Optivo (now Southern Housing) (202116366)

REPORT

COMPLAINT 202116366

Optivo (now Southern Housing)

21 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 regarding:
   1. The landlord’s handling of the resident’s request for the installation of sound insulation in his property.
   2. The landlord’s handling of the resident’s anti-social behaviour (ASB) reports. 

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42(a) of the Housing Ombudsman Scheme (“the Scheme”), the following aspect of the complaint is/are outside of the Ombudsman’s jurisdiction:
   1. The landlord’s handling of the resident’s anti-social behaviour (ASB) reports.
4. Paragraph 42(a) of the Scheme states the Ombudsman may not consider complaints which are made prior to exhausting a member’s complaints procedure. While it is noted the resident has raised concerns with the landlord regarding its handling of his ASB reports, these were not included within the original complaint under investigation here. Records show the landlord has created a new complaint reference to address these additional concerns and this service has not seen evidence that this has yet exhausted its complaints procedure. Once a final response is provided to the resident, if he remains unhappy, he would be able to refer the later complaint regarding the landlord’s ASB handling to the Ombudsman for further consideration. 

Background and summary of events

Background

5. The resident is an assured tenant of the landlord, a housing association. He has resided at the property, a 1-bedroom flat, since 2008, since when his landlord merged with another in 2022 to create the current entity.

Scope of investigation

6. In correspondence with this service, the resident advised that concerns raised within his complaint regarding repair issues have now been resolved and he was solely referring concerns regarding noise and ASB to the Ombudsman. As such, the landlord’s handling of any repair issues will not be addressed within this investigation, although they may be referred to for context.
7. While records show the resident had contacted the landlord regarding the lack of soundproofing in his property as early as December 2017, this service has not seen evidence that these were pursued through the landlord’s complaints procedure. This investigation will therefore concentrate on the period leading up to the complaint the resident logged in December 2021, which he ultimately referred to this service, although previous reports may be referred to for context or in relation to any consideration of the landlord’s record keeping.

Summary of events

8. On 26 December 2021, the resident submitted a complaint to the landlord via its website. Although the complaint was largely regarding outstanding repair issues, the resident also raised concerns about the fact he could “hear everything (his) upstairs neighbours say or do” and there was “no privacy” between him and his neighbour. He stated this was “not OK” and advised he had had “people come out…that tested the soundproofing and said it was unliveable”. He advised he had sleep apnoea, asthma, and sciatic nerve issues and as such he needed his “living environment to be better” but that “nothing seems to be done”, despite him having reached out to the landlord on several occasions.
9. The landlord provided a stage 1 complaint response on 14 January 2022. The bulk of its reply dealt with the repair issues referred to above, but it also responded to his concerns over noise transference and the reported lack of privacy between himself and his upstairs neighbour. It noted his request for soundproofing to be installed in his bedroom and front room and that he had advised he had been told this would happen “years ago”. However, the landlord stated it considered he had been correctly told that it had “no responsibility for sound insulation”. It explained this was because such an installation would be “classed as an upgrade and not a repair” and that it was acting in line with “the Right to Repair Act”. It clarified it was therefore “not able to assist” further. It did however advise it would arrange for a surveyor to carry out a further inspection of the property on 19 January 2022.
10. The resident submitted a review (complaint escalation) request on 16 January 2022. Regarding the sound proofing issue, he stated he believed it was the landlord’s “responsibility to ensure the living environment…is calm”. He reiterated that “years ago” an assessment had been carried out at his home and the landlord had “offered for soundproofing to be completed but nothing was ever done”. He stressed his neighbour was “not the issue” and their family were “just living their lives”, so he would not be speaking to them about noise nuisance or requesting the landlord to do so. He also requested the landlord provide him with “all reports on the soundproofing tests that have been completed” at his home.
11. Landlord records indicate that an inspection took place on 18 January 2022. It largely looked at repair issues raised by the resident, but the surveyor’s report also noted the resident had requested sound insulation. The surveyor reported he had advised “this would be an upgrade and not something we would do”.
12. On 8 April 2022, the landlord sent its stage 2 (Review Panel) complaint response to the resident. It again addressed repair issues raised by the resident, along with his concerns relating to the “soundproofing issue”. The panel noted that, as an outcome, the resident wanted his “house to be soundproofed” and to receive “soundproofing reports”. It made the following comments and findings:
    1. Regarding the resident’s assertion that a soundproofing assessment had already been completed and that he had previously been offered soundproofing, the landlord acknowledged it “may have previously advised we’d do sound proofing” but it was not “something we would do any more”. It apologised for the fact it was not able to “provide outcomes of any previous soundproof tests/reports”.
    2. It advised the resident that if he wanted to install soundproofing himself, he would need permission in accordance with its Home Improvement Policy. It also noted that it did not “encourage” residents to install floor coverings such as “laminate or hard wood flooring”.
    3. If highlighted that, if it granted permission to install new flooring, the resident would have certain obligations which included “removing the flooring if it proves to be a noise nuisance to neighbouring tenants”.
    4. It had appointed a Chartered Surveyor to “report on the overall condition of the floors and ceilings” in the resident’s home. The surveyor would attend on 8 April 2022 and the landlord would contact the resident once it received their report, which it hoped would be provided by 22 April, and “advise any next steps based on (the surveyor’s) recommendations”.

