Clarion Housing Association Limited (202219451)

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REPORT

COMPLAINT 202219451

Clarion Housing Association Limited

6 June 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 Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about:
    1. The landlord’s handling of the resident’s reports of noise transference from the property above.
    2. The landlord’s complaint handling.

Background

  1. The resident is a tenant of the landlord of a first-floor flat in a block with another flat above his.
  2. In January 2021, the resident contacted the landlord about noise transference from the flat above his property. Although it did not log a formal complaint from him about its handling of this at that time, despite its records not showing that it had taken any action for this.
  3. Subsequently throughout 22 February to 31 March 2022, the resident again reported noise transference from his upstairs neighbour’s flat to the landlord. He believed that this was being caused by the neighbour’s installation of laminated flooring in breach of their tenancy agreement. The resident requested that the landlord keep him updated on the investigation that it had raised into the reported breach on 1 March 2022, but it advised him that such updates would take time because of its data protection obligations regarding his neighbour. During this time, he provided it with a recording of the sound that it reviewed on 28 March 2022, and it attempted to visit the neighbour on 21 March 2022, but it could not access their property, although it reassured him that it was working on resolving the noise.
  4. The resident subsequently advised the landlord on 31 March 2022 that, since the noise transference was still present and meant that he could not sleep at his property, he had arranged to temporarily stay elsewhere, as this was seriously impacting his life. He continued to pursue it throughout April 2022 for an update, informed it that he was dissatisfied with its handling of this on 5 April 2022, and he was finally advised by it that it would attend to investigate this further on 29 April 2022. The landlord attended the neighbour’s property on that date and heard the noise transference. It subsequently advised the resident that the noise was being caused by his neighbour’s floorboards and therefore this was its responsibility to resolve.
  5. The resident made a stage one complaint to the landlord on 25 May 2022 because he believed that it had not resolved the noise transference within a reasonable amount of time, and he wanted a resolution. He advised it that the noise was affecting his mental health and private life, and that it had not attended his property to witness the noise. The resident also advised that the noise transference had affected his sleep, mood and work life, and had led to his unemployment.
  6. On 16 June 2022, the landlord’s surveyor visited the resident’s upstairs neighbour, and subsequently the surveyor raised a job to resolve the noise transference by lifting up and overhauling their flooring. On 14 July 2022, however, it advised the resident of a cyber-security incident in June 2022, which could affect its ability to respond within agreed timescales. According to the landlord’s records, the job that had been raised in relation to the neighbour’s flooring was cancelled on 29 July 2022 because this was originally raised for the wrong property. The job was then raised again on 18 August 2022.
  7. The landlord issued its stage one complaint response on 1 September 2022.Itapologised for the delay in its response resulting from the cyber-security incident.The landlord advised the resident that it had observed the noise transference, which was being caused by his thin ceiling.It therefore advised that the flooring in the flat above his would be overhauled to resolve this, with work commencing on 14 September 2022.
  8. While the landlord believed that overhauling the floor would reduce the noise transference, it advised that this would not stop the noise fully. It also advised that, in keeping with its standard approach to noise related repairs, sound proofing would not be provided as part of the repair works. The landlord nevertheless upheld the resident’s complaint and awarded him £500 compensation, which was made up of £400 for the time that it had taken to resolve his case and £100 for the delay in its complaint response.
