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Magenta Living (202215038)

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REPORT

COMPLAINT 202215038

Magenta Living

6 July 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 reports of noise nuisance, and noise transference, from the flat above the resident.

Background

  1. The tenancy started on 1 February 2021 and the resident has an assured tenancy with the landlord, who is a Housing Association.
  2. No vulnerabilities are officially recorded by the landlord for the resident; however, she has stated that she suffers from PTSD (post-traumatic stress disorder) due to a previous issue she experienced with neighbours. It is noted that the resident works twilight shifts.
  3. The resident contacted the landlord on 27 April 2021 and advised of noise coming from the flat above. The resident continued to report noise nuisance during the following 22 months and referenced the detrimental impact this matter had on her wellbeing.
  4. The noise from the flat above that the resident reported included constant thudding on the floor, the tenant’s washing machine vibrating, the toilet being used, shopping being put away, the tenant coughing and dishes being put away late at night. Both the resident and the landlord agreed that this was not antisocial behaviour (ASB) but general day to day noise. The landlord has, however, advised the resident that if it was established the noise was deliberate it could be investigated under its ASB policy.
  5. During the course of the resident’s complaint the landlord undertook site visits and inspected the flooring in the flat above. Its surveying team advised that there were no structural works considered necessary in relation to the noise issue and that the property met building regulations.
  6. In June 2022 the landlord noted that the resident had declined to record the noise which the landlord needed to help with their investigations.
  7. On 8 September 2022 the resident submitted a stage one complaint regarding her ongoing noise nuisance reports. She referenced the financial and emotional impact she said this matter had caused her.
  8. The landlord responded to the resident’s stage one complaint on 12 September 2022 and advised that in order for it to investigate further she would need to provide noise recordings. The complaint response advised that no failings had been identified by the landlord regarding how the resident’s reports of noise nuisance had been managed.
  9. On 14 September 2022 the resident escalated her complaint to stage two of the landlord’s internal complaints process. The landlord’s stage two complaint response was issued on 5 October 2022 and reiterated the information provided at stage one. It advised:
    1. The appeal did not warrant escalation on the basis that no further evidence to support the appeal had been provided.
    2. The building met current regulations and no insulation was needed.
    3. The housing officer had maintained regular contact and had offered to engage with the tenant upstairs, but the resident had declined this offer, however the housing officer would re-attend if requested.
    4. The landlord was unable to hear unreasonable noise nuisance during its site visits.
    5. The resident had not wanted to supply sound recordings despite the landlord’s assurance that they would not be used as part of an ASB case.
    6. Without sound recordings the landlord could not agree it was a structural issue or determine if the noise was at unsociable hours.
    7. The landlord acknowledged the strain this matter had taken on its relationship with the resident.
    8. No fault or failing was found in how the resident’s complaint had been managed, or the actions that had been taken by the landlord.
    9. The resident was advised she could apply for a different property.
    10. The process for escalating the complaint to the Ombudsman was confirmed.
  10. On 11 October 2022 the resident sought assistance from this Service. She advised that she felt her property might not be suitable for her given the impact of the noise situation on her mental health and she expressed concern that her complaint remained unresolved.
  11. The landlord visited the resident in January 2023 following further noise reports that she had submitted. The landlord reviewed the accommodation layout with the resident and noted on its system that it appeared the main issue was in the evening and at night when there was running and banging in the kitchen area. The landlord advised the resident that the next step was a joint visit to try and determine the levels of noise and identify whether it was an ASB issue. This followed the resident’s report that the “excessive stomping” may be intentional.
  12. Following a further complaint from the resident received by the landlord on 2 February 2023 it arranged a site visit for 16 February 2023. This Service understands however that the site visit was cancelled by the resident due to her personal circumstances, and that the resident does not want any further action to be taken by the landlord at this point in time.

Assessment and findings

  1. The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
  2. When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high level good practice guidance developed form the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes
    2. Put things right
    3. Learn from outcomes

The landlord’s handling of reports of noise nuisance, and noise transference, from the flat above the resident 

  1.  On 27 April 2021 the resident advised the landlord of noise from the flat above. She reported that she could hear the noise of footsteps and the toilet flushing during the day when she was trying to sleep. The landlord noted that the resident acknowledged her enquiries were unresolvable and not reports of ASB but rather normal noise to be expected in a flat. The landlord noted too that the resident would see if she could adapt to the situation. This was a reasonable position to take and did not require any further action on the landlord’s behalf at this point in time.

