Orbit Group Limited (202342592)

REPORT

COMPLAINT 202342592

Orbit Group Limited

11 October 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 response to reports of noise.

Background

The resident lives in a 2-bedroom flat under a lease. The resident’s neighbour lives in the property adjoining the resident’s home. It is understood the neighbour also has a lease with the landlord.
Throughout 2023, the resident and the landlord engaged in correspondence about the resident’s reports of noise from the neighbour’s property. The noise nuisance appeared to follow the neighbour’s renovation of their bathroom in or around July 2022.
The resident reported that since the neighbour’s renovation, there has been loud noise in his home whenever his neighbour used their bathroom. The resident believed that this was caused by the neighbour’s plumbing.
A complaint was raised in December 2023. It is unclear whether this was initiated by the resident, or whether the landlord decided to deal with the matter through its complaints process because the previous correspondence about the noise complaints had not brought matters to any conclusion.
In its stage 1 complaint response on 28 December 2023, the landlord:
1. explained that no fault had been identified with the pipes in the neighbour’s home
2. stated the matter had also been investigated by the local authority’s Environmental Health team, and they had concluded that the noise complained about did not amount to a statutory nuisance
3. explained that in the circumstances it was unable to take action to compel the neighbour to make any adjustments to their plumbing
4. asked the resident to keep it informed if Environmental Health did decide to take action
5. acknowledged the impact the noise was having on the resident’s mental health and offered to refer the resident to support services
The resident escalated his complaint on 28 December 2023. The resident was dissatisfied in that:
1. the landlord ought to take action to address the noise, regardless of the findings of the environmental health investigation
2. the landlord ought to carry out further investigation of the neighbour’s plumbing
In its stage 2 complaint response on 15 February 2024, the landlord:
1. reiterated the findings of the Environmental Health investigation and that the noise complained about did not amount to a statutory nuisance
2. stated that no faults had been identified with the neighbour’s plumbing
3. recognised the impact the noise had on the resident’s health and wellbeing and stated a safeguarding referral had been made as a result
4. advised the resident to let it know if there were any changes in the noise

Assessment and findings

Scope

In his complaints to this service, the resident was dissatisfied that his neighbour had connected their water supply to the resident’s, and that although the problem was now resolved, the landlord ought to have taken action to address this.
Paragraph 42.a of the Housing Ombudsman Scheme states:

“The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: a. are made prior to having exhausted a member’s complaint procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”

There is no evidence the resident has raised this complaint with the landlord during the complaints process. Therefore, this aspect of the resident’s complaint is outside the Ombudsman’s jurisdiction and not one this service can investigate at this time.
In his complaints to the landlord and this service, the resident believed the local authority’s Environmental Health team had drawn incorrect conclusions from its investigations.
The local authority is not the resident’s landlord and its environmental health function does not relate to the provision or management of housing. Therefore, this aspect of the resident’s complaint is outside the Ombudsman’s jurisdiction and not one this service can investigate. If the resident remains dissatisfied with the investigations carried out by the local authority’s environmental health department, he should contact the Local Government and Social Care Ombudsman (LGSCO), which may be able to investigate.