Assessment and findings

13. This Service recognises how the noise concerns the resident has reported have impacted on him and that he considers they have affected his overall living conditions. The Ombudsman cannot assess whether the landlord’s actions, or lack thereof, have any causal effect upon a resident’s reported health conditions. He should therefore consider obtaining independent advice if he wishes to pursue this aspect of his complaint further. What this service can assess is how a landlord has dealt with reports it receives within the timeframe of a complaint, and assess whether it followed proper procedures, followed good practice, and behaved reasonably, taking into account all circumstances of the case.
14. Records show the resident had contacted the landlord regarding noise transference and the need for sound insulation in his property since at least 2017, indicating the issue had caused him distress for a considerable period. He noted in 2017 that one or more sound tests had already been carried out by the landlord and that it had advised him it would install soundproofing in his home. As will be noted below, the landlord has not disputed this was the case.
15. In the absence of a separate policy regarding noise nuisance or neighbourhood management, the landlord deals with all noise reports via its Anti-Social Behaviour procedure. While it is acknowledged this is a common approach across the sector, in the Ombudsman’s opinion this proved unhelpful given that the resident was clear he did not consider the reported noise constituted ASB, noting at one point that his neighbours were just “living their lives”, and maintained it was solely caused by poor sound insulation between the properties. This means that, in many cases, the landlord will have no effective way of addressing noise reports that are unrelated to ASB. The Ombudsman’s spotlight report on noise complaints (“Time to be heard”, published in October 2022) recommends that landlords develop a separate neighbourhood management policy to deal with non-statutory noise nuisance and a recommendation will be made at the end of this report for the landlord to review the Ombudsman’s report and carry out a self-assessment against the recommendations made.
16. Nevertheless, having received reports of noise transference from the resident, the landlord was required to respond to these via its ASB procedure. However, there is no evidence the landlord opened an ASB case or completed a risk assessment, as per its procedure. Given the resident had mentioned several health issues which he stated were being exacerbated by, among other issues, the noise transference, the landlord should have considered how the situation may have been impacting on him. That it did not do so was a failing, especially considering its ASB procedure specifically states risk assessments should be used to “quickly assess the harm experienced (by a resident) irrespective of the ASB type”, noting that “a noise case may not sound serious but if a person isn’t coping it could be seriously affecting their wellbeing”. There is insufficient evidence the landlord considered how the reported noise may have been affecting the resident, even if it did not amount to ASB.
17. Under the heading “how do you decide what’s excessive noise?”, the landlord’s ASB procedure states it should “consider other measures to help e.g., checking for adequate floor covers” in cases where it is determined that the reported noise does not constitute ASB. However, other than advising the resident it would not install soundproofing, there is no evidence of other steps taken by the landlord. There is no evidence it considered whether it could, or should, have further investigated whether any measures could be taken to minimise the noise transference, such as investigating the condition of the neighbour’s flooring or carrying out further sound tests. That it did not do so was a failure and meant it did not treat the resident fairly or follow the guidance within its own procedures. While it may have been reasonable for the landlord to conclude the noise reported was nothing more than “household noise” – and it is noted the resident also stressed this was the case at the time – it did not appear to carry out any investigations of its own or give consideration as to whether anything could be done to improve the conditions the resident was consistently reporting.
18. The resident’s complaints – made as far back as 2017 – consistently outlined his belief that the landlord had previously attended his property to carry out at least one sound test and had also advised him it would install sound insulation. This investigation has not seen evidence this was the case. However, while the information available shows the landlord was consistent in advising the resident it would not install sound proofing, its explanations as to why it would not do so were unsatisfactory. Its initial complaint response erroneously referred to “the Right to Repair Act”, legislation which does not exist. It is assumed it meant to refer to a Right to Repair policy. Right to Repair regulations only apply to local authorities, although many housing associations have adopted their own policies. However, the landlord has not provided details of any policy to this service, and during this investigation the Ombudsman was not able to find one on its website. An order has been made for the landlord to clarify whether it has its own Right to Repair policy and ensure this is publicly available.
19. It was not unreasonable for the landlord to advise that the installation of sound insultation would be classed as an upgrade rather than a repair, but in the interest of transparency and good communication it should have been clearer regarding which policy and/or legislation it was relying on to form its position. Furthermore, during the landlord’s complaint investigation, internal correspondence cited case law (Baxter v London Borough (LB) of Camden and Mills v LB Southwark 1999) which held that landlords were not obliged to install sound insulation in properties. It was reasonable that the landlord had considered previous cases which may have been relevant to the resident’s request and subsequent complaint, and it was entitled to find that the legal outcome(s) applied to the resident’s circumstances. However, this justification was not included within the landlord’s responses to the resident and differed from its explanation regarding a “Right to Repair Act”. Further details regarding why it had determined it would not install sound insulation would have been beneficial as a way of managing the resident’s expectations and providing him with a suitable reference point regarding the bases on which the landlord made its decision.
