Hammersmith and Fulham Council (202109186)

A picture containing logo

Description automatically generated

REPORT

COMPLAINT 202109186

Hammersmith and Fulham Council

5 August 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

The complaint is about:
1. The resident’s concerns that the landlord failed to act to mitigate the noise transference from the above property, specifically in relation to the flooring.
2. The landlord’s complaint handling.

Background

The resident is a tenant of the landlord. The property is a ground-floor maisonette. The property above the resident’s is a leasehold property, with the landlord being the freeholder. The leaseholder has a tenant, and both the leaseholder and the tenant are sometimes referenced interchangeably in the evidence provided. For the purposes of this report, both parties will be referred to as ‘the leaseholder’. Similarly, the resident has, on occasion, sought the assistance of a third-party during communication with the landlord and this Service; for clarity, both the resident and the third party will be referred to as ‘the resident’ for the purposes of this report.
It is noted that the resident has raised a number of separate complaints such as the landlord’s handling of internal and external repairs relating to damp and mould, the response to reports of noise nuisance, and the handling of a transfer request, all of which were designated a distinct complaint reference number by the landlord. As these are separate issues to the complaint raised with this Service and they will not be considered in this investigation. However, due to the fact that some of the complaints raised were being addressed at a similar time, they may be mentioned in this report to provide context and background to the current complaint. This is particularly pertinent in regard to the resident’s noise nuisance complaint. Nevertheless, the assessment in this complaint focuses solely on the formal complaint raised in December 2020, specifically in relation to the resident’s concerns surrounding the flooring in the above property and the stipulations under the lease agreement.
An anti-social behaviour (ASB) case was first opened in December 2018 due to the resident’s reports of noise nuisance coming from the above property. Investigations at the time deemed that the flooring in the leaseholder’s property above did not comply with the lease agreement and therefore the leaseholder would need to replace the wooden flooring with carpet. Between December 2018 and March 2019, the landlord liaised with the leaseholder, and it was agreed that the leaseholder would replace the wooden flooring with carpets.
This issue was re-raised in May 2020 as a visit to the leaseholder’s property in January 2020 found that the leaseholder was not in compliance with the lease agreement. The landlord advised it would schedule an appointment to inspect the leaseholder’s property once the Covid-19 restrictions had lifted.
In October 2020 the landlord resumed contact with the leaseholder in order to facilitate the adherence to the lease agreement. Works were scheduled to take place in February 2021 to remove the wooden flooring and to reattach the floorboards to the joists, however, the leaseholder subsequently refused the works.
Meanwhile, on 24 December 2020, the resident made her initial complaint, as she was dissatisfied with the landlord’s failure to resolve the noise-nuisance issue. The resident explained that the root cause was the wooden flooring in the leaseholder’s property above, which she said exacerbated the noise transference due to the lack of sound absorption, such as carpet or insulation. However, despite being informed in January 2019 that the leaseholder had been contacted and carpet would be fitted, the resident was confident that this had yet to materialise, accusing the landlord of making false promises, misinforming her, and not responding to her in a timely manner. Consequently, the resident requested that the landlord ensure that the leaseholder had carpeted or insulated their floor.
In the landlord’s stage one complaint response dated 19 January 2021, the landlord upheld the complaint on the basis that it had not provided the expected level of service and not followed through on actions that should have been completed. It found that it had informed her previously that the leaseholder had fitted carpet, yet this was based on information given to it by the leaseholder, and not due to having conducted an inspection of the leaseholder’s property itself. Equally, the resident was informed that it was the leaseholder’s responsibility to install sound insulation, yet this was not correct either, as it said that neither the landlord nor the leaseholder was legally required to improve the sound insulation to dwellings.
The landlord confirmed that it had written to the leaseholder and asked to install suitable floor covering, as, according to the lease agreement, a substantial part of the floor needed to be covered by carpet. Moreover, following an inspection of the leaseholder’s property, the landlord noted that a section of the floorboard was not fully attached to the joist, causing it to creak, exacerbating normal household noise. The landlord confirmed that it was its responsibility to fix the defect and it had therefore asked its contractor to liaise with the leaseholder to arrange an inspection of the floorboards.
The landlord concluded by apologising for the service received and explained it hoped that a weekly call with the resident, to keep her updated, as well as an inspection of the flooring, would help resolve the issue.
In the resident’s escalation email of 9 March 2021, the resident remained dissatisfied with the landlord’s stage one response contending that there were a number of inaccuracies that would impact the progress and outcome of the complaint. She highlighted the contradiction in two statements: one which noted that the lease agreement stated that a substantial part of the floor needed to be covered by carpet, whereas a later statement said that the legal advice received purported that there was insufficient evidence to ask the leaseholder to remove the laminate flooring or to fit carpet. The resident asked for clarification on the matter.
Furthermore, the resident reasoned that if the lease agreement was available to the landlord, then the stipulations regarding the flooring requirement in the above property should be clearly defined. As such, there appeared to be a failure to identify what the legal requirements of the lease agreement were, which resulted in it inappropriately concluding that the noise experienced did not constitute noise nuisance (a separate complaint). She contended that the matter could have been resolved if it was clear that a breach of the lease agreement had occurred and therefore only a full inspection of the above property would enable it to ascertain the full facts.
Lastly, she noted that the landlord had identified that it was its responsibility to fix the defective floorboards over a year ago, yet no action had been taken to resolve this.
A stage two complaint response, dated 15 March 2021, was provided to the resident, although this was in relation to a separate complaint about internal and external repairs. Unfortunately, the resident considered this to be the landlord’s stage two response to the flooring complaint and was thereby under the impression that this complaint had exhausted the landlord’s internal complaint procedure (ICP).
Although the confusion surrounding the stage two response was not ideal, the landlord has nevertheless provided this Service with its final position on the matter. The landlord noted that its investigations concluded that the original flooring in the property above was in breach of the lease agreement. However, it had worked extensively with the leaseholder who was compliant with its requests to replace and repair flooring, and all avenues to reduce any transference of noise had been exhausted.
The resident brought her complaint to this Service on 16 July 2021 as she remained dissatisfied with the lack of action taken to mitigate the noise from the above property, and she was unhappy that the stage two response did not address all the matters raised in her escalation – the most important of which was the failure to identify what the lease agreement of the property above contained in respect to the presence of wooden flooring and/or carpets, leading to the landlord inaccurately concluding that the noise was not noise nuisance.
Furthermore, she explained that she had requested an independent surveyor to carry out an inspection of the above property, which never materialised; nor did the landlord address why the agreed action to repair the floorboard joists in the upstairs property had still not gone ahead, despite the landlord acknowledging the delay, and despite other works having commenced. The outcome the resident sought was for the floorboard joists to be repaired as agreed, and for the landlord to respond accurately and fully to the issues around the lease agreement.

