Notting Hill Genesis (202101988)

REPORT

COMPLAINT 202101988

Notting Hill Genesis

17 December 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

The complaint refers to the landlord’s handling of:
1. The resident’s reports of antisocial behaviour (ASB) and noise nuisance, and her concerns about the flooring in the upstairs property.
2. The associated complaint.

Background and summary of events

The resident is a tenant of the landlord. The property is a flat within a block of flats. Historically, the resident had reported issues of noise nuisance from her upstairs neighbour for several years. In 2018/19, she raised a complaint with the landlord regarding the noise disturbances she experienced which led to the landlord fitting plyboard on top of the floorboards in the above property as recommended by its repairs contractor. The resident had then confirmed that the noise had reduced. A post inspection was completed and the flooring was found to be adequate. The resident had also asked for a management transfer but was told that she did not qualify for a priority move.
The evidence shows that the resident continued to raise concerns about noise transference into her property in November 2019, including loud thumping sounds and audible talking from the above property. The landlord responded at this stage and explained that the property was a converted building rather than being purpose built for flats and it would therefore expect there to be some noise transference. It said it would look into the concerns further and advised the resident to contact her local Environmental Health officer who would be able to assess the level of noise.
The resident contacted the landlord on 23 February 2020 to report an incident involving verbal abuse from her neighbour and their friend. The confrontation was regarding the noise transference into the resident’s property. She had contacted the police and provided a crime reference number. The evidence shows that the resident followed-up with the landlord regarding this matter in March 2020. The landlord responded on 20 March 2020 and explained that it had not able to contact the resident with the phone number it had on file. It confirmed that it had spoken with the neighbour regarding the incident. It advised the resident to contact Environmental Health regarding the noise transference and asked her to avoid knocking on her neighbours door. She was also advised to contact the police for any incidents involving ASB.
In April 2020 the landlord agreed to discuss the resident’s reports of noise nuisance internally and ask about the possibility of soundproofing installation. It confirmed that due to Covid-19 only emergency repairs were being carried out but it could pick this up at a later date. The evidence shows that this was discussed internally and it was confirmed that a surveyor could attend but there was no likelihood that the landlord would undertake any improvement work due to the costs involved. The evidence shows that the landlord continued to pursue an update on when a surveyor might visit the property.
The Ombudsman has not been provided with any further evidence to suggest that the resident had reported any further noise between April 2020 and December 2020.
The landlord emailed the resident in December 2020 to discuss an appointment for a noise assessment at the property following previous conversations about this being carried out in April 2020. An appointment was arranged for 1 February 2021.
The resident emailed the landlord on 23 February 2021 as she had not received the results of the inspection carried out two weeks previously. She said that the noise transference had been worse and that the upstairs flat had been found to have no carpet in the living room and hallway. She said that the thumping sounds had increased due to the impact of Covid-19 lockdown restrictions since March 2020. The landlord responded on the following day and said that it had not received an update yet. It confirmed that it would contact the resident once it had the information. The resident sent a follow-up email on 29 March 2021, the landlord responded on the same day and said it would chase this internally.
The resident emailed again on 29 March 2021 to raise a complaint. She explained that she experienced noise transference, including music playing and a base sound from her neighbour’s property until late evening. She said that she had reported these issues many times and felt the issues were to do with the flooring in her neighbour’s property. She asked the landlord to help with resolving the longstanding noise issue. She said that she no longer approached her neighbour due to verbally abusive behaviour experienced in the past.
