Westminster City Council (202109512)

REPORT

COMPLAINT 202109512

Westminster City Council

22 February 2022

Our approach

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

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

The complaint

The complaint is about:
1. The actions of the local authority’s environmental health department in response to the resident’s reports of noise from a neighbour.
2. The landlord’s response to the resident’s reports of noise from a neighbour’s boiler.
3. The landlord’s handling of the associated complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The actions of the local authority’s environmental health department in response to the resident’s reports of noise from a neighbour.
Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The resident has raised concerns about the actions taken by the local authority’s environmental health department’s noise team in response to her reports of noise from a neighbour. Specifically, that she had been told that a noise abatement notice would be sent by them to her downstairs neighbour.. However, complaints about the actions of the local authority’s environmental health department fall properly within the jurisdiction of the Local Government and Social Care Ombudsman, and not this Service. Therefore, a determination will not be made on this aspect of the complaint.
In view of this, this Service will instead only address the resident’s concerns regarding the landlord’s actions in relation to her reports of noise from her downstairs neighbour’s property’s boiler, and whether it responded to her associated complaint, reasonably.

Background and summary of events

The resident is a tenant of the landlord, which is a local authority. The property is a flat on the first floor of the building. The building comprises of two flats. The property below the resident’s is owned by a leaseholder, who sublets the property to other tenants.
The resident stated that she initially reported a noise to the landlord, which she believed to be caused by her downstairs neighbour’s plumbing on 10 November 2020. The resident advised that she was initially told by it to contact the local authority’s environmental health department’s noise team. On 19 November 2020, she said that a plumber attended from the landlord further to the above suggestion, and that they found no plumbing issues which could be contributing to the noise. The resident stated that she therefore asked, at the landlord’s suggestion, for a surveyor to attend to determine the cause of the noise, which she believed was caused by the neighbour’s boiler. This was reported by her as having initially been agreed by the landlord.
On 29 December 2020, the resident was informed by the landlord that her request for a surveyor had been declined, as the landlord had identified that the downstairs property was a leasehold property, which meant that the leaseholder was responsible for rectifying the issue. The landlord’s records showed that it had previously attempted to call the leaseholder and had left a voicemail for them to make contact regarding the issue.
On 21 January 2021, the resident advised that she was informed that the landlord had emailed the leaseholder and that, if no response was received after three attempts, a case would be logged with the landlord’s leasehold operations team.
The resident submitted a stage one complaint to the landlord on 11 February 2021, as she was dissatisfied with the landlord’s handling of her reports of noise. She detailed the previous communication she had with the landlord above, and she asked it to arrange for some form of noise monitoring equipment to be installed to determine where the noise was coming from. The resident added that, when a plumber had attended on 19 November 2020, they had entered the downstairs property and did something to the boiler which significantly reduced the noise level for several days.
The landlord sent an acknowledgement email to the resident for her above stage one complaint on the same date, and it explained that it was taking longer than usual to allocate complaints to a case officer due to reduced capacity. It confirmed that, once her case had been assigned, it would contact her to advise when she would receive its complaint response.
The resident submitted a further complaint to the landlord on 24 February 2021, as she had not received any communication, updates or timeframes from it in response to her initial complaint. She understood that there was reduced capacity due to the lockdown restrictions in place as a result of Covid-19, but she did not feel that this was an excuse for the lack of clear communication from it. The resident asked the landlord to assign her complaint to member of staff for investigation.
The landlord’s records showed that it discussed the noise issues with the resident over the telephone on 25 February 2021, and that it apologised for the delay in responding. The landlord followed the telephone call by providing her with direct contact details for a member of its staff via email to discuss this.
The resident then emailed the landlord’s staff member on 3 March 2021, and she explained that she had been woken up at 5am by the noise from her neighbour’s property. She said that the noise happened every two to three minutes, and that she had needed to move from her bedroom into her living room in order to sleep. The resident therefore asked the landlord to provide her with an update, possible next steps or timeframes for her case.
The landlord responded to the resident on 5 March 2021, and it explained that it was attempting to contact the leaseholder of the flat below regarding their boiler. It said it would provide a more formal response in due course. The resident replied to the landlord on the same date, said that she was sure that it was the downstairs boiler and that she had asked the leaseholder’s tenants below to turn their boiler off at night to ascertain whether this was the cause of the noise, but that they had refused. She noted that a surveyor had been booked to attend her property on 17 March 2021 to ensure that the noise was not coming from her own flat.
