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Kirklees Council (202226542)

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REPORT

COMPLAINT 202226542

Kirklees Council

23 May 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

  1. The complaint is about:
    1. The landlord’s response to the resident’s reports of leaks from the upstairs flat.
    2. The landlord’s response to the resident’s reports of noise transfer from the upstairs flat.
    3. The landlord’s handling of the resident’s complaint.

Background

  1. The resident is a leaseholder and moved into the property in October 2022. The property is a 2-bedroom ground floor flat in a converted victorian house, with the upstairs flat occupied by a tenant of the landlord. The housing records confirm the resident’s children have low immune systems.
  2. The resident contacted the landlord on 18 October 2022 and said there was an uncontrollable leak from the upstairs flat. The landlord attended on the same day and repaired the leak. A new cylinder was fitted on 20 October 2022. The landlord responded to a report from the resident of a further leak on the same day and identified a leak on the kitchen radiator. The leak was repaired on the same day.
  3. The resident told the landlord on 7 November 2022 that the leaks had damaged his property and caused damp, which if not addressed would cause structural damage and health issues. He also told the landlord the upstairs kitchen floor was uneven and his children were unable to sleep due to the transfer of noise. The resident reported a further leak on 24 November 2022. The landlord repaired the pipe to the radiator on the following day.
  4. The resident made a complaint on 8 December 2022. He said the leaks caused damp and staining on the bedroom ceiling. He also said the uneven and bare floorboards in the upstairs flat caused noise transfer and prevented his children from sleeping and affected his mental health.
  5. The landlord issued its stage 1 complaint response on 3 January 2023. It said the leaks were unforeseeable and it acted in a timely manner to resolve them. It also said as a leaseholder, he was responsible for repairs to his home and he would need to contact a contractor to resolve the issue with damp and mould. It suggested he check his home contents insurance to see if he could make a claim for any damages that were caused. It said it had made an appointment to check whether the kitchen floor in the upstairs flat was uneven. It also said it would liaise with his neighbour about laying floor coverings to minimise any leaks caused by spillages. The landlord confirmed it could only take action against his neighbour if the noise was a statutory nuisance. It offered the resident £50 compensation for the stress and inconvenience caused by the leak.
  6. The resident asked for his complaint to be escalated on 6 January 2023. He said the landlord’s plan regarding the kitchen floor would not resolve the problem as there were issues with the structure of the floor. The landlord inspected the kitchen floor on 9 January 2023.
  7. The resident told the landlord on 27 January 2023 that the soundproofing contractor he had employed had identified issues with his ceiling and the floor in the upstairs flat. This included noting the joist were wet, there were large gaps between the floorboards and his ceiling was only 6 inches thick. The landlord arranged for both properties to be inspected on 16 February 2023. This confirmed there was a lack of compartmentalisation between the 2 properties and remedial work was required between the resident’s ceiling and the upstairs floor.
  8. The landlord issued its final complaint response on 24 February 2023. It said it responded to the leaks in a timely manner and it was going to overboard the kitchen floor on 27 February 2023. It also said it was not responsible for ensuring the kitchen floor was watertight or insulating between the 2 properties. The landlord confirmed the resident was correctly advised regarding the noise levels and damp and mould. It also confirmed a specialist contractor had been appointed to undertake a survey of both properties in relation to fire compliance.
  9. The resident’s complaint was accepted by this service on 18 April 2023. He said the landlord’s response to the leaks was inadequate and had caused damage to his property. He also said the flooring in the upstairs flat was inadequate and caused noise transfer. The resident wanted the landlord to fit appropriate flooring and ensure there were no further leaks.

Post complaint events.

  1. The landlord told this Service on 22 May 2024 that it had arranged for a survey to be carried out to identify if there were any compartmentalisation issues. No compartmentalisation issues were identified, but the landlord installed an interlinked fire alarm in both properties to mitigate any risks.

Assessment and findings

The landlord’s response to the resident’s reports of leaks from the upstairs flat.

