Clarion Housing Association Limited (202121057)

REPORT

COMPLAINT 202121057

Clarion Housing Association Limited

28 October 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 is about the landlord’s handling of the resident’s:
1. Reports of noise nuisance from his upstairs neighbour.
2. Request for soundproofing in the property.
3. Reports of inadequate heating in the property.
4. Associated complaint.

Background

The resident is an assured tenant of the landlord. The resident lives in a flat within a building comprised of similar properties.
The resident started reporting “excessive noise” from the property above on 7 January 2021. This included slamming doors and heavy footsteps. The resident reported similar occurrences of noise nuisance on at least a further three occasions between 8 January 2021 and 26 August 2021. During this time period, the resident also reported concerns about draughtiness in his property coming from the windows.
The resident himself received a tenancy warning on 12 August 2021, following reports of excessive loud music from his property.
The resident complained to the landlord on 25 September 2021. He stated that the noise nuisance from his neighbour was still ongoing. He felt that the landlord was ignoring his reports, despite being aware of the impact on his sleep and wellbeing, which he said was also affecting his child. He also raised concerns about discrimination and the landlord being biased towards his neighbour. The resident requested for soundproofing to be installed as a resolution to the noise issues.
In response to the resident’s reported of a draught, the landlord attended the property on 7 December 2021 and draught excluders were fitted to the resident’s windows and doors.
The resident reported on 8 December 2021 and 13 December 2021 that the neighbour was slamming doors, walking heavily on the floor, and running around.
The resident raised a further complaint on 15 December 2021. He stated that he had lost his job as a result of the noise nuisance, as he was unable to work due to the lack of sleep. Further concerns about discrimination and bias were raised. The resident also raised concerns about the draughtiness from the windows and stated the property was ‘freezing’.
In January 2022, the resident reported the noise nuisance on a further two occasions.
The landlord provided its stage two complaint response on 18 February 2022. It stated that it would not be able to install soundproofing at the property, but would request both neighbours be mindful of the noise being made so as not to create an intentional disturbance. Furthermore, the tests carried out showed that the noise was ‘everyday living noise’ and there was no evidence of his neighbour doing ‘anything wrong’. In regard to the resident’s concerns about discrimination, the landlord stated it had no evidence that discrimination had taken place during the investigation, and any tenancy warnings issued to the resident were ‘appropriate’ in the situation. However, the landlord did offer the resident £100 compensation due to its delays in conducting the ASB investigation.
The resident received a further tenancy warning on 25 February 2022.
Due to consistent reports of noise nuisance, Environmental Health attended the property on 11 April 2022. It found that there was “unreasonable excessive noise transference” in the property.
The resident referred this matter to this Service on 4 May 2022. The resident remains dissatisfied as he is still experiencing noise nuisance and cold in his property. As a resolution the resident would either like to be moved to another property or have soundproofing installed in his current property.

Assessment and findings

Policies and procedures.

The landlord’s anti-social behaviour policy (ASB) defines ASB as:
1. Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
2. Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
3. Conduct capable of causing housing-related nuisance or annoyance to any person.
The ASB policy states that reports due to different lifestyles or every-day living situations which are not intended to cause nuisance or annoyance would not typically be considered as ASB. This includes:
1. Children playing;
2. Household noise due to every-day living (e.g. proportionate TV, music / radio noise, noise from electrical items such as washing machines or vacuum cleaners).
The repairs and maintenance policy states that non-emergency repairs should be attended to within 28 working days

Scope of investigation

The resident has referenced how the noise nuisance has impacted his mental and physical health, including his sleep. The Ombudsman does not doubt the resident’s comments. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is because it is beyond our remit to determine if there is a direct link between the landlord’s actions or inaction and the resident’s health issues. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.
Likewise, the resident felt that the landlord had acted in a discriminatory way towards him based on his gender and race, namely the resident felt that the landlord was “not taking his claims seriously because he is a young, black single male”. The resident felt that the landlord has taken the side of a “single, white female with children” rather than being impartial throughout the process. This was mainly due to the fact he received tenancy warnings, whilst his neighbour did not. It is important to note that this Service cannot determine whether discrimination has taken place in the legal sense, as this would be better suited to a court to decide. However, we can look at whether the landlord responded fairly and appropriately to the resident’s allegations of misconduct by its staff and whether there is any evidence that he was treated differently from other residents in the same situation.

