Clarion Housing Association Limited (202005810)

REPORT

COMPLAINT 202005810

Clarion Housing Association Limited

24 February 2021

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 disturbance;
• Complaints handling

Background and summary of events

2. The resident is the assured tenancy of the landlord at the property.
3. According to the resident, a refurbishment had taken place in the neighbouring property, in or around 2015, when a wet room was installed. The then neighbour moved out in September 2019.
4. On, or shortly prior to 9 December 2019, the resident contacted his new neighbour in relation to the ‘unacceptable’ noise. The neighbour responded the same day taking the view that there was little they could do as they had no choice but to take showers, and informed the resident that they had already raised the issue with the landlord who said the resident should raise the issue with the landlord himself.
5. The resident submitted an on-line report to the landlord on 21 December 2019, stating that the neighbour’s shower pump was noisy and was causing him distress. The resident explained that there had been no noise nuisance during the previous neighbour’s occupation.
6. The landlord acknowledged the report on 3 January 2020 and, on 6 January 2020, it proposed internally that a plumber should attend the property. The resident sought an update the following day and informed the landlord of his heart condition. He then reported the issue to his neighbourhood office on 9 January 2020 and, on the same day, wrote to the landlord requesting a timescale and stating that the “vague” timescales provided were unacceptable. He reiterated that the situation was causing him distress, and he referred again to having a heart condition.
7. On 14 January 2020, the landlord informed the resident that it would arrange for a plumber to attend the property the following week. The landlord’s contractor then attended the neighbouring property on 23 January 2020, checked the pump, confirmed that it was in working order and noted that “it is just making a noise” but there is no evidence that the landlord informed the resident of the outcome of the investigation at that stage.
8. The resident submitted three on-line complaints on 24, 25 and 27 February 2020 to the landlord about ‘unacceptable’ noise and a lack of resolution by the landlord of the issue, summarised as “lack of action” and “service delay”. The resident made a further complaint 3 March 2020 regarding lack of communication. On 4 March 2020, the resident wrote to the CEO of the landlord stating that he had made a complaint and emphasised the stress and anxiety this was causing him, due to a medical condition. The landlord responded on 5 March 2020, stating that it would be in contact, but did not provide a timescale.
9. The resident submitted a further on-line complaint on 6 March 2020 and said that he was awaiting a call on the matter. The landlord replied on the same day to say the complaints team of the landlord would contact the resident in 10 working days. The landlord’s records show that it had attempted to contact the resident on 11 March 2020, but the resident stated that he did not receive any calls or messages from the landlord that day. The resident submitted a poor review on social media to which the landlord responded.
10. On 13 March 2020, the resident wrote to the landlord, stating that he had still not received a response and requesting a call after 12.30pm. The landlord’s records show that it then spoke with him at 12.44pm, when he stated that he hears the pump at “strange times of night, and washing machine” and that he had a heart condition and tinnitus. The landlord characterised this as a complaint of anti-social behavior (ASB).
11. The landlord wrote to the resident on 18 March 2020 relaying the contractor’s report: “No works required as the pump is in good working order it is just making noise in the next door’s home”. On 19 March 2020, the landlord wrote to the contractor pressing for an answer as to whether the pump was excessively noisy. In the contractor’s response of the same day, it confirmed that the engineer said there was no excessive noise from the pump.
12. The landlord’s stage one complaint response of 30 March 2020 stated that the contractor had reported, following its visit on 23 January 2020, that the pump was working normally and was not making excessive or unusual noise. It had not received reports of ASB from the resident regarding the neighbour. 
13. There is no evidence of the resident’s response but, on 1 April 2020, the landlord wrote to him declining to escalate the complaint on the basis that it had answered his queries and that the resident had closed the complaint. There is no evidence that he had done so. The landlord stated that:
