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Folkestone & Hythe District Council (201914464)

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REPORT

COMPLAINT 201914464

Folkestone & Hythe District Council

18 December 2020


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 handling of the installation of sound proofing in the resident’s building.

 

Summary of events

 

  1. The landlord was formerly East Kent Housing but as of 1 October 2020 became Folkestone Hythe & Romney Marsh. For ease of reference, both organisations are referred to collectively as ‘the landlord’.

 

  1. On 29 January 2020, the resident asked the landlord about re-boarding and sound proofing the flat above his so that he could get some sleep and asked for confirmation of when this would be done. In the landlord’s response of 10 February 2020, it said that it had spoken to the Inspector and understood that all the sound boarding was complete, and that the Inspector was on site when this took place. It acknowledged that the resident was experiencing noise from his neighbour above and confirmed that a member of its enforcement team would contact him that week to discuss the noise issues to see if there was any support they could offer him.

 

  1. The resident responded on 12 February 2020, saying that the sound boarding in his flat was correct but when carrying out the works they failed to put the insulation in correctly. He said he was told at the time ‘don’t worry we will get it from the flat above when we do his floor in order to sort the noise out’. However, he understood that the landlord had been unable to gain access to the upstairs flat. He felt the issue had taken too long to resolve and it was now affecting his mental and physical health so he had decided to bring the matter to the Ombudsman.

 

  1. The same day, the resident contacted this Service, saying that the landlord had erected the ceiling and then re-installed it back three times incorrectly in an attempt to resolve the ongoing noise. The landlord had since installed the correct board but failed to pack it tight with acoustic installation which was specific to sound. He was disappointed with the works that had been done so far and explained that he had health problems. To resolve the matter, he wanted the landlord to rectify the works done.

 

  1. In the landlord’s complaint response of 24 February 2020 (received by the resident on 28 February 2020) it addressed the complaint as being ‘soundproofing works have not been completed in your property to a satisfactory standard and similar works planned for your neighbour’s property have not been completed’. In respect of the works carried out in the resident’s home, the maintenance surveyor had signed these off as being satisfactory, so the landlord was satisfied that this had been completed. With regards to the neighbour’s property, soundproofing and re-boarding works had been agreed to be carried out and it was in the process of agreeing a suitable timescale for this work. It felt that, once this work had been completed, it should resolve any noise the resident had been experiencing. It acknowledged that the time it was taking to complete the works would be frustrating for the resident but explained that it was reliant upon the neighbour granting access and it hoped to do so as soon as possible.

 

  1. Unhappy with this response, the resident referred the matter to this Service, when he explained that the outstanding issues were:

 

9.1 When the landlord put acoustic insulation into his ceiling it did not put enough in and said that it would need to increase the amount of insulation from the flat above, which it had not done;

 

9.2 He was not a well man and each of the three times the landlord took his ceiling down, he went through the ‘hell of having to clear up’ and having to redecorate, all at his own expense;

 

9.3 He was unable to lay carpet until the landlord had resolved this matter;

 

9.4 The noise transference issue had not been resolved and this issue was continuing to cause him upset and affecting both his wellbeing and his relationship with his neighbour.

 

  1. This Service explained to the resident that the Ombudsman could either investigate his complaint or seek to facilitate an agreement with the landlord. The resident explained that, in order to resolve the complaint he wanted the landlord to: take up the floorboards in the property above and throw them away; put more acoustic insulation in and pack it tight; put acoustic rubber along each joint; re-board the upstairs flat with acoustic boarding; and provide dates as to when it would start/finish these works. The Ombudsman sent this request to the landlord on 8 June 2020 and asked for its view on the resident’s proposal by 29 June 2020.

 

  1. In the landlord’s email of 3 July 2020, it advised that it had agreed to do soundproofing in the above property but, due to the covid-19 restrictions, all non-essential works had been put on hold and its operatives were carrying out emergency works only. It confirmed that, once normal service resumed, the works would take place. It noted that it had told the resident this multiple times and that he would be contacted when the works were programmed to commence.

 

  1. The resident remained concerned about when the works would actually take place and the Ombudsman explained the impact of the global pandemic on housing repairs. However, it was felt that the landlord could commit to actioning the works once these restrictions had ceased. Therefore, it was proposed that the landlord ‘arrange appointments for the agreed soundproofing works to take place within four weeks of resuming normal working practices in regard to routine repairs resuming and for all soundproofing works to be completed within eight weeks of normal working practices resuming’. This request was sent to the landlord on 10 July 2020.

