Thames Valley Housing Association Limited (202014178)

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REPORT

COMPLAINT 202014178

Thames Valley Housing Association Limited

24 November 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

  1. The complaint is about the landlord’s handling of the resident’s reports of noise nuisance.
  2. This Service has also made a finding regarding the landlord’s handling of the resident’s complaint.

Background

  1. The resident is a tenant of the landlord, a housing association. She resides in a flat within a block of similar properties. Her neighbour resides in the flat above her property. The landlord is the freeholder.
  2. The resident has stated she started reporting excessive noise transference from the neighbour’s property in early 2020. She stated she raised a complaint with the landlord regarding noise in December 2020, and again in February 2021. She explained the noise issue was caused by her neighbour having removed her carpet and replacing it with laminate flooring. The landlord responded by asking the resident to use a noise-app and make recordings to support her reports. It contacted the neighbour and asked her to relay a carpet as removing it laying laminate flooring had been a breach of her tenancy agreement.
  3. The resident ultimately declined to use the noise-app, initially advising the landlord had told her it did not work between 11pm and 7am and as the reported noise was affecting her during the day, she felt it was not applicable to her situation. The landlord stated that without being provided with evidence of the noise disturbance, and 28-days of continuous recordings, it would consider the noise she was experiencing to be domestic noise disturbance rather than anti-social behaviour. The resident maintained that she should not need to provide further evidence as the landlord was already aware the neighbour had installed laminate flooring, in breach of her tenancy, and this would cause greater noise transference. In February 2021, as the resident had not submitted supporting evidence via the noise-app, the landlord advised it would not continue to investigate the issue. It did not raise the resident’s complaint formally, nor respond via its complaints procedure.
  4. After intervention from this Service, the landlord accepted the resident’s complaint at stage one of its complaints process in May 2021. It responded in June 2021 and explaining it was continuing to ask the neighbour to cover her laminate flooring with carpet. However, it advised it did not consider the neighbour’s breach of tenancy would justify enforcement action through the courts. The resident asked for her complaint to be escalated, stating she felt there were more steps the landlord could take (other than court action) to enforce the neighbour’s tenancy agreement. She also stated the landlord had not acknowledged the delay in responding to her complaint and it had failed to update her regarding its investigation of the noise disturbance.
  5. In its final response in July 2021, the landlord reiterated it would not take the neighbour to court, but reassured the resident that it was working to address her concerns regarding the noise pollution. It stated it was looking at preventative measures to minimise the noise.
  6. The resident has explained to this Service she is dissatisfied that the landlord stated it is working on the issue, but the noise transference is still ongoing. She has stated other residents have made identical complaints and received differing replies, including offers of compensation. She is also unhappy the landlord has not explained why it did not reply to her initial complaint.

Assessment

Scope of investigation

  1. The resident has complained that there was a lack of parity between her own complaint and that of another resident with an identical complaint. However, this Service is unable to assess a complaint that has not been brought to it for investigation by those affected. This investigation will therefore focus on the resident’s own complaint and assess whether the landlord acted reasonably, and treated her fairly, when addressing the issues she raised.

