Saffron Housing Trust Limited (202008332)

REPORT

COMPLAINT 202008332

Saffron Housing Trust Limited

2 June 2021

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 resident complains:
1. That she and her late husband were not informed and consulted before a development project commenced.
2. About the landlord’s response to reports of noise disturbance and vibration from construction work at an adjacent development site, and the level of support provided.
3. That allocated parking was not provided at the time the property was allocated in 2014.
A representative for the resident acted on her behalf when dealing with the landlord. The resident’s husband suffered from a degenerative, terminal condition and sadly passed away in May 2021.

Jurisdiction

The resident’s complaint that allocated parking was not provided at the time the property was allocated in 2014

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.
Paragraph 39(e) of the Scheme states that “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
The representative raised a formal complaint dated 24 November 2020 stating that when the resident and her husband signed the tenancy agreement in 2013, it was based on the proximity of allocated parking. The representative expressed dissatisfaction that as the resident’s husband’s mobility diminished over the years, the only concession made by the landlord was that the adjacent parking space was converted to a disabled parking space, which any disabled driver could use. The representative referred to an Occupational Therapist’s (‘OT’) report dated 13 June 2013 which recommended that “A parking space with dropped kerb (if required) must be available close to the property”. The representative has contended that it was agreed by the OT and the landlord’s Adaptations Officer that a parking space was to be available for sole use by the resident’s husband.
On 29 January 2021 the landlord issued its stage 2 complaint response. It noted that when the resident’s property was let, the residents understood that there was an allocated parking space, and it apologised if this was not made clear at the time of bidding. The landlord noted that it did not have any records of being informed that the resident’s late husband needed a dedicated parking space until January 2014, after which it designated the space outside the resident’s property for disabled use only. It concluded that it had listened and responded to the concerns at the time and made reasonable efforts to provide a solution.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historic it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
In this case, the resident’s formal complaint about the allocation of the property was made several years after the property was allocated and the tenancy signed. After carefully considering the circumstances of this complaint, and in accordance with Paragraph 39(e) of the Housing Ombudsman Scheme, this complaint is not now within the Ombudsman’s jurisdiction to investigate. However, the details of this complaint have been provided as background to the remaining complaints which have been investigated.

