Lambeth Council (202211778)

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REPORT

COMPLAINT 202211778

Lambeth Council

30 April 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

  1. The complaint is about the landlord’s response to the resident’s:
    1. Reports of noise nuisance;
    2. Complaint.

Background and summary of events

  1. The resident is a secure tenant in a 2 bedroom, ground floor flat that is owned by the landlord. The resident moved into the property in June 2007 and has a vulnerable child with autism and learning disabilities.
  2. On 8 January 2021, the resident reported to the landlord that her neighbour above had been making loud noises. She said that, since the end of the previous year, there had been “heavy drilling sounds” travelling through the pipes and flooring. She added that she was not getting any quality sleep and her children could not study or concentrate.
  3. The landlord tried to contact the resident on 11 and 18 January 2021 but was unable to reach her. It spoke to her on 28 January 2021 and the resident reported that her neighbour did not have carpet in her property. Furthermore, she could hear loud noises coming from her neighbour’s pipes.
  4. The resident called the landlord on 4 February 2021. She said that, since it had written to her neighbour, she had been “banging the floor” very loudly at 5.30am. She added that the property above had laminate flooring and no carpet, and asked the landlord to discuss this with her neighbour. The landlord has not provided a record of any contacts between 4 February and 28 March 2021 therefore it is not clear from the records what further action the landlord took following this contact.
  5. The landlord wrote to the resident on 28 March 2021 to say that it had sent her diary sheets and asked her to complete and return them after 2 weeks. It said it had also offered to refer her for mediation but had not heard from her since. It stated that it could only assume the nuisance had stopped but, if she was still experiencing problems with noise, she should contact it within 7 days of its letter. If it did not hear from her, it would close her case.
  6. On 13 April 2021, the landlord called the resident to follow up on its letter. She said she did not want the landlord to contact her neighbour anymore. This was because the noise worsened following each contact. The resident expressed concern that this was being done deliberately. She added that she could still hear noises from the neighbour’s pipes. The landlord advised her to report the matter to its repairs team. She stated that both she and her neighbour had done this and she just wanted her case to be closed. The landlord told her it would send her a closure letter and, according to the records, it sent this on 12 May 2021.
  7. The resident sent the landlord a stage 1 complaint on 6 December 2021. She stated that:
    1. Over the years, she had made several complaints regarding the disturbances caused by her neighbour.
    2. The noise started as early as 5am every day and continued throughout the day. It was so bad it was affecting her family and causing her stress and anxiety.
    3. She believed the biggest issue was the flooring. Adding that her neighbour was always knocking and moving furniture on the wooden floors above her head.
    4. All the landlord had done was to write to her neighbour which had not solved the problem.
    5. All she was asking was for the landlord to enforce its rules regarding noise nuisance, which required neighbours above the ground floor to carpet their properties.
  8. The landlord wrote to the resident on 24 January 2022. It thanked her for telling it about the nuisance she was experiencing and stated that:
    1. It had written to her neighbour and told them that it had received a complaint;
    2. It had enclosed diary sheets and she should record specific details of the nuisance. This would enable it to speak to her neighbour and for them to explain what they were doing at those times;
    3. She should return the diary sheets after 2 weeks but, if it did not receive them, it would assume the problem had ended and would close the case;
    4. It would work with her and her neighbour to try and reduce the noise to a level that was less of a nuisance.
    5. Mediation with her neighbour would be the best way of resolving the matter. It enclosed a leaflet with information about mediation.
    6. Having made them aware of the situation, it hoped her neighbour would be able to make some minor adjustments to prevent any further reports of noise nuisance.
  9. On 4 February 2022, the landlord spoke to the resident on the telephone and followed this up in writing. It stated that it would send a letter to her neighbour about laying carpet. It attached an electronic copy of a diary sheet for her to complete and return via email. It added that she could also report noise nuisance by downloading the Noise App. It sent her a link with guidance on how to use it.
  10. The landlord sent the resident its stage 1 response on 15 July 2022. It apologised for the delay in responding to her complaint and stated that:
    1. The delay was due to a backlog of cases it was working through;
    2. Following her report of noise nuisance on 8 January 2021, it had sent her neighbour a “warning/advisory letter”. This was to make them aware of their actions and the impact they were having on her.
    3. The resident had asked it on 12 May 2021 to suspend its investigation and not contact her neighbour. This was because the noise appeared to have stopped after the Tenancy Enforcement Team (TET) had contacted her.
    4. In line with its antisocial behaviour (ASB) policy, it closed her case “tentatively for 3 months”. Subsequently, her case was permanently closed in August 2021.
  11. The resident responded on 18 July 2022 and told the landlord that she never said the noise had stopped. She said she had spoken to a case worker a number of times and was told in April 2022 that the landlord would visit her neighbour and tell them to carpet their floor. She had not heard anything since. She added that she had witnessed delivery of a laminate floor to her neighbour’s address and could hear them putting it down.
  12. On 1 September 2022 the resident wrote to the Service to say she had been complaining about noise for years but the landlord had not dealt with the issue.
  13. The landlord wrote to the resident on 5 September 2022 to say it was reviewing her case and had not received any further information about the noise nuisance she had reported. It asked her for an update and said that if it did not hear from her or receive any diary sheets by 12 September 2022, it would close her case. The resident responded on the same day to say that the issue had not been resolved and the landlord had not taken any action. She added that the noise disturbances happened “every day of every week, from anywhere between 4am and 5am”. The landlord had said it would take enforcement action but this had not been done.
  14. Following further contact from the resident, on 5 September 2022, the Service wrote to the landlord for clarification on the actions it was taking in response to her complaint. The landlord responded on 6 September 2022 to say that, as the resident remained unhappy, it would escalate her complaint and provide a stage 2 response by no later than 11 October 2022.
  15. The landlord wrote to the resident on 15 September 2022 to inform her that it had initiated enforcement action for her neighbour to install suitable flooring. It had given them a deadline of 14 October 2022 by which to do so. It attached diary sheets and asked her to record all incidents as they occurred. It added that it had taken note of the resident’s comments regarding her wellbeing and told her a referral for support was available. It listed a number of support services that were available.
  16. On 12 October 2022, the landlord sent the resident its stage 2 response. It stated that:
    1. It was sorry to hear of the disturbances she had been subjected to and the impact they were having on her health and wellbeing.
    2. It had requested information from its TET as to whether it had inspected the neighbour’s property to assess the flooring and if the neighbour had been told to replace it.
    3. The TET confirmed that it had initiated enforcement action and given the neighbour a deadline of 14 October 2022 to install appropriate flooring. It had also scheduled an inspection to ensure compliance with its instruction.
    4. It had provided the resident with diary sheets to keep a log of incidents as they occurred.
    5. The resident should continue to liaise with her case manager and provide diary sheets so it could review the noise nuisance and offer appropriate support.
    6. It hoped the matter would shortly be resolved by the actions it was taking.

