Octavia Housing (202223509)

REPORT

COMPLAINT 202223509

Octavia Housing

14 May 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

1. The complaint is about the landlord’s:
   1. Response to the resident’s reports of noise from repair work at the neighbouring property, including the conduct of the landlord’s contractors.
   2. Complaint handling.

Background

2. The resident is an assured tenant of a 1 bedroom, upper ground floor flat, in a converted house. The tenancy started in January 1997. The freehold is owned by the landlord which is a housing association. The landlord has no known health vulnerabilities recorded for the resident.
3. The resident raised a formal complaint to the landlord on 3 August 2022. She said that flood repair work to the basement property was disruptive and disturbing her life in her property. She described the behaviour of the contractors as rude and aggressive. She said that she had raised noise concerns with the landlord “about a year ago” but had never received a response. She said that the excessive noise was “making her life hell.”
4. The landlord provided a stage 1 response on 19 August 2022. It advised that it had spoken to the site manager regarding her reports of excessive noise and asked for an anticipated completion date. It apologised for the delays it had experienced and anticipated completion by 2 September 2022. It explained that work was already restricted between 8am to 6pm to minimise disturbance.
5. On 28 August 2022 the resident escalated her complaint to stage 2 of the landlord’s complaint procedures. She said that the contractors were on site from 7am and their behaviour and work was very loud.
6. The landlord provided a stage 2 complaint acknowledgement to the resident on 30 August 2022. Within which it identified that she had raised a new noise concern. This was caused when a fire door slammed shut in the property being repaired.
7. On 27 September 2022 the landlord provided a stage 2 response. Following telephone conversations with the resident, it had discussed matters with the site team. It apologised for any disturbance that the necessary repair work caused and acknowledged that work had taken longer than initially planned. However, it found no evidence to support her claims of “excessive suffering.” As such, it would not pay her £1,000 compensation that she requested. It said it was sorry for the repair delay but it was satisfied there had been no service failure. It fixed the fire door and offered £25 as a gesture of goodwill.
8. In January 2023 the resident told the Ombudsman that while repairs had stopped in September 2022, her wellbeing had suffered due to the noise. She said the landlord should be accountable for the damage it had done to her and we should “decide how much it should pay her by law.” She remained dissatisfied with the landlord’s response and her complaint became one we could formerly consider on 7 February 2023.

Assessment and findings

Scope of investigation

9. The resident has raised concerns that her health has been detrimentally affected by noise, dust, and smells during flood repair work at the neighbouring property. We do not doubt the resident’s comments.
10. Whilst we are an alternative to the courts, we are unable to establish legal liability on whether a landlord’s actions or inaction has had a detrimental impact on a resident’s health. Nor can we calculate or award damages. The Ombudsman is therefore unable to consider any personal injury aspects of the resident’s complaint. Such decisions require an assessment of liability and are decided by a court or insurer.
11. In reaching a decision about the resident’s complaint, we consider whether the landlord has kept to the law, followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine the complaint by reference to what is, in our opinion, fair in all the circumstances of the case. Where the Ombudsman identifies a failure by a landlord, we can consider the resulting distress and inconvenience.
12. The resident may wish to seek independent legal advice if she wants to pursue a claim for damages for any adverse effect on her health.

Response to the resident’s reports of noise from flood repair work at the neighbouring property, including the conduct of the landlord’s contractors

