Midland Heart Limited (202103806)

REPORT

COMPLAINT 202103806

Midland Heart Limited

30 November 2021

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 transference in her property.

Background and Summary of Events

The resident is a tenant of the landlord, which is a housing association. The property is a ground floor flat within a block of flats.
The landlord’s records show the resident first reported noise disturbance on 17 May 2020 from the flat above. She believed the neighbour had laminate floors and described hearing loud footsteps and banging which she said affected her mental health. On 21 May 2020 the landlord advised her to download its noise monitoring app to record the noises. The resident submitted numerous noise recordings; however the landlord advised the recordings showed daily living noises and not statutory nuisance.
The resident continued correspondence with the landlord about the noise from May to September 2020. During this period the landlord advised the resident to continue using the noise monitoring app and keep an incident diary. It sent an advisory letter to the neighbour regarding the noise reports. It visited the resident’s home to witness the noise, provided advice on housing options and referred her to external mental health support and to her GP for support.
During a call with the landlord on 6 November 2020 the resident confirmed she had been diagnosed as having sensitive hearing. The landlord discussed restorative justice (RJ), but she declined (the landlord appears to use the term “restorative justice” to mean mediation. There are differences between the two, and in a case such as this one mediation would be the relevant option). It advised it would contact the neighbour to discuss the issue and find a resolution.
The resident continued submitting noise recordings as advised by the landlord until mid-December 2020. On 21 January 2021 the landlord advised that the noises she had submitted (such as the neighbour walking around) were deemed to be daily household noise. It advised it would visit the neighbour once the lock down ended to see what could be done to reduce the sounds, and asked her to consider mediation.
The resident declined mediation on 24 January 2021. She said she felt emotionally unsafe to meet with the neighbour, and did not think mediation would be helpful. The landlord acknowledged her decision, and said it would write to the neighbour again, and visit them on 10 February 2021.
On 24 February 2021 the landlord wrote to the resident. It confirmed it had visited the neighbour, and explained it had found; there were no laminate flooring in the living room area (above the resident’s bedroom); there was carpet over the flooring; and the noises from walking did not seem malicious. It also noted the neighbour agreed to mediation, so it had made a referral to a “restorative justice officer” who would contact the resident to arrange “how best to proceed”.
There were no further reports from the resident. On 18 March 2021 the landlord advised her because she had not responded to it or the RJ officer’s contact attempts, there was nothing more it could do and advised the case would be closed. It said if the issues intensified to notify it.
On 23 May 2021 the resident raised a formal complaint, she explained the noise reports she had made and the landlord’s actions. The resident explained that she did not feel the landlord had properly acknowledged her phone was damaged and not picking up the noise well; it had persisted suggesting mediation despite her views that it would not help or be appropriate, and that in any case the issue was the noise transference, not the neighbour themselves. She disputed the landlord’s conclusion that the noise was “everyday living” because the noises were loud and unbearable, and asked why it had not sent an environmental health officer to assess the noise. She believed the landlord was violating her human rights and not taking the matter seriously. She asked the landlord to soundproof her ceiling.:
On 9 June 2021 the landlord issued its stage one complaint response. It provided a detailed list of its actions taken to resolve the issue. It advised that most of the recordings were daily living noises and the visit to her home confirmed the same. The landlord stated its visit to the neighbour confirmed there were no laminate floors. It apologised for the resident feeling pressured into accepting mediation/RJ, but explained there was no obligation to accept. It advised it was unable to act against the neighbour over daily living noises.
It confirmed that its housing maintenance team were unable to fit noise reducing insulation in her home, but explained how she could install it herself using a home improvement request. It concluded it was partially upholding the complaint due to its handling of the investigation, and would be happy to arrange for noise monitoring equipment to be installed in the resident’s home.
The resident escalated her complaint on 17 June 2021. She felt the landlord had not investigated thoroughly. She reiterated that her phone was water damaged which she believed contributed to noises not being detected, and said that at the times it visited to monitor the noise, the neighbour was not at home so the recordings would be inconclusive. She remained dissatisfied with the landlord’s interpretation of her complaint, which she explained was about the lack of sound proofing in the building not noise nuisance from her neighbour. She also confirmed this was her reason for declining mediation, and it seemed to her that the landlord was “trying pass [it] off as neighbourly dispute and not assume responsibility of the poor sound insulation of [its] property”. She stated other residents had informed her they were experiencing the same issues. She questioned why no further action was taken. She accepted its offer of noise monitoring equipment and requested further details about placement and privacy.
On 6 July 2021 the resident chased the landlord for a response to her escalation request.
This Service wrote to the landlord on 2 August 2021 and advised that the resident had not yet received a response to her escalation request; it was asked to respond by 9 August 2021.
The landlord sent its final complaint response on 9 August 2021. It:
1. Apologised for the length of time taken to respond, explained it was an administrative error, and offered £50 compensation for its delayed response and the inconvenience of contacting the Ombudsman.
2. Detailed its actions taken to resolve the complaint and explained that noise nuisance was a type of environmental health issue and so it was appropriate to ask for noise recordings.
3. Advised specialist noise monitoring equipment would have been installed if it assessed the noise was unacceptable and/or at unsociable hours, however that threshold had not been reached for it to act.
4. Explained that, as the property was a flat, some noise transference would be expected from the flat above. It had consulted with its development team and assured the property was built in accordance with building regulations which stipulated noise tolerances and noise transference levels.
5. It advised it was unable to change the structure of the building and or add noise insulation in her home but advised how she could make improvements herself.
The resident called the landlord on 10 August 2021 as she remained dissatisfied with the final response. She explained her previous mental health issues and the landlord encouraged her to contact it if issues intensified.

