Clarion Housing Association Limited (202216339)

REPORT

COMPLAINT 202216339

Clarion Housing Association Limited

30 January 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

The complaint is about:
1. The landlord’s decision to grant permission for a neighbouring resident to undertake construction work.
2. The landlord’s response to concerns about the impact of the neighbour’s construction work noise and disruption.
3. The landlord’s response to concerns about the damage caused to the resident’s property from the neighbour’s construction work.
4. The landlord’s response to the resident’s concerns about drainage works.
5. The conduct of the landlord’s surveyor.
6. The landlord’s decision not to decant the resident while the construction works are being undertaken.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident lives in a one-bed flat and holds an assured shorthold tenancy, which began on 22 December 2008.
The resident has provided medical evidence to this Service which indicates that he is diagnosed with depression, anxiety, a mood disorder and asthma. The resident had previously provided this evidence to the landlord and therefore it was aware of these conditions at the time of the complaint.
The resident’s complaint centres around improvement works being undertaken by his upstairs neighbour. The resident stated that the works caused him significant distress and caused damage to his property. Additionally, the resident queried whether the works had been properly approved before they began and complained about the conduct of a particular surveyor, who the resident felt was “rude”, “aggressive” and ignored his enquiries.
The resident raised a stage 1 complaint on 5 August 2022 regarding the noise of the works and damage being caused to his property. The resident also queried whether the works had been properly authorised, as they included installation of a new toilet into a drain system which the resident had previously reported was regularly blocking. The resident requested a decant from his property, as he stated that the works were impacting negatively on his mental health.
The landlord issued its stage 1 complaint response on 17 August 2022 in which it confirmed that the works had been duly authorised by the landlord, local authority and water provider. The landlord had arranged a drainage survey and had completed remedial works to address the concerns around the drainage. The landlord noted that damage had been caused to the resident’s property and committed to resolving this once the works were completed. On this basis, the landlord did not uphold the resident’s request for a decant, as it stated this was not within its policy to do so.
The resident escalated his complaint to stage 2 on 20 August 2022 seeking compensation, copies of the permissions given to the neighbour, repairs to the damage caused to his property and to be decanted whilst the works were completed. The landlord issued its stage 2 response on 12 October 2022. The landlord did not uphold the majority of the complaint, however it did award £300 compensation as follows:
1. £50 for an error in the stage 1 response which stated that information regarding the permissions had been provided, when it had not.
2. £200 for the inconvenience of the collapsed drain, which had subsequently been surveyed and repaired.
3. £50 for a delay in issuing the stage 2 response.
Additionally, the landlord noted that repairs to the damage within the resident’s property had been scheduled. In light of this, the landlord again declined to decant the resident.
The resident remained dissatisfied and escalated his complaint to the Ombudsman on 27 October 2022, seeking a decant from his property, compensation, repair of the damage to his property and reconsideration of the decision to allow a toilet to be installed by his neighbour.

Assessment and findings

Scope of investigation

The resident stated in his complaints that there have been reoccurring drainage issues within the property since 2019, which have not been rectified by the landlord. This Service encourages residents to raise matters as formal complaints with their landlord in a timely way, to ensure that both parties can clearly recollect the events and provide appropriate supporting evidence.
Whilst neither this Service or the landlord dispute that this may be the case, the scope of this investigation has been limited to considering matters raised in the 6 months prior to the resident making a formal complaint. Therefore this determination will only consider matters raised since February 2022 onwards.

The granting of permission to undertake the works

The resident’s upstairs neighbour is a leaseholder who wished to undertake substantial redevelopment to his property. This included an extension to the property, replacing the roof, relocating the kitchen and bathroom, and installation of a new toilet, amongst other works.
The evidence shows that the resident’s neighbour applied for, and was granted, various permissions to undertake the construction work including the following:
1. Planning permission from the local authority, which was granted on 18 June 2022.
2. Licence to alter from the landlord, which was granted on 13 May 2022.
3. Party wall notice application, which was served on the landlord on 8 March 2022, and was subsequently agreed.
The neighbour supported these applications with a full schedule of works, a property condition report and architectural plans.
The landlord’s stage 1 complaint response confirmed that these consents were in place and the landlord later provided the resident with copies of some of these permissions. The landlord was entitled to rely on the professional advice of the local authority planning department and its own surveyor in deciding to grant approval for the works.
Given that the works were duly authorised and the resident was informed about this when he raised his concerns, there is no maladministration in the landlord’s handling of the permission for the works.