Assessment and findings

Scope of investigation

It is acknowledged that the resident has said that the landlord’s lack of action has had a negative impact on her health and wellbeing, causing huge strain on her mental health. The Ombudsman does not doubt the resident’s comments regarding her medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.

Policies and procedures

The landlord’s anti-social behaviour policy requires all staff to respond promptly to complaints of anti-social behaviour (ASB) and take preventative/deterrent measures early enough to stop difficult situations escalating.
The landlord’s repairs guide stipulates that it is responsible for the repair and maintenance of loose floorboards, and that routine repairs should be completed within 20 working days.
The landlord’s complaints policy states that it has a two-stage complaint procedure. At stage two of the process, the request should be acknowledged within three working days, and a full written reply sent within twenty working days.
The full response to the complainant at all stages should include information on the right to escalate the complaint. The complainant should be advised that if they remain unsatisfied, they will have to:
1. submit a written response to the landlord providing details of why they remain dissatisfied; and
2. submit the response within 20 working days from the date of the full response letter.

The resident’s concerns that the landlord failed to act to mitigate the noise transference from the above property, specifically in relation to the flooring.

When an issue such as noise transference between properties is exacerbated due to one of the properties in question allegedly not abiding by the stipulations of their lease agreement, the onus would be on the landlord to investigate these claims, to facilitate the adherence of the lease agreement, if necessary, and to carry out any necessary inspections to confirm the action requested has brought them in line with their lease obligations.
Of course, the landlord would not be expected to share privacy data with the resident under any circumstances, due to the potential breach of the General Data Protection Regulation (GDPR). Nor would the resident be privy to any specific information in relation to any subsequent enforcement actions, due to any breaches of the lease agreement. However, the landlord should be in a position to confirm whether or not the property in question has fully complied with the lease agreement and thereby reduced the potential for noise transference in the process.
In this case, the landlord did, at times, attempt to liaise with the leaseholder in the above property to ensure that the lease agreement was being adhered to in regard to the flooring. However, over a period of approximately two-and-a-half years (December 2018 to July 2021) the landlord failed to evidence that the leaseholder’s property was in compliance with the lease agreement. It also failed to communicate effectively with the resident about the matter and, as a result, the resident is still unsure whether the leaseholder in the above property is fully compliant with the stipulations of the lease agreement. Consequently, this caused unnecessary delay, distress, and inconvenience to the resident.
It is not disputed that in December 2018 the above property had installed wooden flooring which was in contradiction to the lease agreement. The evidence shows that the landlord did liaise with the leaseholder and agreement was negotiated to bring the property in line with its obligations by installing carpets. In the landlord’s email to the resident on 14 February 2019 it was confirmed that the leaseholder had agreed to replace the wooden flooring with carpet; this was reaffirmed by the leaseholder in a letter to the landlord dated 19 March 2019.
It is acknowledged that there were some delays with the leaseholder ordering the carpet that were unforeseen and not as a result of any failings by the landlord, which the resident was made aware of. Thus, it is evident that the landlord was, at the time, attempting to facilitate the adherence to the lease agreement in conjunction with its ASB policy by taking preventative measures early enough to stop difficult situations escalating, as it was thought that this would mitigate a lot of the noise transference between the two properties.
However, the landlord’s subsequent communication regarding this matter was not entirely clear. For instance, there is no record of the landlord conducting an inspection of the works undertaken by the leaseholder; nor is there evidence of the landlord contacting the resident subsequently to confirm works to reduce the noise had taken place. The onus would have been on the landlord to continue to liaise with the leaseholder, once it was established there were some delays, in order that it carry out an inspection, so that it could satisfy itself that the leaseholder was in compliance with the lease agreement.
Incidentally, there is an email from the landlord, dated 26 April 2019, asking whether the resident was aware that the flooring had been changed, as it said the leaseholder was slow in responding to it; however, this was the last communication regarding the matter until the landlord’s email on 11 May 2020.
