Metropolitan Thames Valley Housing (MTV) (202225442)

REPORT

COMPLAINT 202225442

Metropolitan Thames Valley Housing (MTV)

28 March 2024

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 the landlord’s handling of the resident’s reports of noise transference and ventilation issues within the property.
2. The landlord’s handling of the complaint has also been considered.

Background

3. The resident is an assured tenant of the landlord, living in a flat. There is a factory opposite the resident’s flat. The resident has rheumatoid arthritis and high blood pressure.
4. On 26 September 2018 Environmental Health (EH) contacted the landlord as it had received complaints from the resident’s block about noise from the factory and stated it aimed to implement mitigation measures. The council subsequently told the landlord on 11 May 2022 that it had not complied with condition 14 of the planning permission.
5. The resident requested to raise a complaint on 24 August 2022 as he said he was experiencing noise levels which were likely to harm his health. He also said the property did not conform to building regulations relating to ventilation. He asked the landlord to complete an assessment under the housing health and safety rating system (HHRSS) to determine that the property was uninhabitable. He said the issues were causing him stress and discomfort and were impacting his mental and physical health.
6. The landlord issued its stage 1 response on 16 February 2023. It said:
   1. It had completed due diligence when it purchased the property. The properties were inspected and signed off by the warranty provider and Building Control and it believed at the time that they were fully compliant. It had incorrectly assumed that post completion acoustic checks had been completed, in line with the planning conditions.
   2. When the resident initially raised his concerns, there was an element of poor organisation and communication. It acknowledged initial delays in engaging with the council, but it was since providing updates on the investigation.
   3. It had installed high performance trickle vents in 2 flats as a pilot test on 3 December 2022 and then installed sound loggers between 5 December 2022 and 12 December 2022. A meeting was scheduled for 6 February 2023 to discuss the consultant’s report. It would arrange for the acoustic trickle vents to be installed within a 10-12-week timeframe.
   4. It had appointed suitably qualified contractors to complete the investigations. If the resident wanted to dispute the findings, he could appoint an expert party to review them.
   5. It acknowledged the impact of the noise on the resident’s health and wellbeing. It would continue to investigate if there were failings around the soundproofing of the building and if it was responsible.
   6. It had liaised with the council to secure the resident a transfer to alternative accommodation, which had been approved, but the resident had not taken the necessary actions to re-join the housing register. It had also offered a move to an alternative 1-bedroom property. The resident had rejected the offer as he wanted a 2-bedroom property, which it was unable to offer.
   7. In response to the resident’s concerns that it had deliberately put tenanted properties in the noisiest parts of the building, it said it followed the agreement from the planning authority, in terms of tenure types and their locations, which it did not have control over.
   8. It acknowledged failings in its handling of the matter but did not think it had failed the decent homes standard. It offered £150 compensation for poor complaint handling and £100 to recognise time and trouble.
7. On 16 February 2023, the resident told the landlord he was dissatisfied with its stage 1 response. He said the property had never complied with plans and building regulations, which exposed him to noise, which the landlord had not addressed. The contractor only attended his property for 30 minutes and the windows were shut. He wanted an independent survey to be completed. He also said the landlord had failed to demonstrate there was sufficient ventilation. He was dissatisfied with the landlord’s offer of alternative accommodation as it was within the same block so did not conform to building regulations.
8. In its stage 2 response on 24 March 2023, the landlord said:
   1. Ventilation checks completed at the time of the build were in line with the legislation at the time, where the opening of the windows did not need to be considered. Recent checks had confirmed the ventilation met required legislation.
   2. When the resident initially reported the noise, EH had looked at the cause of the noise rather than the barriers to minimize it, so it thought the issue needed to be addressed by the factory. EH told it to address the issue in May 2022 and it had since carried out testing and sought a suitable solution. It had submitted the proposed works to the council.
   3. Once approved by the council, it would install acoustic trickle vents within 10-12 weeks subject to delivery and access.
   4. The property offered was in the same block, on the opposite side, which did not experience noise issues. The offer was intended to provide a resolution. The resident did not meet the criteria for home loss payments.
   5. It had not complied with its service agreements relating to complaints and it should have provided more updates. It was assessing its complaints team structure to provide a more efficient service. It recognised the delay impacted his referral rights to the Service.
   6. It offered £2000 compensation, comprised of £270 for the complaint handling delays, £130 for poor complaint management and lack of updates, £800 for service failure (including the complaint not being logged when originally requested, failing to identify that the checks had not been completed, and the initial lack of communication with the council), and £800 for time, trouble, and inconvenience to quality of life.
9. In the resident’s complaint to the Service, he said he remained dissatisfied as although the landlord had identified its administrative errors, it had not acknowledged the significant impact on him. He said the landlord had not addressed that there were no vents or air bricks in his living space, as required by the planning requirements, and had conflated the issue of purge ventilation and trickle ventilation. The landlord had not taken any action following its stage 2 response to resolve the noise transference and ventilation issues, so the impact on him was ongoing. The noise had a significant impact on his sleep, and he had health conditions which were impacted by stress. He thought the landlord had avoided taking accountability for the issue by offering alternative accommodation, which was unsuitable for his requirements.