Events following the conclusion of the complaints process

  1. The landlord visited the neighbour’s property on 24 October 2022 and found that the flooring had not been replaced. It gave the neighbour a revised deadline of 18 November 2022 to carpet their floors, and sent the resident an update on 31 October 2022 to let her know about the actions it had taken.
  2. On 1 December 2022 the landlord contacted the resident to confirm that she had told the case manager she was happy for her case to be closed. It stated that it had placed it “on hold”. However, on 11 February 2023, the resident reported that she had been woken up between 4.30am and 5am by “noise from upstairs. She said her “entire days” were “ruined” and that she could not “think straight or function”. The landlord responded the following day to confirm her neighbour’s full address and details of the noise so it could log her complaint.
  3. Further correspondence took place between the resident and landlord during the end of February and beginning of March 2023. The landlord continued to ask the resident to complete diary sheets and download the Noise App. It told her that, in line with its procedure when investigating noise nuisance, it was only able to take action if it had evidence of the noise. It told her it had been trying to contact her to agree an action plan but had been unable to reach her. It added that, if it had not heard back from her by 10 March 2023, it would close her case.
  4. On 24 May 2023, the resident contacted the Ombudsman. She said she had been living for years with “unreasonably noisy upstairs neighbours”. She stated that the landlord always dealt with her reports in the usual way, “with a couple of emails and phone calls and no resolution”.
  5. On 3 October 2023, the landlord recorded that it had not received any further reports and, on 15 February 2024 it permanently closed the resident’s case.
  6. The resident reported to the Service on 25 April 2024 that she continues to experience noise nuisance from the property above.

