Ealing Council (202107847)

REPORT

COMPLAINT 202107847

Ealing Council

17 June 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 resident’s complaint is about the landlord’s handling of the resident’s reports of noise related Anti Social Behaviour (“ASB”).

Background and summary of events

2. The resident is a leaseholder of the property, which is a three bedroom ground floor maisonette.
3. The resident states that since February 2020 she has experienced noise disturbance from the upstairs property. She states that the neighbour threatened to go to the police when she raised the issue with him. The resident sent a number of communications to the landlord about noise from the upstairs property during March, April, May and June 2020.
4. On 22 June 2020 the resident sent the landlord copies of diary sheets recording noise from the upstairs property. She stated that it was having a significant impact on her and her family. She complained that the landlord’s officer had laughed at her when discussing the matter. The landlord treated this as a stage one complaint. It advised the resident in a reply email on 22 June 2020 that its view was that the noise disturbance was due to “very poor” noise insulation between the properties. It noted that the landlord’s noise team’s enforcement powers were limited to “nuisance caused by unreasonable behaviour such as playing loud music and raised human voices”. It recommended mediation.
5. On 3 July 2020 the landlord provided its stage one complaint response to the resident. The landlord stated that it was satisfied that its officer had not communicated inappropriately with the resident and raised concerns about the resident’s daughter’s language in the conversation. The landlord noted that the resident’s property was built at a time when there was poor sound insulation. It noted that, whilst the resident had said that she had not had problems with previous residents, it had a record of complaints by the resident about very similar issues with previous residents of the upstairs property. The landlord took the view that the noise which the resident was complaining about was not a statutory nuisance and it was not able to take further action. It noted that it had tried to facilitate mediation, however the resident had declined. It noted the resident’s reference to being threatened by her neighbour on 20 June 2020, however that it had not been provided with any evidence of this. It stated that if she resident provided more information on this it would review that specific matter to determine what further action by the landlord may be appropriate.
6. On 30 July 2020 the landlord emailed the resident in response to her email of 13 July 2020. The landlord stated that the resident had not raised any new issues that were not addressed in the stage one complaint response. The landlord stated that it had continued to liaise regarding the situation and had referred the parties to a mediation service, which the neighbour was engaging with. 
7. On 22 December 2020 the resident submitted a further complaint to the landlord. The resident’s complaint was that the tenant above was banging on the ceiling and causing a noise nuisance. This has caused damage to the ceiling. The resident complained that the landlord told her that it was dealing with the matter but it was not. The noise was having a significant impact on the wellbeing of her family. The resident emailed the landlord a number of times during January 2021 reiterating her complaint, including complaining about the landlord’s handling of the matter.
8. On 22 January 2021 the landlord provided another stage one complaint response. The landlord referred to its 3 July 2020 response. It confirmed that it had concluded that the noises were from day to day activities and poor sound insulation. It advised the resident to provide new evidence if she wished to reopen her noise complaint case. It noted that the resident had not engaged with mediation. It stated that it could liaise with the neighbour again, however the resident needed to have reasonable expectations about “how much normal household sound reduction can actually be achieved”.
9. On 26 January 2021 the resident wrote to the landlord regarding its stage one complaint response requesting that the matter be looked at further. On 30 January 2021 the landlord wrote to the resident to confirm that the complaint had been registered at stage two of the complaint process.
10. On 22 February 2021 the landlord provided a stage two complaint response to the resident. The landlord noted that the council’s safer communities and noise and nuisance team had considered the issue and advised that the noises the resident complained of (heavy stomping/footfall and slamming of doors) was normal day to day activity. Therefore, enforcement action could not be taken. The landlord further noted that the estate the property was on was established as having construction associated with poor sound insulation. It noted that this was being addressed as part of the plans for the regeneration of the estate. The landlord noted that it had engaged with the neighbour who responded positively and stated that he would engage with mediation and further investigations. It noted that it arranged a home visit to the neighbour’s property. It stated that it was sympathetic to the resident however did not consider that there had been a service failure.
11. On 12 May 2021 the resident requested that the complaint be escalated to stage three of the landlord’s complaints procedure.
12. On 10 June 2021 the landlord provided a stage three complaint response, which the resident responded to on that day expressing disappointment. In its stage three response the landlord noted that the matter had escalated since its stage two response and the resident had been in contact with the police. It noted that its Noise Officers had observed “banging noises” when they visited the property on 19 and 20 May 2021. Following this the landlord arranged a follow up visit on 26 May 2021 which included the attendance of a specialist contractor to determine if the noise may be from a water hammer. The landlord also visited the neighbour. The landlord determined that the neighbour was living alone and his son, who the resident considers to be the primary source of noise, was away from the property at university since October 2020. The neighbour works long hours and was not present in the property during the day. The landlord noted that the neighbouring property was carpeted and had noise reducers on internal doors. There was no water hammering found as a source of noise. The specialist contractor identified that there was a hammering noise when the kitchen and bathroom taps were opened in the resident’s property, which was the resident’s responsibility.
13. The landlord noted that any noise created by footfall or “similar reasonable activity” would not be actionable from a noise nuisance perspective. It had not identified any evidence of the neighbour causing deliberate noise nuisance or allowing behaviour that would cause this. The landlord’s officers found that there was a clear link between noise in the resident’s property and a nearby building site. The landlord liaised with the site manager at the building site. The main works completed on 2 June 2021, although there may be intermittent noise for a period after this. It stated it was open to continue to work with the resident if there are any issues from further construction works. It asked the resident to feedback if there had been a change in the noise since the main works were concluded on 2 June 2021.
14. Since this complaint exhausted the landlord’s complaints procedure and was referred to this service, the resident has continued to make reports to the landlord. The landlord sent an email to the resident on 16 May 2022. It noted that any noise would need to be professional witnessed as a noise nuisance in terms of nature and frequency. It noted that its officer had made a previous visit and found that the neighbour had taken a number of steps to insulate domestic noise. It noted that the resident did not allow officers to enter the home to undertake a sound exercise on 17 March 2022. It noted that this was the most appropriate way for the landlord to assess the noise nuisance that the resident was reporting. It reiterated that the resident could request a visit about a nuisance. It also asked if the resident was willing to complete diary sheets so that the landlord could capture a consistent pattern which may justify proactive monitoring.

