Lambeth Council (201814057)

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REPORT

COMPLAINT 201814057

Lambeth Council

4 May 2023

 

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 the landlord’s handling of:
    1. The resident’s reports of noise from a neighbouring property.
    2. The associated complaint.

Background

  1. The resident is a secure tenant of the landlord. The property is a flat within a block of flats. Throughout the landlord’s complaint process and the subsequent escalation to the Ombudsman, the resident has been represented by a family member. For ease of reference, within this report the term ‘resident’ will be used to indicate any actions by the resident or her representative.
  2. The landlord’s records indicate that the resident had no vulnerabilities, however the resident had previously declared two physical disabilities when she moved to the property following a mutual exchange. Throughout the course of progressing this complaint, the resident also made several references to the impact on her physical and mental health, and the landlord made a referral to adult social services in view of this.
  3. Since 2016, the resident has reported noise nuisances to the landlord, occurring in the flat above her property. The resident has reported that this had affected her sleeping and caused ongoing distress, which impacted her relationship with her daughter, who also lived in the property.
  4. The resident escalated her complaint to stage one of the landlord’s internal complaints process on 25 June 2019, via this Service. A stage one response was issued on the 25 November 2019. The resident escalated this complaint to stage two on 29 December 2019 and a response was issued on 16 November 2020.
  5. The resident raised a second formal complaint on 23 May 2021 via this Service. Following an intervention by this Service, the landlord issued its stage one response on 24 June 2021. The resident escalated the complaint to stage two on 25 August 2021. The landlord issued its stage two response on 1 October 2021, following a second intervention from this Service.
  6. Throughout both of these formal complaints, the resident maintained that noise from the neighbour’s flat was causing a nuisance. In reply, at all stages, the landlord advised that the case had previously been investigated and was considered closed unless substantive new evidence could be presented. The resident also raised secondary issues around the retention timescales of noise recordings and the behaviour of specific staff. The landlord maintained throughout its responses that its data retention periods were in line with the General Data Protection Regulation (GDPR) and that its staff had acted correctly with regards to the issues the resident had raised.
  7. The resident remained dissatisfied with the landlord’s response and escalated her complaint to the Ombudsman on 10 October 2022 on the grounds that the landlord had not provided sufficient support or followed the correct process in handling her complaint. The outcome sought by the resident was for the landlord to acknowledge its responsibility, be accountable and learn from this complaint process to prevent it from reoccurring. Following escalation of the complaint to this Service, the resident moved out of the property in May 2022.

Assessment and findings

Scope of investigation

  1. Under paragraph 42(m) of the Housing Ombudsman Scheme, this Service may not consider complaints which have already been considered by the Housing Ombudsman or any other ombudsman service. For this reason, this investigation will not consider any matters raised prior to 6 June 2017 as this was subject to a previous determination by this Service.

