Hyde Housing Association Limited (202106742)

REPORT

COMPLAINT 202106742

Hyde Housing Association Limited

30 January 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 resident has complained about the landlord’s:
   1. Handling of noise nuisance from a flat on the floor above.
   2. Communication with the resident in relation to the issue.
   3. Handling of the associated formal complaint.

Background and summary of events

Noise nuisance

2. The resident is the shared owner of a one-bedroom flat on the third floor of a block owned by the landlord. She has complained about noise transmission and anti-social behaviour (ASB) from a neighbour who lives one floor above the resident and one flat over (the neighbour). The flooring in this flat is ceramic tiling rather than carpet and the resident believes this is a significant factor in the noise problems. The resident has explained to the Ombudsman that the noise has affected her mental health and has kept her awake at night. The noise problems stopped when the neighbour moved out.
3. The resident has explained that she initially reported the noise problems three years prior to the complaint. When she reported the problem again in 2020, she learnt that no action had been taken against the neighbour. In her complaint she stated that she was told this was because the landlord could not gain access to the neighbour’s flat. She was dissatisfied with this response and added a complaint of negligence and breach of lease due to the lack of action.
4. New reports of noise nuisance were made by the resident in February/March 2020. The resident has stated that in response the landlord left a voice message stating that an enforcement officer would visit the neighbour as soon as visits recommenced. The resident contacted the landlord again in July 2020 asking for an update and was advised that her email had been forwarded to the tenancy team. No other response was received.
5. On 2 August 2020, the resident contacted the landlord after she had been kept awake into the early hours following a social gathering at the neighbour’s flat. She advised the landlord that the noise nuisance was daily and that it was having a detrimental effect on her mental health. She stated that she could hear garden furniture being dragged on the balcony and that this made her ceiling vibrate.  She queried whether there was missing sound insulation somewhere between the flooring.    
6. The complaints team acknowledged the complaint on 6 August 2020 and confirmed that the matter had been passed to the tenancy team to deal with as a ‘service recovery’. The email advised that a response would be sent within 10 days. The resident advised that no response had been received by 10 August 2020. The landlord apologised and explained that this was due to annual leave. The resident received a telephone call on 12 August 2020 but as the caller was unfamiliar with the case a call back had to be arranged. This confirmed that the case had been assigned to an officer and that the manager would keep her informed. The resident was dissatisfied with this response and asked how she could escalate matters if she was not satisfied with the service recovery. There does not appear to have been any response to this.
7. On 13 November 2020, the resident submitted a formal complaint.  She set out the history of her reports of noise nuisance and her dissatisfaction with the landlord’s actions. She complained that action had not been taken to remove the tiling which, she believed, was in breach of the lease.  She also complained that she had not been kept informed and that the only updates she had received were as a result of her chasing the landlord. She stated that the noise was ongoing, and it continued to have a negative impact on her health. She asked that action be taken to resolve the issue and for compensation for the landlord’s breach of her lease.
8. The landlord issued its response at stage one of the complaints procedure on 6 April 2021. This confirmed that it was not able to discuss its engagement with the neighbour due to GDPR but confirmed that a visit had taken place on 26 March 2021 to view the flooring. The letter explained that the neighbour was not in breach of his lease regarding the type of flooring, other than their failure to request permission from the landlord. The landlord was in discussion with the neighbour regarding the installation of sufficient underlay to reduce the noise transference.
9. The resident has stated that she submitted diary entries documenting noise from May 2021 – October 2021. The June/July entries reviewed as part of this investigation show a pattern of thumps, thuds and bangs on a more or less daily basis.
10. On 11 May 2021, the landlord emailed the resident and confirmed that an agreement had been reached with the leaseholder regarding laying rugs over the flooring. The landlord stated that it was awaiting confirmation that this had been completed and that the breach remained open until this was received.
11. The resident was unhappy with this decision and emailed the landlord on the same day. She referred to a telephone call where she was assured the landlord would take the matter to court if the neighbour did not comply with the underlay requirement. She asked that her complaint was re-opened as the landlord had gone back on what was promised. She also stated that she did not believe rugs would resolve the noise problem.
12. The landlord’s email of 27 May 2021 confirmed that it sought to reach a mutual and reasonable solution to any issues raised within a scheme/block before pursuing legal options.
13. The landlord’s final response was issued on 26 October 2021. This confirmed that the noise nuisance case was still open and was being actively progressed, but as there was no new information about the complaint, the complaint would not be escalated. The landlord was satisfied that it had provided a fair response to the resident in line with its policies and procedures. It acknowledged that noise investigations could be complex and thanked the resident for her efforts in providing evidence. It confirmed that it considered the complaint concluded as a response had been sent and compensation accepted as part of the resolution. The letter advised that the landlord would ensure that the neighbour adhered to the solution agreed but that it considered any additional noise to be acceptable lifestyle noise and suggested that the resident speak to the local authority regarding this.
14. The resident has advised the Ombudsman that she contacted the local authority as suggested but was told that the noise issue was a matter for the landlord not the local authority. The local authority sent her an email to this effect, after the final decision on the complaint, which she also forwarded to the landlord.

