Camden Council (202009166)

REPORT

COMPLAINT 202009166

Camden Council

31 March 2021

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 response to the resident’s reports of noise nuisance.

Background and summary of events

The resident has had a secure tenancy with the landlord since 21 August 2017. The property is a one-bedroom flat on the first floor.
The Housing Ombudsman Scheme sets out that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising. This investigation will consider the period of reports from late 2019 onwards on this basis, given a formal complaint was raised on 28 July 2020. The period covered prior to the complaint is approximately 11 months. However reference is made to earlier events where this provides context for the landlord and resident’s communications and actions.
On 27 December 2018 the landlord wrote to the resident stating that it could not pursue action against her neighbour for alleged noise nuisance unless the allegations were independently supported. It noted that it had repeatedly informed the resident of this position. It requested that she use the responsive security patrol service the landlord had provided her with to obtain independent evidence of the reported noise. It noted that such evidence, if obtained, would assist it in seeking legal advice on appropriate action to pursue against the alleged perpetrators.
In August 2019 the resident wrote to the landlord to report that she and her partner were regularly being kept awake or woken up during the night by loud noises coming from the neighbours in the property above her. She described these noises as varying between loud banging noises late at night and through the morning, as well as shouting and foul language during other times of the day and night.
On 13 September 2019 the landlord emailed the resident’s neighbour to state it had received noise nuisance reports from the resident and requested a meeting to discuss these.
On 6 November 2019 the landlord wrote to the resident stating that it had met with the neighbour the previous week to discuss the ongoing reports. The neighbour denied making noise during the course of the night, stating that they were asleep at the time the loud bangs were reported to occur. It had recommended mediation but the neighbour refused to engage with this. It noted it would be exploring other options.
On 19 November 2019 the landlord wrote to the resident advising her to call the noise patrol team even after hours as this would support it in gathering evidence to substantiate her reports. It noted that it would look at a possible transfer for either her or the neighbour if it was able to gather enough evidence to support this, and that it would be sending letters to each property in the block warning residents about causing noise nuisance.
The resident continued to make reports of issues with noise to the landlord via email over December 2019 and January 2020. These largely consisted of reports about banging sounds coming from the neighbour’s property late at night above the resident’s bedroom which were brief but very loud spread out in approximately hourly intervals.
On 11 February 2020 the landlord wrote to the local councillor stating that the resident was continuing to report loud noise coming from the neighbour’s property. It asked if it could speak to the councillor to discuss possible resolutions to the issue.
On 28 February 2020 the neighbour wrote to the landlord noting that it had previously attended her property two years earlier to take photos of the flooring, carpet and underlay in response to noise reports being made by the resident. They noted that they had been accused of making noise again and therefore requested that the landlord provide and consider the previous photos of the flooring given other staff were requesting permission to undertake a visit to the property to inspect the flooring again. They considered the photos would demonstrate that a visit to the property was unnecessary.
On 3 March 2020 the councillor wrote to the landlord noting that the neighbour had communicated with him and had been convinced to allow a visit to the property so as to establish the facts of the case. The neighbour had requested that the visit occur in early April 2020 due to health-related issues and maintained that the household only made a normal level of domestic noise.
On 5 March 2020 the landlord wrote to the neighbour noting that it would still need to attend the neighbour’s property to discuss the noise allegations. An appointment was confirmed for 8 April 2020.
On 29 March 2020 the resident wrote to the landlord noting that the neighbour had been making significant noise at night over the previous two weeks.
On 31 March 2020 the landlord wrote to the neighbour stating that the visit scheduled for 8 April 2020 had been cancelled due to the Covid-19 lockdown and would be rescheduled after the lockdown was lifted. It noted that it was still receiving noise reports from the resident who had heard banging on her bedroom ceiling late at night and in the early hours of the morning. It stated that the resident was adamant the noise was coming from the neighbour’s property and therefore asked the neighbour for their response to the allegations. On 1 April 2020 the landlord told the resident that it had written to the neighbour after attempting to ring them for two days with no response.
On 7 July 2020 the landlord wrote to the resident noting that it had been unable to carry out the scheduled visit to the neighbour’s property due to the Covid-19 lockdown, but that it would contact the neighbour regarding the latest reports of noise nuisance. The following day it conveyed to the resident that previous inspections had confirmed that the neighbour’s property had carpeting, but that it would carry out another inspection following lockdown on the basis of the resident’s concerns that this may have been changed since then.
