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Optivo (now Southern Housing) (202112884)

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REPORT

COMPLAINT 202112884

Optivo

28 February 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 response to the resident’s reports of:
    1. Excessive noise and anti-social behaviour from a neighbour.
    2. Drainage problems at the rear of the property.
    3. A tree in a neighbouring garden that overhangs the resident’s property.

Background and summary of events

  1. The resident has a secure tenancy, which started on 25 July 2016. The property is a two-bedroom, ground-floor flat within a converted house, and a neighbour lives in the flat above the resident. The property is located in a conservation area.

Noise and anti-social behaviour (ASB)

  1. The resident wrote to the landlord on 22 May 2020 to report noise from the flat above the resident’s property (referred to as ‘the neighbour’ in this report). The main points in the resident’s email were:
    1. The neighbour’s cat was creating noise, and this was affecting the resident’s sleep;
    2. Heavy items were being dropped by the neighbour’s children, who were also making noise by running in the flat;
    3. A member of the neighbour’s household was smoking cannabis and throwing butts in the resident’s garden;
    4. The resident said that the noise issues had existed for three years;
  2. The resident then wrote to the landlord on 7 July 2020 and reiterated that members of the neighbour’s household were regularly making noise by dropping heavy objects and stamping their feet, and the cat was creating noise during the night. The resident pointed out that she and her neighbour had attended mediation “a few years” prior, and the situation had temporarily improved for a while afterwards.
  3. On 12 August 2020, the resident wrote to the landlord again and said she had not received a response to her earlier email. The resident stated that the noise was continuing and that cannabis cigarette butts were still being thrown into her garden. The resident asked for her complaint to be escalated. The landlord responded the following day and confirmed that it would investigate its handling of the ASB reports and provide a formal response by 27 August 2020.
  4. The landlord sent its stage one complaint response on 25 August 2020, in which it apologised for the delay in replying due to staff absence and confirmed the following points:
    1. Letters had been sent to the neighbour in March 2020 regarding the cigarette butts;
    2. A further letter had been sent on 22 May 2020 regarding noise from “children jumping around the property”;
    3. The landlord said it would send photos to the local safer neighbourhood team to examine options such as serving a ‘community protection warning’;
    4. The landlord would contact its community safety partners in the local authority for further assistance, which could result in a possible ‘community trigger’ due to the issue being persistent;
    5. The resident was asked to continue keeping a log of further incidents;
    6. The landlord could not assist the resident with her rehousing request because it did not hold an internal transfer list and therefore could not offer direct assistance;
    7. The landlord concluded that it had followed its ASB policy and procedure and did not have sufficient evidence to support further action or legal proceedings.
  5. The resident contacted the landlord on 21 September 2020 and 12 October 2020 to report that the noise levels from the neighbour were once again an issue and included the cat making noise at night, stamping on the floor and noise from a “squeaky” floorboard. The resident also mentioned that cannabis cigarette butts were still being thrown into her garden.
  6. The resident wrote to the landlord again on 7 and 15 January 2021 to report continued noise from her neighbour, including noise made by the neighbour’s cat and the children running and stamping on the floor. The resident then wrote to the landlord on 17 March 2021 to report that the noise was continuing and a member of the neighbour’s household was discarding cannabis cigarette butts in the resident’s garden. The resident acknowledged that the landlord had suggested mediation, but the neighbour had refused to take part when approached by the mediator.
  7. On 7 May 2021, one of the landlord’s neighbourhood managers and a surveyor visited the property to assess the level of noise transference. Based on the landlord’s notes of the visit, they met with the resident and separately with the neighbour. The landlord’s notes state that the neighbour’s property was found to be fully carpeted with thick carpets, thick underlay and plywood boards fixed above the floorboards to provide a firm base. The landlord confirmed that based on its tests, the sounds were “lower than expected and would not register on any sound recording”. However, it noted some “squeaking” floorboards around the bathroom area. The landlord concluded that “the resident’s reports of noise were not consistent with [the landlord’s] observations”.
  8. The landlord wrote to the resident on 27 May 2021 to confirm the outcome of its visit. The landlord stated that as it had not found evidence of excessive noise, in future, it would only investigate reports of such complaints if corroborated by an independent witness or by evidence from “a partner agency”, such as the police or local authority noise team. The landlord confirmed that it had approached the neighbour regarding potential mediation, but the neighbour had refused. The landlord asked the resident to confirm whether she was still interested in mediation; if so, it would approach the neighbour again about the idea.
  9. The resident wrote to the landlord on 3 June 2021 to question the validity of the tests carried out by the landlord during its visit on 7 May 2021. The resident said that the noise generated during the tests did not reflect the usual noise level. The resident mentioned that she could hear the neighbour’s household members using the WC because it was located above her lounge. The resident also reported the continuing smoking of cannabis in the neighbour’s property.
  10. On 17 June 2021, the landlord sent its final complaint response regarding the noise reports. It reiterated its earlier advice that due to the structure of the building, there would be some noise transference, but that the landlord was satisfied the noise was “day-to-day living” and not ASB. It would, therefore, not be installing soundproofing. The letter advised the resident that if there was evidence of cannabis smoking in her neighbour’s property, the resident should report this to the police as it is a criminal offence. The resident again wrote to the landlord on 3 July 2021 to report the discarding of cannabis cigarette butts in the resident’s garden.
  11. The landlord repeated its position regarding the noise transference in a letter dated 8 July 2021 to the resident’s MP. The letter also reiterated the offer of mediation should the resident wish to consider this option.
  12. Between July and November 2021, the resident and landlord exchanged further correspondence in which the resident expressed her dissatisfaction with the landlord’s decision about the noise, and the landlord repeated its earlier advice that it would not investigate further reports of excessive noise unless corroborated by third-party evidence.

