London Borough of Hackney (202004219)

REPORT

COMPLAINT 202004219

Hackney Council

15 June 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:
   1. Landlord’s handling of the resident’s reports of noise nuisance from her neighbour.
   2. Landlord’s record keeping and complaint handling.
   3. Effect of noise nuisance on the health of the resident’s family.

Jurisdiction

2. 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.

The effect of noise nuisance on the health of the resident’s family.

3. The resident has complained about the effect that the noise she reported had on the health and wellbeing of her family. Unfortunately, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.

Background and summary of events

4. The resident is the landlord’s tenant. The landlord is a local authority, and the resident’s property is situated in a block which contains similar properties.
5. In late September and early October 2019, the resident reported to the landlord loud television noise from a neighbouring property. She said that this occurred every morning, and explained that this caused distress to her son, who has autism.
6. On 9 October 2019 the landlord wrote to the resident to confirm that it had received her report. It said it would arrange an appointment with the resident to discuss the reports in more detail and what it could do to address them.
7. The resident continued to report further incidents of a loud television in late October and early November 2019. She expressed dissatisfaction that she had not been contacted by the landlord.
8. On 7 November 2019 the landlord asked the resident for further information, including the neighbour’s door number and how long the issue had been happening. The resident replied, provided her upstairs neighbour’s property number, and expressed her dissatisfaction with the little action taken. The landlord said that it would interview the neighbour, and then update the resident about any actions it could take.  No evidence showing the landlord interviewing the neighbour has been provided for this investigation.
9. The resident asked for an update on 20 November 2019, and reiterated her concern with how the noise affected her child. The landlord replied on 21 November 2019, saying that it would interview the neighbour. There is no evidence of the landlord doing so. On 27 November 2019, the resident asked for an update, and confirmed that she continued to experience the noise nuisance.
10. There is no evidence of further correspondence until 23 January 2020, when the landlord said it could “start taking action” and interview the neighbour now that it had their door number. It said it had invited the neighbour for an interview on 24 January 2020 and would update the resident thereafter. There is no evidence of the landlord interviewing the neighbour or updating the resident at the time.
11. On 16 February 2020 the resident asked the landlord when she would receive noise monitoring equipment. No evidence of this being discussed or promised previously has been provided for this investigation. She said she had met the landlord at its office (it was later confirmed by the resident that this was in January 2020) but had not seen an improvement in the noise from her neighbour.
12. On 20 February 2020 the resident reported that the noise was getting worse, and now included the sounds of jumping and throwing things.  She said that she had called the out-of-hours noise team but could not get through to anybody.
13. On 30 March 2020 the resident explained to the landlord that the noise was ongoing, but she had stopped sending emails because the landlord did not respond. The resident expressed distress that people were being advised to stay at home by the government, due to the coronavirus pandemic, and so she was affected by the noise all day.
14. The resident reported, on 8 April 2020, incidences of noise from jumping, screaming, banging, and fighting over the past week. The landlord replied on 9 April 2020 to say that it could not act on household noise between 7am and 10pm. It acknowledged the resident’s frustration that she had to stay at home and noticed the noise more, and suggested that the resident discuss the noise with the neighbour.  It said that it would contact the neighbour regarding the ongoing reports.
15. On 13 April 2020 the resident replied that the noise was getting worse, and she had already tried to approach her neighbour on multiple occasions but received no answer. She expressed her dissatisfaction with the landlord’s actions, and asked for the details of her housing officer’s (HO) manager. The resident also advised that she had contacted the police about the sounds of fighting and children screaming, and reiterated that her son was vulnerable, and the noise was affecting him. 
16. On 14 April 2020 the resident asked to raise a formal complaint regarding the landlord’s handling of her noise reports. She asked for information on who she should contact, and for the landlord’s complaints procedure.
17. Between 14 and 16 April 2020 the landlord informed the resident that it was attempting to contact her neighbour, and acknowledged her ongoing noise reports, described as jumping, banging and throwing, and arguing.
18. The landlord explained that it recognised that, due to the covid lockdown, there would be an increased level of noise during the day. It said it would not be able to act on this, but it could investigate the reports of noise after 11.00pm. However, due to the lockdown, it was not able to visit individual properties at the time. The landlord directed the resident to contact the local authority’s noise environment team should the noise continue into the early hours of the morning. It said it had been unable to reach her neighbour, and asked the resident if she had been given information about the telephone noise app, which it could help her with if necessary. The landlord also confirmed it was investigating the resident’s complaint.
19. Between 17 and 23 April 2020 the resident continued to report noise in the day and night, and confirmed she had made recordings and reported them to the local authority’s environmental health team. She complained that her housing officer (HO) did not express any concern for how the situation was affecting her son, and asked for somebody else to give her information on the noise app.
20. In an email to the resident, dated 24 April 2020, the landlord explained that it had spoken with the neighbour. It said that “After speaking to her, she advised that the police visited her property already when she was asleep with her child. She was confused as to why they were there, the police then realised that the noise was coming from the door next to her and left her. She advises that [due to her work] she is barely home so it is impossible that she could be the one making the noise”. The neighbour said that the police told her they would update the resident about the source of the noise. The landlord asked the resident for her police reference numbers, asked her not to “post letters to your neighbour”, and said it would contact other neighbours   to establish where the noise was coming from.
