Croydon Council (202011660)

REPORT

COMPLAINT 202011660

Croydon Council

31 March 2021

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:
   1. The resident’s request for it to repair her garden paving slabs.
   2. The resident’s report of her sound insulation being inadequate.

Background and summary of events

Background

2. The resident is a tenant of the landlord and occupies a ground-floor flat. Its tenancy agreement with her confirms that it is responsible for the repair and maintenance of the structure of the property. This also specifies that it is responsible for repair and maintenance of access pathways to the front door of the property and from the front door to the back door. Clause 22 of this agreement also states that the resident is responsible for repairing and replacing paths in private gardens.
3. The landlord’s complaints policy and procedure webpage provides for a two-stage complaints procedure where complaints at both stages are to be responded to within 20 working days unless an extension is agreed with the resident.
4. As a result of a historical complaint to the landlord about noise transference, it installed soundproofing to the resident’s property as a discretionary measure. 

Summary of events

5. The resident emailed the landlord on 23 July 2020 to report that she had “dangerous slabs” in her rear garden and was awaiting a response from the landlord about this. She said it had previously repaired the slabs but had not laid concrete underneath them which caused her to fall through them. On 30 July 2020, the resident provided pictures to the landlord of the garden and added that she was unhappy with the noise-insulating ceiling which was installed in the property as it had “made no difference” to the noise she heard and there was a crack in it.
6. The landlord responded to on 10 August 2020 to advise that it only carried out repairs to paths that led to the gate. She replied on 25 September 2020 to raise a stage one complaint about the matter, relaying that both herself and a family member had fallen through the slabs which were already installed when she moved in. The resident reiterated that the landlord had previously attended to fix the slabs but had not made them safe. She disagreed that it was her responsibility to repair. 
7. The landlord issued a stage one complaint response to the resident on 2 October 2020 in which it noted that it spoke to her on 30 September 2020 and arranged for an inspection on 6 October 2020. On its review of the photographs she submitted, it identified that her report of the slabs did not include those forming part of an access pathway to the front of the home or directly outside her rear door. The landlord stated that it was the resident’s responsibility for maintaining the path within her own garden and referred her to her tenancy agreement with it. It therefore advised that it had cancelled its planned inspection.
8. The landlord advised that soundproofing would not eliminate noise entirely but would reduce it. It confirmed that the soundproofing work it carried out in 2019 was a discretionary improvement to the property and was inspected to confirm the work was of a good standard. The landlord informed the resident that it was not responsible for carrying out any further soundproofing work.
9. The resident emailed the landlord on 5 October 2020 to escalate her complaint. She contended that it had done the repair work to the garden paving slabs which was “inadequate” which meant that she “fell through a slab”. The resident reported being able to hear “every noise” produced by her upstairs neighbours including when they were in the toilet. She added that there was a crack in the “ceiling that was installed for noise insulation” and black mould had reappeared in her bathroom. The resident wanted her issues to be included as part of the schedule of works resulting from a previous disrepair case (about separate matters) she had with the landlord.
10. The landlord acknowledged the resident’s complaint escalation request on 9 October 2020 concerning the noise insulation and the garden paving. It added that the new home repairs she mentioned would be treated as a service request which its repairs team would contact her directly about. 
11. After the resident contacted the landlord on 18 October 2020 to chase a response, it informed her on 20 October 2020 that it would issue its final stage complaint response on 2 November 2020. 
12. The landlord issued a final stage complaint response to the resident on 2 November 2020 in which it summarised her complaint as:
    1. Her dissatisfaction with the broken paving slabs in her garden which she wanted adding to her previous disrepair case.
    2. Her dissatisfaction with the landlord’s handling of noise insulation works carried out in 2019 which she believed caused a crack in her ceiling.
13. The landlord referred the resident to her tenancy agreement which specified that it was only responsible for the access pathways to the front door and from the front to the back door. It asserted that the paving slabs in her garden did not form part of an access pathway and therefore were her responsibility to repair under the tenancy agreement; this precluded the slabs from being included in her previous disrepair case. The landlord advised that it had investigated the resident’s claim that it had carried out previous remedial work to the paving slabs and found no evidence of this.
14. The landlord noted that the resident was unhappy with the sound proofing as she could hear sounds from her upstairs neighbours, such as the sound of urination. It asserted that it had no power to carry out enforcement action on noise from reasonable, normal, day-to-day activities which was not considered to be a statutory nuisance.
15. The landlord also noted that sound insulation was addressed in a previous complaint in 2018 where it explained that the construction of the property in the early 1950s gave rise to airborne noise insulation problems. It explained that, while modern building regulations specified sound insulation, this was not retrospective and therefore it had no obligation to improve the sound insulation of the property. The landlord informed the resident that the previous sound insulation work it carried out in 2019 was discretionary and it carried out post inspections at the time which satisfied it that the works were done to a good standard; it reiterated that it was not responsible for carrying out any further discretionary work.
16. The landlord asked the resident to report her ceiling crack to its repairs team in the normal way to enable an inspection and remedial works to be carried out as appropriate.  
17. After the conclusion of the complaint the resident submitted noise nuisance diary sheets to the landlord, which were reviewed by its antisocial behaviour team. Upon reviewing the noise reports, it advised her that the noise she reported was everyday living noise and therefore did not constitute actionable antisocial behaviour.