    1. The pump was looked at on 23 January 2020 and assessed as functioning normally;
    2. The problem appeared to be the time of day that the pump was being used, which was something the resident could raise directly with his neighbour. If he felt their behaviour constituted ASB, he should follow the ASB process explained to him previously;             
    3. It was sorry if the situation had caused him stress and anxiety, but this would need to be pursued as a personal injury claim through a solicitor.
    4. It could not commit to removing all noise from a neighbouring property or replace the wet room with a bath or shower;
    5. It would provide details on how to contact his Neighbourhood Officer.
14. On 3 April 2020, the resident’s MP wrote to the landlord, offering to attend a further visit and suggesting that the addition of casing around the pump would reduce the vibrations and noise. The resident wrote to the landlord directly on 8 April 2020, stating that he was dissatisfied with the stage one response. The landlord accepted that the complaint be escalated to a ‘peer review’.
15. In the landlord’s letter to the resident of 21 April 2020, it acknowledged that the contractor should have checked the noise levels of the pump from within the resident’s property when in operation, not only in the neighbour’s property. It explained that it would do so but could not action this at that time due to the lockdown restrictions from the coronavirus, as they were only able to carry out emergency and critical repairs. It accepted the escalation of the complaint but placed it on hold until it could arrange an inspection. It stated that it would contact the resident to arrange an appointment once the government advised that lockdown restrictions were eased.
16. On 30 April 2020 the resident wrote again to say that he was not aware of the outcome of the contractor’s visit on 23 January 2020 and stressed the effect of the noise on him. The lockdown then ended on 13 May 2020 and the resident wrote to the landlord on 26 May 2020 asking whether a visit could be arranged. On the same day, the landlord advised that it was still unable to visit due to the pandemic.
17. On 24 June 2020, the resident queried whether his neighbour was aware of the complaint and the landlord replied that it was unable to share this information as it involved a third party. The resident responded the following day, again asking whether a visit could now be arranged and the landlord again advised that it was still unable to visit, due to the pandemic.
18. The contractor wrote to the landlord on 30 June 2020, stating that no further works were to be carried out, and again 20 July 2020, regarding the outcome of its visit of 23 January 2020. The landlord pressed the contractor as to whether the noise in the resident’s property was excessive and suggested that it visit with the contractor. On 6 August 2020, the contractor attended the property again (without the landlord) and recorded the noise with a mobile phone. It discussed sound proofing and replacing the pump with the resident. The contractor later wrote to say that the resident did not want the sound proofing and explained that a new pump might not solve the issue and could be just as noisy. On 3 September, the landlord came to the conclusion this was normal ambient noise and noise insulation would not be appropriate to provide.
19. The landlord’s final complaint response of 7 September 2020, it confirmed its position as follows:
    1. An operative had run the shower in the neighbouring property whilst another operative remained in the resident’s property and recorded what noise could be heard as evidence. The noise was found to be “very minimal, and not dissimilar to other ambient noise. The noise was also not even to be heard on the recording”;
    2. The resident’s property had very limited furniture and no underlay to absorb any noise, which might cause any noise to echo.
    3. Sound proofing work could be possible, such as boarding the walls, but it understood that the resident had said he was “not interested in this option”.
    4. It was not able to do anything with regards to the noise from the pump or shower as it was within tolerable and normal levels.
20. The resident has annotated this letter provided to the Housing Ombudsman Service with his comments that the noise was disturbing his sleep, that he would be interested in sound–proofing, and that the letter did not mention replacing the pump. However, there was no evidence that the resident informed the landlord that he would be interested in the sound proofing measures.

