Vivid Housing Limited (202307445)

REPORT

COMPLAINT 202307445

Vivid Housing Limited

18 March 2024

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

The complaint is about the landlord’s handling of the resident’s report of ongoing noise.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a leaseholder of the property (flat A), which is a second floor 1 bedroom flat. The landlord is a housing association, which owns the freehold of the building.
The resident contacted the landlord on 14 December 2022 reporting that her and the neighbour in the flat directly below (flat B) were frequently being kept awake at night (between 10pm and 11pm) or woken early in the morning (between 5am and 6am) by a noisy fan or boiler from a neighbouring flat (flat C) which shared an adjoining wall.
The landlord responded on 15 December 2022 suggesting the resident put notes through her neighbour’s door in the first instance and contact it again if the noise continued. The resident contacted the landlord again on 3 January 2023 saying she had placed a note through the neighbour’s door as suggested and had received a letter back from the neighbour saying she was harassing them. She therefore wanted the landlord to take action instead so the neighbour could not accuse her of any further harassment.
The landlord asked the resident on 5 January 2023 to provide a recording of the noise so it could analyse this. The resident said she had previously recorded it on her mobile phone but it did not capture the noise well, and she asked if the landlord could provide sound recording equipment. She said it was buzzing sounds and she suspected it was coming from pipes. She said there were two distinct noises as though the first was caused by the tap turning on and the second by the water heating up and running.
The landlord and resident spoke on 9 January 2023, when the resident confirmed she had raised a case with the local authority’s environmental health department. The landlord said it would speak to the residents whose flats shared the adjoining wall and raise a job for a plumber to investigate the noise.
The landlord told the resident on 20 January 2023 that it had arranged for works to be completed that day in flat C. It asked her to contact it again if the noise remained an issue. The resident contacted the landlord on 25 January 2023 and confirmed she could still hear the noise.
Between 25 January 2023 and 19 May 2023, the landlord:
1. Visited the neighbour in flat C. During the visit, it tested different appliances including taps and the bathroom fan, but it was unable to hear any noises.
2. Contacted the environmental health department, which said the resident had not submitted any further details or evidence since opening the case. The environmental health department told the landlord the resident could contact them to reopen the case. The landlord passed this information onto the resident on 3 April 2023. It also told the resident environmental health officers worked outside of normal working hours, so could potentially attend the property in the night time or early morning hours when the resident said the noise occurred.
3. Emailed the resident on 11 April 2023 asking when it would be convenient for it to complete a home visit.
4. Asked the resident to send incident logs for when the noise occurred.
The resident raised a complaint by telephone on 24 May 2023. She said:
1. The “noisy pipework” had been ongoing since 2019.
2. She wanted a plan of the pipework to identify where the noise was coming from.
3. She was not making any progress with the environmental health department.
4. She wanted the landlord to attend the property to investigate.
On 25 May 2023, the landlord raised jobs for a plumber to inspect the pipework and for a heating engineer to check the boiler for any noises. The resident emailed the landlord on 30 May 2023 saying she had not been informed the plumber was due to attend that day. She had therefore missed the plumber, and found a note from him when she returned home.
The resident emailed the landlord on 4 June 2023 stating the buzzing noises had become louder since the new neighbour at the other flat (flat D) had moved in. She said the walls appeared to be very thin, as she would hear the neighbour in flat D getting out of bed and the buzzing noise would commence shortly after this.
The landlord sent its stage 1 response by email on 9 June 2023. It said:
1. The building was Grade II listed and, under the terms of the lease, the resident was responsible for all pipes, drains and wires which were in her home.
2. As a gesture of goodwill, it would send a plumber to inspect the pipework in her flat and in flat B.
3. It had found no failure in its services so it did not uphold the complaint.
4. The resident could contact it to discuss the next steps if she was dissatisfied with the response.
The resident submitted a stage 2 escalation request by telephone on 12 June 2023. She said:
1. The stage 1 response was not thorough and the landlord had not visited her at the property.
2. The landlord had not kept a promise it made to check the insulation in the walls.
3. The pipes were not from her flat, or a neighbouring flat. Instead, they were integral to the building and fell under the landlord’s responsibility. She did not accept the landlord’s offer to send a plumber was a “goodwill gesture” because the landlord had a responsibility to investigate.
The landlord arranged for a plumber to attend at 8am on 20 June 2023 because the resident needed to leave home by 10am. However, the plumber did not arrive until later that day, which meant the resident was out.
The plumber attended again on 28 June 2023 when the resident was home. He also went inside flat B on the same visit. The resident told the landlord the plumber had identified a few possible causes for the noise. She said he had told her he would need to speak to the residents of flats C and D and inspect both these flats to investigate further. The resident asked if the landlord could write to these flats to gain entry. She also asked for an update on her complaint.
The landlord sent its stage 2 response by email on 14 July 2023. It said:
1. It was doing everything it reasonably could to help the resident.
2. In line with the lease agreement, the landlord was only responsible for maintaining the exterior of the building and communal areas. She was responsible for “all pipes, drains and wires which are in the premises”.
3. It was unable to provide sound recording equipment as it did not have access to this.
4. As the leaseholder, she would need to arrange for a survey to be conducted on the walls within her home to identify if the insulation was insufficient.
5. It would send a letter to the residents of the other affected flats to request access. However, this would not guarantee that access would be granted and it would be unable to provide a timescale, or disclose which neighbours allowed or refused access.
6. The resident had the right to approach this Service with the matter if she remained dissatisfied.
The resident duly made her complaint to this Service on 7 August 2023.