20. However, while the landlord may have been entitled to decide it would not install sound proofing at the resident’s property, it is noted that its final complaint response accepted it “may have previously advised we’d do sound proofing”, while also clarifying that it was “not something we would do any more”. In the Ombudsman’s opinion, it was unreasonable that the landlord failed to offer further explanation as to why it had apparently changed its position. Its blunt assertion that it was “not something we would do any more” was unhelpful as it lacked transparency and would have left the resident feeling confused. As above, it should have set out more clearly the policies and procedures, legislation and/or case law it relied upon to justify its position, or it should have clarified whether there had been any change in policy over the period in question which may have led to it changing its mind about installing soundproofing. From the evidence available, the landlord gave insufficient consideration to the fact the resident would have had his expectations raised previously, if he had indeed been told insulation would be provided (and the landlord did not ultimately deny this), and the fact he would have been left frustrated by the considerable length of time the installation was not actioned before the landlord settled on its final position. 
21. While it was reasonable the landlord’s final complaint response outlined the resident would require permission to install his own soundproofing, as per its existing policy, it was confusing that it then provided information regarding the installation of flooring and stressed it did not encourage residents to install wooden or laminate flooring. The landlord went further by advising that any flooring installed would have to be removed if it proved to “be a noise nuisance to neighbouring tenants”. However, the resident had requested insulation in his ceiling, given the noise was coming from above, rather than his floor. The response appeared muddled, and it would likely have been frustrating for the resident that the landlord set out how it would deal with any potential noise nuisance reports were he himself to install flooring, while there was no evidence it had considered whether an inspection of his neighbour’s flooring was necessary.
22. It is also noted that in his complaint escalation request, the resident asked the landlord to provide the results of sound tests previously carried out in his property. The landlord advised it was not able to do so but did not explain why. In the Ombudsman’s opinion, it should again have been less opaque and advised the resident why it could not do so as it remains unclear if it was unwilling to provide the results, or whether it had no record of them. Either scenario is inappropriate, whether due to a lack of transparency and poor communication with the resident, or because of poor record keeping, and therefore amounts to a further service failure.
23. Having advised the resident it was unable to provide details of any sound tests that had been carried out in his property previously, in the Ombudsman’s opinion, the landlord missed an opportunity to put things right by agreeing to carry out a further test. This would have shown the resident it took his complaint seriously and filled in an identified gap in its records. It would also have treated the resident fairly by providing further evidence it had carried out appropriate and relevant investigations before reaching its final conclusion that no further action was necessary.
24. Its failure to consider carrying out a further sound test following the resident’s complaint also highlights an apparent lack of consistency in how it deals with such reports. The Ombudsman notes that in another case brought to this service around the same time (202112884), the landlord obtained a report from an Acoustic Sound Engineer “in investigate whether poor soundproofing…was exacerbating noise”. While in case 202112884 the landlord was ultimately found to have acted reasonably when relying “on (the report) to conclude that no soundproofing works were required”, it is unclear why it did not consider carrying out further tests in the resident’s case. While the Ombudsman is not stating that the landlord should organise specialist sound tests following each noise report it receives, it nevertheless appears the resident did not receive the same service or consideration as another tenant who reported similar circumstance. This was a further service failure as it meant the resident was not treated fairly. A recommendation has therefore been made for the landlord to review how it responds to reports of noise nuisance/transference and set out a procedure regarding when and if it should carry out further sound tests.
25. It was, however, appropriate that the landlord’s confirmed in its final response that it had organised for a Chartered Surveyor to attend and carry out a report on “the condition of the floors and ceilings”, although it was not clear whether this was related solely to the repair issues reported, or also would look at the noise transference. In any case, this service has not seen evidence regarding whether the survey took place and what recommendations, if any, were made. An order has therefore been made for the landlord to share the surveyor’s report with the resident if it has not done so already. 
26. The Ombudsman’s spotlight report on noise complaints, referred to above, addresses complaints where noise is potentially preventable. This service acknowledges “landlords are not responsible for soundproofing homes above the standards applicable at the time of building, it needs to be recognised that actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report. Ultimately, and importantly, this will provide a better quality of service to residents.” In this case, while the Ombudsman considers the landlord was under no obligation to carry out further soundproofing works, as outlined within his noise spotlight report it would have been expected to give further consideration to other noise reducing measures. A recommendation has been made that it should consider the resident’s property for any future discretionary property improvement schemes or funding that may become available.
27. Overall, due to the failings identified above, the Ombudsman considers there was maladministration by the landlord regarding its handling of the resident’s request for sound insulation to be installed. While it was entitled to refuse the request, its correspondence on the issue lacked transparency and, having acknowledged that it may previously have agreed to install soundproofing, it unreasonably failed to explain why its position had changed or recognise the frustration and distress that such a volte face would have caused the resident. There is insufficient evidence it carried out appropriate enquiries into his reports and it was inappropriate that it could not provide the results of previous sound tests. It should also have considered carrying out further tests following this identification of a gap in its records. The overall impact of the noise on the resident was not given sufficient consideration. Having received his noise reports, the landlord failed to respond appropriately via its ASB procedures when it failed to carry out a risk assessment or consider what, if any, further steps it could take to reduce household noise. An order has therefore been made for the landlord to compensate the resident for these identified failings.