Background and summary of events

In January 2020 the landlord began construction of new build properties at a site adjacent to the resident’s road, which became a site access road. There is no evidence that the landlord notified the resident of the works prior to the works commencing.
Between 21 and 24 January 2020 the representative reported mud left on the road by vehicles to the construction site, requested that the site manager minimise disruption and requested to be informed of potential problems. On 25 January 2020, the principal contractor carrying out the construction wrote to some residents living on the resident’s road asking them to move their cars to accommodate articulated lorry deliveries on 28 February 2020. After the representative raised concerns about the resident’s road being used for site traffic and not being informed prior, the landlord wrote on 29 January 2020 providing details of the new development and stating that the parking area would be temporarily lost but replacement parking was to be provided as part of the new development.
The resident’s husband had been admitted to a hospice on 22 January 2020 for palliative care and pain management. On 24 February 2020 the representative wrote to the landlord summarising problems experienced from the development and advising that the resident’s husband was terminally ill. He expressed concerns about whether the resident’s road could accommodate articulated lorries, as planned for 28 February 2020, as well as restrictions to medical professionals and other visitors on that day.
On 25 February 2020, the representative met with the landlord to re–emphasise the vulnerability of the resident and her husband, who would be returning the following day, and the distress caused by site traffic going past their property. On 26 and 28 February 2020 the landlord, having consulted with the principal contractor, advised that there would be a new site entrance which was intended to stop site deliveries entering the resident’s road and that signs would be installed to highlight the new site access. It is understood that with the new site access, a pedestrian footpath was used for vehicular access and was closed off when the contractors were offsite. However, there still was an alternative pedestrian access into that part of the estate.
With regards to the new site access, a Construction Site Safety Inspection on 4 March 2020 confirmed that “the new entrance is not public use and will be fenced out of hours. The turning head is either to be fenced when deliveries are made or, additional banksmen used to ensure members of the public do not encroach into the danger area. The turning head is always to remain available for use by residents at all times, excepting when deliveries are being made”. Also on 4 March 2020, the landlord instructed the principal contractor to install associated signs.
The representative has stated that the Covid-19 pandemic reduced construction activity during March, April and into May 2020 although there continued to be traffic noise disturbance to the resident and her husband. Within this period the resident’s husband’s health deteriorated, and he passed away on 25 May 2020.
It is understood that temporary, hand–made signs had been put up pending the arrival of professionally made–up signs although the landlord’s internal correspondence indicates that there was a delay in the order due to confusion between the principal contractor and the landlord. From 13 May 2020, there was correspondence between the parties within which the representative raised concerns about the position and clarity of signage, which in his view did not prevent drivers from reversing and turning into the resident’s road. He provided information where signs could be ordered. The landlord also declined a request to reinstate the pedestrian footpath when the site was not in use to allow social distancing. The landlord explained that the footpath could be damaged by heavy vehicles and be hazardous to pedestrians, and that there was still a safe footpath and road into that part of the estate which allowed plenty of space for any pedestrians to safely pass. The representative noted instances of damage to the footpath, oil spillages and trip hazards. The representative also reported distressing noise from reversing bleepers and noted that the local authority recommended the use of white noise bleepers.
The landlord’s internal correspondence indicates that it agreed with the principal contractor that the signs that had been erected were poor and that it ordered a professional site entrance sign on or around 14 May 2020. The landlord also carried out inspections and asked for repositioning of signs, including a request to relocate a “Site entrance” sign and a “No entrance to construction traffic” sign on 3 June 2020. The landlord with its Employer’s Agent, engineering consultants, also explored whether to keep the footpath open in the evening. The landlord was advised that this was not feasible as all trip hazards would need to be identified and the site access point re–levelled regularly as well as there being insurance difficulties. The landlord’s internal correspondence further confirms there “were some metal railings which had to be cut to ground level to allow site deliveries to drive over, so it is no longer a suitable or safe access for the public/pedestrians”.
