Bristol City Council (202008981)

REPORT

COMPLAINT 202008981

Bristol City Council

28 June 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

The complaint is about the landlord’s response to the resident’s:
1. Reports of anti-social behaviour (ASB).
2. Request for soundproofing in the property.
3. Complaint handling.

Background and summary of events

Background

The resident has a lease for a two-bedroom flat with the landlord that started in late 2015. The landlord is a local authority.
The lease says that the resident should keep the property “substantially covered in carpets or other suitable materials for avoiding the transmission of noise”. It also says that the tenant should not make or suffer any unreasonable noise including by way of music or TV at any time whatsoever.
The neighbourhood enforcement team (the NET) combines a number of enforcement functions for the local authority including noise pollution.
The landlord’s ASB policy sets out the action it will take in response to reports of ASB which include:
1. Take all complaints seriously and investigate them promptly.
2. Provide incident logs or a dictaphone for the resident to record details of ASB incidents.
3. Offer mediation if it thinks it would be the most effective way to deal with the problems.
The landlord has a two-stage complaints procedure. The landlord aims to respond within 15 working days at stage one and within 20 working days at stage two.

Summary of events

On 4 November 2019 the resident reported her neighbour’s loud music and shouting to the local authority’s environmental health team. She provided diary sheets to an environmental health officer (the EHO) who, on 29 November 2019, sent a warning letter to the neighbour.
On 31 January 2020 the EHO sent the resident a warning letter about noise after receiving counter-allegations from the neighbour. The EHO later told the resident the neighbour had complained about noise from 14 January 2020.
On 6 February 2020 the resident told the EHO that, as the neighbour could hear her “slamming doors”, she could hear them too. She said that, unless the flats could be better soundproofed, “I don’t think there is much that can be done”.
In March 2020, following further reports of noise, the EHO suggested to the resident that she use a noise app to record the noise from the neighbour.
On 17 April 2020 the EHO noted that the noise app recordings provided by the resident were “not conclusive” and he noted “suspect this is just living noises between each property and unlikely to action” but noted that he would continue to monitor.
On 17 July 2020 the resident made a formal complaint to the landlord saying that the landlord should be responsible for soundproofing the property and that the landlord had an obligation to ensure she had ‘quiet enjoyment’ of the property.
On 29 July 2020 the landlord wrote to the resident. Its main points were:
1. It did not have a legal obligation to soundproof the property. The flat was built in around 1951 and, at that time, it had complied with the building regulations in place at the time.
2. Building regulations were not applied retrospectively and therefore there was no legal requirement for it to bring its old flats up to modern soundproofing regulations. The landlord’s policy was that it did not carry out noise insulation improvements to its stock of housing unless there were exceptional circumstances.
3. The retrofitting of sound proofing was not cost effective and, as a discretionary improvement, would not be undertaken.
4. “Quiet enjoyment” meant that a tenant has the right to use their property without unreasonable or unnecessary interference from their landlord, not that it had to ensure that she lived in a quiet home.
5. An explanation of how the resident could report a noise complaint to the local authority and gave a link to that process noting that the action taken would be to require the person causing the noise to stop. It would not involve requiring the landlord to provide sound proofing measures.
6. Every-day activities, such as toilets flushing, doors banging, TV noise late at night would not be classed as a statutory nuisance or anti‑social behaviour and would, therefore, legal action would not be taken.
7. Over the years there have been other complainants who have made similar requests about soundproofing and had taken their complaints onto the Ombudsman. In each case the Ombudsman had upheld the landlord’s policy on sound insulation and did not require sound proofing to be carried out.
Following contact from the resident querying points the landlord had made in that letter, it wrote again to her again on 6 August 2020 confirming that the circumstances of her case were not exceptional and it would not therefore soundproof the property. It noted that the cost of doing so would be about £10,000. It explained how she could escalate her complaint.
On 25 August 2020 the resident asked the landlord to escalate her complaint. The landlord acknowledged that request following day.
On 22 September 2020 the landlord wrote to the resident at the final stage of its formal complaints procedure. In response to her query about why she needed to fit carpets but the neighbour had wooden flooring, it said that they had different legal contracts with it and the neighbour’s tenancy agreements did not require her to fit carpets. The landlord added that it was not its responsibility to retrospectively fit soundproofing nor was it a cost-effective solution to noise. It signposted the resident to the Ombudsman.
In October 2020 the resident made reports of noise and ASB to the environmental health team; in the same month counter-allegations were made against her by the neighbour.
In late January 2021 the NET gave the resident details of the noise app; they said that recordings she had previously provided were not time and date-stamped and therefore they were unable to make a full assessment of the noise.
On 24 March 2021 the local authority served a noise abatement notice on the neighbour which it noted arose from loud music/television and banging. This notice required the neighbour to
1. ‘Adopt reasonable modes of conduct so that any noise generated does not cause a nuisance within any other premises in the vicinity’.
2. Abate the nuisance so as not to cause a nuisance within any other property within the vicinity.
When the resident approached the Ombudsman, she gave an update saying that the neighbour was no longer living in their property, but it was not clear if that was permanent. She said she believed the landlord had breached its contract with her by allowing the noise transference between the properties to continue and should help to rectify the problem. She said she had asked it to install soundproofing at the property. The resident also said that she believed the landlord had acted unprofessionally by trying to dissuade her from bringing her complaint to this Service in the final complaint response.