Noise nuisance

It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to his reports of ASB. The role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
Upon receiving reports of noise nuisance, the landlord should first investigate the allegations made, to see if the noise is considered to be every-day living noise, or if the noise is deemed to be anti-social and disruptive to other residents.
As per the landlord’s ASB policy, household noise due to every-day living would not be classified as a noise nuisance. As the resident was mainly reporting footsteps and banging from upstairs, this would likely be classified as every-day living noise as per the landlord’s ASB policy and would not be subject to the ASB procedure which includes tenancy warnings. It is acknowledged that the some of the noise was occurring between 11pm and 6am; however, owing to the structure of the building and the significant noise transference between the properties, it would still be classified as ‘every-day living noise’ as the reports were of footsteps which can reasonably occur at any time of the day or night. Therefore, the landlord was reasonable in not issuing tenancy warnings to the neighbour as there was no evidence of a breach of tenancy.
As an outcome to his complaint, the resident requested for the ASB to be ‘resolved’. However, the evidence shows that the noise being reported is not ASB as per the landlord’s ASB policy as it is ‘every-day’ living noise such as footsteps and children playing. Instead this appears to be a soundproofing issue between the properties, which will be explored further below.
When receiving complaints regarding discriminatory behaviour the landlord should complete a full and thorough investigation into the resident’s claims. Essentially, the resident was reporting ‘every-day living noise’ to the landlord, which would not serve as a sole reason to issue tenancy warnings, as per the landlord’s ASB policy. Conversely, the behaviour the neighbour was reporting was harassing, verbally abusive and disruptive behaviour, which would fall into the ASB policy as she reported that this behaviour caused her ‘distress’ and made her feel ‘harassed’, which led to police involvement. This included ringing her doorbell at unreasonable hours, playing loud music and approaching her in stairways. This Service acknowledges that the resident disputes aspects of this version of events; however, the landlord was reasonable and acted in-line with its ASB policy, in issuing the tenancy warnings in light of the reports received. Therefore, the landlord was reasonable to conclude that there had been no evidence of discrimination based upon the issuing of the tenancy warnings.
It is acknowledged that the landlord should have been clearer in its communication with the resident in regard to the tenancy warnings being issued. It would have been best practice for the landlord to explain its ASB policy, and explain why the incidents the resident was reporting would not be deemed to be ASB and why the behaviour his neighbour was reporting would have been considered ASB. This may have helped the resident understand the difference in incidents and assure him that the landlord was taking both sides’ claims seriously.
Furthermore, the landlord should have made its position about the ASB clearer. It remained unclear throughout the whole process if the landlord was treating the noise as ‘ASB’ or as ‘every-day living noise’. This impacted the resident as he had no expectations set, and despite it being evident that the noise would not be handled in line with the landlord’s ASB policy, the landlord did not make this position clear. However, the landlord did attempt to remedy this failing by offering the resident £100 compensation, which this Service finds reasonable under the circumstances.
The delays to the ASB procedure left the resident with a lack of support and communication from the landlord which would have added to the distress of the situation. In its response to the resident’s complaint, the landlord acknowledged the delays in it ASB investigation and the impact this would have had on the resident.
The landlord offered the resident £100 compensation in regard to its delays in handling of the ASB case. This compensation is in line with the Ombudsman’s remedies guidance (published on our website) which suggests awards of £50 to £100 for cases where the Ombudsman has found service failure by the landlord resulting in minimal impact on the complainant. We recognise that there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant. Therefore, the landlord has offered a reasonable amount of compensation, in view of these errors.
It is noted that the resident requested to be moved into a different property due to the noise nuisance. The Ombudsman can understand the resident’s reasons for wanting to move. However, the Ombudsman would not order the landlord to move a resident immediately as part of our investigation. This is because we do not have access to information regarding the availability of suitable vacant properties owned by the landlord at any one time and we do not have details of any other prospective tenants waiting to move who may have higher priority than the resident for rehousing. In general, the highest priority is given to people facing homelessness or fleeing domestic violence. It is recommended that the landlord should continue to support the resident with his request to transfer from his current property and discuss his options with him, if it has not done so already.

