Lambeth Council (201902272)

REPORT

COMPLAINT 201902272

Lambeth Council

31 March 2021

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:
   1. response to the resident’s reports that her property was not suitable for her needs when initially allocated to her;
   2. response to the resident’s request to be rehoused through the local authority’s choice based letting system/direct let scheme;
   3. communication regarding soundproofing works to her property and her neighbour’s property as a result of antisocial behaviour (ASB) noise nuisance from her neighbour;
   4. complaints handling.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. Paragraphs 39(a) and (m) of the Housing Ombudsman Scheme note as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

a) are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale;

m) fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.

4. Following the resident’s request that she be rehoused due to the ongoing ASB issues she has experienced, she made a formal complaint on 12 October 2020 regarding the suitability of her property when initially allocated to it by the landlord, and also regarding her ability to bid on a new property through the local authority’s choice based letting system/direct let scheme. It is not evident, however, that either complaint has been progressed through the landlord’s internal complaints procedure. Additionally, complaints regarding applications for rehousing fall under the jurisdiction of the Local Government and Social Care Ombudsman.
5. After carefully considering all the evidence, in accordance with paragraphs 39 (a) and (m) of the Housing Ombudsman Scheme, the complaints regarding the resident’s reports that her property was not suitable for her needs when initially allocated to her, and her request to be rehoused through the local authority’s choice based letting system/direct let scheme are outside of the Ombudsman’s jurisdiction. The complaints may, following completion of the landlord’s internal complaint procedure, fall within the jurisdiction of the Local Government and Social Care Ombudsman.

Background and summary of events

Background

6. The resident is a secured tenant at the property of the landlord. It is not evident from the information provided to this service when the tenancy began. The landlord is a local authority. The property is a three-bedroom first floor dwelling, with another dwelling immediately above.
7. The landlord operates a two stage complaints policy. The policy notes that it will initially seek to resolve the complaint “straight away” through early resolution. Should this not resolve the issue, the resident should make a request for a stage one response within 20 working days and a review (stage two response) can be requested up to 20 working days following the stage one response. There is no published timeframe to provide the stage two response.
8. The landlord operates an ASB policy. The policy notes that noise nuisance and verbal abuse are ‘medium risk’, to which the landlord will respond within two to five working days.
9. The landlord operates a compensation policy. The policy notes that it may offer up to £250 for a resident’s time and trouble.
10. The resident has previously referred a complaint regarding her neighbour’s ASB noise nuisance to this service, which the Ombudsman determined on 31 July 2018. The determination found there had been maladministration by the landlord for both raising the resident’s expectations that it would take action against her neighbour, but not following through, and also for failing to explain its lack of action to her. It was ordered to pay £250 compensation to the resident as a result.

