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Kirklees Council (202009737)

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REPORT

COMPLAINT 202009737

Kirklees Council

31 January 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 response to the resident’s reports about noise disturbance from a neighbour.
  2. The landlord’s complaints handling has also been investigated.

Background and summary of events

Background

  1. The resident is a secure tenant of the landlord (a Local Authority) at the property, a first floor flat. The landlord also owns the tenanted ground floor flat beneath the property, about which the resident’s complaint pertains. The evidence available to this investigation confirms that the tenant of the ground floor flat (‘the neighbour’) is wheelchair bound and has laminate flooring throughout his flat.
  2. At the time that the complaint progressed through the landlord’s complaints process, its housing management activities were handled by an Arms Length Management Organisation (ALMO). This arrangement ended in April 2021, shortly after the end of the complaints process under investigation, with the landlord taking housing management responsibilities back in house. For the purposes of this investigation, the ALMO’s actions and responses have been taken to represent the landlord’s actions throughout.
  3. The ALMO’s complaints process was not available for this investigation, with the landlord providing its complaints process for its environmental health service to the Ombudsman as part of the evidence it provided. The Local Authority’s published complaints process lists a four stage complaints process, with stage one responses required within 6 working days, stage two responses within 15 working days and stage three responses within 20 working days (at each stage, the landlord to confirm to the complainant if additional time is required). Stage four is detailed as progression to the Ombudsman.
  4. The landlord has provided evidence in relation to how its environmental health team (‘the EH team’) responded to the noise issues reported by the resident. Whilst this evidence has been referenced in detail below, the Ombudsman’s role does not extend to investigating a Local Authority’s response to reports about potential statutory noise nuisance as this would be an issue that would come within the remit of the Local Government and Social Care Ombudsman (LGSCO). This Service will look at a complaint relating to a Local Authority only in the context of how it responded as a landlord (in relation to its housing management activities) to the issue under investigation.
  5. The notes from the EH team’s visits to the property confirm discussions it had with the resident whereby she detailed that she has significant hearing issues, including tinnitus. When the landlord responded to the Ombudsman’s evidence request, it confirmed that it had no vulnerabilities recorded on file for the resident.
  6. The tenancy agreement confirms resident responsibility to ensure neither they, nor any visitors, act in such a way to cause nuisance of harassment to other residents. The ALMO’s anti-social behaviour (ASB) policy outlines the options available for responding to reports of ASB, including offering mediation to affected parties, issuing warnings and acceptable behaviour contracts and taking possession action through the courts where sufficient evidence is obtained.

