Newlon Housing Trust (202011349)

REPORT

COMPLAINT 202011349

Newlon Housing Trust

21 December 2021

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 report of noise nuisance from construction work.

Background and summary of events

2. The resident is a leaseholder and the lease commenced in January 2020. The resident’s property is a one bedroom flat on the second floor of the building. The building is comprised of residential and commercial properties. The landlord is the head leaseholder for the residential properties. It is not the freeholder. The commercial properties are separately leased to third parties by the freeholder.
3. Major work was scheduled for August 2020 – July 2021 to build an NHS centre on the ground floor, below the resident’s property, within the separately leased commercial property.
4. In August 2020 the resident raised a formal complaint to the landlord about the noise. In her correspondence, the resident explained that she purchased the flat in February 2020 and there was no mention of major works taking place. She explained that residents had no warning about “months of loud drilling in the building” and that this was taking place every day from 8am to 4pm. The resident asked for a timeline of the work and an explanation about the lack of notice. The landlord sent an acknowledgement on 17 September 2020 and offered some details about the managing agent.
5. On 27 August 2020 the landlord emailed the resident and said that it was made aware of the work after they had already begun, and that the freeholder’s team apologised for the delay in communicating this. It said that the freeholder had advised that the concierge would deliver a newsletter to the residents (with reference to this attached). It apologised for the inconvenience and disruption.
6. In September 2020 the resident contacted the freeholder and its managing agent. The resident explained that there was no notice of the work (or beginning or end date) and she sought for a reduction in the service charge fees or to be compensated for the period of the work and in recognition of the disruption this caused. The resident referred to communication from the contractors about the nature of the noise in relation to the location of her property (that this was “one of the worse affected”) and offered recordings. She explained that she suffered severe disruption and anxiety caused by the prolonged noise of construction from the floor below. The resident explained the impact of the noise on her; it was affecting her wellbeing and causing her to experience migraines and anxiety. She also had to work from home during this time.
7. The managing agent wrote back and explained that the landlord was responsible for dealing with residents. It provided details of the construction work and explained that it was in contact with the contractors who were carrying out the building work to ensure that this was carried out within government guidelines and hours. It invited the resident to let it know if this was not the case. Finally, it suggested that the resident contact the local authority to see if there was anything they could do (4 September 2020). The resident forwarded the communication from the managing agent to the landlord’s complaint team and advised that the landlord had not contacted them. She escalated her complaint (21 September 2020).
8. The landlord said that it escalated the complaint on 23 September 2020. The resident chased a response on 6 October 2020 and also shared recordings of the noise which she was experiencing (drilling). The landlord said that it forwarded this to the quality team (9 October 2020). On 19 October 2020 the resident contacted the landlord again and explained that she had not had a response.
9. On 20 October 2020 the landlord wrote to the resident and explained that it had no control over the works and that the resident could escalate her concerns as per the information provided by the freeholder. It also said that the complaint should not have been logged as it had nothing to do with the property which it was responsible for and offered £25 as a gesture of goodwill for the misinformation.
10. On 4 November 2020 the resident contacted the customer service team of the  freeholder. In response, she was directed to the landlord. The landlord disputed the freeholder’s information and clarified that it was only responsible for the residential properties (where lessees are shared owners) but not the commercial ground floor premises, where refurbishment was taking place (25 November 2020). On 25 November 2020 it forwarded a copy of the newsletter which the concierge should have sent. A copy of this has been seen by the Ombudsman (it sets out the details of the new NHS building and works to date and works to follow). The resident responded on the same day to the landlord and explained that the issue was not just the lack of communication, but it was the “severe disruption and distress caused”. 
11. On 6 January 2021 the resident submitted a web form to the Ombudsman.
    1. She explained that she purchased her flat in February 2020 with no mention of major works.
    2. She stated that since August she had suffered “severe disruption and anxiety due to constant noise of construction works on the floor below me nearly every weekday between 8am-4pm & some Saturdays”.
    3. The resident also stated that there was no notification of works starting and after she made contact with the construction company, she was told that the work would continue until July 2021.
    4. Furthermore, she was working from home but struggled as she could not speak with her colleagues due to the loud noise and drilling.
    5. The landlord had “made no attempts to get any information on the works for the benefits of the residents all information I have received…has been through me going directly to the construction company” who were “shocked by the lack of communication”.
    6. She considered the landlord’s voucher (to apologise) as an insult and said that said she had not even received it.
12. In January 2021 the Ombudsman acknowledged the resident’s complaint (“about the landlord’s handling of the request for disturbance payments due to major works beneath your flat”). It directed the matter to local resolution and the landlord confirmed on 21 January 2021 that it would escalate the matter.
13. On 26 February 2021 the landlord contacted the resident with its final response.
    1. It apologised for the complaint handling and explained that the case was unusual and this had led to uncertainty on its responsibility and the correct process to follow. It explained that the complaint process had changed and the resident’s complaint was now at the review stage.
    2. It apologised for the fact that the resident had been working at home and enduring construction noise and it acknowledged the recordings of this which the resident sent to it.
    3. It did not accept responsibility for the works or for awarding redress for the distress and inconvenience, however, it made a “nominal award” in recognition of the distress and inconvenience.
    4. It declined to offer redress for the rent and service charge paid of the period of works from August 2020 – July 2021.
    5. It explained that it had no control over the contractors or the property where the work was being carried out. It explained that it had a head lease of the residential properties and did not hold a legal title over the commercial premises on the ground floor (where the works were taking place).
    6. It said that the title and position of the resident’s property would have been a subject on which she would have received advice on from her legal advisers and surveyors. It further said that the estate development was apparent from inspection and could have been evident from the sales/negotiating process.
    7. It said that the sales file for the purchase of the property contained the contract which the resident signed, and this contained a reference to ‘sellers work’ (construction at the property). The landlord referenced a clause which said that the resident acknowledged that the completion of the sale could take place before the seller completed the works to the remainder of the estate.
    8. It clarified its responsibility (for the residential premises) and the limits of this (excluded the commercial premises on the ground floor where work was taking place).
    9. It detailed various stakeholders, such as the freeholder and the managing agents employed by the freeholder. It explained that it did not have responsibility for the premises which the separate parties acquired or the refurbishment work which had cause the noise which the resident complained about.
    10. It referred to communication with some of the other parties, such as the freeholder which had said that notice of the start of the work had not been efficiently distributed and it apologised. It also referred to the freeholder’s comments that it would intervene if the commercial tenant was working outside of the guidelines. In respect of the resident’s noise reports, she was directed to contact the local authority’s Environmental Department if she did not consider that the noise levels met the legal requirements.
    11. It said that when it became aware itself of the work it agreed to pass this information onto the residents and it apologised if the resident was not copied into a newsletter about this.
    12. It acknowledged the resident’s concern about the ongoing nature of the issue (the work had continued for several months more) but it said that it had no influence or control overt this.
    13. It offered compensation for complaint handling and good will, confusion about the appeal process, delayed communication generally in handling and delay in appeal (£25 each) totalling £100.
14. The resident emailed the Ombudsman in April and March 2021 about her outstanding concerns.
    1. She explained that she remained dissatisfied with living in “hell” and being subject to drilling “of up to six days a week constantly”.
    2. The resident acknowledged that the landlord could not control the noise. She said that it did not inform residents and she also said that that the landlord should take it up with the freeholder that it was not aware and that she would not have purchased the property.
    3. She also disputed receiving a newsletter about the construction work and said that the only information she had was because she was liaising with the construction team directly.
    4. The resident explained that while the landlord said that it was not aware of the works, she did not feel that it was reasonable for it to ask her to move in during the current work and expect the full level of rent.
    5. The resident stated that it made no effort to try to get information on the work to honour its duty of care. She considered that its attitude was indifferent and she had not received clarity on the work or accountability.
    6. Finally, she considered that she was owed compensation for the lack of notice that she would experience this when she purchased the property.