The landlord acknowledged the resident’s email on 30 March 2021 and confirmed that it would investigate the issues she had raised. The resident sent a further email that day and asked for the outcome of the joint inspection carried out on 2 February 2021. The landlord responded on 31 March 2021 and said that the noise assessment showed that there was noise transference between the properties. It added that many properties would have this issue but did not require works to be carried out. It explained that the property met the building regulations at the time it was converted and there was no retrospective requirement to upgrade the property to current day standards. It said that nothing could be done about the domestic noise the resident was experiencing but it would contact the neighbour in relation to music being played at night. It said it would also visit the property to inspect the floor coverings.
The resident sent a further email on 1 April 2021 and asked for a copy of the inspection report. She reiterated her concerns about the lack of carpet in her neighbour’s living room, hallway and stairs. She did not feel that the noise was everyday domestic noise and felt this largely related to the poor flooring in the flat. She asked the landlord to provide its formal complaints procedure. She had discussed raising a formal complaint before, but the landlord had said that it would not be worth doing without a joint inspection of the properties. She said that the issues were not only noise but also her neighbour being abusive to her on several occasions in the past.
The resident sent a further email to the landlord on 14 April 2021, repeating the requests made in her previous correspondence and adding the following:
1. She asked whether the landlord had spoken to her neighbour as nothing had changed regarding the noise. She noted that the landlord had said it would visit the upstairs property to advise on floor coverings and asked when this would be done.
2. She said that the current living conditions were causing a significant amount of stress and she felt that she had been overlooked by the landlord. She said that she wanted her neighbour to enjoy living in their home, however, the issues with noise were affecting her greatly. She asked the landlord to rectify the situation by looking at the required standards for flooring in older properties.
3. She said that she had previously enquired about a management transfer to another property but had been told in the past that she did not qualify. She detailed the noise issues, which included banging on the floors above, her CD player jumping when thumping occurred in the above flat, hoovering late at night and noise which started at 9pm until the early hours of the morning.
On 19 April 2021, the resident sent a further email to the landlord and asked for a complaint to be raised. She confirmed that there had been no resolution to the ongoing noise transference problems since she had previously complained in 2018. She attached the previous emails and noted that the landlord had a responsibility to protect her wellbeing in her property.
The landlord acknowledged the resident’s email on 19 April 2021. The records show that the landlord called the resident on 21 April 2021 to discuss her concerns and confirmed that a stage one complaint had been raised. It said it would respond within ten working days.
The resident emailed the landlord on 22 April 2021 and said that the member of staff assigned should not be handling her complaint. She said that the member of staff and their manager had not acknowledged her email of 1 April 2021. She had asked for information on how to raise a complaint on multiple occasions but had not received a response from said member of staff. She said she felt discriminated against as her concerns had not been taken seriously and there had been a significant delay in responding.
The landlord responded to the resident’s email of 1 April 2021 on 23 April 2021 and explained the following:
1. It said that it was unable to share internal reports with customers as they were for internal use only. It had identified the noise to be largely domestic living noise and related to the poor flooring in the above property. It attached the complaints policy at the resident’s request.
2. It said that it had discussed the case internally and found that there was no retrospective requirement to upgrade the flooring in the above property to modern day standards. It had completed the noise assessment despite being told that it would be unlikely that works would be carried out to either flat.
3. It had confirmed that it would be completing an inspection of the above flat due to the resident’s concerns, but said that it was not a requirement due to the current Covid-19 restrictions. It said that it would be visiting at its own risk to assess the property. It confirmed that it would discuss flooring options with the resident’s neighbour to hopefully assist with the noise transference.
The resident responded on 27 April 2021 and said the following:
1. She asked why she was not told that the landlord was unable to share its internal reports following her initial email on 1 April 2021. She felt that her email had been ignored. She felt that the landlord had only responded to her emails of 14 and 19 April 2021 due to her emailing the landlord’s director of housing.
2. She said that the landlord had not acknowledged her email of 22 April 2021 stating that the member of staff should not be handling her complaint. she did not realise that the member of staff was raising the complaint on her behalf during a phone call when she was asked what outcome she was seeking. She felt that the member of staff was biased from the ongoing interaction on her case.
3. She said that she had asked the landlord to provide its formal complaints procedure on 1 April 2021 but this had been ignored. She felt that the landlord had discriminated against her as information had been withheld due to her raising her dissatisfaction with how the member of staff had dealt with her ongoing complaint about the flooring in the neighbouring property and verbal abuse she had received.
4. She said that she had not been informed that the member of staff visiting the property was not required to do so as a result of the Covid-19 pandemic. She believed that the member of staff and their manager had deliberately delayed raising a complaint.
The landlord responded to the resident’s email of 27 April 2021 on 4 May 2021 and explained the following:
1. It assured the resident that her emails had not been ignored. It confirmed that her request for a copy of the noise assessment report was referred to another department, it had been informed that it was unable to provide tenants with internal reports. It apologised that it had not updated her sooner.
2. It confirmed that the resident’s email dated 19 April 2021 labelled ‘complaint’ was logged. It had contacted the resident on 21 April 2021 for two reasons. With regard to the complaint it had said that it would be visiting her neighbour to inspect the flooring. It also said that it would be visiting the resident’s property in relation to the repairs she had raised. It said that it had not withheld information from the resident and had advised that she may be able to view the complaint she had logged on her online account.
3. It said that her email of 1 April 2021 had not been ignored and apologised for its delayed response. It said it was not its intention to make any tenants feel discriminated against in any way. It apologised if its actions had made the resident feel that way.
On 29 April 2021, the resident emailed the landlord and explained that as a resolution to her complaint she wanted a management transfer to another property and expressed concern that this had been denied before despite the abuse she had received from her neighbour. She said that even if the flooring was rectified, this would not resolve the issue of potential verbal abuse and threats of violence. She referred to the incident which took place on 23 February 2020 and a previous incident in October 2017. The landlord responded and sent the resident diary sheets to complete for any further incidents of ASB from her neighbour. It advised the resident to call the police if she felt that her life was in danger.
The resident emailed the landlord on 4 May 2021 and said that the emails she had received had not addressed her concerns related to the ongoing flooring issues of the flat above. She said that she had been unable to see the complaint on her online account and her enquiries had been marked as resolved. She added that since she had raised her complaint, the noise transference into her property had been worse. She said that she had needed to turn up the volume on her TV in order to hear it due to the heavy thumping sounds and banging on the floor due to the lack of floor covering in her neighbour’s property.
The landlord issued its stage one complaint response to the resident on 4 May 2021 and explained the following:
1. It noted the resident’s concerns about a fear of violence from the above property and acknowledged that she had sent a noise recording on 23 February 2020. The noise recording included the resident knocking on the neighbour’s door, asking if the music could be turned down and for them to stop stomping on the floor. The neighbour began to get upset and verbally abusive, which resulted in the door being closed and the resident calling the police. It said that when it received her email it had called the neighbour to discuss the incident. It had not received any further reports of incidents since this date but noted that the noise was ongoing.
2. With regard to the resident’s previous complaint, it confirmed that it had liaised with its repairs team and as a result additional board plywood was laid across the floor to help decrease the noise transference into the resident’s property. The resident was satisfied with the outcome of the complaint at the time but later reported noise transference again. It said that a post-inspection was completed and it found that the flooring was adequate with no further works required.