The impact of the neighbour’s construction works – noise and disruption

The resident complained to the landlord that the noise from the works in the flat above were continuous in daytime hours and caused him distress and exacerbated his mental health conditions. The resident stated that on many occasions he left the property to spend the day in a public place, to avoid the noise and disruption.
This Service is not able to make a judgement on the effects that these works may have had on the resident’s mental health, as this would require examination of specialist medical evidence. This type of assessment can only be fairly undertaken by the courts, who can consider this evidence and make a judgement on the merits of the claim. This Service can consider the potential distress and inconvenience of the situation and whether the landlord considered the resident’s additional health issues when responding to this.
Under Section 79 of the Environmental Protection Act 1990 noise that is “emitted from premises so as to be prejudicial to health or a nuisance” may constitute a “statutory nuisance”. This includes both noise and vibrations.
For noise to constitute a statutory nuisance it must usually be excessive and above what would reasonably be expected from construction works, or take place during anti-social hours. In these cases, the resident could apply to the local authority, who have powers under the Control of Pollution Act 1974 to issue abatement notices which further restrict the volume, hours of work or other steps which need to be taken to reduce the noise.
There has been no suggestion in the evidence that the works being undertaken took place in anti-social hours, or outside of the hours dictated by the local authority in its planning application approval document. However, it is not clear whether the volume or vibration generated was excessive as there is no evidence that this was ever assessed by the landlord.
The landlord’s complaint responses acknowledged the disturbance caused by the building works and it did attempt to facilitate mediation between both residents, however this was not successful. There is no evidence to suggest that the landlord monitored the noise levels or provided advice to the resident regarding his rights to refer the matter to the local authority for an environmental health assessment.
This Service acknowledges that construction works will always cause some level of disruption, however given the resident’s health conditions, the length of time the works were taking place and the proximity, it was unreasonable for the landlord not to undertake an assessment.
Overall, the Ombudsman considers that the landlord should have undertaken further investigation and an assessment of the noise, other nuisance factors, and the impact this was having on the resident to determine if a statutory nuisance was occurring, or likely to occur. The landlord could also have provided additional advice or referred the matter to the local authority. The landlord’s failure to take any of these actions is maladministration.

The impact of the neighbour’s construction works – damage to property

The landlord’s permissions policy states that “any damage to other parts of the property during or as a result of the work will be made good at the residents’ expense.” Additionally, the landlord’s repair obligations under the tenancy agreement, section 11 of the Landlord and Tenant Act 1985 and its own repairs policy were still in effect.
During the course of the neighbour’s construction works, the resident reported two significant elements of damage to his property, which included a leak in his kitchen, which affected the light and cooker and damage to his living room ceiling.
The evidence shows that the leak in the resident’s kitchen occurred on 11 June 2022 and was caused by a contractor in the neighbour’s property accidentally screwing into a water pipe. In response to this, the resident closed the building’s stop cock to stop the leak. When contractors arrived on site, following the weekend, on 13 June 2022 they unknowingly reopened the stop cock and the leak recommenced.
The landlord’s repair records show that the resident also reported the leak on 13 June 2022. There is no evidence that the resident reported this leak when it first occurred on 11 June 2022. A repair to stop the leak was undertaken on the same day as it was reported by the resident. The landlord delivered a dehumidifier the following day to assist with drying out the property.
In the course of these leaks, the resident stated that the electrics in his kitchen light and cooker were damaged, leaving him without the light for around 10 days and use of the cooker for around 14 days. The landlord’s repair records dispute this, as it shows that the electrics were assessed by a contractor on the day of the leak and were not damaged. Additionally, the contractors completed repairs to the resident’s kitchen around one week later, which included redecoration of the kitchen as a gesture of goodwill.
Overall, the leak was stopped on the same day it was reported by the resident and the damage from the leaks was rectified within between 7-14 days. This included redecoration of the kitchen and the provision of a dehumidifier in the interim. Taking this together, whilst any leak is distressing and inconvenient, the Ombudsman considers that this was a reasonable and timely response by the landlord, to remedy the situation effectively.
The second element of damage that the resident complaint about related to parts of his living room ceiling falling away as the works took place. The resident reported this to the landlord on 29 June 2022.
The landlord committed in both of its complaint responses to undertake these repairs once the neighbour’s construction works had finished, to prevent a reoccurrence. The stage 2 response stated that these works had been scheduled to be completed no later than 13 November 2022. In actuality, the neighbour’s construction works were not completed until around August 2023.
The landlord’s repair records do not clearly indicate whether that these works were completed, however the resident told this Service that they were completed around October 2022. In part, this can be attributed to extended timescale of the neighbour’s construction works.
Overall, it was reasonable for the landlord to consolidate the repairs to ensure an effective and lasting repair, once the neighbour’s construction works were completed and this was communicated clearly to the resident at the point of his complaint.
The landlord’s repair records do not clearly outline the scope or progress of the repairs to the resident’s property. Complete and accurate records are critical to ensuring that works can be tracked effectively and that work can be scrutinised internally and by this Service, as appropriate. Overall, given the record keeping failures, the Ombudsman considers that this is a service failure.