Assessment and findings

The landlord’s handling of the resident’s report of ongoing noise

In its complaint responses, the landlord has pointed to section 3(3)a of the lease agreement to explain why the resident is responsible for any issues with the pipework. This part of the lease says the resident is responsible for keeping “all pipes, drains and wires which are in the Premises and are enjoyed or used only for the Premises and not for other premises in the Building…in good and substantial repair and condition”.
While section 3(3)a of the lease agreement says the resident is responsible for any pipes which exclusively serve her flat, no party currently knows where the noise is coming from. Therefore, the relevance of this clause of the lease to the situation has not yet been established.
Section 5(3)a(ii) of the lease says the landlord is responsible for “the pipes, sewers, drains, wires, cisterns and tanks…in, under and upon the Building (except such as serve exclusively an individual flat in the Building)”. This confirms the landlord is responsible for any pipes that serve communal areas or more than 1 flat.
There is insufficient evidence to conclude that the problematic noise is coming from a pipe, although this is a possibility. Until the source of the noise is identified, it is not possible to conclude whether the landlord or resident is responsible for fixing this. Accordingly, the Ombudsman considers that the landlord came to the conclusion it was not responsible prematurely.
In this situation, looking at what is fair in all the circumstances of the case, the Ombudsman’s view is that the landlord is best placed to, and should, carry out the initial investigation into the noise. This is because:
1. The landlord has access to the communal areas where the problem might originate.
2. The landlord has reserved access via lease or tenancy agreements to the resident and neighbours’ homes.
3. The landlord should have access to the relevant plans and records for the building.
4. The landlord should have access to the relevant expertise necessary to identify the noise.
5. The landlord should have contact details for all occupants of the building and relevant data sharing and protection protocols.
It is acknowledged that the landlord has tried to discover the source of the noise, without success. However, there have been failings in how the landlord has gone about it.
After the resident told the landlord on 25 January 2023 that the noise was persisting after the repair in flat C, the landlord acknowledged this and told her the caseworker would contact her the following week. However, we have seen no evidence the landlord contacted the resident. The resident had to contact the landlord again on 23 February 2023 for an update, after which the landlord contacted her on 27 February 2023.
On 25 May 2023, the landlord told the resident it would raise an appointment for a heating engineer to check her boiler. However, the landlord later decided against sending a heating engineer because the boiler was the responsibility of the resident as the leaseholder. This was correct, but the landlord should have known this before misadvising the resident about its intention to send a heating engineer.
The landlord failed to tell the resident of the appointment with the plumber on 25 May 2023. This resulted in the resident not being home when the plumber attended on 30 May 2023.
The landlord told the resident a plumber would attend at 8am on 20 June 2023. It failed to “lock down” the appointed time of 8am when scheduling the appointment on its system, which meant the appointment was not scheduled for a specific time and the plumber attended after the resident had left for work.
We have seen no evidence the landlord considered paragraph 60 of its compensation policy for this failed appointment, which says it “may compensate customers a standard £30 recognition payment where our staff or contractors fail to attend an appointment without notice”.
In its stage 2 response, the landlord said it would send letters to all the relevant flats requesting entry to investigate the fault further. We have not seen evidence to confirm if the landlord completed this. Based on the repair log notes from July 2023 to date, and the discussion we had with the resident during our investigation, there has been no further progress made in the investigation since the stage 2 response.
Due to the misinformation the landlord has provided to the resident on some occasions and the unnecessary delays caused by appointments not being arranged correctly, the Ombudsman finds service failure in the landlord’s handling of the resident’s report of the ongoing noise.

Complaint handling

Under section 5 of the Ombudsman’s Complaint Handling Code (the Code), landlords are required to respond to stage 1 complaints within 10 working days of the complaint being logged. They must respond to stage 2 complaints within 20 working days of the resident’s request to escalate the complaint. Landlords can add 10 working days to each of these stages, as long as they contact the resident with an explanation of the delay and a new date for a response. These timescales are included under sections 4.10 and 4.28 of the landlord’s complaint procedure.
The landlord was 1 day late issuing its stage 1 response and 4 days late issuing its stage 2 response. We have seen no evidence to show the landlord contacted the resident to explain why there would be delays or to agree extensions.
Section 5.6 of the Code states landlord must “address all points raised in the complaint and provide clear reasons for any decisions”. The landlord did not address the resident’s claim in her initial complaint that the noise had been an issue since 2019. This Service has seen no evidence of noise reports dating back to 2019, but the landlord should have responded to this. It also did not respond to the resident’s request for a plan of the pipework. In its stage 2 response, the landlord did not respond to the resident’s claim that it had promised to check the insulation in the walls.
Section 5.8 of the Code says the landlord must provide certain information in its stage 1 responses “in writing…in clear, plain language”, including “details of how to escalate the matter to stage 2 if the resident is not satisfied with the answer”. In its stage 1 letter, the landlord wrote “should you feel that your complaint has not been answered, please contact us so we can discuss the next steps”. This was not a clear instruction about how the resident could formally escalate the complaint.
Due to the delays and the failure to address all points raised, the Ombudsman finds service failure in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s:
1. Handling of the resident’s report of ongoing noise.
2. Complaint handling.

Orders

It is ordered that, within 4 weeks of the date of this report, the landlord provides the resident with a payment of £200. This comprises:
1. £100 for the failings identified in the landlord’s investigation of the noise reports, and the resulting impact on the resident.
2. £100 for the complaint handling failings identified, and the resulting impact on the resident.
It is ordered that, within 8 weeks of the date of this report, the landlord liaises with all relevant parties to have its surveyor or other suitably qualified staff inspect all relevant properties and communal areas to determine the source of the noise.
It is ordered that, if the source of the noise has been identified as the landlord’s responsibility, the landlord takes reasonable measures to eliminate the noise within 8 weeks of the inspection.