  1. It was appropriate for the landlord to visit the upstairs flat on 18 October 2022 following the report of an uncontainable leak. This was in accordance with its repairs and maintenance policy. This says it will attend to repairs that cause damage to a property within four hours. The housing records confirm the leak was stopped and a job raised to fit a new cylinder. A new cylinder was fitted on 20 October 2022
  2. The housing records confirm the resident reported a further leak on 20 October 2022. The landlord attended on the same day in accordance with its repairs and maintenance policy. It was identified the leak was on the kitchen radiator and the air vent trap needed to be replaced. The leak was resolved on the same day. It was also reasonable for the landlord to check the electrics in the resident’s bedroom although it was not obliged to do so under the lease.
  3. There is no evidence the landlord responded to the resident’s email of 7 November 2022 in which they noted the leaks had damaged the ceiling and caused damp. It would have been reasonable for it to have confirmed at this point that it was not responsible for the damage that was caused given it responded and resolved the leaks in a reasonable timescale.
  4. It was appropriate for the landlord to visit the resident’s neighbour on 14 November 2022. It confirmed the kitchen floor was uneven and said it would arrange for an operative to inspect the floor. It also suggested the resident’s neighbour put a floor covering down, which she agreed to do once the floor was levelled.
  5. The landlord attended to a further leak in the upstairs flat following a report from the resident on 24 November 2022. The landlord’s records state the leak was on the radiator pipe work and it was fixed the following day. This was in accordance with its repairs and maintenance policy. This says it will attend to emergency repairs which pose no immediate danger or serious damage to a property within 2 working days.
  6.  The housing records confirm the resident reported a further leak on 9 December 2022. The landlord attended on the same day and noted there was a small containable leak on the boiler. It said the boiler was fitted above a large stone shelf and the water was not leaking into the ground floor flat. An appointment was arranged for 12 January 2023 to replace the boiler. This was in accordance with the landlord’s repairs and maintenance policy which says it will complete routine repairs within 25 working days.
  7. It was appropriate for the landlord to arrange to visit the upstairs flat following the resident’s report on 12 December 2022 about the water leaks. An appointment was booked for 9 January 2023 to check the floor. This was in accordance with the landlord’s repairs and maintenance policy. This says it will undertake a pre inspection where a routine repair is required but it is unclear what works are required.
  8. The landlord told the resident on 3 January 2023 in its stage 1 complaint response that it had responded to the resident’s reports of leaks in a timely manner. It was appropriate for it to confirm that the resident was responsible for repairs and maintenance in his flat and it would not assess the damp and mould. This was in accordance with the landlord’s repairs and maintenance policy and the resident’s lease agreement. This says the leaseholder is responsible for internal fittings and fixtures in his home.
  9. The landlord visited the resident’s neighbour’s home on 9 January 2023. This inspection confirmed the kitchen floor required repairing rather than over boarding, although a copy of the inspection report has not been provided to this Service. It was reasonable for the landlord to rely on its technical expert, although there is no evidence it provided the resident with an update, which would have been reasonable given his concerns.
  10. It was reasonable for the landlord to seek further advice following the resident’s reports on 27 January 2023 that his contractor had discovered that the joists were wet and there were large gaps between the floorboards. He also said there were issues with the depth of his ceiling. The advice was received on 29 January 2023 and noted that whilst the building did not fall under the parameters of building regulations or the regulatory reform (fire safety) order, the landlord should undertake work to the resident’s ceiling and his neighbour’s floor.
  11. It was appropriate for the landlord to agree to carry out a further inspection of both properties on 31 January 2023. It told the resident on 10 February 2023 that the work to the kitchen floor would be completed by the end of February 2023 and that it was clarifying whether a survey was required to inspect his ceiling and his neighbour’s floor.
  12. The housing records confirm the landlord arranged for the building to be inspected on 16 February 2023. This confirmed there was a lack of compartmentalisation between the 2 properties and the risks of fire was ‘normal to high.’ It was appropriate for the landlord to tell the resident on 24 February 2023 that it had arranged for a specialist contractor to undertake a further survey of both properties given the concerns that had been identified about fire safety between the 2 flats. It also confirmed the kitchen floor would be boarded on 27 February 2023, although it has not provided this Service with any evidence confirming the work was carried out.
  13. In summary, the landlord attended to the leaks in accordance with its policies and procedures. It also liaised with his neighbour and arranged for the floor to be over boarded. It was not responsible for the damaged that was caused to the resident’s home or for laying floor coverings in the upstairs flat. In this case, there was no maladministration by the landlord in its handling of the resident’s reports of leaks from the upstairs flat.

The landlord’s response to the resident’s reports of noise transfer from the upstairs flat.

