London Borough of Ealing (202323857)

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REPORT

COMPLAINT 202323857

London Borough of Ealing

24 September 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

The complaint is about the landlord’s handling of resident’s reports of defects identified with his new build property.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident has been a shared owner of the property since 8 June 2018. The landlord is a local authority. The property is a flat. The resident lives with his partner and baby. The property is covered by the National House Building Council (NHBC) warranty.
It is clear that the resident had raised with the landlord issues with the property after he had moved in 2018 relating to noise from the plant room. The plant room was next to the resident’s bedroom and contained equipment necessary for the utilities provided within the block. The Ombudsman understands that the property developer changed the position of the plant room to its current location after the resident had signed for his property.
The resident raised a formal complaint with the landlord, the date of which is unknown. In that complaint, the resident said that for the previous 4 years he had not been able to use his bedroom due to excessive noise. The resident said a sound report he commissioned, showed that their property was not habitable.
In the complaint, the resident said that the last update he had received from the landlord’s building safety team said that they were dependant on the builders. The Ombudsman understands that the landlord closed this complaint without providing a formal response.
The resident raised a further formal complaint on 15 August 2023. The key points were as follows:
1. He had received no update on the earlier complaint or an explanation as to why the landlord had closed this.
2. The landlord had not resolved the noise issue in his property.
3. The last sound report completed showed a high noise level which occurred every 30 to 45 minutes during the nighttime.
4. The landlord had passed the case to its building safety team after 4 years, but they had made no progress.
The landlord provided its stage 1 complaint response on 15 December 2023. It defined the complaint to be about:
1. A hammering noise in the property.
2. An issue with the balcony tiles from the flat above.
3. Missing thermal insulation on the cold water and heating pipes.
4. Missing thermal insulation in the bathroom.
5. Missing rainwater pipes and rainwater outlets on the building.
6. Missing wall protection in the bin room.
In the response, the landlord apologised for the length of time taken to give a response to the complaint. It confirmed it had spoken to the building safety team who said they were awaiting information from the developer. The landlord said it was therefore hard to progress the issues without their input. It confirmed that it would instruct a specialise structural contractor to investigate the issues.
The landlord has provided no evidence to show the action it took after this response.
The landlord provided its stage 2 response on 22 February 2024. It defined the complaint to be about the following:
1. No response provided to the resident’s original complaint.
2. The noise issue from the plant room, originally reported in June 2018.
3. All works done so far had made the noise in the bedroom worse.
4. After 4 years, the landlord had passed the issue to the building safety team, but no progress had been made.
The landlord confirmed that the resident wished for a resolution for the reported issues and for the developer to provide the approved buildings drawings from when it had built the property. The key points in the response were as follows:
1. To investigate the complaint, the landlord needed to arrange a specialist contractor to undertake a review of the earlier survey done at the property.
2. That survey would take place on 4 March 2024 where sound would be monitored within the property for 40 hours. The landlord apologised for the length of time it had taken to arrange this survey.
3. It had engaged with the builders who had confirmed they do not have the drawings of the building as it was not their policy in 2018 to update the drawings with the final build information.
4. It was sorry that it took so long to get to grips with the resident’s complaint and to find a contractor competent to work with them to monitor the noise and vibrations.
5. It confirmed that when the developer decided to change the use of the room next to the resident’s bedroom to install a water pump the landlord should have told the resident. This would have given the resident the chance to consider another property in the development.
The landlord has not provided the Ombudsman with any evidence to show that the landlord undertook a survey of the noise following its stage 2 response.
The resident arranged for a contractor to professional acoustic company to undertake a noise assessment between 19 and 21 March 2023. The conclusion of which said that the noise levels from the plant room are likely to disturb sleep quality and therefore considered to have an impact on the sleep quality of the resident and his family. It recommended that the relevant stakeholders carry out further investigation to understand the cause and discuss potential solutions.

Assessment and findings

Scope of investigation

It is clear that the resident has raised the issue of noise in his property and other issues relating to the build quality since 2018 when he first bought the property. However, these issues did not exhaust the landlord’s formal complaints procedure until the resident raised a formal complaint in August 2023. Therefore, any mention of issues raised prior to this date are for context only.
Throughout the duration of this complaint and the Ombudsman’s investigation, the resident has provided evidence that he has been liaising with the NHBC and the property developer responsible for building his property. The Ombudsman can only consider complaints that concern matters which relate to the actions or omissions of a member of the Scheme. Any reference made to communications with the NHBC, and the property developer are for context only and do not form part of the investigation undertaken in this case. The resident has the choice to seek legal advice in relation to the above if he wishes.

Policies and procedures

The Dispute Resolution Principles are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right.
3. Learn from outcomes.
The shared ownership lease sets out that the landlord shall use reasonable endeavours to maintain, repair, redecorate and renew and improve the ventilation and water apparatus and machinery in, under and upon the estate. It also sets out that it will do the same for the load bearing framework and all other structural parts of the building including machinery and plant within the premises and all parts of the building which are not the responsibility of the leaseholder.
The landlord’s repair policy states that it has no legal obligation to carry out repairs to the inside of the homes of leaseholders unless a fault to the structure of the building causes internal damage. Any repairs shown within the first 12 months of the handover of a new-build property will be dealt with in line with its defect procedure. Within 28 days, the landlord would complete routine repairs.
The landlord has a 2 stage complaints process. It will respond at stage 1 within 10 working days and respond at stage 2 within 20 working days. If the landlord requires a further extension, it will contact the resident to agree an extension.

