Clarion Housing Association Limited (202000800)

REPORT

COMPLAINT 202000800

Clarion Housing Association Limited

16 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

1. The complaint is about the landlord’s response to reports of noise transference from a neighbouring property.

Background and summary of events

2. The resident has said that she telephoned the landlord in August 2019, asking if it could inspect her neighbour’s flooring, as she suspected that it was wooden and was exacerbating noise transference. She has said that she was advised by the landlord that a tenant would need to ask permission to install wooden flooring. She submits that there were several further calls about the issue up to November 2019 but nothing came of it and, despite chasing the landlord, it was never able to provide her with any answers or updates. No evidence of these emails or calls has been provided to this investigation.
3. On 17 February 2020 the resident emailed the landlord at 23:49 reporting that there had been an excessive level of noise by way of shouting, running and talking. She said she had been reporting this since August 2019 but was getting no response. She wanted the neighbour to remove their wooden flooring which she believed was exacerbating the level of noise she could hear.
4. In the absence of a response, the resident chased the landlord on 1 and 17 March 2020 and reported the noise of a child “whining” and banging from the neighbouring property. She sent further emails on 20, 24 and 25 March 2020, attaching recordings of the noise and reporting singing, praying, shouting, talking, laughing and running.
5. The resident has stated that, on an unknown date in March 2020, the landlord opened an ASB case regarding the issue and said that it would provide a final response which she could then take to the Ombudsman, but no such response was received. The resident continued to email the landlord about the matter but received no response.
6. The landlord has accepted that, from May 2020, there were at least ten incidents of noise nuisance reported by the resident.
7. On 7 May 2020 the resident made a formal complaint to the landlord about receiving no response to her reports of noise transference from the neighbouring property, which she believed was due to the wooden floor that had been laid in it.  She explained her frustration, setting out the chronology of events and saying that she had since bumped into her neighbour who advised that the landlord had contacted her about her complaint. The resident asked why she had not been contacted with an update or outcome, considering that the landlord had already discussed the matter with the neighbour. The resident felt that the landlord had let her struggle with the noise, giving her no outcome, and wanted to know if the neighbour would need to remove the wooden floor.
8. The landlord discussed the issues with the resident on 12 May 2020, when the resident reiterated that she had been reporting issues with the noise transference caused from her neighbour having wooden flooring but had not had an update on the landlord’s investigations into this.
9. In the landlord’s Stage 1 response of 20 May 2020, it advised that there had been no tenancy breach, but an ASB case had been raised and it would pass the matter over to its ‘Tenancy Specialist Team’ who would contact her to discuss the matter by 22 May 2020. However, no contact was made by the landlord and, despite the resident contacting it for updates on numerous occasions, no update was received. 
10. Confusingly, on the same date, the landlord contacted the resident to discuss the issues. During this call, the noise reported (television, talking, praying, children moving, visiting the toilet and loud music) was deemed to amount to normal household noise, although the landlord agreed to visit the neighbouring property to inspect the flooring and to put the resident on the waiting list for noise monitoring equipment.
11. The landlord sent the resident an action plan in respect of this, explaining that it was investigating matters in accordance with its ASB procedure and that it would visit the neighbours after the national lockdown restrictions had lifted. It asked the resident to refrain from knocking on the neighbour’s door or ceiling or from throwing pebbles and asked her to report issues on a bi-weekly basis.
