Westminster City Council (202219727)

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REPORT

COMPLAINT 202219727

Westminster City Council

28 September 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:
    1. Response to the resident’s reports of noise.
    2. Handling of the associated complaint.

Scope of investigation

  1. Paragraph 42(c) of the Housing Ombudsman Scheme states that the Ombudsman may not investigate 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 6 months of the matters arising.
  2. The resident said that she had experienced the banging noise from above intermittently for 2 years. In accordance with paragraph 42(c) of the Scheme, above, a determination will only be made on events from October 2021 onwards; this being 6 months prior to the resident raising her formal complaint to the landlord on 24 April 2022.
  3. To resolve her complaint, the resident said that she wanted the landlord to pay compensation in proportion to the detriment she experienced. She reported that the banging noise caused her to lose sleep and negatively impacted her pre-existing health condition.
  4. Paragraph 42(g) of the Housing Scheme states that the Ombudsman may 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, other tribunal or procedure.
  5. It is outside the remit and authority of the Ombudsman to determine whether there was a direct link between any action, or lack of action, by the landlord and any subsequent detriment to the resident’s health. If the resident considers that her health has been negatively affected by the landlord’s actions or lack of action then she may wish to seek independent legal advice on pursuing the matter through a personal injury insurance claim or making a claim through the courts.
  6. This investigation will, however, consider whether the landlord responded appropriately to the resident’s reports of noise and paid due regard to any vulnerability she reported.

Background

  1. The resident is the tenant of the landlord and occupies a flat within a block (the property). She raised a stage 1 complaint with the landlord on 24 April 2022 about “constantly hearing banging from the roof” which appeared to be a broken door or window in the boiler room. The resident said that she had reported the issue several times over the past 1 to 2 years, it would be repaired and then the noise would reoccur. The resident advised that she had contacted the landlord about the noise 3 times in the last 3 days, but it had not yet carried out a repair. She said the noise was preventing her from sleeping, and this was having a negative impact on her long-term health condition.
  2. The landlord issued its stage 1 response to the resident on 23 May 2022, which confirmed that there was a loose doorframe at the location she specified. It said that the repair was now completed and it had provided its surveyor’s contact details to report the issue if it reoccurred. The landlord apologised for the delay in completing the repair.
  3. The resident escalated her complaint with the landlord to the final stage on 4 June 2022. She reported that the noise persisted and continued to affect her sleep and health. The landlord issued its final response to the resident on 12 September 2022, in which it asserted that no more repairs were required. The landlord attributed the cause of the noise to the door being left open or unsecured following visits by engineers carrying out works to the roof or aerials. It asked the resident to report any further occurrences of the noise so that it could inspect. The landlord apologised for the delay in responding to the complaint, and its lack of communication about the handling of the noise. It offered the resident compensation of £25 for this, and £20 for its late complaint response.
  4. The resident informed the Ombudsman on 3 February 2023 that she remained dissatisfied with the landlord’s response, and to resolve her complaint she wanted it to provide her with compensation proportionate to the impact on her.
  5. On 15 June 2023, the landlord wrote to the resident to provide a revised offer of compensation. It re-offered £25 for its communication, and increased its compensation offer for the handling of the complaint to £100.

