Notting Hill Genesis (NHG) (202210482)

REPORT

COMPLAINT 202210482

Notting Hill Genesis (NHG)

29 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

The complaint is about:
The landlord’s handling of the resident’s reports of noise nuisance from a neighbour.
The Ombudsman has also considered the landlord’s complaint handling as part of this investigation.

Background

The resident is an assured tenant of the landlord at the property, which is a 2- bedroom flat. The tenancy agreement started in June 2005. The landlord confirmed it had no vulnerabilities recorded for the resident.
On 25 July 2022, the resident told the landlord that her neighbour in the flat above her had recently changed their flooring and she was experiencing noise. The resident said the neighbour was deliberately making noise which included talking loudly, stomping on floors and dragging chairs. The resident also told the landlord her neighbour had been playing music loudly and she had reported this to the local council noise team several times. The landlord said it would discuss this with the neighbour and asked the resident to keep a diary of the noise. Following contact from this Service, the landlord opened a stage 1 complaint on 18 August 2022 for the resident about its handling of her reports of noise.
The landlord provided its stage 1 response on 1 September 2022. It said the following:
1. The landlord had responded on 28 July 2022 to the resident’s initial reports of noise. The member of staff dealing with the report told the resident they had attempted to contact the neighbour but had not been able to. The member of staff told the resident they were going on annual leave and would send the neighbour a letter on their return.
2. The landlord had asked the resident to complete a diary of the noise occurrences in the meantime.
3. The landlord had attempted to contact the neighbour by telephone and visit but this was unsuccessful.
4. The landlord sent the neighbour a letter via email and post. This had details of the complaint made against them, a reminder of their obligations as a resident, and advised an ASB case would be opened if the noise continued.
The resident responded to the landlord’s complaint response on 14 September 2022. She said the neighbour had failed to comply with the tenancy agreement and the landlord had not followed up on this. On 1 November 2022, this Service asked the landlord to provide the resident with a stage 2 response.
The landlord provided its stage 2 response to the resident on 12 December 2022. It said the following:
1. There had been a service failure when the resident had first reported the noise. The issue should have been handed over to another member of staff while the initial staff member handling the issue went on annual leave.
2. This initial service failure had delayed its investigation and the landlord apologised for this.
3. From late August onwards, the landlord had made attempts to contact the neighbour and a warning letter had been sent on 1 September 2022.
4. The landlord had visited the neighbour’s property on 10 October 2022 to discuss the noise transference.
5. The neighbour confirmed they had changed the flooring. They had installed new carpet and underlay in the bedroom and staircase. The living room and hallway were left as exposed floorboards.
6. The neighbour agreed to put rugs down and for the issue to be monitored until 21 November 2022.
7. As the rugs had not improved the noise issue, the landlord had written to the neighbour on 6 December 2022 and requested they reinstall the carpets.
8. The landlord was arranging a visit to the neighbour’s property in early 2023 to confirm if this had taken place. The landlord would then confirm this to the resident.
9. It said the approach it had taken was appropriate, proportionate and in line with its domestic noise and neighbourhood policy.
10. The landlord did not uphold the resident’s complaint that it had not acted on a breach of tenancy. It had reviewed the terms of the tenancy agreement, and there was nothing which specifically prohibited the neighbour from replacing the flooring or having exposed floorboards.
The resident remained dissatisfied with the response from the landlord. The resident contacted this service in March 2023 and advised the landlord had not addressed all points of her complaint. Following a request from this Service, the landlord sent the resident a review of its final response. It said the following:
1. The landlord apologised for not addressing the resident’s complaint about her neighbour playing music at night and deliberately making noise.
2. The landlord had discussed the allegations with the neighbour on the phone and during a visit earlier that year. The neighbour had denied making deliberate noise.
3. The landlord had spoken with other residents and had not been able to substantiate the reports of music being played at anti-social hours.
4. The landlord had contacted the local council noise team about the complaint the resident made about her neighbour in July 2022. It was advised that the noise team had closed the report without action.
5. The resident was provided with a diary to record any further incidents for the landlord to investigate but it had not yet received any diaries.
6. The landlord visited the neighbour on 18 January 2023 and confirmed the carpet had been installed.
7. There was not evidence at that time to warrant the landlord taking further action.
8. If the resident experienced any further noise or ASB, she should complete and return the noise diaries for investigation and report to the council noise team.
9. The landlord offered the resident £50 compensation for the distress and inconvenience caused by its failure to address all points of the resident’s complaint.
On 29 August 2023, the landlord reviewed its handling of the resident’s complaint and offered a revised compensation amount of £200. This included £100 for its failure to initially investigate the resident’s reports of her neighbour playing loud music and deliberate noise, and £100 for its delay in responding to the resident’s initial report in July 2022. The resident made further complaints to the landlord about noise from her neighbour from October 2023 onwards. The resident confirmed to this service in April 2024 that she was still experiencing noise from her neighbour.