The landlord’s handling of the resident’s complaints of noise

  1. The landlord’s antisocial behaviour (“ASB”) policy lists “loud music, DIY noise, motorbikes, shouting and other noise” as categories of noise issues that could be addressed under its ASB policy. The policy notes that certain behaviours would not be considered antisocial behaviour such as day-to-day living noise (which is not excessive or unreasonable), children playing, babies crying or noise transference due to poor sound insulation. The landlord commits in its policy to using a “full range of civil and criminal powers”, being “victim-focussed” and working in partnership with other agencies when appropriate.
  2. The Anti-social Behaviour, Crime and Policing Act 2014 gives landlords and other appropriate parties (such as the police) a range of legal powers to address antisocial behaviour, such as injunctions, criminal behaviour orders and noise abatement notices. Importantly, the breach of some of these orders may give the landlord an absolute right via the courts to repossess the property from a resident.
  3. The Housing Ombudsman’s spotlight report on noise complaints, available on our website, identified that noise complaints are often “viewed through the lens of ASB [making it] harder for the landlord to make consistent and reasonable decisions if it does not have the right framework for all types of noise reports”. The report suggests that landlords should have a distinct policy for managing noise complaints, backed up with a greater focus on early resolution, good record keeping and the production of clear action plans and risk assessments.
  4. Overall, this Service can appreciate the significant stress and disturbance caused by noise from neighbours. It is also recognised that the behaviour of the neighbours was outside of the direct control of the landlord and that any action, short of eviction, would not be guaranteed to stop the noise from occurring. This Service considers the landlord’s handling of the noise reports but is not in a position to make a determination on whether or not the noise was occurring or whether it amounted to a statutory nuisance.
  5. In this case, the resident submitted numerous diary sheets and over 217 noise recordings to evidence the noise that she was experiencing. Many of the reports are listed by the resident as “stamping” or “banging” and are shown to begin as early as 06:13am or as late as 02:18am on some occasions. Other reports included loud singing or chanting, “thuds” and items being dropped or bounced on the floor.
  6. To address these issues raised, the landlord initially undertook a range of actions in line with its policies and good practice including:
    1. Installing noise recording machines.
    2. Arranging mediation between the two households.
    3. Requiring the neighbour to install carpet and underlay to improve the sound insulation. This was later inspected by the landlord and the resident to confirm compliance.
    4. Taking legal advice on the matter and issuing a tenancy warning letter to the neighbour.
    5. Undertaking a structural survey to assess whether structural issues were contributing to the noise reported.
  7. In this Service’s view, the landlord’s actions up to 22 January 2019 were proportionate, appropriate and in line with its ASB policy. It was reasonable for the landlord to rely on the professional opinion of its surveyor regarding structural issues contributing to noise and also to issue a tenancy warning letter as the first step towards legal measures to stop the noise. If the landlord had progressed the legal case further, particularly to court, it would need to have supplied extensive evidence of the informal measures it had taken to reduce or prevent the noise such as tenancy warnings, mediation, acceptable behaviour contracts etc. Additionally, the landlord would be expected to prove that the noise experienced was severe and persistent and that the previous measures taken had been unsuccessful in resolving the issue. At this stage in the complaint, there was not enough evidence of excessive and deliberate noise for the landlord to reasonably be expected to pursue legal action and the landlord was advised of this by their solicitor in correspondence seen by this Service. The landlord would not be expected to go against the advice of its qualified legal representatives in this regard.
  8.  On 22 January 2019 the landlord contacted the resident to inform her that the matter was permanently closed as the complaint was unsubstantiated. The resident was advised that the landlord’s staff would not engage in further emails, that further diary sheets should not be sent and to consider taking her own, independent legal action if she wished to pursue the matter further.
  9. In all subsequent correspondence, including formal complaints, the evidence presented to this Service shows that the landlord repeatedly stated that the case was permanently closed, unless substantial new evidence could be provided. Between 22 January 2019 and 10 October 2022, when this complaint was escalated to the Ombudsman, there is evidence of the resident submitting various emails, sending additional diary sheets, reporting the matter to the police and making at least 20 telephone calls complaining about the ongoing situation. The resident also raised two webform complaints to the landlord and made two formal complaints about her experience of ongoing noise.
  10. The landlord maintained, in its correspondence with the resident that the noise being reported was not “substantial” and therefore refused on multiple occasions to reopen the case. Instead, the landlord suggested that the resident bid for a transfer of properties or take independent legal action against the neighbour.
  11. It was also noted in correspondence seen by this Service that the landlord was aware that its staff had not received timely training in the use of the noise recording machines. Furthermore, it is not clear whether the machines had been calibrated at the correct intervals, as per the manufacturer’s instructions. This has the potential for the machines not to be set up correctly, or not be sufficiently sensitive or attuned to the noise that they are setup to record.
  12. The landlord was aware that this case was having a significant impact on the resident as she said it was affecting her physical and mental health. The landlord subsequently made a referral to social services for support with “[dealing] with the issue mentally”. Whilst it is beyond the remit of this Service to assess any potential effect of noise on the resident’s health, this referral was requested by the resident and was a reasonable action by the landlord in an effort to enable the resident to access appropriate support for her health concerns. Conversely, there is evidence that social services requested further information from the landlord the following day after the referral. There has been no evidence provided by the landlord to show that this request was answered and therefore this caused an unnecessary delay and additional frustration for the resident.
  13. There is evidence to show that the landlord suggested that the resident consider moving properties. Whilst the resident is not obliged to accept a transfer, it is reasonable in the circumstances for the landlord to suggest this as a remedy, and there is correspondence that indicates that information was provided by the landlord about the transfer process, which the resident subsequently completed in May 2022.
  14. The evidence presented to this Service shows that the landlord complied with its ASB policy and took reasonable steps to investigate and reduce the noise up until 22 January 2019. Thereafter, the landlord did not accept or investigate any of the concerns raised by the resident, despite over 22 contacts from the resident requesting this. The landlord did not appear to consider the escalation to the police or other contemporary evidence, such as diary sheets, as sufficient to meet its requirement for ‘substantial new evidence’. From the evidence seen by this Service, it does not appear that the landlord made the resident aware of the type of evidence that would meet this threshold.
  15. Considering together the landlord’s responses to the resident after January 2019, the resident’s vulnerabilities and the length of time that the resident was affected by these matters, this Service concludes that there was maladministration in the landlord’s handling of the resident’s reports of noise. The landlord is therefore ordered to apologise to the resident and pay £500 compensation. This compensation has been calculated using the indicative awards in the Ombudsman’s remedies guidance, which is available on our website, for cases of maladministration that have an adverse effect on the resident and when the landlord has made no attempt or a disproportionate attempt to remedy the situation.

