Bristol City Council (202107726)

REPORT

COMPLAINT 202107726

Bristol City Council

20 October 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 reports of noise nuisance from her neighbour.

Background and summary of events

The resident is a tenant of the landlord, which is also the local authority. The property is a flat. The resident’s neighbour lives in the flat above hers.
The resident emailed the landlord on 10 January 2021 and reported that she heard drilling noises from the flat upstairs both day and night. She advised that this was affecting her sleep and causing stress. She added that the ceiling in her bathroom had developed cracks and her kitchen ceiling had a hole in it that was leaking. She believed that this could have been caused by the drilling from the flat upstairs. The resident attached a video recording of the noise she was experiencing. On 12 January 2021, the landlord asked the resident to monitor the noise and record it on a diary sheet.
The resident sent a further email to the landlord on 27 January 2021 and enclosed diary sheets and video recordings of the noise. She advised that she began hearing noise from the upstairs property, in her flat and her garden around January 2020. She had knocked on her neighbours door several times but received no response. She added that the noise was affecting her health as she was not able to sleep. She confirmed that she also recorded the noise overnight and would send the recorder she had used to the landlord by post. The noise reported on the diary sheets included DIY type noises mostly during the day and loud music being played.
The landlord wrote to the resident on 28 January 2021 and confirmed that it would issue a warning letter to the resident’s upstairs neighbour in view of the noise the resident had reported. It asked the resident to continue to monitor the noise for 14 days and provide it with an update. It also offered mediation and invited the resident to discuss this further if she wished to proceed with this option. The landlord’s records show that it wrote to the resident’s neighbour on the same day.
The landlord received communication from the resident’s neighbour on 9 February 2021, who confirmed that there was a drilling noise but it was not from their property.
The resident sent a further email to the landlord on 17 February 2021 and explained that the noise was ongoing. She advised that drilling and hammering noises occurred throughout the day until the evening. She added that other neighbours were also aware of this noise although they were not sure which property the noise was coming from. She advised that the security light in her back garden was triggered most nights by water or other liquids being poured outside from the upstairs property.
The landlord’s records show that it called the resident on 17 February 2021 and she confirmed that the noise was coming from her upstairs neighbour’s property. The resident emailed the landlord on the same day and said that she had additional recordings of the noise that she was willing to share with the landlord. She sent further video clips of the noise to the landlord on 19 February 2021.
The landlord responded to the resident on 23 February 2021 and provided information about a noise monitoring app which could be used to record the noise. It asked the resident to only record noise in rooms where she was disturbed and not in the kitchen or hallway as one of the recordings sounded like a washing machine.
The resident sent a further email to the landlord on 23 February 2021 and explained that her neighbour moved a machine around their property and she could regularly hear noise in the hallway and kitchen. She said that the noise was not caused by a washing machine and asked that the landlord attended the property to see what was causing the noise. The landlord asked the resident to continue using the noise recording app so that it could determine whether the noise was a statutory noise nuisance.
The landlord’s internal records show that it listened to the noise app recordings on 8 March 2021 and said that it was unclear what was causing the noise. It noted that the noise appeared to occur at the same time each day in the morning and evening. It emailed the resident on 22 March 2021 and said that it would visit the property the following day as it could not identify the noise on the recordings.
The landlord’s internal records show that it attended the property on 23 March 2021 and noted that there was no initial noise heard in the property. It had run the hot tap in the neighbour’s property and the resident confirmed that this was the noise. Once the landlord had returned to the resident’s property she said that this was not the noise and proceeded to show video recordings with the noise of a drill. The landlord offered the details of a night service as she had advised that the noise at night was worse. The resident declined this as she worked over the weekend so was less affected by the noise at that time.
