Lambeth Council (202010354)

REPORT

COMPLAINT 202010354

Lambeth Council

24 November 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 resident has complained about the landlord’s investigation of and response to his:
1. reports of being disturbed by impact noise from the flat above because of uncovered wooden or laminate flooring.
2. reports about his neighbour’s threatening behaviour and barking dogs.

Background and summary of events

Policies and Procedures

The resident has noted that in the Tenant’s Handbook dated 2012 the following is stated in respect of “Installing Floor Coverings”:
1. “Wooden or laminate floors can make homes noisy and can result in complaints from your neighbours about noise nuisance. Normally, we will not grant permission for you to fit laminate flooring or sanded floorboards in your home, unless:
  1. You live on the ground floor.
  2. No-one lives beneath you.
2. If you already have wooden or laminate floors, they can remain as long as we receive no complaints about noise. However, if a neighbour does complain, you will have to try to reduce the noise, for example by laying a rug, carpet, or good quality underlay. If complaints persist, as a last resort we may ask you to remove the flooring.
3. Certain floorings can make some medical conditions worse. If this applies to you and you want to fit an alternative type of flooring, contact us on …”
The landlord’s current Tenants Handbook contains the same information on installing floor coverings. The guidance in the Tenants Handbook reflects the landlord’s model Tenancy Agreement as provide to this Service which states:
1. “Any existing laminate flooring and sanded floorboards can remain only if there are no complaints from the neighbours or a nuisance to others living in adjacent properties. If there are complaints then we would have to ask you to remove the floor covering in the Property or take measures to minimise noise being transmitted to adjacent properties.
2. The Council recognises that there may be circumstances where carpet and additives in alternative floor coverings may exacerbate some health conditions.”
With regards to the keeping of dogs, the Tenants Handbook states that “we will refuse permission if we think your pet will cause a nuisance or be a danger to other residents. We can withdraw our permission for you to keep domestic pets at any time, so it is important to be a responsible owner.”
The landlord’s Anti-Social Behaviour Policy states that “Examples of Anti-Social Behaviour include but are not limited to:
1. Neighbour problems – these are disputes which can happen between two neighbours and cover complaints about noise; verbal abuse; boundary disputes; harassment and intimidation; nuisance children; car repairs; damage to property, and barking dogs.”
The ASB policy states that landlord’s policy is to use a range of prevention measures as appropriate. The policy confirms that reports of ASB should be investigated and that “no case should be closed until it has been thoroughly investigated”.
The policy lists a range of enforcement action including:
1. “To take no action
2. To take informal action e.g. offering advice and guidance; verbal warnings and requests for action; sending a letter; and / or referral to mediation.”
The landlord has advised this Service that its Housing Management Complaints Policy (rebranded March 2016) was in effect at the time of the resident’s complaint and this states that if a complaint cannot be resolved straight away, it follows a two-stage complaints procedure.
1. At the Local Resolution Stage, the procedure states “our response will normally be provided within 20 working days but, should more time be required, we will explain to the complainant how long we think it will take before we can respond. Where a response is provided by telephone or in person, the outcome will subsequently be confirmed in writing.”
2. With regards to the Review Stage, the procedure states “requests for a review should be made in writing within 20 days of receiving a Local Resolution outcome – if more time is required the complainant should contact us. The Review will not normally address new issues that were not previously raised at the Review stage. The outcome of the Review will represent our final response on the matter and the … will not enter into any further correspondence or discussion on the complaint.”
The timescales in the landlord’s policy do not reflect the timescales in the Ombudsman’s Complaint Handling Code. However, the landlord operates complaint handling processes which cover a range of services, and has confirmed through its Complaint Handling Code self-assessment that it now aims to respond to housing complaints within overarching corporate timescales. It is also noted that the Corporate Complaints Procedure differs to the Housing Management Complaints Policy which it has now superseded, insofar as it stipulates 25 days for response at the Review stage.