In the email of 11 May 2020, the landlord suggested that the leaseholder had not complied with the landlord’s request to bring the property in line with the lease agreement, as it said that, following its visit on 22 January 2020 to the above property (this was not directly linked to the flooring but was instead a noise test carried out in conjunction with Environmental Health), the leaseholder had informed the landlord that the entire ground-floor living area and dining area had been carpeted with rugs also installed. This was corroborated by the landlord in an email dated 17 November 2020 which said that following the January 2020 inspection, it had informed the resident that the leaseholder had only attempted to minimise the impact of noise by laying thick rugs in high footfall areas prior to the January 2020 inspection. Put simply, despite agreeing to complete the necessary adjustments to the flooring over a year prior, this had still not materialised.
Moreover, there is again no clarification of when this alteration had occurred post the January-2020 inspection. Even so, the fact that the inspection in January 2020 warranted further prompting from the landlord to take more action, to bring the leaseholder in line with the lease agreement, demonstrates that the landlord had not initially obtained confirmation previously by undertaking an inspection in or around May 2019 when it should have.
At this point, it had been over a year since the resident had first informed the landlord that the leaseholder may not be in adherence to its lease agreement, and the landlord was still not in a position to confirm whether or not this was the case. Of course, in May 2020, Covid-19 restrictions would somewhat limit the landlord’s ability to carry out an inspection. Nevertheless, the fact remains that this should have been completed and communicated at a much earlier point.
There is evidence showing that the landlord did re-engage with the leaseholder, beginning in October 2020, in which it again asked the leaseholder to remove the wooden flooring and replace this with carpets. This re-engagement revealed that – according to the leaseholder that is – the property was in compliance with the lease agreement because the property did not simply have rugs placed over wooden flooring; it had, instead, for the past 26 months, carpeted all relevant areas with an additional rubber underside to dampen any noise transference, along with additional rugs in key areas. The email exchange further highlighted the issue with the landlord’s communication between staff as well as its record keeping, as the leaseholder contended that the landlord was aware of this as it had conducted site visits previously.
Further confusion arose when around the time that the landlord re-engaged with the leaseholder, it provided a response to a separate complaint on 22 October 2020, which mentioned the flooring and the poor sound insulation. However, this only added to the confusion as it said that it had written to the leaseholder and asked that a more suitable floor covering be put down, such as carpet, which would bring them in line with the terms of their lease agreement; this implied that the leaseholder was still yet to install carpet. Only a few months prior in May 2020 had the landlord stated that the leaseholder was now in compliance with lease agreement and was awaiting the Covid restrictions to change before it could carry out an inspection.
This led to further questions and requests for clarification in the resident’s letter dated 31 October 2020 whereby she contended that the leaseholder had not installed sound insulation; nor had they removed the wooden flooring. Instead, she believed the leaseholder to have placed carpet over the wooden flooring only, which had no impact on the noise transference issue.
The point regarding the leaseholder having to install insulation was clarified in the landlord’s email, dated 16 November 2020, as well as in the landlord’s stage one complaint response of 19 January 2021, which confirmed the leaseholder did not have to provide insulation but did have to replace the wooden flooring with appropriate flooring.
However, in general, the landlord’s lack of clarity and sometimes contradicting statements regarding the flooring was now at the forefront of the resident’s concerns and ultimately resulted in the formal complaint of 24 December 2020 being made. And, whilst the landlord did continue to liaise with the leaseholder up until February 2021, with the landlord attempting to carry out an inspection of the leaseholder’s property, even scheduling repairs to take place on 10 February 2021 to take up all existing wooden flooring and to replace two joists, this communication ended much like the previous ones with no resolution, as the leaseholder refused the works and there is no further evidence to confirm what subsequently happened.
The landlord did nevertheless acknowledge in its stage one complaint response of 19 January 2021 that its communication regarding whether the leaseholder had fitted carpet was substandard and it had not followed through with actions that should have been completed; it also accepted that it had based its communication on information given to it by the leaseholder rather following an inspection. However, the redress proposed by the landlord – the apology, the proposed weekly meetings, the agreement to inspect the floorboards – was not sufficient to satisfactorily resolve the complaint at this stage, which this report will address shortly. The resident was still unclear on the next steps and expectations regarding the adherence to the lease agreement, whether the leaseholder was compliant and, if not, when this would be rectified.
