Hackney Council (202103426)

REPORT

COMPLAINT 202103426

Hackney Council

15 March 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 response to her reports of noise transference from another property.

Background and summary of events

2. The resident occupied a 1 bedroom flat located on the first floor of a block under a secure tenancy. There were no recorded vulnerabilities for the resident. However, the resident informed the landlord during the course of her complaint that she was suffering from mental health issues.

The legal and policy framework

3. Caselaw (Vella-V-London Borough of Lambeth 2005) held that lack of adequate sound insulation cannot cause a state as to be prejudicial to health. The case alsohad regard for the resources of the landlord.
4. The landlord had an implied obligation under the tenancy agreement, pursuant to section 9a of the Landlord and Tenant Act 1985, that the property be fit for habitation in relation to a prescribed hazard. The Housing Health and Safety Rating Scheme (HHSRS) sets out what is a prescribed hazard. Whether a noise is a hazard and the property is fit for habitation is a matter of fact and degree. While the HHRSR recognises noise can be a hazard, and the most vulnerable are those who are likely to spend more time at home, the threshold is still very high. Harm is defined as an adverse physical or mental effect on the health of a person. These are harms of sufficient severity that they will either prove fatal or require medical attention and, therefore, be recorded in hospital admissions or GP records.

Chronology

5. The evidence showed that there had been a history of noise complaints. The resident had made a complaint in 2015. The landlord informed this service that that there had been no noise complaints since 20 July 2020.
6. On 17 February 2021, the resident made a complaint to the landlord, as follows:
   1. The landlord had not installed soundproofing in her home. The impact on her had got worse as she was now at home “all the time”. She described the effect on her as unbearable and that it was having an impact on her health. She requested that the complaint be investigated by an expert in the field. She felt the landlord’s surveying team was not sufficiently competent. According to the landlord she attached two recordings of the noise.
7. On 5 March 2021, the landlord wrote to the resident in response as follows:
   1. It confirmed that her complaint was about sound insulation issues at her property where she could easily hear the next doorneighbours.
   2. While it was unable to access the 2015 complaint due to a cyber-attack in October 2020, it had been able to investigate the matter.
   3. While it was not an anti-social behaviour (ASB) case, it would open an investigation that followed the same methods as an ASB case, including evidence gathering, consideration of floor coverings in the flat above, and mediation. This would be investigated prior to investigating any building defects/sound proofing issues.
   4. The landlord did not employ any sound specialists, only surveyors.
   5. It noted the recordings she had provided. It empathised with the resident’s frustration and disturbance.
   6. It informed the resident she could escalate the complaint.
8. The resident replied the same day requesting that the complaint be escalated on the basis that she had suffered from the noise since she moved in in 2009. She felt it was a waste of time investigating the case as an ASB case. She would not be completing noise logs or questionnaires. She suggested it liaise with a specific surveyor of the landlord and she queried the expertise of another. She attached her previous correspondence to review before it investigated an ASB case.
9. The landlord wrote to the resident on 30 March 2021. It considered the complaint was about the landlord not acting on her previous reports made in 2015 for soundproofing to be installed. It referred her to the second final stage response of 11 November 2015 and set out the steps the landlord took as a result of this investigation as follows:
   1. It accessed both the resident’s and her neighbour’s property to investigate the issues of noise nuisance and establish its root cause and what action could be taken.
   2. It advised the resident of her housing options. It noted the resident had followed that advice.
   3. The case was closed as the noise did not constitute antisocial behaviour but amounted to day-to-day noise nuisance.
   4. It offered mediation, which she declined, as the resident had a harmonious relationship with her neighbour and did not feel that mediation would be beneficial or helpful.
   5. It discussed the issue of day-to-day noise with her neighbour and the steps that she could take to reduce this.
   6. It raised a repair to the noisy taps in the property above.
   7. It tried to raise a job address creaking floorboards which was rejected by the landlord itself.(the Ombudsman has not seen an explanation of what exactly occurred)
   8. It also explained that her request for soundproofing to be installed could not be actioned as there was no legal requirement for landlords to retrospectively improve the sound insulation between properties.
   9. The complaint was not upheld due to the fact the noise reported constituted ordinary domestic noise.
10. The landlord referred to its conversation with the resident on 15 March 2021 to discuss the case in more detail. According to the landlord, the resident had confirmed that the issues reported in 2015 which formed part of her complaint were the same as those being reported now, specifically:
    1. Running in the hallway.
    2. Talking in a bedroom (including calling the neighbour’s son’s name, adults talking).
    3. Walking and children playing/jumping in bedroom and running around the flat.
    4. Sweeping the bedroom.
    5. Movement in the bathroom, including toilet lid being slammed.
    6. Walking up and down the stairs, loud bangs on the floor.
11. The resident had stated that the landlord had replaced her ceiling in 2016 and queried why no soundproofing had been installed at the time.
12. The landlord agreed that the resident’s reports should not be considered as ASB, but as ordinary domestic noise. It considered the corrective actions the landlord could take and unfortunately, the options were limited.
13. It noted that following the previous complaint, and as result of the landlord’s request, the neighbour installed carpeting. The landlord confirmed that the carpets were still in situ.
14. It considered alternative options, given there was no legal requirement for landlords to undertake retrospective soundproofing works. It explained that at the time of conversion, the property would have adhered to Building Regulations of the day, there would also be a cost implication to meet the standards currently prevailing, and as yet there was no funding available to undertake these works. Additionally, retrospective measures could be disruptive and not always successful in delivering the desired outcomes if the noise source was not correctly identified or, owing to structural limitations, could not be adequately addressed.
15. The only options available were as follows:
    1. Consider her housing options e.g. mutual exchange and registering on the Housing Moves Scheme, which the resident had done. It noted that due to inactivity, the resident’s account had been deactivated. Unfortunately, due to the recent cyberattack, it was not possible to reactivate the account.
    2. She was entitled to undertake sound insulation works herself. However, she would need to agree the specific works with the landlord. It referred her to an expert organisation.
    3. It established that the works undertaken to her ceiling in 2015/2016 would have only been a repair and no further soundproofing works would have been included as these would be considered retrospective.
    4. It explained that a landlord might be required to undertake retrospective soundproofing work, if for instance an extension was being built. This construction would have to meet modern building standards and included in the works a landlord may have been required to undertake improvement works to other parts of the building. However, this was not the case.
    5. The landlord was looking to improve the energy efficiency of its housing stock via a capital investment programme by 2030, which may also include insulation works, where technically and financially feasible. The resident’s property was planned to be surveyed every 3 years to identify works required. The survey had been postponed because of the pandemic and did not constitute assurances that retrospective soundproofing works would be undertaken.
16. It did not uphold the resident’s complaint. It advised that she could discuss the complaint further, however this was the final stage of the complaint procedure.
17. On 9 May 2021, the resident wrote to the landlord to say she had wanted the complaint investigated by a specialist in noise transference, who would attend the property personally. She denied the noise was the same as that reported in 2015 and described it as:
    1. The floors in the flat above creak constantly throughout her flat.
    2. Hoovering.
    3. Mobile phones when on “vibrate” or ringing.
18. She added that the issues were severely affecting her mental health and added to her postnatal depression.
19. The landlord replied on 12 May 2021 that the noise was not ASB and reiterated the contents of its final response. The resident replied the same day emphasising she was not making a complaint about ASB. She wished the landlord to investigate the noise, especially the creaky floors, in person.