Summary of Events

The resident’s property is a first-floor flat.
On 15 May 2015 the landlord wrote to the resident advising of its investigation into his reports of noise from the flat above at that time. In response to the resident stating that the landlord had not enforced the terms of the tenancy agreement in respect of laminate flooring, it noted: “Section 14.3 of the tenancy agreement this can be found on page 10 of the enclosed booklet. This states and I quote, “Any Existing laminate flooring and sanded floorboards can remain only if there are no complaints from neighbours or a nuisance to others living in adjacent properties. If there are complaints then we would have to ask you to remove the floor covering in the property or to take measures to minimise noise being transmitted to adjacent properties.” The landlord stated it considered that the neighbour was taking reasonable measures to minimise noise nuisance.
On 20 May 2016, the landlord wrote to the resident’s MP advising that a member of staff had visited the neighbour and saw that the neighbour had laid down carpets in the property including additional soundproofing foam and heavy-duty underlay. The landlord advised that carpets were installed in all rooms except for the kitchen, bathroom and one bedroom, due to medical issues, as confirmed by doctors and verified by its staff members. The landlord further noted that it had visited the resident’s property three times to assess the impact on him but had not managed to gain access. The landlord confirmed that it would not be taking further tenancy enforcement action as the neighbour had co-operated to find a solution to the issue.
On 17 November 2020 the landlord opened a new ASB case after the resident contacted it stating that the neighbour did not have carpet in his flat and regularly caused noise nuisance. The resident also provided a crime reference number from January 2016. The landlord spoke further to the resident and his representative on 1 and 2 December 2020, who advised that the issue had been long-standing and they considered the landlord had not done anything.
The landlord spoke to the neighbour who confirmed that he had received a recent letter sent to him by the landlord. The neighbour confirmed that carpet had been laid in the property except in one bedroom, the kitchen and bathroom, and that there were rugs in the hallway. The landlord spoke further to the resident’s representative on 8 and 16 December 2020 advising of the previous investigation into reports of noise. The representative requested a written response.
On 8 December 2020 the landlord wrote to the resident advising that it had written to the neighbour to notify him it had received a report of noise. The landlord enclosed diary sheets asking the resident to provide specific details of noise within the next two weeks which it could then speak to the neighbour about. The landlord also offered the resident the option of participating in mediation with the neighbour.
On 24 December 2020 the landlord wrote to the resident stating that it had not yet concluded its investigation as it had not carried out an inspection of the neighbour’s property or installed noise equipment to gather the evidence of alleged noise. However, under the government’s Covid-19 guidelines, London was in Tier 4 of local restrictions and staff were not permitted to visit any property or install noise equipment. The landlord also noted that the resident had not returned diary sheets and requested that he do so.
The landlord has provided evidence to this Service that it sought further information from the police which confirmed that there was not “enough evidence to carry out further duties”.
On 14 January 2021, the landlord sent a response to the resident at the Local Resolution stage of its complaint procedure. It summarised the background to the resident’s case and detailed the contact between the resident, his representative and the landlord since the opening of the case on 17 November 2020. The landlord reiterated that the Tenancy Enforcement Team was unable to carry out any visits to properties or install noise equipment to gather evidence due the Government guidelines on the Covid-19 pandemic to protect residents and staff. Additionally, it was unable to visit to inspect the flooring in the resident’s home to check its current adequacy.
The landlord concluded that based on the history of the case, it did not agree that it had not taken action to investigate and resolve the noise and behaviour issues reported by the resident; however, it apologised for the inconvenience caused by being unable to resolve the most recent reports due to the Covid-19 pandemic.
On 18 January 2021, having been contacted and sent a complaint form by the resident’s representative, this Service wrote to the landlord advising that the resident wished to complain about the landlord’s handling of impact noise due to uncovered wooden or laminate flooring and about its handling of his reports of his neighbour’s threatening behaviour. This Service also sent a copy of the resident’s complaint form in which he also stated that the neighbour had a barking dog which he wanted to be removed.
On 1 March 2021 the landlord sent the response at the Review Stage of its complaint procedure. It stated that:
1. It had confirmed all rooms had been carpeted except for the bathroom, kitchen and one bedroom due to a verified medical condition. It could confirm whether the carpets had been removed after the lifting of Covid-19 restrictions.
2. The latest information received did not include incidents of dogs barking and threatening behaviour from the neighbour. However, the resident could email the Tenancy Enforcement Team to provide the dates and details of the incidents.

Assessment and findings

The resident’s reports of being disturbed by impact noise from the flat above because of uncovered wooden or laminate flooring

