Crawley Borough Council (202201938)

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REPORT

COMPLAINT 202201938

Crawley Borough Council

5 October 2022

 

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 concerns that a sensitive let was not enforced.
    2. The landlord’s response to the resident’s reports of noise nuisance.

Background

  1. The resident is a leaseholder. The landlord is the freeholder which is a local authority. The property is a maisonette. The resident and her spouse have both raised concerns; for clarity, in this report, they will be referred to collectively as ‘the resident’.
  2. According to the resident’s correspondence, the resident experienced historical issues of anti-social behaviour (ASB) from her former upstairs neighbour. The resident initially raised a report in late February 2022 explaining that she had been woken up at 2am by her new upstairs neighbour. She described hearing the neighbour’s son running during the afternoon and late evening, and noted that the noise transference was made worse due to the lack of underlay or carpet in the neighbour’s property.
  3. The resident raised a complaint in mid-March 2022 as she believed the above property should have been sensitively let (restrictions on who could be short listed for a property). She noted that the landlord should have taken additional measures to consider the make-up of the residents moving in, to avoid noise issues occurring. The resident questioned why the landlord could not rectify its mistake, and noted that the noise was impacting her physical and mental health.
  4. The landlord asked the resident to keep diary entries and installed acoustic underlay and carpet in the neighbour’s property in April 2022 to improve noise transference. It carried out a sound test on both properties in May 2022, which picked up footsteps, but advised the resident that it would only be considered unreasonable after 10pm. It also spoke with the neighbour about the noise reports and advised them how to reduce noise levels.
  5. In response to the resident’s complaint, the landlord agreed that the above property should have been listed as a sensitive let due to the resident’s historical ASB issues. It explained that a sensitive let had not been applied due to an administrative error but that it had been addressed as a learning point. It advised that its information held for the neighbour did not show a history of ASB and instead suggested they would be good residents. The landlord offered the resident £100 compensation for its recognised failure. It highlighted the number of households on the waiting list for council accommodation. The landlord said it could not guarantee that if a sensitive let was applied, it would not have allocated the property to the same family, or if it had allocated to a different family, the resident would not have been disturbed. It explained that, because the property had already been allocated to the neighbour, it was unable to forcibly move them to an alternative property.
  6. The landlord noted that the resident had declined the sound monitoring equipment (SME) to be installed in her property. It noted that in the absence of the installing the SME, it was unable to determine whether the noises were ASB or daily living noises. It advised that if the neighbour denied making the noise it would be unable to continue approaching them without evidence from SME. The landlord detailed examples considered daily living noise and ASB including children running and playing continuously after 8pm. The landlord explained that many residents who lived in flats had to accept that noises from adjoining properties were inevitable. It noted that it was able to address issues caused by ASB, but not disturbance caused by daily living noises and late-night movement associated with actions such as getting up to use the toilet, attending to a child, or a child going into the parent’s room.
  7. The resident referred her complaint to this Service as she said the noise nuisance continued but the landlord had not responded. She raised the same concerns regarding the lack of enforcement for the sensitive let.

Assessment and findings

  1. In the resident’s correspondence, she has referred to historical issues of noise disturbance with her former neighbour, prior to February 2022. In accordance with paragraph 42 (m) of the Housing Ombudsman Scheme, we may not investigate matters which the Housing Ombudsman has already decided upon. Therefore, the issues relating to the resident’s complaint about the former neighbour will not be considered in this investigation, as they have already been investigated by this Service in 2020. Details of this case will be used in this report for background information only. Also, any new noise issues the resident has experienced since the landlord concluded its complaint process, in April 2022, would need to be raised as new formal complaint with the landlord. They will not be considered in this investigation.
  2. The resident has stated that the noise impacted her health. The Ombudsman does not doubt the resident’s statement. However, it is beyond the expertise of this Service to make a determination on whether there was a direct link between the noise and the resident’s medical condition. 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.

