The Guinness Partnership Limited (202207616)

REPORT

COMPLAINT 202207616

Guinness Housing Association Limited

19 October 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:
   1. The landlord’s handling of reported noise disturbances from the building’s water pumps.
   2. The associated complaint.

Background

2. The resident was an assured tenant of a flat. The resident rented the flat from the landlord, which is a housing association. The landlord is a leaseholder, and the freeholder of the building is a different organisation from the landlord. The building is managed by a management agent which was appointed by the freeholder. Throughout this report, the resident’s housing association will be referred to as ‘the landlord’ and the freeholder’s management agent will be referred to as “the management agent”.
3. The resident has said he has been reported noise disturbances in the building since the start of his tenancy in 2015. The noise was coming from the water pump room, which was tested in February 2016. A sound insulation and noise impact report commissioned by the building warranty provide, NHBC stated the noise from the room was within the tolerances set by the Building Regulations 2010. The report noted any noise was likely to have more of a direct impact on the resident’s home due to the proximity to the pump room.
4. The landlord stated its surveyor had also identified a need to isolate the pumps and pipework away from the structure to reduce any noise, following its own inspection around 2020.
5. In March 2020 and October 2020, the landlord’s internal records referred to the resident continuously reporting noise disturbances at the property and getting frustrated with the situation.
6. The resident contacted the landlord again on 12 April 2021 regarding the on-going issue of noise disturbances in the property. He wanted a decision on whether the landlord would provide compensation in the form of 2 months rent as a goodwill gesture for the length of time the noise issues had been going on for and for how the landlord had handled the matter.
7. On 22 April 2021 the resident logged a complaint with the landlord about the stress and inconvenience caused by the vibrational noise from the water pump, which was housed directly below the resident’s home. He referred to previously submitting a complaint on 7 April 2021 and being advised to log another complaint, which he was not happy about. The resident advised that despite several years of reports the landlord had missed opportunities to put the issue right and he intended to move home. He advised the landlord failed to rectify the issue with the building’s management agent and did not follow through on the legal threats it previously had sent. The landlord had also missed the opportunity to claim from the National House Building Council (NHBC) and did not take any action when the developer of the building had offered to pay for half of the repairs. The resident felt the landlord should have taken the developer to the tribunal.
8. The resident advised he had only recently had members of staff from the landlord visit the property to assess what works were required but nothing further had happened. The resident stated the landlord was responsible for failing to resolve the noise disturbances and due to this he was unable to buy the flat. He stated the landlord’s lack of action caused him considerable stress, which had led to him having to take medication. The resident advised the landlord had told him that only residents could become directors of the estate, but the management agent had become directors. He stated this was done in order to block any works that needed to be done. The resident felt this was a clear conflict of interest, which the landlord’s legal team was supposed to look into but nothing had been done. As a resolution the resident wanted the landlord to provide him with compensation as a goodwill gesture, so that he could move out with minimal disruption.
9. The landlord responded to the stage 1 complaint on 8 June 2021. The landlord outlined the results from the NHBC sound insulation and noise impact report and the inspection carried out by its surveyor. The landlord advised it would be the responsibility of the management agent to carry out the works identified by the surveyor. It apologised for the delays the resident experienced and offered the resident £100 as a goodwill gesture. The landlord advised the resident would need to report his concerns about the noise to the management agent.
10. The resident asked for his complaint to be escalated on the same date. He stated the landlord had misunderstood the complaint and noise report and it had failed to investigate the hundreds of emails with substantial evidence the resident had. The resident said the NHBC report had found that the noise levels were excessive and had identified where the noise had travelled. He advised the sound test was completely different and had not used the same frequency as the water pumps. The resident stated the landlord’s failure in resolving the issue had led to a degradation in his quality of life and the landlord had failed to address its legal responsibility to ensure there was proper maintenance of the water pump room.
11. The resident reiterated that there was a conflict of interest because the landlord had allowed the management agent to become directors of the estate, and it had not taken any of the legal action it had threatened against it. He advised his contract was with the landlord and not the management agent, therefore it was the landlord’s responsibility to liaise with it. The resident stated he was told by the surveyor that there would either be isolation soundproofing installed or the landlord would speak to the management agent about its promise to replace the water pumps but neither had happened. The resident stated the landlord’s goodwill gesture was insulting. The resident subsequently moved out of the property in June 2021.
12. On 29 November 2021 the landlord provided the resident with a stage 2 complaint response. It reiterated the findings from the sound insulation and noise impact report and its surveyor’s report. The landlord agreed it could have communicated with the resident in a timelier manner. The landlord advised that it did not consider making a claim under the NHBC warranty to get the recommended works to reduce the noise transfer completed and it should have looked into this. The landlord stated the resident should not have been asked to contact the management agent because the matter was for the landlord to deal with. The landlord advised the time taken to investigate the resident’s complaint at stage 2 had not met its timeframes. The landlord offered the resident £700 as a gesture of goodwill and advised it had made the following changes based on its learnings from the resident’s complaint:
    1. Improvements into the way in which the landlord dealt with any sound transfer issues such as the one the resident had raised.
    2. The landlord would deal with all management agents, and this was not for a resident to do.
    3. The landlord to monitor the independent investigator more closely.
13. The resident contacted the Ombudsman because he was unhappy with the landlord’s inaction in relation to the reported noise disturbances. The resident felt the compensation offered by the landlord was not adequate. As a resolution the resident wanted compensation for the damage to his mental health and the noise disturbances he suffered with for over 11 years.

