London Borough of Hackney (202007684)

REPORT

COMPLAINT 202007684

Hackney Council

28 April 2021

Our approach

1. 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.
2. 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

3. The complaint is about the landlord’s handling of reports of noise transference from a neighbouring property.

Background and summary of events

4. The resident has been a tenant of the landlord, at the property, from August 2019. 
5. The landlord has adopted a two-stage formal complaints procedure whereby the landlord aims to investigate and respond at stage one within 10 working days.  Where a complainant is dissatisfied with the response, they may request escalation of the complaint to stage two and the landlord aims to respond at this stage within 20 working days.
6. The resident lives in a ground floor property and his complaint concerns noise transference from the property above him; specifically, noise from creaking floorboards, although also other ordinary household noise, which he believes is amplified due to the property having laminate flooring. 
7. The resident, who works during the night and sleeps during the day, has his bedroom situated beneath the living room of the property above, meaning that any noise transference has been particularly disruptive.
8. In November 2019, having lived in the property for a few months, the resident began experiencing issues with noise transference as described and on 11 November 2019 wrote to his neighbours about it, although received no response.  The neighbours are tenants of the leaseholder of the property.
9. On 17 November 2019 the resident reported the issues to the landlord and in response, it opened an Anti-Social Behaviour (ASB) case. As part of its response to what it had logged as ASB, the landlord took the following steps thereafter:
   1. Visited the resident at the property to discuss the issues and attempt to witness the noise;
   2. Issued the resident with the ‘Noise App’ in order to capture the noise that was disturbing him, and:
   3. Wrote to and telephoned the leaseholder to advise them to fit rugs and carpets in the property in order to help reduce the noise transference.
10. On 13 December 2019 the landlord concluded that the noise being heard constituted ordinary living noise and that there was nothing further that could be done.
11. Email correspondence and telephone calls regarding the issue continued from around March 2020, with the resident continuing to report hearing noise which was disturbing his sleep.
12. During May 2020, in the ongoing correspondence about the noise transference, the landlord noted that it had previously also given the resident advice in dealing with the problem, including suggesting he use earplugs, change the location of his bedroom or change his work pattern.
13. It also reiterated to the resident the actions it had previously taken to investigate the noise, including issuing the resident with the ‘Noise App’. It explained that the noises recorded on the App, appeared to have been captured at various locations and not in the resident’s property itself. 
14. The landlord advised that it had not heard back from the leaseholder about the issue, having contacted them, however and decided it would be beneficial to instruct a surveyor to carry out an acoustic inspection and to assess whether sound insulation was needed.
15. On 20 May 2020, the landlord reiterated to the resident in an email, that the noise he complained of constituted ordinary living noise.  It added that even where poor sound insulation was the cause of an increased level of noise, precedent had been set in case law, that it was not reasonable to expect the neighbours to behave especially quietly where sound insulation was poor.
16. Contact from the resident continued and on 1 June 2020, he made a formal complaint, which the landlord responded to on 24 June 2020.
17. The complaint was not upheld, with the landlord finding that it had taken reasonable steps to address the issue.  It said it would be in touch once the lockdown restrictions had eased in order to arrange a surveyor’s visit.
18. On 9 September 2020 the resident requested his complaint be dealt with at stage two of the landlord’s complaint procedure. He felt the landlord had not done enough to address he issue and added that the ‘Noise App’ having recorded the noise being at different locations around the estate must have been a technical error.  He was disappointed that his personal recordings of noise had not been permitted by the landlord and that a surveyor had still not attended.
19. On 25 September 2020 the landlord telephoned the resident to discuss the issues. As an outcome to his complaint, the resident wanted the landlord to reduce or eliminate the noise and creaking which could be heard from the neighbouring property, due to the laminate flooring as it was affecting his sleep.
20. On 15 October 2020 the landlord emailed the resident advising that its response was going to be delayed due to serious issues with its IT system which was making it difficult to locate records.  It explained that its intention, however, was to write to the leaseholder at the property above, to ask for the floorboards causing the issue to be repaired.
21. On 29 October 2020, the process began of arranging an inspection of the property above the resident’s.  In its correspondence to the other party, the landlord advised that consent should have been sought in respect of laying the laminate floor and that appropriate acoustic underlay should be in place.
22. On 3 November 2020 the landlord responded to the complaint at stage two of its complaints procedure. The complaint was upheld, with the landlord finding delay in addressing the issue, noting that it had been reported before, for which it apologised. 
23. The landlord said it would arrange to write to the leaseholder of the property with the laminate flooring to request the issues be resolved by way of laying rugs, installing carpet or installing soundproofing and that it would contact the resident thereafter.
24. In the investigation report appended to the landlord’s response to the complaint, it noted that the ‘Noise App’, whilst capturing sounds of creaking and what sounded like people walking across laminate flooring, this was ordinarily living noise rather than ASB or a statutory nuisance.  It was therefore inappropriate for an ASB case to be opened.
25. Due to a cyber-attack, the landlord was unable to verify whether a surveyor was previously asked to inspect the property but said that it would arrange for this to take place nonetheless.