 On 13 May 2021 the resident raised further concerns with the landlord regarding the noise from the above flat. The landlord noted that this information was received via Facebook as the resident did not want to submit an ASB report and would rather discuss the issue with her housing officer. In her report the resident referred to the noise from the flat above as being like a herd of elephants. She said that she was never in from 7am until 9pm but that when she arrived home it was “thud thud thud across the floor”. The resident queried whether the tenant above her had laminate flooring, rather than concrete. The resident referred to music being played at 2am on one occasion and advised that the issue was having a detrimental impact on her wellbeing. The landlord noted that the resident understood that noise living in a flat was different to house noise but that it was difficult for her after 25 years of living in a house. The resident asked if any other properties on a top floor might be available for her to move to.

  1. The landlord contacted the resident on 21 May 2021 and she asked the landlord not to approach or contact the tenant above her as she did not want to cause any issues. The resident said that instead, she would ask the landlord’s operative to check the tenant’s flooring when he visited the following week. As such, there was no further action that the landlord could be expected to take at this time.
  2. It is also noted that the landlord had a brief internal email exchange in relation to potential options for the resident to move to a top floor flat. The landlord is encouraged to support the resident going forward should this be something that she would like to consider and should a suitable top floor property become available.
  3. The resident had disclosed to the landlord the impact of the situation on her wellbeing and the landlord therefore had an opportunity to offer the resident advice or to signpost the resident to support organisations. This Service has not seen any evidence that the landlord acknowledged the resident’s reports of her welfare concerns throughout her complaint, and this is an area of learning for the landlord to help further improve the landlord’s relationships with residents.
  4. On 9 November 2021 the landlord noted that the resident had made further contact to advise that she was struggling with the noise in the flat above her but that it was not ASB, it was “general day to day noise”. The resident asked if the landlord could request that the tenant was mindful of other residents and to check what type of flooring the tenant above her had in her property. The resident said she could hear the tenant’s blender being used and her going to the toilet in the early hours of the morning. It is noted that the resident did not want the landlord to file an ASB case.
  5. On 30 November 2021 the landlord sent the tenant who lived above the resident a letter regarding the noise. This was an appropriate response and demonstrated that the landlord was listening to the resident and taking action to try and resolve matters.
  6. On 11 April 2022 the landlord noted that the resident had reported hearing the tenant above her walking around, taking a shower and noise vibration from the washing machine. The landlord noted that the resident’s cause of concern was with the building and not the tenant. The landlord made a number of enquiries with its surveyor to identify whether there might be any structural issues with the property, or repairs that were neededto help reduce the noise. This was appropriate investigativework, and the outcome of these enquiries was relayed to the resident throughout the complaints process.
  7.  In May 2022, following further noise reports from the resident, the landlord suggested that the noise might be linked to the property’s pipe system and that there may possibly be an air lock. However, following a site visit no issue with the pipework was identified. It was determined that the noise was due to the isolation between the flats and the fact that sound carried. The landlord advised the resident of these findings.  Without any evidence available to support the resident’s reports of noise from the flat above, the landlord attempted to identify other potential causes and discussed these with its surveyor. This demonstrated the landlord’s willingness to try and establish the reason for any noise outside of behaviour and lifestyle causes.
  8. On 6 June 2022 the landlord responded to the resident regarding a further report of noise. The resident was hearing noise from the tenant’s washing machine, hoovering, constant footsteps, coughing, and shopping being put away. She explained that this was affecting her wellbeing. She referred to the situation as distressing and unfair but acknowledged that she did not consider it to be ASB. She advised too that it was unfair on the tenant living above her who could not be expected to creep around in her own home. She also referred to the apparent lack of insulation and advised that she felt she had no alternative other than to move.
  9. The landlord replied to the resident the same day and advised that it had inspected the flat above and had also found no reason to consider the noise as ASB. It confirmed that the flat above had carpeting and rugs to help limit the noise (the kitchen and bathroom had vinyl flooring). The landlord advised that the noise was not considered to be excessive and was general noise that occurred when living in a block of flats. The landlord reiterated that there were no repair issues that it considered needed to be done to reduce the noise. The resident replied to advise that she would be taking the issue further and that she felt the landlord had not ever really come to a resolution. She explained that the situation was affecting her work and health.