Assessment and findings

Scope of investigation.

The resident raised further reports of ASB after 12 December 2022. This investigation has considered matters from the date of the reports of ASB in July 2022 to the date of the landlord’s final response on 12 December 2022. In accordance with the Ombudsman’s jurisdictional authority under the Scheme, and in the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the investigation of this Service. Any further issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.
In raising her complaint, the resident referred to the situation impacting upon her health. While this Service is able to assess the service the landlord provided, and any overall distress or inconvenience this may have caused, the investigation cannot directly assess any reported impact on health or the liability for impacts on health and wellbeing, as this is better suited for the courts.

The landlord’s handling of the resident’s reports of noise nuisance from a neighbour.

Under the terms of the tenancy agreement, a tenant must not cause a nuisance or annoyance to any other resident. In regard to noise, it states that a resident is not to play any radio, television, record or tape recording, musical instrument, or use an electrical appliance so loudly that it causes a nuisance or annoyance to neighbours or can be heard outside the property between 11pm and 7:30am.
The landlord’s domestic noise and neighbourhood disputes policy defines domestic noise as noise caused by every day, daytime household activities. The guide says the landlord recognises that domestic noise and neighbourhood disputes can impact a resident’s enjoyment of their home. At the same time, it respects the right of each resident to live in their home without interference from it, unless they have breached their occupancy agreement. The policy says the landlord will advise residents of what tools are available to help them resolve these matters. This can include mediation, advice from housing management, and support provided by either the landlord or an agency. The policy says that if a resident believes the issue reported should be dealt with in line with the landlord’s anti social behaviour (ASB) policy, it will review the case, which may include contacting the other party to investigate further.
The landlord’s resolving neighbour disputes guide states it defines a neighbourhood dispute as a disagreement between two or more residents, which does not represent a tenancy breach but is affecting the resident’s enjoyment of their home. The guide states that records should be kept of any reports of disputes, actions taken and the outcomes of these. It says the landlord may consider taking the following action when resolving neighbour disputes; advising on technology, alterations or adaptations that may resolve the issue, advising the parties to speak to discuss the issues, refer the parties to mediation, remind parties of their obligations, and refer parties to an external agency for support or information.
The landlord’s ASB policy states the landlord will:
1. Respond to reports of ASB within 1 working day.
2. Investigate and monitor any risks.
3. In determining the seriousness of the ASB and the proportionate action for resolving it, the landlord will consider the nature of the ASB, the frequency, and the impact on the resident and community.
4. Be clear and realistic about potential outcomes and the timescales involved.
5. Develop an action plan with the resident and provide them with information from other agencies who may be able to offer additional support.
6. Use early intervention including mediation, warnings, and acceptable behaviour contracts.
7. Consider enforcement action where there is sufficient evidence of a tenancy breach.
The landlord’s ASB procedure states that if the initial report describes behaviour that is not considered ASB, for example domestic noise, assistance should still be offered to the complainant, but the local officer should explain actions that can be taken are likely to be limited. It says how the ASB report is investigated will depend on the nature and seriousness of the ASB. The procedure says that during the interview stage the landlord should assess the impact of the ASB on the resident, set clear expectations, and agree next steps. Once the investigation is complete the landlord will update the resident with the outcome.
The landlord’s compensation and goodwill gestures policy states the landlord can make a discretionary payment of up to £250 where residents experience distress and inconvenience following a service failure. It says the landlord considers compensation of up to £50 for low impact service failures, up to £125 for medium impact failures and up to £250 for high impact failures.
It is not the Ombudsman’s role to decide whether noise reported by a resident amounts to antisocial behaviour or statutory noise nuisance. It also is not the Ombudsman’s role to determine whether any noise nuisance or ASB was taking place as alleged. The Ombudsman’s role in these types of complaints is to consider the evidence available to determine whether, in response to reports of noise, the landlord responded in accordance with its relevant policies and procedures and if its actions were fair and reasonable in all the circumstances of the case.
The resident first reported noise from her neighbour on 25 July 2022. The landlord initially responded promptly on 28 July 2022 and confirmed it had not been able to get hold of the neighbour to discuss. However, it was clear that the resident did not receive an update from the landlord on this until its stage 1 complaint response on 1 September 2022. This followed the resident contacting this Service on 18 August 2022. The timeframe here was 28 working days. This was not appropriate and did not show a customer focused approach.
The landlord acknowledged in its final response that its initial investigation had been delayed. The landlord said the issue should have been handed over to another member of staff. It said this had not happened due to staffing levels over the summer holidays. The delayed response from the landlord here was inappropriate and resulted in a delay to the landlord’s investigations.