The landlord’s handling of the resident’s reports of noise nuisance

  1. In correspondence with the resident, the landlord cited its tenancy agreement, which states residents should not install any flooring other than carpet without its written consent and that, if already given, consent may also be withdrawn retrospectively. The tenancy agreement also stated the landlord considers noise transference to be a nuisance when it occurs between 11pm and 7.30am.
  2. The landlord’s anti-social behaviour (ASB) policy states that all residents must show consideration to their neighbours and the local area by complying with the terms of their tenancy agreement and not committing acts of ASB. This includes harassment, noise nuisance, annoyance or disturbance to other residents, whether unintentional, deliberate or personally motivated.
  3. The same policy states if the issue being reported solely relates to noise, the landlord will ask the resident to use the ‘noise- app’ monitoring system to make recordings of alleged noise disturbance. Records show that when asked, the resident declined to use the noise-app, as she was initially told that noise would only constitute a nuisance if it occurred between the hours of 11pm and 7.30am. She explained to the landlord the noise was occurring during the daytime, but was exacerbated by her neighbour having laminate flooring. After clarifying the noise app would work during daytime hours, the landlord requested the resident continue to record the reported noise, to allow it to properly assess the situation.
  4. This was reasonable of the landlord, as it was in-line with its policies, and would have given it a clearer idea of the noise that was occurring. Given the initial information she had been given, it was understandable the resident did not believe the noise-app was applicable to her situation. However, it would have been helpful to have complied with the landlord’s request. This would have allowed the landlord a chance to assess the situation effectively and would have provided evidence to support the resident’s complaint.
  5. Normal domestic noise or reasonable play by children is not generally considered to be an example of ASB. However, in this case the resident has stated the noise was aggravated to an unacceptable level as her neighbour had removed her carpets, which exacerbated noise transference between the properties. The landlord initially acted reasonably by identifying whether the neighbour had removed her carpet. It asked the neighbour several times to re-lay the carpet, and in the interim suggested that she lay large rugs to alleviate some of the noise transference. It advised the resident it would continue to request the neighbour replace her laminate flooring.
  6. However, the landlord’s ASB policy requires residents to abide by their tenancy agreements, and refrain from committing noise nuisance. The landlord therefore did not act reasonably when it wrote to the resident in February 2021, first to advise that “there is not much we can do” if it determined the reported noise did not amount to statutory nuisance, and then a week later to advise it was “unable to investigate and assess your complaint” as she had not used the noise-app.
  7. Having acknowledged the neighbour “has not complied with (their) tenancy condition” by installing laminate flooring, the landlord’s response on 24 February 2021 advised it was “not going to consider legal action” as “it just does not work like that”. While the landlord may have meant to try and manage the resident’s expectations, this was not appropriate language to use and was not a reasonable way of setting out and justifying its position. It advised there were other “available options and support” it could explore, such as carrying out a noise nuisance assessment alongside the local authority’s Environmental Health team.
  8. According to the landlord’s ASB policy, before undertaking legal action the landlord can pursue other actions such as mediation or issuing a warning. Its policy recommends such actions when the “ASB is continuous but the resident refuses to acknowledge the problem or deal with the problem following the landlord’s intervention and advice”. The landlord could also have reached out to other parties such as the local authority’s Environmental Health department, to try and ascertain if the noise level was reasonable. There is no evidence to suggest that the landlord considered any of these actions to resolve this issue. This is not appropriate and the landlord did not act in accordance with its own policies. As noted in the Housing Ombudsman’s Spotlight Report on noise complaints (“Time to be Heard”, published in October 2022), while a lack of statutory noise levels can limit landlords’ options, particularly with regards to potential enforcement action, it does not absolve them of the requirement to explore other suitable resolutions. In this case, there is no evidence the landlord considered other steps which could have provided a resolution to this issue, which the resident has advised this Service is still ongoing. As a result the landlord’s actions, or lack of, did not treat the resident fairly.
  9. Additionally, in its correspondence with the resident, the landlord’s justification that some of its residents do not abide with its tenancy conditions regarding laminate flooring and “not all…go on to be a source of a complaint or nuisance to their neighbours” was not appropriate or helpful. While it advised it dealt with issues on a “case by case basis”, the fact other properties that were in breach of tenancy conditions had not prompted complaints did not absolve it of its responsibility to properly investigate the resident’s own concerns and it did not explain why it apparently chose to overlook breaches of its own tenancy conditions in certain circumstances. 
  10. The landlord issued its final complaint response on 9 July 2021. It stated “it would like to reassure the resident that it was working hard to address the concerns raised regarding noise pollution and was looking at preventive measures that can be put in place to minimise the noise she was experiencing”. Despite the landlord acknowledging the resident was still experiencing issues with noise transference, it did not uphold her complaint or offer an apology regarding the fact the disturbance was ongoing. It did not state the steps it was taking to minimise the disturbance to the resident, or provide any information regarding time frames for actions it would take. It also did not acknowledge the delay in responding to her complaint formally, nor did it address her complaint that it had not kept her updated regarding her reports.
  11. There were also occasions where, in its records and correspondence, the landlord appeared to confuse the resident with a relative who had submitted similar reports, or wrote to them both simultaneously regarding their reports when they had not given any indication they wished for their reports and/or complaints to be joined. This was not appropriate and raises concerns over the landlord’s record keeping. Overall, in the Ombudsman’s opinion, the failings by the landlord in its response to the resident’s noise reports amounts to maladministration.