The landlord wrote to the resident on 24 March 2021 and confirmed that it had visited the property on 23 March 2021 and found that the noise was caused by the boiler in the adjoining property. The landlord had run the hot tap in the neighbouring property and the resident confirmed that this was the noise she had heard. The landlord added that this was the noise which was recorded on the noise app. It explained that it could not report this type of noise as a statutory noise nuisance but had referred the issue to its gas servicing team who would carry out a visit to the neighbouring property to see whether the noise issue from the boiler could be rectified. The landlord confirmed that there was no further action it could take at this stage. The landlord’s records show that it emailed its gas servicing team on the same day to report the noise caused by the neighbour’s hot water taps.
The evidence provided suggests that the resident raised a formal complaint with the landlord on 29 March 2021 related to the noise she was experiencing and her noise complaint case being closed. The details of this complaint have not been provided to the Ombudsman for review.
The landlord issued a stage one complaint response to the resident on 19 April 2021 and confirmed that it agreed with the decision to close the resident’s noise nuisance complaint. It did not dispute that the resident had been disturbed by noise coming from the neighbour’s property. However, it had identified that the noise was caused by the boiler in the neighbour’s property and was not caused by the conduct of the neighbour. It confirmed that it had followed-up on its request for the issue with the boiler to be resolved. It added that if the resident remained dissatisfied, she could escalate her complaint to stage two of its complaints procedure.
The resident responded on 3 May 2021 and explained that she was not satisfied with the landlord’s complaint response. She asked for her complaint to be escalated as she did not feel her concerns had been resolved. She disputed that the drilling and hammering noises were coming from her neighbour’s boiler or taps. She explained that she was still experiencing the noise and reiterated that this was affecting her health. She maintained her position that her neighbour was using a machine and moving it between rooms. The resident advised that she continued to record the noise both on the noise app and via video.
The landlord’s internal records show that it listened to the recordings provided by the resident on 28 May 2021, two appeared to contain DIY noise but not at a time of day that would be considered a noise nuisance. It noted that there was also heavy footfall which would be considered to be household noise. By this point the landlord’s repairs team had attended the neighbouring property and found no issues with the boiler. The landlord noted that unless the issues became significantly worse it would not complete a further investigation.
The landlord’s records show that it attended the neighbour’s property on 2 June 2021. It ran all taps at the property and heard no noise or banging. It was noted that there were no non-standardised items which would make noise over the normal levels. It also observed no repair issues. The washing machine was running at the time of the visit but this was no louder than expected.
The landlord issued its stage two complaint response to the resident on 10 June 2021 and explained the following:
1. It apologised for the delay in responding. It noted that the resident believed that the noise was caused by antisocial behaviour rather than from the pipes or plumbing in the neighbour’s flat.
2. It confirmed that it had reviewed the case notes and found that the resident had originally confirmed that the noise caused by the neighbour’s hot water tap was the noise she was hearing. She then said that it was not and provided a noise recording of a drill. It noted that to classify noise such as drilling as a statutory noise nuisance it would need to consider the frequency, location and duration of the noise. At this stage no further action could be taken. It had also reviewed the resident’s other noise recordings and considered these to be general household noise rather than noise nuisance.
3. It acknowledged that the noise was causing the resident inconvenience but agreed with the conclusions it had previously reached. The noise the resident had reported did not meet the threshold for Statutory Nuisance and there was no further action it could take. It confirmed that it had checked whether there were any other repair issues that may be causing the noise it detailed the findings of its visit on 2 June 2021 and confirmed that there were no other repair issues observed or reported by the neighbour.
4. It noted that the noise the resident was experiencing appeared to be a combination of everyday living activities. It was unable to ask the neighbour to stop causing noise as there was no evidence that they were causing the noise nuisance on purpose. It confirmed that at this stage, it had exhausted its investigations. It said that it would continue to investigate any further reports of antisocial behaviour in the future.
The resident referred her case to this Service as she did not feel that the landlord had investigated her reports of noise correctly. She added that the noise was ongoing and disputed that the noise was everyday household noise. She maintained her position that there was regular drilling and hammering in the property above hers.

