Haringey London Borough Council (202216013)

REPORT

COMPLAINT 202216013

Haringey London Borough Council

22 March 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

The complaint is about:
1. the landlord’s handling of the resident’s reports of noise from a neighbouring property.
2. the landlord’s handling of arrangements for asbestos removal in the resident’s property.
The Ombudsman has also considered the landlord’s complaints handling.

Background and summary of events

The resident is the secure tenant of a 2 bed ground floor flat in a converted maisonette. She occupies the property with her child who was aged 7 at the time of the complaint.
The landlord has not provided a copy of the resident’s tenancy terms; however, it is a standard term in a tenancy agreement that residents, household members or visitors must not engage in behaviour that causes, or is likely to cause, a nuisance or annoyance to their neighbours. A similar term is included in the neighbour’s lease agreement.
The landlord’s website contains advice about asbestos in properties. It states that asbestos is present in many of its properties, but it is only a risk when it is damaged, or moved, without being made safe first. The landlord maintains a register of the location, type and risk of materials containing asbestos, where they are known to exist. It says that it follows guidance from the Health and Safety Executive about when to remove asbestos and when to leave it undisturbed.
The landlord’s asbestos management procedure outlines the steps it must take where it identifies that there may be asbestos present in a property.
The landlord’s antisocial behaviour (ASB) policy defines ASB as:
1. Conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person.
2. Conduct capable of causing nuisance and annoyance to a person in relation to that person’s occupation of residential premises, or
3. Conduct capable of causing housing-related nuisance or annoyance to any person.
The policy gives examples of what it considers not to be ASB. This includes reasonable DIY and other daily activities e.g. doors closing, toilets flushing, walking up or down stairs and across floors. It also includes where there is a clash of lifestyles, for example, cultural differences or different working patterns.
The landlord’s alterations policy for leaseholders says that where a leaseholder seeks to install laminate or hard wood flooring, they must seek permission of the landlord and provide the landlord with full documentation of the specification. This must be to a good standard and include a high degree of sound insulation as an integral underlay.
The landlord operates a 2 stage complaints procedure, whereby it will acknowledge stage 1 complaints within 2 working days and responds within 10 working days. If the matter remains unresolved, the resident can escalate to the second stage, which the landlord will acknowledge within 2 working days, and provide a written response within 25 working days. It is noted that the landlord refers to the second stage as an ‘independent review’.
According to the landlord’s policy, compensation of between £20 and £500 can be awarded where service failure is identified. The award will be dependent on whether the impact to the resident is low, medium, or high and whether the landlord is partly or fully responsible for the failing. It says that payments will not be made for delays, or failure to respond to a fault, where reasonable access has not been provided.