 

  1. In the landlord’s response of 4 August 2020, it explained that the bathroom flooring in the upstairs flat was going to be done when the bathroom was refurbished, so it would do the rest of the flat at the same time. It confirmed that its staff had started working again but there was a backlog of works. It asked internally for an update on when the work would be booked in.

 

  1. On 14 August 2020, this Service asked the landlord for an update as to when the works would happen, and explained that the resident wanted it to take pictures whilst the works were being carried out to the flat above to give him peace of mind that they had been done satisfactorily. In the absence of a response, the Ombudsman chased the landlord on 16 September 2020, advising that the matter would now proceed to an investigation and it should provide the requested information.

 

  1. During a telephone call from the resident on 23 September 2020, he advised the Ombudsman that his upstairs neighbour was having radiology every day and this was why he had prevented works taking place. However, the resident did not feel that this should stop the landlord from carrying out the works as it could do one room at a time.

 

  1. On 29 September 2020, the landlord emailed this Service and explained that its staff were proposing to commence the works the following week and they should take approximately 10-15 days to complete. The inspector had confirmed that the sound proofing would take place at the same time or alongside this work. The Ombudsman responded on 8 October 2020, asking whether the works had started or if there was a confirmed start date and whether photographs would be taken, as per the resident’s request. The landlord did not respond.

 

  1. The resident contacted the Ombudsman on 19 October 2020 to advise that builders were in the flat above, but they were supposed to prioritise the works in his flat first and fix his flooring and insulation. He called again on 21 October 2020 to say that the landlord had not done what it said it would. It was supposed to do the bathroom first and install soundproofing before doing other areas of the flat. He believed they had installed regular boarding on the floor. He said he had spoken with the landlord’s staff who told him they had not been asked to do the sound insulation works. He said he was feeling very disheartened and down about this matter at this point.

 

  1. This Service emailed the landlord the same day highlighting the resident’s concerns, asking that it contact him to address these, reiterating that the matter was now awaiting investigation and requesting the documentation for the investigation. In the absence of a response, a chasing email was sent on 6 November 2020. In the landlord’s response of 10 November 2020 it confirmed that an inspector would be visiting the neighbour’s property to check the floor between the flats and it would update this Service following that visit.

 

  1. In the landlord’s email of 13 November 2020, it confirmed that the inspector and a supervisor had attended to carry out an inspection of the floor between the resident’s property and his neighbour’s. The landlord advised that they had already established that insulation was present in the hall and bathroom areas from previous works. The staff inspected a random section of the flooring under the bath and insulation was clearly seen tightly packed in the void. It hoped this clarified matters. The resident was unhappy with this response and did not believe the landlord had installed the acoustic boarding as the contractors that he spoke with at the time of the works had confirmed that they had not been asked to do soundproofing works.

 

Assessment and findings

 

  1. In accordance with the Landlord and Tenant Act 1985, the landlord is responsible for maintaining the structure of the building, including ceilings and floors. Whilst this does not necessarily extend to soundproofing works, it would have been appropriate for the landlord to investigate the resident’s concerns to ensure that it was meeting its obligations under the Act and to take steps to resolve any issues it identified. It is not for the Ombudsman to determine what, if any, works should be carried out to the properties to improve their sound insulation. Instead, this Service’s role is to consider whether the landlord responded appropriately to the resident’s concerns, in line with relevant policies, procedures and good practice.

 

  1. In the evidence provided to this investigation, the first correspondence on the issue of soundproofing is dated 28 January 2020. However, in an email to this Service of 11 June 2020, the resident referred to the maintenance surveyor and his supervisor visiting his flat in May 2018 and advising that they were going to make his flat liveable by sorting out the flat above. The landlord has not provided any other information regarding when reports were first made to it regarding sound insulation issues. As the Ombudsman encourages residents to raise complaints in a timely manner, this investigation is focussed on the formal complaint made in early 2020.

 

  1. However, the historical events provide contextual background to the current complaint and it is accepted that, prior to January 2020, the landlord had agreed to carry out soundproofing works to the resident’s home. It appears that some works were completed, albeit not to the resident’s satisfaction. The landlord also agreed to carry out soundproofing and re-boarding works to the neighbour’s property, but this was subject to the neighbour allowing access and that had proved problematic.

 

  1. Following on from this, issues arose around the quality of the works carried out, the progress of the planned works, and the landlord’s communication with the resident in that regard. Whilst the landlord has not provided any evidence regarding its attempts to contact or progress the matter with the neighbour, the correspondence indicates that the neighbour was undergoing medical treatment, and that was why he was reluctant to allow the disruptive works to proceed. The neighbour’s needs and circumstances were rightly considered in the landlord’s approach to the works but, in responding to the resident’s complaint, it failed to adequately explain its position or the limitations on the steps it could take to move the matter forward.

