Camden Council (202015151)

REPORT

COMPLAINT 202015151

Camden Council

30 September 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

This complaint is about:
a. Repairs which the landlord instructed in response to an ongoing noise dispute, and the delays to those repairs.

b. The resident’s request to be re-housed

c. The landlord’s complaint handling

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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 Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
b. Rehousing request
Paragraph 39(m) of the Scheme says 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 asked to be rehoused due to a long running noise dispute with his neighbours, which has been escalating over time. He has said the situation is impacting his health and wellbeing which is the basis of his request.
The Housing Ombudsman Service investigates complaints relating to a local authority’s activities as a landlord. The complaint about the resident’s request to be rehoused is not one the Housing Ombudsman Service can investigate, as the Local Government and Social Care Ombudsman usually investigates complaints about applications for re-housing dealt with by a local authority.
The other aspects of the resident’s complaint fall within our jurisdiction and have been assessed below.

Background and summary of events

Background

The resident is a secure tenant and the tenancy began on 24 April 2017. The resident occupies a one-bedroom ground floor flat in a Victorian property, built around 1882, which has since been converted into flats.
The resident is involved in a long running dispute with the family that occupies the flat above his own. The disagreement is mainly centred on the disturbance caused by noise penetration into his flat from upstairs. However, as it has escalated, the dispute has also touched on other aspects of life in the property.
From the evidence seen by this service, the dispute goes back at least as far as April 2019, and it has involved the police on several occasions. The resident has raised multiple noise complaints to the landlord, which has also received several complaints made against the resident. It shows that the primary cause of the noise in the resident’s flat has been the movement of his neighbours, who are family of five, around their own flat. The penetration of noise is broadly attributed to the nature and age of the flooring in the property.
The evidence shows the resident initially felt the noise from his neighbour’s flat was unintended but inconsiderate. However, he later felt the noise was being made intentionally. Further, that the relationship between the resident and his upstairs neighbours has been severely damaged.
The resident is experiencing issues with his mental health for which he is receiving treatment and medication. He has said the noise in his flat has aggravated his condition, and he is unable to sleep or relax in his home due to the ongoing disturbance. The evidence shows he has told the landlord the situation has had a negative impact on his studies.
The landlord’s tenancy conditions, and tenants’ guide, show that noise nuisance can amount to anti-social behaviour. However, the documents mainly refer to audio equipment, musical instruments, and household appliances in relation to anti-social behaviour.
The landlord’s website sets out how the landlord deals with noise complaints. The website refers the reader to government guidance surrounding the issue of noise, which sets out the following information:
‘Councils must look into complaints about noise that could be a ‘statutory nuisance’ (covered by the Environmental Protection Act 1990).’

and

‘For the noise to count as a statutory nuisance it must do one of the following:

unreasonably and substantially interfere with the use or enjoyment of a home or other premises

injure health or be likely to injure health’

If they agree that a statutory nuisance is happening or will happen in the future, councils must serve an abatement notice.
The landlord’s website sets out the types of noise that the landlord is not responsible for. It shows that the landlord is not responsible for ‘Noise due to poor sound insulation’ and that these issues cannot be dealt with by their noise and pollution team.
The tenants’ guide sets out the repair responsibilities of the landlord and the tenant. It shows that the landlord is responsible for replacing floorboards, that have not been damaged through misuse, whilst residents are responsible for floor coverings such as carpets.
The landlord’s website shows how it prioritises different types of repairs and provides expected response timescales. It shows repairs can be categorised as emergency, essential, non-essential or longer term. Timescales are given for each category with essential repairs to be completed within 24 hours. It shows essential and non-essential repairs will be responded to within a minimum of 20 working days. No specific timescale is provided for longer term repairs as these are ‘to be agreed with tenant’. The website confirms that these timescales have been introduced in response to the pandemic.
The landlord has provided information which includes the tenancy agreement, tenancy conditions and tenant’s guide along with its internal notes and correspondence.
The resident supplied the landlord with medical information and an audio recording to support his version of events. This information has been considered as part of the assessment. He has provided this service with a copy of the landlord’s correspondence to his local MP, along with a supporting email from one of his upstairs neighbours.

