Estuary Housing Association Limited (202102612)

REPORT

COMPLAINT 202102612

Estuary Housing Association Limited

2 March 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

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

The complaint

1. The complaint is about the landlord’s response to the resident’s request:
   1. for soundproofing insulation at the property.
   2. to be transferred to an alternative property under a management move.
2. The resident has also complained about the measures used by the landlord to tackle antisocial behaviour (ASB), specifically threats and intimidation.

Jurisdiction

3. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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.
4. After carefully considering all the evidence, in accordance with paragraph 39(a) of the Scheme, complaints 1b and 2 are outside of the Ombudsman’s jurisdiction. Paragraph 39(a) states – “the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.”
5. In correspondence to the Ombudsman in July 2021, the resident advised that as resolution to her complaint, she wished to see the implementation of appropriate methods to deal with ASB. The resident said that this was because she had continued to face threats and intimidation from her neighbour, and the landlord had failed to take “sufficient action” to stop it from occurring.
6. The resident’s experience of ASB is not disputed. It is also acknowledged that the ASB had a significant impact on both the resident and her son. However, the resident’s concerns about a lack of sufficient action by the landlord did not exhaust its formal complaints procedure. While reference was made to the landlord’s handling of ASB cases within the complaint responses, the evidence does not show that any specific concerns about the handling of her reports had been raised by the resident, and subsequently investigated by the landlord. It follows that as the landlord did not investigate any concerns about its handling of the resident’s ASB reports, this is not a matter which the Ombudsman can consider as part of this investigation. The landlord’s handling of the ASB reports has been referred to in the report below for the purposes of context only.
7. In addition to the ASB, the resident also raised concerns about the landlord’s decision to add her to a transfer list so that she and her son could move to a new property. The resident advised that she suffers from a spinal condition, and the landlord had informed her that she could join a transfer list on medical grounds. The resident informed the Ombudsman that she believed that the landlord should have offered a management move given her concerns about the condition of the property, and owing to the impact that had been caused to both her and her son as a result of the ASB and noise issues they had experienced.
8. The Ombudsman has acknowledged the resident’s dissatisfaction with the landlord’s response to her request to be moved. However, this was not a matter which was investigated through the landlord’s formal complaint procedure. While reference was made to the steps that the resident could take to try to improve her chances of finding a suitable alternative property, the landlord’s decision not to offer a discretionary move was not something that had been discussed within the complaint responses. As such, given paragraph 39(a) of the Scheme, as detailed above, this is not a matter which the Ombudsman can investigate as part of this complaint.
9. Although the resident has since moved from the property, she may wish to raise the above issues as a new formal complaint with the landlord. If the resident chooses to do so, and remains dissatisfied after exhausting the landlord’s complaints procedure, she may refer both issues to the Ombudsman as a new complaint.