Determination (decision)

28. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration regarding the landlord’s handling of the resident’s request for the installation of sound insulation in his property.
29. In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the landlord’s handling of the resident’s anti-social behaviour (ASB) reports is outside of the Ombudsman’s jurisdiction.

Reasons

30. While the landlord was entitled to refuse the resident’s request for soundproofing, there were several failings in its overall handling of the request. It did not properly process the resident’s noise reports through its ASB procedure, failing to carry out a risk assessment or consider other potential noise reduction measures or how the noise may have affected him, even if it was non-statutory or “household” noise. There was a lack of clarity within its explanations of why it would not install soundproofing, and some confusion around policy and legislation it cited. It also did not acknowledge how its apparent change of position would have affected the resident. There was evidence of poor record keeping regarding its inability to provide copies of sound reports it carried out and there was no indication it considered commissioning a further sound test following the complaint.

Orders and recommendations

Orders

31. The landlord is ordered to, within four weeks of the date of this determination:
    1. Write to the resident to apologise for the impact the failings identified within this report had on him.
    2. Pay the resident £500 compensation, made up of £250 to reflect the failings identified in this case and a further £250 to reflect their impact on the resident and his time and trouble pursuing his original request and subsequent complaint.
    3. Share the surveyor’s report from the inspection carried out on or around 8 April 2022 with the resident and this service and provide an update on the current status of any repairs identified to alleviate the reported noise, if it has not done so already. 
    4. Provide this service with a copy of its Right to Repair policy and ensure this is publicly available if it has one. If it does not, it should write to the resident and this service to clarify what regulation(s) it was relying on when it advised it would not carry out soundproofing in line with the “Right to Repair Act”.

Recommendations

32. The landlord should consider commissioning a further noise report in light of the fact it did not hold records for the results of previous tests carried out. It should also consider inspecting the property above the resident’s to establish whether any additional measures can be taken to alleviate noise transference. 
33. The landlord should also consider carrying out a self-assessment against the recommendations made within the Ombudsman’s spotlight report on noise nuisance (available here: www.housing-ombudsman.org.uk/wp-content/uploads/2022/10/Spotlight-Noise-complaints-final-report-October-2022.pdf.) with particular consideration given to whether it will develop a separate policy and procedure for dealing with noise reports that are not related to ASB.
34. The landlord should provide feedback to the Ombudsman regarding whether it actions the above recommendations.