The landlord’s response to the resident’s concerns that a sensitive let was not enforced

  1. In this case, it is not disputed that a sensitive let should have been enforced on the neighbouring (above) property, due to historical issues of noise disturbance. The landlord has apologised, acknowledged its failings and provided adequate redress for its error, in line with its obligations.
  2. The resident raised a complaint on 15 March 2022, as she believed the above property should have been sensitively let due to ASB with her former neighbour. The landlord’s housing allocation policy states that, while an applicant may bid for properties that are subject to a sensitive let, it would consider bids from applicants with a history of ASB on a case-by-case basis, as to whether they were suitable to be allocated the home they bid for. It is not disputed that the landlord failed to apply the sensitive let to the neighbouring property. Nonetheless, that would not guarantee that the resident would not have been disturbed if it had allocated to a different family.
  3. The landlord’s housing allocation scheme states that some properties would be advertised as “subject to a sensitive” letting, to help rectify problems on the estate where there may have been past management difficulties. The landlord recognised its failure to act in accordance with its housing allocation scheme, it appropriately explained the reason for its error and apologised for it. It was also appropriate for the landlord to address with its team as a learning point. As the landlord’s compensation policy does not set out the level of compensation, the Ombudsman has assessed the level of compensation using our own remedies guidance, which is published on our website. The landlord offered compensation of £100. This was in line with the Ombudsman’s remedies guidance where ranges in the amount of £50-100 where there was minor failure by the landlord to meet service standards for actions.

The landlord’s response to the resident’s reports of noise nuisance

  1. The landlord’s ASB guidance states that noise from neighbours is a common source of disturbance, as no house or flat is totally soundproof. The ASB guidance also states that the landlord would not investigate noise from family lifestyles, including noise from children.
  2. When a complaint of a statutory nuisance is made to a landlord by one of its leaseholders/residents, the landlord should take such steps as are reasonably practicable to investigate the reports. In this case, the landlord took appropriate steps to investigate the resident’s reports of noise nuisance. It acted reasonably by trying to alleviate the issues between the resident and neighbour by offering advice, mediation and providing preventative measures such as laying carpet in the upstairs property.
  3. The resident reported noise nuisance from her upstairs neighbour on 28 February 2022. The landlord’s ASB guidance states that when assessing whether noise is unreasonable and requires action, it considers factors including: the activity causing the noise, duration, time of day, and the steps taken to reduce the nuisance. It was, therefore, reasonable that it asked the resident to keep diary entries detailing the date, time and duration of the disturbance. The landlord acted appropriately by offering to install sound monitoring equipment in the resident’s home to record noise; however, this was ultimately declined by the resident. This would have been a significant and relevant step, as it would have potentially allowed the capture of corroborative evidence of the alleged behaviour, to support formal action.
  4. Given that the SME was declined, and the neighbour disputed causing a disturbance, it was reasonable for the landlord to carry out a sound test on the neighbour’s property on 5 May 2022, to establish noise levels. This would aid in determining whether the noise, emitting from the above property, was unreasonable and required action. However, it found that footsteps picked up by the sound test would not be considered unreasonable noise. Despite the lack of evidence of unreasonable noise identified, the landlord acted reasonably by speaking with the neighbour regarding the noise reports and providing them advice to reduce noise levels.
  5. The landlord also offered mediation, but this was declined by the resident; this was an appropriate action as mediation can sometimes alleviate tensions and potentially resolve issues between parties. The tenancy agreement states that the landlord may require the residents to keep the floors in the property substantially covered with material suitable for reducing the transmission of noise such as carpet. The landlord went beyond its obligations and installed acoustic underlay and carpet in the neighbour’s property to reduce the noise transference.
  6. The resident asked that the landlord rectify its error and enforce the sensitive let on the above property. The landlord provided the neighbour the option to move due to the noise reports, but noted that it was unable to forcibly move them to an alternative property. The landlord explained that as the property had already been allocated to the neighbour, it was unable to forcibly move them to an alternative property. Landlords cannot reasonably be expected to take formal action against residents for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both a landlord and environmental health service may be able to warn and take formal action against the perpetrator. Ultimately, there was no clear evidence of noise nuisance, despite the landlord’s investigations into the matter, and it was therefore reasonable that the landlord did not take further action against the neighbour.
  7. It is apparent that the neighbour agreed to move and the landlord arranged for a transfer on 16 May 2022. The landlord should ensure that a sensitive let is applied when the upstairs property is re-listed.

Determination

  1. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress in respect of the landlord’s response to the resident’s concerns that a sensitive let was not enforced, prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s response to the resident’s reports of noise nuisance.

Recommendations

  1. It is recommended that the landlord apply a sensitive let when the upstairs property is re-listed.