Background and summary of events

10. The resident was a tenant of the landlord’s property. The property is a two-bedroom, ground floor flat located in a block of flats. The resident resided at the property with her young son. Soon after moving to the property in 2017, the resident raised concerns about noise emanating a neighbouring property (Flat A). The resident moved to a private rented property in 2021 as she was unhappy with the landlord’s response to her concerns.
11. On 23 November 2020, the landlord raised a formal complaint following a telephone conversation with the resident. The landlord noted that the resident was unhappy with a lack of resolution to what she believed were soundproofing issues at the property. It was noted that:
    1. The issues with noise transference began in 2017; however, since then the family in Flat A had increased to six people – from three – and things had become worse.
    2. Two sound tests had been carried out, and no issues had been flagged. However, the resident was unhappy that she had not been provided with copies of the reports.
    3. Mediation had taken place with the residents of Flat A; however, the main issue was a lack of soundproofing. The resident was concerned that appropriate soundproofing had not been installed when the property was developed as it was initially used as an office for the development.
    4. The resident’s son was being kept awake by the noise, and this had resulted in noise anxiety. In addition, the resident was struggling to study and attend Zoom meetings owing to the noise.
    5. When the resident had last spoken with a member of staff in November, she advised that she had been told not to re-open the case, and that no further sound tests would be performed. In addition, the landlord would not be paying for soundproofing.
    6. The resident was not unhappy with the member of staff, but rather was unhappy with the landlord’s decision not to do anything to help improve the situation.
12. The landlord responded to the complaint on 9 December. It said:
    1. It had carried out a full review and looked through the “historical findings”.
    2. It had arranged for two sound tests to be caried out by independent companies on 3 October 2017 and 24 February 2018 respectively. At the time, both sound reports confirmed that the properties met the regulations for airborne and impact sound. No recommendations for improvements or works were made.
    3. The reports had been produced for it, as the client, and were not to be shared with third parties.
    4. It wished to confirm that the property had not been used as an office during the construction process, and all sound insulation installed would have been the same throughout the building.
    5. It was pleased to note that the resident was happy with the handling of her ASB case; and after reviewing the case it could confirm that it had been handled in line with its procedure. The staff involved had worked closely with the police to try to come to a resolution as it was understood that each party felt that they were being harassed by the other. It also noted that both parties had engaged in mediation and that this had helped to improve the situation for some time.
    6. It was sorry to learn that the resident was still being impacted by the property above; however, there was little it could do regarding the “clash of lifestyles”.
    7. It was noted that the resident had been in discussion with staff about moving via mutual exchange. However, it had checked with its allocations team and the resident did not appear to be registered. It wished to encourage the resident to register her property on two properties sites (details were provided) if she still wished to consider moving.
13. The landlord concluded that it had found no evidence of wrongdoing or service failure; and for that reason, it was not upheld. It added that if the resident was unhappy, she could ask for her complaint to be escalated.
14. On 11 December, the resident spoke with landlord staff and advised that she wished to escalate her complaint. The resident said that she had proof from the developers that her property had been used as an office. In addition, the resident had advised that through the access hatches in the property she could see that there was no soundproofing or insulation in some of the walls.
15. The resident subsequently wrote to the landlord with the full details of her escalation request on 10 January 2021. Within this, she said:
    1. She had requested the noise test reports, but her requests had not been accepted with no reason provided for the denial.
    2. Staff had informed her that the noise tests did not test for the noises which had been causing nuisance.
    3. Her son was consistently woken by the sound of flushing toilets and showers running; and she could only presume that pipes ran through the walls in his bedroom. In addition, noises including the television, talking, footsteps, switches, doors, washing machines and hoovering could all be heard at an “extreme level” within the property.
    4. The property had been used as an office. On moving to the property, the resident had issues proceeding with the Wi-Fi installation as the previous occupant had left a debt with the internet provider for the property. On resolving the issue, the resident had spoken with the occupant – a company – who confirmed that the premises was used as an office. The resident said that through further discussion it was established that the next-door property had been used as the entrance point to the office. She therefore believed that the construction of her property had been rushed, and did not meet the same standard as others within the development.
    5. She had not been made aware previously that the landlord had worked with the police, and asked if the landlord could elaborate on this.
    6. She had been using mutual exchange sites; however, her account was closed. She felt that the landlord also had to take into consideration that the local authority had requested that she was only fit for ground floor flats or houses due to a medical need – which made finding a suitable property more difficult.
    7. She firmly believed that the property was unfit in relation to soundproofing; and she wished to know why there had been no consideration to investing in the structure of the property.
16. In closing, the resident said that she wished to request the noise reports again, and to be provided with the standards that the properties had been built to. The resident added that she would be open to moving to a property that met her medical needs, and would be grateful for the landlord’s assistance in this.
17. The landlord issued its final response to the complaint on 25 January 2021, it said:
    1. The sound tests which had been carried out confirmed that the property met the regulations for airborne and impact sound. From a building perspective, there were no recommendations for improvement or works required. Copies of the reports had been enclosed.
    2. While the resident expressed concern that the tests would not detect the noise transference that she was experiencing, the reason for conducting the tests was to establish whether the property had been correctly insulated. Both tests confirmed that the property had passed.
    3. Once Covid-19 restrictions had been lifted, it would visit the property to investigate the resident’s concerns about hearing noises such as flushing, switches, washing machines and hoovers.
    4. In relation to the property previously being used as an office, it could confirm that the site set-up was located in the current play area during construction. When the play area reached the final stage of completion, some office space was provided in a plot – but not within the resident’s block. It wished to assure the resident that no areas of construction had been “accelerated” at any point during the construction programme.
    5. In relation the comment about police involvement, it had been notified by the police that the resident had reported a hate crime between 24 March and 9 April 2019, listing the upstairs neighbour as the perpetrator. It had liaised with the police who supported the move towards mediation between both parties, which subsequently took place.
    6. While it acknowledged that the resident felt that improvement should be made to the property, the building had been constructed to meet current building regulations. It enclosed a copy of the insulation details for the resident’s information.
18. The landlord concluded by confirming that it would visit the property once Covid-19 restrictions had been lifted. However, the internal complaints procedure was complete, and it had not upheld the complaint. The resident was dissatisfied with the landlord’s response, and referred the complaint to the Ombudsman for further consideration.

