Lambeth Council (202111177)

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REPORT

COMPLAINT 202111177

Lambeth Council

1 July 2022


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of:
    1. The resident’s reports of noise nuisance.
    2. The associated complaint.

Background

  1. The resident is a leaseholder. The resident lives in a flat, in a building of similar properties.
  2. On 15 October 2020, the resident reported to the landlord that the property above was causing a noise nuisance. The resident reported that she could hear the noises all day, this included people walking in the property, bathroom ventilation, washing machine, chairs being moved, cleaning and talking between the occupants.
  3. On 20 October 2021, the landlord issued a warning letter to the property above, regarding the noise nuisance. The landlord also emailed the resident requesting the resident to fill in diary sheets for two weeks to record any further incidents. The landlord held a review of the anti-social behaviour (ASB) on 26 October 2020 and decided that diary sheets needed to be used to record the sequence of events.
  4. On 2 November 2021, the resident emailed the landlord informing it that the noise nuisance had gotten ‘worse’. The resident stated she was keen to understand the next steps as the noise was making her life ‘miserable’ and enquired if she should contact the local authority’s environmental health department (Environmental Health). The landlord responded on the same day and advised the resident to call the public protection team, who operated a noise response team.
  5. A verbal warning was issued to the property above on 10 November 2020. This was followed up with a letter to the property above stating that, an inspection of the property would take place on 11 December 2020 to ensure the property had adequate flooring to reduce noise transference.
  6. On 11 December 2020, the landlord completed an inspection of the above property. It found that the property’s floors were adequately covered and protected from sound and the bathroom ventilation and washing machine were ‘not loud at all’. The outcome of this inspection was communicated to the resident on 15 December 2020.
  7. On 26 January 2021, the resident emailed the landlord informing it that the noise was still ongoing. The resident was also ‘disappointed’ that the landlord did not visit her property to assess the noise.
  8. In a further email to the landlord on 28 January 2021, the resident stated she has no quiet time in her property and the noise disturbed her working. She believed that the laminate flooring in the property above was the concern. The resident also stated that she believed that the property above was breaching the terms of the lease. The resident stated she had no quiet enjoyment of her property and that her mental health was being impacted.
  9. On 18 February 2021, the landlord emailed the resident requesting her to use a noise recording app on her phone, to help gather evidence. The landlord further requested this on 23 March 2021.
  10. On 9 April 2021, the landlord conducted a ‘door-knocking exercise via phone’, this included contacting other residents to enquire if anybody else had also experienced noise nuisance. The outcome found that the only noise witnessed by other residents, was when DIY work had been completed on the property.
  11. The resident contacted the landlord to complain on 23 April 2021. The resident stated she felt that the noise nuisance was not being resolved or handled properly by the landlord. The resident stated that the landlord said ‘what do you expect, these are only council flats’ in response to her concerns regarding the noise and she found this unprofessional. The resident cited Housing Act 2004, stating the noise had become a threat to her physical and mental wellbeing. The landlord acknowledged the complaint on the same day.
  12. On 4 May 2021, the landlord emailed the resident requesting her to install the noise recording app. The landlord clarified that this was due to no home visits taking place as a result of Covid-19.
  13. On 6 May 2021, the landlord told the resident that her noise nuisance case had been closed. The landlord informed the resident that it had completed its investigation into the noise and found no evidence to support a breach of tenancy. However, it had asked the property above to be mindful of others.
  14. On 16 September 2021, the landlord informed this Service that the resident had not completed the internal complaint procedure but it would aim to respond to the complaint by 14 October 2021.
  15. On 1 January 2022, the landlord issued its final response to the complaint. The landlord apologised for the delayed complaint response. It stated that following various inspections and investigations, it was unable to obtain any evidence of noise nuisance from the property above. It reoffered mediation between both parties.
  16. The resident referred this matter to the Ombudsman on 19 February 2022. As a resolution to her complaint, the resident would like the landlord to enforce the lease agreement by making the property above install suitable sound insulation.

Assessment and findings

Policies and Procedures.

  1. On the landlord’s website it states that, residents may be asked to keep a diary of the dates and details of the noise incidents. This evidence could be used if any legal action is taken.
  2. The landlord’s operational policies and procedure, states that it will use a range of prevention measures as appropriate. These may include the following:
    1. Giving clear messages on ASB to new tenants at sign up
    2. Use of mediation
    3. Estate walkabouts
  3. It also states, in most cases it will make a noise assessment from outside the property that it being complained about. Noise inspections will only take place, if it has assessed that it is safe for the inspection to take place, in regard to Covid-19.
  4. The landlord’s complaint policy states that, at stage one a full written response should be sent to the resident within twenty-working days of receipt of their complaint. At stage two, a full written response should be sent to the resident within twenty-five working days. If at both stages the landlord cannot complete the response within the timeframes, an interim response should be sent explaining the reason for delay and advising when the resident can expect to receive a response.

Scope of investigation

  1. The resident has stated that the noise nuisance has impacted her mental health. The Ombudsman does not doubt the resident’s comments about her mental health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Therefore we cannot assess the effect of any action or inaction by the landlord on the resident’s health. However, we have considered the general distress and inconvenience that the landlord’s handling of the incidents of the ASB caused the resident.

Noise nuisance.