Summary of events

The resident raised a formal noise complaint about the upstairs flat to the landlord on 13 August 2019. Shortly afterwards, he was advised to provide written details to allow the landlord to make enquiries. However, the landlord also indicated the complaint related to domestic noise and advised there were known sound insulation problems at the property. As a result, it said, there would always be some level of noise transfer between the flats.
The resident’s written response, to the landlord’s request for details, shows he considered the noise to be caused by a door slamming in the upstairs flat, along with its occupants ‘running and stumping’. It says the noise is a daily occurrence, although the frequency varies.
On 16 December 2019 the landlord made a home visit to the resident’s flat with a surveyor. The evidence seen by this service shows a manual sound test was completed by the landlord moving around upstairs whilst the surveyor, situated in the resident’s flat, listened to the resulting sounds. Following the test, the surveyor inspected the floor in the upstairs flat and a loose floorboard was identified as needing repair.
Ten months later, on 13 October 2020 the resident raised a formal complaint about the landlord. The resident said the floor in the upstairs flat was damaged, and the issue was affecting his health and causing distress. He said the issue had been inspected on two occasions and the landlord agreed that repairs needed to take place. He also said that he was given a start date of July 2020 for the works, but the issue remained unresolved. The evidence seen by this service confirms that, for reasons beyond its control, the landlord was prevented from completing the identified repair on 30July 2020.
The evidence shows that on 6 October 2020 the landlord secured agreement, with the upstairs flat, to allow it to source a supplier to facilitate the necessary access to their floorboards. It also shows that, ultimately, the landlord was unable to source a supplier, due to further Covid restrictions that were put in place around this time, and that the landlord confirmed this on 5 January 2021.
On 18 November 2020 the landlord issued its response to the resident’s complaint. It confirmed the flooring in the upstairs flat had been inspected in December 2019 and July 2020. It said these inspections had established that ‘a small section of floorboards creaked when under pressure.’ It went on to say ‘This is not unusual and is expected in old converted properties.’ Further, it said the landlord was continuing to engage with the occupants of the upstairs flat and that their floor was fully carpeted. A further inspection was due to take place on
9 December 2020 to establish what specific work would be required to minimise the noise from the flexing floorboards.
The landlord’s decision was to partly uphold the complaint on the basis that, whilst its efforts had been ongoing, the resident was not notified of the reason why work in the upstairs flat had been put on hold. The landlord’s resolution was to inform the tenant he would be updated following completion of the December inspection.
On 24 November 2020 the resident responded to the landlord’s decision in writing. He disagreed with the landlord’s findings on the basis its description, of the cause of the noise, was inaccurate and it had failed to understand the severe and ongoing impact of the situation on his health, even though he had provided supporting medical evidence to highlight this.
The resident said the noise of the floorboards was ‘awfully loud’ and described a ‘terrible banging’, which he attributed to movement taking place over a broken floor beam. He said this happened ‘very often’ given there were five members of the upstairs household, who were very active including at night.
The resident also said the floor of his own flat does not creak because, following complaints from the flat below, the floorboards had been replaced prior to the start of his tenancy. Whilst he appreciated it would be a complex task, he said he expected the same action to be taken in respect of the upstairs flat. His reply asks for urgent assistance with resolving the issue which he described as ‘disrepair’.
The evidence seen by this service shows that on 10 December 2020, the landlord gave the occupants of the upstairs flat practical guidance as to how they could resolve their difficulties, around providing the landlord with access to the flooring, without using their own contractor.
On 18 December 2020 the landlord responded to the resident’s request for his complaint to be reviewed. The response said the landlord was ‘satisfied that all reasonable steps are being taken to work with your neighbours to reduce the noise when they walk upon their floors.’
It also said ‘Efforts are continuing to resolve the issue of noise from one area of the property, but other areas do not make noises that can reasonably be considered as a nuisance, we can take enforcement action on. It ends by saying that whilst these efforts are ongoing the landlord feels unable to undertake a review of the complaint.
In its response to this service dated 14 June 2021, the landlord acknowledged there was an outstanding floorboard repair to the upstairs flat which needed to be resolved. It said that the resident’s neighbours needed to facilitate this repair by lifting their carpet to allow access to the floorboards. However, the resident’s neighbours had been unable to facilitate the required access and the pandemic had not helped their situation. The tenants’ guide confirms that floor coverings are the responsibility of the tenant.
On 5 August 2021 the landlord wrote to the resident’s MP about his complaint. It said it ‘cannot undertake works for creaking floor in the bedroom and the kitchen as the works are too extensive.’ Further, these works would be considered an improvement rather than a repair. However, the landlord would repair the loose floorboards in the hallway on 12 August 2021, and it had paid a private contractor to replace the ‘carpet/underlay’ in the hallway area.