The landlord’s response to reports of noise

In or around July 2022 the resident raised concerns about noise coming from the neighbouring property with the environmental health team of the local authority. The local authority carried out an investigation which included:
1. reviewing diary sheets provided by the resident
2. reviewing noise recordings which were taken between 15 and 21 September 2022
3. interviewing the resident on 2 occasions
On 15 November 2022 the local authority:
1. provided the findings of its noise monitoring equipment, which showed a noise between 38 and 46 decibels when the neighbour was drawing water
2. explained that the shortest noise incident lasted 3 seconds, and the longest incident lasted 7 minutes and 42 seconds
3. explained on average, each incident lasted less than 30 seconds
4. concluded the noise complained about did not amount to a statutory nuisance
5. advised the resident to consider further investigations by a suitably qualified plumber or whether sound insulation between the properties could be improved
6. advised the resident he could make a complaint directly to the magistrates‘ court, which may make an order if it is satisfied that a statutory nuisance exists
The landlord’s antisocial behaviour (ASB) policy defines various activities which it does not consider to be ASB, and therefore do not fall within the scope of its policy. The policy gives ‘general living noise’ and ‘lifestyle clashes’ as examples of behaviours which are not considered ASB.
The landlord ought to have more clearly explained that it considered the noise complained about in this case did not constitute ASB under its policy. This would have been better for the resident, as it may have helped manage his expectations about what action the landlord may take in response to his complaints.
In its complaint responses the landlord explained that it would not take action against the neighbour because the matter had already been investigated by the local authority and it had been concluded that there was no statutory nuisance. In the Ombudsman’s opinion, it was unreasonable for the landlord to rely on the investigations the local authority had conducted to come to this conclusion.
In many cases, it may be appropriate to rely on the findings of a local authority’s environmental health team, in this case, the resident had clearly said the noise transference had occurred since works had taken place in the neighbouring property. The question of whether there was a statutory nuisance for the purposes of s.79 of the Environmental Protection Act 1990, is different to the question of whether the neighbours had changed something during their interior works, which was now causing noise transference and nuisance and annoyance. The landlord’s consideration ought to have included:
1. what works did the neighbour undertake
2. was permission for those works required under the lease
3. did the landlord give that permission
4. were any works carried out in accordance with that permission
5. is it likely that the works have changed the acoustic transmission of sound between the properties
6. if so, has the landlord authorised and adopted any change in the acoustic barrier by granting permission
There is no evidence that the landlord considered these issues. That said, even had the landlord considered these points, the outcome to the resident may still have been the same. Namely that there is no evidence that there is a change to the property or a nuisance. Secondly, it is noted that any action that the landlord seeks to take against the neighbour is a cost that it may claim back from the resident under the lease. The resident also has the power to seek his own advice about the nature of the works and the noise transference now.
In resolution of his complaint, the resident wanted the landlord to carry out further investigations of the plumbing in his and the neighbour’s homes. Both the resident and the neighbour are leaseholders.
The leasehold agreement states the resident is responsible for maintaining and repairing the interior of the property, which includes all water pipes and drains inside the property. This is a standard clause of a leasehold agreement. It is reasonable to conclude the neighbour is responsible for maintaining and repairing the water pipes and drains within their own home.
There is a provision in the leases for entry to inspect and ensure that there has been no breach of the terms. The landlord ought to have inspected the neighbouring property to have ensured there was no loss of sound/acoustic protection following the renovations.
The resident also has the right to seek advice on his own potential actions against his neighbour for nuisance. It also remains an option for the resident to ask the magistrates’ court to make a noise abatement order against the neighbour. If the resident wishes to pursue this course of action, he ought to take independent professional legal advice.
The resident reports that his relationship with the neighbour has broken down. It may therefore be difficult for the resident to coordinate any further investigations or repairs with the neighbour. The landlord should consider whether there is anything further it can do to mediate between the parties to allow this matter to come to a resolution.
The Ombudsman acknowledges that the noise the resident complained about has caused him a significant amount of distress. Therefore, considering all the circumstances, it is the Ombudsman finds that there was service failure by the landlord in its response to reports of noise. This is primarily because there is no evidence that the landlord has satisfied itself that the neighbour is acting in accordance with the covenants of the lease nor has it considered mediation.
The Ombudsman has made orders for the landlord to take further actions – as well as to pay the resident £100 compensation for the distress and inconvenience caused. The Ombudsman’s Remedies Guidance states that for service failure the level of award should be between £50 and £100. Given that the landlord could have take action to remedy its failure, and the resident has had to refer his case to the Ombudsman for resolution the top award of that band would be appropriate in this case. Had the landlord taken the right action and the outcome would have been the same, then the resident is likely to have experienced some distress and upset, but the landlord would not be responsible for that – which is why the finding is service failure and the level of award is not higher.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to reports of noise.

Orders

The landlord must, within 28 days of the date of this determination:
1. inspect the neighbouring property to determine if there are any breaches of leases
2. offer the resident a noise / sound transfer test – and explain whether they will be responsible for the cost of it and if so, what that cost is likely to be
3. pay the resident £100 compensation for the distress and inconvenience for failure to investigate whether there had been a breach of the lease
4. offer the resident mediation and if they accept, offer this to the neighbour
The landlord must provide evidence of its actions to this service within 28 days of the date of this determination.