In response to issues raised, the landlord on 24 June 2020 wrote to the representative having consulted further with its Employer’s Agent. The landlord accepted that despite the signage installed by the principal contractor, some delivery drivers were not using the new site access but accessing and turning on the resident’s road. Therefore, a new 6ft by 4ft sign stating “No construction traffic beyond this point” would be installed within 10-14 days and phone calls made to the suppliers to advise delivery drivers of the arrangement. The landlord also confirmed that the site manager was in charge of the construction site and reiterated that it could not overturn his decision that it was not feasible to open up the temporary access for pedestrians at night due to uneven ground conditions. On 2 July 2020, the representative reiterated his view that signage was inadequate and not compliant with regulations / industry standards, and that neither the landlord nor the main contractor had carried out an assessment to identify the most suitable routes for traffic and maintaining pedestrian access. He also contended that the site was not being managed effectively.
On 6 July 2020 the representative reported again a continuous bleeping noise to the landlord and the local authority causing distress to the resident, and the landlord’s internal correspondence indicates that the site manager thought the noise came from lorries reversing.
On 10 July 2020 there was a site visit attended by the representative, the landlord, its Health and Safety advisor, the local authority’s Environmental Health Team and the principal contractor. The landlord and contractor agreed to obtain and affix improved signage to the temporary site entrance and to give warning of activity on site which may cause noise nuisance. The local authority agreed to send the resident a “noise app” to record noise and to inform the landlord of any noise complaints; however, the representative declined the offer and requested sound recording equipment which was not facilitated.
The representative confirmed on 21 July 2020 that the resident wanted to raise a formal complaint about the distress the development site access arrangements had caused to her late husband and the distress still being caused to her. On 31 July 2020, the landlord responded to the complaint at Stage 1. With regards to a complaint about its failure to plan and run the site access, it noted that the principal contractor had followed regulations and procedures when originally setting up site, but once it became apparent that this was causing difficulties to residents, “temporary access” was put in place. The landlord noted that signs had been put up and the construction company had sought to ensure that delivery drivers were made aware of site access arrangements, but noted that the resident had reported instances of delivery drivers missing the entrance.
The landlord reiterated its previous advice that it would not be feasible or practicable to maintain a pedestrian access via the temporary site access outside of site hours / open up the temporary access at night. The landlord also advised the use of reversing bleepers on the plant site was necessary due to the activities performed during construction work, and the local authority had confirmed that the use of bleepers was not excessive or at a level causing noise nuisance. The landlord also noted that the local authority had not assessed that it was necessary to use white noise reversing alarms. The landlord further noted there was a neighbouring private development from which the noise of reversing bleepers could be heard and stated it could review the matter when the “noise app” provided further data.
The landlord stated that the principal contractor had agreed to provide prior warning of activities that may cause distress, it had agreed to install further offsite signage and review the effectiveness, and that it would set up a regular contact call with the Project Manager. The landlord also confirmed that, generally, it would engage with residents much earlier on future schemes so that the impact of the development could be assessed and mitigated.
The representative escalated the complaint on 6 August 2020, stating that: the resident and her late husband were not informed and consulted when the development was being planned; site access disturbances affecting the resident’s late husband should have been identified at the planning stage; the contractor had not considered traffic access or signage issues before starting work and that more and better signage from the start would have improved the situation; the local authority had not measured noise over time and the landlord should weigh up the cost and benefit of installing white noise reversing bleepers; the landlord had failed to ensure the principle contractor managed the works traffic and heavy plant and the continued presence of trip hazards. The representative also questioned whether the landlord and its contractor had followed various policies, procedures, guidance and industry regulations. He further provided photographs of signs to support the complaint. In acknowledging the escalated complaint the landlord advised that the representative could speak to a senior member of staff responsible for investigating the complaint.
On 18 August 2020, the landlord sent the Stage 2 response to the complaint, a senior member of staff having spoken to the representative on 13 August 2020. It upheld the Stage 1 response in relation to the actions that had taken place and the proposals going forward. However, it acknowledged that lines of communication and engagement should have been stronger prior to the development taking place and apologised for this. The landlord also accepted that offsite signage needed to be improved which included the installation of a speed advisory sign. To rebuild the resident’s lack of trust with the landlord it nominated a named contact.