Drainage issues

  1. Following a report of a blocked drain by the resident on 14 April 2020, a drainage contractor attended the property on 15 April 2020. The contractor’s notes indicate that it checked the manhole and found it was clear of blockages. It found that the bath and wash basin wastes were not draining appropriately as they were not venting correctly. The contractor attempted to rectify the fault while on site but was unsuccessful. The contractor, therefore, submitted a quotation on 22 April 2020 to the landlord to excavate the drain inlet and install a new trapped gulley.
  2. On 27 April 2020, the resident wrote to the landlord again regarding blocked drains. The resident stated that she had also written to the landlord the previous year about the same subject. The resident said it had been necessary to contact the landlord about drain blockages on various occasions in the past year, and, in her view, this indicated an underlying problem. The resident mentioned that the nearby overgrown trees might be obstructing the drainage.
  3. The landlord wrote to the resident on 7 July 2020 after she had asked for her drainage complaint to be escalated to the landlord’s review panel (it is unclear from the evidence when the resident submitted the request for the review). The main points in the landlord’s letter were:
    1. The landlord’s Resident Liaison officer and surveyor had visited the property on 24 June 2020 (the visit had been delayed due to covid restrictions). They inspected the outside drain and, as a result, had raised an order for three new leaf guards to be placed on the drains to stop foliage from the neighbouring tree from blocking the drains and for a new two-inch drain pipe to be installed to increase water flow. (The drainage contractor’s records indicate that the three leaf guards were fitted on 10 August 2020).
    2. The landlord also noted issues with the toilet flush not working effectively and said it would arrange for an order to be raised.
    3. The landlord accepted that it had attended previously but that the repairs “seem to have been ineffective”. The landlord apologised for this and offered the resident £350 compensation, which comprised £100 for failure to repair fully, £200 for inconvenience, time and trouble, and £50 for “not progressing through to review panel”.
  4. The drainage contractor attended the property on 13 July 2020. It replaced the gulley cover and adapted the waste pipe to direct water into the gulley pot.
  5. The drainage contractor’s repairs log shows that it attended the property on 5 May 2021 to clean the drain gullies.
  6. During the landlord’s visit to the property on 7 May 2021, the neighbourhood manager and surveyor noted that the neighbour was not responsible for the blockage of the waste pipe. The blockage had been caused by foliage from an overhanging tree, which had then worked its way through to the drains.
  7. On 27 May 2021, the landlord sent its final complaint response to the resident regarding the drainage issues. It advised the resident that foliage from a neighbouring tree had caused blockages to the drainage. The landlord confirmed that its Property Service Team would contact the resident to carry out work to the drainage system.
  8. On 20 October 2021, the resident wrote to the landlord about various issues, including the drainage issues. The resident explained she was unhappy about the number of times it had been necessary for the drainage contractor to visit her property. The landlord responded on the same day and said that the drainage contractor had attended on 5 May 2021 and 7 July 2021, but these visits had been to deal with separate issues.
  9. The resident has confirmed to this Service that the drainage problem was resolved and therefore she has not made any recent complaints about this issue.