 

  1. The landlord has also not provided this Service with any evidence of its contact with the neighbour or of any attempts it made to progress the matter which it may not have been able to disclose to the resident, for data protection reasons. As the Ombudsman can only base its decisions on the documentation provided to it, there is insufficient evidence of the landlord taking a proactive approach to advancing the planned works and addressing the resident’s concerns, in so far as it was able. This Service cannot, therefore, conclude that the delays were beyond the landlord’s control or reasonable in the circumstances.

 

  1. There has been limited progress made by the landlord following issue of its final complaint response in February 2020, and this would have been understandably distressing and frustrating for the resident. It is accepted that the covid-19 pandemic and the associated restrictions severely impacted the landlord’s ability to carry out the majority of non-urgent repair works in its properties and that this has directly impacted upon the resident’s complaint. However, given that the landlord has been aware of the issue since May 2018, it cannot rely on the recent events to wholly justify its delay in addressing the issues raised.

 

  1. Further, the limitations on the landlord carrying out the substantive work would not have prevented it from communicating with the resident more effectively or responding to the Ombudsman’s requests for information and progress. It is clear from the evidence that the landlord failed to manage the resident’s expectations regarding what work would take place, when it was likely to commence, and to what extent it would update him on progress. Equally, the landlord’s failure to respond to Ombudsman contacts made the process unnecessarily protracted and this meant that additional time was spent by the resident on pursuing the matter.

 

  1. From June 2020, various attempts were made by this Service to facilitate mediation between the parties and to set out the specific issues which required addressing before a satisfactory resolution could be found. Unfortunately, the landlord failed to engage with that process, repeatedly not responding to correspondence or issuing generic responses which did not address the specific issues or requests raised by the resident/the Ombudsman. It is this poor communication that has exacerbated an already distressing situation for the resident.

 

  1. The resident has since confirmed that the landlord has carried out works to the neighbour’s property, but he submits that these have not been completed to the agreed specification. It is noted that he has based his conclusions on his conversations with contractors rather than any formal confirmation from the landlord regarding the scope of the works.

 

  1. In the landlord’s email to the Ombudsman of 13 November 2020, it detailed the steps that had been taken to investigate the adequacy of the soundproofing in the neighbour’s flat and gave assurances regarding its findings. However, no evidence has been provided to this investigation to substantiate those findings (such as repairs records, inspection notes, surveyor’s reports, etc) and, as a result, the Ombudsman cannot be satisfied as to the probity of those investigations.

 

  1. The landlord also confirmed that staff had examined a random section of the flooring in question and found that insulation was clearly seen, and it has provided photos of this. However, without informing the resident or the Ombudsman precisely what works have been done in the neighbour’s flat, these images do little to evidence that the landlord has done what it said it would. 

 

  1. Had the landlord responded to the Ombudsman’s repeated requests for information, the ongoing uncertainty, distress and frustration experienced by the resident may have been avoided. Ultimately, the landlord has a duty to provide this Service with information relevant to a complaint and assist with enquiries relating investigations. As it stands, insufficient information has been provided to explain what soundproofing works the landlord has carried out to both the resident’s and the neighbour’s properties to date, and it has not, therefore, provided a satisfactory response to the complaint in that regard.

 

  1. It is clear from the resident’s contact with the Ombudsman that he has ongoing concerns about the works carried out to the neighbour’s property and the fact that the landlord has not undertaken them to the extent it agreed. With that in mind, Orders have been made below to bring some clarity to the matter and set out a way forward. Whilst this Service requires the landlord to provide evidence of compliance with the Order detailed below, any additional discussions around the adequacy of the sound proofing in the property and further works going forward would need to be raised as a new formal complaint.

 

Determination (decision)

 

  1. In accordance with paragraph 42 of the Scheme there was maladministration by the landlord in respect of this complaint.

 

Orders

 

  1. The Ombudsman orders the landlord to:

 

34.1         Write to the resident explaining:

  • what sound proofing works have been undertaken in both his and his neighbour’s flats to date (including supporting evidence and details of installation where available);
  • whether any additional works to either property are planned and, if so, when these will take place;
  • if no further works will be undertaken, the landlord should explain why and what the resident’s next steps are if he remains dissatisfied.

 

34.2         pay the resident £150 compensation for the ongoing distress and inconvenience caused by its handling of the sound proofing.