Hammersmith and Fulham Council (202013981)

REPORT

COMPLAINT 202013981

Hammersmith and Fulham Council

29 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

The complaint is about the landlord’s response to the resident’s reports of noise disturbance from the flat above her.

Background and summary of events

The resident has a secure tenancy with the landlord.
The resident moved into the property in June 2017 and at the time the above flat was owned by a leaseholder. This leaseholder had installed wooden floors in the flat, which the resident says is the cause of the noise disturbance.

Scope of investigation

The resident has said that noise disturbance has been ongoing since the wooden flooring was installed in 2018. The available records show that the landlord dealt with similar complaints from the resident in April and June 2020. It issued a Stage 2 final response to the April 2020 complaint on 8 May 2020 and said that it could not visit the leaseholder due to COVID restrictions but it would write to her about the wooden flooring. It issued a final response to the June 2020 complaint on 1 July 2020 and said that it would carry out a sound test. The Ombudsman notes that the resident did not refer either of these two complaints to this service for investigation. The resident contacted this Service in February 2021 following another complaint that was logged on 7 September 2020 about the noise from the upstairs flat.
This investigation report will therefore consider events from March 2020 onwards (this being six months prior to the September 2020 complaint) on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Housing Ombudsman Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties has been considered.
As such, whilst this report may include some historical events for the purposes of context, the scope of this investigation will be limited to consideration of events from March 2020 onwards up until the final response on 21 October 2020.

Policies, procedures, and agreements

ASB policy and procedure:

This sets out the different types of ASB according to severity with Grade 1 being the most severe, and Grade 3 being least severe. It states that ASB related to ‘noise from wooden flooring’ is deemed to be a ‘Grade 3’.
For Grade 3 cases:
1. Commence Investigation – Within 5 working days of receipt of consent.
2. Update – Within 15 working days of receipt of consent.
3. Monthly contact and Case Review.
The investigating officer is required to draw up an action plan and ‘keep accurate records and record all interviews and action taken in investigating a case on the ASB case management database’. The officer is also required to advise the complainant in writing of their actions and keep them informed of progress on at least a monthly basis.