Assessment and findings

The landlord’s policies and procedures

  1. The Tenant’s Handbook states the following in respect of installing floor coverings:
    1. Wooden or laminate floors can make homes noisy and can result in complaints from your neighbours about noise nuisance. Normally, the landlord will not grant permission for residents to fit laminate flooring or sanded floorboards in their home, unless:
      1. They live on the ground floor;
      2. No-one lives beneath them.
    2. Any existing laminate flooring and sanded floorboards can remain only if there are no complaints from the neighbours or a nuisance to others living in adjacent properties. If there are complaints, the landlord would have to ask residents to remove the floor covering in the property or take measures to minimise noise being transmitted to adjacent properties.
    3. The landlord recognises that there may be circumstances where carpet and additives in alternative floor coverings may exacerbate some health conditions.

The guidance in the Tenants Handbook reflects the landlord’s model tenancy agreement, which it has provided to the Service.

  1. The landlord’s antisocial behaviour (ASB) policy lists a number of issues that it considers to fall outside the scope of the definition of ASB. These include day to day living noise, which is not excessive or unreasonable and noise transference due to poor sound insulation. It states that when it receives an ASB complaint that relates to one of those issues, it will consider the experience of and impact on the victim, and the action it will take will be proportionate.
  2. The policy lists a range of enforcement actions, which include advice and guidance, verbal warnings, requests to take action, sending letters and referral to mediation.
  3. The landlord’s complaints policy outlines a 2 stage process. It states that:
    1. It has an informal stage where the landlord will make contact with the resident and agree actions to resolve the issue and agree timescales. At this stage the resident will not receive a written response. However, should they wish for a written response this would become a Local Resolution” (stage 1 complaint).
    2. At stage 1, which the landlord refers to as “Local Resolution” its response will normally be provided within 20 working days. However, should more time be required, it will explain to the resident how long it thinks it will take before it can respond.
    3. It refers to its second stage as the “Review Stage”. The Review will not normally address new issues that were not previously raised at the initial stage. The outcome of the Review will represent the landlord’s final response.

Scope of investigation

  1. The resident has stated that the noise nuisance she has experienced has caused her mental and physical harm. While the Ombudsman extends every sympathy to the resident for the impact the situation has had on her health, the Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process. They are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim. While we cannot consider injury to health, we have considered whether the resident was caused distress or inconvenience as a result of any failings by the landlord.
  2. It is suggested from the records that there has been an ongoing history of noise reports from the resident about her neighbour. The Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment has focused on the period from January 2021 onwards. This is when the evidence shows the resident made reports of noise nuisance that led her to raise a stage 1 complaint.