3. It noted the resident’s comments regarding her wellbeing and said that if the resident felt that she was at immediate risk, she should contact the police in the first instance. It offered to discuss the possibility of referring the resident for support from an external service if needed.
4. It said that some sound transference was to be expected. It said that it would not be looking to upgrade the property as this was not a requirement. It had inspected both flats on 23 April 2021 and had discussed this matter with the resident’s neighbour. They had been told to place carpets in the living room and hallway. It confirmed that this was its final action in regard to noise transference.
5. The landlord also offered mediation to the resident with the aim of settling the neighbour dispute and outlined the actions it had taken between 2019-2021. The landlord confirmed that the resident could escalate her complaint if she remained dissatisfied with its response.
The resident asked for her complaint to be escalated on 6 May 2021 and also said that she was open to mediation to see if this would resolve the issues. The landlord acknowledged the resident’s request on 7 May 2021 and confirmed that it would provide a response by 25 May 2021. It also said that it would be visiting the above flat and was working with her neighbour to install carpeting but this could take some time.
The landlord issued its stage two complaint response to the resident on 26 May 2021 and explained the following;
1. It said that it was unable to consider her previous complaint regarding noise under its complaints procedure. It explained that it had a separate domestic noise procedure. It said that on receiving a complaint of domestic noise or of a neighbourhood dispute from a resident, it advised them to politely discuss the issue directly with their neighbour in the first instance. If they lack the confidence to do so, it provided hints and tips on how they could start a conversation with their neighbour. It said that it would open an ASB case provided that the resident completed the diary sheets attached for four weeks. It said that as this was a neighbour dispute, it also wanted to refer the resident and her neighbour to mediation. The aim would be to reach an agreement on how to proceed with the issues that had been raised.
2. It confirmed that it had offered to refer the resident for support from an external service. It noted that a transfer form had been completed and it found that the resident had no medical priority to transfer properties. It said that it could resubmit the form if the resident’s circumstances changed.
3. It confirmed that her neighbour planned to change the flooring to carpets and it was aiming to action this accordingly.
4. It acknowledged that there had been a service failure in relation to the stage one complaint and offered £50 compensation. It also offered £60 for two missed appointments made by the external contractors who carried out the noise assessment.
On 4 June 2021 the resident reported that the noise issues were ongoing, she reiterated that the noise issues were affecting her health. The landlord emailed the resident on 7 June 2021 and said it would arrange for a further inspection of the flat above following her claims that the noise had been worse. It would then be able to advise if there were any further steps it could take to reduce the noise. This was arranged for 16 June 2021. During this time, the resident said that she was unable to contact environmental health as the issue was due to the flooring in the above property. The landlord strongly advised the resident to contact her local environmental health team.
The resident continued to report noise and the landlord explained that the recordings generated by using environmental health’s noise app would help it to identify if the noise was excessive. The evidence suggests that carpet was laid in early August 2021 and the resident had reported that this had not made a difference to the noise transference into her property. Following contact from the resident, the landlord confirmed its intention to refer both the resident and her neighbour for mediation. The landlord’s records show that it referred the resident and her neighbour to mediation on 7 September 2021.
The resident referred her complaint to this Service as she remained dissatisfied with the landlord’s responses and that the noise issues had not improved. She said that the noise transferred through the neighbour’s flooring was affecting her mental health. She felt that this had resulted in discord between herself and her neighbour and noted that she had needed to call the police in the past due to verbal abuse received from the neighbour. She was dissatisfied with the landlord’s conclusion that there was nothing more it could do. She had asked to be transferred to a different property due to fear of living in her home due to threats of violence from her neighbour.