13. There is evidence that the resident first reported noise to the landlord on 9 September 2021. She said she had been disturbed by noise since a flood to the basement property in July 2021. She said dehumidifiers in the basement property disturbed her as they were left on at night. Other than her contact on 9 September 2021, it is unclear from the evidence whether the resident reported these issues to the landlord or contractor before this date. Therefore, it is not possible for us to assess any failing by the landlord prior to September 2021.
14. The landlord does not dispute that the flood repairs to the basement property took longer than initially expected. The landlord says the repair was covered by its insurer. As the insurance company appointed its own contractors, the landlord said that the delays were beyond its control. It advised that delays were caused by additional work identified while on site and tube strikes which prevented the insurer’s contractors attending as initially planned.
15. While these are reasonable explanations, the landlord remained responsible for any outstanding repairs and for its residents. This includes providing residents with information about any delays that may extend the timeframe that repair noise will be present. In this case, it is unclear from the landlord’s records whether this information was ever shared with the resident. This does not demonstrate the landlord communicating effectively.
16. On 1 June 2022 the resident expressed dissatisfaction to the landlord. She said contractors were “loud, rude, used foul language, and mocked her when she tried to engage with them about noise.” There is no evidence the landlord took this as a formal complaint. However, internal communication on 6 June 2022 acknowledged that the resident had previously “complained about excessive noise” during the flood repairs. Given that the landlord acknowledged that this was not the first time the resident had expressed dissatisfaction, it is unclear why there is no evidence of a previous investigation or written response.
17. The Ombudsman’s Complaint Handling Code (the Code) states landlords should recognise the difference between a service request and a complaint. A service request is a request from a resident to their landlord requiring action to be taken to put something right. Service requests should be recorded, monitored and reviewed regularly. A complaint should be raised when the resident raises dissatisfaction with the response to their service request.
18. In this case, the evidence indicates that the landlord managed the resident’s initial reports in September 2021 as a service request. While there are gaps in the landlord’s record keeping regarding its updates to the resident, it was reasonable for it to attempt to resolve things at this stage.
19. Within the landlord’s internal communication on 6 June 2022 and again on 12 December 2023, it is clear that the landlord had agreed that contractors would not be allowed on site before 8am and no later than 6pm. Furthermore, drying equipment used at the time was switched off during the evenings to minimise noise.
20. This demonstrated that the landlord took steps to resolve the resident’s initial report of noise. It contacted the insurance company responsible and asked that her reports of noise from repairs and site staff were passed to the contractors. It is clear from the insurance company’s email on 6 June 2022 that the landlord could expect a reply from the contractor. These steps were reasonable in the circumstances. It showed that it had acted to report the resident’s concerns and took steps to minimise noise by restricting site hours and turning off dehumidifiers at night.
21. However, it failed to demonstrate how it communicated its actions to the resident. Furthermore, it is unclear what steps, if any, the landlord took to monitor the effectiveness of its actions with the resident or the contractors. These are further examples of communication failures by the landlord.
22. At this stage, there is also no evidence that the contractor responded to the landlord or insurance company about the alleged conduct of site staff. There is also no evidence that the landlord chased for this reply nor did it provide an update to the resident. This was not reasonable. The landlord did not demonstrate that it monitored the situation or thoroughly investigated the matter. It therefore failed to demonstrate that it had satisfied itself that noise disturbance was controlled and resolved to the resident’s satisfaction.
23. While we do not dispute the resident’s claims, it is not possible for us to determine that the noise incident’s took place, nor can we assess the affect caused to her health. However, we expect the landlord to have thoroughly investigated and documented its actions to address her concerns. There is however no evidence that it wrote to update her prior to her June 2022 complaint. It is not until the landlord’s stage 1 response on 19 August 2022 that it summarised steps it had previously taken in 2021. This did not demonstrate effective monitoring of the contractor or communication with the resident.
24. The landlord operates a code of conduct policy. Whilst this code of conduct is not contractual, it sets out acceptable standards of behaviour and conduct for its employees. The code of conduct details the main standards of behaviour the employees need to comply with. This includes ensuring the maintenance of acceptable standards of politeness and taking all necessary steps to safeguard the landlord’s public image.
25. While this policy is specific to its own staff, the landlord would remain responsible for any contractors operating within its properties. The landlord’s failure to evidence a thorough investigation into the behaviour of on-site staff was not appropriate. It failed to ensure that work was being undertaken in line with its code of conduct policy.
26. When there are failings by a landlord, as is the case here, the Ombudsman will consider whether the redress offered by the landlord (apology, offer of compensation, and additional repairs) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes
27. There is evidence that the landlord took steps on or around September 2021 to minimise noise impacting on the resident. This was reasonable in the circumstances as it demonstrated that the landlord had acted on the resident’s concerns.
28. However, while the landlord demonstrated that it had spoken to its site foreman and visited site, its stage 2 response said that it “was highly unlikely that the site staff would have been rude or aggressive towards her.” While the landlord states that any behaviour of this kind would have been dealt with immediately, the complaint response does not demonstrate how it satisfied itself that there had been no incidents. There was no evidence of how it investigated her concerns or any explanation how they would be monitored. Considering there is evidence from 6 June 2022 that the contractor did not respond to the reported allegations, this did not demonstrate the landlord completing a thorough investigation that would have given confidence to the resident that her concerns had been addressed.
29. The landlord’s initial failure to monitor the outcome of the resident’s service request was not appropriate. This was not in line with the expectations of the Code. It was unreasonable to leave her without information regarding these matters and its failure to update her left her feeling distressed and unheard.
30. It was appropriate that the landlord’s stage 1 response explained the action it had previously taken to restrict site hours to minimise noise. It was also appropriate for the landlord to apologise for the repair delays and provide her with an expected completion date. However, based on the evidence, it had previous opportunity between the end of 2021 to June 2022 to reassure and communicate with her. Furthermore, given she had raised noise issues previously, it could have treated her dissatisfaction in June 2022 as a formal complaint. There is no evidence that this was done and indicates a training need.
31. The landlord’s stage 2 response on 27 September 2022 advised that it had not witnessed the level of noise, dust, or smells reported by the resident during its site visits. It identified that the properties did not share external steps and concluded it was unable to verify that she had “severely suffered” as she described. The landlord completed work to resolve the slamming fire door and offered the resident £25 compensation as a goodwill gesture.
32. While the resident confirmed that the door was fixed to her satisfaction, she did not accept the compensation. Instead, there is evidence on 5 October 2022 that she wanted additional work completed in communal areas of the building. It was therefore reasonable that the landlord acknowledged the resident’s email and arranged an appointment to review the issues and request raised.
33. In this case, there was maladministration. There is evidence that the landlord missed opportunities to communicate with the resident. While the evidence indicates it took steps to minimise the noise prior to her formal complaint in June 2022, it failed to demonstrate how it recorded, implemented, and monitored its actions. The lack of monitoring and communication caused distress and increased dissatisfaction.
34. While it is unclear why the resident did not raise a formal complaint sooner, it is reasonable that she believed she had already done so. There is no evidence that the landlord provided an update of its actions to reduce noise or monitored whether its actions were working. She had therefore waited approximately 9 months for a response to her initial reports in September 2021.
35. Therefore, the redress offered was not proportionate to recognise the poor communication and monitoring of her reports of noise. An order of £180 has been made. This is in line with the remedies guidance available to us when redress is required to put things right for the resident. This is based on £20 per month for 9 months for the failures identified in this report. Consideration has been made for the landlord’s actions to restrict site working times, turn dehumidifiers off at night, and complete additional work to prevent a fire door slamming.