Assessment and findings

Scope of investigation

15. The resident believes that the landlord’s lack of action in relation to her reports of noise nuisance amounts to negligence and that the ongoing nature of the noise constituted a breach of her quiet enjoyment of the property. These are legal decisions that only the court could make and are not matters that the Ombudsman would seek to determine.
16. Our position is in accordance with paragraph 42(g) of the Housing Ombudsman Scheme (the Scheme) provides that the Ombudsman will not consider complaints that concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure.

  The lease and relevant policies

17. The resident’s lease agreement sets out the leaseholder obligations. It is assumed that there are identical obligations for all leaseholders in the block.  Those relevant to this complaint are:
    1. “The leaseholder shall use an underlay of suitable quality for any carpeted rooms.” (3.6.1)
    2. “Not to make any alteration or addition of a non-structural nature to the interior of the Premises without the previous written consent of the Landlord (such consent not to be unreasonably withheld).” (3.8.2)
    3. “Not to do any act or thing which may…cause or permit to be caused nuisance, annoyance or disturbance to the owners, lessees, or occupiers of premises in the neighbourhood or visitors to such premises.” (3.17)
18. The resident has also cited the Quiet Enjoyment clause in the lease which she believed the landlord had breached.  This states:
    1. “That the Leaseholder paying the rents reserved by this Lease and performing and observing the covenants contained in this Lease may peaceably enjoy the Premises during the Term without any lawful interruption by the Landlord or any person rightfully claiming under or in trust for it.” (5.1)
19. The landlord’s Anti-social behaviour (ASB) policy states:
    1. “We will take a customer focussed approach to tackling ASB, working with the complainant and the alleged neighbour, aiming to reach agreed actions, timescales and ultimately closure. Except in very serious cases, our initial intervention will aim to stop the problem behaviour. We recognise that early intervention is important to stop cases escalating…”
    2. “Not all reports relating to behaviour that impacts on an individual can be deemed antisocial behaviour. It is important to show tolerance and be respectful of differing lifestyles and circumstances. The following are some examples of reports that are not included in this policy definition of antisocial behaviour:.. Sounds of normal day to day living that we can hear such as opening and closing of doors, going up and down stairs, One-off parties such as BBQs, birthday or Christmas parties providing they don’t cause an unacceptable disturbance.”

Noise nuisance

20. The landlord engaged with the neighbour and sought to comply with its lease obligations and policy requirements. It did not accept that the installation of the ceramic tiles in the neighbour’s flat amounted to a breach of the flooring and explained this to the resident. It did, however, raise concerns that the neighbour had not obtained permission from the landlord before the tiles were laid and took appropriate steps to remedy this. It also took steps to reduce the noise transference by negotiating with the neighbour and requiring him to install insulation under the tiling.  An agreement was later reached for rugs to be used to reduce the noise. This approach was consistent with its policy guidance as detailed above.
21. The landlord’s approach in trying to reach a settlement with the neighbour reflected the part 8 of the civil courts practice direction which states ‘Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings’ The landlord’s approach was therefore appropriate as any successful court proceedings would need to establish that there had been sufficient steps to try and resolve the issue before legal action was started. 
22. As part of this investigation the Ombudsman has had sight of the landlord’s contact with the neighbour. Whilst full details cannot be disclosed the Ombudsman is satisfied that the landlord was taking appropriate steps to deal with the matter.

