Clarion Housing Association Limited (202127293)

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REPORT

COMPLAINT 202127293

Clarion Housing Association Limited

22 January 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 the landlord’s response to the resident’s reports of noise nuisance from a neighbour’s property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is a leaseholder who owns a 1-bedroom, first-floor flat. The lease began on 17 November 1997. The landlord does not have any vulnerabilities recorded for this resident.
  2. The resident first complained about noise transference from a neighbour’s property in 2009. The complaint exhausted the landlord’s complaint procedure and received a determination from this Service in 2011. The primarily outcome was that the landlord (trading at that time as Circle 33) committed to replacing laminate floor in the neighbour’s property with carpet, when the neighbour moved out. This was to reduce noise transference.
  3. The resident raised a new stage 1 complaint to the landlord (now trading as Clarion Housing Group) on 15 March 2022 on the grounds that the noise was continuing and the resident was unhappy with the landlord’s responses when he had raised this.
  4. The landlord issued its stage 1 complaint response on 28 March 2022 and did not uphold the complaint. The landlord stated that there was no legal requirement, or contractual requirement within the tenancy agreement to require or prevent any particular types of flooring within the property. For this reason, the landlord felt that it was not able to insist that carpet was laid.
  5. The resident remained dissatisfied and escalated his complaint to stage 2 of the landlord’s complaints process, citing the previous commitments made by the landlord in the earlier 2009-2011 complaints process. The resident felt this was illegal and noted that further laminate had been laid over the original laminate flooring, which had exacerbated the noise further.
  6. The landlord issued its stage 2 complaint response on 14 June 2022. The landlord noted that the law cited by the resident in his escalation only related to new build properties. It also stated that the flooring had been laid prior to a policy being introduced banning this type of flooring. The landlord did not feel it could retrospectively apply this policy. The landlord stated that it could ask the neighbour to lay carpet but would not be able to compel them to do so.
  7. The resident remained dissatisfied with the landlord’s response and escalated his complaint to the Ombudsman seeking an instruction that carpet be laid in the neighbour’s property to abate the noise.

Assessment and findings

Scope of investigation

  1. It is noted that this issue was first raised by the resident in 2009 when his complaint completed the landlord’s internal complaint process and received a determination from this Service. This investigation will not consider this first complaint, as this would be outside of our jurisdiction.
  2. Paragraph 42 (l) of the Housing Ombudsman Scheme which states “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion seek to raise again matters which the Housing Ombudsman or any other Ombudsman has already decided upon.”
  3. Instead this investigation will consider the new complaint raised with the landlord in 2022 and will reference material from the earlier complaint for context only.