Complaint handling

36. The landlord operates a 2 stage internal complaint procedure (ICP). It will acknowledge a stage 1 complaint within 3 working days and within 5 working days at stage 2. The landlord will provide a stage 1 complaint response within 10 working days and within 20 working days at stage 2.
37. The resident says she raised a formal complaint on 3 August 2022. Therefore she should have expected an acknowledgement from the landlord by the 8 August 2022 and a stage 1 response by 17 August 2022. These deadlines were missed by 1 working day and 2 working days respectively. While the detriment of these short delays would be minimal, it was not appropriate and not in line with the landlord’s complaint handling policy. Furthermore, there is no evidence that the landlord contacted her to inform her of any delays or agree an extension for it to provide a response.
38. The landlord’s complaint policy states that a complaint is defined as an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents. As already assessed in the substantive complaint, it is therefore unclear why the landlord failed to treat the resident’s dissatisfaction on 1 June 2022 as a formal complaint.
39. The resident escalated her complaint on 28 August 2022. It was therefore appropriate that the landlord acknowledged this request within its 5 working day timescale.
40. The landlord issued its stage 2 response 1 working day beyond its policy timescale. Again, while this delay would have caused minimal detriment to the resident, it is unclear why the landlord did not inform her of the delay.
41. The landlord’s stage 2 response acknowledged each issue raised by the resident in her stage 1 complaint. Furthermore, it acknowledged that she had raised a new concern regarding noise from a door slamming within the basement property. It was appropriate to include this. Completing this additional repair demonstrated the landlord’s efforts to put right an issue disturbing her.
42. In this case there was service failure. The landlord’s complaint handling from the date of the formal complaint was reasonable. However, opportunities were missed to treat expressions of dissatisfaction as a formal complaint prior to August 2022. This was a failure of its ICP and demonstrated a training need. The delayed response caused distress to the resident and did nothing to improve the landlord resident relationship.

Determination

43. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s response to the resident’s reports of noise from repair work at the neighbouring property, including the conduct of the landlord’s contractors.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure with the landlord’s complaint handling.

Orders and recommendations

Orders

45. The landlord is ordered to take the following action within 4 weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
    1. Pay the resident £280 compensation, comprised of:
       1. £205 for the resident’s distress and inconvenience caused by the landlord’s response to the resident’s reports of noise from flood repair work at the neighbouring property, including the conduct of the landlord’s contractors. The £25 offered by the landlord can be deducted from this amount, if already paid.
       2. £75 for the resident’s time, effort, distress and inconvenience caused by the landlord’s complaint handling.
    2. Within 4 weeks the landlord is ordered to refresh the training of its complaint handling staff to ensure they oversee complaints in accordance with its complaints procedure. The landlord may benefit from the free resources available via the Ombudsman’s Centre for Learning. This is available on our website.

Recommendations

46. The landlord is encouraged to provide resident’s with a written schedule of works when undertaking extensive repairs to neighbouring properties. It should consider including the anticipated duration and provide contact details of a person or team who can be contacted to report any concerns.
47. The landlord is encouraged to review the Ombudsman’s Spotlight report on knowledge and information management (May 2023) and self-assess against the recommendations in that report. The findings should be shared with relevant officers responsible for updating resident records, complaint handling, and those tasked with monitoring subcontractor performance.