Communication

23. The landlord’s communication with the resident has not been consistent and it has failed to manage the resident’s expectations. There is evidence to show that the resident was passed between staff members and that she experienced difficulties in getting updates and answers to her queries.
24. It is accepted that the landlord was unable to share the detail of the discussions with the neighbour, however it could have provided reassurances that action was being taken. It is also accepted that a number of telephone conversations have taken place, however there is no audit trail of these conversations and as no file notes have been provided to this Service it is not possible to verify the frequency or content of these calls other than via the information provided by the resident.
25. The lack of a consistent contact has resulted in the resident’s expectations of the actions that would be taken were often different from the action planned. This has exacerbated the resident’s dissatisfaction with the landlord. The role of the enforcement officer, the purpose, and outcome of their visits is an example of this. Further, as the landlord frequently failed to keep the resident informed, she understandably believed that the landlord was not taking any action to resolve the issue when this was not necessarily the case. Again, this will have increased her sense of frustration.
26. The resident has had to chase the landlord for updates and on occasion has not received an answer to her queries, for example, what action it would take following the provision of her diary sheets.
27. There were also communication failings within the landlord’s complaint handling which are addressed below.

Complaint handling

28. The landlord’s complaint handing was severely protracted. The complaint was made on 13 November 2020 and an initial response issued by the landlord on 6 April 2021. This is significantly outside of the landlord’s policy which states ‘We aim to response to Stage 1 complaints as soon as is reasonably possible and not later than twenty working days (four weeks)’. It was also non-compliant with the Housing Ombudsman’s Complaint Handling Code which expects a response to be sent within 10 working days (two weeks). The landlord offered £50 for this failing. 
29. However, its offer of compensation appears to be conditional on the resident accepting that the complaint was resolved. The Acceptance form stated ‘I……….accept £50 for my complaint, reference number 255039, and am happy for Hyde to complete the agreed complaint commitments and close the complaint. This was not appropriate. The substantive issue of the complaint (the noise nuisance) was ongoing and was not addressed in the compensation offer.  The compensation related to one element of the complaint only. It was not appropriate for the landlord to make its offer of compensation conditional on the non-progression of the entire complaint. 
30. There is no evidence that the landlord learnt from its error as the stage two response was equally delayed. The request to escalate the complaint was made on 11 May 2021 and a response was sent on 26 October 2021 following the involvement of this Service and the issuing of a Complaint Handling Failure Order.
31. The landlord appears to have relied upon the acceptance of the compensation as evidence that the matter was resolved. It failed to respond to the resident’s and the Ombudsman’s requests to escalate the complaint to stage 2. There is no evidence that it advised the resident that this was the reason for its non-progression.
32. The landlord’s approach was contrary to its policy commitments which state “If the customer is not satisfied with our response at Stage 1, a manager more senior than the person who made the response will review the case to determine if it warrants a review at stage 2 of our process. We will consider any request for a complaint to be escalated to Stage 2.”
33. The length of time it took to issue the stage two response was also not in accordance with its policy which stated that a stage two response should be sent “as soon as possible and not later than twenty working days from the complaint escalation date from Stage 1.”
34. The landlord accepted that there were service failures within its complaint handling and offered the resident £200 (£50 at stage one, plus £150 at stage two). Whilst this offer goes someway to redress the landlord’s shortcomings, it fails to recognise the difficulties created by its own requirements in relation to accepting compensation, nor does it fully recognise that the approach contradicted its policy, and the time and trouble necessary to obtain a response.

Determination (decision)

35. In accordance with paragraph 54 of the Housing Ombudsman Scheme, I make the following findings:
    1. There was no maladministration in relation to the handling of noise nuisance from a flat on the floor above.
    2. There was maladministration in relation to landlord’s communication with the resident with the resident in relation to the issue.
    3. There was severe maladministration in relation to the landlord’s complaint handling.

Reasons

36. The landlord took appropriate action in relation to the reports of noise nuisance by engaging with the neighbour and taking steps to enforce his leasehold obligations and reduce the noise transference.
37. The landlord’s communication with the resident has been poor with lengthy gaps where she has had to chase for updates. In addition, there have been a number of occasions where it has failed to respond to her questions and queries.
38. The landlord’s complaint responses were delayed without good reason.  Whilst its responses have gone some way to redress this failing, it has failed to recognise that its compensation acceptance requirements are unfair, concerning, and contributed to the lengths the resident had to go to in order to obtain a response. In addition, the landlord failed to learn from its errors in stage one which were repeated at stage two, causing additional inconvenience to the resident.

Orders

39. Within four weeks of the date of this report, the landlord is ordered to:
    1. Inform this Service in writing about its intention to undertake a senior management review of its compensation acceptance requirement to ensure that is fair and that a resident can accept compensation for one element of a complaint but still proceed with other matters.
    2. Pay the resident the total sum of £450 (including the £200 already offered) as follows:
       1. £150 for time and trouble for inconvenience caused by poor communication with the resident.
       2. £300 for the delays in complaint responses and the time and trouble caused to the resident.
    3. Provide this Service with evidence of compliance with these orders.