It was evident that the resident had followed up with the landlord on 5 August 2022 and 10 August 2022 about her concerns but did not receive a response. As such she had then taken the time and trouble to contact this Service for help. The communication from the landlord here was poor and again the landlord had not demonstrated a customer focused response.
The landlord demonstrated that it took a balanced and appropriate approach when it categorised the noise reported from the neighbour changing their flooring as noise transference. This was in line with its domestic noise and neighbourhood disputes policy.
It would have been beneficial for the landlord to have communicated clearly to the resident that it had not considered this noise ASB, in order to have set the resident’s expectations of the actions the landlord was able to take. It was noted that the landlord did provide the resident with a copy of its domestic noise and neighbourhood disputes policy in its stage 2 response and confirmed the issue was noise transference, however this was over 4 months after the resident had first reported the issue. The landlord here missed the opportunity to clarify its understanding of the nature of the residents reports at this early stage, thus managing her expectations and clarifying the extent of the possible outcomes of the case.
Although initially delayed, the landlord took appropriate action when investigating the noise transference caused by the neighbour’s change to their flooring. It discussed with the neighbour on 1 September 2022, the reports of noise and sent a warning letter to the neighbour on the same day. The letter asked the neighbour to review the underlay used and to buy rugs, mats or carpet. This was a proportionate action to take in consideration of the evidence the landlord had at the time from both parties which had suggested the change in flooring was causing the noise transference.
The landlord asked the resident on 28 July 2022 to keep a diary of the noise. This Service would expect a landlord to request a diary or further evidence of the noise during the initial stages of a noise nuisance investigation. This was a reasonable step for the landlord to take, in order to be able to investigate the resident’s reports and to be able to consider the appropriate action it could have taken.
It was not clear from the evidence provided if a diary was returned to the landlord. However, it was noted that the resident contacted the landlord on 5 August 2022, 10 August 2022, 14 September 2022, 5 October 2022, and 30 November 2022 to advise the situation was continuing. The landlord here did not demonstrate that it asked the resident to continue with the diary sheets or that it had set a timescale to complete and return them.
The landlord was not clear in its responses to the resident during the complaint period, how it was handling each noise report made. It missed the opportunity to investigate the further noise reports and provide the resident with a response on the actions it could or could not have taken. As a result, the resident was caused distress and the inconvenience of continuing to report the issue but not receive an explanation of the action the landlord was taking.
Following the resident’s report on 14 September 2022 that the noise transference issue was still occurring, the landlord visited the neighbour on 10 October 2022 to check the work completed to the flooring. The neighbour agreed to place rugs down on the areas of exposed floorboards. It was agreed by the landlord that the noise would be monitored for a period of 6 weeks and the neighbour would be asked to install carpet on the hard floor areas if the noise transference was not improved. This was an appropriate action taken by the landlord to manage the situation and find a solution for both parties. However, it was not clear if this plan of action was communicated to the resident until the landlord confirmed this in its final response on 12 December 2022. The resident again continued to follow up with the landlord during this time to request it take action.
In response to the resident telling the landlord that she was continuing to experience noise from the neighbour’s flooring, the landlord asked the neighbour on 6 December 2022 to lay carpet throughout the property by 9 January 2023. This was again a proportionate action taken by the landlord. The landlord had here demonstrated that it had worked with the neighbour to put a solution in place for the noise transference issue.
The landlord told the resident on 22 September 2022 that the neighbour changing their flooring was not a breach of the tenancy agreement. The agreement did not specifically prohibit a resident from replacing flooring or having exposed boards. The landlord confirmed this in its final complaint response. The landlord also told the resident on 22 September 2022 that given the age and design of the building some sound transference between flats was unavoidable. While the landlord acted appropriately here by setting the resident’s’ expectations about a potential breach of tenancy, it would have been clearer had the landlord responded to the resident’s concerns about this sooner, in order to set expectations earlier.
The landlord’s resolving neighbour disputes guide includes mediation as an action the landlord can consider when resolving disputes that do not represent a tenancy breach. The landlord confirmed in its correspondence to this service that it had offered mediation to the resident during phone calls but did not have a record of this. The landlord demonstrated that it had offered mediation to the resident in September 2023. This was after the completion of its internal complaints process. The landlord should have considered offering this sooner considering the resident had been continuing to report noise nuisance from July 2022 and told the landlord that was affecting the enjoyment of her home and her health.
This Service was provided with evidence to show that the landlord engaged in multi-agency working. It confirmed to the resident in its review of its final response in March 2023 that it had contacted the local council noise team about the report made by the resident in July 2022. However, it was not evident when this contact took place, and this was not communicated to the resident at the time. The landlord had failed to demonstrate to the resident during the complaint process that it had taken steps to substantiate her reports with the noise team. Again, the resident was unaware of the action the landlord had taken.