  9. On 1 September 2022, the landlord advised the resident that it would be closing his complaint and, as a result, he escalated the complaint because the noise transference had still not been resolved. His final stage complaint of 2 September 2022 advised that he had not slept properly in months, and that £500 compensation was not proportionate to the impact on his mental health and on his ability to work from home. The resident additionally did not believe that the cyber-security incident justified the landlord’s delays, and he reiterated that the delay had affected his private life.
  10. On 15 September 2022, the job to resolve the noise transference by replacing the upstairs neighbour’s flooring was cancelled for an unspecified reason.The resident thencontacted the landlord and advised that he wanted an immediate resolution and frequent updates,with it informing him that it was pursuing its contractor for a start date for the works.
  11. The landlord issued its final stage complaint response on 7 October 2022. It apologised for the delay in its response that had been caused by the cyber-security incident, which had severely impacted its ability to operate as normal and caused significant delays to repair works, apologising for any inconvenience that this had caused the resident. The landlord advised him that, under its complaints policy, repairs complaints were closed once the necessary repairs had been identified and scheduled. It noted that works to resolve the noise transference had been ordered for 14 September 2022. However, due to poor communication, the job had not been scheduled and the landlord apologised for this, with works now scheduled to start on 13 October 2022.
  12. The landlord advised the resident that, if the noise transference continued after the works had been completed, then it could consider installing noise monitoring equipment. Although it believed that the compensation that it had previously awarded him had been appropriate, it awarded him a further £150 compensation, made up of £100 for the ongoing repair delays and £50 for the delay in its final stage complaint response. This brought the total compensation offer to £650.
  13. The landlord subsequently discovered from the resident that the job to replace his upstairs neighbour’s flooring that had been booked for 13 October 2022 had not been carried out. It advised that there should have been a task set up to monitor this, but that this had not been done. The landlord’s operative advised that the neighbour had requested that the job be cancelled and rebooked for 26 October 2022. Although the works did subsequently commence on 26 October 2022, it still had to then pursue both its contractor and the neighbour to continue works, for which the contractor was unable to access their property on 4 November 2022.
  14. The resident went on to complain to this Service about the landlord’s delays in carrying out works to resolve the noise transference, and its complaint handling. He was unhappy with its decision not to install soundproofing in his upstairs neighbour’s property, its failure to keep him updated, and with the amount of compensation that it had offered him. The outcome that the resident sought was more compensation and for the works to be completed.
  15. On 16 December 2022, the landlord issued the resident’s upstairs neighbour with a tenancy breach warning, due to their failure to engage with it, which had impeded the repairs. It then continued to pursue his neighbour and its contractor for access and updates in January to February 2023, only being able to obtain an appointment that was attended on 18 January 2023, and works to replace the neighbour’s flooring were finally completed on 28 March 2023.
  16. The landlord subsequently wrote to the resident again on 20 April 2023, advising him that it had reviewed his case. It awarded him an additional £700 compensation for its poor communication and his inconvenience from the time that it had taken to resolve his case, made up of £450 for its failings from January 2021 to October 2022 and £250 for October 2022 to March 2023.This was in addition to the £650 compensation that the landlord had previously awarded the resident, which now totalled £1,350.
  17. The landlordacknowledged that a communication plan should have been in place to ensure that theresident had a point of contact and regular updates, but it had not done so. It therefore apologised to the resident for this failure and for any inconvenience caused.The landlord advised the resident that it had installed underlay and carpet in his upstairs neighbour’s property on 28 March 2023, which it believed would minimise any further noise transference from there.