The resident has periodically reported impact noise from the flat above caused by the neighbour having uncovered wooden or laminate flooring. He has complained that the landlord should prevent the impact noise by asking for the removal of wooden or laminate flooring. Whilst under the tenancy agreement and Tenants Handbook the landlord would not usually give permission for wooden or laminate flooring, it has discretion in the matter. Moreover, if a neighbour does complain about noise, the tenancy agreement and the Handbook provides that the landlord will only ask for the flooring to be removed as a last resort, and that it will explore measures to reduce the noise in the first instance, such as by laying rugs and carpets. This is in line with the landlord’s preventative approach to dealing with ASB as outlined in the policy.
The landlord, according to its correspondence with the MP in 2016, established that the neighbour had laid carpets in his property. It thereby took steps to reduce impact noise and to resolve the resident’s concerns about the noise. Although carpet was not laid in one bedroom, the tenancy agreement and Tenants Handbook also confirm that wooden or laminate flooring can be permitted on medical grounds. The landlord confirmed that there were established medical reasons for carpet not to be laid in that room thereby providing an explanation and good reason for permitting that carpeted area.
Upon receiving reports of alleged ASB a landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has obtained evidence of the ASB and established the facts. After obtaining the evidence, the landlord will be in a position to meet its responsibility to ensure that it takes appropriate and proportionate action to address and resolve reported ASB. In this regard, it was appropriate that the landlord when establishing that the neighbour had laid carpets, also sought to witness any noise in the resident’s property. However, according to the response to the MP it was unable to gain access.
There is no evidence that the resident made further reports of noise to the landlord until November 2020. As the landlord did not receive notification that noise remained a significant ongoing problem for the resident, it was reasonable that it took no further action in respect of noise during this period. After receiving the resident’s report of November 2020, the landlord then took a number of steps that were appropriate and in line with its ASB policy. It also notified the neighbour of the resident’s report which was appropriate because on receipt of a complaint of ASB, an alleged perpetrator must be given an opportunity to be made aware of it, to respond and where relevant, a chance to put things right. It suggested that the resident engage in mediation which was appropriate as mediation is an established option for resolving low-level neighbour disputes, particularly over lifestyle matters. Mediation allows both parties to understand each other’s point of view and arrive at a mutually agreed solution which can be formalised by the mediator.
It was also appropriate that the landlord asked the resident to complete diary sheets as these allow the landlord to assess the type, location (within the resident’s property in this case), frequency, duration, and effect of alleged noise and ASB. This in turn can inform what, if any, further action the landlord should take. It was particularly important that the resident complete diary sheets as, generally, everyday household noise is not considered to be a statutory nuisance and is expected to be tolerated unless there is sufficiently strong evidence the noise is excessive. There is no evidence that the resident returned diary sheets to the landlord and, taken together with the lack of corroborative evidence from the police, it was reasonable that the landlord took no further action.
The landlord in its complaint response advised that it wished to carry out further investigations, in particular, to inspect the neighbour’s property and install noise monitoring equipment. These steps were appropriate as an inspection would allow the landlord to confirm whether the carpet and underlay were still in situ. Also, noise monitoring equipment provides objective data on the level, frequency, and duration of noise.
There was good reason for the landlord not taking these steps as at the time the resident made his report of November 2020, the country was under the second national lockdown of the Covid-19 pandemic. Shortly after, London entered Tier 4 which had significant restrictions. In the new year, the country entered the third national lockdown of the pandemic. The landlord advised the resident that it could not carry out these further investigations, which required it to attend his and his neighbour’s property, due to the Covid-19 pandemic, thereby managing his expectations. However, it advised it would take these steps after restrictions had been lifted, but it is not clear that it has since done so. This Service therefore makes a recommendation on this issue.

The resident’s reports about his neighbour’s threatening behaviour and barking dogs

With regards to the resident’s complaint about the landlord’s handling of his reports of threatening behaviour, there is no evidence that the resident made recent reports to the landlord. He provided a crime reference number from January 2016; however, this related to an incident nearly 5 years previously and therefore was not an incident that the landlord could reasonably be expected to investigate. It nonetheless asked the police for further information. The police provided no corroboration of any threatening behaviour from the neighbour and taken together with the absence of recent specific reports from the resident of threatening behaviour, it was reasonable that the landlord took no further action on this issue.
The landlord received confirmation of the resident’s allegation of threatening behaviour against him when this Service sent his completed complaint form. Having received this notification, it was appropriate that the landlord asked him, in its review response, to provide further details as this will allow it to investigate further.
With regards to the resident’s complaint about the landlord’s handling of his reports of barking dogs, again there is no evidence that the resident reported this to the landlord. The landlord received notification of the resident’s concerns about barking dogs when this Service sent it the resident’s completed complaint form. Having received this notification, it was appropriate that the landlord asked the resident to provide further details as this will allow it to investigate further and decide whether to refuse or withdraw permission for the dog/s.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s reports of being disturbed by impact noise from the from the flat above his because of uncovered wooden or laminate flooring.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s reports about his neighbour’s threatening behaviour and barking dogs.

Reasons

In 2016 the landlord established that the neighbour had laid carpets in his property. It thereby took steps at this time to reduce impact noise and to resolve the resident’s concerns about the noise. Although carpet was not laid in one room the landlord provided an explanation and good reason for this.
After receiving the resident’s report of November 2020, the landlord took a number of steps that were appropriate and in line with its ASB policy. It notified the neighbour of the resident’s new report, suggested that the resident engage in mediation and asked the resident to complete diary sheets.
Although the landlord wished to carry out further investigations, in particular, to inspect the neighbour’s property and install noise monitoring equipment, there was good reason for it not to do so at that time. The landlord advised the resident that it could not carry out these further investigations due to the Covid-19 pandemic, thereby managing his expectations.
With regards to alleged threatening behaviour by his neighbour and a barking dog, there is no evidence that the resident made recent reports of such incidents to the landlord. Having received notification from this Service that the resident wished to complain about threatening behaviour and a barking dog, it was appropriate that the landlord asked the resident, in its review response, to provide further details as this will allow it to investigate further.

Recommendations

It is recommended that the landlord makes arrangements to install noise monitoring equipment in the resident’s property and to inspect the neighbour’s property, if it has not already done so. If there is a waiting list for the noise monitoring equipment, it is recommended that it provides the resident with a timeframe for installation.
It is also recommended that the landlord confirms to the resident whether it requires diary sheets or any other further information from him about alleged noise and ASB.