Summary of events

The landlord dealt with a complaint from the resident in April 2020 about the noise and its final response on 8 May 2020 said:
1. ‘You’ve asked that we carry out an inspection and ask them (the neighbour) to replace their flooring to carpet. Due to current restrictions on movement due to COVID-19 we’ll arrange this once we are able to carry out visits’.
2. In the meanwhile, it said it would speak to the neighbour to determine the exact type of flooring they have and reiterate the terms of the lease to them. This will be followed up with a letter giving them a reasonable deadline to replace the flooring.
The landlord dealt with another complaint in June 2020 and issued its final response on 1 July 2020:
1. I have further discussed your complaint with the Area Manager, who confirms a letter was hand delivered to your neighbour on 5 June 2020. I am advised that a subjective sound test will take place once it is safe again for our staff to visit tenant’s homes. We will visit both yours and neighbours property to carry out the sound test.
On 6 July 2020 the resident emailed the landlord saying that she understood that the flat above had been sold back to the council, and she enquired about what this would mean for her complaint. There is no evidence of the landlord’s response to the resident’s query.
The landlord dealt with a complaint from the resident in July 2020 about the noise and its final response on 31 July 2020 said:
1. It had started the process of investigating the flooring and had confirmed that the neighbour was potentially in breach of her lease if she did not have carpet on their floor. This information was passed to another officer to deal with due to staff changes.
2. A letter was then sent to the neighbour on 1 June 2020 advising that there was a potential breach of the lease. In normal circumstances it said it would have inspected the property in person but due to COVID restrictions it had asked the neighbour to send in photos of the flooring.
3. It accepted that, due to staff changes, it did not follow up on this and it cannot confirm if the neighbour ever responded.
4. It said that it had recruited more staff and the new housing officer would contact the resident to take matters forward. A breach of lease letter would be issued and arrangements will be made to inspect the property and if a breach is identified then the leaseholder will be instructed to put suitable floor coverings (carpet) down.
On 25 August 2020 the resident emailed the landlord saying that as the upstairs flat was now empty, it should take the opportunity to investigate the noise form the footfall above and the noise from the adjoining wall in the hallway.
There is no evidence of the landlord’s response to this request.
A new tenant moved into the upstairs flat in September 2020. The resident has said that the new neighbour told her that she would be keeping the wooden flooring and that the landlord had not told her to remove it.
The resident then made a complaint to the landlord on 7 September 2020. She said that she was concerned about the level of noise that was coming from the property above when it is occupied. She requested that the landlord carry out soundproofing measures.
The landlord issued its Stage 1 complaint response on 29 September 2020:
1. It said that it had spoken with the residents that are moving into the flat above as it had noted the previous concerns and history of noise nuisance. It said that it told the new tenant that it was a requirement to install appropriate flooring once she had moved in. This should minimise the level of noise between the two properties.
2. It said that the new resident was keen to build good neighbourly relations and would work with it to address any noise issues.
3. As for the soundproofing request, it noted that this had previously been done and no planned improvement or upgrade works were due to be carried out in terms of additional soundproofing.
4. In conclusion, it did not uphold the complaint.
On 2 October 2020 the resident asked for the complaint to be escalated. She said that the new neighbour had not installed carpets and she requested that the landlord arrange for an assessment of the noise in addition to laying appropriate flooring in the flat above.
The landlord’s internal emails at this time confirmed that a voids surveyor had monitored the noise and felt that it was not excessive. It was suggested that a building surveyor could attend to carry out another assessment.
It was agreed that the landlord would arrange for a building surveyor to inspect the flooring noise and the density of the internal walls to establish if any noise coming through from the neighbouring property was excessive.
On 14 October 2020 the landlord and a surveyor attended both properties. The subsequent correspondence showed that the surveyor found no structural issues and he heard ‘normal living noises’. It was agreed that the landlord would visit the resident again and confirm the surveyor’s findings.
On 20 October 2020 the resident said she was told by the landlord that it would be speaking to the neighbour again about the flooring.
The landlord issued its Stage 2 response on 21 October 2020:
1. It said that a surveyor had attended to monitor the noise and he concluded that the noise was not excessive.
2. Another surveyor also attended more recently and visited both flats and he concluded that there were no structural issues and he was satisfied that it was only normal living noise that could be heard.
3. It provided the resident with details of the Housing Officers she could liaise with and said that an officer would be visiting her and her neighbour on 23 October 2020 to see if there as anything else that could be done to address the noise issues.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed its procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the actual noise reports or to assess the credibility of the noise reports made by the resident. Our role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
The main area of complaint is with regards to the reports of noise disturbance made by the resident against the neighbour who lives in the flat above. The available evidence shows that the resident has consistently reported that the wooden flooring in the flat upstairs is the cause of the problem. The landlord has acknowledged the resident’s concerns about the flooring, but looking at the available evidence, there are some shortcomings in the landlord’s response to the resident’s reports.
The landlord’s records show that it has dealt with several complaints from the resident about the issue of the noise disturbance. These complaints acknowledged that there was an issue with the flooring in the flat above, and the landlord gave the resident various assurances that this would be investigated further and action taken where necessary.
The landlord has however failed to provide any evidence to demonstrate what actions it had taken following these earlier complaints. For instance, it said that it would carry out a sound test in July 2020, but there is no evidence to show that such a test took place or if it did, what the outcome of this test was.
It is acknowledged that the COVID19 situation may well have impacted on what the landlord could do at that time, and it has said that it was not able to do a site visit in May 2020. However, the updated government guidance issued on 1 June 2020 stated that:
1. Landlords could now ‘take steps to address wider issues of repairs and safety inspections, provided these are undertaken in line with public health advice’.
2. ‘Where workforce is available and resources allow, landlords or contractors are now able to visit most properties to carry out both routine and essential inspections and repairs, as well as any planned internal works’.
As such, as of July 2020, the landlord was in a position to resume routine repairs, and the sound testing could have been conducted at this time. The landlord has not provided any evidence to explain why the sound testing was not carried out despite its clear assurance to the resident that this would be done.
Similarly, the landlord has given the resident repeated assurances that it would be speaking to both, the previous leaseholder, and the current tenant, about the flooring. However, there are no records to show if and when such conversations took place, and what the outcome of these conversations were.
The resident has continued to make further reports and complaints due to the lack of progress with investigating the flooring issue. The landlord rightly acknowledged the failure to follow up on its assurances and despite its promises of further action, the resident had to complain again in September 2020 due to the landlord’s inaction.
The landlord has said that two surveyors have inspected the property and in their opinion the noise is not excessive and was deemed to be general living noise. Whilst the landlord has provided email correspondence mentioning the surveyor’s opinion, it has not provided a copy of either surveyor’s actual findings. Therefore, it is not clear what assessment and/or testing the surveyors carried out. There is also no explanation as to why the wooden flooring was initially accepted by the landlord as being a potential breach of the lease, yet there is no definitive answer from the landlord on the impact of the wooden flooring and/or whether it was a breach of the current neighbour’s tenancy.
A landlord’s record keeping is a crucial aspect of its overall service delivery. Maintaining accurate and contemporaneous records assists a landlord to provide an efficient and timely service and also provide an audit trail of its decision making after the event. In this case, while the landlord has provided email correspondence noting the surveyor’s opinion, it has not provided the actual reports complied by the surveyors. This information would have been useful to demonstrate what the surveyors actually did. In the absence of the formal findings of the surveyor, the landlord’s correspondence shows that it has not taken the resident’s concerns fully into account. The landlord has said that these types of properties are prone to noise transference, which may well be the case, but the landlord has failed to evidence that it carried out a thorough investigation.
The resident has also raised concerns that the lack of action by the landlord is perhaps due to the fact that it has had a lot of staff changes in a short period of time. The landlord has acknowledged this in its complaint responses and has accepted that, at times, actions on the case were not correctly followed up when there had been staff changes. Whilst the Ombudsman cannot comment upon the staffing issues faced by the landlord, the evidence does show that there have been delays on the landlord’s part due to this, in that actions that were promised by one officer were not followed up correctly when the new officer was allocated.
Overall, looking at the facts and the available evidence, the Ombudsman considers that there have been service failures in the landlord’s handling of the noise reports. It has failed to evidence that it has carried out a thorough investigation and it has not kept the resident appropriately informed of developments. This has resulted in avoidable delays and several complaints from the resident.
The Ombudsman’s approach to compensation is based upon our Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our Remedies Guidance which set out the general approach. In this particular case, having considered the available evidence, compensation for distress and inconvenience is warranted for the service failures identified in the landlord’s handling of the noise reports.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of the resident’s reports of noise disturbance.

Reasons

There were shortcomings in the landlord’s responses to the resident’s concerns about the noise disturbance. It failed to properly evidence what actions it had taken to investigate the matter and it did not follow up on its assurances to the resident and failed to keep her updated.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident £250 for the distress and inconvenience caused by the service failures identified with its handling of the noise disturbance reports.
2. The landlord to carry out appropriate sound transference testing to establish the extent of the noise disturbance and advise the resident accordingly of any further action that will be taken.
Evidence of the payment of compensation and confirmation of the sound transference testing to be provided to this Service within four weeks.