Optivo (202007038)

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REPORT

COMPLAINT 202007038

Optivo

12 March 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. This complaint is about the landlord’s handling of the resident’s reports of noise nuisance.

Background and summary of events

Background

  1. The resident is an assured tenant of a two-bedroom ground floor property within a house conversion of two flats. The tenancy began on 9 July 2012.
  2. The tenancy agreement lists examples of anti-social or nuisance behaviour, including persistent or prolonged playing of loud music and door slamming. It adds that the tenant of a property situated above another flat is responsible for installing or maintaining appropriate floor covering, including carpet and underlay (and that wooden or laminate flooring is not considered appropriate in most situations). It is reasonable to conclude that the resident’s upstairs neighbour is subject to these, or similar, tenancy conditions.
  3. The landlord has an anti-social behaviour (ASB) policy that requires it to assess potential harm of ASB, agree an action plan, take appropriate actions to investigate ASB and maintain contact with the resident. It adds that it expects residents to resolve ‘minor disputes’ with their neighbours and that it will not take action where there is insufficient evidence of ASB. It states that ‘everyday behaviour occurring at unusual times e.g. due to different work patterns’ and ‘noise transference due to poor sound insulation’ are not considered to be ASB.
  4. The landlord has an ASB procedure that categorises a first noise report as ‘low level’. It states that it will advise the complainant to complete two weeks of diary sheets or Noise App recordings when a noise report is received. It requires staff to assess whether the noise is ‘everyday’ or ‘deliberate’. If the noise is ‘everyday’, it sets out that this is not ASB and recommends that staff check floor coverings.
  5. The landlord has a complaints resolution policy that outlines a two stage complaints process – there is an initial complaint stage (with a response expected within 10 working days) and a review panel stage. The policy states a review panel request will lead to a case conference at which point the request may be rejected (within 10 working days) or it will be passed for a formal panel review. It is added that complaints should be received within six months of the ‘issue happening’.

Summary of Events

  1. The landlord’s internal records show that it received reports from the resident on 28 August 2019 and 4 November 2019 about noise from the property above. It noted that the resident reported loud noises of children and furniture movement and that she asked about sound proofing being installed. These records demonstrate that reports had also been made during 2018, leading to a complaint that exhausted the landlord’s internal complaints process in April 2019.
  2. The landlord raised a repairs order on 7 November 2019 for floorboards in communal areas to be checked. The job was subsequently closed and it was noted that the flooring was stable although it is not clear when this inspection occurred.
  3. The landlord’s internal records show that the resident again contacted it on 13 February 2020, reporting too many individuals in the property above, that the neighbour had installed laminate flooring and that there was damage to her plastering due to vibrations caused by noise from above. The landlord noted that it opened an ASB case and sent diary sheets the same day (a copy of the accompanying letter has been provided to this Service) and telephoned her on 19 February 2020, offering to conduct a visit to consider the noise.
  4. The landlord’s internal records show that it contacted the resident and recommended downloading the Noise App. It noted that it followed this up on 7 March 2020 and found no diary sheets or Noise App recording had been received from the resident.
  5. Internal records and a photograph show that the landlord attempted to inspect the resident’s property on 13 March 2020 to consider cracks to the walls but it did not gain access.
  6. The resident submitted an online complaint on 31 March 2020. She reported constant slamming doors that was causing damage to her walls and waking her and her son. She stated that this was being caused by the upstairs neighbour and her guests.
  7. The landlord’s internal records show that it closed the ASB enquiry case on 2 April 2020 as it spoke to the neighbour above and was satisfied with the answers about the overcrowding allegations.
  8. The landlord’s internal records show that it conducted a case conference on 7 April 2020. It established that it previously answered a complaint in 2019 that related to sound proofing and that it had checked its ASB records and found there had been no response from the resident in reply to its offers for her to download the Noise App and complete diary sheets.
  9. The landlord issued a complaint response on 8 April 2020. It stated that:
    1. there was no ‘live’ ASB case for the resident as she had not responded to the landlord’s offer of 19 February 2020 to visit nor replied to the recommendation to download the Noise App
    2. diary sheets had been sent to the resident on 7 March 2020 but had not been returned
    3. the resident should complete a noise diary or use the Noise App for a period of two weeks so an ASB case could be considered
    4. an offer of mediation was made
  10. The resident wrote to the landlord on 19 May 2020. She advised that she had not received a complaint response and that she could not download the Noise App and did not want to waste her time completing diary sheets. She asked the landlord to consider the sound proofing issue as they promised to investigate this in the past.
  11. The landlord re-issued the complaint response (of 8 April 2020) to the resident on 19 June 2020 as it was apparent that she had not received it originally.
  12. The resident submitted a review panel request form on 22 June 2020. She stated that she had not received a response to a complaint made the previous year and asked for repairs to be done and for compensation to be awarded.
  13. The landlord acknowledged the review request on 8 July 2020 and sent a holding response on 16 July 2020.
  14. The landlord sent its final complaint response to the resident on 22 July 2020. It advised that it would not escalate the complaint for further review on the grounds that:
    1. there was no current ASB case open for the resident and the landlord had not been given the opportunity to resolve the matter with her neighbour
    2. it had considered the resident’s sound proofing request as a complaint on 15 April 2019 and it was too late to review this further
    3. sound proofing would not be considered as it is not within its policies
    4. compensation could not be offered as it had not found any service failure
    5. an offer was again made for a housing officer to call or visit the resident to discuss options such as diary sheets and a Noise App