Summary of events

In 2020, the resident raised an ASB complaint with her landlord about her upstairs neighbours making noise walking around their property. She said that it was very disturbing, and it continued from early morning until late at night. The landlord investigated the reports and visited the neighbour’s flat. It concluded that the noise was domestic household noise, and no further action was taken.
The landlord had started a major works programme to bring all its housing up to the decent homes standard. Several properties on the resident’s road had outdated modular bathroom pods to the rear of the property, which required replacement. The landlord proposed to replace the existing pods with double storey modular extensions. As a first step, however, the landlord would need to remove asbestos present in the property, before works to replace the pods could commence. Consultation with the residents affected took place on 14 October 2021.
The landlord attended the resident’s property on 17 November 2021, but could not gain access to her home. The landlord has said that a letter was sent to the resident about this. A copy of the letter has not been provided to this Service.
On 3 December 2021, the resident reported that a water pipe was leaking in her bathroom. In February 2022, she informed her landlord that there was a leak from the property above, which had damaged her bathroom ceiling. This job was raised and then cancelled. The reason for this cancellation has not been shared with this Service. On 28 February 2022, the landlord raised a job for the resident’s light to be refixed as it had been damaged following the leak.
The resident raised a stage 1 complaint on 11 March 2022. She said that:
1. She was unhappy about a letter she had received stating that she was refusing access for the landlord to arrange for urgent asbestos removal in her property. She said that this was not the case, but she was limited in how much time she could take off work and she did not wish to leave keys with contractors. She asked that the landlord contact her with a convenient appointment.
2. There were outstanding responsive repairs, including a faulty light fitting and a leak from another property.
The landlord responded to her complaint on 28 March 2022, in which it said:
1. During the consultation meeting on 14 October 2021, residents were told that the asbestos removal would take 4 days and residents would need to be out of their homes for this time. They were informed that the contractor and landlord would be undertaking joint visits to gain an understanding of the composition of households, in order to identify their requirements.
2. It attended the resident’s home on 17 November 2021, but could not gain access. It was later informed that the resident would not allow works to progress, until repairs issues were resolved. The landlord agreed to do the repairs in advance of the asbestos removal.
3. The asbestos removal works were scheduled to start at the resident’s property on 16 March 2022. This would have allowed sufficient time for repairs to be undertaken. Where residents were unable to be at their property to allow contractors access, there was the option of leaving a spare key which would be kept in a key safe box by contractors.
4. On 8 March 2022, the resident informed the landlord that she would not allow access as she was not prepared to take further time off work.
5. The landlord confirmed that it had contacted the resident’s neighbours to arrange for an appointment to repair the leak, thereafter her bathroom light could be reinstated.
6. Works to the resident’s property have been put back. Scaffolding was scheduled to be erected on 13 April 2022, and asbestos removal from 19 April 2022, over a 4 day period.
The landlord’s repairs records show that works were raised to repair a leak in the bathroom on 3 December 2021, and completed on 24 March 2022. The light repair was raised 28 February 2022 and was completed on 8 April 2022.
On 22 June 2022, the landlord wrote to the resident as her neighbour had complained to it that the resident had accused them of making noise in their home. The landlord said that the noise from the neighbour’s home appeared to be normal household noise and that “legally they are entitled to go about their life creating normal acceptable amounts of noise”. It advised the resident to talk to the neighbour if the noise was disturbing her, and to try to reach a compromise. It directed the resident to the ASB team if there were instances of excessive noise that would warrant enforcement action.
Between 21 August and 6 September 2022, the resident and her neighbour made complaint and counter-complaint about one another, to the landlord. The resident complained that noise from footfall in the upstairs flat was disturbing her, that the neighbours allowed their children to litter the communal garden and that they had broken the communal fence. The neighbour made counter allegations of noise from the resident.
On 31 August 2022, the landlord wrote to the resident asking her to make contact to confirm an appointment in October 2022, to remove the asbestos.
The resident responded to the landlord on 6 September 2022. She said that she had waited in all day, on 13 May 2022, for the surveys to be completed. However, a contractor attended instead and informed her that they needed 5 days access to remove asbestos from the pod in her garden. She said that she would not agree to anyone accessing her home while she was out, and that she was not prepared to take further time off work to facilitate access.
On 8 September 2022, the landlord wrote to the resident to remind her that it was a term of her tenancy that she must allow reasonable access for the landlord to inspect or undertake essential works in her home. It said that it would be in contact with her to arrange a further appointment, but that it would have to consider legal action if no access was granted.
The resident asked for her complaint to be escalated on 23 September 2022. She said that:
1. She had taken annual leave on 3 occasions and waited in for contractors to attend to do works. Someone had attended on only 1 of the occasions, not to undertake a survey as agreed, but to inform her that they required 5 days access to complete asbestos removal.
2. Her neighbours had been causing noise disturbance for the last 5 years, walking up the stairs and across their property from early morning until late at night. She had asked that the landlord arrange for the stairs be covered with underlay and carpeting, but this had not been done.
The landlord acknowledged her request on 30 September 2022, and said that she would be informed of the outcome of the stage 2 review by 28 October 2022.
On 10 October 2022 the landlord wrote to the resident to inform her that a letter had been sent to her neighbour reminding them of the need to comply with their lease, including not engaging in any activity that causes a nuisance or annoyance to neighbours. It advised the resident to contact the noise nuisance team to arrange for the noise to be monitored. The issue regarding noise transference would be referred to its leasehold team, who would investigate the resident’s reports relating to noise transmission from the neighbour’s property, due to suspected insufficient underlay.
The landlord issued its stage 2 response on 20 October 2022. It said that:
1. The resident’s housing officer had written to her explaining what the landlord could do in relation to noise issues. Details were provided for the noise nuisance team and a link to the landlord’s website providing information about noise nuisance.
2. The asbestos removal works had been outstanding since November 2021. The resident had said that there were some repairs that she wanted completed before providing access for the asbestos works. The landlord understood that these works had now been completed, however if any remained outstanding, the resident should contact the repairs team to arrange for them to be completed urgently.
3. An appointment had been booked for 10 May 2022 for the contractor to meet with the resident to discuss the removal of the asbestos. When they attended, however, there was no answer at the door. The resident had later said that she had sent a text to the landlord cancelling the appointment.
4. The appointment went ahead on 13 May 2022, with the resident being informed that the removal of asbestos would take 4 days. The resident would need to be out of the property between 8am and 5pm each day while the works were undertaken. This was confirmed in a letter dated 14 June 2022.
5. Follow-on works, such as the removal of waste and installation of the new staircase and scaffold, would take a further 6 days to complete. Although the landlord believed that this had been explained to the resident by its contractors, it was not confirmed in writing and the landlord apologised for this miscommunication. It upheld this part of the complaint.
6. It advised that there were works due to be undertaken in 2023, including a kitchen installation, replacement of windows, front door, and the roof. It was therefore important that the resident arrange an appointment without delay for the asbestos removal to go ahead. It said that failure to do so may result in the landlord having to take legal action to gain access to the property.
On 26 October 2022, the landlord wrote to the resident’s neighbours regarding the resident’s claim that they had laminate flooring. It requested that the neighbours verify that they had adequate underlay for sound insulation. The neighbour responded the following day to confirm that they did not have laminate flooring and that the property was carpeted. They said that officers had previously visited them at home and confirmed this.
On 26 October 2022, the resident sent some recordings to the landlord, via its noise app, of noise from the upstairs property. The landlord responded on 25 November 2022. It that the type of noise recorded did not meet the threshold for enforcement as it was normal domestic noise. It said that the noise complaint had therefore been closed and it had been passed to the home sales team.
The resident then referred her complaint to this Service for investigation.

