Optivo (202110503)

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REPORT

COMPLAINT 202110503

Optivo

31 January 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 refers to the landlord’s handling of the resident’s reports of:
  2. noise nuisance from a community centre beneath her property.
  3. pest issues and repairs to her property.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
  3. The Ombudsman will not consider the complaint about any repairs and pest control in the resident’s property. As these are separate issues to the complaint raised through the landlord’s complaints policy, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect through its internal complaint procedure as in line with 39(a) of the Housing Ombudsman Scheme. If the resident wishes to pursue these issues, she will need to contact the landlord and, if appropriate, raise a separate complaint. The resident may be able to refer the new complaint to the Ombudsman if she remains dissatisfied once the complaint has exhausted the landlord’s internal complaints procedure.

Background

  1. The resident stated that the noise issues affecting her property have been ongoing since 2015. The Ombudsman appreciates that this is a longstanding issue, however it is outside of the Ombudsman’s remit to consider events dating back to 2015. As a general principle the Ombudsman will consider events up to 6 months prior to a formal complaint being raised to the landlord, this is in line with the Housing Ombudsman Scheme, which sets out the rules which govern our service. Landlords are not expected to keep detailed records indefinitely and the landlord would not be expected to have much information about the noise dating back to 2015. For this reason, the Ombudsman’s investigation does not consider any specific events prior to June 2020, which is 6 months before the resident complained to the landlord in November 2020.
  2. In the resident’s complaint, a reference was also made about concerns regarding the continuation of parties in the community centre whilst Covid-19 restrictions were in place. It is not within the remit of the Ombudsman or the landlord to comment on these concerns. If there is a concern about breaching Covid-19 rules and regulations the resident is encouraged to contact the police, as the police hold different powers to the landlord and are therefore, they best placed to investigate allegations of criminal activity.

Summary of events

  1. The resident is a secure tenant of the landlord. The property is a flat in a communal building with a community centre on the ground floor.
  2.  The resident reported on 1 September 2020 that parties were resuming in the community centre and she was unhappy with this. In a further email on 1 October 2020 the resident again contacted the landlord to inform it that there were dance classes occurring in the community centre up until 8:30pm. She said that she and other residents were having trouble getting children to sleep.
  3. The resident submitted a formal complaint to the landlord on 30 November 2020 citing that there were still concerns regarding pest control, roofing issues, electrical problems, water damage, mould, toilet repairs and noise from the community centre.
  4. The landlord responded to the resident acknowledging the complaint on 1 December 2020. However, citing its complaints policy, the landlord did not raise a formal complaint in regards to pest control, roofing issues, electrics and water damage as it said these concerns had previously being raised via the complaint procedure. The landlord advised a response date of 15 December 2020.
  5. The landlord’s stage one complaint response of 14 December 2020 stated that the contractor had resolved leaks on the roof and the staining in the resident’s property could be from the leak and therefore the resident would be responsible for decorating this water damage to the ceiling as the landlord was not responsible for decorating. The landlord also advised the resident to keep the property ventilated in regards to mould in the property and arranged for a specialist to attend the property to inspect this. The landlord advised that the pest control concerns had already been resolved and therefore this was now a closed matter. The landlord addressed the noise from the community centre and stated that it had spoken to the community centre about the noise complaints and tried to find a solution to the concerns with them, it also provided information in regards to the local authority’s environmental health department about noise pollution. It also responded to the resident’s request for a move and explained it had closed its internal transfer list due to the high demand for properties but offered support in moving property by a housing officer contacting the resident.
  6. The resident requested a referral to the landlord’s review panel on 22 December 2020.
  7. The landlord issued its review panel findings on 25 January 2021. This concluded that the landlord had no responsibility over the community centre so decided not to escalate the complaint to the review panel.
  8.   The resident tried to submit a further complaint to the landlord about the noise coming from the community centre. The landlord responded to advise a further complaint would not be considered as the previous complaint had been resolved.
  9.  Further occurrences of noise concerns were raised since the complaint exhausted the landlord’s complaint policy and this seems to be an ongoing concern for the resident. The resident noted that a breakfast club was beginning in the community centre with no consultation and that parties had resumed. A noise recording machine was installed in the property in late December 2021 by the landlord.

Assessment and findings

  1. It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to her reports of ASB. It is not the role of the Ombudsman to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.