On 15 July 2020 the landlord discussed further noise reports with the resident. On 16 July 2020 the resident wrote to the landlord stating that the noise was ongoing, with the neighbour making loud banging sounds and having loud conversations through the evening and into the early morning. The resident reported that the previous evening she had spoken to the neighbour, telling them that she would contact noise patrol and was recording them speaking aggressively to her, at which point they stopped. The resident requested that the landlord contact the neighbour to resolve the issue.
On 17 July 2020 the neighbour wrote to their local councillor stating that the resident had yelled from her property up at the neighbours about alleged noise and had reported noise nuisance coming from them for many years. The neighbour stated they had no desire to participate in another investigation as they had done nothing wrong and instead requested assistance from the councillor to resolve the matter.
On 23 July 2020 the councillor wrote to the landlord in response to the neighbour’s communication noting that the situation had previously reached an impasse. It asked what other steps could be taken to resolve the matter.
On 28 July 2020 the resident telephoned the landlord to raise a complaint about the delay in providing service and lack of communication. The landlord wrote to the resident on the same day to acknowledge the complaint and noted that it would aim to resolve it within ten working days.
On 29 July 2020 the resident wrote to the landlord stating that there had been loud noise the previous evening at approximately hourly intervals through the early morning until 7am. She requested that the landlord confirm that the neighbours had the correct flooring in place, noting that the neighbours had been quiet for a period of two weeks and then made noise every night over the following two weeks.
On 12 August 2020 the landlord wrote to the resident stating that it was trying all avenues to contact the neighbours. On the same day the landlord wrote to the councillor noting the most recent allegations that were being made “periodically” against the neighbour, including that they were verbally abusive to the resident. It noted it had been having trouble contacting the neighbour on the telephone and asked whether a meeting could be arranged with all parties.
On 1 and 10 September 2020 the resident reported further noise nuisance having occurred through the nights and early mornings, which she said sounded like internal doors in the neighbour’s property slamming as well as loud banging noises of something being dropped on the floor.
On the same day, 10 September 2020, the landlord telephoned the resident to discuss the reports. It followed this up with an email in which it stated that it could not take action on the resident’s word alone. It stated that it could not stress how important it was for the resident to call the response team when she was experiencing noise rather than sending email reports after the fact. It had discussed the issue with the neighbour who was adamant that they were not making any noise. It set out that it could not take any action at that time and would require a report from its response team regarding the noise that was being made as evidence of the ASB.
On the same day the resident wrote to the landlord, noting that she had explained that the noise patrol could not come to the property and witness the intermittent banging on the bedroom ceiling, and the neighbours knew this. She was aware staff would not wait in the property to hear intermittent instances of noise an hour apart during the night, and the neighbours were taking advantage of this. She stated that she had kept logs of the noise and had a recording of abuse in the form of the neighbour yelling out at her from the window in their property. She stated she had been reporting the noise long before the Covid-19 pandemic.
On 17 September 2020 the landlord’s internal emails noted that it could not progress the issue further. On 22 September 2020 it provided its stage one complaint response to the resident in which it set out the following:
1. It apologised for the delay in replying to the complaint, which had been due by 10 August 2020. It noted that this matter would be brought to the attention of relevant management in an attempt to improve future performance.
2. Various staff members had been interviewed about the case, and the landlord had also been in contact with the resident and her neighbour. The neighbour’s version of events conflicted with that of the resident, and the former had refused the offer of mediation.
3. It had confirmed in 2018 that carpeting was in place in the neighbour’s property, and the neighbour had recently confirmed this. A visit arranged for April 2020 had to be cancelled due to the Covid-19 pandemic.
4. The Housing Noise Patrol team had been unable to establish any noise occurring when they visited the property, and other neighbours had not reported any noise nuisance from the neighbour in question. It was therefore unable to take any further action without evidence available. It encouraged the resident to continue alerting the Housing Noise Patrol team when noise occurred and said It would arrange for an inspection when safe to do so.
On 24 September 2020 the resident requested that the complaint be escalated on the following grounds:
1. She felt any evidence she had put forward seemed to be ignored and never used to take any action. She had first reported the issue upon moving into the property in 2017.
2. Upon moving in the resident had attempted to politely contact the neighbour to interact socially with them and request they make less noise, to which the neighbour denied being the cause of the noise and stated it was coming from the property above.
3. She noted the noise patrol would not sit for hours in their property to hear the noise, so it was pointless to contact them.