Summary of events

11. It is not disputed that following the residenj t’s initial complaint referred to above, the landlord issued a formal warning to the resident’s neighbour and agreed to both complete sound proofing works to her property, and also to arrange for the neighbour to install carpeting to their property.
12. The resident requested an update on these works on 7 November 2018. The landlord replied on 8 November 2018 and advised that its ‘neighbourhood team’ would provide a response shortly. On 16 November 2018, the landlord advised the neighbourhood team leader would be away until 19 November 2018 and would respond upon their return. The landlord again advised on 22 November 2018 that it would respond shortly.
13. On 2 December 2018, the resident advised that she still hadn’t received a response and that the noise nuisance issues she had previously raised were continuing. She further advised that the assessment for the sound proofing works at her property had not been carried out, nor had any carpeting been installed at her neighbour’s property. She requested that the issue be considered as a complaint and that the landlord advise her of the timeframe for a formal response. The landlord replied on 3 December 2018 and advised it had “copied the Tenancy Enforcement manager into this email for this matter to be logged as a Local Resolution complaint and a response provided to you.”
14. On 16 January 2019, the resident contacted the landlord and advised she was yet to receive a response to her complaint. On 15 March 2019, she again advised she was yet to receive a response. She also advised she had yet to receive any further communication about the sound proofing works at her property, and that the noise nuisance issues were still continuing. She subsequently requested that her complaint be escalated.
15. On 21 March 2019, the landlord’s complaints team replied and requested the resident “clarify at what stages of the complaints process that these issues are.” The resident replied on the same date and advised the issue had been ongoing and that she was advised there would be works carried out to soundproof her property and ensure adequate flooring was installed in her neighbour’s property. On 5 April 2019, the landlord’s complaints team replied and advised that it was “unable to assist with this matter until the issues have gone through the Local Resolution stage of our Complaints Procedure.” The resident replied on the same date and advised she had initially made a complaint in December, but had not received a response, and so wished it to be escalated.
16. On 23 April 2019, the landlord replied and requested a complaint reference number. The resident replied on the same date and provided her original complaint reference number. The landlord subsequently noted this was the reference number for the complaint previously referred to this service, which it considered to have already completed its complaints procedure. It advised that “any further complaints about this matter will need to be raised with the Service Area for it to be looked into.”
17. On the same date, the resident expressed her dissatisfaction that having raised this issue in December 2018, she was now being informed to begin the process again. She subsequently requested that the landlord “please accept this as the first stage in your complaints procedure.” The landlord replied that it had “already reviewed your complaint and it has also been investigated by the Ombudsman. You may approach the Ombudsman if you have any further complaints about this matter.” The resident reiterated that her current complaint was about the landlord’s failure to respond to her initial complaint in December 2018, however, the landlord replied that it had “already responded to your complaint,” and that “there is nothing more for me to add.”
18. On 1 May 2019, the resident’s local MP contacted the landlord and requested an explanation to the resident’s reports that its surveyor would only install sound proofing to two rooms in her property, and not the whole property. The landlord replied on 17 May 2019 and advised that it was not legally obliged to install any sound proofing, and that it had authorised its surveyor to install sound proofing in two rooms of the resident’s choice as a goodwill gesture.
19. On or around 21 May 2019, the resident provided information about her complaint to this service, which subsequently contacted the landlord seeking a response. On 12 July 2019, the landlord advised that the only record it had of the complaint was the “issue being raised on [the resident’s] behalf via her Member of Parliament.” It advised that it considered its response to the MP to be “equivalent to Local Resolution” and so would escalate the complaint to stage two. It further advised it would provide a stage two response by 9 August 2019.
20. This service has not been provided with any further correspondence until April 2020. It is evident that over this period the soundproofing works were completed at the resident’s property, however, she informed this service on 16 April 2020 that she did not believe her neighbour had installed any carpeting, and that the noise nuisance issues were continuing. Additionally, she made reference to a conversation with the landlord in which the landlord “said that I said it was all perfect,” which she disputed and advised that the noise nuisance issues remained. On 11 June 2020, she requested that the landlord update her regarding the installation of carpets at her neighbour’s property. On 7 July 2020, the resident noted she was yet to receive a response and again requested an update.
21. Following further correspondence from this service dated 16 June 2020, the landlord provided a stage one response on 15 July 2020. It confirmed it had instructed the neighbour to install carpeting and underlay and had sent a warning letter giving them 28 days to complete the installation or it would take further action. It also advised it would keep the resident updated with any further developments. The resident replied on the same date and expressed her dissatisfaction that the works had still not been completed considering they were initially raised following this service’s determination of her previous complaint.
22. On 4 August 2020, the resident reported that the ASB issues were continuing and that her neighbour had left rubbish and animal faeces outside her property. It is not disputed that she subsequently requested an escalation of her complaint.
23. The landlord provided its stage two response on 18 August 2020. It confirmed the timeline of events and actions it had taken as follows:
    1. 31 January 2018 – the landlord completed an inspection of the flooring at the neighbour’s property. The neighbour was subsequently given until 16 March 2018 to install carpeting;
    2. 20 April 2018 – the landlord completed a further inspection of the neighbour’s property and determined that carpeting had been installed on the stairs and hallway, however, due to the neighbour’s “hoarding” the remaining carpet was yet to be installed. The neighbour was subsequently referred to the landlord’s ‘Resident Support Officer’ to assist with their hoarding issue;
    3. 22 June 2018 – the neighbour’s property was cleared;
    4. December 2018 – due to staffing turnover, a new housing officer was assigned to the issue, which caused some delays. The neighbour was subsequently given until January 2019 to install the carpeting, however, due to their ill health, this was delayed;
    5. 14 May 2019 – the landlord completed a further inspection of the neighbour’s property and determined that only the living room remained to be carpeted;
    6. 4 July 2019 – the resident advised the landlord that “the soundproofing work had been done and that you no longer hear any noise from above you. It was also noted that you were happy for the case to be closed.”
24. Additionally, the landlord noted the next event to occur was the correspondence from this service on 16 June 2020 that the resident was dissatisfied with its complaints handling. It noted that the resident did not consider that the ASB issues would be resolved by the installation of the carpeting and expressed a desire to be relocated as her preferred outcome. It also noted that during a telephone conversation with the resident on 10 August 2020, she had advised that the “the issues with your neighbour extend beyond the noise nuisance,” and that it would subsequently open an investigation in accordance with its ASB policy. It noted that it had previously investigated this issue, but that it would re-open the complaint as “it seems that more investigation may be required.” It also advised it would provide her with the necessary transfer forms to assist her to be relocated.
25. On or around 18 August 2020, the resident replied and advised she was dissatisfied with the landlord’s stage two response. She advised that she believed relocation was the best option due to the ongoing ASB noise nuisance, and not simply that she wanted to move. She further advised that she had “never had a conversation and said I was happy with the soundproofing,” and that her “neighbour has not put carpets down and she definitely does not have them throughout the property.” She additionally advised that “the housing officer has also recently confirmed she does not have carpets.”
26. Following this, the communications between the parties focused on the resident’s banding and the local authority’s process to relocate her, which is not the subject of this investigation.