Post complaint

26. On 6 January 2021 an inspection was carried out at the property above the resident’s and it was recommended that the leaseholder add acoustic underlay underneath the laminate flooring (which was installed prior to his tenure) or to carpet the property.

Assessment and findings

27. In cases of ASB or noise nuisance it is not the role of the Ombudsman to determine whether the ASB or noise occurred, but rather, to assess how the landlord responded to the reports made and whether its responses were in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.
28. The landlord’s actions in speaking with the resident about the issues, offering advice (even if temporary), issuing the resident with the ‘Noise App’, writing to the leaseholder about the issue and latterly, arranging and carrying out an acoustic survey at the property were appropriate.  They were appropriate because in doing so, the landlord demonstrated that it was taking matters seriously and taking steps to investigate and find a satisfactory solution.  A satisfactory resolution, however, was not reached.
29. The landlord did not do enough or act quickly enough, in establishing contact with the leaseholder of the property concerned to ascertain the situation and make any recommendations, requests or requirements of them accordingly.  
30. The delay in taking action is acknowledged by the landlord although it has not made attempts to put this right, with the situation ongoing.  Moreover, the landlord did not sufficiently manage the expectations of the resident from the outset, with the absence of an action plan, updates or timescales.
31. Although issuing of the ‘Noise App’ may have been helpful in capturing the level of the noise – in order to ascertain whether the noise amounted to a statutory nuisance – the resident was not complaining of noise nuisance in the context of ASB.  His complaint rather, was that of poor insulation and/or laminate flooring being laid in the property above his which amplified ordinary living noise. In opening an ASB case and referencing ordinary living noise as the reason for the matter being closed down, missed the point and confused matters.
32. Despite the landlord stating that the noises amounted to ordinary living noise, the recordings also appear to have been dismissed at least in part, because the GPS noted them to have been recorded in locations other than the property itself.  This causes a lack of clarity on the landlord’s findings and position on this. 
33. Whilst ordinary living noise – such as children playing and footfall – is ordinary living noise if not carried out at unsociable hours of the day, the resident did not dispute this, but rather, the amplification of the noise because of the flooring and/or insulation underneath it.
34. The acoustic survey which eventually took place in January 2021 recommended actions which do not appear to have been taken up to date.  It is unclear whether these recommendations are in fact simply recommendations or a requirement of the lease agreement.  In the absence of clarity from the landlord, the resident cannot be clear either and the issue remains live and unresolved, contributing to further dissatisfaction and breakdown of the landlord-tenant relationship.
35. A landlord is obliged to make repairs to a property but not improvements.  Improvements in this case, may be soundproofing, for instance.  This is the case even where older buildings do not meet the sound proofing requirements of new buildings today.  Nonetheless, the landlord is required to investigate noise levels and in terms of ordinary living noise, whether these noises are being made at unreasonable hours.  It is also required to ensure the terms of its tenancy and lease agreements are met on both its part and the part of its residents and leaseholders.
36. Finally, although the landlord took time to respond to the complaint beyond its target timescales, it contacted the resident to advise that there would be a delay and explained the reason for this.  Sometimes complaints take longer to investigate than anticipated or events occur outside of the landlord’s control.  This appears to have happened in this case and so delay specifically in respect of complaints handling does not amount to service failure in this case.

Determination

37. In accordance with paragraph 54 of the Scheme, there was service failure in respect of the complaint.

Reasons

38. There was service failure insofar as the landlord did not do enough to establish contact with the leaseholder to properly assess and ascertain the situation and delayed later again, in respect of the acoustic survey.  Further, the landlord did not sufficiently manage the resident’s expectations, leaving a lack of clarity and uncertainty over the situation.

Orders

39. The landlord to pay the resident £150 compensation for the service failure found.
40. The landlord to put together an action plan to thoroughly investigate, respond to and clarify the situation to the resident.

*The resident to note that the landlord is not required to carry out improvement works as discussed above.