Clarion Housing Association Limited (202206997)

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REPORT

COMPLAINT 202206997

Clarion Housing Association Limited

9 March 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 of noise transference from a neighbouring property.
    2. The landlord’s handling of the associated complaint.

Scope of investigation

  1. Paragraph 42(m) of the Scheme states that the Ombudsman may not investigate complaints which seek to raise again matters which the Housing Ombudsman or any other Ombudsman has already decided upon. It is noted that this Service previously made a determination on the resident’s complaint about the landlord’s response to her report of noise transference. The date of the last response considered in that investigation was 12 January 2021. Therefore, in accordance with paragraph 42(m) of the Scheme, this investigation will focus on events occurring after 12 January 2021 and a determination will not be made on events prior to this.

Background

  1. The resident is a tenant of the landlord and previously raised a formal complaint about its handling of her reports of noise transference from her neighbour’s property. It offered, in its final response dated 12 January 2021, to provide noise recording equipment to monitor the level of noise being transferred to the resident’s property.
  2. The landlord agreed an antisocial behaviour (ASB) action plan with the resident on 9 April 2021. It informed the resident,on 10 June 2021, that there was no evidence of actionable ASB that it could pursue and said that it could instead pursue the tenancy breach process against her neighbour for their use of laminate flooring in their property. The landlord informed the resident, on 9 March 2022, that the tenancy breach process was complete as the neighbour had laid carpet in their property.
  3. The resident raised a stage one complaint with the landlord,on 10 March 2022,in which she disputed that the neighbour had installed carpet because the noise transference continued. She wanted the neighbour’s property to be inspected by a surveyor to confirm the presence of the carpeting.
  4. The landlord’s stage one response, on 7 April 2022, said that it had received photographic evidence of the carpeting but had been unable to gain access to inspect the property. It stated that there had been no breach of tenancy by the neighbour as there was no specific prohibition of laminate flooring in their tenancy agreement. The landlord offered the resident £50 compensation for its miscommunication about this. It wrote to her on 25 April 2022 to say that it had inspected the neighbour’s property on 1 April 2022, and confirmed that carpet had been fitted throughout.
  5. The resident escalated her complaint with the landlord, on 26 April 202,2 as she was unhappy with the conflicting information about when the inspection was carried out, and whether or not the neighbour had breached their tenancy. The landlord’s final response, on 17 June 2022, offered the resident £250 compensation for providing conflicting information about the inspection and whether the neighbour breached their tenancy. It: provided an explanation for both issues; confirmed its interventions were exhausted; offered tenancy sustainment support; and offered £50 compensation for its late complaint response.
  6. The resident informed the Ombudsman, on 22 September 2022, that she remained dissatisfied as she continued to experience noise transference. To resolve this, she wanted the landlord to install sound insulation.

Assessment and findings

The landlord’s response to the resident’s reports of noise transference from a neighbouring property