Assessment and findings

ASB works

27. Neither the resident’s tenancy agreement, nor the landlord’s ASB policy required it to complete soundproofing works and the Ombudsman considers these to be improvements to the property, completed at the landlord’s discretion. While the initial communication from the landlord agreeing to complete soundproofing to the resident’s property and informing her that the neighbour would be required to install carpeting has not been provided to this service, it is not disputed that this was agreed by the landlord. While not initially required to complete the works, having asserted that it would, the Ombudsman would expect the landlord to complete the works within a reasonable timeframe, and the resident’s expectations would also have been raised as such.
28. The Ombudsman would also expect a landlord to keep the resident reasonably informed as to the progress of the works and any delays. While the delays to its communications are discussed in a complaints handling context further below, it is evident that the landlord failed to keep the resident informed as it did not provide any updates despite her multiple requests in November 2018, leading to the resident subsequently making a formal complaint.
29. As noted above, the Ombudsman considers these works to have been discretionary improvements. It was therefore reasonable for the landlord to have advised the same to the resident’s local MP. While this service has not been provided with evidence surrounding the initial agreement to these works, it is not evident that the landlord had previously discussed with the resident that it would only install soundproofing two rooms, nor did the landlord signpost the MP to any such previous discussion. It would have been helpful for the resident, therefore, for it to have provided further information about why it had taken this position in order to have managed the resident’s expectations, which it did not do in this instance.
30. While the Ombudsman accepts that a landlord has a data protection responsibility and cannot reasonably disclose all of the neighbour’s circumstances that may have caused delays to them installing carpets, the Ombudsman considers it would be reasonable to keep the resident informed that a delay had occurred and provide an expected timeline for completion. It is evident, however, given the contents of the landlord’s stage two response, that it was in a position to provide the resident with a reasonable amount of detail regarding the cause of the delays to the neighbour’s works and so its failure to have done so contemporaneously with each event, or as a result of the resident’s requests for updates, unreasonably caused the resident distress and inconvenience, as well as time and trouble in chasing further updates.
31. Keeping an accurate audit trail is an important part of a landlord’s service delivery. The Landlord should have systems in place to maintain accurate records of any telephone notes so that it can satisfy itself and the resident (and ultimately the Ombudsman if necessary) that it took all reasonable steps when deciding to close its complaint. While the landlord noted in its stage two response that the resident advised she could no longer hear any noise and that she was happy with the soundproofing, the resident disputed that this was the case and this service has not been provided with any telephone records that detail any such discussion.
32. Whilst the stage two response represents the final stage of the landlord’s internal complaints procedure, given that the resident subsequently disputed that the neighbour had installed carpets and that the landlord’s housing officer had confirmed this, the Ombudsman considers it would have been appropriate for the landlord to address this with a further communication, which it is not evident that it did so.
33. Despite being discretionary improvements, given that the landlord raised the resident’s expectations that it would complete these works following a previous Ombudsman investigation, the Ombudsman would expect the works to have be completed within a reasonable timeframe and for the landlord to have kept the resident informed of any developments, which it did not do. This would have caused the resident unreasonable distress, as well as time and trouble in chasing up the issue. In the Ombudsman’s opinion, this constitutes service failure, and an amount of compensation is appropriate. Based on the landlord’s compensation policy and in the Ombudsman’s opinion, an amount of £250 is appropriate to compensate the resident for the distress and inconvenience caused to her.