Assessment and findings

Scope of investigation

10. It is understood that the issues with noise disturbance from the factory were initially recognised in 2018. At this stage, EH pursued the issue with the factory, rather than the landlord. The council subsequently advised the landlord on 11 May 2022 that it had not complied with the planning condition. As such, the landlord only became aware that the issue was within its remit of responsibility from May 2022, and as such the Service will not consider the noise disturbance dating back to 2018, as the landlord did not have a reasonable opportunity to respond.
11. The resident has reported that the noise disturbance issues have impacted his health. While the Ombudsman is sorry to hear this, it is beyond the expertise of the Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
12. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts are able to rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, he should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy / its legal obligations, and fairly in the circumstances.
13. The resident raised concerns regarding the landlord’s staff member being negligent. The Service will consider the response of the landlord as a whole and only comment on the actions of individuals only in so far as they are acting on behalf of the landlord. Therefore, if the actions of an individual member of staff give rise to a failure in service, the Ombudsman’s determination and any associated orders and recommendations would be made against the landlord rather than the individual. Furthermore, negligence refers to a failure which breaches a duty of care and is more appropriately determined by the courts. As such, if he wants to pursue the matter he should do so via the courts.

The landlord’s handling of the resident’s reports of noise transference and ventilation issues within the property

14. The council sent a letter to the landlord on 11 May 2022 stating that it had not complied with the planning condition which related to the requirement for acoustic sound testing to be submitted within 6 months of occupation of the housing scheme. The council sent a second letter to the landlord on 4 June 2022 and asked it to provide further information regarding the ventilation. The resident also reported to the landlord there was noise transference from the factory occurring from plant machinery tonal noise, lorries, and trailer loading, which was causing him disturbance.
15. In its complaint response, the landlord recognised it incorrectly assumed the developer had carried out the post completion acoustic checks required to fulfil the planning condition. Upon being notified of the failing, the landlord should have provided the council with the requested information and took steps to ensure it was compliant with the planning conditions relating to noise transference and ventilation. It is understood that the landlord experienced issues obtaining the required information from the developer. As a result, it experienced delays in providing the council with the necessary information, that were somewhat outside of its control. To prevent any further delays, it was reasonable that the landlord appointed a contractor on 8 July 2022 to complete acoustic testing.
16. The landlord wrote to the council on 19 August 2022 and said a specialist noise consultant attended on 26 July 2022 and a ventilation consultant attended on 15 July 2022. It proposed several solutions to the council for approval, including installing air bricks and acoustic trickle vents. A further site inspection report on 28 September 2022 also recommended to review the installation of trickle vents in line with the planning conditions.
17. The landlord subsequently told the resident on 4 October 2022 that it would complete a pilot test in 2 flats to assess whether the proposed works would be successful. The landlord asked the resident whether he would move out of the property for a week, which it would pay for, to accommodate the pilot works. It would install acoustic trickle vents and sound loggers for a week. Given the significant impact of the noise on the resident, it was reasonable that it offered to include him within the pilot works so it could potentially provide him a quicker resolution. It is understood that the resident did not provide permission, so it was appropriate that it proceeded with the pilot works in a different property to prevent further delays in reaching a full resolution for all the impacted properties.
18. A subsequent site inspection report on 28 September 2022 recommended to repair the damaged flex duct connection in the resident’s flat and clean the dust and debris from the extract grilles and trickle vents to maintain the correct and required flow rates. However, there is no evidence to confirm the works were completed. An order has been made for the landlord to address this below.
19. The resident also said the landlord’s pilot programme only addressed issues with background ventilation rather than purge ventilation, and he thought it was conflating the issues. In its stage 2 response, the landlord said ventilation checks were in line with the legislation at the time, where the opening of the windows did not need to be considered. At the time of the pilot works, the landlord was acting on the available evidence to find a suitable solution. It also said that if the resident disputed the findings, he could appoint an expert party to review the findings.
