Wandle Housing Association Limited (202111722)

REPORT

COMPLAINT 202111722

Wandle Housing Association Limited

13 February 2023

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. The landlord’s response to the resident’s reports of noise nuisance from the property above.
   2. The landlord’s associated complaint handling.

Background

2. The resident is a shared-ownership leaseholder and lives in a flat.
3. On 7 October 2019, the resident contacted the landlord regarding a complaint she said she had recently raised via telephone, which concerned excessive impact and creaking noise at all hours from the property above hers. She said that she had had been in contact with her leasehold officer “on and off for the past year about this matter yet no action has been done”. She said that she had been told previously by the landlord that it was not able to take any action without the resident submitting a “noise report” (it is not fully apparent what the resident had meant by this). She believed that this was the neighbour’s responsibility to provide as she said that the issue was with his floor, but she also suggested that she believed the landlord should take more action to investigate, and advise on the issue.
4. The landlord issued its stage one response on 6 January 2020. It said that acoustic sound transfer surveys were undertaken on sample properties at the time of development, which passed. In addition, it said that it arranged for further surveys to be undertaken on other properties, following similar complaints, which also passed. In the resident’s case, it agreed to have a specialist undertake a survey in the property above (and possibly the resident’s). It said its contractor would make arrangements with the neighbour, and that it would also notify the resident once a date had been agreed. It said it would advise the resident further, once the survey was completed and once it had received the corresponding report.
5. On 24 July 2020, the resident contacted the landlord to re-raise the complaint. It noted that the resident was dissatisfied because the noise issue had not yet been investigated, and that the outcome she desired was for an inspection to be carried out. The landlord issued a further complaint response on 17 August 2020. The landlord acknowledged “that things went wrong and it would have been better if [had} had done these things differently”. To resolve the complaint, it agreed to complete an “acoustic and vibration test” of the resident’s ceiling and neighbour’s flooring by 18 September 2020.
6. Sound testing on both flats was undertaken on 23 September 2020. The corresponding surveyor’s report concluded that “sound insulation testing has been undertaken of the separating floor structures between both flats. The numerical sound insulation test results meet and exceed the minimum requirements of Approved Document E of the Building Regulations.”
7. The landlord agreed to have a consultant investigate the noise issues in February 2021. An acoustic consultancy service inspected the resident’s and neighbour’s property on 16 February 2021. The corresponding report noted that “all of these floors would pass the performance criteria for new build dwellings given in the English Building Regulations”. However, it did raise a concern with some aspect of the methodology used in the previous sound resistance test. It was noteworthy that the surveyor said that it was not qualified to make recommendations in regard to “structural issues or compliance with design and workmanship issues that would influence movement of the separating floor”, suggesting that its expertise solely lay in assessing the sound insulation performance of the floor. It highlighted an issue with creaking and recommended that opening works were carried out and the floor should be inspected for compliance with “technical standards”, and that works should be carried out to eliminate the movement and creaking generated by the flexible floor.
8. Following intervention from this Service, the landlord issued its final response on 21 February 2022. The landlord apologised that it did not sufficiently resolve the resident’s concerns during the first stage of its complaint process, and stated that it did not adequately elaborate the findings of the report when responding to the complaint at stage one of its process. It said that to resolve the resident’s concerns an acoustic and vibration test on the ceiling and floor was undertaken. It said that, following this assessment, the report highlighted the floor meets and exceeds the minimum requirements of Approved Document E of the Building Regulations. On that basis, it said that there were no remedial works to be carried out.
9. The resident was dissatisfied with the landlord’s response as she believed it had not taken enough action to resolve the issue. She was unhappy that the landlord had not followed the recommendations made in the acoustic consultant’s report undertaken in February 2021. Her particular frustration was that this report had raised concerns about the methodology used in the undertaking of the initial sound proofing test. To resolve the complaint, she wanted the landlord to carry out the recommendations at the end of the acoustic report to improve the noise issues she was experiencing.

Assessment and findings

The lease

10. The lease sets out that it is the resident’s responsibility to repair and keep the premises in good substantial condition. The lease defines ‘the premises’ as including the flooring, raised floors and floor screeds down to the joists or other structural parts supporting the flooring of the premises. It states that the premises does not include the load bearing framework and all other structural parts of the building; the roof, foundations, joists, window frames, and external walls of the building; and service media and machinery and plant within (but not exclusively serving) the premises.