21. On 27 April 2020, the resident replied to the landlord, maintaining that the noise was coming from the neighbour she had been reporting. She expressed dissatisfaction that the landlord had delayed in speaking with the neighbour, and that noise monitoring equipment had not been installed. The resident explained that she called the police regarding the noise because she could hear fighting, and a person, believed to be her neighbour, asking for help. She said this had stopped before the police arrived.  The resident also explained that she had sent letters to the neighbour because of their lack of response when she had attempted to speak to them (as the landlord had suggested).
22. The resident continued to report noise from the neighbour and, on 4 May 2020, contacted the landlord regarding her complaint.   She confirmed that she had recorded noise on the landlord’s noise app for two weeks, and provided a completed noise nuisance questionnaire and diary sheets (it is not apparent when the landlord provided these).
23. The mayor’s office wrote to the resident on 5 May 2020. They said they received an email from the resident on 17 April 2020 and were responding to it, as well as to her complaint.  The mayor’s office acknowledged that the resident first reported noise from her neighbour in August 2019. It said that the landlord had attempted to contact the neighbour, but had been unsuccessful until the neighbour contacted the landlord in May 2020. The mayor’s office apologised for the landlord not visiting pre-coronavirus lockdown, to discuss the noise reports with the resident and the alleged perpetrator. Due to the current lockdown the landlord had not been able to conduct home visits to investigate the situation in more depth.
24. The mayor’s office said that the HO recalled explaining the use of noise monitoring equipment to the resident, but its availability had not been guaranteed. It apologised for the confusion, and confirmed that the landlord would install noise monitoring equipment as soon as possible after the lockdown restrictions were relaxed. The mayor’s office recognised that officers had not responded to the resident’s emails within appropriate timescales, or kept her updated, and apologised for that. It explained that, moving forward, it would write to the residents in the surrounding homes, asking that they show consideration to other neighbours during the lockdown and beyond; investigate when noise monitoring equipment could be installed; and arrange mediation between the resident and her neighbour, if the resident agreed. In the meantime, the mayor’s office asked the resident to continue to send her recordings to the landlord via the noise app.
25. The resident replied on 5 May 2020. She said she had only met the HO once, in January 2020, despite being told in October 2019 that the HO would contact her. She was unhappy with the lack of follow up on her noise reports, and asked what the landlord was doing with her noise app recordings. She declined mediation, and raised concerns about the HO’s conduct when dealing with her case.
26. On 5 and 7 May 2020 the resident expressed her dissatisfaction with the mayor’s office’s response, and asked how she could escalate her complaint. The landlord said that complaints and mayoral enquiries were two different processes and so, for the complaint to be escalated, the resident must first have received a stage one complaint response. The landlord said that it was unlikely that the content of the responses would differ; however, it had requested that the resident be sent a stage one complaint response. On 14 May 2020 the landlord advised the resident that “it was intended to include [her] complaint in the mayor’s office’s response, where he has upheld [the resident’s] complaint, but … this is incorrect”. It is not entirely clear what the landlord meant here.
27. According to the landlord’s final complaint response, it sent a ‘resolution response’ to the resident’s complaint on 13 May 2020. A copy of this response was not provided for this investigation.
28. The resident continued to report noise from her neighbour on 1 and 7 June 2020 and said she had received no contact from her HO. She said she had stopped making recordings of the noise and sending them because she was dissatisfied with the HO’s service, and had asked for her to not be involved.
29. In its reply of 9 June 2020, the landlord apologised for the HO not contacting her. On 15 June 2020, it confirmed that the noise app recordings did not appear to “breach the statutory noise nuisance”, but it had asked for this to be reviewed. The landlord explained that it could hear more prominent footsteps and voices on 21 April 2020 and 1 and 8 May 2020 in the recordings, but this did not automatically mean that there was “a breach of statutory noise nuisance”. It explained that residents were not allowed wooden flooring, so it intended to visit when the lockdown was lifted to investigate this and instruct the neighbour to lay carpet to reduce the noise transmission if necessary. The landlord asked the resident to continue sending noise recordings to support its investigation and provided another point of contact. It confirmed it had made an urgent request for the installation of the noise monitoring equipment, once the lockdown was lifted.
30. The landlord sent its final response to the resident on 15 June 2020. it explained that it could not comment on the mayor’s office’s response, because that was not a part of the complaints procedure. It did not find any service failure in its handling of the formal complaint. However, it found service failure in its handling of the resident’s earlier reports of noise nuisance, in particular with its delay in contacting the neighbour, and its failure to respond to the resident’s emails in which she had explained the impact of the noise on her family, and particularly her son. The landlord said that its earlier complaint response had acknowledged and apologised for that failing, and had also detailed the landlord’s proposed action plan going forward. It acknowledged that, despite this action, it had failed to contact the resident about the noise app recordings she had submitted.
31. In recognition of the distress caused, the landlord offered the resident £260.00 compensation. It explained that the resident’s future reports would be managed by a different employee, who would prioritise the noise monitoring equipment installation once the lockdown regulations were relaxed. It directed the resident to contact this Service if she remained unhappy with the landlord’s complaint response.