It was evident that the landlord did not respond to the resident’s reports of her neighbour playing music loudly at night or her allegations that they were making noise deliberately until after its final complaint response. This was following contact from this Service in March 2023. The landlord acknowledged to the resident on 29 March 2023 that it had discussed these allegations with her neighbour who had denied them. It said it had spoken with other residents who had not been able to confirm the reports of loud music. The landlord also said it had confirmed with the local council noise team that no action had been taken on the report made by the resident in July 2022.
This service was not provided with any evidence to demonstrate that the landlord provided the resident with information on this part of its investigation prior to March 2023. This was over 7 months after the resident had first raised the report of deliberate noise and music. The delay in response here was excessive. It was noted that the landlord had sent the neighbour a warning letter on 1 September 2022 which included a reminder about their obligations in regard to ASB and noise considered anti-social. However, it did not reference the reports of loud music directly. The landlord missed the opportunity to fully address this issue early on in its investigation.
Given that the resident had reported the neighbour had played loud music during the night, it would have been reasonable for the landlord to have considered this issue under its ASB procedure. When ASB is reported, it is necessary for the landlord to respond by following its ASB policies and dealing with reports in a proportionate and appropriate manner. The landlord must consider its obligation as a landlord to treat allegations from all its customers in a consistent and evidence-led way.
The resident also told the landlord again on 5 October 2022 that she was experiencing loud music and deliberate noise from her neighbour. However, the landlord did not open an ASB case until 6 December 2022. It also did not follow its ASB procedure and failed to update the resident on the outcome of its investigations in regard to the music and allegations of deliberate noise until March 2023. As a result, the resident was unaware of the steps the landlord had taken, and this caused her distress and frustration with the landlord.
When a landlord agrees that it failed to provide a service, the expectation is for the landlord to offer redress. The landlord offered the resident £200 of compensation on 29 August 2023, on review of its handling of the resident’s complaint. This was broken down as £100 for its failure to investigate her reports of her neighbour playing loud music and deliberately making noise, and £100 for its failure to respond in a timely manner in July 2022.
The landlord’s late offer of compensation was not sufficient to avoid an adverse finding here. The Ombudsman encourages local resolution of complaints even when the internal complaints process has been completed. However, it is expected that a landlord do all it can to resolve the matter while the complaints process is live. While the compensation here went part way to putting things right for the resident, it had not acknowledged the poor communication the resident received on the actions taken by the landlord. It also did not account for the lack of clarity provided to the resident on the actions the landlord had taken, and the failure to set expectations sooner on what it could and could not act upon.
In conclusion, overall, the landlord had taken steps in line with its policy and procedures when handling the resident’s reports of noise nuisance. Although the response was delayed, it was proportionate for the landlord to discuss the concerns with the neighbour, issue a warning letter, and work with the neighbour to resolve the sound transference issue. However, the landlord had failed to demonstrate that it had taken action on the resident’s reports of her neighbour playing loud music and making deliberate noise in a timely manner.
The actions taken by the landlord to investigate the loud music and deliberate noise were appropriate, albeit belated, and there is no evidence to support that further action ought to have been taken against the neighbour during the complaint period. However, the landlord did not communicate this effectively to the resident. It also did not demonstrate that these actions were taken in an appropriate timeframe. Communication is a key element of a landlord’s handling of noise and ASB cases.It not only informs the resident about what is happening but also ensures that the resident does not feel like their concerns have been forgotten or not taken seriously, which was the situation in this case. This resulted in the resident taking her concerns to this Service prior to raising complaints at both stages. This caused a deterioration of the relationship between the landlord and the resident.
The landlord should have provided the resident with a clear plan of the steps it had taken and the steps it could not take sooner. It had failed to manage the resident’s expectations on the limitations to the investigations without further evidence. The landlord had attempted to put things right with an offer of compensation after the complaints process had ended. However, this did not go far enough to acknowledge the full failures here. As such, there was service failure in its handling of the resident’s reports of noise nuisance from a neighbour.
In line with the Ombudsman’s remedies guidance, compensation of £350 is considered reasonable for the landlord’s failures here. The resident advised this Service that she has continued to experience further noise from her neighbour. As such a recommendation has been made for the landlord to contact the resident to establish if she is still experiencing noise nuisance and if so take actions in line with its policies and procedures.