Landlord’s duties and obligations

19. Under the terms of the tenancy agreement, the landlord is obliged to keeping in good repair the structure and exterior of the property. The landlord is also responsible for keeping in good repair the internal walls, floors and ceilings and door frames – but not including internal painting and decoration.

Assessment and findings

20. When assessing the landlord’s response to the concerns that were raised by the resident, it is the Ombudsman’s role to establish whether it failed to comply with any of its duties and obligations under the tenancy agreement, as detailed in any relevant policies and procedures, or as set out in legislation and relevant regulations. There is no obligation on the landlord to install soundproofing insulation after a building has been constructed, provided that the building meets regulations which were in place at the time of construction. The Ombudsman has therefore assessed the reasonableness of the landlord’s response to the concerns that were raised by the resident.
21. Given the concerns that were raised by the resident about noise transference, the landlord appropriately carried out sound tests with the aim of investigating the matter further. There was no obligation on the landlord to commission the tests; however, it was a reasonable course of action to take in the circumstances. When responding to the complaint, the landlord confirmed to the resident that neither test identified any issues, or made recommendations for improvements. On that basis, it was not unreasonable that the landlord declined to take any specific action after the tests were carried out.
22. As the resident raised concerns that the tests would not detect the types of noises they had been hearing, the landlord agreed to visit the property once Covid-19 restrictions had been lifted so that the matter could be investigated further. From the evidence provided to the Ombudsman, it is not clear whether the landlord had the opportunity to schedule a visit prior to the resident surrendering her tenancy. However, this was a reasonable offer in the circumstances.
23. During the course of the complaint, the resident had also expressed concerns about the construction of the property – and whether any elements of the build had been rushed – resulting in the increased noise transference that she was experiencing. The landlord appropriately addressed the resident’s concerns and confirmed that the property met building regulations. While it is noted that the resident had continued concerns about the build and the structure of the property, as there was no evidence of disrepair resulting in the noise transference, there was no obligation on the landlord to do anything further in the circumstances.
24. It is acknowledged that the noise transference was the cause of significant inconvenience and distress to both the resident and her son. However, as detailed above, there is no evidence of a failing by the landlord in its response to the concerns that were raised. Given the nature of the resident’s concerns, and that she had made a specific request for soundproofing insulation to be installed, it may have been helpful for the landlord to explicitly inform the resident that it would not be obliged to install any soundproofing insulation under the terms of the tenancy agreement – or otherwise. Providing such an explanation may have helped to manage the resident’s expectations; however, that the landlord did not was a shortcoming in its response to the matter as opposed to a failing.

Determination (decision)

25. In accordance with paragraph 54 of the Scheme, there was no maladministration in the landlord’s response to the resident’s request for soundproofing and her concerns about the construction of the property.

Reasons

26. In response to the resident’s concerns about noise transference, the landlord appropriately commissioned sound tests to investigate the matter further. The tests did not identify any remedial works or make recommendations, and for that reason the landlord’s decision not to carry out any works or take specific action was reasonable in the circumstances. Given the resident’s concerns that the tests would not have detected that which they could hear, the landlord appropriately agreed to undertake a visit to the property once Covid-19 restrictions had been lifted.
27. The landlord also appropriately addressed the resident’s concerns about the construction of the property, and confirmed that all building regulations had been met.