Assessment and findings

The landlord’s response to the resident’s request for it to repair her garden paving slabs

18. The landlord’s tenancy agreement, above at point 2, is clear that paths situated in private gardens, as opposed to communal gardens, are the resident’s responsibility to maintain and repair. It is not disputed that the defective slabs reported by the resident were situated in her own garden and did not form part of the pathway leading to the front door, or from the front door to the rear door. Therefore, it was appropriate for the landlord to inform the resident that it was not responsible for repairing the slabs in the garden.
19. The resident contended that the garden slabs had been previously attended by the landlord. There was no evidence of this, and, in any event, had this work been done, this would have been in excess of its obligations and would not have changed the resident’s pre-existing repair obligation for the garden path under her tenancy agreement. Therefore, the landlord responded reasonably to the resident’s request for the repair to her garden slabs and in accordance with its tenancy agreement with her.

The landlord’s response to the resident’s report of her sound insulation being inadequate

20. The landlord has an obligation to repair and maintain the structure of the property, as per its tenancy agreement, above at point 2. This repair obligation extends only to repairing defects; it is not obliged to improve the property by installing features which did not pre-exist. The soundproofing it historically installed was carried out in excess of its obligation to the resident and did not oblige it to carry out further soundproofing in future. Therefore, the landlord responded reasonably by advising that it did not need to carry out further soundproofing of the property. It was also reasonable for it to advise that it did not need to carry out work in excess of the requirements of the building regulations in force at the time of the building’s construction.
21. While the landlord did not need to carry out any further soundproofing, it did have an obligation to maintain the structure of the property. Therefore, it was the landlord’s responsibility to inspect the crack the resident reported in her ceiling, which she first mentioned on 23 July 2020. It is unclear if this crack was reported as a repair to the landlord’s repairs service, so it was reasonable for it to advise her on 9 October 2020 that it would address this as a service request. This Service will recommend the landlord to contact the resident to arrange works to remedy this ceiling crack, in accordance with its repairing obligation under the tenancy agreement above at point 2, if it has not done so already.

Determination (decision)

22. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request for it to repair her garden paving slabs.
23. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s report of her sound insulation being inadequate.

Reasons

24. The landlord’s tenancy agreement confirms that the repairing responsibility for paving slabs within the resident’s private garden is hers.
25. The landlord had no obligation to carry out improvements to a property in excess of what was required by building regulations at the time of the property’s construction.

Recommendations

26. If it has not done so already, the landlord should contact the resident to arrange for remedial work to address the ceiling crack she reported.