The landlord’s complaint handling.

The landlord’s complaint procedure states a complaint should be logged when a resident specifically says that they want to complain, a resident has contacted the landlord several times about the same issue, the resident has expressed dissatisfaction as part of a visit, call or email, and where there have been multiple attempts to resolve an issue.
The landlord operates a 2 stage complaints process. The landlord will contact a resident within 2 working days to acknowledge a complaint. The landlord will investigate and respond to a complaint within 10 working days. If a resident is unhappy with the outcome of their complaint at stage 1, they are able to escalate this to stage 2. The landlord will respond to a stage 2 complaint within 20 working days. At both stages, if the landlord is not able to resolve all the issues within the timescales stated, it will send the resident an action plan within 10 working days detailing the timescales for completing any outstanding actions. It will provide the resident with regular updates at agreed times on progress until these are completed.
The Complaint Handling Code states that a stage one response should be provided within 10 working days of the complaint. It also explains that a stage two response should be provided within 20 working days from the request to escalate. If it is not possible for a landlord to respond within this timeframe, an explanation, and a date of when the stage two response will be received is required. This should not exceed a further ten working days without good reason. The Code also states that landlords must address all points raised in the complaint and provide clear reasons for any decisions.
It was evident that the landlord did not provide its stage 2 response within 20 working days as set out in its complaints policy. The resident advised this Service in October 2022 that she had escalated her complaint on 14 September 2022 but had not received a response. It was noted that the resident had not explicitly asked the landlord to escalate the complaint in her email on 14 September 2022. However, considering it was in reply to the stage 1 response and the resident had clearly expressed dissatisfaction with the response and provided the resolution she was seeking, the landlord should have escalated the complaint in line with its complaints policy.
The resident further expressed her dissatisfaction with the landlord’s response on 5 October 2022. The landlord missed the opportunity again here to escalate the resident’s complaint. As a result, the resident had to take the time and trouble to raise this with this Service in order to escalate her complaint.
The landlord responded appropriately and acknowledged the resident’s complaint escalation following contact from this Service. It provided its final response to the resident on 12 December 2022. This was 23 working days after it had acknowledged the resident’s complaint escalation. The landlord’s response here did not meet the 20 working days timeframe set out in its complaints policy or the timeframes in the Code. Although it is noted the delay here was minimal, the landlord did not demonstrate that it had kept the resident informed of the delay in response. This caused the resident the inconvenience of not knowing when to expect a response.
It was evident that the stage 1 complaint was investigated and responded to by the member of staff who had been directly involved in handling the noise report. This was not in line with the Code which states a complaint investigation is to be conducted in an impartial manner, seeking sufficient reliable information from both parties so that fair and appropriate findings and recommendations can be made. The Spotlight on Noise Complaints report, published by this service in October 2022, recommends the member of staff who has been handling the noise report being complained about should never be allocated the complaint to investigate. The landlord should have allocated the complaint to a member of its staff who had not been directly involved in the resident’s service delivery. As a result, the resident had not had the chance to have her stage 1 complaint investigated in an impartial way.