Complaints handling

34. Following the resident’s initial request for an update on 7 November 2018, the landlord appropriately acknowledged the request and it was reasonable that it set out a time frame for a response given that the appropriate person to respond was away. However, following this timeframe elapsing, while the landlord sent a further communication assuring the resident it would provide a response, it is not evident that the landlord did respond, leading to the resident having to chase the landlord for an update again, one month after her initial request. The landlord’s delay in responding over this period would have left her unsure how the works were progressing and unclear on whether to raise a complaint, as well as causing her time and trouble in repeatedly requesting updates.
35. The landlord’s complaints policy notes that it will initially attempt to resolve the complaint “straight away” through early resolution. While it does not give a specific timeframe for this stage, the Ombudsman would expect it to respond within a reasonable timeframe. As part of the resident’s request for an update on 2 December 2018, she specifically requested that her communication be considered a complaint and requested a timeframe for a response. The landlord appropriately acknowledged her complaint on 3 December 2018 and advised it had been passed to the relevant person for a local resolution response, in line with its complaints procedure. It is not evident, however, that the resident received any further communications, leading her to chase up a response on 16 January 2019, and again on 15 March 2019, with the landlord eventually replying on 21 March 2019. The landlord’s complaint’s policy also notes that a stage one response will be provided within 20 working days, which the Ombudsman considers to be a reasonable timeframe, and so the delay of 74 working days in providing a further reply at the early resolution stage complaint is unreasonable. Additionally, given that the resident also reported that the ASB noise issues were continuing, the landlord was also in breach of its ASB policy which notes that it will respond within two to five working days. This would have caused distress to the resident who would not have known how her complaint was being resolved.
36. While it was reasonable for the landlord to initially clarify in its communication on 21 March 2019 at what stage her complaint was, following the resident’s explanation on the same date, the landlord took a further 11 working days to reply, at which point it advised it was “unable to assist” and referred her back to the early resolution stage. The resident subsequently explained she had not received any responses at this stage, however, on 23 April 2019 the landlord again reiterated it was unable to assist. Given that the resident had already made a number of requests for updates at this stage, without a response, it would have been helpful for the landlord to have taken an active role to assist her with this process, which it did not do in this instance.
37. The resident’s earlier complaint already considered by this service, referred to above, regarded noise nuisance ASB from her neighbour. In her communication on 23 April 2019, the resident made it clear that her current complaint related to the landlord’s communication about the soundproofing works at her property, along with its failure to respond to her complaint since December 2018. It was therefore unreasonable that the landlord responded that it had already considered her complaint and subsequently referred her to this service, especially considering it had already raised her expectations of a formal response in its acknowledgement on 3 December 2018.
38. While the landlord responded to a communication from the resident’s local MP regarding the issue within a reasonable timeframe, following a communication from this service requesting a formal response, the landlord replied that it was unaware of the complaint prior to the MP’s communication and that it considered its response to the MP to be “equivalent to Local Resolution.” Based on the evidence provided to this service, it is evident that the resident initially made a complaint on 2 December 2018, and subsequently referred to it on a number of occasions, which the landlord acknowledged. As noted above, effective record keeping is an essential part of a landlord’s service delivery, especially in the context of complaints handling, and so its response that it had no prior record of the complaint demonstrates a failure in its record keeping, which would have caused significant frustration to the resident.
39. Additionally, while its response to the MP addressed the resident’s complaint regarding the soundproofing works, it did not address the issues around the carpeting at her neighbour’s property, nor did it address the landlord’s delayed response to her complaint. It also did not identify the response as a response under its complaints handling procedure. The Ombudsman would also expect a formal response to include information about how a resident could escalate their complaint, which the communication to the MP did not do. This would have left the resident confused about how to escalate her complaint, causing her further delay to the resolution of the complaint.
40. While it was appropriate that the landlord agreed to provides a stage two response and set out a timeframe, based on the evidence provided to this service, it is not evident that it subsequently did so. Following this, there was an extended period without any further communication on the issue.
41. It is not disputed that sound-proofing works were subsequently completed at the resident’s property, however, it is not evident that the landlord provided any updates as to the neighbour’s carpeting, nor did it respond to the resident’s complaint about its complaints handling. While the landlord’s failure to provide a response to the resident having initially raised her expectations that it would do so was inappropriate, this service has not been provided with any evidence that the resident chased the progress of her complaint with the landlord during this period. Given the amount of time that had elapsed, it is generally acceptable for a landlord to exclude a complaint from further investigation, however, given the outstanding issues that remained, it was appropriate that the landlord provided a further stage one response on 15 July 2020 that addressed the issues.
42. While it was appropriate that in its stage one response, the landlord advised the resident of its most recent actions and that it had given the neighbour 28 days to install the carpeting, given the significant amount of time that elapsed since the works were initially discussed, it would have been helpful for the resident had the landlord identified the other steps it had taken over this period, which it did not include in this response. This would have left the resident unclear and frustrated as to why her complaint was taking so long to be resolved.
43. Following the resident’s expression of dissatisfaction at the amount of time that had elapsed, it was appropriate that the landlord subsequently set out a further explanation and timeline of events in its stage two response, which would have helped the resident to understand the delays to the works at her neighbour’s property. The Ombudsman would expect, however, that a detailed investigation of all evidence available to the landlord would take place as part of the stage two response. As noted above, it is evident that the resident initially communicated her complaint to the landlord on 2 December 2018, and that the landlord had at various times acknowledged this. The landlord’s subsequent mention in its stage two response that it was first made aware of this complaint following a communication from this service is further evidence of its poor record keeping and would have caused additional frustration for the resident.
44. It was appropriate, however, that the landlord used its stage two response to confirm it would continue to investigate the other elements of ASB that the resident had reported, in addition to having provided her with noise diary sheets to log any incidents. It was also appropriate that it confirmed it would assist with her requests for relocation.
45. As noted above, having initially acknowledged the resident’s complaint in December 2018, which raised her expectations of a response, the landlord repeatedly failed to respond to her within a reasonable timeframe, and also failed to assist her to progress her complaint, despite her reports that she had made several attempts at the local resolution stage. Additionally, its failure to adhere to its complaints policy and its poor records keeping added to the delays to the resolution of the complaint, causing the resident significant distress as well as time and trouble in having to chase up the complaint. In the Ombudsman’s opinion, this constitutes service failure by the landlord and an amount of compensation is appropriate. Based on the landlord’s compensation policy and in the Ombudsman’s opinion, an amount of £250 is appropriate to compensate the resident for the distress and inconvenience caused to her.