Assessment and findings

Scope of investigation

  1. While it is very concerning that the resident reported that there was an impact on his mental health, private life and employment because of the landlord’s handling of his reports of noise transference, consideration of this is outside the scope of this investigation. This is because, under the Housing Ombudsman Scheme, this Service may not consider complaints concerning matters where the resident is seeking an outcome that is not within our authority to provide. As we do not have the authority or expertise to determine liability or award damages for impacts on mental health, private life and employment, the landlord has been recommended below to provide the resident with details to enable him to refer these matters to its liability insurers to be considered appropriately.

The landlord’s handling of the resident’s reports of noise transference from the property above

  1. The landlord’s antisocial behaviour (ASB) policy states that noise reports will be investigated within five working days when the threshold is met. It will initially encourage residents to try and resolve noise nuisance from neighbours between themselves, and to report excessive noise to their local council’s environmental health team. The landlord’s thresholds for such noise reports are either three separate incidents in the last seven days or five separate incidents in the last 28 days reported by the same person or household, or two separate incidents in the last 28 days reported by two or more people from different households.
  2. After his initial report in January 2021, the resident again advised the landlord of the noise transference from his upstairs neighbour’s flat on 22 February 2022, which it investigated from 1 March 2022. Although there is no evidence that he had reported the number or frequency of noise incidents required to meet the ASB policy’s thresholds for it to investigate this, it nevertheless did so. This was an appropriate response by the landlord, however, because its tenancy agreements did not permit its tenants to fit laminate or other hard flooring without its prior written permission, and the resident reported that his neighbour may have caused the noise by doing so, which permitted it to investigate this.
  3. Nevertheless, apart from on 21 March 2022, when the landlord recorded no access after visiting the resident’s neighbour, and on 28 March 2022, when it reviewed the resident’s evidence of the noise transference, there was no indication that it took any further action in relation to his regular reports and requests for updates until 19 April 2022. On that date, it raised an appointment to visit to investigate the noise on 29 April 2022.
  4. This, together with the lack of evidence of any action by it following the initial noise transference report in January 2021, was an inappropriate delay by the landlord, which should have taken further action much earlier to respond to the noise. In accordance with its ASB policy, it ought to have advised the resident to try and resolve the noise with his neighbour and, if this was excessive, to report the noise to the local council’s environmental health team, but there is no evidence that it did so.
  5. The landlord attended the appointment on 29 April 2022 at the resident’s upstairs neighbour’s property only, determining that there was an unreasonable amount of noise transference caused by the neighbour’s thin floor. Although the resident expected it to attend his property to witness the noise, this was achieved when it attended his neighbour’s property. While it would have been helpful if the landlord had visited him too, it did subsequently advise him of its findings, which was reasonable.
  6. The landlord’s responsive repairs guide states that it is responsible for repairing floorboards within its tenants’ properties. Therefore, the fact that it informed the resident on 29 April 2022 that this was its responsibility to resolve was appropriate, because it outlined that the noise transference was not the neighbour’s fault but that of the floorboards.
  7. The landlord’s repairs and maintenance policy states that appointments for non-emergency repairs will be offered at the resident’s convenience and within 28 calendar days, although other complex repairs or major component replacements may take longer. As it determined that the floorboards were at fault on 29 April 2022, it should have completed the repairs within 28 calendar days by 27 May 2022, if these were not complex or a major component replacement. However, even if the floorboard repairs were complex or a major component replacement, it was inappropriate that the work to do so, and provide underlay and carpet, was not completed until 28 March 2023, which took 333 calendar days to complete.
  8. While the landlord’s IT systems were subsequently affected by a cyber-security incident from June 2022, this was after 27 May 2022. This therefore could not have contributed to the delayed to the works before then, unless these were complex or a major component replacement that it did not inform the resident of, which was unreasonable. This meant that it was appropriate that, on 1 September 2022, the landlord apologised for the delay and advised the resident that works would commence on 14 September 2022, because it acknowledged its fault and managed his expectations by advising him of the new start date, after works previously being raised on 16 June and 18 August 2022.
  9. The landlord also appropriately managed the resident’s expectations by advising him that, although the work would reduce the noise transference, this would not be completely removed. Although it also subsequently installed carpet and underlay on the upstairs neighbour’s flooring, as well as repaired their floorboards, taking reasonable steps to resolve the noise transference by attempting to minimise this within its policy, which it explained excluded soundproofing. This was additionally in line with this Service’s report spotlight on: noise complaints, which acknowledges that landlords are not responsible for soundproofing above the standards at the time of building, but recommends such preventative measures to provide a better quality of service to residents.