12. On an unknown date, the resident requested escalation of the complaint as she did not feel it had been answered at Stage 1 or understand what, if any, next steps would take place. She had not heard from the landlord again, despite trying to contact it. The outcome she was seeking was for her neighbours to remove the wooden flooring.
13. An inspection of the neighbouring property took place on 16 July 2020, when it was established that there was wooden flooring which the resident explained was due to health reasons, although she had not asked permission for this to be laid.
14. The resident continued to report issues with noise and the landlord wrote to her on 17 June 2020 stating that it could not investigate every incident of noise nuisance reported. However, if it happened again, she should record the details and telephone it. It also recommended that the resident speak to the neighbour if she had not done so already, as the neighbour may not realise they were making a noise. The landlord then sent this same letter to the resident on 9, 13 and 25 July 2020.
15. On 24 August 2020 the landlord telephoned the resident to advise that it had inspected the neighbouring property and confirmed that there was wooden floor in place. It said that it would now need to establish whether permission had been sought in order to determine next steps and this may take time because of Covid-19. In the absence of a further response from the landlord, the resident chased it on 23 October 2020.
16. On 26 October 2020 the landlord visited the neighbour again and asked her to lay rugs in the property (although the bedroom and living room were excluded for health reasons). It also established that the individual wore soft slippers around the property.
17. Following contact from this Service, on 24 November 2020, the landlord contacted the resident asking her to clarify her reasons for escalation. She responded the same day reiterating her reasons and concerns, referring to the lack of contact and update she had received from the landlord and the passage of time since receiving the Stage 1 response. As an outcome to her complaint, she wanted her neighbours to remove the wooden flooring in order to minimise the noise.
18. On 2 December 2020 the landlord wrote to the resident advising that it would provide a response within 10 working days, although there may be a delay due to experiencing higher levels of complaints than normal and it apologised in advance if this was the case. Confusingly again, on the same date, an email was sent by the landlord, advising that it would respond to the complaint within 20 working days.
19. In the landlord’s Stage 2 response of 12 January 2021 (incorrectly dated 2020), it partially upheld the complaint. It was upheld in respect of the landlord’s communication and poor service (including its Stage 1 response not fully addressing the complaint) and for the delay in the Stage 2 response being issued. It offered £100 and £50 compensation in recognition of these failures respectively.
20. The complaint was not upheld in respect of the substantive matter of noise transference and the landlord’s handling of reports of that. It explained that not every issue of alleged ASB (in this case noise transference) meets its threshold for investigation and the initial noise reported did not do so in this case. It apologised for the delay in taking the information from its inspection of the wooden flooring forward and explained that, with regards to noise monitoring equipment, there was a waiting list, but it would contact her to arrange this to be installed by the second week of January 2021.
21. The landlord explained that it needed to understand the level of noise to determine next steps and it could not guarantee that the neighbours would be asked to remove the wooden flooring, as this may be a disproportionate step to take and it needed to act proportionately. It would need to understand too, whether permission had been sought for the flooring to be laid and consider other alternative options.
22. A conflicting letter went out to the resident on the same date, stating that the landlord could not currently install sound recording equipment due to government guidelines in respect of the pandemic and it would be in touch once the situation had changed.

