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East Devon District Council (202012631)

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REPORT

COMPLAINT 202012631

East Devon District Council

21 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

  1. The complaint is about the landlord’s handling of:
    1. The resident’s reports of Anti-Social Behaviour (ASB)perpetrated by a neighbour, specifically, noise nuisance.
    2. The resident’s reports of an extensively overgrown garden.
    3. The resident’s reports of an issue with a drain at the property.
    4. The resident’s complaint.

Background and summary of events

  1. The resident is a leaseholder of the landlord, at the property.
  2. The resident complained to the landlord about its handling of reports of ASB, which were alleged to have been perpetrated by the neighbour. Specifically, excessive use of a washing machine and its use at unsociable hours, which was causing a noise nuisance, as well as an excessively overgrown garden.  In terms of the garden, the resident explained the impact of this included causing the garden wall to lean and nests of slow worms.
  3. The resident also complained about the landlord’s response to reports of issues with a drain at the property; whenever the neighbour used her washing machine, the drain would overflow onto his path with dirty soap sud water.
  4. The landlord, in its stage two response to the complaint, found that it had responded appropriately to the issues reported, although accepted it had not in the past, for which it offered £150 in recognition.
  5. More specifically, in terms of the washing machine, the landlord stated that although the washing machine noise could be heard in the property, this would likely constitute ordinary living noise because the resident had stated that the noise had reduced.  The landlord had not listened to noise recordings made at this point due to a technical error, although it later did, and found that the noise did not amount to a statutory nuisance.
  6. In terms of the overgrown garden the landlord accepted that the neighbour’s garden was significantly overgrown and that it had agreed to clear it, noting that it would need additional maintenance at this time of year and agreed to address this.
  7. In respect of the issue with the drain, the landlord recognised that although it was not blocked, there was an issue with it that needed looking into and that it would raise CCTV works to further investigate.  Indeed, further investigation was carried out after the stage two complaint, with the issue being determined eight months later, to be a crack which required addressing within a five-year window.
  8. The resident remains dissatisfied with the landlord’s response – he does not believe the offer of compensation adequately reflects the gravity of the issues he experienced, nor the length of time he experienced them for.

Assessment and findings

Scope

  1. As a means of highlighting the parameters for this investigation, it is important to note that in accordance with paragraph 42(c) of the Scheme, “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.  While a resident may make reports some time before this, making a report is not the same as raising a complaint or progressing it through the landlord’s complaints procedure.
  2. Where a resident is dissatisfied with the landlord’s response to reports of any issue, it is important that a formal complaint is made as close to the time as possible.  This is for a number of reasons including the depreciation of the veracity of evidence over time, with personnel changing, data no longer being available, and also systems changing, for instance.  It is important that there is an opportunity for things that have gone wrong to be acknowledged and put right at the time, as well as learning to be garnered, where appropriate.  Months or years between an event or events and a formal complaint, does not allow this to happen.
  3. Records shows that in this case, although the resident was reporting issues as far back as 2018, there was no formal complaint made until 23 June 2020. As such, the Ombudsman is unable to consider matters as far back as 2018, but rather, only up to six months prior to the date of the complaint – from January 2020.