  1. The landlord’s ASB policy states that it does not consider ASB to include “every-day living situations which are not intended to cause nuisance or annoyance”; this includes “household noise due to every-day living”.
  2. It should be clarified that it is not the role of the Ombudsman to determine whether or not noise transference occurred, nor to establish the extent of any noise transference. The role of the Ombudsman is to determine whether the landlord responded appropriately to the resident’s reports of noise transference, in accordance with its obligations and the circumstances of the case. This may involve investigating the level of noise transference and carrying out any remedial work it was responsible for, if appropriate.
  3. The landlord handled the resident’s reports of noise transference reasonably. A landlord is not usually obliged to provide sound insulation or noise-proofing. Exceptions to this are if it was evidenced that the property was not built in accordance with the building regulations covering this at the time of construction, or if there was evidence of statutory noise nuisance and this posed a hazard to the resident’s wellbeing.
  4. Therefore, when the landlord receives a report of excessive noise from a resident, it would be expected to investigate to determine the extent of the reported noise transference. In this case, the landlord appropriately installed noise recording equipment, asked the resident to provide incident diary sheets to establish the pattern of the noise, and reviewed the noise recordings for evidence of actionable ASB which could lead to enforcement action. When it found no evidence of actionable ASB, it was reasonable for it to close the ASB case and consider alternative methods to resolve the issue.
  5. When the landlord closed the ASB case, it reasonably investigated whether there had been a tenancy breach by the neighbour in laying laminate flooring which allowed for greater noise transference. It would be expected of a landlord to enforce the terms of residents’ tenancies, given that these are the contractual obligations between a resident and the landlord, and especially where a lack of adherence was impacting a neighbour. The landlord demonstrated that it acted appropriately on the resident’s reports and made efforts to resolve the situation for her.
  6. There was conflicting information provided by the landlord to the resident about whether or not the neighbour had breached their tenancy. When the resident sought her MP’s intervention in the matter, the landlord advised them that it was taking tenancy enforcement action to compel the neighbour to replace their laminate flooring with carpet. However, in its subsequent stage one complaint response to the resident, the landlord said that there had not been a breach of tenancy.
  7. It was reasonable for the landlord, in its final stage response, to acknowledge that its communication had not been clear on the matter. It was also reasonable for it to explain that this discrepancy had arisen from its staff examining the neighbour’s original tenancy agreement, without considering its standard terms and conditions of tenancy. This stipulated that hard flooring could not be installed without permission. This was a failure by the landlord to investigate the matter fully, resulting in mixed messages being provided to the resident, leading to frustration and uncertainty for her.
  8. The resident also held that the landlord had been contradictory in saying, on 7 April 2022, that it had not inspected the neighbour’s property, and then later saying that it had inspected the property on 1 April 2022 to confirm that carpet had now been laid in their property. The landlord’s final response explained that, at the time of issuing the stage one response, it had not received information about the inspection carried out on 1 April 2022. It was reasonable for it to update the resident on 25 April 2022 to confirm the outcome of the inspection, but it would have been helpful for the landlord to have explained why this information was not available for its initial response. There was a failure here to relay updates to the resident in a timely manner.
  9. It is also noted that, once the landlord informed the resident on 10 June 2021 that it would pursue a tenancy breach process with the neighbour, there followed a period of approximately ten months before the matter was resolved. It is problematic to impose a timeframe for the resolution of a tenancy breach issue, given that the landlord’s actions needed to be proportionate to the circumstances, and that the outcome was dependent on the cooperation of a third party. However, when the process became protracted, the landlord should have provided regular updates to the resident, in light of her continuing distress from the unresolved noise transference.
  10. There was no evidence of the landlord providing updates to the resident between 10 June 2021 and 8 September 2021, when she sought the intervention of her MP to resolve the issue. It was unreasonable that it did not provide any updates to her during this time, and that she was required to expend time and effort in seeking intervention from her MP to prompt a response. After the intervention of the MP, the landlord did reasonably provide regular updates on the situation to the resident, through her MP, until the tenancy breach process was completed.
  11. The actions taken by the landlord – to investigate the noise, commence enforcement action with the neighbour, and offer tenancy sustainment support – were reasonable in the circumstances. However, it did exhibit communication failures in providing conflicting information to the resident and not providing her with regular updates. Therefore, the landlord’s offer of £300 compensation to the resident in total for its communication failures – £50 at stage one and £250 in its final response – was reasonable in the circumstances.
  12. The Ombudsman’s remedies guidance, available to view online, provides for awards of compensation of between £100 and £600 for instances of failure by alandlord which led to significant distress and inconvenience for a resident over a considerable time. Given the extent of the communication failures exhibited, its offer of £300 compensation was significant and at the higher end of what would be normally awarded in similar cases. Therefore, the landlord made an offer of redress to the resident which adequately and proportionately recognised the detriment caused to her by its failures.

The landlord’s handling of the associated complaint

  1. The landlord’s complaints policy provides for a two-stage internal complaints procedure. At the first stage, it should provide its response to the resident within ten working days; at the final stage it should respond within 20 working days. These timeframes mirror those set out in the Ombudsman’s Complaint Handling Code.
  2. The resident raised her stage one complaint with the landlord on 10 March 2022 and it provided her with its stage one response on 7 April 2022. This was after 20 working days. The resident escalated her complaint with the landlord on 26 April 2022, to which it responded on 17 June 2022. This was after 35 working days.
  3. The landlord, therefore, exceeded the response times in its policy by a total of 25 working days in total. This was a failure to handle the complaint in accordance with the timeframes specified in its complaints policy. It was appropriate for the landlord to recognise, in its final complaint response, that it had responded late at this stage. However, there no acknowledgement in its responses that the stage one complaint response was also issued late.
  4. There was no evidence that the lateness of either complaint responses led to further detriment for the resident. Given this, and that the compensation offered by the landlord for its communication failures was significant, the £50 compensation it offered for its failure to adhere to its complaint response times was reasonable for the failures exhibited, in the overall circumstances of the case.

Determination

  1. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord made an offer of redress to the resident which, in the opinion of the Ombudsman, satisfactorily resolves the complaints concerning:
    1. Its response to her reports of noise transference from a neighbouring property.
    2. Its handling of the associated complaint.

Recommendations

  1. The landlord should:
    1. Pay the resident the £300 total compensation it offered her in its stage one and final complaint responses for its communication failures.
    2. Pay the resident the amount of £50 compensation which it offered her in its final response for its handling of the complaint.
    3. Review the training of its staff and implement changes to ensure that all staff are aware of tenancy terms and conditions and the process for investigating these.
    4. Review its policies and practices in line with the Ombudsman’s “Spotlight on: Noise Complaints” report.