The landlord’s response to reports of noise nuisance from a neighbour’s property

  1. From the outset, it is acknowledged that commitments were made when the landlord was trading as Circle 33, which later merged with another organisation in 2016 to form the current landlord, Clarion Housing Group. It is both the legal position, and the Ombudsman’s view, that the new landlord retains the rights, obligations and undertakings of the former landlord organisations when a transfer or merger of this type occurs.
  2. The landlord’s policy on anti-social behaviour (ASB), including noise issues as ‘category 2 ASB’, adopts the definition of ASB given in Part 2 of the Antisocial Behaviour Crime and Policing Act 2014 (‘the Act’). This means that the behaviour must have caused, or be likely to cause, harassment, alarm, distress, nuisance, or annoyance. The policy notes that noise due to “different lifestyles or every-day living situations which are not intended to cause nuisance or annoyance are not generally considered as ASB”. The policy goes on to give examples of this which include children playing, TV, music or radio noise, cooking odours or noise from electrical appliances such as washing machines.
  3. Within its policy, the landlord outlines a range of possible interventions it could utilise, including meeting with the parties, warning letters, acceptable behaviour agreements, mediation, or considering legal action such as injunctions or possession proceedings, dependent on the severity.
  4. The Act itself also sets out a range of powers that the local authority, police, or courts can utilise in cases of antisocial behaviour, including injunctions, community protection notices, criminal behaviour orders, closure orders and public space protection orders. Whilst the landlord could not apply many of these options directly, it could, at any point have referred the matters for action or made an application to the court for these interventions, if it was felt these were necessary.
  5. The leading legal case of Southwark Borough Council v Tanner / Baxter v Camden is clear that normal household noise will not amount to a nuisance. This is also set out in the guidance that accompanies the Act. Therefore, for the landlord to take action, the behaviour complained of must be an unreasonable use of the neighbouring property. If it does not meet the definitions, there is little a landlord is able to do legally.
  6. Having reviewed the previous complaint responses in 2009-2011, there are contradictory accounts of the action that the landlord will take, including:
    1. 9 March 2009 – “the flooring was laid approximately twelve years ago and does not contradict the terms of the tenancy agreement. However [the landlord] can request some rugs are laid to soften the creaking caused by the flooring.”
    2. 21 October 2010 – “the management team for the flat above have been advised the tenant is in breach of her tenancy – therefore they must insist that access is granted in order that carpet can be laid and [the resident] must be informed of the timeframe accordingly.”
    3. 24 March 2011 – “when [the neighbour] moves, carpeting would be laid throughout the property and the new tenant would be prohibited from laying any other type of flooring. Due to the fact that [the neighbour] is waiting for an exchange it is however impossible to estimate how long it will be before she moves and the new flooring could be laid.”
  7. In either case, it appears that the landlord’s final position was that it intended to take action once the neighbour had moved out of the property and this was expected to be soon after the complaint responses in 2011, but has subsequently not taken place.
  8. In its complaint responses, the landlord had maintained that it cannot force the neighbour to lay carpet in the property, as there is no provision within the tenancy agreement to do this. The neighbour’s tenancy agreement does not make any reference to flooring but does make a brief reference to needing to seek permission for improvements. Additionally, the tenancy agreement states that the occupant of the property must not cause, or allow, a nuisance to occur from their property.
  9. Given the conflicting dates of when the original laminate flooring was laid (but likely in the late 1990s) and the lack of evidence to support if permission was or was not given, it is reasonable that the landlord took this view. It is recognised that the flooring may have been laid up to 30 years prior to this most recent complaint being raised. The landlord should ensure that it keeps accurate records of any permissions related to adaptations or installations within its properties in future to assist in cases such as this one. Further information around this can be found in the Ombudsman’s Knowledge and Information Management (KIM) spotlight report, which is available on our website.
  10. The noise reported would also not meet the landlord’s policy definition of anti-social behaviour, nor the definition as set out in the Act, as it appears to be normal household noise in the form of the neighbour walking on the flooring. There has been no indication in the correspondence that the noise has been malicious, intentional or with any intent to cause a nuisance. For this reason, the landlord would have very few formal routes available to it to address the noise, outside of the advice or guidance it gave to the neighbour.
  11. Overall, whilst it is appreciated that the noise transference may cause distress to the resident, it does not appear that the landlord has breached its commitment to lay carpet once the neighbour vacates the property. It is unfortunate that the neighbour has not yet moved from the property, however the landlord cannot, without legal grounds, accelerate this process.
  12. Additionally, the noise reported by the resident does not meet the threshold to take any form of legal or enforcement action, nor does the tenancy agreement appear to give any additional contractual rights to the landlord to take similar action.
  13. On this basis, provided the landlord maintains its prior commitment to carpet the neighbour’s property at such times when they vacate, there has been no maladministration in this case, as landlord has acted reasonably given the legal constraints placed upon it. 

Complaint handling

  1. Within the complaint handling on this case, there was evidence of a 32 working day delay in the landlord issuing its stage 2 complaint response, over and above its 20 working day policy timescale. Within its response, the landlord apologised for this and offered £125 compensation.
  2. The Ombudsman considers this to be reasonable redress given the relatively short length of delay and limited distress and inconvenience that this will have caused.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there has been no maladministration in the landlord’s response to the resident’s reports of noise nuisance from a neighbour’s property.
  2. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme the landlord has offered reasonable redress prior to the investigation for the failures in its complaint handling. 

Recommendations

Recommendations

  1. The landlord should consider:
    1. Writing to the resident and re-affirm its commitment to lay carpet in the neighbour’s property at such time as they vacate the property.
    2. Reviewing its record keeping processes to ensure that it has adequate records of consent for improvement works to be carried out within its property. The landlord may wish to consider the findings of the Ombudsman’s KIM report, which is available on our website, to support this.
    3. Paying the compensation offered in its stage 2 complaint response, if it has not already done this.