Summary of events

  1. The resident reported her concerns about her downstairs neighbour to the EH team on 27 March 2020. This included her belief that the neighbour was ‘rude’ and ‘inconsiderate’ and included a diary she kept between 19 and 23 March which listed multiple instances of noise disturbance. The resident said that the noise issues were impacting upon her health, she also confirmed that she had gone to stay with a family member in order to have some ’peace and quiet’. It is not known whether the EH team passed this information to the ALMO at this time.
  2. There is evidence that the EH team visited the property on 8 July 2020, during which the EH team did not witness noise despite the resident stating that the noise was ongoing at that time. The notes from the visit also state that the resident confirmed that she had a hearing impairment and tinnitus. Following the EH team visit, it emailed the ALMO (9 July 2020) confirming the outcome of its visit and asking the resident’s housing officer to contact for an update, the ALMO responded on the same day to say that no housing officer was in place at that point and that it would add the EH team’s contact to the case file.
  3. A letter from the ALMO to the resident dated 15 September 2020 confirmed that it had instructed a gas engineer to investigate the resident’s reports about noise emanating from the neighbour’s boiler, with no such noise having been identified during the engineer’s visit. The ALMO also confirmed that the EH team had investigated the resident’s reports about the laminate flooring, with no noise having been identified. The ALMO confirmed that it had ended its investigation, with no evidence of the neighbour having breached his tenancy conditions.
  4. This Service has been provided with details of a complaint that the resident registered with the Parliamentary Ombudsman on 2 November 2020 in relation to the noise disturbance issues she was experiencing at the property. It is not known what outcome resulted from this referral.
  5. The landlord wrote to the resident on 11 November 2020. It confirmed that it had previously investigated her reports of noise disturbance from the neighbour, with no evidence of a tenancy breach. It also said that it had received reports of the resident having complained directly to the neighbour on this issue, including sending ‘threatening text messages’ and that ‘such allegations could be deemed as harassment and verbal abuse’. The landlord detailed the relevant sections of the tenancy agreement that outlined tenant responsibility to refrain from unacceptable behaviour and said that it might consider legal action should a breach of the tenancy be identified.
  6. The resident complained directly to the EH team on 12 November 2020. The EH team notes from its investigation confirm that it attended the property on 19 November as the resident had confirmed that the noise was ‘at its worst’ prior to the visit. During the visit, the two EH officers had not heard anything, despite the resident saying that the noise was occurring at that point. The notes detail medication that the resident was taking at that time, which, in the opinion of one of the officers, might be contributing to the resident’s auditory experience. The resident was encouraged to speak to her GP so that her medication could be reviewed. The notes from the meeting also confirm that another tenant was interviewed; this tenant had been asked by the resident to witness the noise. When the EH team spoke with this tenant, he said that he had heard a ‘faint noise’ when in the resident’s property.
  7. The EH team confirmed the above information to the resident on 27 November 2020. It confirmed that it had attended on both 2 and 8 July, and had also attended on 19 November and that it had not witnessed noise on each occasion. The EH team referenced its concerns that the resident’s hearing could be contributing to the issues she had experienced and encouraged her to visit her doctor for further advice. This response was sent as a stage one response under the Local Authority complaints process.
  8. A further EH visit took place on 7 December 2020. As with the July 2020 visit, the EH team attending were unable to hear the ‘loud electrical style humming noise’ that the resident reported as ongoing at that time. The resident said that this noise related to the neighbour’s laminate flooring as it had commenced on 15 February 2020, the same date that he had installed the flooring. She also raised her concerns about the neighbour’s heating system, which caused her noise disturbance each evening when switched on. The EH team offered advice in relation to the noise, including signposting her towards an audiologist. It also confirmed to the resident at the time that it was unable to take any formal action on the case as it had not witnessed any noise. The notes from this visit confirm that, by this stage, 7 different EH team staff had attended the property to witness potential noise disturbance, with none hearing anything.
  9. During a telephone call with the Ombudsman on 20 January 2021, the resident said that the noise from the neighbour had started in February 2020 when he had laid laminate flooring and that she had been unable to use her bedroom from this point as a result. She said the neighbour had a lot of electrical equipment (including a hospital bed) that disturbed her and expressed her concern that the landlord was not prepared to visit to assess the situation. She said that she wanted soundproofing to be installed between the properties and that she had complained to the landlord with no response.
  10. The landlord sent its final response to the resident on 4 February 2021. This response was confirmed as relating to the resident’s dissatisfaction with the way her noise reports had been handled, both in respect of the ALMO’s response and in relation to the response from its EH team.
  11. Regarding the resident’s reports about sound proofing, the landlord confirmed that there were no specific regulations relating to the installation of laminate flooring, though it acknowledged that the resident should not be expected to accept unreasonable noise levels. The landlord confirmed that the EH team had visited on multiple occasions but had not witnessed the reported noise. It confirmed that reasonable attempts had been made to identify whether there was a noise disturbance issue, but that no evidence of a statutory nuisance had been identified and no further action would be taken by the EH team. It also signposted the resident to further assistance in the event that she wished to take her own action, reflecting the information available on its website in relation to noise nuisance.
  12. On 8 April 2021, following Ombudsman contact, the landlord wrote to the resident stating that, whilst it had record of an ASB case, there was no record of a formal complaint. It encouraged the resident to set out her main concerns if she wished to progress down its complaints process. On 24 May, the landlord sent an email to the Ombudsman stating that the ASB case had been closed in September 2020 with no further action required and that no existing complaint had been identified.
  13. Upon providing the Ombudsman with information relevant to the complaint (10 June 2021), the landlord confirmed that one of its housing officers had suggested to the neighbour that he lay down rugs on top of the laminate flooring in order to mitigate the impact of the noise from his wheelchair. The housing officer had then initially offered some new carpets to the neighbour but had not progressed this due to covid risks. The housing officer had also encouraged the resident to discuss her concerns with the neighbour, but that she had continued to complain. It also explained that mediation had not been attempted at the time as covid restrictions had stopped this service being offered temporarily.

Assessment and findings

Scope of investigation

  1. The move taken by the Local Authority to bring its housing management activities back in house, in April 2020, has clearly impacted upon its service delivery in this instance. In its correspondence with this Service prior to investigation, the landlord stated that it had no record of a formal complaint on the case, with a letter sent to the resident (April 2021) explaining this and requesting that she submit such a complaint for its consideration. However, the wording of the final response (February 2021) clearly indicates that a complaint was received by both the EH team and the ALMO in relation to the resident’s concerns about how it had responded to her reports of noise disturbance. As such, the Ombudsman is satisfied that a formal complaint was submitted, a final response sent, and that this investigation should therefore proceed based upon the information available.