Assessment and findings

20. The nature of the noise the resident described in her complaint was similar to that she had experienced in the past. In the circumstances, the Ombudsman considered it was not necessary to investigate the history prior to July 2020. The evidence showed that the reports related to hearing domestic noises in the property next door, including mobile phones and creaking floors.
21. While the landlord referred to investigation of floor coverings, it was not reasonable of the landlord to state it would investigate the resident’s case as an anti-social behaviour (ASB) case. This would have been very frustrating for the resident. However, it was reasonable of the landlord to, very soon after, accept that was it was not an ASB case and to address the resident’s substantive points. It was not reasonable to conclude its letter of 30 March 2021 with a reference to it being ordinary domestic noise, which was frustrating for the resident, in particular as the point of the resident’s complaint was that she wanted the landlord to consider noise insulation, not ASB.
22. It was reasonable of the landlord to check that there were still floor coverings on the floor upstairs. However, given the resident explained she was at home more, and the 2015 letter was sent over 6 years ago, the landlord should have made further checks during this complaint to see if the condition of the floorboards had become worse and should reconsider making any repairs to the creaking floors.
23. It was reasonable to suggest that the resident applied for a move, although it did not manage the resident’s expectations by explaining that may entail a lengthy wait for alternative accommodation. The resident would become eligible for a two-bedroom property when her child reached the age of one years old and therefore the landlord should take proactive steps to discuss the resident’s housing options with her.
24. In general terms, and given the caselaw, it was reasonable of the landlord to cite that the landlord was under no obligation to install sound insulation and to cite costs as a reason for not installing sound insulation. However, in light of section 9a of the Landlord and Tenant Act 1985, the landlord should have considered an inspection by the landlord’s environmental officer if only to provide reassurance to the resident that it was taking her concerns seriously and to consider any alternative options.
25. While this was frustrating for the resident, given that, ordinarily, the landlord would not be under an obligation to install sound proofing unless noise constituted a hazard, the threshold for noise to be considered a hazard in law is very high, and there was no evidence that the resident provided any medical evidence to support her complaint, the Ombudsman does not find service failure, however it will make recommendations to the landlord.

Determination (decision)

26. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of noise transference from another property.

Reasons

27. While it was distressing for the resident, and the landlord could have done more as an alternative, the landlord’s explanation why it did not install sound insulation was reasonable. There was no evidence of what impact it would have had if it had arranged an inspection by its environmental Health Officer.

Recommendations

28. The landlord should inspect the floorboards of the upstairs flat within 28 days in order to consider whether there are any repairs it could carry out to alleviate the situation.
29. If the resident provides relevant medical evidence as to the effect of noise on her, the landlord should consider requesting a visit by its environmental officer. If the environmental officer declines to inspect, then the landlord should set out its reasons for not doing so.
30. The landlord should contact the resident to discuss whether she needs any support with her mental health and whether she has any other support needs.
31. The landlord should consider discussing the resident’s housing options with the resident.