The tree in the neighbouring garden

  1. The landlord had noted during the visit to the property on 7 May 2021 that there was an issue with trees from neighbouring properties, one of which was overhanging the property boundary and had dropped “large amounts of foliage/debris on the roof and ground”.
  2. The landlord’s internal notes mention that the resident’s MP had written to the landlord in May 2021 regarding the overhanging tree in the neighbouring garden and, in response, the landlord had confirmed to the MP that it would cut back the overhanging branches as they were touching the roof and gutters of the property.
  3. On 19 October 2021, the resident wrote to the landlord about various issues and reminded the landlord that, as agreed during the visit on 7 May 2021, someone was meant to attend regarding the overhanging trees in neighbouring properties and had not done so.
  4. The landlord responded on 20 October 2021 and said it was awaiting an update from its Estate Services team regarding the pruning of the trees.
  5. The landlord’s repairs log shows an order was raised on 4 November 2021 for a contractor to cut back one of the trees (this was confirmed in the landlord’s letter dated 16 November 2021 sent to the resident).
  6. On 25 November 2021, the contractor wrote to the landlord to say that it had looked at the overhanging sycamore tree in the neighbouring property and it was in a conservation area. Therefore, it had applied to the local authority for permission to cut it back. The contractor mentioned that consent would generally take about eight weeks. The landlord wrote to the resident on 25 November 2021 to confirm its contractor was waiting for permission from the local authority to prune the tree.
  7. The landlord’s records indicate that the sycamore tree, which was touching the roof and gutters of the property, was cut back on 19 January 2022. The resident has confirmed to this Service that the contractor did cut back the tree in question.