Assessment and findings

15. It has not been disputed that the resident experienced distress and inconvenience due to the noise from the construction work beneath her property. The landlord has acknowledged this and offered the resident redress in recognition of the impact that the noise had, although, it considered that it was not responsible for the noise.
16. With reference to the landlord’s obligations under the lease, the landlord is not responsible for the noise as per the explanation it gave in its complaint responses. Furthermore, the resident’s lease does not have a term about compensation for such disturbances. Therefore, although the noise and impact are not disputed, the landlord’s role in resolving this is limited and its response to the resident’s request for the rent/service charge reduction was not unreasonable.
17. While the landlord has not been considered responsible for the noise, it still has a role to play. For example, by responding to the resident’s concerns or by offering the resident information about her options, in so far as this was possible (eg signposting to Environmental Health, so that it can consider if the noise was a statutory nuisance).
18. Looking at the facts of this case, the landlord responded to the resident reasonably as it explained that it was unaware of the works itself. It provided details of the stakeholders which the resident could contact and it also updated the resident about the freeholder’s response to the issue. The landlord subsequently signposted her to Environmental Health and conveyed the actions it had taken, such as its conversation with the freeholder about what to do if the work took place outside of the specified hours. These actions were reasonable. It is not clear if the resident referred the case to Environmental Health, who could explore if this was a statutory nuisance.
19. The landlord subsequently acknowledged that the resident experienced distress and inconvenience and offered redress to recognise the impact of this. It offered the resident £100 in total. It provided a breakdown of this to include its communication and complaint handling. It recognised and apologised for the initial handling of the concerns.
20. The total sum is reasonable as it recognises that there has been an impact on the resident whilst also recognising the limited role which the landlord could play. The redress was therefore proportional to its service failure, although it is acknowledged that for the resident it may not be proportional to the overall impact from the noise.

Determination (decision)

21. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme the landlord offered reasonable redress in respect of the resident’s complaint about noise nuisance from construction work.

Reasons

22. The landlord offered the resident redress which took into account its failures whilst also taking into account the limited role it had in resolving the substantive issue (the noise). The redress was reasonable as it was proportional, given the limited role which the landlord had in resolving the noise dispute.

Recommendations

23. Within four weeks of the date of this report, it is recommended that the landlord pay the resident the redress it offered (£100) if it has not already done so.