After the Complaints Procedure

On 25 August 2020, the representative sent a further letter stating that the landlord had not referred to the policies and regulations mentioned in his escalation of 6 August 2020.
The landlord has provided this Service with evidence of further actions taken after the complaints procedure in respect of the construction works, including inspecting the signage of 8 September 2020. On 14 September 2019 the landlord advised the representative that noisy, external disruptive work involving diggers and dumper trucks would commence shortly for 3-4 weeks. The landlord’s correspondence also confirms that on 29 September 2020 it explored the possibility of installing white noise bleepers onto vehicles, but it decided not to, taking into account costs, the remaining activities and length of time before completion of the construction works.

Assessment and findings

The complaint about the landlord’s response to concerns that the resident and her late husband were not informed and consulted before the development plan commenced

With regards to “involvement in major works and redevelopment programmes”, it is stated within the landlord’s Tenant’s Handbook that “We will ensure that we consult with all customers affected by major works and new projects. You will also be given the opportunity to give your views on planned work and we will take these into account.”
It is stated within the Health and Safety Executive’s (HSE’s) “Construction (Design and Management) Regulations 2015” that “the principal contractor must draw up a construction phase plan or make arrangements for a construction phase plan to be drawn up”. The regulations also state that “planning (by the principal contractor) must take into account the risks to all those affected – workers, members of the public and the client’s employees” and “in planning the work, the contractor must take into account the risks to those who may be affected, e.g. members of the public and those carrying out the construction work”.
The construction work carried out by the landlord was a new development project in the vicinity of the resident’s property. Moreover, the resident’s road was to provide access to the site. As such, in accordance with the Tenant’s Handbook, the landlord had a responsibility to consult with the resident and her neighbours as they would be affected by the works to some extent. This is separate and over and above any consultation carried out by the Planning Authority which is concerned with making a decision on a planning application.
It is not within the Ombudsman’s role or remit to determine whether the Health and Safety Executive’s (HSE’s) regulations have been breached by the landlord in respect of its duties as a client for whom construction works are for, nor can the Ombudsman assess the construction plan. However, the regulations make clear that there should be consultation with “members of the public” affected by works – if not by the landlord, then by its contractors. This reinforces the landlord’s responsibility to have consulted with residents about the construction works, and given the possible impact, to have provided reasonable notice of the works. However, there is no evidence that the landlord informed the resident or her late husband about the works in a meaningful or timely way, prior to the works commencing in January 2020.
As confirmed by the Tenant’s Handbook, it would have been appropriate for the landlord to have allowed the residents to provide their views. As such, it was a failing on the part of the landlord that the residents were not given this opportunity, even though the landlord ultimately still had the right to make the decisions on the new construction works. Furthermore, the initial contact with residents focussed on parking issues and it was only after the representative contacted the landlord that it provided wider details of the construction works. This indicates a lack of proactivity in providing information and consulting with the residents.
The landlord’s policy on “Services for older people and/or those with disabilities” states that the landlord should “provide the service in a sympathetic and caring manner tailored to meet individual needs” and that the “identification of any special needs or vulnerability of tenants will be undertaken, and with their agreement, details will be recorded on file so that relevant staff can be made aware of these as appropriate for the delivery of service”.
The landlord was aware that the resident’s husband was extremely vulnerable, and the policy confirms that it had a responsibility to consider his particular needs prior to the works commencing. This would be over and above the general responsibility to provide information and consult. The fact that it did not do so compounds its failings and indicates that there may have been a lack of effective communication between the landlord’s housing management and development departments.
Whilst the landlord failed to provide information and consult with the resident and her husband about the development works, it should be noted that construction works are complex projects. The needs of individual residents would need to be balanced against other factors such as the landlord’s and the contractor’s business needs, the physical location of the site and the access to it, the extent and duration of the works and the views and decisions of other parties. As such, it cannot be stated with any certainty that there would have been a different outcome had the landlord provided information or consulted.
With regards to the landlord’s responses, responding to a complaint is an opportunity for a landlord to demonstrate that it has heard and understood a resident’s dissatisfaction. Landlords through the complaint process can also demonstrate a willingness to learn from the issues raised and/or any identified service failure, in line with this Service’s dispute resolution principle of “learning from outcomes”. This Service acknowledges that the landlord in responding to the complaint accepted that it should have communicated and engaged with residents prior to the development and that it committed to do so in future. However, the landlord did not provide redress for the distress and inconvenience that had been caused to the resident and her late husband from the lack of consultation and information provided before the development works. Given the circumstances of the case, it would have been appropriate for the landlord to have considered redress to put right its failings.

The landlord’s response to reports of noise disturbance and vibration from construction work at an adjacent development site, and the level of support provided

The resident via the representative raised concerns about disturbance at an early stage, in particular from traffic to the site. Having been notified of the resident’s concerns the landlord liaised with its contractor and changed the site entrance, which was a pragmatic and flexible response that mitigated the disturbance complained of. The response was also consistent with HSE guidance stating that a client “must ensure that the principal contractor (or contractor) regularly reviews and revises the plan to ensure it takes account of any changes that occur as construction progresses and continues to be fit for purpose”.
The change in site access required the installation of new signs so that vehicles going to the site and other parties were aware of the change. It was therefore appropriate that the landlord and its contractor agreed to put up signs, temporary signs initially before professionally made signs were delivered. The representative questioned the effectiveness of the signs that were installed. The landlord took reasonable steps to address these concerns by carrying out inspections, liaising with the contractor, reviewing the effectiveness of the signs and at different times identifying the relocation of signs and ordering new signs. The landlord took further steps to minimise possible disturbance by asking the contractor to make delivery drivers aware of site access arrangements, although it should be noted that ultimately the actions of delivery drivers were outside the control of the landlord.
The representative was detailed in raising his concerns about the procurement and effectiveness of signs, advising where signs could be sourced, providing photographs and querying whether regulations were met. By not directly and explicitly addressing these points the landlord missed an opportunity to demonstrate that it had fully heard him and allay his concerns that its actions were not reasonable.
The representative also requested that the landlord ensure that pedestrians could use the footpath via the new site access outside the hours of work at the site. The landlord gave fair consideration to the representative’s request by seeking further advice from its contractor and Employer’s Agent. It then explained to the representative that his request was not feasible due to the risk to pedestrians, the extra work and potential liability for the contractor and the fact that there was alternative pedestrian access. By investigating and providing this explanation the landlord took reasonable steps to resolve this aspect of the complaint.
The resident also complained about the noise of bleepers, from vehicles reversing. He referred to a guidance document issued jointly by two District Councils entitled “Advice to builders and construction workers on how to avoid and minimise disturbance to residential properties in the vicinity of a building site” which recommends “Use white noise reversing alarms rather than beepers on large vehicles to minimise noise”. The guidance is advisory and there was no obligation on the landlord to ensure that site vehicles had white noise reversing alarms; this would be a decision at the landlord’s discretion.
Environmental Health did not confirm that there was excessive noise from bleepers. It was therefore reasonable that the landlord agreed with Environmental Health that it would consider recordings on a Noise App as this would provide objective evidence of the level and frequency of the noise, which in turn would inform a decision as to whether it would be reasonable and proportionate response to meet the resident’s request for the installation of white noise bleepers. It is acknowledged that the resident was unable to use to Noise App, but ultimately there was no evidence provided to the landlord indicating that its decision not to insist on white noise reversing alarms was unreasonable.

