London & Quadrant Housing Trust (202123437)

REPORT

COMPLAINT 202123437

London & Quadrant Housing Trust

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 concerns:
   1. How the landlord handled the resident’s reports of noise nuisance from the communal heating system in the building.
   2. The associated formal complaint into this matter.

Background

1. The resident is a shared owner of the property with the landlord, which is a housing association. The property is a flat in a communal building. The landlord does not own the freehold of the building. A managing agent is employed by the freeholder, with the responsibility for the upkeep of the fabric of the building, the internal and external communal areas, and the arrangement of any necessary repairs coming within the managing agent’s remit.

2. The resident has experienced noise nuisance from the communal heating system in the building since at least March 2021. The resident contacted the landlord on 5 July 2021 and requested to raise a complaint into the issue. He described the elements of the complaint as:
   1. A loud continuous noise inside his property from the communal heating system.
   2. He had reported the matter to the managing agent, who had refused to carry out any repairs.
   3. During a joint visit between the landlord and the managing agent, the boiler was switched off by the managing agent so no noise occurred during the visit. However, the boiler was then switched back on after the visit and the noise returned.
   4. As a resolution to the complaint, the resident requested that the landlord enforce its contract with the managing agent to ensure it resolves the issue.
3. In its complaint responses, the landlord:
   1. Passed on the information it had been given from the managing agent to the resident as to what work had been undertaken. It stated that:
      1. The boiler room in the building consisted of four modular boilers and a flue fan.
      2. The motor from flue fan was changed in June 2021. The resident had requested that the fan be relocated from the ceiling onto a floor stand. The managing agent had explained that due to health and safety issues that this would not be possible.
      3. Two of the boilers were replaced on 30 October 2021 and 25 November 2021. The other two boilers had been switched off and would only be used in emergency situations. The two remaining boilers would be replaced in 2022.
      4. The flue fan was replaced in December 2021.
      5. The managing agent was unable to isolate any further noise from the boiler room and noted that its remit did not extend into investigating the resident’s property. The managing agent suggested that if the pipework inside the resident’s property was the source of the noise, that they may need to be soundproofed but that work would not be its responsibility.
   2. Informed the resident that during its stage one complaint investigation the managing agent had stated that the local authority had investigated the communal heating system, issued a noise abetment notice and had given the managing agent 14 days to resolve the issue. However, during its stage two complaint investigation the managing agent disputed its previous statement that it had received a noise abetment notice. The landlord advised the resident to contact the local authority to receive further clarification.
   3. Stated that It could find no evidence that the managing agent was aware of the cause of the noise but had refused to repair it.
   4. Apologised to the resident for the delay in responding to the complaint at stage one, the delay in escalating the complaint to stage two and offered £100 compensation.
   5. Offered advice and information on how to take sound recordings in the property and how to contact the local authority’s noise nuisance team.
4. In referring the case to this Service, the resident described the outstanding issues of the complaint as the landlord did not undertake a proper investigation of the issue, that it had not contacted the local authority to determine whether a noise abatement notice had been issued, and the work the managing agent had undertaken to the boiler room was general maintenance and not in response to the noise issue.

Assessment and findings

Relevant policies and procedures

5. Section 79 of the Environmental Protection Act 1990 concerns noise nuisance and inspections. Section 79(1)(g) of the act states that “noise emitted from premises so as to be prejudicial to health or a nuisance” constitutes statutory noise nuisance. Allegations of statutory noise nuisance are investigated by the local authority. If the local authority determines that statutory noise nuisance is occurring it will serve an abatement notice, which requires that whoever is responsible to stop or restrict the noise. Notices can be delayed for up to seven days to allow the person or organisation responsible to undertake work to resolve the issue. If the statutory noise nuisance is caused by a structural defect on the premises, the abatement notice will be served on the premises owner.
6. The landlord’s website and shared ownership guidebook sets out the repair responsibilities for a shared ownership property. This states that once the warranty period for the property has expired, the resident is responsible for all internal repairs to the property.
7. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.
8. The landlord’s compensation policy states that it will consider an offer of financial redress “when an apology alone is not sufficient and we recognise the impact the service loss or failure has had on the customer”.  The policy does not provide any payment guidance for the level of discretionary compensation that should be offered.

How the landlord handled the resident’s reports of noise nuisance from the communal heating system in the building