  10. This Service considers that, in general, the landlord’s communications with the resident were appropriate and timely, and the resident was kept updated with any action that the landlord took to try and establish the cause of the noise. The landlord made efforts to hear the noise for itself by undertaking site visits and it checked the flat above’s flooring type. By process of elimination, and without any noise recordings having been submitted, it determined that it was general day to day lifestyle noise, but it remained empathetic towards the resident in its communications and demonstrated a willingness to continue investigating, rather than closing the case due to the lack of evidence.
  11. On 15 June 2022 the resident contacted the landlord and referenced information she had been given by a member of the landlord’s staff about potentially dropping part of the ceiling. She advised that the main noise area was the hallway to the kitchen. The resident explained that if any works were going to be costly then it may be better to look at alternative accommodation, although she said that she had been informed that she would be making herself homeless. The landlord replied to advise that it would not be able to consider a move for her, especially with it not being an ASB case, but would review any information that it received from its Assets team.The landlord could, at this point, have offered the resident advice on alternative housing solutions such as a mutual exchange. This may have helped the resident to feel that she had a better understanding of her housing options.
  12. On 22 June 2022 the landlord noted that the resident did not want to assist in recording the noise that she was hearing and that she considered this an unreasonable suggestion. It is appreciated that the resident had experienced previous neighbour issues and she has described the impact this had on her mental health. It is also acknowledged that without sound recordings a landlord has limited evidence to work with. In this case the landlord could have signposted the resident to an external organisation such as Citizen’s Advice who also offer assistance and guidance on options for reporting and managing noise nuisance.
  13. On 31 August2022 the landlord noted that the resident had made further reports of noise. The landlord noted that a surveyor had undertaken a site visit but that the resident did not want any action taken. The resident was advised that in that case there was nothing that the landlord could do. This was a reasonable response. The landlord noted that the resident said she would speak to her new housing officer if the noise persisted.
  14. On 2 September 2022 the landlord called the resident and advised that while it could not rehouse her, she was welcome to apply for an alternative property. The landlord noted that it would check again with the surveyor to see if any action would be taken in relation to the property. The surveyor replied and advised that it was general flat noise, and nothing could be done structurally to help; there were thick carpets laid in the flat above plus rugs and during the inspection visits no behaviour out of the ordinary had been witnessed. Given that there was no change in the situation and no further evidence for the landlord to consider, its response was reasonable and proportionate.
  15. On 8 September 2022 the resident submitted a stage one complaint in which she referenced:
    1. the impact of the noise from the flat above which had been mentioned over six months previously
    2. a surveyor had said that maybe some form of insulation would help
    3. the matter was causing a lot of added stress to her mental health
    4. to be asked to open a ASB case and start recording noise was outrageous
    5. she had been assured the flooring was concrete
    6. she hears the washing machine, coughing, walking, and dishes being put away late at night
    7. the huge financial and emotional impact of moving into her property
  16. The landlord responded to the resident’s complaint on 12 September 2022. In the response the landlord:
    1. advised the resident that this was not ASB and that to investigate further it would require her to take noise recordings
    2. confirmed that the housing officer had offered to engage with the tenant in the above flat but that the resident had refused this offer
    3. advised that no failings had been found in how the resident’s concerns had been handled
    4. encouraged the resident to take recordings of the noise so that the reports could be investigated, and advised that until there was evidence the issue could not be pursued
    5. a surveyor had visited the flat above the resident and confirmed that the floor coverings were sufficient
    6. no noise had been witnessed during the landlord’s visit
    7. a degree of noise was to be expected when living in a flat
    8. information was provided on how to escalate to stage two of the landlord’s internal complaints process
  17. The landlord’s response was detailed and provided a full explanation of the actions it had taken, as well as what the resident could do to assist with an investigation. The landlord should also have acknowledged the resident’s reports of her wellbeing concerns and signposted her to any relevant support organisations.
  18. On 14 September 2022 the resident escalated her complaint to stage two. The landlord’s complaint response was issued on 5 October 2022 and confirmed that a panel meeting had taken place on 16 September 2022. In the stage two response the landlord advised the resident that due to no further evidence having been provided, her appeal would not be escalated any further. Without any evidence, the landlord was unable to determine if the issue was structural or if the noise was occurring during unsociable hours. This was a reasonable response.
  19. The stage two response also referred to the noise recordings that the resident had been asked to provide but had not supplied. It reiterated that the landlord had been unable to hear any unreasonable noise during its site visits. The landlord confirmed again that the building met building regulations, that no insulation was considered to be needed between the resident’s ceiling and the flooring of the flat above, and that nothing could be done from a structural perspective to limit the noise. The landlord offered for the housing officer to re-attend and do a site visit if the resident requested but acknowledged that this offer had previously been declined by the resident.