20. It was reasonable that the landlord made several offers to the resident to move to an alternative property, to alleviate the impact of the noise. On 14 June 2022 it told the resident it had liaised with the council, and they had approved a transfer in principle and the resident had to re-join the housing register to complete the process. It is unclear whether the resident further explored this option, so there may have been a missed opportunity to reach a suitable solution at an earlier date. The landlord further discussed rehousing options with him on 11 November 2022 and offered a different property within his current building that faced away from the factory, which the resident declined as the properties had the same ventilation issues. It also offered a property in a different development, but the resident told the Service that he declined the offer as it would have led to him incurring additional costs. The resident should not be expected to accept a move that would have a negative financial impact on him.
21. The landlord recognised in its final complaint response that it had failed to identify that the post completion acoustic checks had not been completed by the developer and it had not effectively communicated with the council when they initially raised the building concerns. It offered £1600 compensation, comprised of £800 for its service failure and £800 for the time, trouble, and inconvenience to the resident’s quality of life.
22. In line with the Service’s remedies guidance, awards of over £1000 are appropriate when there have been serious failings by the landlord, which have had a serious detrimental impact on the resident. In this case, the landlord’s failings have had a significant impact on the resident’s sleep and wellbeing and caused stress and inconvenience. The Ombudsman recognises that the resident felt the landlord acknowledged its administrative errors, rather than the impact on him, but the compensation offered was appropriate for the failings and associated impact up until the time of the final response. The resident told the Service that as he had not accepted the compensation offer within 6 months the landlord said it had expired. The landlord should ensure that it still pays the resident the offered compensation.
23. In its final response, the landlord said once the council had approved the proposed works it would install acoustic trickle vents within 10-12 weeks, subject to delivery and access. In line with the Service’s complaint handling code “any remedy proposed must be followed through to completion.” However, the resident told the Service the works remain outstanding. Given the delays in issuing the complaint responses, which the landlord said was to complete its investigation into the matter, liaise with the council, and provide its position on the issue, it appears to be unreasonable that the landlord has not fulfilled the outlined actions in its final response. The investigation will therefore consider events following the final response.
24. Following the completion of the complaint process, the Service asked the landlord whether the necessary works had since been completed. The landlord said it was actively working on the issues and was in regular contact with the council regarding the “complexities of the research needed in relation to the resolutions required”. It is recognised that the landlord chased the council on several occasions for approval of the works. It was reasonable that it did not want to proceed with the works prior to receiving the council’s approval to limit disruption to the residents and avoid incurring unnecessary costs if the works were not deemed suitable.
25. A HHSRS hazard score assessment was completed on 25 May 2023 and the council subsequently sent an improvement notice to the landlord on 25 October 2023. It found a category 1 hazard in relation to excess heat and a category 2 hazard for noise. It set out a schedule of works that the landlord was required to begin within 29 days and complete within 8 weeks. It required the landlord to provide “adequate mechanical means of ventilation (or cooling) to the living room and bedroom which provides adequate means of removing excess heat from the indoor environment and should ensure that windows will be closed during sleeping hours (11pm to 7am) so as not to cause unacceptable noise exposure.” It is noted that the resident requested a HHSRS assessment in his complaint on 24 August 2022, but the landlord did not acknowledge his request. If it had completed the assessment when initially requested, it may have led to a quicker resolution. It is understood that the landlord has since appealed the HHSRS findings to request more time to complete the works.
26. A further survey was completed on 24 November 2023 that determined “the acoustic trickle ventilators alone will not bring about compliance to the excess heat and noise.” It recommended “a suitably upgraded or new ventilation system that is capable of providing satisfactory ventilation that will have a cooling effect as an alternative to opening the windows” or “suitably sized acoustic air brick(s) to the external fabric of the building that provides has a larger opening than the acoustic trickle window vents may provide a cooling effect”.
27. It is understood that the landlord did not have this information available at the time of its final response. Nonetheless, the landlord has not put in place a full and lasting resolution to the noise transference and ventilation issues a year after the completion of the complaint process. Therefore, although it took reasonable steps to offer redress during the complaints process, further compensation is warranted due to the continued impact on the resident. In line with the Service’s remedies guidance, a further £600 is warranted as although the landlord has acknowledged failings and made some attempt to put things right, the offer was not proportionate to the failings identified in the investigation or the ongoing impact on the resident. The landlord should also provide a clear update on the works and its progress to the council.