Assessment and findings

The landlord’s response to the resident’s reports of noise

  1. When a landlord receives a report of noise stemming from a repair issue, the Ombudsman would expect it take reasonable steps to satisfy itself of the cause of the noise and what remedial work may be necessary to resolve this. It would be expected to inspect the reported defect and it is reasonable for a landlord to rely on the opinions of its appropriately qualified staff and contractors in deciding how to progress the matter.
  2. In this case, the landlord said in both of its complaint responses that it originally inspected the issue on 29 April 2022, which identified that a loose door frame was causing the noise, and that this was subsequently repaired. In its final stage response, it said that it carried out a further inspection which found no evidence that a defect with the door was causing the continued noise.
  3. The evidence submitted by the landlord to the Ombudsman has not been consistent with the account of events relayed in its complaint responses. There was no evidence of its inspection of the issue on 29 April 2022, and its repair records do not show any work to carry out a “permanent” repair between its reported inspection and its stage 1 response. The landlord’s repair records showed that, after the resident’s report of the banging door from the roof on 21 April 2022, a repair was only recorded on 27 September 2022, when it fitted a bolt to secure the door.
  4. After the resident’s escalation of the complaint on 4 June 2022, there was evidence of the landlord investigating the matter on 27 July 2022, when a surveyor’s visit to the property was arranged. However, there was no evidence that the arranged visit took place, nor of a surveyor’s report to confirm the findings of the inspection. It is therefore unclear how the landlord arrived at its conclusion, in its final stage response, that there was no further repair work required.
  5. Where evidence of the landlord’s actions is absent, the Ombudsman cannot conclude that an event or action took place. Given the lack of evidence provided to support the landlord’s account of events in its complaint responses, it cannot be confirmed that the landlord took reasonable steps to investigate and resolve the noise.
  6. This indicates that either the events did not take place, or that there was a record-keeping failure by the landlord. A landlord would be expected to keep clear, robust and easily-accessible records of its repairs. This is to provide an audit trail in event that a dispute arises and to provide evidence that it has acted appropriately. In either event, it is not possible for the Ombudsman to determine that the landlord acted reasonably and in line with its obligations.
  7. Keeping clear records also enables a landlord to communicate with the resident to update them on the progress of their repair reports, and aid in managing their expectations. As there was no evidence that the landlord took timely and appropriate steps to investigate the resident’s reports, it can only be concluded that it failed to respond reasonably to the resident’s report of noise from above her property. This was a particular failure given that she reported that the noise was having a detrimental effect on her health condition.
  8. The landlord’s final stage complaint response reasonably acknowledged that it had not communicated effectively with the resident about her reports. However, given that there was insufficient evidence of it taking timely action to resolve the resident’s complaint, the compensation it offered of £25 for its poor communication, did not adequately address its failings. To recognise the detriment experienced by the resident in expending excess time and effort in pursuing the complaint, further compensation should be paid to her.
  9. When the Ombudsman considers awards of compensation, it should be clarified that the purpose of this is not to award ‘damages’ in the way a court might. Nor is it to intended to replace awards which may be paid in a personal injury insurance claim. The Ombudsman awards compensation to proportionately recognise any distress and inconvenience experienced by a resident as a result of any failure exhibited by the landlord.
  10. The resident informed the Ombudsman on 27 November 2022 that the noise no longer persisted and the door had been fixed. As the landlord’s repair records showed that the bolt to secure the door was not installed until 27 September 2022, this meant that the resident likely experienced the persistence of the noise for 5 months since her report of the issue on 21 April 2022. To recognise the distress and inconvenience experienced by the resident during this time, the landlord should pay the resident compensation of £200.
  11. The award of £200 is inclusive of the £25 the landlord previously offered the resident, and is in accordance with the Ombudsman’s remedies guidance, available to view online. This guidance provides for awards of compensation between £100 and £600 where there has been a failure by the landlord over a period of time that led to detriment for the resident, but which may not have had a permanent impact on her.

The landlord’s handling of the associated complaint

  1. The landlord’s complaints policy provides for a 2-stage internal complaints procedure. At both stages of this, the landlord should provide its formal responses to the resident within 10 working days. If it will exceed these timeframes, the policy sets out that the landlord should provide a holding response to the resident which explains the reason for the delay and includes an updated response date.
  2. The Ombudsman’s Complaint Handling Code (the Code), which all member landlords are required to adhere to, sets out that a landlord should provide a stage 1 complaint response within 10 working days, and a final complaint response within 20 working days. This also states that a landlord should not extend the deadline for a complaint response by more than 10 working days.
  3. The resident raised her stage 1 complaint on 24 April 2022, which the landlord responded to on 23 May 2022; this was after 19 working days. It sent a holding response to her on 17 May 2022; however, this was not timely as it had already exceeded its deadline for responding at stage 1.
  4. The resident escalated her complaint on 4 June 2022, and the landlord did not acknowledge this until over a month later, on 13 July 2022, and then sent a further holding response on 8 September 2022, before providing its final response on 12 September 2022. This was 70 working days after the resident escalated her complaint. This was an excessive and unreasonable delay.
  5. The landlord offered the resident a revised amount of compensation, on 15 June 2023, of £100 for its handling of the complaint. This offer was in accordance with the amounts specified in the Ombudsman’s remedies guidance, mentioned above, but it was unreasonable that it did not make a suitable offer of compensation until 9 months after the conclusion of the complaint. Therefore, the landlord will be ordered to pay the resident the £100 compensation it offered her and a finding of service failure will be made.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its:
    1. Response to the resident’s reports of noise,
    2. Handling of the associated complaint.

 Orders

  1. Within the next 4 weeks the landlord is ordered to:
    1. Pay the resident £200 compensation for its handling of her reports of noise. This is inclusive of the £25 previously offered, if this has not already been paid.
    2. Pay the resident the £100 compensation it offered her in its revised response on 15 June 2023 for its complaints handling, if this has not already been paid.
    3. Confirm to this service what steps it will take to ensure that clear, accurate and easily accessible records of its repairs will be kept.
    4. Confirm to this service what steps it will take to ensure that it handles complaints in a timely manner, in accordance with its complaints policy.
    5. Confirm to this service that it has complied with the above orders.