The landlord issued its stage one complaint response to the resident on 17 March 2021 and explained the following:
1. It had attempted to contact the leaseholder of the downstairs flat on 29 December 2020, but this was unsuccessful. The landlord acknowledged that it should have been made clear that it was not responsible for repairs to the downstairs property’s boiler, but that it would make sure that the leaseholder of the flat was alerted to the issue. It noted that it had not passed this information on, and it apologised that it had not fully explained the actions that it was able to take. However, the landlord had written to the leaseholder to advise them of the noise nuisance, ask them to ensure that their boiler had appropriate safety certification and request that they undertake further checks on this to address the noise.
2. It noted that it had previously offered access to a noise app to monitor the level of noise. The landlord acknowledged that the resident had declined the use of the app as she did not have a smartphone. It said that it did not have any other form of noise recording equipment within its service, but it explained that the resident could contact the local authority’s service which specialised in investigating noise that could investigate noise related to building plant.
The resident responded to the landlord on the same day, and she expressed dissatisfaction that the landlord had advised that it had previously offered her noise monitoring equipment and an app, but that she had refused these. She asked for confirmation as to when this conversation happened and who she had spoken to regarding the noise monitoring equipment and app, which she allegedly declined due to a lack of smartphone.
The landlord emailed the resident on 23 March 2021 and explained that it had not been able to contact the member of staff who had discussed the noise app with her over the telephone. It apologised for the confusion regarding the conversation and what it offered to support resident’s with noise issues. The landlord offered to arrange for another member of staff to contact the resident about the noise app, and options for noise monitoring for people without smartphones.
The resident responded on 24 March 2021 and explained that she had a smartphone, which was why she believed that the conversation was incorrect. She thanked the landlord for the offer, but she did not believe that an app on her smartphone would pick up the noise she was experiencing. She advised that the noise was a deep humming noise which bordered on a vibration. The resident said that she had requested for her complaint to be escalated to the final stage of the landlord’s complaints procedure.
The landlord recorded on 26 March 2021 that it had received a final stage complaint escalation request from the resident, which was as a result of its handling of the noise from her downstairs neighbour’s property, as well as her disputing some of the information in its stage one complaint response. This included details of its communication with her and of the local authority’s specialist noise team.
The landlord issued its final stage complaint response to the resident on 26 April 2021 and explained the following:
1. It noted the resident’s concerns about the accuracy of the information provided in its stage one complaint response regarding the use of a noise app being offered. The landlord apologised for the confusion, explained that the conversation that it had described having with her about this had not happened, and that it had provided incorrect information on this. It noted that it had discussed the noise app and options for noise monitoring with the resident since its stage one complaint response, and that she had declined its offer. It confirmed that its offer of such noise monitoring would remain open to her.
2. It acknowledged that the resident had asked the landlord to refer her to the local authority’s environmental health department’s noise service. The landlord confirmed that this had now been done and apologised that this was not arranged sooner. It provided further information about how the resident could contact the noise service directly.
3. It confirmed that its stage one response had partially upheld the resident’s complaint on the basis that it had failed to inform her that it was not responsible for any repairs needed inside a leaseholder’s property. The landlord acknowledged that, when the resident reported the noise issue on 16 November 2020 and a problem with the plumbing was ruled out, a referral should have been made to its leasehold operations team. It confirmed that it had written to the leaseholder of the flat below to request an update. The landlord had been advised that a gas service of the leaseholder’s boiler and heating system had been booked for 28 April 2021.
4. In view of the above service failures it had identified, the landlord offered the resident £75 total compensation, which comprised of £25 for the misinformation provided at stage one, £25 for the delay in referring the noise problem to its leasehold operations team, and £25 for the time and trouble she had spent pursuing the matter.
Following the landlord’s final stage complaint response, the resident continued to communicate with the local authority’s environmental health department regarding her noise concerns, and she was appointed an officer to ensure that action was taken in an attempt to witness the noise reported.
The resident referred her complaint to this Service, as she remained dissatisfied with the landlord’s handling of her reports of noise and its handling of her associated complaint. She advised that she had been promised by the local authority’s environmental health department that a noise abatement notice would be sent to the residents of the flat below, as their boiler was still making noise. The resident also advised that she had subsequently submitted further reports and complaints related to the same issue to the local authority and the environmental health department, but that she had not received any response to these, for which she sought a noise abatement notice.