Soundproofing.

The landlord is required to maintain the property, but it is not required to make improvements. The property was converted at a time when standards were not as stringent as today and provided that there are no significant health and safety risks, the landlord is entitled to leave the property as it is, without any alterations. The landlord would not ordinarily be required to soundproof the property on the basis of noise transference. However, upon receiving persistent noise transference reports the landlord decided to engage with Environmental Health to carry out a specialist survey to assess the level of noise transference in the building; this was a reasonable step on the part of the landlord, because it demonstrated a willingness to seek to identify ways that noise transference might be reduced.
Environmental Health attended the property and completed a survey against the Housing Health and Safety Rating System (HHSRS) which showed that there was “unreasonable excess noise” from the flat above into the resident’s property, meaning there was a potential breach of the HHSRS. The report produced findings to “justify serving an improvement notice” which would require the landlord to hire an acoustic specialist and implement any recommendations. However, upon the basis of wanting to “work with the landlord”, Environmental Health did not issue the order and preferred to “co-operate so the works were done by agreement rather than serving an enforcement notice”.
However, in the evidence provided to this Service the landlord has not acted upon the advice from Environmental Health and has not sought to co-operate to find a reasonable solution. Instead, the landlord had undermined the findings of the specialist by stating that it “does not feel there is sufficient grounds to serve an enforcement notice” despite having evidence presented to it. This is inappropriate, and at this stage showed an unwillingness to find a resolution to a problem that existed.
In addition, the landlord stated that it had similar properties in which noise complaints had not been made, leading it to conclude that the reports were due to the “relationship of the two residents’” rather than the “structural integrity of the building”. This is despite being informed of the lived experiences of the residents and the specialist report from Environmental Health. Whilst both neighbours may have a strained relationship, it is not reasonable to blame the residents for the sound issue, when the landlord had been provided a professional and specialised report which stated that the noise transference was excessive.
The landlord should have sought to co-operate with Environmental Health to find a reasonable solution to the noise transference. Therefore, this Service is ordering the landlord to hire an acoustic specialist to complete a report on the property, and it should implement any recommendations made unless it can demonstrate that it would not be reasonable possible to do so, as a way of resolving the noise transference.

Heating.