4. The resident stated she had produced various pieces of evidence including recorded voice mails, a recording of the neighbour swearing and shouting abuse at her from the upstairs window and noise logs all of which she had provided to the landlord.
5. The resident had followed the instructions of the landlord to avoid having any contact with the neighbours for over two years but had been left to endure the banging throughout the night on the bedroom ceiling with no support.
6. She had requested that she and her partner be transferred if another property became available in the block, but when this had occurred she was not given the option to apply for it.
On 30 September 2020 the landlord wrote to the neighbour stating that it had been unable to contact them via telephone in response to continuing reports of noise. The landlord stated that it had previously asked them if it could check the heating system in the property to rule out that this could be where the noise was emanating from. It also recommended again that they agree to mediation with the resident as a potential resolution to the issue.
On 1 October 2020 the landlord provided its stage two complaint response to the resident, in which it set out the following:
1. It was sorry to hear of the issues affecting the resident and sympathised with her situation. It stated that it had been unable to look into historical issues from 2017.
2. It stated that, in order to accept the complaint at review stage, it would need to be confident that another investigation might come to a different conclusion to that of the previous response, and whether the desired outcome could be delivered under the complaint procedure.
3. The neighbours’ version of events conflicted with that of the resident. Whilst it did not cast doubt on her version, there was insufficient evidence to come to a firm conclusion either way. The Housing Noise Patrol had been unable to determine any noise and other neighbours had not reported any noise nuisance. On this basis it was therefore unable to take any further action.
4. It would arrange for an inspection to the neighbour’s flat once it was safe to do so, to confirm the state of their flooring. It instructed the resident to continue contacting the Housing noise patrol team when she experienced noise nuisance. It had contacted the neighbour with another offer of mediation and noted it would update the resident if this was able to be progressed.
On 16 October 2020 the landlord wrote to the neighbour noting that it was still receiving noise complaints from the resident and as such requested permission to inspect the property’s flooring within the week.
Following the landlord’s 1 October 2020 complaint response:
1. Mediation was again arranged between the parties but ultimately did not go ahead due to a reluctance to participate by the neighbour
2. A detailed report was requested by the landlord from the noise patrol team, who were also instructed to patrol the area at the times the resident had stated the noise was occurring
3. Engagement with the local councillor and neighbour continued regarding the need to gather evidence of the carpeting
4. Various letters were sent to the neighbour reporting the allegations of noise nuisance and reminding them of their responsibilities to not bother their neighbours with noise. Social care support was offered to the neighbour.
On 18 December 2020 the resident wrote to the landlord to report that she had just found water “pouring” down the walls from the property upstairs. She had knocked on the neighbour’s door and called through the letter box but did not see a response. She contacted the landlord’s staff who lived on the block who contacted the repairs team who stated it would be unable to force entry to the property. When she returned downstairs the water had stopped running down the bathroom walls, which she considered to mean the neighbours were in and had turned off the water in response to her communication. On 21 December 2020 the landlord spoke to the resident’s neighbour and the plumber who was attending the property at that time carrying out works to remedy the leak which was completed at this time. On 23 December 2020 the landlord wrote to the resident noting that it had spoken to the plumber who attended to the leak who verified that the neighbour’s property was carpeted.
On 1 February 2021 the landlord wrote to the resident setting out the steps it had taken since the resident had raised reports of noise nuisance:
1. It had spoken to and interviewed the neighbour on different occasions who had strenuously denied making the reported noise. The neighbour stated that they got up during the night to use the bathroom and thought this may have been when the residents heard the noise.
2. It had booked an appointment to inspect the neighbour’s flooring on 8 April 2020, however this was cancelled due to Covid-19 restrictions. It had been viewed previously by staff who confirmed that the property was carpeted, and evidence provided by the neighbours confirmed that this remained the case, being photographs of the carpeted flooring with a newspaper confirming the date. Additionally, at the time the plumber had attended the neighbour’s property, the landlord had spoken to them on the telephone. The plumber had walked around the property and confirmed that it was carpeted throughout, especially the living room and bedroom.
3. The landlord had not stated that the neighbours were vulnerable as to make such a statement would be a breach of data protection regulations.
4. As a result of the structure of the building, it was not able to easily establish where noise might originate from including the intermittent banging that was occurring through the night. It stated that noise travels through the structure and as such might have nothing to do with that particular neighbour’s flat.
5. It had left the option of mediation with the neighbour open so that a dialogue could take place in order for resolution to begin and to mend the strained relationship.