Policies and procedures

  1. The landlord’s complaint policy states that it will handle complaints via a two-stage approach, a ‘complaint’ stage and a ‘review’ stage. The policy states that both stages of complaints will receive an acknowledgement within three working days of the complaint being processed and the landlord will issue a response within ten working days to both stages. The policy also states that for the complaint to be progressed to the ‘review’ stage, a request for this must be completed within ten working days of the stage one complaint response.

The landlord’s response to the noise reports about the community centre.

  1. The landlord was limited in the actions it could take in response to the resident’s noise reports due to the community centre not being a tenant of the landlord. This means that the landlord’s anti-social behaviour policy that applies to its residents would not apply to the community centre as there is no underlying tenancy agreement with the community centre meaning that the community centre is not subject to the landlord’s anti-social behaviour policy. However, the landlord displayed proactive efforts to try and resolve the concerns of the resident whilst also informing her that there was a limit to its abilities in this situation.
  2. The landlord made reasonable enquiries to the community centre leaders in regards to parties or events occurring during Covid-19 restrictions. The landlord was not strictly obliged to enquire about these events and the community centre leaders responded to queries stating that there were no parties during national restrictions but when these restrictions eased the parties did start to resume. However, the landlord acted reasonably in making these enquiries and it attempted to resolve the matter for the resident. The landlord contacted the community centre on numerous occasions throughout the complaint process to enquire if all regulations were being complied with and also contacted environmental health to request an unplanned visit take place to assess the noise coming from the community centre. It was reasonable for the landlord to involve environmental health as environmental health has different powers from the landlord and could take action against the community centre if there was sufficient evidence to confirm that it was causing a statutory noise nuisance. This was a reasonable response by the landlord to ensure that it kept in contact with the resident, environmental health and the community centre.
  3. The landlord has evidenced that other resolutions and alternatives have been attempted such as noise recording equipment, discussions with the community centre and contact with environmental health.
  4. It is noted that the resident requested to be moved into a different property as a resolution to her complaint. However, the Ombudsman would not order the landlord to move a resident as part of our investigation. This is because we do not have access to information regarding the availability of suitable vacant properties owned by the landlord at any one time and we do not have details of any other prospective tenants waiting to move who may have higher priority that the resident for rehousing. In this case, the landlord has advised that it no longer has an internal housing list meaning that it could not offer the resident an alternative property. The landlord’s properties are allocated through the local authority’s housing list and therefore it was appropriate for the landlord to suggest that the resident contact the local authority for assistance with her transfer request and to offer her support with her application. It is recommended that the landlord should continue to support the resident with her request to transfer from her current property and continue discuss her options with her as has been offered previously.
  5. As part of her complaint, the resident has said that her mental health has been affected by the excessive noise from the community centre. The Ombudsman does not doubt the resident’s comments regarding her mental health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, we have considered the general distress and inconvenience which the situation has caused the resident. The resident may be able to make a personal injury claim against the landlord if she considers that her health has been affected by its actions or inaction. This is a legal process and the resident should seek independent legal advice if she wants to pursue this option. The Ombudsman is unable to give legal advice and therefore we cannot comment on this matter further. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
  6. The resident also requested in her complaint that the community centre activities be conducted within working hours of Monday – Friday between the times of 9am – 5pm. The landlord cannot compel the community centre to conduct its working hours between those times as it has no authority to make those decisions as there is no legal relationship between the landlord and community centre to sanction this kind of limit on activity.
  7. The resident also raised concerns around vandalism and littering in the community as a result of the parties ongoing in the community centre. The landlord cannot take any further action regarding these complaints as the individual perpetrators are not known and as explained the community centre is not a tenant of the landlord so the landlord cannot restrict entrance to the centre. The landlord can only take responsibility over the properties it owns.

The landlord’s handling of the resident’s formal complaint

  1. The landlord responded to the complaint in line with its complaint policy guidelines. The landlord used its complaints policy to inform the resident that it could not deal with certain aspects of the complaint due to the issues already having been investigated and/or resolved by the landlord. The landlord handled the review in the same manner and there was a case discussion around what actions the landlord reasonably could complete. The landlord requested that the resident allow it to install the noise recording equipment as a result of the review process and it is the Ombudsman’s understanding that this has been installed in the property.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports concerning noise nuisance from the community centre.

Reasons

  1. The landlord cannot reasonably relocate the resident to another property as it has closed its internal transfer list. The landlord was also limited in its ability to act against the community centre as the landlord does not own the building the community centre is in. The landlord has acted reasonably in discussing the matter with the appropriate authorities and also in offering support to the resident in her search to be relocated to another property.