Assessment and findings

The landlord’s response to the resident’s reports of noise from a neighbour’s boiler

It should be noted that the role of the Ombudsman is not to establish whether the noise reported by the resident to the landlord was occurring or not or whether this constituted a statutory noise nuisance. Our role is to establish whether the landlord’s response to the resident’s reports of noise was in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.
As the freeholder of the building, it would be the landlord’s responsibility under the resident’s tenancy agreement to investigate the noise issue on behalf of the resident, and to carry out any repairs which fell under its responsibility if required, including to the structure, exterior and shared parts and services of her building, as well as to her property. It was therefore reasonable for the landlord to initially send a plumber to the resident’s property following her report of plumbing related noise in November 2020, in order to ensure that there were no repair issues within her own property which could be causing the issue for which it would be responsible.
The landlord accepted in its stage one complaint response of 17 March 2021 that it should have made the resident aware that it was not responsible for any repairs required to the downstairs property sooner, following her report of a low humming noise coming from there. It acted appropriately by apologising to the resident for this in the stage one response, and by pursuing the matter with the leaseholder of the flat below once it had established that it was not responsible for this. The evidence from its records suggests that the landlord had attempted to contact the leaseholder on multiple occasions, including on 29 December 2020 and 21 January and 17 March 2021, but that it had been unsuccessful. It then acted reasonably by writing to them in regard to the inconvenience that the noise was causing to the resident.
It is noted that the landlord’s final stage complaint response of 26 April 2021 reported that the leaseholder had confirmed their intention to arrange a gas service of their boiler and heating system on 28 April 2021. Although it is unclear from the evidence provided as to whether this went ahead, and the resident continued to report the noise to the local authority’s environmental health department following this date. While it is noted that there was some miscommunication acknowledged regarding the noise monitoring app offered by the landlord which will be discussed below, it was reasonable for the landlord to offer the use of the app to the resident in an attempt to gain evidence of the noise that she had reported to support any further action by it for this.
There were limited further steps that the landlord could take to address the noise, as landlords cannot reasonably be expected to take formal action against residents for noise which is outside of the landlord’s control, such as everyday household noise or repairs that it is not responsible for. However, if a noise was reported or confirmed as constituting a statutory noise nuisance, the local authority’s environmental health department is responsible for investigating this, and may be able to warn and take formal action against the perpetrator.
It would therefore be the local authority’s environmental health department’s role to investigate the issue, determine whether the noise constituted a statutory noise nuisance and consider whether the leaseholder was required to take any further action. As such, it was reasonable for the landlord to refer the resident’s concerns to the environmental health department, which was best placed to handle these. Its above actions accorded with its statement of policies and procedures on tackling antisocial behaviour, as this permitted such noise reports to be referred to the environmental health department’s noise team for investigation and further action.
Where there are acknowledged failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in all the circumstances of the case. The landlord acted fairly in its final stage complaint response by acknowledging its mistakes in delaying informing her that it was not responsible for repairs to the leaseholder’s property and referring her to its leasehold operations team for this, and by apologising to the resident for these failings.
The landlord also put things right in respect of its above mistakes by offering the resident £50 compensation in its final stage complaint response for the delay in referring the noise problem to its leasehold operations team, and for the time and trouble that she had spent pursuing the matter. This included her having to having to wait for it to refer the resident’s noise concerns to the local authority’s environmental health department, which was best suited to handle her ongoing concerns. This was in accordance with the landlord’s compensation and payment schemes’ recommendation for it to award compensation from £50 for such time and trouble incurred in pursuing complaints.
The above compensation award was additionally in line with the Ombudsman’s own remedies guidance, which states that amounts in this range are proportionate in cases where there has been service failure, but when this was of short duration and did not significantly impact the outcome for the resident. The landlord offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident in relation to the landlord’s failings, which, in the Ombudsman’s opinion, resolves the complaint about its response to her noise reports satisfactorily.