Policies and Procedures

The landlord’s noise and nuisance guidelines set out:
1. The landlord will act quickly to try to prevent an issue escalating, take a restorative approach whenever appropriate and aim to avoid legal action when it can.
2. Noise should be witnessed where possible and visits will likely be helpful where the problem may be due to the structure of the building in which case repairs may be necessary. This should be primarily undertaken by the landlord’s resident security patrol/noise patrol team, who will attend properties in response to reports. The landlord should be aware of the outcome sought by the reporting party. Diary sheets can be provided to the reporting party, and discussions should be had with the party who is reported to be making the noise to assist them to reduce noise.
3. Liaising with the caretaker, noise patrol and police should be undertaken in an attempt to resolve the issue. Counter-allegations are a common problem with reports as the situation can become “bogged down” and lack focus over a period of multiple reports back and forth. As a result, mediation may be suitable as the most positive outcome is a negotiated agreement or understanding between both parties. The landlord can also use noise apps to record noise nuisance.

Assessment and findings

The role of the Ombudsman is to consider the landlord’s response to the reports of noise nuisance made by the resident or other witnessing parties. We rely on the evidence provided by parties, which includes reports of noise nuisance and ASB, to establish what was communicated to a landlord in terms of both the substantive issue and the complaint, before then considering the steps taken by the landlord to address and resolve the issue. As set out in the landlord’s communications with the parties and particularly its final complaint response, it has undertaken various steps with this goal in mind.
Evidence has been provided of noise reports made by the resident about the neighbour varying in frequency over the period between late 2019 and the raising of the complaint on 28 July 2020, as discussed at the beginning of the report where the scope of the investigation is set out in reference to the Housing Ombudsman Scheme. The frequency of the reports by the resident required the landlord to undertake steps to investigate and resolve the problem, particularly given the nature of the noise which according to the resident was disrupting her ability to sleep. In response to this, the landlord liaised with its various teams, the resident and the neighbour. Its staff members met with the resident and contacted the neighbour in an attempt to investigate the extent of the noise nuisance so as to have proper documented records of it. This was in line with the requirements of its policy to gather evidence and its responsibilities to both parties to investigate the matter fairly.
The landlord attempted to establish the condition of the neighbour’s property and whether a lack of carpeting or inadequate flooring was contributing to the noise nuisance. Its investigation was a reasonable step to take given the impact of the noise may have been lessened if it was established that there was no carpeting and this could subsequently be put in place. It contacted the neighbour directly as well as the local councillor who liaised with the neighbour, despite the former causing significant delays to the investigation by refusing to allow the landlord access to the property to inspect the flooring. Nevertheless the landlord maintained regular communication with both parties in an attempt to clarify the condition of the flooring and took reasonable steps in doing so, even though it ultimately was not permitted access to carry out the inspection and was delayed in establishing the result.
Though the inspection was also delayed by the Covid-19 lockdown, the landlord was eventually able to establish that the neighbour had acceptable flooring in place. It took a similar approach to investigating and ruling out the neighbour’s heating system as a cause of the issue. Though these approaches did not resolve the problem, they demonstrated an engagement with the concerns of the resident who repeatedly requested that the landlord carry out such an investigation.
The landlord repeatedly conveyed to the resident the need to gather external independent evidence in support of the reports if any action was to be taken. This position is set out in its Noise and Nuisance guidelines, which notes the landlord requires evidence of any alleged noise nuisance and ASB to take action against a perpetrator. To this end, it encouraged the resident to make use of reporting to its noise patrol team which was specifically set up to respond to reports such as these out of hours ones, rather than sending through emails after the fact. It also instructed this team to patrol the area at the time the reports were made, with neither approach resulting in any independent evidence of noise being gathered.