Assessment and findings

The resident’s reports of noise from a neighbouring property.

It is evident that this situation has been distressing for the resident. However, the role of the Ombudsman is not to establish whether the resident’s neighbour was causing noise nuisance. The role of this Service is to determine whether the landlord’s response to the resident’s reports of noise nuisance was in line with its legal and policy obligations. This Service will also consider whether the landlord acted fairly and reasonably, given all the circumstances of the case.
It is noted that the complaints made by the resident about noise from her upstairs neighbour date back to 2020. The landlord took steps at that time to investigate the resident’s complaint but concluded that no further action would be taken.
The landlord took appropriate steps, following the resident’s complaint, to make enquiries of the neighbour in relation to the noise. The neighbour made counter allegations against the resident and both parties were reminded, in writing, of the need to comply with the terms of their tenancies. The landlord’s investigation concluded, from its enquiries of both the resident and her neighbour, that the noise was usual household noise. The landlord’s ASB policy states that domestic noise does not constitute ASB, therefore it is limited as to what actions it can take to address it.
While clarifying that the noise complained of was usual domestic noise, and that neighbours should seek to find a compromise themselves, the landlord’s correspondence with the resident also signposted her to the landlord’s ASB enforcement team. It stated that the ASB team would deal with complaint about excessive noise. Landlords are expected to follow an evidence-based approach to ensure that their services are fair and an efficient use of resources. Therefore, it was reasonable for it to signpost the resident to its noise nuisance team, so that the noise from the upstairs flat could be recorded by the resident, using the noise app. This would allow the level of noise to be assessed.
The landlord’s actions to direct the resident to the appropriate team to make reports of noise disturbance, were reasonable. However, there was a risk that, in doing so, the landlord raised the resident’s expectations that the noise issue could be resolved by the ASB team. The landlord later informed the resident that, on reviewing the recordings, the threshold for action had not been met, given that it was domestic noise.
The landlord was limited in what actions it could take to reduce noise transference in the property given that the upstairs neighbour was a leaseholder, and the landlord was therefore not responsible for works to the property. The leaseholder was required, in accordance with the landlord’s policy, to ask permission of the landlord to make alterations to the property, and this included installing wooden flooring. However, on a previous occasion, the landlord’s officers had inspected the upstairs property and had confirmed that it was carpeted. The landlord therefore concluded that the leaseholder was not in breach of the terms of their policy or lease. Further, the neighbour’s lease did not include any terms requiring the leaseholder to install soft flooring in all areas, therefore it could not instruct the leaseholder to fit carpet on the stairs, or to fit better underlay.
The landlord could have undertaken new checks to verify the neighbour’s statement that the property remained carpeted. However, in the absence of any evidence to indicate that the flooring had been changed in the interim period, the landlord may have reasonably concluded that it was disproportionate to undertake a further visit.
The Ombudsman’s spotlight report on noise complaints dated October 2022, provides advice to landlords on how to handle noise reports that do not meet the statutory threshold for enforcement. It recommends that landlords adopt a proactive good neighbourhood management strategy, distinct to the ASB policy, with clear options for maintaining good neighbourhood relationships.
Given that this was an ongoing issue between the neighbours. It would have been good practice for the landlord to have considered mediation, to find a common ground between the resident and her neighbour. Further, the landlord could have had a discussion with the neighbour about the possibility of putting down extra floor coverings, like rugs, to assist with sound insulation. However, in the absence of a term in the lease about flooring, this was not something that could be enforced. It is not in a landlord’s power to retrospectively change the terms of a lease.
Further, although it could have considered whether it may have been possible to install soundproof insulation to the resident’s ceiling, landlords are not legally required to provide sound proofing in homes above the standards applicable at the time of building, therefore the landlord was not obliged to do this.
The Ombudsman acknowledges that the disturbance caused by noise from her neighbour’s property has caused the resident significant distress over several years. While the landlord could have taken further steps to work towards a compromise between neighbours, it did act in accordance with its policy and therefore the Ombudsman concludes that there was no maladministration. A recommendation has been made, however, that the landlord consider making a referral for mediation, should both parties agree to this.

