Metropolitan Thames Valley Housing (MTV) (202211458)

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REPORT

COMPLAINT 202211458

Metropolitan Thames Valley Housing

11 May 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 is about the landlord’s handling of the resident’s noise reports.

Background

  1. The resident is a leaseholder of an apartment in a block of flats. Her landlord has explained that it has a head lease from the freeholder, and manages the whole property on the freeholder’s behalf. The landlord told this Service that its role includes management of its sub-lessees, and “housing management functions”. The resident therefore is a sub-lessee of the landlord.
  2. The landlord explains that the flat above the resident is leased to a private company, who have leased it to a local authority (LA), who have in turn rented it to tenants. These tenants are allegedly the source of the resident’s noise complaint. The private company, therefore, also appears to be a sub-lessee of the landlord.
  3. In August 2014, following reports from the resident that there was noise nuisance (the nature of which is unknown) from the flat above, the landlord instructed the occupants to replace their floor coverings with carpet and a sound-deadening underlay. They complied, and the landlord informed the resident.
  4. In May 2022 the resident reported to the landlord that the noise from the flat above had increased again. She explained that she believed the tenants had removed the carpet. She sent the same report to the LA.
  5. After initial responses from the landlord saying it would investigate the matter the resident heard nothing more, and chased for updates in May and June 2022.
  6. The resident raised a complaint with this Service on 30 August 2022, about the landlord’s handling of the matter, which she said had not been resolved.
  7. On 7 September 2022, the landlord provided its stage one response. It apologised for its delay in responding. It stated that it had not received any evidence to confirm any excessive noise so it would not investigate any further. It also stated that the noise from the flat above did not constitute antisocial behaviour (ASB) and that it did not uphold the complaint. In order to raise any further action, the resident would need to provide further evidence such as diary sheets or recordings as it had been previously investigated and closed due to a lack of evidence.
  8. On 11 September 2022, the resident confirmed to the landlord that the carpet had been removed from the flat above.
  9. The resident escalated her complaint on 30 September 2022. She wanted the landlord to resolve the noise issue, and complained that it had not inspected both flats to witness the problem. In October she remined the landlord of the actions it had taken in 2014 to address a similar issue with the same flat.
  10. In response, on 21 October 2022, the landlord told the resident it would open a new complaint based on new information. On 7 December 2022, the landlord visited the resident and explained that it was not the freeholder of the property, but the head leaseholder, and was not responsible for the flat above. It said it would contact the relevant leaseholder on the resident’s behalf.
  11. The landlord then provided its stage two complaint response on 13 December 2022. It acknowledged handling the resident’s earlier reports and complaint poorly, and confirmed that the property above was owned by the LA. It gave the LA’s contact information. It explained that it had the head lease, but this only made it responsible to maintain the common areas. It offered her £50 for poor complaint handling and £50 for service failure. In further correspondence in March 2023 the landlord repeated that it could not take formal action in relation to the noise reports as it did not own the property.
  12. The resident brought her complaint to the Ombudsman because she remained dissatisfied with the landlord’s responses to her concerns and complaints.

Assessment and findings

  1. The resident raised her concerns about the noise from the flat above with the landlord in May 2022. In response, the landlord provided an ASB reference number, and then stated that the noise did not constitute ASB. In the circumstances of the landlord’s later explanation that it was not responsible for the upstairs flat, this was not a reasonable response. The landlord should have explained the situation at that point, and worked with the resident to address her concerns with the responsible leaseholder, as far as it could. Not doing so caused confusion and delay. It did not explain the true situation until December 2022, seven months after the resident’s first reports.
  2. Some of the information given to the resident by the landlord contradicts some of the information it has provided for this investigation. It told the resident that its head lease only related to its obligation to maintain the common areas of the property. It told this Service that its head lease obligations related to managing sub-lessees, and “repairs, estate maintenance, cyclical decorations and housing management functions.” Its obligations therefore appear to be more than simply maintaining the common areas, and include at least some level of housing management – of which noise disturbance is usually a part of.
  3. Furthermore, in an internal email dated 30 November 2022 (in relation to the separate issue of a leak from the upstairs flat into the resident’s property), the landlord’s officers referred to previous efforts to address the leak with the upstairs property’s agents, and state that if they are unsuccessful with the agents they will approach the owner (presumably the LA) as “this is ultimately their responsibility to resolve in accordance with their lease.” This activity relates to the leak, but it is not apparent why the same effort was not made in relation to the noise issue, as noise disturbance is also something which a lease usually obliges a leaseholder to address. Instead, the landlord subsequently informed the resident to approach the LA herself about the noise.
  4. The landlord then wrote to the private company with the direct sub-lease on 2 January 2023, raising the noise issue (and leak) alleged to be coming from the upstairs flat. It asked the company to investigate, and to update the resident. This action shows that the landlord eventually accepted it had a larger role to play than it had explained to the resident. This action was reasonable and appropriate.
  5. Even when a landlord has no formal relationship with a tenant or property thought to be causing problems with one of its properties or leaseholders (as here), there is an expectation by the Ombudsman that a landlord will at least consider what it can potentially do to provide assistance, within the limitations of the specific circumstances of the case. The actions taken by the landlord in early 2023 met that expectation, but should ideally have been taken earlier. It is possible that we can only say that now with the benefit of hindsight, given how complicated the ownership arrangements are in this case.
  6. Overall, however, there was a significant delay in the landlord explaining to the resident why it could not directly intervene with the upstairs flat, and that lead to confusion and frustration for the resident.
  7. In some of her correspondence with this Service the resident has queried what legal information we would require from her to support her complaint. It is important to appreciate that it is not for the Ombudsman to provide legal advice, make legal findings, or resolve the complicated ownership connections for the properties in this complaint. The basic fact is that if the resident’s landlord is not also the landlord for the tenants in the upstairs flat it cannot usually take direct action, even when it is also the head leaseholder. In general, only the owner (or direct leaseholder) of the property can take such action, or be forced to take action by an LA or court.
  8. In her complaint and correspondence with the landlord the resident referred to the action the landlord had taken in 2014, and queried why it could not do so now. The landlord did not respond to the point. However, she had incorrectly stated the action had been taken in 2018, which may have caused confusion. There could well have been changes in the intervening years which affected what the landlord could and could not do in 2022, but it was a valid point, and orders have been made below for the landlord to address it.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the complaint.

Orders

  1. The landlord is to pay the resident £250 compensation within four weeks of the date of this report. This amount is inclusive of the £100 already offered.
  2. This investigation has found that the information about the landlord’s obligations and responsibilities should have been provided to the resident up front, in response to her first noise reports. Not doing so caused delay and confusion. Within six weeks the landlord must review this case to identify what learning it can take from it in order to improve its services and policies, and avoid such a complaint arising again. The landlord may wish to consider the Ombudsman’s Spotlight Report on landlords’ engagement with private freeholders and managing agents as part of its review. While not entirely related to the circumstances of this complaint, there are some common themes. The outcome of its review must be shared with this Service and the resident.
  3. As part of that case review, the landlord should consider why it was able to act directly in response to the noise reports in 2014, but not in 2022.
  4. Evidence of compliance with these orders must be provided to this Service by their respective deadlines.

Recommendation

  1. This report identifies that, based on the evidence seen, the landlord does not have the authority to intervene directly with the resident’s upstairs neighbours, and that the softer approach it started taking with the property owners in early 2023 was a reasonable and appropriate one. We strongly recommend that the landlord continue to support and assist the resident with her concerns going forward in a similar manner.