-by-point, informing her that:
1. It apologised for the delay in providing the stage one response and explained that this was as a result of the complaint being mistakenly assigned to its home ownership team as an enquiry rather than to its complaints team.
2. Its decision not to pay for secondary glazing was not dependent on the number of times the resident had visited the property.
3. It noted that the resident had disputed the landlord’s statement that she had visited the property three times and that she had only visited once. The landlord said it would pass on the evidence it had relating to viewings and explained that it is the lessee’s responsibility to satisfy themselves with the suitability of the property and to complete their own due diligence. It also noted that there would be no guarantee that the noise from the scrapyard would be occurring during any property visit.
4. It also noted the resident’s comments that stepping out onto the property’s balcony was different from being allowed to open the windows and had passed this feedback back to its sales team.
5. It confirmed that it would not install secondary glazing as the property meets building regulations and it was the resident’s responsibility to be satisfied with the condition of the property rather than the landlord at the time of purchase.
6. It offered £25 compensation for the delay in providing the stage one response.
In referring the complaint to this Service, the resident described the outstanding issues as she were not given an adequate opportunity to evaluate the property prior to purchase, the landlord had offered no assistance or solutions to lessen the noise nuisance from the scrapyard, and the landlord’s poor handling of the formal complaint.

Assessment and findings

Relevant policies and procedures

Resistance to sound: Approved Document E is part of the government’s building regulations and provides statutory guidance to developers for soundproofing standards for new homes. Section B3.13 of the document states that the minimum level of airborne sound resistance for dividing walls or floors between homes is 45dB (decibels) in new build properties.
The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to acknowledge the complaint in three working days and provide a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 15 working days. This will be the landlord’s final response to the complaint.
The complaints policy also states that the landlord will not investigate complaints that occurred six prior to the issue being reported.

Scope of investigation

In her complaint with the landlord, the resident informed it that she had developed tinnitus as a result of sleeping with ear plugs due to the noise nuisance she had experienced. The resident also stated that she had received an official diagnosis from an ENT consultant.
The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the noise experienced and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord

How the landlord handled noise nuisance from a scrapyard near the property

The landlord’s records state that the resident first informed it of the noise nuisance she was experiencing from the scrapyard on 29 March 2021. The landlord’s notes of the call say that it had advised the resident to contact the local authority. This was appropriate advice for the landlord to give, as the local authority would be able to take action against the scrapyard if statutory noise nuisance was confirmed.
The landlord’s records go on to state that the resident reported the noise penetration into the property as a defect on 27 July 2021. An inspection was arranged for 13 August 2021. The notes of the inspection say that the landlord found that noise from the scrapyard in the court yard of the development to be “considerably loud”, but minimal when inside a property with the windows closed. The landlord again advised the resident to contact the local authority and explained that it had no control over the operation of the scrapyard.
The landlord has further stated that during a visit to the resident’s property on 11 October 2021 that it was informed by the resident that she had contacted the local authority, who had carried out an investigation and had found the noise levels from the scrap yard to be within tolerance.
Following the formal complaint, the landlord undertook a joint inspection with builder’s construction inspector on 11 October 2021. This was appropriate as the property was still within the defects period at this time and therefore if any defects relating to noise penetration or soundproofing had been discovered, it would be the responsibility of the builder to resolve. In the stage one complaint response, the landlord informed the resident that its inspection had found the noise levels to be within tolerance when the windows were both open and closed. The landlord also provided the results of the acoustic test of the property which found the soundproofing to be acceptable.
Overall, the landlord has acted appropriately to the resident’s reports of excessive noise from the scrapyard. It arranged inspections of the property and the development, conducted joint inspections with the builder to ensure the property was in compliance with the relevant government regulations relating to soundproofing as described above, and informed the resident of its findings. It also correctly explained that the local authority was the proper body to investigate the level of noise from the scrapyard, as the landlord has no powers to do so. No evidence has been provided to show that that the noise penetration was as a result of a property defect. It was therefore reasonable of the landlord to decline the resident’s request to cover the costs of secondary glazing as the property was found to be in compliance with the relevant building regulations.
Ultimately the design and position of the building are the responsibility of the local planning authority, when considering whether to grant planning permission, what conditions are imposed on the design of the building, and then whether it is built correctly. Therefore the landlord is not responsible for the position of the property and the scrapyard, and it has met its obligations through the various inspections and explanations noted above.