Asbestos removal

The Health and Safety Executive (HSE) advises that asbestos is not dangerous for occupants if the building material is in good condition. If existing asbestos-containing materials (ACM) are in good condition and are not likely to be damaged, they may be left in place, with their condition monitored and managed to ensure they are not disturbed. With the proposed planned works, the landlord was obliged to remove the asbestos safely, prior to the works starting.
The resident had asked that the landlord undertake repair works in her home prior to removing asbestos from her property. The landlord acted reasonably in agreeing to this and works were completed between March and April 2022. The repairs themselves do not form part of the resident’s complaint and therefore will not be considered further as part of this investigation.
The resident has said that appointments that were pre-arranged through the landlord were missed, and consequently she had lost some of her days annual leave having to be at home to allow access. The landlord offered the resident some further appointments to remove the asbestos, but these were declined by the resident because she did not wish to take further time off work.
The landlord had accepted that its communication with the resident was poor, as should have given her information about how much time the works would take which would have allowed her to plan her time effectively. Further, if pre-arranged appointments were missed, the landlord should have addressed this with the landlord’s contractors. Having to take time off work to be at home to allow the contractors access, when they failed to attend, would have caused frustration and inconvenience to the resident.
However, while the landlord must act fairly in offering the resident a convenient appointment, ultimately the resident is obliged to allow the landlord access to the property, on reasonable notice when it requires it.
While it is unfortunate that the works were difficult for the resident to accommodate given her childcare responsibilities and working schedule, the landlord did offer an alternative arrangement that did not require the resident being at home to allow access. This Service acknowledges that the resident felt anxious about leaving a spare key for the contractors to use. However, as the resident reported that she had limited availability, and had no other friends or family who could allow the contractors access in her absence, it was a reasonable compromise for the landlord to propose. It was necessary for the works to be carried out and planned works impacting more than one household were dependent on access being granted. The resident was understandably upset by the landlord’s threat of legal action. However, it was not disproportionate for the landlord to raise this as a next step should an appointment not be agreed, given the urgency of the works and the impact of any further delays.
The landlord had conceded that its communication with the resident was lacking. Further, the resident’s assertion that she had waited in for contractors on 2 occasions, but they had not attended was not rebutted by the landlord. This Service has not seen evidence that redress was offered by the landlord for these missed appointments, despite its compensation policy providing for this. The Ombudsman therefore finds that there had been service failure in its communication and orders the landlord to pay the resident an amount of £90 in compensation. In accordance with the Ombudsman’s remedies guide, this is within the range of compensation that can be made where a finding of service failure has been made.

Complaint handling

While the landlord complied with the target timescales in its complaints procedure for responding to the resident, the landlord’s response at stage 2 was lacking. It did not address the resident’s reports that its contractors had failed to attend appointments at the resident’s home on 2 occasions, despite this being raised by the resident in her complaint escalation request. It failed to undertake a full investigation into the complaint and instead signposted the resident to the noise nuisance team and its repairs team when the repairs raised by the resident in her stage 1 complaint had already been completed.
Further, it failed to outline what it would do going forward to improve communication and attendance at appointments, given the ongoing works required at the property.
The Ombudsman’s Complaints Handling Code in force at the date of this report, advises that a landlord must consider all points of the complaint raised. It should look to put things right and learn from outcomes. The landlord’s complaint responses do not accord with the Ombudsman’s dispute resolution principles.
The Ombudsman therefore finds service failure for the landlord’s complaints handling and orders the landlord to pay the resident the amount of £90 in compensation. This, in accordance with the Ombudsman’s remedies guidance, is within the range of awards that can be made where service failure has been identified.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s reports of noise from a neighbouring property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in its handling of asbestos removal in the property
In accordance with paragraph 52 of the Scheme there was service failure by the landlord in its complaints handling.

Reasons

The landlord’s powers to act where there is noise disturbance caused normal household activity are very limited. It acted within its policies and procedures in its response.
The landlord acknowledged that its communication with the resident in relation to the asbestos removal was lacking, there were also missed appointments which caused detriment to the resident as she had to take time off work.
While the landlord responded to the resident’s complaint in accordance with its complaints procedure, the content of its responses did not address all the points raised in the resident’s complaint and did not accord with the Ombudsman’s dispute resolution principles.

Orders and recommendations

Orders

Within four weeks of the date of this report, the landlord is to:
1. Pay the resident the amount of £90 as compensation for distress and inconvenience caused to her due to its communication shortfalls and missed appointments.
2. Pay the resident the amount of £90 as compensation for its complaint handling failings.

Recommendation

It is recommended that the landlord consider referring the resident and her neighbour for mediation in relation to the noise complaint, should both parties agree to this.