Policies and procedures

23. The landlord’s ASB policy states that household noise such as proportionate television or music noise and odours do not constitute ASB and would not be investigated as such unless the behaviour was persistent and deliberate and is found to be causing harm or there is a risk of harm to others.
24. The same policy categorises ASB, with the lowest level of ASB allowing the landlord five working days within which to investigate.  To reach the investigation threshold, a number of incidents must be reported within given periods of time; three incidents in seven days, five incidents in 28 days or two incidents in 28 days by at least two different households.
25. The landlord has a two-stage complaints procedure, whereby the landlord aims to investigate and respond in 10 working days at stage one and 20 working days at stage two.

Assessment and findings

26. In cases of ASB or noise nuisance it is not the role of the Ombudsman to determine whether the noise occurred or whether any noise amounted to a statutory nuisance and/or ASB. It is, instead, the role of the Ombudsman to assess how the landlord responded to the reports made and the subsequent complaint and whether its responses were in accordance with its policies and procedures and appropriate and reasonable in all the circumstances.
27. In this case, the resident was clearly reporting hearing noise from the neighbouring property for a long period of time and became increasingly exasperated at having not received responses and updates from the landlord and no indication of any action having been taken on its part to address the issues. The landlord failed to communicate effectively and manage the resident’s expectations throughout.
28. The communications the landlord did make, were conflicting, confusing and lacking; it confirmed that the matter both was and was not being dealt with as ASB, it both advised the resident not to approach her neighbour and to actively approach her neighbour, and it has explained that she both would and would not receive noise monitoring equipment. Further, when the landlord visited the neighbour, it communicated this after further delay, but then stated that it needed to establish whether permission to lay the floor had been sought, when this had in fact already been clarified.
29. There was a consistent lack of cohesion and joined-upness by the landlord in its approach, which led to months of no action, no updates and no response, both in respect of the reports made and the formal complaint, as well as confusing and conflicting communications.
30. Turning to the noise itself, ordinary living noise does not constitute ASB and it is the nature of living in close proximity to others that ordinary living noise may be heard on a regular basis. Noise such as this includes talking and singing (noises the resident has reported) as well as TV and radio noise although this is with the caveat that it is not excessively loud or done at unsociable times of day. There is no information in this case as to how loud the noise was or whether the noise was at unsociable hours. 
31. While it is the case that there is often a waiting list for noise monitoring equipment to help establish this, the wait in this case to obtain this was excessive and unreasonable. Further, the landlord’s assertion that it could not currently visit the resident to install the equipment was incorrect; it was able to do this providing it took all reasonable precautions in respect of Covid-19.
32. The landlord made no attempt to gain evidence in other ways, such as by suggesting use of the ‘Noise App’ to capture noise (where relevant and available) or providing diary incident sheets, for instance. There is also no evidence of the landlord asking the neighbour about the noise and asking her to be mindful of noise transference, particularly given that wooden floor was installed.
33. To ask the neighbour to uninstall the flooring may be considered disproportionate even in circumstances where permission was not sought, but this does not prevent other actions from taking place, such as the laying of rugs, use of slippers and door closers and asking the neighbour to be mindful of noise, particularly at unsociable hours.
34. At the same time the resident should expect that some noise is inevitable and does not amount to ASB. The amount of reports made, however, did meet the threshold for investigation and it was therefore incorrect for the landlord to state that it did not.
35. In terms of the complaint handling itself, the landlord’s response at Stage 1 did not sufficiently address or resolve the complaint, as recognised by the landlord at Stage 2. It is not clear why the landlord’s Stage 2 response was so significantly delayed and it did not provide an answer to this in its response, although it was appropriate that it recognised this and apologised. Responding to a complaint is a chance for the landlord to demonstrate that it has heard and understood the concerns and an opportunity to take steps to put things right. It is disappointing to see that, even at Stage 2, the landlord sent conflicting information out that very day, with regards to the solution and way forward it proposed.
36. The £150 compensation offered acknowledged the failings in its communication and complaint handling but did not go far enough to recognising the failures or to put things right, with conflicting information being sent the same day and the landlord failing to recognise its lack of cohesion and conflicting messaging throughout and the impact of this on the resident.

Determination (decision)

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

Reasons

38. The landlord did not respond to the reports made in an appropriate and reasonable manner or in accordance with its ASB policy. Its communications were sporadic, poor and contradictory and failed to address the issues or manage the resident’s expectations. Its complaint response at Stage 1 did not adequately address the complaint and its response at Stage 2 was significantly delayed with no reason given or identified learning as to what went wrong or why.

Orders

39. The Ombudsman orders the landlord to:
    1. pay the resident £250 compensation (£150 for the failures identified in its communication, including non-responses, delays and conflicting information and £100 for the failures identified in its complaints handling). If any sum has already been paid to the resident in respect of this complaint, this may be deducted from the above award.
    2. discuss with the resident whether there are ongoing noise transference issues. Where there are, it should put together a detailed action plan, with timescales, sharing this with the resident, and act on it accordingly. Actions may include asking the neighbour to be mindful of noise at unsociable hours and of managing the resident’s expectations in respect of noise transference more generally, as well as installing noise monitoring equipment.

Recommendations

40. The Ombudsman recommends that the landlord should identify learning from the complaint, in particular with respect to the lack of cohesion and joined-upness in its communications.