 

Complaint handling

  1. The landlord operates a two-stage complaint procedure. The landlord’s policy outlines that stage one complaints will be acknowledged within two working days and have a response issued within 20 working days. Stage two complaints will also be acknowledged within two working days and have a response issued within 25 working days. In cases where the complaint is expected to exceed these timescales, the landlord commits to updating the resident with an expected completion date.
  2. The Housing Ombudsman’s Complaint Handling Code (the Code), which is available on our website, sets out the minimum standards for complaint handling for member landlords. The Code states that a landlord must accept a complaint unless there is a valid reason not to do so and that complaints must be addressed at the earliest possible opportunity. Additionally, landlords must keep a full record of the complaint, any reviews and the outcomes at each stage. This includes all correspondence, reports and surveys.
  3. The resident contacted the landlord’s call centre on at least 20 occasions and raised two complaint webform to complain about noise between February 2019 and October 2021. There is no contemporary documentation related to four of those calls or the two webforms and there has been no evidence provided to this Service that any of these were escalated as complaints at any stage of the landlord’s complaint procedure. This is an unacceptable level of service and is incompatible with the Code, which states that a complaint is “‘an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents”. This resulted in an unreasonable delay in the resident being able to escalate her complaint.
  4. It is important to note that the only two complaints that were accepted into the landlord’s internal complaint procedure were escalated to the landlord by this Service on 25 June 2019 and 23 May 2021 respectively.
  5. Throughout the handling of these two complaints, there is repeated evidence that the landlord has not met its policy timescales for issuing responses and nor has it fully documented the progression of the complaint. In particular:
    1. The resident’s first stage one complaint did not receive a formal response for 109 working days and only after the resident had escalated it to stage two for a lack of response. This written response has not been provided as part of this investigation. The subsequent stage two complaint did not receive a response for 323 working days. Within this response the landlord apologised for this delay but offered no other redress.
    2. The resident’s second formal complaint received responses two working days over timescales at each stage. It is noted, however, that this Service intervened on two occasions within this complaint to progress the responses.
  6. Overall, the landlord missed several opportunities to escalate the complaint at an earlier stage, therefore extending the time the resident spent seeking a resolution and causing additional distress. The landlord has exceeded its policy timescales for responding to complaints by a combined total of 391 working days. Additionally, the landlord has not fully documented the complaint, to enable a clear and timely response to be made. The landlord’s only redress to date was to apologise for the delay in replying to the first complaint. Taken together, this amounts to maladministration, for which the landlord is ordered to pay £300 compensation in recognition of the adverse effects, distress and extended period of time and effort taken by the resident in resolving this complaint. This amount is in line with the Ombudsman’s remedies guidance, as referenced above.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there has been:
    1. Maladministration in the landlord’s handling of the resident’s reports of noise from a neighbouring property.
    2. Maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

  1. The landlord must apologise to the resident and pay £800 compensation, comprised of:
    1. £500 for the handling of the noise complaints.
    2. £300 for the handling of the associated complaint.
  2. The landlord must provide evidence of compliance with the orders listed above within four weeks of the date of this report.

Recommendations

  1. The landlord should:
    1. Consider publishing a separate noise nuisance policy, as suggested in the Ombudsman’s spotlight report on noise, available on our website.
    2. Review its processes for reopening ongoing antisocial behaviour or noise complaints when presented with new evidence.
    3. Review its record keeping processes to ensure that its complaint files are complete and accurate.
    4. Ensure that all staff involved in noise complaints receive adequate and timely training in the use of the noise monitoring machines.
    5. Ensure that the noise monitoring machines it utilises are calibrated at the required intervals as set out in the manufacturer’s instructions.