Assessment and findings

Response to reports of ASB

This report has considered matters from the date of the resident’s reports of noise in November 2019 to the date of the landlord’s final response. It is open to the resident to make a fresh complaint to the landlord if she remains unhappy with its actions after the date of the final complaint response.
It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of anti-social behaviour and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
In this case it was the local authority’s environmental health and neighbourhood enforcement teams that looked into the resident’s reports of ASB leading up to when the formal complaint was made in July 2020 (paragraphs 10 to 14, below).
Ultimately, given that the environmental health team had assessed the noise as everyday living noise and was therefore not unreasonable, there was no evidence that the neighbour was breaching their tenancy or was responsible for a statutory noise nuisance; or that the resident’s tenancy was being breached (paragraph 3). It was therefore reasonable that the landlord did not take action against the neighbour. However, it would be reasonable for the landlord to consider taking tenancy action in the future should the local authority determine that there is a statutory nuisance and this Service notes that a noise abatement notice was serviced on the neighbour in March 2021 (paragraph 20). This Service has not seen evidence of what action the landlord took at that time.

Request for soundproofing in the property

The landlord acted appropriately by explaining to the resident its obligation in terms of building regulations relating to soundproofing of the property. Its decision that it did not need to soundproof the building on an exceptional basis was reasonable, given that the local authority’s assessment was that the resident was experiencing everyday noise (paragraph 14).
Case law has established that there is no legal requirement for landlords to retrospectively fit improved sound installation. Therefore, while there may be poor sound insulation at the property, there is no legal obligation for the landlord to improve this. The landlord was therefore entitled to decline the resident’s request for soundproofing.
This Service does not dispute that the resident is adversely affected by the noise from the neighbour and that this causes her inconvenience and distress. However, the landlord is not obliged to update or improve the soundproofing at the property. As the leaseholder of the property, it would be open to the resident to ask for the landlord’s consent to install soundproofing herself.

Complaint handling

The landlord’s complaint responses were appropriate as they covered the issues that the resident raised and were issued within the timescales set out in the complaints procedures.
The resident took the landlord’s comments in its stage one complaint response as an attempt to persuade her not to approach this Service (paragraph 12.g). It was reasonable for the landlord to try to manage the resident’s expectations; however, it was not appropriate for it to say what the outcome of a complaint to this Service might be. That is because the Ombudsman considers each case on its own merits, therefore, while two cases may look similar, the outcome for each may be different.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its:
1. Response to the resident’s reports of ASB.
2. Request for soundproofing in the property.
3. Complaint handling.

Reasons

It was reasonable that the landlord did not take action against the neighbour in the absence of a statutory noise nuisance as the noise had not been classed as unreasonable.
While it is acknowledged that the noise causes inconvenience and distress to the resident, the landlord is not obliged to upgrade the soundproofing in the property.
The landlord’s complaint handling was appropriate and in line with its complaints procedures. It was reasonable for the landlord to try to manage the resident’s expectations.

Recommendations

It is recommended that the landlord remind its complaints handling staff that they should not include in a complaint response what they consider the outcome of a complaint to the Ombudsman might be.