  1. It is evident that the situation with her neighbour has been distressing for the resident and this has been considered as part of our investigation. However, it is important to be aware that it is outside the role of the Ombudsman to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case. The landlord is not responsible for the neighbour’s actions and no action which a landlord could take, with the possible exception of eviction, could be guaranteed to prevent someone from engaging in ASB. Therefore, the landlord would not be expected to compensate the resident for distress and inconvenience caused by the neighbour’s actions and the landlord would only be expected to pay compensation for any distress and inconvenience caused by its own errors.
  2. In order to take formal action for ASB such as enforcing the terms of the lease, the landlord would be expected to show evidence that the ASB was persistent and severe rather than just being a one off event or general noise of everyday living, which would not be considered ASB. The landlord’s website states that, in response to noise nuisance, residents might be requested to record the dates and details of the noise incidents. In this case, the landlord requested the resident to complete diary entries, which the resident did complete in November 2020. This was a reasonable step for the landlord to take in relation to gathering evidence of the noise nuisance.
  3. The landlord also asked the resident to download and use a noise recording app, in order to help gather evidence in support of the resident’s claims of noise nuisance. These were reasonable requests in the circumstances, especially as the landlord was not able to make visits to the building at the time due to restrictions on contact between households in place at the time due to the Covid-19 pandemic.

It is noted that the resident did not complete the requested download of the noise nuisance app, no reason was provided by the resident. The Ombudsman is not questioning the resident’s reasons for not downloading the noise recording app. However, the lack of evidence to support the resident’s allegations meant that the landlord was limited in the actions it could take to resolve the noise nuisance, as there was no other evidence supporting the residents claims. As an independent and impartial arbiter we can only investigate the landlord’s actions based on the available evidence. This Service has not seen any evidence that the landlord refused to act on evidence of ASB, rather the evidence demonstrates that the landlord was acting in accordance with its ASB policy by looking at ways in which to gather evidence in support of the resident’s allegations.

  1. The landlord attended the neighbour’s property, assessed the noise from inside and outside of the property and contacted other residents to enquire if anyone else had heard the noise nuisance. These were reasonable actions for the landlord to take in order to investigate the resident’s reports of noise nuisance.
  2. It is acknowledged that the resident requested the landlord visit her property to assess the noise and was upset that it did not visit her on 11 December 2020, when the landlord inspected the property above hers. As per the landlord’s website and its responses to the resident, due to covid-19 landlords had to assess whether properties were safe to enter and, in most cases, whether an intrusive visit could take place. Whilst typically this Service would expect the landlord to assess the noise inside of the resident’s property, we would not place this obligation on the landlord during covid-19 restrictions due to the health and safety regulations in place and it was reasonable for the landlord to suggest the use of a noise recording app instead of visiting the property. Therefore, the landlord was not obliged to attend the resident’s property and provided a reasonable explanation to both this Service and the resident for not attending.
  3. In summary, the landlord acted within its obligations in its handling of the resident’s noise complaints. As a resolution to her complaint, the resident wanted the landlord to enforce the lease and make the property above install suitable sound insulation. Ultimately, the landlord did not have enough evidence to support this action, in this case, despite its attempts at gathering corroborative evidence and therefore, it is unable to comply with the resident’s request. No further evidence has been provided to this Service, to require the landlord to make the property above install sound insulation.

The associated complaint.

  1. The landlord provided its complaint handling policy to the Ombudsman for use in our investigation. However, its complaints policy is not in-line with the Ombudsman Complaint Handling Code (which can be found on our website), which came into effect on 1 January 2021. The Code sets out the Ombudsman’s expectations for landlords’ handling of complaints. Therefore, this Service will assess the landlord’s handling of the complaint against the Ombudsman Complaint Handling Code rather than the landlord’s internal complaints policy.
  2. The resident attempted to raise a formal complaint to the landlord on 23 April 2021. However, this complaint was not opened. The landlord opened a complaint on 16 September 2021, after being contacted by this Service. The landlord should have dealt with the complaint on 23 April 2021. It should not take multiple attempts or involvement from this Service, for a complaint to be raised with the landlord. The landlord’s actions were not in line with good practice or the Complaint Handling Code.
  3. Upon acknowledging the complaint on 16 August 2021 the landlord responded twenty working-days later, exceeding the Complaint Handling Code of ten working days by a further ten working days. Additionally, at stage two of the internal complaint process, the landlord responded forty-seven working days after the escalation, exceeding the Complaint Handling Code of twenty working days, by an additional twenty-seven working days.
  4. The landlord’s complaint policy states that, at both stages of the process, it could exceed its expected response time, but it would need to make the resident aware of the delay and provide an explanation. This did not occur and an explanation was not provided in either of the complaint responses. It is acknowledged that the landlord apologised for the delay. However, this was not sufficient as there were serious delays, lack of acknowledgement at the time and poor communication with the resident, which added to the distress caused. Therefore, the landlord has not acted in line with its policy, ultimately leading to a failure in its service.
  5. The landlord should pay the resident £150 compensation in recognition of the inconvenience caused by its poor complaint handling. This is in line with the Ombudsman’s remedies guidance (published on our website) which suggests awards of £50 to £250 for cases where the Ombudsman had found service failure or maladministration, but there may be no permanent impact on the resident. An example of this is 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 the complaint.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the associated complaint.

Orders

  1. This Service orders the landlord to pay the resident £150 compensation in recognition of its poor complaint handling. This should be paid within four weeks of this report.

Recommendations

  1. This Service recommends that the landlord review its complaint policy, and bring this in-line with the Ombudsman Complaint Handling Code.