Complaints Handling

The landlord has a two stage complaints procedure which states that complaints at Stage 1 should be responded to within 10 working days. After registering a formal complaint on 21 July 2020, the landlord sent the Stage 1 response with this timeframe.
The complaints procedure states that “should the complainant remain unhappy with our decision, they are able to ask for their case to be reviewed by two Senior Managers” and that “The complainant will have the opportunity to speak with the allocated Managers either on the telephone or in a meeting”. The complaints procedure further states that “the Managers will consider all actions and correspondence relating to the complaint and will aim to make a full written response within 10 working days”.
The landlord met the timeframe within the complaints procedure for sending the Stage 2 response. The representative also spoke to one of the staff members dealing with the Stage 2 complaint, therefore he had fair opportunity to confirm the details of the complaint. However, as the complaints procedure indicates that a complainant can speak to two senior members of staff, it is recommended that the landlord reviews the wording within its complaints procedure to best manage the expectations of complainants.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaint about the landlord’s response to concerns that the resident and her late husband were not informed and consulted before a development plan commenced.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the complaint about the landlord’s handling of the reports of noise disturbance and vibration from construction work at an adjacent development site that affected the resident and her late husband, including the level of support.

Reasons

In accordance with the Tenant’s Handbook, the landlord had a responsibility to consult with the resident and her neighbours as they would be affected by the works to some extent. This responsibility is reinforced by HSE regulations which make clear that there should be consultation with “members of the public” affected by works, if not by the landlord, then by its contractors. However, there is no evidence that the landlord informed or consulted with the resident or her late husband about the works in a meaningful or timely way, prior to the works commencing in January 2020. This failing is compounded by the landlord failing to take into account the needs of the resident’s husband, who was extremely vulnerable, prior to the works commencing as required by its policy on “Services for older people and/or those with disabilities”.
Having been notified of the resident’s initial concerns about disturbance, the landlord liaised with its contractor and changed the site entrance, which was a pragmatic and flexible response that mitigated the disturbance complained of. It was appropriate that the landlord and its contractor agreed to put up signs about the new site entrance and it took reasonable steps to address the representative’s concerns about the effectiveness of the signs by carrying out inspections, liaising with the contractor, reviewing the effectiveness of the signs and at different times identifying the relocation of signs and ordering new signs. The landlord took further steps to minimise possible disturbance by asking the contractor to make delivery drivers aware of site access arrangements.
The landlord gave fair consideration to the representative’s request that pedestrians could use the footpath via the new site access outside the hours of work at the site and explained why it did not agree to the request. With regards to the representative’s complaints about noise from bleepers, there was no obligation on the landlord to ensure that site vehicles had white noise reversing alarms instead. It was reasonable that the landlord agreed with Environmental Health that it would consider recordings on a Noise App as this would provide objective evidence of the level and frequency of the noise, which in turn would inform a decision whether it would be reasonable and proportionate response to meet the resident’s request for the installation of white noise bleepers. Ultimately, there is no evidence that the landlord’s decision not to insist on white noise reversing alarms was unreasonable.

Orders

The landlord pays the resident £300 compensation in respect of the distress and inconvenience that had been caused to her and her late husband from the lack of consultation and information provided before the development works.
The landlord apologises for the distress and inconvenience that had been caused to the resident and her late husband from the lack of consultation and information provided before the development works.
The landlord carries out a lessons learnt exercise taking into account the findings of this investigation. This should include:
1. consideration of drafting a policy and procedure on informing and consulting with residents about development projects to be completed.
2. consideration of how relevant information can be shared between the housing management and development departments, as necessary.
3. consideration of how vulnerable tenants can be identified, and their needs taken into account when there are development works that may affect them.

Recommendation

The landlord reviews the wording of its complaints procedure, with particular attention to the Stage 2 process, so as to best manage the expectations of complainants.