Scope of investigation

11. It was noteworthy that the resident’s original complaint correspondence noted that she had been in discussion with the landlord about the noise matter “off and on” for the previous year. However, no evidence has been provided prior to the complaint correspondence she sent the landlord on 7 October 2019. Nonetheless, the resident has not raised any specific concerns about the landlord’s handling of the matter during that period. Her main concern is with the results of the sound surveys undertaken during the formal complaints process. Therefore, this investigation will on the landlord’s handling of the matter from 7 October 2019 onwards, which is the earliest evidence of the resident raising a formal complaint.

The landlord’s response to the resident’s reports of noise nuisance from the property above

12. It is apparent that the resident believes that the noise nuisance results from an issue with her neighbour’s floor, and has not mentioned to this Service that she believes it is due to any unreasonable behaviour exhibited by her neighbour. It therefore appears reasonable that the landlord handled the matter outside of its ASB policy, and instead treated the matter as a repair issue.
13. It is evident that the landlord undertook some appropriate actions when responding to the resident’s reports about noise nuisance. However, the landlord did not always undertake such actions in a timely manner, and it did not always manage the resident’s expectations effectively regarding the findings of its investigations.
14. As highlighted by the landlord in its stage one response in January 2020, it appropriately committed to assessing the level of noise resistance between both properties. The landlord noted that the resident contacted it to chase this action in February 2020, and that it had set the expectation with her before the previous Christmas, that it would undertake the assessment in early January 2020. There is no evidence of the landlord confirming a robust timeframe in which it would undertake this assessment, until March 2020, when it initially proposed an appointment date of 20 March 2020. This was approximately five months after the earliest evidence of the resident raising her initial complaint, which cannot be considered a reasonable timeframe. No evidence has been provided to suggest that there was a reasonable explanation for the landlord’s delay in arranging this, and therefore constitutes an unreasonable delay.
15. The initial appointment did not go ahead as arranged in March 2020, as the landlord advised the resident, in April 2020, that it had put the appointment on hold due to the Covid-19 Pandemic. This was a reasonable explanation as this Service is aware of the knock-on effect lockdowns and Covid-related restrictions had on landlords, who were largely unable to attend to non-urgent repairs in people’s homes for large periods of 2020 and 2021. However, landlords are expected to track any outstanding actions set out in a complaint response, and it was unreasonable that it took the resident re-raising the complaint in July 2020 to prompt the landlord into taking further action, eventually arranging for the survey to be undertaken in September 2020.
16. When deciding on how best to proceed with the repair, it is reasonable for a landlord to rely on the conclusions of its appropriately qualified staff and contractors. In this case, the landlord’s surveyor concluded, in September 2020, that the sound test results met and exceeded the minimum requirements of Approved Document E of the building regulations.
17. Considering the above, it should be noted that the Building Regulations apply to new building work, and approved document E concerns guidelines on pre-completion testing, and so do not apply to existing buildings. It is therefore reasonable to assess that the landlord used this measure of testing as a guideline to satisfy itself if there was adequate airborne and impact sound resistance between both properties.
18. That said, it is not fully apparent from the evidence, what had led to the landlord arranging another assessment of the noise issues to be undertaken on 16 February 2021. In December 2020, the resident expressed that she believed an “acoustic test might not be the right test for this problem”. It is therefore reasonable to assume that, by undertaking a secondary survey, the landlord wanted a second opinion on the matter.
19. Given that the second survey noted that “all of these floors would pass the performance criteria for new build dwellings given in the English Building Regulations”, it was somewhat reasonable that the landlord told the resident, in late March 2021, that it would not carry out any works to the flooring based on the outcome of previous inspections. This is because a landlord does not have an obligation to undertake work that would be considered an improvement to the existing noise resistance, as this would be beyond the terms of the lease agreement. However, the landlord was not initially fully transparent with the resident about the full findings of this assessment, and no evidence has been provided to suggest that it sufficiently responded to the resident’s queries with the report once she had obtained a copy.
20. The resident requested a copy of this report in June 2021, but the landlord was initially obstructive to the resident’s requests, before eventually providing her a copy in August 2021. Prior to providing this, on one occasion, the landlord denied the resident’s request and told her that it could only provide the initial report “proving” that the flooring satisfies building regulation, and implied that the second survey was for its use only. This was an unreasonable response given that the report related to the resident’s property and, if the landlord was satisfied that the initial survey was sufficient, it was unclear why it had agreed to undertake a second survey at all. The landlord’s purposeful delay in providing this would undoubtedly have caused the resident unnecessary additional time and trouble in reaching a resolution, and therefore amounts to a service failure.
21. A particular frustration of the resident, was that the second survey expressed clear concern with the methodology used in the sound test undertaken in her neighbour’s property (although it should be noted that this related specifically to impact noise, in only one of the rooms). In light of this concern, the landlord would be reasonably expected to carry out checks with the initial surveyor, to satisfy itself that the methodology used met best practice or industry standards and to share its conclusion with the resident. There was no evidence of it doing so; nor did it address this concern in its final response, which also constituted a service failure.
22. The second inspection report also highlighted that the resident’s primary issue was specific to creaking noises. It observed that the issue was potentially localised to a specific area within the property, and suggested that this may have resulted from the design or a defect with the neighbour’s floor. It made several recommendations, including that the floor be assessed to ensure it met technical standards. If the landlord had a reasonable explanation for not deciding to act on these recommendations then it should have clearly set these out to the resident and managed her expectations accordingly, but it was not seen in the evidence that it did so. This was unreasonable.
23. The landlord should have committed to diagnosing whether the creaking was inevitable everyday living noise, or excessive in light of a repair issue with the floor. If it had found this to be the latter, the landlord should then have clarified to the resident whether the issue related to a part of the floor that it was responsible for repairing, or whether this was the neighbour or resident’s responsibility under the terms of the lease. Its failure to do so constituted a service failure. To remedy this, an order has been made for the landlord to take further investigative work, in addition to an order for compensation.