The landlord acknowledged in its review of its final response on 29 March 2023 that it had not addressed all of the resident’s concerns in its final response. While the landlord had reviewed its complaint response in an appropriate timeframe following the request of this Service, this had resulted in a protracted complaints process for the resident. As such, the resident had continued to take the time and trouble to follow up with the landlord and this Service to receive a response to her complaint about her neighbour playing loud music and deliberately making noise.
The landlord made a further offer of compensation when reviewing the case in August 2023. The landlord’s further offer of compensation is to be commended on one hand as this demonstrated a flexible and resolution focussed approach. However, on the other hand, its is essential that member landlords do all they can to ensure that complaints reach a reasonable conclusion while the complaints process is live. The landlord had here not followed the Code which states a complaint should be resolved at the earliest possible opportunity.
To provide a fair response, landlords are expected to resolve complaints by addressing both the main issue raised and any inconvenience that happened. When a landlord agrees that they have failed to provide a service, the expectation is for the landlord to offer redress. The landlord attempted to resolve its complaint handling failures through an offer of compensation of £100. However, this offer did not acknowledge or account for the full extent of its failures here.
In summary, the landlord’s complaint process did not answer all of the complaint, and the stage 2 response took longer than the timescales set out in its complaints policy. It had also not demonstrated that it had undertaken the initial investigation of the resident’s complaint at stage 1 in an impartial manner. Therefore, there was maladministration in the landlord’s complaint handling.
It would be appropriate for the landlord to pay the resident total compensation of £250 for the inconvenience, time, and trouble caused by its poor complaint handling. This is in line with the Ombudsman’s guidance on remedies for instances of maladministration which have adversely affected a resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of noise nuisance from a neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders.

The Ombudsman orders the landlord to apologise to the resident for the failings identified in this report.
The Ombudsman orders the landlord to pay the resident a total of £600 in compensation. This amount includes the £200 of compensation offered in August 2023. Compensation not already paid, should be paid directly to the resident, and not offset against any arrears. The compensation comprises of:
1. £350 for the inconvenience and distress caused to the resident by the landlord’s failures in its handling of the resident’s reports of noise nuisance from a neighbour.
2. £250 for the inconvenience, time and trouble caused by the landlord’s poor complaint handling.
The landlord is to provide evidence of compliance with the above orders to this Service within four weeks of the date of this report.

Recommendations.

The landlord should contact the resident to establish if she is still experiencing noise nuisance and if so take actions in line with its policies and procedures.
The landlord should carry out a self-assessment against the recommendations made in the Housing Ombudsman’s Spotlight report on noise complaints – Time to be heard (2022).