Noise reports

  1. The landlord has confirmed that an ASB case was opened (presumably by the ALMO, who had housing management responsibility at that point), which seemingly ran concurrently with the EH team investigation following the resident’s reports in March 2020. The evidence available to this investigation however relates, in the main, to the EH team investigation, which sits outside the remit of this investigation. It is therefore not clear to what extent the ALMO investigated the ASB case up to the point it closed the case in September 2020.
  2. It is evident that the ALMO instructed a gas engineer to attend the neighbour’s property to look into the resident’s reports about the noise emanating from the neighbour’s boiler (with no noise identified). It is also clear from the information provided to the Ombudsman in June 2021 that a housing officer took steps to resolve the case by discussing adding rugs to the neighbour’s laminate flooring – though there are no contemporaneous records of these actions and the dates that this occurred were not clear.
  3. In addition, it is clear that the ALMO liaised with the EH team and that it corresponded with the resident, confirming that no statutory noise disturbance had been witnessed and that the case would be closed. A warning letter was sent to the resident in November 2020 as there were concerns about her interactions with the neighbour. The final response of February 2021 also included a response to the resident’s questions about laminate flooring, confirming that there was nothing to prevent the neighbour having this fitted. The landlord has also confirmed to the Ombudsman that it was unable to attempt mediation on this case as Covid restrictions in place at the time meant that this service was temporarily suspended.
  4. Whilst the above actions are consistent with what the Ombudsman might expect to see in cases involving noise disturbance, the lack of records means that there remain concerns about whether the landlord progressed through an appropriate ASB process in the resident’s case. The Ombudsman would expect to see evidence of a risk assessment, an action plan and then confirmation as to how this plan progressed over a reasonable timeframe. In the absence of such information, there is concern that the resident’s reports have not been handled appropriately.
  5. In addition, it is of concern that information relating to the resident’s potential vulnerability has not been recorded on her casefile. Information contained within the EH team reports allude to some significant hearing issues that might well be contributing to the resident’s difficulties at the property. However, the landlord’s response to the Ombudsman’s information request did not detail any listed vulnerabilities on the resident’s casefile. It is therefore not known if the landlord (or ALMO at the time of the complaint) was aware of the resident’s situation, and if so, whether it took her circumstances into account in the management of the issue under investigation.
  6. Given all the circumstances of the case, a finding of maladministration is considered appropriate on the basis that the Ombudsman is not satisfied that the ALMO (acting on behalf of the landlord at the time of the complaint) progressed through an appropriate ASB process. Whilst the evidence available points towards reasonable actions at resolving the resident’s noise reports, there is no indication of how these actions progressed in conjunction with a coordinated action plan. The EH team evidence suggests a concern with the resident’s health that might be impacting upon the resident’s noise difficulties, and it is not clear whether the landlord is aware of such issues and if so, whether it has satisfied itself that this was accounted for in the final response. In the circumstances, a compensation order, plus a further order to contact the resident and open a new ASB case if she still remains affected by these issues, is considered appropriate.

Complaints Handling

  1. There are significant concerns that the landlord (through the ALMO at the time the complaint was submitted) did not follow an appropriate complaints process. The final response of February 2021 indicated that the complaint had been submitted to both the ALMO and the EH team, however, there is no evidence of formal responses having been sent at earlier stages of the corporate complaints process and insufficient detail as to what had been complained about, thus making it difficult to ascertain whether the final response addressed issues that had been raised as part of the complaint.
  2. It is essential that a Local Authority, when bringing housing management services back in house, take steps to ensure that complaints are managed appropriately during any transition phase. In this case, the landlord was unable to identify that the ALMO had received and responded to a complaint, which then became its responsibility following the corporate structure change.
  3. Effective liaison between a Local Authority’s EH team, and its housing team acting in its capacity as a landlord, are essential aspects of a Local Authority’s overall service delivery. Whilst there is evidence of some effective liaison between the two departments on this case, it is also evident that there might be more that could have been done to support the resident, from a housing management perspective, in light of her reports of noise nuisance. This would include ensuring a contemporaneous and robust system of record keeping is maintained on all cases.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s response to the resident’s reports about noise disturbance.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure with the landlord’s complaints handling.

Reasons

  1. Whilst there was evidence of the ALMO taking reasonable steps to address the resident’s noise reports, it was not clear that it took such steps whilst progressing down an appropriate ASB case management process. In addition, there are concerns that the resident’s vulnerability was not taken into consideration in a suitable manner in the ALMO’s response to these issues.
  2. The landlord has not demonstrated that an appropriate complaints process was followed in this instance, nor that an appropriate set of records detailing the ALMO’s response to the issues were retained.

Orders and recommendations

Orders

  1. Within four weeks, the landlord to:

a)     Pay the resident compensation of £300 (£200 in relation to the service failures relating to its handling of her noise reports, plus £100 in relation to service failures relating to its complaints handling).

b)     Contact the resident, discuss any ongoing concerns with her about noise disturbance, including how her health might impact upon the situation. If required, to then open a new ASB case, including consideration to re-offering a mediation service.