Complaint handling

24. The Ombudsman’s Complaint Handling Code sets out that landlords must respond to a stage one complaint within ten working days. Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate. At stage two, it sets out that landlords must respond to the complaint within twenty working days.
25. The landlord unreasonably issued its stage one response three months after the earliest evidence of the resident raising the complaint. It did not acknowledge, apologise for, or explain the delay in its stage one response and was thus a service failure that has not been appropriately remedied.
26. The landlord issued an additional complaint response on 17 August 2020. It is understood that this was an additional stage one response, although good practice would have been for the landlord to clearly confirm the complaint stage in its response. In this response, the landlord stated “we have taken these actions since you reported the problem to us. We got these things wrong and it would have been better if we had done these things differently… I am sorry that we did not meet our service standards in these ways”. This was an unreasonable response as, contrary to the Ombudsman’s Complaint Handling Code, the landlord did not explain the actions it had previously taken and the reasons for it doing so. It did not also explain what it believed had gone wrong and in which ways it failed to meet its service standards. Therefore, this Service has been unable to determine whether the landlord identified its service failures correctly and, as a result of not being transparent about them, it has not shown that it has committed to learning in any specific or meaningful manner.
27. In response to the resident’s dissatisfaction with the above response, the landlord advised the resident on 25 August 2020 that it would have a manager review her case and respond to the her within ten working days. However, it was unreasonable that it took intervention from this Service for the landlord to issue a formal stage two response approximately seventeen months later in January 2022, without a reasonable explanation for doing so. In its final response, the landlord did not acknowledge or apologise for this considerable delay, nor offer an explanation. This was an additional service failure which undoubtedly would have caused the resident considerable time and trouble in pursuing her complaint. The landlord’s complaint handling was consistently poor throughout its handling of the resident’s complaint.
28. The landlord has not sufficiently acknowledged, nor offered any form of redress for the failings identified by this investigation. Therefore, some offer of compensation is due to the resident for the inconvenience, distress, and time and trouble she will have likely experienced as a result of the landlord’s collective failings. The Ombudsman’s remedies guidance recommends that remedies in the range of £100 – £600 may be awarded where the landlord has failed to acknowledge its failings and/or has made no attempt to put things right. An order has been made for an amount of £300 to be paid to the resident. This is £100 for its insufficient response to the resident’s report of noise nuisance, and £200 for its poor complaint handling.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the landlord’s response to the resident’s reports of noise nuisance from the property above.
30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.

Orders

31. Within four weeks of this report the landlord is ordered to:
    1. Write to the resident, copying in this Service, and apologise for the service failures identified by this investigation.
    2. Pay £300 compensation.
    3. Inspect the flooring in the neighbour’s property in relation to the issue of creaking. The landlord should provide a written update to the resident on this matter, copying in this Service.
    4. Write to the resident, copying in this Service, and provide a reasonable explanation, how it satisfied itself that the methodology used in the sound test undertaken in September 2020 was sufficient. If it is not satisfied that this was undertaken correctly, it should arrange for another sound resistance test to be undertaken within the same timeframe.
    5. Write to the resident and this Service to confirm what learning it has taken from this case, and what steps it intends to put in place to ensure that the identified service failures do not happen again.

Recommendations

32. It is recommended that the landlord review its staff’s training needs in relation to their application of its responsive complaints policies and compensation procedure, to seek to prevent a recurrence of its above service failures.