Assessment and findings

Noise disturbance reports

21. The landlord’s policy on anti-social behavior (ASB) states that reports due to different lifestyles or every-day living situations which are not intended to cause nuisance or annoyance are not generally considered as ASB. While the resident’s initial report was for a ‘tenancy breach’ by his neighbour, it is evident that the noise issues related solely to the shower pump being used by the neighbour as part of their day to day use of the property, as opposed to an issue that would require progressing through the landlord’s ASB procedure. It is not in dispute that the substantive issue related to the noise emanating from the shower pump and whether this amounted to a repair issue for the landlord to resolve. As such, it was appropriate for the landlord to arrange inspection of the issue in a timely manner to identify any potential repair issues.
22. The landlord’s repairs policy states that the landlord “aims to ensure that repairs to properties are carried out in a timely and efficient manner, ensuring that the repairs service represents value for money and achieves high levels of customer satisfaction”. “If a resident reports a repair online, the local team will call them back by the end of the next working day to offer an appointment”. According to the landlord’s policy, this was a non-emergency repair as it did not “present any immediate danger or jeopardise the health safety or security of the resident”. An appointment should be offered within 28 days of such a report. 
23. The landlord did not adhere to its repair policy, namely to call back with an offer of an appointment the next day, in that it did not contact the resident until 3 January 2020, some 2 weeks after the report. This was not appropriate, even taking the bank holidays into account. It did not inform the resident of the inspection till 14 January even though the landlord’s decision to send a contractor to investigate was made 6 January 2020. As a result, the resident did not know what to expect in the interim. As a result, the resident felt it was necessary to make multiple complaints and attend the neighbourhood office in person.
24. The landlord did not comply with the landlord’s repairs policy which requires an appointment to have been made within 28 days of a on-line report, which would have been the 18th January. The first visit by the contractor took place on 23 January 2020, one month after the resident’s initial report. This is a minor delay, taking into account the Christmas period and the low-level nature of the report.
25. The landlord identified that the contractor’s report of 23 January 2020 was not conclusive as the report did not address the specific issue of ‘unacceptable’ noise in the resident’s property however did not do so until 19 March 2020, some nearly two months later. The delay caused the resident to incur the necessity and stress of following up the matter.
26. While it was reasonable for the landlord to accept the report by the contractor, it agreed to a further inspection. The resident accepted there would be delay to the further inspection due to lockdown. This period of delay cannot be attributed to any failure on the landlord’s part. However, it would have been reasonable for the landlord to have kept the resident informed of any progress in arranging a further visit once lockdown had finished. Again, the resident had to chase the landlord putting him to further inconvenience.
27. It was reasonable for the landlord to decline to disclose information about the neighbour, as the resident would not be entitled to information about a third party due to the landlord’s obligations under data protection regulations.
28. Whilst the landlord’s records show that its intention was to visit the property with the contractor, it was reasonable for the landlord to rely on the professional opinion of the contractor, in deciding how to respond to the resident’s reports. While the contractor stated that the noise on the recording was inaudible and the resident has produced an MP3 recording, the contractor attended the property in person to test the noise live. Moreover, it was open to the resident to send the MP3 recording to the landlord. The Ombudsman expects a landlord to take reasonable steps to gather evidence of potential noise disturbance. In this case, the steps outlined above amount to a reasonable attempt to gather such evidence.
29. It was appropriate for the landlord not to offer to replace the wet room in the property next door with a bath or shower as the evidence it had gathered did not, in its considered opinion, identify a level of noise disturbance that would warrant such an action. In reaching this decision it was also appropriate for the landlord to consider the extent to which such action would amount to an a potential interference in another person’s property, the fact that it would require the neighbour’s agreement and the financial implications for such works.
30. The landlord did however consider alternative options for resolution of the issue, resulting in the offer of sound proofing as confirmed in its final response letter of 7 September 2020. This suggestion was a reasonable exercise of its discretion, given that the landlord had not identified ‘unacceptable’ noise disturbance and demonstrated its commitment to identify a resolution. The letter goes onto state that the resident was “not interested” in this offer. While the resident has indicated to the Housing Ombudsman Service that he denies that was the case, there is no evidence that the resident communicated that to the landlord.
31. At the same time, the landlord’s current position on the offer of sound proofing is not clear given that the landlord’s internal email of 3 September 2020 stated that noise insulation was not appropriate. Given that the final response letter referred to the offer of sound proofing, in order to be transparent, it would be appropriate for the landlord to confirm whether the offer is still open to the resident, or provide a reasonable explanation why that is no longer the case.
32. While it was reasonable for the landlord to conclude that changing the pump would not necessarily help alleviate the problem, it would have been reasonable for the landlord to have explained the position regarding replacing the pump. This would have provided clarity to the resident and transparency to the landlord’s decision–making.
33. While the initial response to the resident’s complaint was delayed, given the initial report was made 21 December 2020 and the matter was not fully investigated until 6 August 2020 (taking lockdown into account), the landlord investigated the resident’s reports by inspecting the property on two occasions, and conducting a noise test. It did not find the noise was unacceptable and while it did not specifically address any medical issues of the resident’s, it offered sound–proofing as a resolution to the issue.
34. No repair issues were identified with the neighbouring property and no evidence was provided of any noise disturbance beyond what would reasonably considered everyday noises. As such, the landlord’s overall response to this case, from a noise disturbance perspective, was both reasonable and appropriate.