How the landlord handled the sale of the property to the resident

In her original complaint and her escalation request, the resident said that she was misled by the landlord during the sales process, that she was only able to visit the property once before moving in, disputed the landlord’s statement that she had made three visits, noted that she was unable to open the windows of the property during her visit, and stated that if the landlord had properly conducted the sales process that she would have declined the property.
The landlord, in line with its complaints policy, would not normally respond to issues that occurred six months prior to the complaint being made. This is also in accordance with paragraph 39(e) of the Housing Ombudsman Scheme, which states that we will not consider complaints that 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. Therefore, it was reasonable for the landlord not to address specific elements in the complaint in detail in its responses that were outside of this time period.
However, the landlord did say that it would provide the resident with the evidence it had for viewing appointments. The evidence shows appointments were arranged for the resident to visit another property in the development on 25 July 2020 and an appointment to visit the property itself on 10 September 2020. It also provided a screenshot of its viewing appointments calendar which showed three prospective dates for an additional appointment. However, there is no evidence that any of these dates were accepted, or that the appointment went ahead. Despite these issues occurring more than six months prior to the complaint being raised, it was appropriate for the landlord to provide this evidence to the resident to explain how it concluded that there had been three visits to the development.
The landlord was also correct to explain that ultimately it was the resident’s responsibility as the purchaser to ensure she was satisfied with the property prior to purchase. As with any home purchase, the principle of ‘caveat emptor’ or ‘let the buyer beware’ will apply, which implies that it is for the buyer to ensure that the goods about to be purchased are fit for purpose and meet their specific requirements. In property transactions the seller is legally obliged not to mislead the buyer, but other than that, the onus is on the buyer to satisfy themselves that the property is appropriate for their needs before they purchase it.
Ultimately, the onus was on the resident to satisfy herself that the property was suitable and that there were no problematic issues affecting the surrounding area before she purchased it. This would include arranging additional appointments if they had not been able to test all of the property (such as the windows), and considering whether the location and surroundings of the property were satisfactory or not to them. No evidence has been provided by either party that issues of noise nuisance or the operation of the scrapyard were raised during the sales process or the resident’s viewing appointments at the development.

The landlord’s complaint handling

The landlord has recognised that there were delays during the complaint process at stage one and that it did not follow its complaint policy. The resident first requested to raise a complaint on 13 August 2021 and a stage one response was not provided until 12 October 2021: a period of 43 working days.
Moreover, the resident contacted this Service on several occasions to inform us that a complaint response had not been provided. The Ombudsman then wrote to the landlord on 3 and 22 September 2021, and on 4 October 2021 asking it to provide a response. It was not until the third letter, and the third deadline asking the landlord to respond to the resident, that a complaint response was then sent. This was likely to have caused inconvenience for the resident who needed to spend additional time and trouble pursuing her concerns as a result of the landlord’s failure to respond.
The landlord acted appropriately in apologising to the resident in the stage two response for this delay. However, the level of compensation it offered to the resident (£25) was disproportionately low when the length of the delay and the level of inconvenience caused to the resident is considered. Accordingly, while the landlord’s apology to the resident was appropriate, the omission of a fair and reasonable consideration of compensation was a service failure.
The Ombudsman’s own remedies guidance (which is available on our website) recommends a payment of £50 to £250 in cases of service failure resulting in some impact on a complainant. As an example of when this level of redress should be considered, the guidance suggests “failure to meet service standards for actions and responses but where the failure had no significant impact”.
Therefore, it would be appropriate for the landlord to pay the resident an additional £50 compensation, to bring to the total payment to £75, in recognition of the delay in providing the stage one response and for the inconvenience caused to the resident in seeking the intervention of this Service in order receive a complaint response.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of how it handled:
1. Noise nuisance from a scrapyard near the property.
2. The sale of the property to the resident.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling.

Orders

For the service failure and reasons set out above, the landlord is ordered to pay to the resident an additional £50. This payment should be made within four weeks of the date of this report.