The landlord’s handling of the associated complaint

The landlord’s complaints policy states that it has a two-stage procedure for handling complaints. At stage one, a response should be issued within ten working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At the final stage, a response should be issued within 20 working days. If, at any stage, there is likely to be a delay, the landlord would be expected to contact the resident, explain the reason for any delay and provide a new timescale in which they can expect to receive a response.
The resident initially asked for a stage one complaint to be raised by the landlord on 11 February 2021. She submitted a follow-up complaint to it on 24 February 2021, as she had not received an update on when she would receive a response. The landlord issued its stage one complaint response 14 working days outside of its published timescale on 17 March 2021.
While the landlord somewhat managed the resident’s expectations by explaining to her in its stage one complaint acknowledgement on the same date that it was taking longer than usual to allocate complaints due to a lack of capacity, it would have been appropriate for the landlord to have done more. It could have, for example, instead also have provided the resident with an estimated timescale of when she might receive its stage one response in order to prevent any uncertainty or inconvenience on her part in respect of this. The landlord has not acknowledged or apologised for this delay in its complaint responses, which is likely to have caused inconvenience for the resident.
Furthermore, in its stage one complaint response, the landlord stated that it had previously been in touch with the resident regarding a noise app, but that she had declined this as she did not have use of a smartphone. The landlord later acted appropriately by apologising to her in its final stage complaint response for its error in doing so, and by acknowledging that the conversation about the noise app had not happened. Its final stage response also put things right by offering her £25 compensation for the inconvenience caused by this, and by contacting the resident regarding the noise app once it had identified its error, which accorded with its compensation and payment schemes’ recommendation that it award compensation from £10 for failures relating to correspondence.
The evidence from its records additionally shows that the landlord issued its final stage complaint response of 26 April 2021 within a reasonable timescale following the resident’s escalation of her complaint from 24 March 2021, as this was only one working day later than its complaints policy’s 20-working-day timescale. We nevertheless cannot comment on any further complaints that the resident has raised to the local authority regarding the noise issue that are related to the environmental health department’s noise team’s handling of her further reports of noise, which is outside of the jurisdiction of this Service to consider.
The landlord’s final stage complaint response has acknowledged and offered compensation to the resident, which is considered proportionate in view of the misinformation it provided to her at stage one of its complaints procedure. It also followed its compensation and payment schemes’ recommendation that compensation for time and trouble in pursuing complaints should generally not be offered at stage one.
While the landlord has not adequately apologised for the delay in providing its stage one complaint response, or offered specific redress for the inconvenience this may have caused the resident within its complaint responses, its final stage complaint response’s £25 compensation award for the failings in its stage one response was additionally proportionate to recognise this. This is because this exceeded its compensation and payment schemes’ recommendation that it offer £10 for such failures with its correspondence, and there is no evidence that its 14-working-day late stage one response caused the resident detriment to the extent that would support a higher level of compensation than this.
As such, the landlord has been recommended below to re-offer the £75 total compensation that it previously awarded to the resident, if she has not received this already in view of the failings identified. It is also recommended that the landlord takes steps to review its relevant record keeping practices and staff training needs, in order to ensure that the correct information is provided, and timely complaint responses are issued, to residents at all times.

Determination (decision)

In accordance with paragraph 55(b) of the Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about its response to her reports of noise from a neighbour’s boiler satisfactorily.
In accordance with paragraph 55(b) of the Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion resolves the complaint about its handling of the associated complaint satisfactorily.
This decision is dependent on the landlord following the below recommendations.

Reasons

The landlord has acted fairly by acknowledging the delay in advising that it was not responsible for repairs to the downstairs leaseholder’s boiler and referring the resident’s noise reports about this to its leasehold operations team, and the time and trouble the resident had spent pursuing the matter. The compensation offered by the landlord was proportionate in view of the impact on the resident as a result of its failings, and its policies and procedures. The landlord acted appropriately by referring the resident’s concerns to the local authority’s environmental health department, which was best placed to determine whether any further action was required.
The landlord has satisfactorily acknowledged and apologised for the misinformation that it provided the resident in its stage one complaint response, and the offer of compensation by it to her for this was reasonable to acknowledge the inconvenience caused, in accordance with its policies and procedures. However, the stage one complaint was issued outside of the landlord’s published timescales, and it did not keep the resident updated as to when she would receive this response, which is likely to have caused inconvenience. Although its compensation award to her was also proportionate to recognise these failings under is policies and procedures.

Recommendations

It is recommended that the landlord:
1. Pay the resident the £75 compensation that it previously awarded her, if she has not received this already, in relation to its misinformation, the time and trouble the resident had spent pursuing this matter, and the delay in referring her concerns to its leasehold operations team.
2. Review its record keeping practices in relation to the status of its leaseholders, and its advice to residents regarding noise nuisance, to ensure that the correct information is provided to residents about its responsibility for leaseholders’ repairs at all times, and that its communications in relation to noise nuisance reflect accurate information.
3. Review its staff’s training needs in relation to their application of its complaints policy to ensure that they issue residents with timely complaint responses, and provide updates and revised timescales for these, if necessary. This should include the completion of this Service’s free online dispute resolution training for landlords at https://www.housing-ombudsman.org.uk/landlords-info/e-learning/, if this has not been done recently.
The landlord should contact this Service within four weeks to confirm whether it will follow the above recommendations.