Assessment and findings

Scope of investigation

The resident has said she considers that the issues affecting her property have impacted her health. The Ombudsman does not doubt the resident’s comments. However, it is beyond the expertise of this Service to make a determination on whether there was a direct link between the landlord’s actions or inaction and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance, and her concerns about the flooring in the upstairs property.

It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to her reports of ASB. The role of the Ombudsman is not to establish whether the ASB or noise reported was occurring or not. 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 has two separate policies for domestic noise and neighbour disputes and ASB. Domestic noise is defined as the experience of noise caused within a domestic residence; it is noise caused by every day, daytime household activities. This includes but is not limited to noise from: household appliances; children; ball games; talking; banging doors; pets; a television or speakers. When a neighbour dispute or domestic noise is reported, the landlord would advise the resident to discuss this with their neighbour in the first instance. Tools to manage these issues also include mediation, advice from the landlord and support provided by an external agency, such as signposting to Environmental Health. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both a landlord and the local authority’s Environmental Health service may be able to warn and take formal action against the perpetrator.
The tenancy agreement confirms that the landlord is responsible for maintaining the structure of the flooring in the property but not decoration such as carpeting. The landlord is expected to maintain the structure of the building and ensure it is kept in satisfactory condition but it is not required to carry out improvements.
The landlord acted appropriately by referring the resident to Environmental Health from the outset as Environmental Health are experts in noise nuisance and would be best placed to establish whether the noise experienced constituted a noise nuisance and would be able to make recommendations to the landlord if appropriate. It is noted that Environmental Health also provide a noise monitoring app, which could be used as evidence of the noise and support the landlord in taking further action if necessary.
It was reasonable for the landlord to carry out a noise assessment of the two properties to establish whether there was noise transference due to the structure of the building. It is noted that there was a delay between April 2020 and December 2020 in arranging this. However, there is no evidence to suggest that the resident continued to report noise transference during this time and there were likely to have been limitations on the landlord’s service due to the impact of Covid-19, which was outside of its control. It is not clear from the evidence provided as to whether the resident was informed prior to the noise assessment that the landlord was unlikely to carry out any work to the neighbouring property due to the financial cost involved. It would have been helpful for the landlord to have explained this to the resident at an earlier stage in order to manage her expectations as it was likely to have been inconvenient for her to have to wait for a decision on this.
Ultimately, the landlord was not obliged to place soundproofing or make additional upgrades to the property at the resident’s request to reduce the noise transference. There is no statutory obligation for a landlord to retrospectively make improvements to properties which met regulation standards at the time when they were built. It is noted that the resident had concern about not being supplied the noise report. The landlord would not be obliged to share the assessment itself as this is an internal document. However, it provided a reasonable explanation of its findings and set out its position clearly on 31 March 2021. It is noted that the landlord has offered £60 compensation for two missed appointments by the contractors who carried out the noise assessment. The Ombudsman has not been provided with evidence of these missed appointments; however, it was reasonable for the landlord to address this failing in its complaint response and provide compensation. The amount of compensation offered is reasonable for any inconvenience caused by two missed appointments.
The resident felt that her emails of 1 April 2021 and 14 April 2021 had been ignored. This is likely due to the delayed response by the landlord. The evidence shows that the landlord did address the resident’s concerns on 23 April 2021. However, it is clear that the resident needed to follow-up on multiple occasions to receive a response which is likely to have caused inconvenience. It would have been appropriate for the landlord to have acknowledged the emails when they were received and to have managed the resident’s expectations of when she might receive a response.
It was reasonable for the landlord to offer mediation to the resident. Mediation is voluntary and the resident and her neighbour were not obliged to agree to mediation, however, it can be a useful tool in managing neighbour disputes in some cases. It is noted that the resident initially agreed to mediation on 6 May 2021 and had needed to follow-up in August 2021 before a referral was made in September 2021. It is unclear as to why this was delayed following the stage two complaint response.
The landlord acted appropriately by initially handling the resident’s concerns in line with its domestic noise policy as the noise experienced was not found to be intentional. It took reasonable steps to contact the neighbour about reports of loud music late at night and asking the resident to complete diary sheets following its stage two complaint response as issues such as music being played at night are more suited to be dealt with under the landlords ASB policy.
The landlord was not obliged to offer the resident a management transfer due to the issues she was experiencing as there is no evidence to suggest that the verbal abuse she had previously received from her neighbour was regular or ongoing. However, the landlord did not fully address the resident’s further requests to be moved in its complaint responses. It acknowledged that her previous application to be moved on medical grounds had been declined and had agreed to reassess her medical grounds for a priority transfer if her circumstances had changed, which was reasonable. However, it would have been appropriate for the landlord to have provided information about the resident’s housing options and the route she could take to move such as mutual exchange, given her multiple requests to be transferred.
In summary, there has been service failure by the landlord in regard to its response to the resident’s reports of ASB and noise from her neighbour due to its communication with the resident. It is evident that the resident needed to follow-up on multiple occasions and there was a delayed response to her emails of 1 and 14 April 2021 which led her to feel ignored. In view of this, the landlord should offer compensation to the resident for the inconvenience caused.