The landlord’s handling of noise nuisance

  1. In cases concerning ASB or noise nuisance, it is not the role of the Ombudsman to determine whether the ASB or noise occurred.  Rather, it is the role of this Service to assess how the landlord responded to reports made and whether its responses were in accordance with its policies and procedures and were appropriate and reasonable in all of the circumstances.
  2. The resident complained of noise nuisance perpetrated by his neighbour on 23 June 2020, specifically, that a washing machine was being used every day from 5am until midnight. The use of a washing machine is something that would normally be considered ‘ordinary living noise’.  This is because a washing machine is considered a standard household appliance and when living in close proximity to others, a level of ordinary living noise such as the use of a washing machine, is reasonably to be expected. Ordinary living noise becomes a noise nuisance, however, if it is excessive or carried out at unsociable hours, as was being complained about by the resident.  Therefore, the appropriate course of action to take by the landlord would be to investigate the alleged noise nuisance in accordance with its ASB Policy.
  3. Making a report of noise nuisance should be distinguished from making a complaint.  When reporting noise nuisance, the landlord must have an opportunity to investigate and where appropriate, take action.  Likewise, a perpetrator of noise nuisance should reasonably be afforded an opportunity to put things right; noise nuisance is not always caused deliberately, and an individual may not have realised that noise from their property was disturbing to others.
  4. Whilst the resident had reported noise nuisance from the washing machine in the past, this was in 2018 and 2019; no reports had been made in 2020 and the resident had in fact reported that things had quietened down in November/December 2019. To this end, the landlord stated its surprise to receive a complaint about the washing machine noise in June 2021, six months later, without further reports having been made. Notwithstanding the historical matters which are not considered as part of this investigation, it follows that the landlord had not had an opportunity to respond to reports, before the complaint was made. Although the resident got in touch with the landlord via his solicitor in March 2021, making a complaint and requesting that the neighbour is stopped from continuously using the washing machine, no direct reports or evidence was submitted.
  5. Having received a complaint in June 2020, the landlord took steps to address the issue by appropriately requesting that the resident send diary incident sheets regarding the noise. This action by the landlord was appropriate because it is not enough to simply complain about noise nuisance; evidence needs to be collated in order to be assessed and that evidence ordinarily starts with diary incident sheets, which is also reflected in the landlord’s ASB policy. When dealing with complaints about noise nuisance, the landlord is required, having collated evidence, to assess whether the noise amounts to a statutory noise nuisance and this includes looking at the frequency and times that the noise occurs.  This can be supported by the submission of diary incident sheets.
  6. In its letter to the resident requesting that he complete and return diary incident sheets, the landlord advised that if it did not receive this evidence within one month, the case would be closed.  This was also an appropriate step taken on the part of the landlord, as it set parameters and boundaries around the issue, as well as managing expectations.  The landlord had also requested diary incident sheets to be completed and returned in May 2021, following the solicitor’s letter in March 2021.
  7. The diary sheets were not returned, however, the landlord reasonably offered to install noise monitoring equipment at the property in the absence of these, to help capture and evidence the noise. It was a reasonable offer because installing noise monitoring equipment would be an escalated step to take following the receipt of diary incident sheets, but it did not have these.
  8. Noise recording equipment was initially due to be installed in November 2020 but, at the resident’s request, this was postponed. This was due to the COVID-19 national lockdown. The resident telephoned the landlord’s Environmental Health noise specialist on 2 November 2020 to say that they had other more pressing priorities and also stated that the noise complained of had improved. The case was closed at this point, with the resident’s agreement.
  9. The landlord’s closure of the case at this point was appropriate because it had not received evidence of the noise complained about by way of diary incident sheets, nor had it been able to install noise recording equipment and therefore, there was no evidence to support the allegations of noise transference. Moreover, the resident had confirmed that the issue had improved, in his telephone call of 2 November 2020 and it would have been inappropriate and disproportionate for the landlord to have pursued the matter given this assertion. The landlord, in its closure letter to the resident at the start of January 2021, asked the resident to get in touch if he had any further information or evidence pertaining to the issue.
  10. The landlord’s responses in May and June 2021, requesting that diary incident sheets were completed and returned was appropriate, for reasons already explained, as was arranging installation of the noise monitoring equipment, which was later installed. The landlord had written to the neighbour warning her that a complaint had been made about noise nuisance and advising that noise monitoring equipment would be installed, although it did not say when, as well as taking time to speak to the resident about the noise, which also gave her an opportunity to put things right. It was appropriate for the landlord to warn the neighbour, as it is important in cases of ASB or noise nuisance, that an alleged perpetrator has an opportunity to change their behaviour before more serious action is taken.
  11. The noise, found to be minimal as later confirmed following the review of the noise monitoring equipment, and not indicative of a statutory nuisance, would have limited the options the landlord could take. Whilst the washing machine could be heard clearly during the day, no considerable use was found at unsociable hours. The landlord determined that the noise constituted ordinary living noise, having taken account of the noise recordings and diary incident sheets that the resident had later submitted, as well as its own observation. No further reports were made thereafter, and the landlord again appropriately closed the case.  Whilst disappointing and frustrating to the resident, there was little more the landlord could do in the circumstances. This Service is subsequently unable to find that there was a service failure.

The landlord’s handling of the extensively overgrown garden

  1. Issues with the neighbour’s garden being significantly overgrown began to be reported to the landlord in June 2020 and chased up on a number of occasions thereafter by the resident, with little being done by the landlord to address the issue.
  2. The landlord acknowledged in its response to the resident in July 2020, that the garden was unacceptable and that it would try harder to engage with the neighbour about this, citing difficulties in doing this and why, as well as the impact of Covid-19.  The landlord’s candid response showed an honesty and integrity in dealing with the matter and that it took seriously the resident’s dissatisfaction and that its efforts to resolve the issue had not been good enough.
  3. The inspection and tenancy breach warning letter to the neighbour that followed were appropriate steps to take.  The landlord took steps to confirm the extent of the problem with a visit and its tenancy warning demonstrated the gravity with which it took the situation.  Additionally, the landlord’s assertion that it would do the gardening works itself if it did not hear within two weeks, both recognised that the neighbour may not be in a position to cooperate or communicate, as well as the impact on the resident.
  4. Having not heard back from the neighbour after the time period had lapsed, the landlord carried out the gardening works, which was repeated the following year. It also sought gardening support, specifically, registration of the neighbour on to the ‘individual garden maintenance scheme’.  This was appropriate.
  5. This Service cannot see, however, that the landlord advised the resident of the steps it was taking and / or why the issue continued to occur. This Service can see that the garden continued to grow back and again that the landlord had to take steps (which were delayed) to resolve this. While the landlord could have used the stage two response as an opportunity to inform the resident of the garden arrangements it sought to put in place to overcome this, it did not do this. Subsequently, the resident was unclear about whether the landlord had made reasonable arrangements to ensure that the garden would be maintained.