Assessment and findings

Scope of investigation

The resident has said she considers that the noise issues affecting her property have impacted her mental health. The Ombudsman does not doubt the resident’s comments. However, it is beyond the authority of this Service to make a determination on whether there was a direct link between the noise issues and the resident’s mental health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident and her family experienced because of any errors by the landlord.

The landlord’s response to the resident’s reports of noise nuisance from her neighbour.

It is outside the Ombudsman’s remit to determine whether ASB or noise nuisance has taken place. Instead, the Ombudsman’s role is to consider the appropriateness and adequacy of the actions taken by the landlord to investigate and respond to the resident’s reports of noise and ASB from a neighbouring property. The Ombudsman has considered whether the landlord has acted reasonably, proportionately and in line with its policies and procedures in response to these reports and the subsequent formal complaint.
In line with its antisocial behaviour policy, the landlord has an obligation to investigate reports of ASB and respond appropriately. The resident has accused her neighbours of noise nuisance, which would fall under the heading of ASB, as set out in the landlord’s ASB policy. Therefore, the landlord would have been expected to investigate and take reasonable steps to resolve any ASB which was identified following its investigation. A landlord should generally only consider taking formal action against its tenants if informal attempts have not successfully resolved the issues. For a landlord to take formal action regarding ASB, such as written warnings, injunctions etc, the landlord would usually require extensive evidence to confirm that the alleged behaviour was serious and took place over a prolonged period of time. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both the landlord and the local authority’s Environmental Health service may be able to warn and take formal action against the perpetrator. When considering whether noise is a statutory nuisance, consideration should be given to the volume of the noise, whether it occurs at unsocial hours (late at night or early in the morning) and whether it is voluntary noise such as shouting or music rather than general household noise such as footsteps, doors closing or washing machines running.
In this case, the landlord acted promptly to investigate the issue by asking the resident to complete diary sheets from 12 January 2021 to gather evidence to substantiate her claim. Following this, it wrote to the neighbour on 28 January 2021 warning them in relation to the noise reported. The landlord also offered the use of a noise monitoring app to gain time-stamped records of the noise the resident was experiencing. The neighbour denied the allegation that they were drilling in the property and the landlord found that it was not possible to identify the source of the noise from the noise recordings it had been provided. It then took appropriate action to visit the property to identify the source of the noise.
It initially found that a noise was caused when the neighbour’s ran their hot water taps. The landlord has advised that the resident agreed that this was the noise she was hearing but later disputed this, saying that it was instead the sound of a drill or a machine that the neighbour moved between rooms. The resident has advised that she did not say that the noise from the water tap was the noise she was hearing. Following this, the landlord took appropriate steps to investigate whether there were any further repair issues at the neighbouring property which may be causing noise such as a problem with the boiler. The landlord’s inspection did not identify any repair issues. It continued to investigate this matter by visiting the neighbouring property again on 2 June 2021 and found there to be no non-standardised items that could be causing noise such as a drill or machine the resident had described.
Ultimately the landlord listened to the noise recordings and found the noise was mostly everyday household noise. It also noted that the DIY noises were mostly recorded during the day not during unsociable hours which would not be classed as a statutory noise nuisance. In the absence of clear evidence of a statutory noise nuisance, despite the landlord’s investigations into the matter, it was reasonable that the landlord did not take further action against the neighbour. The landlord also took reasonable steps to offer to visit the property in the evening over a weekend to witness the issues the resident was experiencing. It is noted that the times offered were not suitable due to the resident’s work commitments. However, this suggestion shows that the landlord was taking reasonable steps to investigate and resolve the issues. Since the resident has reported that the noise issues are ongoing, it is recommended that this offer remains open to the resident should she be available, the landlord should also consider offering this service on different days, if possible, in view of the resident’s work commitments.
Given that the source of the drilling noise had not been identified and the resident had advised that other neighbours had also commented on the noise, it would have been helpful for the landlord to contact other neighbours to gain further information. This would not have significantly changed the outcome as the landlord took reasonable steps to investigate the resident’s reports and it would not be expected to take formal action against DIY noises that occur during reasonable hours. It is also noted that other residents were unable to identify where the noise was coming from and the neighbour denied it was coming from their property. However, it is recommended that the landlord considers taking this action in the future should the resident continue to report these concerns.
In summary, the landlord took proportionate and reasonable actions in response to the resident’s reports of noise nuisance from her neighbour. It found that the noise the resident was experiencing would be classed as everyday household noise and would not be deemed a statutory noise nuisance. It was, therefore, reasonable that the landlord did not take further action against the neighbour. There was no service failure by the landlord in responding to the resident’s reports of ASB. It is recommended that the landlord continues to investigate any new reports of noise nuisance or ASB in accordance with its ASB policy and procedure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there has been no maladministration by the landlord regarding its handling of the resident’s reports of noise nuisance from her neighbour.

Reasons

The landlord took proportionate steps to investigate the resident’s reports of noise nuisance from her neighbours using diary sheets, noise monitoring equipment and property visits. In view of the lack of evidence to suggest that the noise was a statutory noise nuisance, it was reasonable that no further action was taken against the resident’s neighbours.

Recommendations

It is recommended that the landlord keeps its offer of an evening visit to the resident’s property open, as the resident has reported that the noise is ongoing. The landlord should also consider offering this service on different days, if possible, in view of the resident’s work commitments.
It is recommended that the landlord continues to investigate any new reports of noise nuisance or ASB and allows use of its noise monitoring app as the issues appear to be ongoing.
It is recommended that the landlord considers contacting other tenants in the building if the resident continues to report noises such as drilling during unsociable hours to gain further information.