Determination (decision)

46. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaint concerning the landlord’s communication regarding soundproofing works to her property and her neighbour’s property as a result of antisocial behaviour (ASB) noise nuisance from her neighbour.
47. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaint regarding the landlord’s complaints handling.

Reasons

ASB works

48. Despite being discretionary improvements, given that the landlord raised the resident’s expectations that it would complete these works, the Ombudsman would expect the works to have been completed within a reasonable timeframe and for the landlord to have kept the resident informed of any developments, which it did not do.

Complaints handling

49. Having initially acknowledged the resident’s complaint in December 2018, which raised her expectations of a response, the landlord repeatedly failed to respond to her within a reasonable timeframe, and also failed to assist her to progress her complaint, despite her reports that she had made several attempts at the local resolution stage. Additionally, its failure to adhere to its complaints policy and its poor records keeping added to the delays to the resolution of the complaint, causing the resident significant distress as well as time and trouble in having to chase up the complaint.

Orders and recommendations

Orders

50. The Ombudsman orders the landlord to pay compensation of £650, comprising:
    1. £250 for any distress and inconvenience caused to the resident by its poor communication regarding the soundproofing works to her property;
    2. £400 for any distress and inconvenience caused to the resident by its ineffective complaints handling.
51. This amount must be paid within four weeks of the date of this determination.
52. The landlord to write to the resident within four weeks of the date of this determination and include the following (if it has not already done so):
    1. update the resident as to any outstanding works to be completed at the neighbour’s property;
    2. enquire as to whether the resident is still experiencing any ongoing ASB issues, and whether she considers the soundproofing works to her property to be effective, and if required, subsequently advise its position on what further action it can take if any.
53. The landlord to provide this service with a copy of the above letter.

Recommendations

54. The landlord to take steps to ensure its records keeping system is effective.
55. The landlord to take steps to ensure that its complaints handling staff are aware of the details of its complaints policy. This should also include consideration of this service’s guidance on remedies at https://www.housingombudsman.org.uk/aboutus/corporateinformation/policies/disputeresolution/guidance-on-remedies/ and the completion of our free online dispute resolution training for landlords at https://www.housingombudsman.org.uk/landlords/e-learning/ if this has not been done recently.