Drainage issues

The landlord’s repairs policy states that emergency repairs, which are defined as “one that presents an immediate danger to the resident, the public or the property, or would jeopardise the health, safety or security of the resident” should be attended within 24 hours. All other repairs should be attended to within 28 calendar days.
The resident raised two concerns about drainage issues within the neighbour’s works. Firstly, the resident stated that the existing drainage had regularly become blocked and caused flooding since 2019 and he was concerned that a new toilet would exacerbate this further. Secondly, the resident was concerned with the location of the waste pipe, which was positioned against the outside wall of his bedroom and entered the sewer via a manhole cover within the confines of his private garden.
The landlord’s repair logs show that the resident’ reported a blockage in the drain on 14 July 2022. In response to this, the landlord:
1. Arranged for Thames Water to attend on 25 July 2022 to assess the drain. Thames Water advised that the drain appeared to have collapsed, but was within the boundary of the property and was therefore a landlord responsibility.
2. Commissioned a CCTV report of the drain. The landlord received the report from this on 5 August 2022, which recommended excavating the pipe and replacing the collapsed section.
3. Replaced the collapsed section of pipe on 24 October 2022.
Following the replacement of the pipework in October 2022, no further reports of blockages or flooding have been noted from the evidence.
The landlord’s initial response to the reported blockage was prompt and quickly identified both the issue and where the responsibility for repair laid. There were substantial delays of over 80 calendar days between the CCTV survey and the pipe being replaced. There is little evidence of the landlord pursuing this and no explanation was provided to the resident that accounts for this delay. The Ombudsman considers that this was maladministration as the time taken to make a lasting and effective repair was more than 52 calendar days in excess of the landlord’s policy timescale and this was not adequately communicated with the resident.
Secondly, the resident raised a complaint regarding the siting of the new waste pipe from the neighbour’s bathroom. The proposal was for the pipe to run down the outside wall of the resident’s bedroom and enter a manhole in his private back garden.
The landlord stated in its stage 2 complaint response that the manhole in the resident’s cover had been assessed as suitable for the new waste pipe during a survey by the Building Control Officer on 12 July 2022. The survey had shown that the manhole was connected to the main drain and was therefore suitable for this purpose. Additionally, the siting of this pipework had been approved via the landlord’s own permissions process and through the local authority’s planning department.
The resident also queried in his stage 2 complaint escalation on 20 August 2022 whether a coloured water test had been completed as part of the assessment of the drainage. The landlord confirmed that this had taken place in its stage 2 complaint response and the evidence provided to this Service also shows correspondence from the contractor confirming that this took place on 12 July 2022.
Overall, a landlord is responsible for the structure and exterior of its properties (including external pipework) under section 11 of the Landlord and Tenant Act 1985. As there is evidence of the new pipe meeting the requirements of the landlord, local authority planning department and the Building Control Officer it is reasonable to conclude that it was appropriately sited for the task. Whilst the Ombudsman can appreciate that the location of the pipe may not have been desirable for the resident, as the landlord retains ownership of the property, it was permitted to site the pipe in this way, having taken the advice and constraints of the planning department and Building Control Officer into account. For these reasons, there has been no maladministration in the landlord’s handling of the siting of the new soil pipe.

Conduct of a surveyor

The resident has advised this Service that the landlord’s surveyor was “rude”, “aggressive” and did not respond fully to his queries about the legality and approval of the works. The resident referenced encounters with the surveyor face to face at his property, which is when these alleged behaviours are said to have taken place.
The landlord’s stage 2 response apologised for the perception he had about the conduct of the landlord’s surveyor. The landlord did note that the surveyor had provided more information about the permissions for the works than would normally be the case, but acknowledged that further reassurance may have been useful.
Overall, given that the interactions took place in person, there is insufficient evidence for this Service to make a fair judgement on the alleged behaviour of the surveyor. Specifically in regard to the provision of information, it does appear that the surveyor provided documentary evidence of the permissions which had been granted, in a timely manner. Taking these elements together, the Ombudsman considers that there has been no maladministration in the conduct of the landlord’s surveyor.