The resident’s reports of noise nuisance

  1. The resident’s comments about the nature and frequency of the noise nuisance she has experienced is not disputed. When considering complaints relating to noise and ASB, it is not the role of the Service to reach a decision on whether they have occurred. Instead, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.
  2. It was reasonable for the landlord to initially ask the resident to complete diary sheets as these allow the landlord to assess the type, location frequency, duration, and effect of the noise she was reporting.  This in turn can inform what, if any, further action the landlord should take. Generally, everyday household noise is not considered to be a statutory nuisance. While tenancy enforcement action may not be taken in such cases, the landlord should reasonably consider what can be done to reduce the noise transference
  3. The records show that the landlord also signposted the resident to the noise app, along with guidance on how she could download and use it, and spoke to the neighbour about the noise. The evidence shows the landlord had asked the resident a number of times to complete diary sheets, and also to use the noise app in order to provide evidence the landlord would be able to act upon. It has demonstrated that it had made reasonable efforts to try and gather evidence to corroborate the resident’s reports. There is no record to indicate the resident returned diary sheets or noise recordings to the landlord. Although she states on 28 February 2023 that she had kept diary sheets and made recordings, we have not been provided with any evidence to support this.
  4. The landlord acted appropriately, and in accordance with its policy, when it suggested at an early stage that the resident engage in mediation. Mediation is an established option for resolving low-level neighbour disputes, particularly over lifestyle matters. Mediation allows both parties to understand each other’s point of view and arrive at a mutually agreed solution, and can be an effective options for maintaining good neighbourhood relationships, as recommended in the Ombudsman’s spotlight report.  The evidence shows the resident was willing to participate in mediation; however, her neighbour had declined the offer. This was beyond the landlord’s control.
  5. The resident had reported noise nuisance over a long period of time. However, the reports were often sporadic and there were lengthy periods where she had stopped reporting any noise, and where the landlord had closed the case due to lack of evidence. It is also evident that the landlord had often struggled to contact her, and that it did not receive responses to its email and voicemail messages. Furthermore, there are records showing that the resident had, on occasions, informed the landlord that the noise had stopped or improved. In particular, on 13 April 2021, she had asked the landlord to close her case and not to contact her neighbour anymore.
  6. The evidence demonstrates that the resident’s view of the situation changed several times over the period of the investigation. On some occasions she described the neighbour’s behaviour as problematic, and on others she asked the landlord not to broach the noise as the issue had resolved itself. It is the view of this Service that this sometimes made it difficult for the landlord to effectively investigate the case and decide what action to take next.
  7. The Ombudsman’s Spotlight Report on Noise Complaints, published in October 2022 recommends that to handle noise reports that do not meet the statutory threshold, landlords should adopt a proactive good neighbourhood management strategy. This should be distinct to the ASB policy, with clear options for maintaining good neighbourhood relationships. It states that, this requires some landlords to recognise that noise transference is often the key issue, and address the implications of this. By doing so, landlords could stop escalating complaints into ASB and focus more on prevention.
  8. The evidence shows that the resident had periodically reported noise nuisance from the flat above, which she said was caused by her neighbour having laminate flooring. While the tenancy agreement and Tenant’s Handbook does not allow for wooden or laminate flooring in properties above ground floor level, the landlord has discretion in the matter. Moreover, if a neighbour does complain about noise, the tenancy agreement and the Handbook provides that the landlord would only ask for the flooring to be removed as a last resort. It would first explore measures to reduce the noise in the first instance, such as asking the resident to lay rugs and/or carpets.
  9. The evidence shows that the landlord spoke to the resident’s neighbour on 28 January 2021 about the noise nuisance and sent them advisory and/or warning letters. It had also initiated enforcement action to try and encourage the neighbour to install suitable flooring. However, despite the fact the resident had raised concerns about her neighbour’s laminate flooring on 4 February 2021, it was not until September 2022 that it initiated enforcement action. It was then not until 24 October 2022 that the landlord had visited the neighbour’s property. This was some 21 months later.
  10. It was appropriate for the landlord to inspect the neighbour’s property following its 14 October 2022 deadline. However, it would have been reasonable for it to have carried out an inspection at an earlier stage. This would have helped reassure the resident that it was taking the matter seriously and being proactive in responding to a potential tenancy breach. Given noise transference from the flooring above was the main issue, the fact the landlord delayed inspecting the neighbour’s property, or taking appropriate enforcement action, was a missed opportunity to resolve the issue at an earlier stage. Instead, the resident was left to experience the impact of the noise from the property above for longer than was necessary.
  11. The records show that, when the landlord inspected the neighbour’s property on 14 October 2022, it found that they had not laid suitable floor coverings throughout the property. It therefore agreed a new date of 18 November 2022 for the neighbour to comply. The landlord told the Service that the neighbour had put down rugs to reduce the noise and that the resident had told it that the noise had stopped. However, the records show that the resident continued to report noise nuisance for a number of months after the landlord had issued its stage 2 response. The landlord has not provided any evidence to show that it carried out any further inspections to the neighbour’s property after the 18 November 2022 date.
  12. There is no indication the landlord had followed up on the actions it had taken to address the issue. Instead, in response to the resident’s further noise reports, it continued to ask her to complete diary sheets and send noise recordings, which would not have resolved the underlying issue. That the landlord could not demonstrate it appropriately followed up on its actions to resolve the noise transference was a failing.
  13. The landlord’s ASB policy states that it will continuously risk assess to understand the impact of ASB on the victim and signpost the victim to the relevant support provision. There is no evidence the landlord had considered undertaking a risk assessment, which was a departure from its policy. Given the landlord was aware of vulnerabilities within the household, and that the resident was regularly reporting the impact the noise was having on her and her children, it would have been reasonable in the circumstances to have formally assessed the risk to the family. This would have helped the landlord determine the urgency of the situation and what action it should take to enforce the terms of the neighbour’s tenancy. It could also have helped identify any appropriate support it could provide or make referrals for. However, it should be noted that the landlord did write to the resident on 15 September 2022 with regard to her mental and physical wellbeing. It acted appropriately by informing her that a referral for support was available, and giving her a list of support services, including contact details for Victim Support.