As per the repairs policy, the landlord should attend the property within 28 working days of a non-urgent repair being raised.
In this case, the resident reported draughts in his property in July. The landlord subsequently arranged an appointment on 19 August 2021, but the operate was unable to gain access to the property. It then rearranged the appointment for 24 September 2021, but again no access could be gained. The landlord did not attempt to rebook any appointments after this date. Whilst this Service does not question the reasons why the resident did not attend the appointments, this delay cannot be attributed to the landlord as it made appropriate appointments as per its repairs policy and, therefore, a failing had not occurred.
The resident reported draughts again in November 202. In line with the landlord’s policy, an appointment was scheduled for 16 November 2021 but the operative was unable to gain access to the property. The appointment was rearranged for 7 December 2021. During this appointment draught excluders were fitted to the resident’s windows and doors as they were identified as a sourced of draughtiness. This was a reasonable attempt from the landlord to fix the draughtiness in the property.
The resident reported further heat retention issues in the property on 14 December 2021. The landlord made active attempts to arrange an appointment from 31 December 2021 onwards. However, the appointment was not attended to until 10 March 2022, 29 days outside of the landlord’s repairs policy.
The appointment identified that the radiators in the bedroom and bathroom were too small for the property, and it was requested that new radiators be installed. However, as of 7 July 2022 the new radiators had not been installed and the resident had “not heard anything” in regard to booking an appointment. This is a failure by the landlord as the repair has remained outstanding for at least 59 days outside of its policy obligation of 28 days, without a reasonable explanation as to why the repair is delayed and without communication as to when the resident could expect the radiators to be installed. The landlord should install the new radiators within four weeks of this report, if it has not already done so, and provide sufficient communication with the resident about the repairs process and timeframes.
In consideration of the above, the landlord should pay the resident £150 compensation.. This is in line with the Ombudsman’s remedies guidance, which suggests awards in this range where the landlord has failed to acknowledge its failings and/or has made no attempt to put things right, but there has been no permanent impact on the resident.

Complaint Handling.

The landlord’s complaints policy does not have specific timeframes as to when complaint responses should be issued. However, as per the Housing Ombudsman Complaint Handling Code, a stage one response should be issued within 10 working days and at stage two of the landlord’s internal process, a response should be received within 20 working days.
In this case, the landlord provided the resident with two separate stage one complaint responses. The first complaint was raised on 25 September 2021; however, a response was not issued until 4 January 2022. This response was 61 working days late, based on the expected timescale for a stage one response. At stage two, the resident requested an escalation on 4 January 2022; however, a response was not provided until 33 working days later, meaning the landlord delayed its stage two response by an additional 13 working days. Throughout the complaint process the landlord has delayed complaint responses, and not provided any reason for this to the resident or this Service. Therefore, this is a failure in the landlord’s complaint handling.
Moreover, the landlord added confusion to the complaint procedure as it addressed the resident’s complaint in two separate stage one responses; however, upon the escalation to stage two, it completed just one overall response. This meant that the resident was unaware of where he was in terms of the progress of his complaint, which made it difficult to know if the full complaint had been progressed via the landlord’s internal complaint procedure.
The landlord was aware that the resident has dyslexia and might have struggled with some of the communication, such as long complaint responses. There is no evidence to suggest that the landlord considered this in the complaints process, and it did not offer the resident any other forms of communication such a phone call, which may have been appropriate. The landlord should contact the resident to establish his preferred method of communication moving forward.
In response to its poor complaint handling, the landlord offered £75 compensation. This compensation is in line with the Ombudsman’s remedies guidance, as set out above.. Therefore, the landlord has offered a reasonable amount of compensation for this aspect of the complaint.

Determination

In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint regarding the landlord’s handling of the resident’s reports of ASB satisfactorily
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the resident’s request for soundproofing in the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the resident’s reports of inadequate heating in the property.
In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint regarding the landlord’s handling of the associated complaint satisfactorily.

Orders

The landlord is ordered to:
1. Hire an acoustic specialist to complete a report of the noise in the property. This should be completed within four weeks of this report. Following on from the report, the landlord should action any recommendations made by the acoustic specialist unless it is not reasonably practical to do so. This should be completed within three months of the recommendations.
2. Pay the resident £150 compensation for the delays in installing the new radiators.
3. Install new radiators in the resident’s bathroom and bedroom. This should be completed within four weeks of this report.

Recommendations

It is recommended that the landlord pay the resident the £225 compensation offered to him, as a result of the complaints process. This includes:
1. £100 for delays in its ASB investigation;
2. £50 for incorrect information;
3. £50 for delays to its stage one response; and
4. £25 for delays to its stage two response.
It is recommended that the landlord add in timeframes for complaint responses to its complaints policy, in-line with this Service’s Complaint Handling Code (which can be found on our website).