  20. Within its stage two response the landlord demonstrated empathy by recognising the strain that the matter had taken on its relationship with the resident, and advice was given with regards to applying for a different Magenta Living property. The complaint was not upheld, and the landlord correctly advised of the complaints escalation process to the Housing Ombudsman.
  21. The landlord’s stage two response to the resident’s complaint was thorough and set out the options available to the resident going forward in terms of her housing options and the noise investigation. Although the complaint was closed, the resident was given the opportunity to provide supporting evidence and to request another site visit. This was good practice and demonstrated the landlord’s willingness to continue to try and resolve matters going forward. The landlord should however have acknowledged the resident’s reference to her mental wellbeing which formed part of her complaint, as well as her reference to having been told that the flooring was concrete.
  22. On 11 October 2022 the resident sought assistance from this Service.  Following contact with this Service, the resident made further noise reports to the landlord. A site visit on 6 January 2023 raised no concerns by the landlord who subsequently offered to undertake a further joint visit, with the housing officer, to visit both properties and do sound checks. The landlord explained the mutual exchange process to the resident and confirmed that it had asked the tenant above her to be mindful of noise, especially in the evenings and early hours. It also confirmed that the flooring had been checked again and met regulations. This was appropriate advice and information to provide to the resident.
  23. The landlord understood the resident’s concerns and took reasonable steps to provide her with housing advice. It is recommended that the landlord should continue to support the resident with any future request to transfer from her current property and to offer her the appropriate advice.
  24. Further, the landlord has continued to take action after its final response to the complaint. For example, on 8 January 2023 the landlord met with the resident and discussed the noise from the flat above having looked at the flat set up. The landlord noted that the flat above is like for like with the resident’s, and that it appeared the main noise issue was from walking, the kitchen area in the evening and nights, running, shoes and banging. It advised the resident that the next step would be a joint visit to try and determine the level of noise and whether it was ASB or day to day noise. The resident subsequently advised the landlord that the noise might be intentional, and the landlord confirmed that if it could be evidenced that the noise was deliberate it may then be considered ASB. Due to the continued, escalating reports from the resident, and in line with the landlord’s policy that if the reported (non-ASB) behaviour was persistent and had a detrimental effect then it may consider enforcement intervention or action, this was an appropriate approach by the landlord.
  25. The resident continued to complain to the landlord about the noise, and the Ombudsman understands that the landlord responded accordingly. Due to the impact on the resident, it was reasonable for the landlord to advise her that testing from the flats above would be carried out. It is important to note however that it is not always possible to eradicate all noise transference between properties, therefore the landlord cannot always resolve the issue. 
  26. The resident has raised concerns that the reported noise issues have affected her wellbeing. It is acknowledged that the resident works shift patterns which can add additional challenges when there is noise transference and a resident needs to sleep during the day. The Ombudsman acknowledges too the impact that the resident says the noise has had on her sleep and general welfare. It would have been good practice for the landlord to acknowledge this too in its communications with her.
  27. While there was no evidence to suggest that the resident reported hearing the washing machine during unsociable hours, the landlord could consider supplying the tenant with acoustic matting to try and reduce noise transference from white goods that are in the kitchen.
  28. The Ombudsman’s Spotlight report on noise complaints advises that when handling noise reports that do not meet the statutory threshold, landlords should adopt a proactive good neighbourhood management strategy, distinct to the ASB policy, with clear options for maintaining good neighbourhood relationship and that this should include mediation. If mediation has not been offered already to the resident and her neighbour, this is an option for consideration if appropriate.
  29. Overall, the landlord took reasonable and appropriate actions in response to the resident’s reports of noise nuisance, which were proportionate to the evidence available throughout its investigation.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of noise disturbance from the flat above. Based on the landlord’s policies, ASB duties and the available evidence, the landlord’s actions were appropriate and proportionate.

Recommendations

  1. If a resident refers to their welfare, this is acknowledged and responded to by the landlord within its communications and appropriate advice is provided, such as signposting to support organisations.
  2. Consider supplying the tenant with acoustic matting to try and reduce noise transference from white goods that are in the kitchen.
  3. Continue to support the resident with any request to transfer from her current property if still required.
  4.  The landlord to consider the Housing Ombudsman’s spotlight report on noise complaints (https://www.housing-ombudsman.org.uk/wp-content/uploads/2022/10/Spotlight-Noise-complaints-final-report-October-2022.pdf) and share the findings and recommendations with relevant staff who manage reports of noise nuisance.