Assessment and findings

14. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
    1. be fair – treat people fairly and follow fair processes;
    2. put things right, and;
    3. learn from outcomes.
15. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation

16. The resident has stated that living with continuous noise disturbances had impacted his quality of life and mental health, causing severe depression. The Ombudsman does not doubt the resident’s comments about the impacts on his health and we can appreciate that it would have been a very difficult time for him. However, we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Therefore, we cannot determine whether there was a direct link between the landlords handling of the reported noise disturbances and problems with the resident’s health. This would be more appropriately dealt with as a personal injury claim through the courts or liability insurance. The courts can call on medical experts and make legally binding judgements. The Services’ decision not to consider this aspect of the resident’s complaint is within accordance of paragraph 42(g) of the Housing Ombudsman Scheme (the Scheme), which says “the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. The Service has considered the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to the concerns he raised about his health.
17. The resident explained he had been reporting the noise disturbances to the landlord over a substantial period of time, since before he became a tenant in 2015. Whilst the historic reporting gives context to the complaint, this investigation has primarily considered the landlord’s actions which took place from around a year prior to the complaint being raised in April 2021. The Ombudsman has made reference to the 2016 NHBC sound insulation and noise impact report because the report was referred to by both the resident and the landlord throughout the complaints process. However, the Ombudsman has not considered the landlord’s handling of the reported noise disturbances prior to March 2020. As per paragraph 42(c) of the Scheme, the Ombudsman may not consider complaints which were not brought to the attention of the member (landlord) as a formal complaint within a reasonable period which would normally be within six months of the matters arising.

Policies

18. The landlord’s compensation policy states where it is not at fault, the landlord may offer a goodwill gesture in the form of a discretionary financial payment, in recognition of any shortcomings in the way it has delivered its service. The landlord can award compensation from £700 for circumstances where the issue took a long time to resolve and resulted in significant inconvenience and had a significant impact on the resident, which was likely to have caused longer-term distress.
19. The landlord’s complaints policy states it will acknowledge a complaint within 2 working days. The landlord will aim to provide a stage 1 response within 10 working days and a stage 2 response within 20 working days of receiving an escalation request.

The landlords handling of reported noise disturbances from the building’s water pumps