Assessment and findings

Noise and ASB

  1. The landlord’s ASB procedure states that noise “from everyday movements, e.g. walking across the floor, cupboard doors being slammed” is not ASB, and it will consider other measures to help, such as checking for adequate floor covers and restrictors to stop doors slamming.
  2. The evidence presented to this Service shows that the resident wrote to the landlord on various occasions during 2020 and 2021 to report that she was being disturbed by noise emanating from the flat above her property. The noise reported by the resident included children running, stamping their feet, dropping objects on the floor and noise made by the cat jumping on the floor and running. The resident also repeatedly reported that a member of her neighbour’s household was smoking cannabis and discarding the cannabis cigarette butts in the resident’s garden.
  3. The resident wrote to the landlord on 12 August 2020 and said the issues had been ongoing for three years. However, this Service has not seen sufficient evidence to investigate the noise reports made before 2020 or the landlord’s response to these earlier reports. This investigation has therefore focussed on the events during 2020 and 2021.
  4. In responding to the resident’s reports of noise, the landlord has advised the resident on various occasions that it did not consider the noise to be ASB. For example, in its letter dated 17 June 2021, the landlord said: “Due to the structure of your building, there will be some form of day-to-day noise transference…From our investigation, we’re satisfied the noise is day-to-day living and not anti-social behaviour”.
  5. Although the landlord’s advice to the resident was in line with its ASB policy, the Ombudsman expects landlords to thoroughly investigate all noise complaints and respond reasonably, as outlined in the Ombudsman’s spotlight report on noise complaints, which was published in October 2022.
  6. In this case, the landlord took the following action to investigate and respond to the resident’s reports of noise:
    1. The landlord wrote to the neighbour on 22 May 2020 about noise from “children jumping around the property”;
    2. The landlord had asked the resident to keep diary sheets of incidents, for example, in its letter dated 25 August 2020;
    3. The landlord had advised the resident to use the noise app to record noise (the resident confirmed in her letter dated 7 January 2021 that the app would not be helpful in her case as she would be forced to wait and listen for the noise to then activate the app);
    4. The landlord had arranged mediation to take place involving the resident and the neighbour, but the mediator had informed the resident on 8 March 2021 that the neighbour had refused to take part (the landlord’s ASB management system indicates that mediation had taken place through an independent mediator in 2019);
    5. The landlord wrote to the resident on 27 May 2021 to ask whether the resident was still interested in mediation; if so, it would be willing to approach the neighbour again. The offer of mediation was repeated in a letter sent by the landlord on 8 July 2021 to the resident’s MP;
    6. The landlord’s neighbourhood manager and surveyor visited the resident and neighbour on 7 May 2021 to assess the level of noise transference and checked whether there were appropriate floor coverings in the upstairs flat;
    7. The landlord gave the resident information about a mutual exchange and other housing options on 27 May 2021.
  7. The landlord acknowledged in its letter dated 25 August 2020 that it had failed to respond in a timely manner to the resident’s email dated 22 May 2020 about noise and ASB. It apologised for this delay and explained that it was due to a staff member being absent. It was appropriate for the landlord to apologise for the delay in responding as it meant the resident had to contact the landlord on 7 July 2020 and 12 August 2020 to request a response.
  8. The resident has requested soundproofing between the flats on various occasions. However, the landlord has refused this request and stated in its letter dated 27 May 2021: “…we consider the sound transference into your home to be very low…we also consider the sound insulation between you and your neighbour’s home to be adequate”. The Ombudsman previously investigated a complaint made by the resident about the lack of soundproofing (201903167) and found that the landlord was not obliged by the terms of the resident’s tenancy agreement or its statutory repairing responsibilities to install soundproofing in the resident’s home. Whilst current Building Regulations require adequate soundproofing between flats, this requirement was introduced in 2003. There is no requirement for properties built or converted before this time to have soundproofing installed because Building Regulations are not retrospective.
  9. On 17 June 2021, the landlord reaffirmed its decision not to install soundproofing. The view of the Ombudsman, taking into account the findings from the previous investigation, is that it remains reasonable for the landlord to refuse to install soundproofing.
  10. Although the landlord’s actions and its replies to the resident’s reports of noise should have been timelier, the landlord’s actions overall were proportionate and reasonable because:
    1. It investigated the level of noise transference between the properties;
    2. It made the neighbour aware of the noise issues by writing to her;
    3. It arranged mediation;
    4. It advised the resident about completing diary sheets, using the noise recording app, and potentially seeking a mutual exchange.
  11. In relation to the reports of cannabis smoking, the landlord’s ASB policy lists “dealing or taking drugs” as an example of behaviour it considers to be anti-social, and the landlord’s website states: “Substance misuse is illegal. Please report it to the police immediately…Once you’ve reported it to them, let us know, including the incident report number and police officer’s name if you know them”.
  12. The resident wrote to the landlord on various occasions during 2020 and 2021 to report that a member of the neighbour’s household was discarding cannabis cigarette butts in the resident’s garden, and sometimes the smell of cannabis would enter the resident’s home. The resident also provided the landlord with photos showing the cannabis cigarette butts in her garden.
  13. In response, the landlord wrote to the resident on 25 August 2020 to confirm that it had sent letters to the neighbour about the cannabis cigarette butts in March 2020. The letter went on to say that it would forward photos of the cigarette butts to the local Safer Neighbourhood Team “to look at options such as serving a community protection warning due to the persistent issue” and that it would contact its community safety partners in the local authority for further assistance. This Service has not seen evidence to indicate the outcome of these referrals.
  14. On 17 June 2021, the landlord wrote to the resident and advised her to contact the police regarding the reports of cannabis smoking, as smoking cannabis is a criminal offence. The landlord asked the resident to forward photographs of the cannabis cigarette butts to the landlord so it could decide on appropriate action. The resident was also asked to notify the landlord of any incidents of cannabis smoking, so that it could consider further action if there was a pattern of incidents in the future.
  15. The evidence does not indicate whether the landlord took any follow-up action regarding the reports of cannabis smoking after its letter of 27 June 2021. However, its advice for the resident to contact the police to report the cannabis smoking was in line with the landlord’s ASB policy. Therefore, it was appropriate for the landlord to recommend this. The use or handling of drugs are criminal matters and would therefore fall within the jurisdiction of the police.