What is more, rather than adding clarity to the situation, the stage one response added more confusion, as it contradicted itself by stating that it had sought legal advice which concluded that there was insufficient evidence to ask the leaseholder to remove the laminate flooring or to fit carpet in the property.
Meanwhile, noise recording equipment had been installed in the resident’s property between 28 January 2021 and 18 February 2021, which concluded on 19 March 2021 that the typical noise reported indicated that there were hard floors in the leaseholder’s property and that insulation was very poor which would not meet the current minimum building standard. In short, the disturbance the resident was experiencing was a combination of poor insulation and a lack of carpet and underlay. As a minimum, it recommended that the hard floor be replaced with carpet and acoustic underlay, as well as airborne sound insulation between the properties being improved.
Thus, it seems to be the case that the resident’s protestations over the two-and-a-half-year period regarding the noise transference and the leaseholder’s lack of adherence to the lease agreement were important factors that warranted prompt consideration and action from the landlord, especially as this specific issue underpinned her noise nuisance complaint. In short, the inability to effectively manage this issue to a suitable resolution within a timely manner was a failing on the landlord’s behalf.
Similarly, the landlord’s response to the loose floorboards in the leaseholder’s property was of comparable concern. According to the landlord, it was aware of the creaking floorboards in December 2019 when it conducted a sound test. Being as floorboards would be the landlord’s responsibility to repair, it should have therefore completed this specific issue within 20 working days, in accordance with its repairs guide. This should have been particularly urgent considering this too, was linked to the exacerbation of the noise transference.
As of February 2021, the evidence shows that this repair had not been completed, with the leaseholder refusing the works that were scheduled for 10 February 2021. Of course, as with the limitations to carry out works due to Covid restrictions, as well as mitigating circumstances beyond the landlord’s control as previously mentioned, this was unfortunate and caused further delay. However, the fact remains that the issue was known in December 2019 yet remained unresolved hitherto February 2021, with no evidence either to show that this had been completed subsequently. This too was a failing by the landlord, as the landlord had missed the opportunity to resolve the issue at the earliest opportunity, causing an unnecessary delay and further distress and inconvenience to the resident.
Now, it is noted that the landlord has confirmed to this Service that the leaseholder has complied with all its requests to replace flooring and to undertake repairs to floorboards. This may indeed be true but there is no evidence to confirm how and when the landlord undertook the inspection to confirm this. By contrast, the evidence available following the sound test in January/ February 2021 suggests that the wooden flooring was still present in the leaseholder’s property and therefore was not in compliance with its obligations. It would seem therefore that the landlord has relied solely on the leaseholder’s communication rather than ensuring this is the case by conducting an inspection itself, as it had previously agreed to do.
If the leaseholder has undertaken the works to remove the wooden flooring and replace this with carpet, as well as to replace/repair floorboards that had become detached from the joists in the property, as was scheduled in February 2021, the landlord should have satisfied itself that this had indeed taken place. Put simply, there is no evidence that the landlord conducted a post-work inspection, there is no evidence to conclude that the leaseholder is now in full compliance with the lease agreement, and there is no evidence that the aforementioned conclusion had been relayed to the resident. In light of this, this Service will make.
Furthermore, for the failings identified with the landlord’s handling of the lease adherence issue, floorboard repair orders of compensation will be made.
The Ombudsman’s remedies guidance (published on our website) whereby awards between £250 to £700 can be made where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant. Examples could include:
1. A complainant repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement.
2. Failure over a considerable period of time to act in accordance with policy – for example, to address repairs; to respond to antisocial behaviour; to make adequate adjustments.
3. Repeated failure to meaningfully engage with the substance of the complaint, or failing to address all relevant aspects of complaint, leading to considerable delay in resolving complaint.
In summary, whilst it is acknowledged that the landlord has at times attempted to resolve the issue with the adherence to the lease agreement and the issue with the loose floorboards, the landlord has missed the opportunity to resolve these at their earliest stage, which in this case would have been at some point around May 2019 for the flooring/ lease agreement issue, and at some point, around mid-January 2020 for the loose floorboards. Both of these aspects were key contributing factors to the exacerbation of the noise transference between the properties and it should have been of urgent priority to resolve.
This total compensation being awarded has taken into consideration the delays that were not as a result of the landlord’s failing.