Assessment and findings

The resident explained to the landlord on several occasions, and to this Service how the noise was affecting her health. The Ombudsman is not able to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. 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.
Landlords are not generally required to take formal action for noise that is considered everyday household noise, even when the noise is exacerbated by sound transference, unless the nuisance is caused in some way by repair issues which the landlord is responsible for. If there are no apparent repair issues a landlord does not have an obligation to provide noise insulation, as this would be considered an improvement to the property, and beyond the terms of the tenancy agreement.
When a complaint of a statutory noise nuisance is made to a landlord by one of its tenants, the landlord should take such steps as are reasonably practicable to investigate the complaint and identify if the problem is one of antisocial behaviour (which it has obligations to address), or of everyday noise (for which a landlord has no meaningful options to resolve). In this case it is not disputed that the problem is not antisocial behaviour. The evidence provided shows that the landlord responded appropriately to the reports of noise transference from the resident. For example, it gave access to the noise monitoring app, asked the resident to keep diary entries to investigate the noise. It advised the neighbour of the issue, and visited to investigate the flooring and witness the problem.
Although the resident advised her phone was not capturing the noises effectively, the written descriptions provided (such as doors shutting, footsteps, toilet flushing) confirmed the noise to be daily household noises. Dedicated noise recording equipment (as opposed to the phone app) is usually only used to capture evidence of antisocial behaviour, not noise transference. Because of that it was arguably unwise for the landlord to suggest its use, given that the nature of the noise was apparent from the information the resident had already provided, and the resident’s expectations of what could be done were unreasonably raised. Nonetheless, this shortcoming is not, in itself, significant enough to be considered a service failure.
While the issue of concern for the resident was the noise transference, rather than any deliberate action by the resident, it was appropriate for the landlord to offer mediation. Mediation could potentially have identified some steps either party could take to reduce the amount of noise being generated, or its impact. Nevertheless, the resident’s grounds for declining the option were understandable, and she was entitled to do so.
The landlord has a two-stage complaint response procedure, it aims to respond in 10 working days and where a formal review is required its respond target is 20 working days. The resident raised a formal complaint on 23 May 2021, the landlord acknowledged the complaint on 25 May and issued its stage one complaint response on 9 June 2021 in line with its complaint policy. She escalated her complaint on 17 June 2021, and it issued its stage two response on 9 August 2021. The landlord acknowledged this was outside its response time frame and offered £50 compensation for the delay, which was in line with the Ombudsman’s own remedies guidance.
Overall, the landlord took appropriate steps to investigate the resident’s noise reports. Its suggestion to use noise recording equipment was unwise, but its other actions such as visiting both the resident and the neighbour, suggesting mediation, and investigating the neighbour’s floor coverings were pragmatic and relevant. It’s response to the resident’s escalated complaint was delayed, and required intervention by this Service before it was issued, but the landlord acknowledged its poor handling, explained the delay, and provided an appropriate remedy for it.

Determination (decision)

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

The landlord acted appropriately by giving the resident access to a noise monitoring app, diary entries to record the noises and advising the neighbour of noise reports. It also investigated reports of laminate flooring in the neighbour’s property. It gave advice on how the resident could install noise insulation through a home improvement request. It liaised with its housing development team to ensure the property was built in accordance with building regulations which stipulated noise tolerances and noise transference levels. Its actions and efforts were reasonable. It’s final complaint response was delayed, but the landlord acknowledged its poor handling, and provided an appropriate remedy.

Recommendations

If the landlord has not already done so, it should now pay the resident the compensation it offered in its final complaint response.