Drainage issues

  1. The landlord’s tenancy agreement with the resident confirms that it is responsible for keeping “in good repair the structure and exterior of the property including…drains, gutters and external pipes”.
  2. The landlord’s repairs policy lists “blocked mains drains, soil pipes or your only toilet” as an emergency repair, which will be made safe within six hours. It goes on to say that if other repairs are needed to complete the job, the landlord will arrange more appointments with the resident “as soon as possible”.
  3. An earlier investigation by the Ombudsman (201903167) found a service failure because the landlord failed to adequately address the resident’s complaint about drain blockages in 2019.
  4. This investigation has found that there were continuing problems with the drains in 2020. On 14 April 2020, the resident contacted the landlord to report blocked drains. A drainage contractor attended the following day and found problems with the venting of the bath and wash basin waste pipes. The contractor could not deal with the issue during the visit and therefore submitted a quotation for further work. Although the landlord’s repair records show that the contractor submitted the quote on 22 April 2020, the contractor did not do the remedial work until 13 July 2020.
  5. The landlord’s initial response to the resident’s report of blocked drains was reasonable, as the contractor attended on the next day (15 April 2020). However, there was a three-month delay before the contractor performed the follow-up work on 13 July 2020. This delay was unreasonable, and it prompted the resident to write to the landlord on 27 April 2020 to enquire further about the blocked drains.
  6. The landlord wrote to the resident on 7 July 2020 and accepted that it had not effectively dealt with the blocked drains. It apologised for this and offered the resident £350 compensation, which was made up of £100 for failure to repair fully, £200 for inconvenience, time and trouble, and £50 for “not progressing through to review panel”. The Ombudsman’s remedies guidance states that financial redress within this range is appropriate in cases where “there was a failure which adversely affected the resident”. The view of this Service is that the landlord’s offer of compensation was proportionate because the resident had to tolerate the blocked drains for an unreasonable time, and she faced the inconvenience of having to chase the landlord about the repair.
  7. The landlord’s repairs log shows that it had to clear the drain gullies on 5 May 2021; however, based on the landlord’s findings from its visit on 7 May 2021, this blockage was due to foliage falling into the drains from an overhanging tree, rather than any drainage design issues. The overhanging tree is considered in more detail below, but the resident has confirmed to this Service that the drainage issues were resolved.