The landlord’s handling of issues reported with drain

  1. Once on notice, a landlord is required to carry out a repair it is responsible for within a reasonable period of time, in accordance with its obligations under the tenancy agreement and in law.  The law does not specify what a reasonable period of time is; this depends on the individual circumstances of a case.  In this case, the landlord’s Repairs Policy states that it will carry out an inspection (and where applicable, a repair) within 30 days.
  2. Having reported an issue with the drain overflowing, the landlord offered to carry out an inspection but did not hear back from the resident about this. This Service can see that a further offer was made in the landlord’s stage one response to the complaint two months later, in May 2021. This was scheduled to take place shortly thereafter but could not go ahead once the contractor had arrived, due to lack of access via a manhole. Instead, works for a CCTV inspection were raised, which would enable appropriate inspection, to determine the root cause of the problem.
  3. The cost of the CCTV inspection required financial sign-off and unfortunately, these follow-on works which were appropriately raised, and in a timely manner, were not pursued, the reason being due to oversight and staff absence. Indeed, it was not until the following year, in February 2022, that the budget was approved, and further investigative work was undertaken. The landlord has stated that the inspection report noted ‘a crack’, which required intervention from the water company, which the landlord said it would refer the matter to. The report itself states that ‘there [was] a fracture that [had] a 5-year repair window’.
  4. Whilst the landlord’s actions in carrying out an inspection initially and then raising further works when it was unable to ascertain the root cause of the problem from the visit were appropriate, it again took too long to do this, citing human error and staff absence as the problem. Although the landlord was able to ascertain early on that the drain was not blocked, this significant delay between the initial visit and specialist CCTV inspection was unacceptable.  The risk of human error can never be completely eliminated, however, the lack of oversight of the issue and overarching complaint which included this issue, meant that these works were able to slip through the net for an inappropriately lengthy period of time.

The landlord’s handling of the resident’s complaint

  1. Responding to a complaint, is an opportunity for the landlord to demonstrate that it has heard and understood the issues raised and a chance to put things right. Putting things right is not only about offering compensation; this may be only part of the resolution to the complaint or in some circumstances, not a part of it at all.  Carrying out repairs, managing expectations, apologising for what has gone wrong and explaining why and putting things in place to help prevent a recurrence are all examples of successful complaint management and resolution.
  2. With this in mind, it is unclear why, despite raising a complaint on 23 June 2020, the landlord did not provide the resident with a complaint response. Rather, it was not until the resident re-raised a complaint in the following year on 17 March 2021, that the landlord eventually offered a stage one response on 4 May 2021. This was inappropriate. The landlord’s response was significantly delayed and contrary to the timeframes set out in its own guidance documents, which state that a stage one response will be sent within 20 working days of receipt of a complaint.
  3. The stage two complaint response which followed escalation was also delayed, with this being issued on 24 June 2021, having received an escalation request on 13 May 2021 and set against a timescale of 20 working days also. This was unsatisfactory. This Service would not expect the landlord to consistently delay its complaint responses, particularly without appropriately managing the resident’s expectations. The landlord should have taken greater ownership of this matter, in light of its handling of the stage one response, to ensure that a reply was delivered on time.
  4. Adding to this though, the landlord did not recognise or apologise for the delay at stage two, as it should have done, given that it was sent outside the timescales of its policy.  The landlord failed to specifically put right the aspect of delay around the complaint, by explaining how it had learned from the service failure and putting steps in place to prevent a recurrence, or by offering compensation in recognition of this. Although the landlord did make an award of £150 for historical failures, particularly highlighting that it had previously taken too long to respond to the resident’s complaints, this was done at stage one. There was subsequently no further recognition of the landlord’s delay in escalating the resident’s complaint to stage two and the delay in offering the final response. The Ombudsman is therefore not satisfied that the landlord did enough to put things right, despite having the opportunity to do so.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of ASB perpetrated by the neighbour.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of reports of the neighbour’s extensively overgrown garden.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports of an issue with a drain at the property.
  4. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaint handling.

Orders

  1. The landlord is ordered to pay the resident £300 compensation (on top of the £150 already offered). This is comprised of:
    1. £100 for the service failure in respect of the garden;
    1. £100 for the service failure in respect of the drain, and;
    2. £100 for the service failure in its complaints handling.
  2. If it has not done so already, the landlord should clarify to the resident what, if any, ongoing garden maintenance arrangements have been made with the neighbouring property.
  3. If it has not done so already, the landlord should also clarify to the resident the action it has taken or intends to take, in respect of the drain.
  4. The landlord should provide this Service with evidence that it has complied with the above orders within four weeks of receiving this determination.