  1. It is not this Service’s role to establish whether the resident experienced an excessive amount of noise transference but to determine whether the landlord took reasonable steps to address the issue. It should also be noted that the landlord would not be obliged to soundproof the property above the standards applicable at the time the property was built or converted.
  2. Whilst the landlord’s antisocial behaviour (ASB) policy is silent on the subject of noise transfer, it should be noted that it cannot be expected to take action against residents for noise that is considered household noise and outside their control. In this case, the resident’s reports of noise transfer included over hearing conversations, children playing and people walking across the floor upstairs.
  3. There is no evidence the landlord responded to the resident’s report of noise nuisance on 7 November 2022. It would have been reasonable for the landlord to have communicated with the resident and managed his expectations on how his report of noise would be handled, detailing potential actions to minimise the noise experienced or the limitations it faced in doing so. It would have also been reasonable for it to have confirmed whether it had an obligation to fit sound insulation given the resident’s request for it to do so.
  4. It was reasonable for the landlord to visit the resident’s neighbour on 14 November 2022. The inspection established there were no floor coverings on the floor and the kitchen floor was uneven, preventing her from laying lino. It was appropriate for the landlord to arrange for the floor to be inspected and to ask the neighbour to be mindful of the family living downstairs.
  5. Whilst the landlord responded to the resident’s report of noise nuisance on 12 December 2022, it again failed to manage his expectations or carryout an assessment to establish if the noise levels constituted ASB or was a statutory nuisance. It said he provided audio evidence but has not shared this information with this Service. It was reasonable for the landlord to make a referral to its noise and pollution team on 23 December 2022.
  6. The landlord told the resident on 3 January 2023 that it could only take action against his neighbour if the noise levels were identified as a statutory nuisance. By focusing on this, the landlord failed to consider other options available to it, including mediation and considering if it could assist his neighbour to purchase floor coverings. It also failed to address his request for insulation to be fitted between the 2 properties.
  7.  It was appropriate for the landlord to open an ASB case and send the resident diary sheets on 3 January 2023. This was in accordance with its ASB policy and provided an opportunity to gather evidence on the nature and frequency of the noise and to establish whether further intervention was required.
  8. It is unclear from the housing records why the resident’s neighbour was issued with a warning letter on 3 January 2023 given there was no evidence of ASB or noise nuisance. Without any evidence, this appears to have been heavy handed and could have damaged the relationship between the 2 residents. The landlord’s ASB policy says it will only issue warning letters where a resident’s actions are unacceptable.
  9. Confusingly, the landlord then confirmed on 6 January 2023 that the noise was ‘‘ordinary household noise’’ and not unreasonable. It also said it could not pursue the matter further. This was in accordance with its ASB policy which says that it will close a case when there is no further action to take or there are no other remedies available to progress the case.
  10. Whilst the landlord spoke to the resident’s neighbour on 16 February 2023 about the washing machine, there is no evidence it considered other options to minimise the noise transfers, such as fitting an anti-vibration mat. It would have been reasonable for the landlord to have done this given the concerns raised by the resident. It did not tell the resident it was not responsible for providing sound insulation between the 2 properties until it issued its final complaint response. This meant it failed to manage the resident’s expectations in a reasonable time.
  11. In summary, the landlord failed to communicate effectively with the resident at times or manage his expectations. In this case, there was service failure by the landlord in its handling of the resident’s reports of noise transfer from the flat above.

The landlord’s handling of the resident’s complaint.

  1. It was appropriate for the landlord to acknowledge the resident’s complaint on 14 December 2022 and to confirm he would receive a response within 10 working days. This was in accordance with its complaints policy. It also set out its understanding of the complaint and the outcomes he was seeking. This was in accordance with the Ombudsman’s complaints handling code. There is no evidence it spoke to the resident, although its complaints policy says it will do this.
  2. The landlord issued it stage 1 complaint response on 3 January 2023. Although the complaint was not upheld, it was reasonable for the landlord to offer £50 compensation and to confirm the resident would need to make a claim against his home contents insurance for any damage to his property. This is because the landlord had no obligation to repair the resident’s fixtures and fittings under the terms of his lease agreement and given it fixed the leaks in accordance with its repairs and maintenance policy.
  3. The resident asked for his complaint to be escalated on 4 January 2023. This was acknowledged by the landlord on 9 January 2023 in accordance with its complaints policy. It confirmed what the outstanding issues were and the outcomes he was seeking. There is no evidence it spoke to the resident about his complaint as required under the landlord’s complaints policy.
  4. It was appropriate for the landlord to contact the resident on 3 February 2023 and to note it needed more time to respond to his complaint. This was in accordance with its complaints policy and this Service’s complaints handling code. It told the resident why there was a delay and agreed it would provide a response by 10 February 2023.
  5. The landlord did not issue its final complaint response until 24 February 2023. There is no evidence it contacted the resident beforehand to advise him there would be a further delay. However, it was appropriate for the landlord to apologise for the delay in responding. It also confirmed that it upheld the decision made at stage 1 and it dealt with all the matters that fell within its responsibility.
  6. In summary, the landlord followed its complaints procedure in the main. There was, however, a delay in issuing its final complaint response. Whilst it agreed a new deadline with the resident, the new timescale was not met and the resident was not kept updated. In this case, there was a service failure by the landlord in its handling of the resident’s complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of leaks from the upstairs flat.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of noise transfer from the upstairs flat.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s complaint.

Orders and recommendations

Orders

  1. Within four weeks of the date of this report, the landlord is ordered to offer an apology to the resident for the failings set out in this report. A copy of the apology letter must be provided to this Service.
  2. Within four weeks of the date of this report, the landlord is ordered to pay the resident £150 compensation. This must be paid directly to the resident and made up as follows:
    1. £100 for the distress and inconvenience caused to the resident in its handling of his reports of noise transfer.
    2. £50 for the distress and inconvenience caused to the resident in its handling of his complaint.
  3. Within four weeks of the date of this report, the landlord is ordered to contact the resident and confirm there are no compartmentalisation issues between the 2 properties. It should also provide the resident with a copy of the survey report.
  4. Within six weeks of the date of this report, the landlord is ordered to review its approach to noise nuisance. This must be done in the context of this Service’s spotlight review on noise complaints. A summary of the review findings must be provided to the resident and this Service.

Recommendations

  1. The landlord pays the resident the £50 compensation it previously agreed to pay him, if not already paid.