The landlord’s handling of the associated complaint

The landlord’s complaint policy states that it has a two-stage procedure for handling complaints. Most complaints should be handled by the local officer, however, if the complaint relates to the actions of the officer, then the complaint should be passed to their manager. Reported cases of neighbour disputes, anti-social behaviour, hate crime or domestic abuse will not be dealt with through the complaints process, unless the complaint is about how a case has been dealt with. At stage one of the process, the complaint response should be sent within ten working days. If the resident remains dissatisfied with the response they can escalate it to stage two. At stage two, the complaint should be responded to within 20 working days.
The resident initially asked for a complaint to be raised on 29 March 2021. She asked for information about the landlord’s complaints process on 1 and 14 April 2021 and again asked for a complaint to be raised on 19 April 2021. The complaint was logged at stage one on 21 April 2021 and was responded to on 4 May 2021. It is not disputed that there was a delay in handling the resident’s stage one complaint. In its stage two complaint response, the landlord acknowledged that there had been a service failure in its handling of the resident’s stage one complaint and offered £50 compensation for the inconvenience caused. The resident asked to escalate her complaint on 6 May 2021 and a stage two response was issued on 26 May 2021. This response was in line with the landlord’s timescales at stage two.
Whilst the landlord has acknowledged that there had been service failure in its handling of the resident’s stage one complaint, it was not specific about the service failure it was referring to. Given the resident’s concerns about the member of staff’s handling of her reports of noise from her neighbour, it would have been appropriate for the landlord to have arranged for a different member of staff to handle the stage one complaint in line with its policy. If this was not possible, for example due to staffing numbers then the landlord should have explained this. The landlord does not appear to have addressed the resident’s concern about the member of staff handling her complaint which is likely to have caused the resident uncertainty and inconvenience as she had doubt about whether her complaint would be handled fairly. As such, the landlord’s offer of £50 compensation was, overall, not proportionate to the level of inconvenience caused to the resident by the delay in addressing the initial complaint and failure to address her concern about the member of staff handling her complaint. The landlord should offer additional compensation for this, as set out below.
In summary, there has been service failure by the landlord in regard to its handling of the resident’s complaint as it failed to acknowledge or address the resident’s concern about the member of staff handling her stage one complaint. Whilst the landlord has offered sufficient compensation for the inconvenience caused by the delay in acknowledging the initial complaint, it has not addressed the resident’s concern about the suitability of the member of staff handling her stage one complaint which is likely to have caused additional inconvenience.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance, and her concerns about the flooring in the upstairs property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Reasons

The landlord has not demonstrated that it managed the resident’s expectations regarding the noise assessment of her property as there is no evidence that it had made her aware that it would not carry out additional work to the property despite the results of the noise assessment. There were also communication failures in that the resident needed to follow-up for responses to her emails before receiving a response.
Whilst the landlord has acknowledged that there had been service failure in its handling of the resident’s stage one complaint, it was not specific about the service failure it was referring to. The landlord’s offer of £50 compensation was, overall, not proportionate to the level of inconvenience caused to the resident by the delay in addressing the initial complaint and failure to address her concern about the member of staff handling her complaint.

Orders

The Ombudsman orders that the following actions are taken within four weeks:
1. The landlord is to pay the resident £210 comprised of:
  1. £60 as previously agreed in relation to the two missed appointments.
  2. £50 in recognition of the inconvenience caused by its communication with the resident.
  3. £50 as previously agreed in recognition of the delay in addressing the resident’s initial complaint.
  4. £50 in recognition of the inconvenience caused by the landlord’s failure to address the resident’s concern about the member of staff handling her stage one complaint.