Assessment and findings

It is recognised that the situation has been distressing for the resident and has been ongoing for a considerable length of time. It is also acknowledged that he has been having difficulties with his health and this situation is unlikely to have helped matters. The evidence seen by this service shows the situation has also been distressing for other residents in the property.
The Ombudsman is unable to determine whether the noise he is experiencing is excessive. However, we can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.

Scope of repair works

In relation to the scope of the repairs, it is accepted that the resident has provided medical evidence to support his version of events. However, the government guidance shows it is the responsibility of the relevant council to investigate noise which could constitute a statutory nuisance, and it is for the council to determine if the level of noise meets this definition.
The resident’s landlord is his local council and its correspondence with him shows it conducted monitoring of the noise from this perspective. It also shows a statutory noise nuisance has not been established. Since this service has not seen any evidence which contradicts this finding, there is no reason to conclude the council should have treated the matter as an emergency repair or acted on health and safety grounds.
Case law has shown that a landlord cannot be held accountable for noise nuisance that is non-deliberate, for example noise caused by poor sound insulation, because no nuisance arises due to the normal and ordinary use of premises and the landlord is not able to authorise it expressly. Further, it is also established that there is no legal requirement for landlords to retrospectively fit improved sound insulation. Therefore, though the landlord may have identified ‘poor insulation’ there is no legal obligation for the landlord to improve it.
The tenants’ guide confirms that floorboards, which have not been damaged by misuse, are the landlord’s responsibility. So, it was appropriate for the landlord to check that the existing sound proofing, the floor, had not fallen into a state of disrepair. The evidence seen by this service shows that several inspections have taken place in relation to this issue and one inspection included a sound test, conducted in the presence of a surveyor.
Given the above, the information shows the council has acted appropriately by seeking the opinion of qualified professionals and conducting ongoing monitoring of the situation. The evidence shows the most recent inspection, on
16 December 2020, established that only loose floorboards would constitute repairs. During this inspection the landlord’s contractor concluded it would not be possible to resolve other creaking sections of the flooring due to the age of the floorboards. It is noted that the surveyor’s inspection reached similar conclusions around which sections of the flooring would constitute repair.
The resident has said he wants the landlord to complete the same schedule of works to the upstairs flat as was completed to his own prior to his tenancy, and that these works were undertaken following similar complaints from the flat below. For data protection reasons, we are unlikely to be able to request or consider any such evidence as part of this assessment. However, we have not seen any evidence to show that the landlord is obliged to complete additional works beyond its responsibility to repair.
It is noted that the resident is seeking access to the surveyor’s report, or similar information, to give him insight into the landlord’s decision making. We have not seen any information to suggest that a report of this type was created. However, the landlord’s internal notes provide a record of its interactions with its Repairs Contractors. It is clear from these notes that appropriate inspections have been completed by relevant professionals, and that their opinions have shaped the landlord’s response.

Delayed repairs

From the evidence seen by this service, following the surveyor’s inspection on
16 December 2019, it is unclear when the landlord first instructed the identified repairs to take place, or how it categorised the repair. Further, this service has not seen evidence of the landlord’s pre-pandemic repair response timescales. Since its post pandemic guidance only details a minimum response time, this assessment has considered what a reasonable response timescale would look like given the circumstances.
This service has seen limited evidence between16 December 2019 and
27 April 2020. However, the evidence we have seen shows that on
7 February 2020, the resident was told the landlord was awaiting a response to the surveyor’s inspection, which took place 53 days earlier, from the landlord’s approved Repairs Contractor. The landlord is responsible for the actions of its repairer, and it has a responsibility to supervise its activities.
Whilst it is accepted that conditions, for all parties, were changed considerably by the first national lockdown on 16 March 2020, the evidence shows the landlord did not attempt a repair until 30 July 2020. This was 18 days after restrictions were eased. Given the period between the period the surveyor’s inspection of December 2019 and the first national lockdown was exactly three months, it is reasonable to conclude that the landlord had sufficient opportunity to attempt a repair in this period, and that it did not proactively manage its repairer during this time.
However, it is recognised that the landlord’s correspondence confirms it has reminded the resident’s neighbours of their obligation to facilitate the repair and that it has previously set a response deadline to manage the situation. Given the landlord’s Repairs Contractor also issued practical guidance to the upstairs flat, these actions demonstrate that the landlord had been taking various steps to try and resolve the situation.
Given the above, this assessment has considered whether the landlord has taken appropriate steps to manage the issue of the repair by providing support to occupants of the upstairs flat, whilst balancing their needs with those of the resident given a necessary repair, which is causing distress, has been identified. Based on the evidence, it is recognised that, broadly, the landlord has been in ongoing contact with the resident’s neighbours to try and minimise both noise levels and tensions in the property.
It is accepted that the landlord needed to demonstrate flexibility with all parties in the dispute. However, its noted that, as of 14 June 2021, around 18 months after the surveyor’s inspection, the repair remained unresolved. Further, that allowing access for repairs is a standard condition of most tenancy agreements.
Given the above, it is reasonable to conclude that, whilst various efforts were made and both the pandemic and the actions of the resident’s neighbours are beyond the landlord’s control, it should have been more proactive, and resolution focussed in controlling the timeline of the repair. This is particularly the case in the period prior to the first lockdown. Overall, it cannot be fairly concluded that a wait time of around 20 months is reasonable given the evidence does not suggest that the repair itself is particularly complex.