Complaint

  1. The Ombudsman’s Complaint Handling Code 2022 (the Code) states that, when a complaint is made, it must be acknowledged and logged at stage 1 of the complaints procedure within 5 days of receipt. Landlords must respond to stage 1 complaints within 10 working days. If an extension beyond 20 working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties.
  2. There is no evidence the landlord acknowledged the resident’s stage 1 complaint. Furthermore, it took over 7 months to issue its response. It apologised for the delay and explained that this was due to a backlog it was working through a high volume of contacts it had received. It is appreciated that with high volumes of contacts, backlogs can build up, which in turn can cause delays. However, there is no evidence the landlord sent the resident any holding replies, that it had explained the delay at any point or made any attempt to agree a revised timescale with her. The landlord departed from its own complaints policy, and the Code, which resulted in excessively protracted complaint handling. This amounts to maladministration.
  3. It is noted that the resident did not directly asked the landlord to escalate her complaint. It was only when the Service contacted it that it took a decision to move the resident’s complaint to its review stage. As it was clear the resident remained dissatisfied with the landlord’s actions, it was reasonable for it to escalate her complaint. However, there is no evidence that it had written to the resident directly to acknowledge the complaint or to advise when she could expect to receive the stage 2 response. In addition, the landlord should have gone back to the resident to ensure it had clarity around her outstanding concerns. This was a failing and further demonstrates poor communication relating to complaint handling.
  4. The Housing Ombudsman Special Report on the London Borough of Lambeth published on 1 February 2022 made several recommendations in respect of the landlord’s complaint handling. The Ombudsman will be monitoring the landlord’s progress on following those recommendations.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s reports of noise nuisance.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s complaint.

Reasons

  1. The landlord took some appropriate steps to investigate the resident’s reports of noise nuisance. However, it was not sufficiently proactive in dealing with the issue of noise transference, or to ensure the neighbour installed suitable flooring to minimise the noise affecting the resident’s property.
  2. The landlord failed to acknowledge the resident’s stage 1 complaint and took around 7 months to issue a response. This was a departure from its complaints policy, and the Complaint Handling Code, which resulted in excessively protracted complaint handling.

Orders

  1. Within 4 weeks of the date of this report the landlord must:
    1. Pay the resident compensation of £600, calculated as follows:
      1. £300 in recognition of the distress and inconvenience caused by the landlord’s failure to follow up on its actions to ensure the resident’s neighbour installed suitable floor coverings;
      2. £300 in recognition of the distress and inconvenience caused by the landlord’s poor complaint handling.
    2. The landlord to apologise to the resident for the identified failings, in line with this Service’s Guidance on Remedies.
  2. Within 8 weeks of receiving this determination, the landlord to arrange an inspection of the neighbour’s property and check whether suitable floor coverings have been installed. If not, the landlord should take appropriate action to ensure compliance with the conditions of their tenancy. If any advice or support is required to ensure the neighbour installs suitable flooring, the landlord should discuss this with them. The landlord to report back to the resident and Ombudsman with the outcome of its inspections, along with an action plan detailing any further steps it intends to take.
  3. Within 8 weeks of receiving this determination, the landlord to carry out a review on how it handled the issue of noise transference in this case. It should incorporate any learning from the review to ensure noise transference is identified and appropriately dealt with at an early stage, and that the landlord follows up on any enforcement action where laminate/wood flooring causes a nuisance to residents. The landlord to report back to the Ombudsman on the outcome and learning from its review.