Complaint handling

28. In accordance with the landlord’s complaints policy, it should respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days. If it is unable to meet its timeframes, it should contact the resident and agree a new response time.
29. On 24 June 2022 the landlord told the resident it was investigating his concerns as a formal complaint and subsequently advised him it would exceed its response timeframe as it would take a few weeks to conclude the sound assessment. The resident asked the landlord on 26 July 2022 to conclude the complaint within 2 weeks and then requested to raise a further complaint on 24 August 2022.
30. In accordance with the Service’s complaint handling code, an extension in the complaint response timeframe should not exceed a further 10 days without good reason, and “if an extension beyond 20 working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties.” In this case, it was not unreasonable that the landlord initially extended its response timeframe as it promptly informed the resident and provided clear reasons for its decision. However, once it became evident that the investigation would not be completed within a few weeks as initially advised and the resident became dissatisfied with the length of the extension, the landlord should have issued a response. As it failed to do so, the resident pursued the complaint several times, causing him additional time and effort.
31. On 24 August 2022, the landlord advised it could not respond as the review of the case had not been completed. It said, “Once we have been able to complete the intrusive works, obtained the original technical specifications, and reviewed the matter with the Council, we will then be in a position to provide our position on the matter to you.” The Service’s complaint handling code states “A complaint response must be sent to the resident when the answer to the complaint is known, not when the outstanding actions required to address the issue, are completed. Outstanding actions must still be tracked and actioned expeditiously with regular updates provided to the resident.” The landlord’s decision to not issue a response until it had completed its investigation was therefore inappropriate.
32. The landlord issued its stage 1 response on 16 February 2023, which exceeded its response timeframe by 155 working days. The resident then escalated the complaint the same day and the landlord issued its final response on 24 March 2023. As a result of the delays, it took a significant amount of time to exhaust the complaint process, which also delayed the resident’s referral rights to the Service for independent review.
33. The landlord recognised the delays within its final response. It offered the resident £270 for the complaint handling delays, £30 for each month the complaint was open, and £130 for poor complaint management and lack of updates. This amount was in line with the Service’s remedies guidance, for a failure that has adversely impacted the resident. It was also reasonable that it said that it was assessing its working practices and structure of the complaints team to provide a more efficient service, to prevent a recurrence of the issue. As a result, the landlord has demonstrated it has reasonably redressed its complaint handling failures.

Determination

34. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord handled the resident’s reports of noise transference and ventilation issues within the property.
35. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in relation to its handling of the complaint, which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Orders and recommendations

Orders

36. In addition to the £1600 already offered, the landlord is ordered to pay the resident a further £600 compensation due to the additional delays following the final response. It should provide evidence of the payment to the Service within 4 weeks.
37. Within 6 weeks the landlord should write to the resident with a timeframe for when a full resolution for the noise transference and ventilation issues will be put in place. This should include:

a.     Confirmation of its current position in liaison with the council’s planning department.

b.     The dates it expects to begin work to put in place a full and lasting resolution and how long it expects the works to take.

c.      Confirmation of whether the remedial works to repair the damaged flex duct connection and clean the dust and debris from the extract grilles and trickle vents were completed. It should arrange an appointment if they remain outstanding. It should provide evidence if the repairs have already been completed.

d.     A commitment to provide the resident with regular updates on the progress of the works.

38. The landlord should provide evidence to the Service that it has complied with the orders within the relevant timeframes.

Recommendations

39. If it has not done so already, the landlord should pay the resident £400 for its complaint handling failures as offered in its final response.