Issues found in new build property.

In his formal complaint on 15 August 2023, the resident reported ongoing noise issues in his property since moving in, with no progress made by the landlord to resolve the problem. The resident had been in contact with the property developer about this issue for some time. However, under the terms of the lease, the landlord still had a responsibility to help resolve these issues. When a resident reports defects, the Ombudsman expects the landlord to liaise with the relevant third party to work towards a resolution. Despite requesting this, the landlord has provided no evidence to show what action, if any, it took to resolve the issues raised. Landlords need to have effective and robust systems in place to record all communication with residents to track and monitor outstanding issues.
In the landlord’s stage 1 complaint response it said that it had spoken with its building safety team, and they were awaiting information from the developer but that they were actively chasing them for information. This highlighted a commitment by the landlord to help resolve the issues for the resident.
However, no evidence has been provided to show if the landlord did liaise with its building safety team or if it chased the developer to ascertain the current status of its investigations. Landlords need to ensure where it is reliant on other teams or third party contractors, it has consistent and regular communication to ensure all are working towards a resolution for its resident. Not doing so would have frustrated the resident who was unsure what action, if any, the landlord was going to take.
The landlord confirmed it would hire a specialist structural contractor to address the property’s outstanding issues, showing its commitment to resolving the resident’s concerns. However, it is important to note that the landlord committed to this in the stage 1 response in December 2023, 4 months after the resident filed the formal complaint. This delay was inappropriate, as the landlord should have raised the necessary inspections when the resident made the complaint or at least provided an explanation about the action it intended to take. The lack of prompt action caused further unnecessary delays for the resident in resolving the issue.
The evidence shows that the landlord had engaged with the company who had designed the pump, which was causing the noise, to undertake a service. They confirmed the pump was working correctly at it should. This was reasonable in the circumstances. While this did not resolve the noise issue for the resident, it was appropriate that it arranged for the survey to be completed. Furthermore, the landlord is entitled to rely on the qualified professionals who confirmed it was working correctly.
Furthermore, internal communications show that the landlord was at that time in talks with a sound proofing company to get involved to try to remedy the noise issue within the resident’s property. Where initial steps to resolve the issue are not successful, the Ombudsman would expect to see the landlord explore other options and therefore, it was appropriate of it to consider sound proofing as a resolution in this case.
In the stage 2 complaint response, the landlord confirmed that it had found a specialist contractor to undertake a review of earlier sound surveys done and to undertake further sound and vibration testing in the property. It apologised for the delay in undertaking the survey. Where the landlord is reliant on third party contractors to undertake works, the responsibility does not lie with the landlord for any delays in them completing surveys. However, the Ombudsman would expect to see any delays communicated to a resident promptly. This is not clear in this case. Landlords need to ensure they have consistent communication with residents to manage their expectations. Not doing so in this case would have frustrated the resident who had been living with the issue for a significant period.
However, in the complaint response it confirmed the appointment date and managed the resident’s expectations by setting out the timeframe in which the landlord would receive the results of the investigations. This set out clearly for the resident how long the investigations would take and would have managed his expectations.
Where a landlord is reliant on third party companies, like in this case, such as the property developer, the Ombudsman would expect a landlord to keep the resident consistently updated even where there are no updates to give. In this case, the landlord has provided no evidence to show that it had consistent and effective communication with the resident. Furthermore, the resident spent a significant amount of time chasing the landlord for updates and the landlords lack of action caused him to go directly to the property developer. This is not reasonable in the circumstances and would have frustrated the resident who was struggling to live with the ongoing noise.
The Ombudsman understands that the resident has commissioned several noise surveys since moving into the property to resolve the situation. One of these surveys, completed on 17 April 2024, after the stage 2 response, showed that the recorded noise levels would “disturb” human sleep quality. While the Ombudsman acknowledges that the landlord had committed to conducting its own survey, the resident is entitled to hire his own surveyors for further investigations.
Despite the results of the resident’s survey, the landlord was entitled to rely on its own qualified surveyors and any findings. As the issue affected the plant room, which was its own property, the landlord is entitled to decide the best course of action to resolve the issue regardless of any evidence provided by the resident. However, the Ombudsman expects the landlord to communicate this to the resident to manage their expectations. There is no evidence that the landlord did this, which is a failing.
It is important to note that during this investigation the Ombudsman asked the landlord to supply evidence of any communication between it, the resident, and any relevant third-party contractors in this case. The landlord responded to say that it had no evidence of any such communication. It is important that landlords have effective and robust systems in place to record and hold all communication in relation to issues and repairs raised. Not doing so has meant it is unclear what action the landlord took and when it took that action and therefore, the Ombudsman has been unable to determination either way if some of the landlord’s actions was in line with its policies. The lack of effective record keeping amounts to a failing by the landlord in this case.
Overall, following the resident’s complaint the landlord did try to resolve the issues for the resident. It ordered a sound and vibration survey, an inspection of the pump and discussed the possibility of installing sound proofing. However, the landlord’s lack of evidence means it is unclear if the landlord kept in consistent communication with the resident throughout the duration of this complaint or if it actively pursued the developer to help work towards a solution. Furthermore, it delayed in raising the necessary inspections required to resolve the issues. The lack of communication in this case and the insufficient record keeping have led to an adverse finding in this case.
Therefore, there was maladministration in the landlord’s handling of resident’s reports of defects identified with his new build property.
A compensation order has therefore made of £600, made up of the following:
1. £300 for not keeping accurate records in this case.
2. £200 for the delay in raising a survey of the noise issue in the property.
3. £100 for the lack of effective communication.