Complaints handling

35. The landlord’s complaints procedure is a two-stage process. The second stage is referred to as a “peer review” and alternatively as “second stage”. The landlord’s complaints policy did not at the time set out any timescales for response. It does, however, set out the following principles: putting things right within reasonable timescales; keeping our customer informed; managing expectations. The landlord’s complaint policy states that “a complaint is defined as dissatisfaction expressed by a customer regarding a service, action or lack of action by (the landlord) Housing or one of our contractors”.
36. The landlord’s response to the resident’s complaints 24 February 2020 regarding the lack of response was delayed, given that it did not respond until the 5 March 2020, which response provided no time scale. The time scale of 10 working days provided on 6 March 2020 would not have been reasonable, given the resident made multiple contacts, and expressed his distress with the process, in addition to the noise, however the landlord did in fact respond sooner.
37. The evidence shows that the landlord only responded more proactively to the complaint once the resident had contacted the office of the CEO and submitted a negative review on social media.
38. The landlord did not keep to its promises or manage the resident’s expectations as required by the complaints policy referred to in paragraph 35 above. The landlord did not provide the resident with a clear pathway and time scales for response. This left the resident not knowing what to expect, it also put him to the inconvenience and frustration of chasing a response, particularly in the light of distress and anxiety that the resident reported on several occasions.  The delayed responses would have increased his frustration with the landlord.
39. The first stage response to the complaint 31 March 2020 was not in itself satisfactory.  There was some confusion about the way in which the landlord treated the issue. While the resident’s initial complaint was of ASB, his ongoing complaint focused on ‘unacceptable’ noise and slow response times. It was, therefore, not the case that he had not raised any concerns about ASB but also it was the landlord, and not the resident, who had characterised the complaint as such.
40. It would have been reasonable for the landlord to have considered the effect of its failures to respond to the resident, including not reporting or indeed following up the findings of 23 January 2020 to the resident sooner.
41. The first response did not consider any adverse effects on the resident’ given his stated health conditions, instead, the first stage letter of 30 March 2020 referred the resident to a solicitor stating this was a personal injury claim which was neither a reasonable, proportionate or helpful response.
42. It would have been appropriate for the landlord to have managed the resident’s expectations in relation to the delay after lockdown ended from 13 May 2020 to 6 August 2020 in line with the complaints policy of managing expectations and given the number of times resident reported that the issue was causing him distress, and the number of times he chased progress.
43. The further inspection having taken place on 6 August 2020, the landlord wrote to the resident on 7 September 2020 with its final response setting out that while it had determined there was no excessive noise, it had offered soundproofing as a reasonable resolution of the complaint.
44. While the resolution of considering sound-proofing was a reasonable resolution, the resident incurred excessive time and trouble in pursuing his complaint due to the landlord’s poor complaint handling. This increased the stress he was experiencing, caused him unnecessary frustration and gave him a negative view of the landlord as expressed in his emails, and social media review.

Determination (decision)

45. In accordance with paragraph 54 of the Scheme there was:
    1. No maladministration by the landlord with regard to its response to the resident’s reports of noise disturbance.
    2. Service failure by the landlord with regard to its handling of the formal complaint.

Reasons

46. While the landlord delayed in following up on the initial visit by its contractor on 23 January 2020, its investigation identified no evidence of excessive noise disturbance. It was therefore both reasonable and appropriate that the landlord took no further action on the case.
47. The landlord did not comply with its own complaints policy. There was also significant initial delay in progressing the case through the landlord’s complaints procedure, despite the resident’s continued attempts to chase up progress. This service failure will have added to the resident’s distress.

Orders

48. The Ombudsman orders the landlord to pay the resident £75 compensation in recognition of the distress and inconvenience caused to him by the failures in its handling of the formal complaint.
49. The landlord to confirm compliance with the above order to the Ombudsman Service within four weeks.