Complaint Handling

In his reply to the landlord’s complaint response, dated 24 November 2020, the resident requested a review of his complaint at stage two of the landlord’s complaints process. At the same time, he also raised concerns about its complaint handling. Specifically, that he had encountered delays of several weeks when dealing with both his complaint handler and his housing officer. Further, he complained about the way the situation was being handled and the fact that, he felt, he was being given inaccurate information.
On18 December 2020, the landlord declined the resident’s request for a review on the basis it felt that reasonable efforts to resolve the situation were ongoing. However, it did not address the additional concerns the resident had raised.
This assessment has considered the landlord’s reply in conjunction with the requirements set out in the Housing Ombudsman Service’s Complaint Handling Code. Section 3.11 of the code shows a stage one decision should be issued within ten working days of a complaint being received. If this is not possible, the complainant should be given an explanation for the delay along with a date by when the stage one response should be received.
The landlord’s internal records show its stage one response was due on
4 November 2020, but it arrived on 18 November 2020 with an acknowledgement, and apology, that it was delayed. This service has not seen evidence the resident was made aware of the delay in line with the requirements of the code.
Section 3.14 of the code sets out the following information:
‘Landlords shall address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.’
The landlord’s escalation correspondence shows the above concerns were not addressed. Whilst it is accepted the landlord may not have been able to issue a full stage two response whilst the situation was ongoing, its own complaints policy and procedure document, which is available online, says it will try to deal with dissatisfaction before a complaint goes to stage two. Given the stage one response recognised a delay and accepted communication with the resident had not met the required standard, it would have been appropriate for the landlord to engage with the resident’s concerns, at this stage, in line with both the code and its own policy.
The landlord’s internal notes confirm it had apologised to the resident via email for delays in responding to his enquiries on several occasions. Overall, the landlord’s delays at stage one and failure to either respond to all the issues, or escalate the complaint were not appropriate and represent a service failure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of delays to its instructed repairs.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling.

Reasons

The is no evidence to show that the resident’s flat has been deemed unsuitable on health and safety grounds by a professional qualified to make such a decision. Further, there is no evidence to show the repairs the landlord has instructed are inappropriate given the circumstances of the case.
However, the landlord did not resolve a repair it identified as necessary within a reasonable timeframe, and this has impacted the resident. Whilst there have been factors beyond the landlord’s control, it bears partial responsibility for the delays, particularly in the period between the surveyor’s inspection and the first national lockdown.
The landlord has demonstrated failures in its complaints handling process in relation to keeping to the resident informed and issuing appropriate response letters in reply to the resident’s concerns.

Orders and recommendations

Orders

The Ombudsman orders the landlord to:
a. Pay the resident the resident a total of £300 in compensation comprising:
1. £200 for the distress and inconvenience caused to the resident by delays, and the failure to respond, to the instructed repairs
2. £100 for the distress and inconvenience caused to the resident by the highlighted complaint handling failures

Recommendations

The landlord to review its complaint handling policy in conjunction with the complaint handling code and provide staff training where necessary
The landlord should confirm its intentions regarding these recommendations to this service within four weeks of the date of this report.