Complaint handling

The resident made a formal complaint to the landlord around September 2023; however, the landlord did not acknowledge this as a complaint and therefore did not respond to it formally at that stage. The Ombudsman’s Complaint Handling Code (the Code) sets out that where a landlord decides not to accept a complaint, the landlord must provide an explanation to the resident setting out the reasons why the matter is not suitable for the complaints process. There is no evidence to show that the landlord communicated its reasoning to not accept the complaint to the resident. This is not appropriate and caused the resident to raise a further formal complaint.
The resident raised the second formal complaint on 15 August 2023. The landlord provided its stage 1 response on 15 December 2023, 78 days after the response was due. This is not in line with the landlord’s complaints policy or the Code, which sets out that the landlord must provide a stage 1 complaint response within 10 working days. Not providing a response within the specified timescales caused unnecessary delay to the resident and was not in line with the Dispute Resolution Principles.
The resident requested an escalation to stage 2 of the landlord’s complaint procedure. However, the Ombudsman has not seen evidence of this. The Code sets out that a landlord must keep a full record of correspondence with the resident, as well as any relevant supporting documentation. Its lack of effective system to store and record this information means an adverse finding has been made in this case.
The landlord provided its stage 2 response on 22 February 2024. As there is no evidence from either party to show when the resident requested escalation to the next stage of the complaints process, it is unclear if the landlord provided this in line with its complaint procedure and therefore within 20 working days. Due to the lack of evidence, the Ombudsman is unable to make a finding of whether the landlord acted in accordance with its own policy and the Code.
A complaint response should provide a detailed response to each of the complaint points raised within it. However, in the stage 2 response the landlord did not address the resident’s queries about it not accepting the original complaint. The Code sets out that the landlord must provide clear reasons for any decisions within the complaint response. Not providing an explanation would have frustrated the resident who had to spend time raising a further complaint to receive an answer to his queries.
In upholding the complaint, the landlord appropriately set out the lessons it had learned. However, where the landlord acknowledged that it could have done things differently, it would have been appropriate for it to set out the actions it intended to take to ensure it embedded any lessons learnt into its practise going forward. Instead, it said it could see it could have done things differently. But did not acknowledge that it would learn from its mistake. This is not in line with the Dispute Resolution Principles.
Overall, the landlord’s complaint handling fell below the standard expected by the Ombudsman. It did not log the first complaint or give a reason for not accepting it as a complaint and did not address this as part of the resident’s complaint. It then delayed unnecessarily in providing the stage 1 response. Its lack of record keeping has meant the Ombudsman is unable to say if the landlord provided the stage 2 response in line with its complaints policy. Furthermore, while it upheld the complaint, it did not provide an explanation of the learning it intended to take in this case even though it accepted it should do thing differently.
Therefore, there was maladministration in the landlord’s complaint handling.
A compensation order has been made for £250, made up of the following:
1. £50 for not logging the original complaint or providing an explanation.
2. £100 for the delay at stage 1.
3. £50 for not addressing all the issues at stage 2.
4. £50 for the failings in its record keeping.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of resident’s reports of defects identified with his new build property.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this determination, the landlord must pay compensation to the resident of £850, made up of the following:
1. £600 for the failings in its handling of the reports of defects in the property.
2. £250 for its complaint handling.
Within 4 weeks of the date of this determination the landlord must provide evidence of how it intends to embed the learning from this case into its policies and practises going forward.
Within 4 weeks of the date of this determination, the landlord must provide a time-specific action plan to the resident and this Service outlining the steps it will take to resolve any outstanding works at the property.
Within 4 weeks of the date of this determination a senior member of the landlord’s staff must write to the resident to apologise for the failings found in this report.
Within 4 weeks of the date of this determination the landlord must provide evidence of compliance with the above orders.

Recommendations

We encourage landlords to self-assess against the Ombudsman’s Spotlight reports following publication. In May 2023 we published our Spotlight on Knowledge and Information Management (KIM). The evidence gathered during this investigation shows the landlord’s practice was not in line with that recommended in the Spotlight report. We encourage the landlord to consider the findings and recommendations of our Spotlight report unless the landlord can provide evidence it has self-assessed already.