  10. However, the landlord failed to start works in the resident’s upstairs neighbour’s property on 14 September 2022.On 7 October 2022, it advised that poor communication had led to a job being raised to carry out the works but not scheduled, which had now been scheduled for 13 October 2022.The landlord acknowledged and apologised for its failure and ongoing delays, advising that the cyber-security incident had caused significant delays to its works, and it was reasonable that it did so to further manage the resident’s expectations and explain why it had been delayed by factors outside of its control.
  11. Nevertheless, the works again failed to be carried out on 13 October 2022, as a task had not been set up to monitor this by the landlord and the resident’s upstairs neighbour had rescheduled the works to 26 October 2022, when these began. This was a further failure by it to manage the resident’s expectations and ensure timely works, by not suitably monitoring and communicating about these in order to do so.
  12. After 26 October 2022, the works were not completed until 28 March 2023. While this was a failing by the landlord to complete the outstanding works within a reasonable time, it did repeatedly pursue both its contractor and the resident’s upstairs neighbour for this during this period, both of whom delayed the appointments and access necessary to complete works. It also issued the neighbour with a tenancy breach warning on 16 December 2022 for doing so, and this was reasonable. This is because, under the landlord’s tenancy agreements, its tenants must give it access for repairs or other works after reasonable notice of at least 24 hours, and the neighbour failed to do this.
  13. It is of concern, however, that the landlord did not issue the resident’s upstairs neighbour with a tenancy breach warning after 26 October 2022 until 16 December 2022, and that it did not do so again. This is because its contractor was unable to gain access to the neighbour’s property on 4 November 2022 and was not able to attend an appointment to do so until the works were completed on 28 March 2023, except on 18 January 2023.
  14. It would therefore have been reasonable for the landlord to have considered issuing the resident’s upstairs neighbour with the tenancy breach warning after 4 November 2022, and to have done so again or considered further action for this after 18 January 2023, in light of the lack of access for works contrary to its tenancy agreements. The fact that its failure to do so was followed by further lengthy delays until the completion of the works meant that this was another failing on its part. While the landlord was not entirely responsible for the neighbour’s lack of access, it also failed to take the timely and frequent steps necessary to progress the works within a reasonable time.
  15. In total, the landlord offered the resident compensation of £1,200 for the time taken to resolve his reports of noise transference, its poor communication, and the inconvenience caused to him by this from January 2021 to March 2023. Its compensation policy’s highest tier states that an award of £700 or above is applicable in cases where there has been a significant and serious long-term effect on the resident, including physical or emotional impact, or both, which he reported. Therefore, the landlord’s £1,200 compensation offer was almost double of the starting amount in the highest tier of compensation under its policy, which was awarded for failures that were also significantly impacted by a cyber-security incident and the resident’s upstairs neighbour’s significant access delays.
  16. The landlord’s £1,200 compensation offer also fell within the highest tier of compensation recommended by this Service’s remedies guidance. This states that £1,000 or above is awarded where there has been a seriously detrimental severe long-term impact on the resident, as a result serious failings by the landlord.
  17. Therefore, in this case, the landlord’s £1,200 compensation offer was proportionate to recognise its delays in resolving the resident’s reports of noise transference from January 2021 to March 2023, in line with its compensation policy and this Service’s remedies guidance. This is light of the fact that it was not entirely responsible for all of the delays, and that there is no evidence that it received further noise transference reports from him after January 2021 until February 2022. It is nevertheless of concern that the landlord delayed reviewing the resident’s case and offering him this increased level of compensation until 20 April 2023. This was after he had complained to this Service, and was considerably later than its final stage complaint response on 7 October 2022, and so this was another failing on its part.
  18. As a consequence, the landlord has been ordered below to pay the resident the £1,200 compensation that it previously awarded him, if he has not received this already. It is also noted that this Service’s special report on the landlord previously made recommendations including that it review where it has made repeated, significant compensation offers at the end of the complaints procedure, as in this case, to identify any learning and improvements that could be made to the relevant service areas to facilitate earlier resolution of complaints. It was additionally recommended to review its communications in light of the findings in our special report, and to ensure that residents had a clear point of contact when dealing with ongoing issues, such as in this case.
  19. The landlord has therefore also been recommended below to assess how it would have handled the resident’s reports of noise transference following the revisions made in response to this Service’s special report about it. It should additionally identify any further improvements and actions that may be necessary as a result of this investigation, including but not limited to its and its contractors’ progressing of communications about and obtaining of access for outstanding long-term works, updating us on the outcome of its assessment.