Assessment and findings

15. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
16. This Service understands the resident’s situation and recognises that the concerns she has reported have affected and caused distress to her. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor does it decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
17. In this case, the Ombudsman would consider a reasonable service from the landlord would have been for it to take reasonable steps to investigate the matter and undertake reasonable interventions where it is able to do so. The Ombudsman would also expect the landlord to support the parties to work together to explore solutions.
18. The evidence indicates that the landlord undertook home visits where it identified that one potential source of noise was nearby construction works. The landlord liaised with the entity undertaking the construction works to minimise the impact. The Ombudsman cannot reasonably hold the landlord accountable for noise resulting from nearby construction works that it is not a part of. The Ombudsman is satisfied that the landlord took reasonable steps to investigate and liaise with the construction company to minimise the impact on the resident.
19. The Ombudsman acknowledges the resident’s position that the noise is not from construction works and is the result of the neighbours banging on the floor and other activities. The resident has emphasised her view that the noise is the result of the neighbour’s son.
20. The landlord did not dispute that when its officers attended both properties noise could be heard when people in the upstairs property jumped on the floor. It has acknowledged that the resident may be able to hear noise from the neighbour’s property. However, it concluded that this was to be expected given when the property was built. It further noted that there were no reasonable steps that could be taken to stop or reduce the noise. The landlord’s view is that the noise is reasonable every day noise. The landlord also noted that it was satisfied that the neighbour had taken effective steps to manage any issues with his son and also that there was carpeting and internal door stoppers in the property.
21. The Ombudsman understands that the resident finds the noise from the neighbouring property distressing. However, the Ombudsman is satisfied that the landlord has taken reasonable steps to investigate the activities of the neighbour and concluded that any noise is coming from normal daily activities. It is unfortunate that the construction of the properties means that there is poor sound insulation. The Ombudsman notes that the landlord has highlighted this as an issue to be addressed in the future regeneration of the estate. However, in the meantime the Ombudsman is not persuaded that there are reasonable steps that the landlord could take that it has failed to. The Ombudsman therefore considers it reasonable for the landlord to conclude that there is no action it can take with respect to the neighbour’s activities in his property.
22. The Ombudsman further notes that the landlord has supported and encouraged the parties to undertake mediation, which is a reasonable solution focused approach where it is not appropriate for the landlord to take action. The landlord continued to express a willingness to work with the resident if she reported further noise disturbances even after it had identified the noise source of nearby construction works. The landlord has demonstrated a willingness to undertake further home visits to investigate and assess the noise nuisance, which the resident has declined.
23. The Ombudsman notes that the resident has expressed dissatisfaction with the way that the landlord has communicated with her and its general handling of the matter. However, the Ombudsman finds that the evidence indicates that the landlord interacted with the resident in a reasonable manner. The Ombudsman finds that it has provided the resident with comprehensive explanations of its position and managed the complaint through the three stages of its complaint process in an effective manner. The Ombudsman finds that there has not been failings in the landlord’s communication with the resident or in its handling of the investigations.

Determination (decision)

24. In accordance with section 55 of the Housing Ombudsman Scheme the Ombudsman finds that there has been no maladministration by the landlord with respect to its handling of the resident’s reports of noise related Anti Social Behaviour.

Reasons

25. The Ombudsman is satisfied that the landlord has taken reasonable steps to investigate the activities of the neighbour and concluded that any noise is coming from normal daily activities. The landlord has demonstrated a willingness to undertake further home visits to investigate and assess the noise nuisance, which the resident has declined. The landlord has interacted with the resident in a reasonable manner.