Hammersmith and Fulham Council (202203108)

REPORT

COMPLAINT 202203108

Hammersmith and Fulham Council

23 February 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:

1. The landlord’s response to the resident’s reports about disruption, including cold and noise caused by building works in the property below.
2. The landlord not providing prior notification of the extent of building works it had permitted, and of the disruption the work would cause.
3. The landlord’s handling of the resident’s reports that the building work had caused cracks in the property walls.

Jurisdiction

2. The resident’s complaint regarding the landlord not providing prior notification of the extent of the building works that it had permitted, and the extent of the disruption that the work would cause, are outside the jurisdiction of this Ombudsman to consider. These issues are more likely to be considered by the Local Government and Social Care Ombudsman (LGSCO). This is because the landlord made these decisions in its capacity as a local authority, rather than as a social housing landlord. The Housing Ombudsman can only investigate complaints relating to a local authority’s functions as a landlord and we cannot investigate any activities which are not directly related to this. Complaints about local authorities other activities can be considered by the LGSCO. This is in line with paragraph 42(k) of the Housing Ombudsman Scheme, which states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
3. Based on the available evidence, it appears that the resident’s concerns the building work causing cracks in the property walls have not been considered through both stages of the landlord’s internal complaints procedure. Therefore, this Service is unable to investigate this complaint. This is in line with paragraph 42(a) of the Housing Ombudsman Scheme, which states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s [landlord’s] complaints procedure”.

Background

4. In November 2020, the resident, who is a secure tenant, raised concerns regarding the extent of work that was taking place in the property below. The work began in October 2020 and finished in July/August 2021. In his formal complaint to the landlord dated 8 February 2021, the resident explained that the work had caused his property to become ‘unbearably cold’, and that this had caused his heating bills to increase due to further use of central heating. He also raised concerns that there was disruptive noise during the works.
5. The landlord’s stage one response dated 2 August 2021, acknowledged that the works could be disruptive, but that there was no evidence that the contractors were working outside of the permitted building hours that had been granted with the license to build. The landlord also advised that it raised the resident’s concerns with the contractors on site, but that due to the extent of the project, and the fact that the resident was living directly above the work, it was not always possible to eliminate the disruption.
6. The resident was not satisfied with the landlord’s response and requested escalation of his complaint on 3 August 2021. He wanted to know why he had to pay more heating bills because of the works, and advised that there had been little consideration of his right to quiet enjoyment of the property. He advised that he wanted compensation in recognition of this, either in the form of a reduction in council tax or reduction in rent for the time period of which the works were ongoing.
7. The landlord’s final response to the complaint maintained its view that no further action was possible, as the leaseholder of the property below had been granted permission to conduct said works, and that the contractors worked within the permitted hours. The landlord explained that it would not be liable to offer compensation as leaseholders were permitted to make adaptations so long as they met the requirements of the permitted license. It also advised that there was no evidence to suggest that the disruption experienced was more than would be reasonably expected from permitted building works.
8. The resident advised this Service that he felt the landlord should have rehoused him for the time period in which the works were ongoing. He also advised that he was seeking compensation for the extra costs and inconvenience incurred from having to live above an active building site.

Assessment and findings

The landlord’s response to the resident’s reports about disruption and noise caused by building works in the property below.

9. The resident advised that there was significant disruption caused during the duration of the works on the property below. This disruption included a drop in temperature within his property, and also constant noise disruption over a significant period of time.
10. Following reports from the resident that his property had become “unbearably cold”, it would have been appropriate for the landlord to address this in order to determine whether there was anything it could have done to ensure the resident remained comfortable within his home. On 25 January 2021, the landlord advised the resident that it could arrange for a heat loss survey to be carried out, in order to determine how severe the heat loss was, and how it could be resolved. Whilst this was an appropriate suggestion, there is no evidence to suggest that the landlord arranged for the survey to take place. Considering that the resident continued to consistently raise the issue with the landlord in email correspondence, and also in his formal complaints, it would have been appropriate for the landlord to be proactive regarding the issue, and to arrange the survey for the resident.
11. Additionally, the landlord is obliged in line with the Decent Home Standard to provide the resident with a reasonable degree of thermal comfort within the property. For example, it is noted that the property must have “both effective insulation and efficient heating”. As such, the landlord should have carried out the heat loss survey to establish whether the correct standard was being met.
12. It is also important to note that excess cold is a hazard under the Housing Health and Safety Rating system, as it can cause “threats to health from sub-optimal indoor temperatures”. These concerns are even more pressing given that the issue began during the winter months. Had the survey been completed, there may have been steps that the landlord could have taken to ensure not only the resident’s comfort, but health and safety during the colder winter months.
13. The health and safety of residents should be at the forefront of the landlord’s concerns, and failure to address such important issues is a significant failure by the landlord. This also represents a failure to appropriately respond to this aspect of the resident’s complaint.
14. Failure to address such a significant aspect of the resident’s complaint likely had a detrimental effect on the landlord/tenant relationship. Additionally, it could have conveyed to the resident, a sense that his complaint, safety, and concerns, were not being taken seriously.
15. Regarding the noise disruption experienced by the resident, the landlord advised that the leaseholder of the below property had been given clear guidelines regarding the times that work was allowed to be carried out. The landlord acknowledged that there would have been noise disruption given the extent of the works, and the fact that the resident lived directly above the work site. However, the landlord advised that there was no evidence to suggest that the contractors had worked outside of these timeframes. This was not disputed by the resident.
16. Even so, the landlord advised the resident that it had addressed his concerns with the contractors on site. Whilst there was no evidence to suggest that the noise disruption was outside of the permitted working hours, it was appropriate for the landlord to address the issue with the contractors to see if they could take any reasonable measures to minimise noise going forward.
17. Given the evidence provided, it is not clear that the noise caused was more than what would be usually expected for such building works. As there was no evidence to suggest that the contractors had continued work outside of the permitted times, the landlord could not reasonably have taken action against them to reduce noise.
18. There was undoubtably disruption caused by the works, in both the form of potential heat loss, and noise nuisance. However, whilst the noise issues were determined to have been no more than usually expected during such works, the landlord failed to properly address and inspect the potential loss of heat at the resident’s property. Given that loss of heat, and potential excess cold is potentially a health risk, and when also considering that the works were ongoing for roughly 10 months (including winter months), there was maladministration by the landlord in its failure to appropriately address this issue.
19. The landlord should pay compensation to the resident in recognition of this. This Service’s remedies guidance (published on our website) sets out our approach to compensation. The remedies guidance suggests that for instances in which there was maladministration that “adversely affected the resident” over a significant amount of time, a payment of £400 would be reasonable.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports about disruption, including cold and noise caused by building works in the property below.

Orders

21. The landlord is ordered to pay a total of £400 to the resident. This is to be paid within four weeks of the date of this investigation.