9. Once it was informed by the resident of his concerns relating to noise nuisance from the communal heating system, the landlord had a duty to respond to the resident in line with its obligations as shared owner of the property. The landlord owns the headlease for the property from the freeholder (known as “the superior landlord”) and the management company who act on its behalf (the managing agent).
10. The landlord acted appropriately when first informed by the resident of the noise nuisance. It contacted the managing agent, arranged a joint visit with the managing agent of the boiler room, then visited the resident’s property. The notes from these visits stated that that managing agent’s engineer detected a crack in one of the boilers and when this boiler was switched off, no noise could be detected in the resident’s property. The managing agent then arranged to have this boiler replaced.
11. When informed by the resident that the boiler replacement had made no difference, the managing agent arranged to have the three remaining boilers and the fan replaced. The landlord and managing agent also discussed the possibility of relocating the boiler room within the building, but due to the costs involved (which all residents of the building would be liable for) this proposal was dismissed. Therefore, the landlord acted appropriately as it worked with the managing agent to investigate the issue and in order to find a resolution work was undertaken in the areas of the building the managing agent was responsible for.
12. The resident requested that the flue fan on the ceiling of the boiler room be moved to a floor stand. The managing agent explained that this would not be possible due to health and safety regulations. This was disputed by the resident. It is noted that the boiler flue removes the exhaust gasses, water vapour and carbon dioxide into the outside air. Building regulations state where a flue can be situated in relation to the windows and doors in a communal building. A landlord (or the managing agent) would be entitled to rely on the conclusions of its appropriately qualified staff and contractors, and accordingly the decision to not relocate the fan was reasonable in the circumstances. The resident has not provided this Service with any evidence that disputes this position.
13. However, the landlord received conflicting information from the managing agent and did not follow-up on these discrepancies. During the stage one complaint investigation, the landlord’s notes from its communication with the managing agent in October 2021, stated that it was informed that the managing agent was aware of the noise issue and had been working since April 2021 to resolve it, that it had ordered a replacement boiler, and that the local authority had issued an abatement notice due to the noise and had given the managing agent 14 days to resolve the issue before the notice was enforced. The landlord’s notes from its communication with the managing agent in March 2022 as part of the stage two complaint investigation stated that the managing agent informed it of the work it had completed to the boiler room detailed above, that it had no knowledge of a noise abatement notice being served, and that the level of noise from the boiler room had remained unchanged for the last 13 years. In both of the investigations, the landlord stated that it was informed by the managing agent that it suspected that the source of the issue was with the pipework in the resident’s property, but it was not within its remit to investigate further.
14. In its stage two complaint response, the landlord included the information from the managing agent about the noise abatement notice, but made no further comment other than to advise the resident to contact the local authority. As the owner of the headlease, it is the landlord’s responsibility to ensure that the managing agent is in compliance with its obligations as to the maintenance and upkeep of the fabric of the building. If the managing agent does not meet these obligations, the landlord has the right to contact the freeholder directly. Therefore, there has been service failure by the landlord as it has not properly investigated the resident’s complaint and did not establish whether or not the local authority had determined the noise from the communal heating system to be statutory noise nuisance and whether a noise abatement notice had been served on the managing agent or on the freeholder.
15. The managing agent suggested that the pipework inside the resident’s property could be the cause of the noise, which lay outside of its remit. This position is in line with the repair responsibilities for shared ownership properties detailed above. However, if the managing agent or freeholder has been issued a noise abatement notice it would then be obligated to resolve the issue. In this case the managing agent would be expected to arrange with the resident for any necessary work or inspections to go ahead inside the property to determine if the cause of the noise nuisance was indeed the internal pipework. As the landlord did not establish if an abatement notice was served, this information was not provided to the resident and the landlord stated that any internal work would be the responsibility of the resident in line with the leasehold agreement. This was not entirely accurate.
16. Therefore, in order to fully resolve this aspect of the complaint, the landlord is ordered to contact the managing agent, the freeholder and, if necessary, the local authority to confirm whether an abatement notice was served on the building for statutory noise nuisance. It should then write to the resident to inform him of its findings, and whether this information has changed its position on repair responsibilities.
17. The landlord is also ordered to pay £200 compensation to the resident for its service failures in not properly investigating this aspect during the complaint process and the poor level of information it provided to the resident in its complaint responses. The Ombudsman’s own remedies guidance (which is available on our website) suggests a payment of £100 to £600 in cases of considerable service failure or maladministration which has adversely affected a resident, but resulted in no permanent impact. Examples of when this level of redress should be considered would include repeated failures by the landlord to reply to the resident’s letters, emails or phone calls and significant failures to follow complaint procedure, escalate the matter or signpost the complainant.

The landlord’s complaint handing

18. The landlord has acknowledged that there had been delays at both stage one and stage two of its complaint process. It apologised to the resident for the delays and the inconvenience this had caused, and offered £100 compensation. This action was appropriate and in line with its compensation policy detailed above. However, the level of compensation offered by the landlord was disproportionately low when the total length of delays during the complaint process are considered.
19. The resident originally raised a complaint on 5 July 2021. However, due to the property manager and their line manager both being on leave at the time, the complaint was not passed on to the complaints team. A complaint was not formally opened until 20 October 2021 and a stage one complaint response sent on 28 October 2021; 74 working days outside its published timescale of ten working days.
20. The resident requested an escalation of the complaint on 29 October 2021. The landlord acknowledged the request on 9 November 2021. Following an email from the resident on 11 January 2022 asking for an update, the landlord replied on 20 January 2022. It explained that due to a backlog of cases as a result of the Covid-19 pandemic and national lockdowns, that there were delays in the escalation process. The stage two complaint response was sent on 18 March 2022; 78 working days outside of its published timescale of 20 working days. It should also be noted that it took 57 working days from when the escalation request was made for the landlord to inform the resident that there would be a delay in escalating the complaint due to the backlog.
21. Therefore, it would be appropriate for the landlord to pay a further £150 compensation to the resident for the delays in the complaints process and the inconvenience that this caused to the resident.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of:
    1. How it handled the resident’s reports of noise nuisance from the communal heating system.
    2. It’s complaint handling.

Orders

23. For the service failure and reasons set out above, the landlord is ordered to pay to the resident £350 broken down as follows:
    1. £200 for the failure in its handling of the resident’s reports of noise nuisance coming from the boiler.
    2. £150 for its complaint handling failures.
24. This payment should be made within four weeks of the date of this report. The landlord should update this Service when payment has been made. The compensation award is in addition to the £100 compensation already awarded by the landlord in its complaint process.
25. It is further ordered that the landlord contact the managing agent, the freeholder and, if necessary, the local authority to confirm whether an abatement notice was served on the building for statutory noise nuisance. It should then write to the resident to inform him of its findings, and whether this information has changed its position on repair responsibilities.