Request for a decant from the property

The landlord’s decant policy states that it will consider decanting when it is “required to move from their permanent home into alternative accommodation. The reasons for the move will generally be because of major repair works (sometimes due to unexpected damage) or the improvement, disposal or redevelopment of their home.”
In its complaint responses, the landlord declined the resident’s repeated requests for a decant on the grounds that it was not within their policy to do so, as the works were not taking place within his property. This was not entirely accurate, as the landlord’s policy states that a decant will “generally” be considered for works within their home, but does not make this an absolute requirement. Similarly, the policy goes on to say that decants will be considered “when the property is unsafe, uninhabitable, or the scope of the works makes it impractical for the resident to remain in their home.”
Given this wording within the policy, it was unreasonable of the landlord to deny the request, without any form of further assessment, on this basis.
Furthermore, as outlined above, there has been no evidence presented to show that the landlord undertook any form of assessment of the noise (including vibration) generated from the works in the neighbour’s property. Particularly given the resident’s declared health conditions, this should have been completed as it might have indicated that the property was unsafe or uninhabitable for his particular resident. This would have made him eligible for a decant under the landlord’s policy.
Given the incorrect application of the landlord’s policy, the lack of consideration of the resident’s vulnerabilities and the lack of any form of assessment or survey to assess any potential detriment, this amounts to maladministration in the landlord’s handling of the resident’s request for a decant.

Complaint handling

The landlord operates a two-stage interim complaints policy in which it commits to acknowledge complaints within 10 working days and provide a response within 20 and 40 working days at stage 1 and stage 2 respectively.
The Ombudsman notes that these timescales are not compliant with the Complaint Handling Code (‘the Code’) and that the landlord’s ‘interim’ complaints policy has now been in place since July 2022, a period of almost two years. The landlord has committed, in a response regarding complaint 202200596 to return to a Code-compliant complaints policy from April 2024.
The Code in force at the time of this complaint required landlords to issue a stage 1 response within 10 working days and a stage 2 response within 20 working days. In this case, the landlord’s responses were issued after 12 and 36 working days respectively and were therefore both over the Code timescales.
The landlord has acknowledged this delay in its complaint responses, apologised and offered £50 compensation in its stage 2 response. It is not clear whether this compensation has been paid, as the landlord stated that a cyber attack had prevented it from making payments. This is a service failure as the landlord’s records are not clear if or when this has been paid subsequently, nor does it appear that alternative means of paying this compensation were considered. If the compensation previously offered has not yet been paid, the landlord must make arrangements to pay this without delay.
Additionally, the landlord attributed some of the delay in issuing its complaint responses to the cyber security incident which affected its computer systems. This was clearly communicated to the resident in both complaint responses and this was reasonable given the circumstances.
Overall, there was some delays in issuing complaint responses and it is not possible to determine from the landlord’s records whether the compensation awarded was paid. Taken together, the Ombudsman considers this a service failure, which the landlord’s existing remedy is not sufficient to address.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been:
1. No maladministration in the landlord’s decision to grant permission for a neighbouring resident to undertake construction work.
2. Maladministration in the landlord’s response to concerns about the impact of the neighbour’s construction work noise and disruption.
3. Maladministration in the landlord’s response to concerns about the damage caused to the resident’s property from the neighbour’s construction work.
4. Maladministration in the landlord’s response to the resident’s concerns about drainage works.
5. No maladministration in the conduct of the landlord’s surveyor.
6. Maladministration in the landlord’s decision not to decant the resident while the construction works are being undertaken
7. Service failure in the landlord’s complaint handling.

Orders and recommendations

Orders

Within 28 days of the date of this determination, the landlord must:
1. Arrange for a senior officer to apologise to the resident in person at his property.
2. Pay the resident £1400 compensation, as follows:
  1. £450 for the failures in adequately assessing the potential nuisance, distress and inconvenience of a vulnerable resident, and any potential mitigation that could have been put in place to avoid this.
  2. £450 for the distress and inconvenience caused by the landlord’s failure to assess his eligibility for a decant, in line with its policy.
  3. £400 for the time and trouble caused to the resident by delays the landlord’s handling of drainage repairs.
  4. £100 for the landlord’s poor complaint handling.
3. Pay the resident directly the compensation previously offered in its complaint responses, if it has not already done so.
4. Undertake a case review of this complaint. This must include any lessons that can be learnt from the complaint and this determination, along with an action plan to prevent a reoccurrence in similar cases. This report must be shared with the resident and this Service.
5. Review its staff training related to noise complaints associated with approved major works to ensure that staff can identify potential cases of statutory nuisance and provide timely and accurate advice to residents about this.
6. Review its decant policy and any associated training to ensure that staff are able to identify when it might be applicable to cases where repairs are not taking place within resident’s property directly.
7. Review its process for assessing the entitlement, or not, to a decant to ensure that this is handled consistently and communicated effectively to residents.
The landlord must provide the resident and this Service with evidence of compliance with these orders within the timescales above.

Recommendations

The landlord should ensure that it returns to a Code-compliant complaints policy no later than April 2024, as it has previously committed to do.