The resident has expressed the difficulty she experienced with using this service to record intermittent noises which reportedly occurred sometimes very briefly and with large intervals in between them that could only be heard in a certain part of her property. It is understandable that this would have therefore caused her significant frustration and she has expressed to the landlord that she was aware that the reporting of noise to this team would not contribute any usable evidence to the investigation. It may be the case there is no alternative approach she can take, however the landlord is entitled to rely on its policy in responding to the reports in the way it did given there was no objective external evidence available. It acted appropriately in maintaining the position that it required substantiated evidence to act further, repeatedly setting out that it was unable to take further steps given the lack of evidence though noting its willingness to do so if the reports could be verified.
Given it has a responsibility to act fairly towards all parties in an attempt to resolve the dispute, the landlord’s policy required that it contact the neighbour to lay out the allegations made against them. This served the added purpose of attempting to gather evidence of the reports to substantiate the resident’s claims. On multiple occasions during the process it attempted to contact the neighbour and ask for their account of events as well as proposing possible resolutions to the issue. There is also some evidence that the landlord sent warning letters to the block about the need to be aware of noise and the impact it was having on other residents, which was an appropriate step and in line with its policy.
However the landlord regularly had problems communicating with the neighbour due to a lack of response, and the fact that the neighbour was reluctant to engage with the process due to them shielding from Covid-19. The neighbour also expressed having grown frustrated over responding to the reports over a long period of time. In addition, when the neighbour did engage with the investigation, they consistently denied the allegations and raised various counter-allegations against the resident. Therefore it is clear that on the evidence available, it would have been very difficult for the landlord to establish the facts of the situation with any real certainty, given the case was characterised by two differing accounts of what had occurred with little to no independent evidence to support either narrative. On this basis it had very little objective evidence which it could use to justify taking enforcement action against the neighbour.
Nevertheless, the landlord engaged repeatedly with both parties and attempted to set up mediation between the two. When the neighbour was reluctant to engage with the process of both providing evidence and mediation, the landlord was proactive in engaging the services of external parties to progress the issue. The landlord and councillor discussed the difficulties of establishing the facts of the case, particularly given the resident was largely reporting the noise via email after the fact rather than calling the noise nuisance team, and the reluctance of the neighbour to engage with any mediation process. It acted appropriately in attempting to provide alternative options in response to these issues, such as video-call mediation and also attempted to provide the neighbour with social care support, while still being considerate of the neighbour’s reported health issues on the basis of which they regularly refused home visits and mediation attempts.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding the complaint about its response to reports of noise nuisance.

Reasons

The landlord has taken various steps to investigate the reports but has been unable to find evidence to substantiate these as required by its noise nuisance policy. It engaged with the resident, neighbour and local councillor in an attempt to establish the facts of the case and gather evidence which could be relied on to take enforcement action. In the absence of this, it encouraged and attempted to arrange mediation between the parties and investigated potential issues with the neighbour’s carpeting in an attempt to resolve the noise issue. Beyond this it was unable to take any further steps to resolve the issue in line with its policy.