The associated complaint handling.

The landlord’s complaints policy states that it should provide a full written stage two response within 20 working days of the request to escalate. As we know, this did not happen, with the resident believing a stage two response for a separate complaint to be the stage two response for this particular complaint. Generally, this would be a failing by the landlord because it did not provide a stage two response to this complaint.
However, an escalation should be received within 20 working days from the date of the full response letter, in accordance with the landlord’s complaint policy. In this case, the landlord’s stage one response was dated 19 January 2021, yet the escalation was not raised until 9 March 2021, which was over the stipulated timeframes. Therefore, the landlord could reasonably argue that the resident did not escalate her complaint in time.
Nevertheless, the failing comes from the landlord’s lack of any communication whatsoever following the escalation. For example, if it was the case that the landlord refused to escalate the complaint and thereby it had exhausted its internal complaint procedure, then it would be expected that communication relaying its position was provided. On the other hand, it could have accepted that there may have been mitigating circumstances for the delay, and accordingly responded in line with its complaints policy, acknowledging the escalation and then providing the stage two response.
The fact the resident did not receive a response at all was indicative of the landlord’s poor communication as a whole. Again, the landlord has missed the opportunity to resolve the issue at its earliest point and did not give itself the opportunity to review the stage one response, along with the resident’s concerns at escalation, and provide an informed response to the resident.
In view of the above compensation is warranted, in line with our remedies guidance amounts of compensation between £50 to £250 may be used for instances of service failure resulting in some impact on the complainant. We recognise that there has been service failure which had an impact on the resident but was of short duration and may not have significantly affected the overall outcome.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it responded to concerns that the landlord failed to act to mitigate the noise transference from the above property, specifically in relation to the flooring.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in relation to its complaint handling.

Orders and recommendations

Orders

The landlord is ordered to pay the resident:
1. £450 for the failings identified in its handling of the lease agreement issue broke down as follows:
  1. £150 for the delays in getting the matter resolved.
  2. £150 for time and trouble spent trying to resolve the matter, intermittently over a period of approximately two-and-a-half years.
  3. £150 for the distress and inconvenience caused to the resident, especially in consideration that this was an underlying, contributing factor to the separate noise nuisance complaint.
2. £150 for the landlord’s handling of the floorboard repair.
3. £50 for the landlord’s handling of the associated complaint.
The total amount of compensation to be paid therefore is £650. This should be paid within 28 days of the date of this report.
If it has not already done so, the landlord is also ordered to:
1. Carry out an inspection of the leaseholder’s property to confirm whether or not the leaseholder is in compliance with the stipulations of the lease agreement and confirm whether or not the repairs to the defective floorboards have taken place.
2. Provide written confirmation to both the resident and this Service, following the above inspection, of its findings, giving clear next steps and expectations, if, for example, further works are required.
The above should also be completed within 28 days of the date of this report.

Recommendation

It is also recommended that the landlord complete a review of its complaint handling practices seeing what improvements can be made to effectively manage multiple complaints.