The landlord’s complaint handling

  1. After the landlord’s cyber-security incident in June 2022, its interim complaints policy stated that, for complaints raised prior to 17 June 2022, it would contact the resident and try to progress these through to resolution. If it was unable to progress all or some aspects of a resident’s complaint, it would manage their expectations. There was no timeframe given for the landlord to issue its stage one complaint response for such complaints.
  2. This Service’s complaint handling code states that landlords must respond to stage one complaints within ten working days. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further ten working days without good reason. If an extension beyond 20 working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties, and the resident should be given this Service’s details to challenge the landlord if an agreement cannot be reached.
  3. The resident’s stage one complaint of 25 May 2022 was affected by the cyber-security incident in June 2022, and so the landlord had a good reason to exceed the response timescale and respond to this within 30 working days under this Service’s complaint handling code. This means that it should have responded by 8 July 2022 in order to do so, unless it had agreed a longer extension with him.
  4. However, the landlord instead issued its stage one complaint response on 1 September 2022, and this was 68 working days after the resident’s stage one complaint. While it was impacted by the cyber-security incident, it neither explained the length of this delay, apart from advising the resident on 14 July 2022 that its response had been impacted by this, nor evidenced that it reached an agreement with him for a longer response. Therefore, there was a failing by the landlord to respond to the resident’s stage one complaint within a reasonable timeframe, as set out in this Service’s complaint handling code.
  5. The landlord’s interim complaints policy stated that it would issue final stage complaint responses within 40 working days, informing the resident why and providing a new response timescale if it was unable to do so. This Service’s complaint handling code states that landlords must respond to final stage complaints within 20 working days of the complaint being escalated.
  6. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further ten days working days without good reason. If an extension beyond ten working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties, and the resident should be given this Service’s details to challenge the landlord if an agreement cannot be reached.
  7. The resident escalated his complaint to the final stage of the complaints procedure on 2 September 2022, and the landlord issued its final stage complaint response on 7 October 2022, which was 24 working days after the complaint escalation. Therefore, it responded within the 40-working-day timeframe in its interim complaints policy, and within the 30 working days permitted by this Service’s complaint handling code, as it had good reason to do so due to the cyber-security incident.
  8. The landlord acknowledged in its stage one complaint response that it had delayed issuing the response due to the cyber-security incident, apologising for this and offering the resident £100 compensation for the delay. It also offered him £50 compensation in its final stage complaint response for the delay in issuing that response.
  9. The landlord’s compensation policy and this Service’s remedies guidance both recommend compensation of over £50 for failures by it that had some impact on the resident, such as where it did not meet its service standards for actions and responses and delayed getting matters resolved. Therefore, in this case its offer of £150 total compensation for the failings in its overall complaint handling was proportionate to recognise its delayed complaint responses, and its lack of communication about these with the resident, in line with its compensation policy and our remedies guidance. As a result, the landlord has been recommended below to pay the resident the £150 compensation that it previously awarded him, if he has not received this already.
  10. It is also noted that this Service’s special report on the landlord previously recommended that it review its complaint handling in light of the findings in the special report, and that it ensure that a resident had a clear point of contact when pursuing a formal complaint. It has therefore additionally been recommended below to assess how it would have handled the resident’s formal complaints following the revisions made in response to our special report. The landlord should also identify any further improvements and actions that may be necessary as a result of this investigation, including but not limited to its timeliness in responding to and communications about formal complaints, updating this Service on the outcome of its assessment.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of noise transference from the property above.
  2. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves his complaint about its complaint handling satisfactorily.

Orders and recommendations

  1. The landlord is ordered to:
    1. Pay the resident the £1,200 compensation that it previously awarded him for its failings in handling his reports of noise transference within four weeks, if it has not done so already.
    2. Assess how it would have handled the resident’s reports of noise transference following the revisions made in response to this Service’s special report about it. It should also identify any further improvements and actions that may be necessary as a result of this investigation, including but not limited to its and its contractors’ progressing of, communications about and obtaining of access for outstanding long-term works, updating us on the outcome of its assessment within eight weeks.
  2. It is recommended that the landlord:
    1. Provide the resident with details to enable him to refer the damages that he reported to his mental health, private life and employment from its handling of his reports of noise transference to its liability insurers, in order for them to be considered appropriately.
    2. Pay the resident the £150 compensation that it previously awarded him for its poor complaint handling, if it has not done so already.
    3. Assess how it would have handled the resident’s formal complaints following the revisions made in response to this Service’s special report about it. It should also identify any further improvements and actions that may be necessary as a result of this investigation, including but not limited to its timeliness in responding to and communications about formal complaints, updating us on the outcome of its assessment within eight weeks.
  3. The landlord shall contact this Service within four and eight weeks to confirm that it has complied with the above orders, and whether it will follow the above recommendations.