Assessment and findings

  1. In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
  2. The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
  3. The resident made reports of noise nuisance in August 2019 and November 2019. Although the landlord has kept a record of these reports and demonstrated that it considered the flooring in the communal areas of the building, it has failed to demonstrate how it investigated each of these reports, if it took any further actions in response and whether it communicated any outcomes to the resident. This was inappropriate as the landlord failed to advise the resident to make diary entries and Noise App recordings as its ASB procedure required. This will have led to inevitable uncertainty for the resident as to whether the landlord intended to investigate her reports or take any actions.
  4. In mitigation, the resident (as per paragraph 16) subsequently informed the landlord that she was unable and unwilling to collect evidence through the Noise App and diary sheets. Nevertheless, the landlord was not aware of this at the time and should have followed its own ASB procedures.
  5. The resident made a further noise report in February 2020 when she also raised concerns about the number of people in the flat above and the type of flooring within that property. On this occasion, the landlord:
    1. provided the resident with diary sheets and advice to install a Noise App
    2. opened an ASB case file which was only closed two weeks later when it became apparent that the resident had not provided evidence of ASB
    3. offered to visit the property to consider the noise
    4. attempted to inspect the resident’s flat to consider her concerns about the damage she stated had been caused to her walls
    5. raised concerns with the neighbour above and was satisfied with the answers on the question of the number of persons residing at the property
    6. made an offer of mediation at the time it considered the resident’s complaint in April 2020.

These actions were all appropriate and in line with the landlord’s ASB procedures.

  1. When the landlord reviewed the resident’s complaint in July 2020, it explained that it had not been given the opportunity to resolve the matter in line with its ASB policy and made another offer to visit the resident. It was reasonable for the landlord to demonstrate that it remained willing to work with the resident to gather evidence and follow its ASB policy to resolve the resident’s concerns.
  2. The resident enquired about sound proofing to the building in November 2019 and at the point that she sought to escalate the complaint. She stated that this was with reference to previous conversations that she had with the landlord. When the landlord responded to this point, it stated that it had already considered this through the complaints process in April 2019 and added that it would not consider installation of sound proofing as this was not within its policy. It was relevant for the landlord to refer back to its previous response on the issue and, based on evidence seen by this Service, there is no obligation for the landlord to install sound proofing. However, given the resident stated this was contradictory to what she had been informed in the past, it would have been reasonable for the landlord to offer a fuller explanation for its decision to refuse sound proofing.
  3. When the resident made her noise report in February 2020, she advised that the upstairs property had laminate flooring. Based on evidence seen by this Service, the landlord has not demonstrated that it considered this aspect of the resident’s concerns and failed to address it with the upstairs neighbour. Its failure to make efforts to check the floor covering in the property upstairs was inappropriate as its ASB procedure requires staff to do so in cases of ‘everyday’ noise. This meant that the landlord may have lost an opportunity to mitigate the level of noise experienced by the resident.
  4. In summary, although the landlord took appropriate steps to investigate the resident’s reports of noise from above in February 2020, it did not act in accordance with its obligations when two previous reports were made by the resident in August 2019 and November 2019. It also should have offered further explanation to the resident’s related enquiry about sound proofing and investigated her concerns about the type of flooring the upstairs neighbour had installed.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of noise nuisance.

 

 

Reasons

  1. The landlord delayed unreasonably in its handling of the resident’s initial noise nuisance reports during late 2019 and failed to adequately investigate her sound transfer concerns.

Orders

  1. The landlord to write to the resident to apologise for the service failures identified in this report and pay the resident compensation of £100 in recognition of any distress and inconvenience caused to her by the failures.
  2. The landlord to check the floor covering in the upstairs flat, in line with its ASB procedure, and update the resident accordingly; it should advise the resident of a likely timescale if it intends to investigate or take further action in regard to this issue.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

  1. The landlord to offer another appointment to the resident to check the damage to her walls that she states has been caused by the noise and shaking of the building.
  2. The landlord to review its records to establish whether it has previously offered to install sound proofing, advise the resident of the outcome of this review and provide a more detailed explanation as to why it will not install sound proofing to the building.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.