 The tree in the neighbouring garden

  1. Under common law, branches may be pruned from trees and hedges without the owner’s consent if they overhang a neighbouring property. However, this must be done without trespassing on the neighbouring property. The Government’s website states: “You can trim branches or roots that cross into your property from a neighbour’s property or a public road…[however]…if you live in a conservation area, or the trees in the hedge are protected by a ‘tree preservation order’, you might need your council’s permission to trim them”.
  2. The landlord’s internal notes indicate that the resident’s MP had written to the landlord in May 2021 regarding an overhanging tree in the neighbouring garden. In response, the landlord had informed the MP that it would cut back the branches as they were touching the roof and gutters of the property. Also, the landlord had noted during a visit to the property on 7 May 2021 that the tree in question had dropped large amounts of foliage, and on 27 May 2021, the landlord wrote to the resident to confirm that this foliage had caused a blockage in the guttering and drains.
  3. The evidence seen by this Service indicates that the landlord did not cut back the tree following its visit and letter in May 2021. Therefore, the resident wrote to the landlord on 19 October 2021 to say that no one had attended to cut back the tree. The landlord responded the following day to say it was awaiting an update from its Estate Services team. The landlord’s repairs log indicates that it raised an order to cut back the tree on 4 November 2021. However, the contractor subsequently informed the landlord that it would need permission from the local authority before pruning the tree because it was in a conservation area.
  4. The landlord’s repairs log indicates that the tree was cut back on 19 January 2022, and the resident has confirmed to this Service that the tree was indeed pruned. Therefore, from 7 May 2021, the work took over eight months to be carried out. The evidence indicates that much of the delay occurred before the landlord raised the works order in November 2021 for a specialist contractor to cut back the tree. Even allowing for the process of obtaining permission from the local authority, which the contractor estimated at eight weeks, the time taken before the work was carried out was excessive.
  5. The landlord’s tree management policy states that it has a statutory duty to ensure (so far as is reasonably practicable) users, visitors or trespassers on its land are safe from trees causing damage to property. In this case, it was established that branches from the tree were resting on the property’s roof, causing guttering and drain blockages. While this Service has not seen any evidence that the foliage from the tree caused further blockages of the drains following the drainage contractor’s visit in July 2021, the landlord’s failure to prune the tree caused the resident some anxiety as she wrote to the landlord about the tree in October 2021. It was, therefore, unreasonable of the landlord to have delayed arranging for the tree to be pruned.
  6. The landlord’s compensation policy states that if repairs are not completed within agreed timescales, residents may be paid a £10 one-off payment plus a maximum of £50 depending on the number of days the repair is outstanding. However, given that the tree works were outstanding for over eight months, the view of this Service is that an offer of £150 would be proportionate financial redress for the resident. This level of compensation is in line with the Ombudsman’s remedies guidance for cases where there has been a service failure, which the landlord did not appropriately acknowledge and/or put right.
  7. The Ombudsman knows that the resident has reported other trees in neighbouring properties that require pruning. However, during the complaints process, the landlord had only considered the sycamore tree that was resting on the roof and gutters of the property. Therefore, a recommendation has been included in this report for the landlord to consider pruning the other trees in neighbouring gardens that are overhanging the property boundary. The resident has the option to submit a separate complaint to the landlord about these trees if she remains dissatisfied with the landlord’s response.

 

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of excessive noise and anti-social behaviour from a neighbour.
  2. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in relation to the resident’s reports of drainage problems at the rear of the property.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of a tree in a neighbouring garden overhanging the resident’s property.

Reasons

  1. The landlord’s actions and its replies to the resident’s reports of noise and ASB were proportionate and reasonable because it investigated the level of noise transference between the properties, made the neighbour aware of the noise issues by writing to her, arranged mediation and provided the resident with advice about diary sheets, the noise app and a mutual exchange. The landlord also advised the resident to report the cannabis smoking to the police, which was appropriate.
  2. The landlord unreasonably delayed the work to unblock the drains. However, it apologised for this and offered the resident reasonable financial redress to recognise the delay.
  3. The landlord took an excessive period of time to prune the tree that was affecting the roof and gutters of the property, and the landlord did not appropriately acknowledge this delay, nor offer financial redress to the resident in line with its compensation policy.

Orders

  1. The landlord is ordered within four weeks of this report to:
    1. Pay the resident £150 compensation for the delay in pruning the tree that was overhanging the property boundary.
    2. Write to the resident to apologise for the delay in pruning the tree.

Recommendation

  1. The landlord should consider pruning other trees in neighbouring gardens that are overhanging the property boundary.