The landlord’s handling of the resident’s complaint

  1. The landlord’s complaint’s policy states that after a complaint is submitted, it will provide a full response to the resident within ten working days. If the resident remains dissatisfied, the complaint will be escalated, with the landlord providing a full and final response within 20 working days.
  2. The Housing Ombudsman’s complaint handling code (the Code) states that when a complaint is made to the landlord it shall be acknowledged and logged at stage one of the complaints procedure. The resident does not have to use the word complaint in order for it to be treated as such, as an expression of dissatisfaction is sufficient. A landlord must accept a complaint unless there is a valid reason not to do so, in which case it must inform the resident of why their complaint has not been accepted.
  3. Landlords should be careful to differentiate between a complaint regarding noise from a neighbour and complaint about the landlord’s service. The resident’s contact with the landlord on 14 February 2021 clearly fell into the latter category, as she expressed dissatisfaction with how the landlord had responded to her reports of noise nuisance, and should therefore have been treated as a complaint. That the landlord did not do so, and did not respond to her correspondence in line with its complaint procedure, was a failing and did not treat the resident fairly.
  4. In further correspondence with the resident later in February 2021, while the landlord advised the resident it would not investigate the matter further as it did not consider the reported the noise disturbance to constitute ASB, and the resident had not provided evidence via its noise-app, this should not have prevented the landlord from addressing her complaint about its response to her reports. The fact it did not differentiate between the resident’s ongoing reports of noise disturbance and her separate complaint about the landlord’s service was not appropriate and meant the landlord dd not act in line with the Code, or its own complaints policy. After the resident sought intervention from this Service in May 2021, the landlord finally responded to the resident’s complaint on 8 June 2021. This was at least four months after the resident initially submitted a complaint and was an unreasonable delay. However, the landlord’s complaint responses did not acknowledge this and its Stage Two response in particular stated it had not found any evidence of service failure as it had responded to her complaint in accordance with its procedure.
  5. The landlord’s Stage Two response was also brief and did not fully address the resident’s complaint, focussing mainly on how it had provided a Stage One, rather than considering how it had handled her reports of noise nuisance. While it advised the resident it was “working hard to address the concerns raised regarding the noise pollution” and “looking at preventative measures that can be put in place to minimise the noise you are experiencing”, it did not provide any details of the actions it was taking, provide examples of the preventative measures it was considering, nor did it provide any time frame for when any of these steps might be carried out. This was not appropriate and meant the landlord missed an opportunity to reassure the resident it was taking her concerns seriously, and to manage her expectations accordingly.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord regarding:
    1. Its handling of the resident’s reports of noise nuisance.
    2. Its handling of the resident’s complaint.

Orders

  1. Within four weeks of the date of this report the landlord is ordered to:
    1. Pay the resident £300 in recognition of the failings identified in respect of its handling of the resident’s reports of noise nuisance.
    2. Pay the resident £100 in recognition of the failings identified in its complaint handling.
    3. Write to the resident to outline the actions it has available regarding enforcement of its tenancy conditions, and provide an action plan regarding how it will investigate the issue further. It should also contact the local authority’s Environmental Health team on her behalf to arrange an assessment of the noise transference between the properties.
  2. The landlord should contact this Service within four weeks of the date of this determination to confirm its compliance with the above orders.