20. The landlord’s internal records in 2020 refer to the resident continuously contacting it about the noise disturbances. Its records also show that the landlord was actively investigating the possible actions it could take to help resolve the issue. The Ombudsman has not seen any evidence showing that the landlord had been proactively updating the resident during this period. Given the length of time the noise issue had been reported for and the resident’s chasing for information, the landlord should have been more proactive in keeping the resident updated on its actions. This may have helped to reassure the resident that not only was the landlord taking his reports seriously, but it was also actively seeking the steps it could take to try and resolve the issue. It is a concern that the landlord failed to address the matter at an earlier stage when there was every opportunity to do so.
21. The landlord should have been very clear to the resident throughout, on the limitations it had in resolving the noise issue as a leaseholder. Although it is the resident’s landlord, it was not the landlord’s responsibility as a leaseholder to carry out works to resolve the noise disturbances, which would lay with the management agent and the freeholder. It appears the landlord had explored options of works it could carry out within the resident’s home to resolve the noise issue, such as sound proofing, but it did not carry out any works. In order to manage the resident’s expectations, the landlord should have explained to the resident why it was not responsible for resolving the noise issues in the first instance.
22. The landlord has not provided any evidence to demonstrate that it was actively pursuing the management agent or the freeholder to resolve the noise disturbances. The Ombudsman is not in the position to determine if the noise disturbances would have been resolved had the landlord pursued legal action. There is no guarantee that the outcome would not have been the same and any legal action may have taken months or years to go to court. However, the landlord should have advised the resident on its legal position at a much earlier stage, this may have prevented the resident from needing to continuously contact the landlord for an answer, which would have been frustrating and inconvenient for the resident. The landlord should clearly outline its approach when it comes to escalating performance concerns with managing agents and freeholders. The landlord should also be very clear on what point it would consider legal enforcement of lease terms and the likely timescales involved in legal action.
23. NHBC is a warranty provider for new homes. There is a 2 year builder warranty period to cover defects that are not general wear and tear or maintenance issues.  NHBC also provides further insurance under its Buildmark cover for the following eight years if there is damage to the home because the builder failed to build certain parts of the home to legal building requirements as set out in national building regulations. The resident has argued that the landlord missed an opportunity to contact NHBC during the 10 years after the property was built in order to progress a claim. The landlord is not the freeholder and therefore it could not progress a claim with NHBC without permission from the freeholder as NHBC would need access to areas of the building the freeholder was responsible for. However the landlord has acknowledged that it should have attempted to make a claim. The Ombudsman cannot comment on the outcome of an NHBC claim and we do not know whether the landlord would have been able to progress a claim but it would have been reasonable for the landlord to have explained its position on this in response to the resident’s complaint point. The fact that it did not do so would have caused inconvenience and this is taken into account when assessing the landlord’s compensation offer.
24. It is clear from the landlord’s records that it was not sure of its position and responsibilities in relation to the reported noise disturbances. It appears this may have contributed to the landlord’s inaction and its failure to keep the resident regularly updated. The landlord identified its failings and outlined in its stage 2 response the actions it would take to help to reduce any confusion and delays when dealing with these types of issues in the future. This included how the landlord would deal with management agents and the monitoring of independent investigations. This is in line with the learnings and actions the Ombudsman would have expected the landlord to have taken from the failings it had identified and its delays in dealing with the reported noise disturbances.
25. The landlord acknowledged its service failings in communication with the resident and the inconvenience it had caused. It offered the resident a total of £700 as a goodwill gesture in recognition of these failures and to put the issue right. The Ombudsman finds the amount of compensation offered as part of the overall complaint is sufficient to provide the resident with reasonable redress for the landlord’s failings. This is in line with the Ombudsman’s remedies guidance (published on our website) which recommends compensation between £600 – £1000 is awarded in recognition of service failures which had a significant impact on the resident. The landlord’s offer of compensation is reasonable as it is in line with what the Ombudsman would have ordered if the landlord had not made an offer. Therefore, the landlord does not need to do anything further regarding this aspect of the complaint.

Complaint Handling

26. The landlord failed to respond to the resident’s complaint in accordance with the timescales set out in its complaints policy and the Ombudsman’s Complaint Handling Code (the code) which sets out our expectations of landlords’ complaints handling practices. It provided the resident with a stage 1 response after 31 working days and did not provide a stage 2 (final) complaint response until 29 November 2021, 124 working days after the resident had asked for his complaint to be escalated, which was not a reasonable timeframe. The lack of communication and delay would have significantly inconvenienced the resident because he was left without a response or an update for sustained periods of time, while the issue was on-going.
27. The landlord should have been clearer in its complaint responses to the resident and provided explanations for the failings it had identified, such as the length of time taken to respond to the resident and the incorrect information it had provided. In both responses the landlord failed to explain why it had not pursued legal action with the management agent. The landlord should have ensured that it fully explained its decisions and referenced all the evidence it had considered in its responses. This would have provided some clarity to the resident on the landlord’s position.
28. The landlord failed to address the resident’s complaint point about the management agent becoming directors of the estate, despite the resident raising this in both his initial complaint and escalation request. The code sets out that landlords are expected to provide full responses to complaints. It states, ‘landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate’. The landlord should have ensured that it fully addressed all of the complaint issues raised in its response. This would have shown that the landlord had investigated all aspects of the resident’s complaint. The landlord also failed to adequately explain why it took so long to provide the resident with a stage 2 response.
29. Overall, the landlord demonstrated poor complaint handling throughout and did not follow its complaints process or the code. As previously explained, the £700 goodwill gesture offered by the landlord was reasonable and falls within the range of compensation that the Ombudsman would have ordered to put the issue right, including the errors in the landlord’s complaint handling. Therefore, the landlord does not need to do anything further regarding this complaint.

Determination

30. In accordance with paragraph 53 (b) of the Scheme, the landlord has offered redress to the resident in relation to its handling of reported noise disturbances from the building’s water pumps prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
31. In accordance with paragraph 53 (b) of the Scheme, the landlord has offered redress to the resident in relation to its complaint handling prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendation

32. If it has not done so already, the Ombudsman recommends the landlord’s senior management review the Ombudsman’s spotlight report on Landlords’ engagement with private freeholders and managing agents (published on our website in March 2022), which outlines a number of recommendations and actions landlords should consider taking when dealing with freeholders and management agents.