Assessment and findings

Landlord’s handling of the resident’s reports of noise nuisance from her neighbour

32. The landlord has provided this Service with a procedure document setting out how it deals with noise nuisance. This is included at the top of the log sheets provided to residents. It explains that it will provide log sheets to a resident, and look at the information they provide on these to see if the pattern of noise establishes a “nuisance scenario” warranting further investigation.  It will also visit the property to attempt to witness the noise and, if an officer’s visits do not coincide with the noise taking place, it may consider installing noise monitoring equipment. The landlord’s noise nuisance document explains that it will “give the highest priority” to residents who are considered the most vulnerable, and who are unable to deal with the noise problem they are experiencing, and to residents who are subjected to persistent noise rather than a one-off event.
33. The landlord’s noise procedures explain that it is unable to take legal action to prevent normal domestic activity from happening. It explains that normal domestic activity and noise includes normal conversation or arguments, music and television at a reasonable level, and footsteps and creaking floorboards. However, it may approach the neighbour informally and ask them to be more aware of the problem, and to try and take measures like removing shoes indoors and placing rugs in areas which are used regularly. 
34. The resident reported noise which she considered to be unreasonable on multiple occasions from September 2019 onwards. The landlord told the resident in October 2019 that it would meet her to discuss the next steps and, on several occasions, said that it would speak with the resident’s neighbour. According to the resident’s later emails to the landlord, the landlord did not meet with her until January 2020 (about which the landlord has not provided specific information) or speak with the neighbour until April 2020.
35. In April 2020 the landlord sent the resident an email to say that it had attempted to call her neighbour, but was unsuccessful. While this may be the case, no evidence has been provided of the landlord escalating its efforts to speak with the neighbour prior to April 2020. Additionally, prior to April 2020, on several occasions the landlord did not provide the resident updates, and this necessitated an unreasonable level of involvement from the resident in pursuing updates on her reports from the landlord, which caused her considerable distress. The landlord also did not evidence any other action taken following the resident’s initial reports, such as visiting to witness the noise (prior to the coronavirus lockdown), or advising the resident of how to collect evidence via logs and the noise app, until several months later in April 2020
36. Additionally, for several months, the landlord failed to acknowledge the distress and inconvenience that the resident reported the noise was having on her family, one of whom has a disability. That went against its procedures, which say it will give priority consideration to vulnerable residents.
37. Following the resident’s complaint of April 2020, the landlord took reasonable steps to investigate by: informing the resident how she could record the noise via the noise app, speaking with the neighbour, providing the resident with diary sheets (although it is not clear when this was), and confirming that it would install noise monitoring equipment when the coronavirus restrictions were eased.
38. Ultimately, however, there was no clear evidence of noise nuisance, despite the landlord’s investigations into the matter, and it was therefore reasonable that the landlord did not take action against the neighbour at this time. Landlords cannot usually take formal action against tenants for noise that is considered everyday household noise, which is explained in the landlord’s procedures. Nonetheless, the landlord promised to visit the property when the lockdown restrictions were eased to install the noise monitoring equipment, and establish whether it needed to instruct the neighbour to put down carpet, to alleviate the sound of footsteps (which it had noticed). This was in line with the landlord’s guidance on how it deals with reports of noise nuisance, and was a reasonable plan to attempt to resolve the problem.
39. When the resident reported that her HO failed to listen to her noise recordings, the landlord responded reasonably by confirming that it would address this with the employee, instructing two other employees to listen to the recordings, and providing the resident with an alternative point of contact.
40. The landlord’s final complaint response of 15 June 2020 acknowledged its failures when initially dealing with the resident’s reports, apologised, offered compensation of £260 for the distress this caused the resident, and set out what would happen moving forward.  The landlord acted fairly in acknowledging its mistake and apologising to the resident, and put things right by taking appropriate action in relation to the resident’s reports and offering compensation.
41. The compensation offered was broadly in line with the Ombudsman’s own remedies guidance, and the measures taken by the landlord to redress what went wrong were proportionate to the scale and nature of its shortcomings.

The landlord’s complaint handling

42. The landlord did not manage the resident’s expectations well when she complained, nor did it provide her with the information on the complaints procedure as she requested. The mayor’s office responded to the complaint. However, when the resident remained unhappy with that response, the landlord said that the mayor’s response had not been part of the complaint process, and therefore it could not comment on it. The landlord said that a further stage one response was needed, even if that, essentially, was the same as the one the resident had already received. That was an example of adhering to a process blindly, regardless of its relevance or appropriateness, and a basic failing. A landlord is entitled to vary its adherence to a process or policy when there is a valid reason to do so, and the use of such discretion would have clearly been appropriate in this situation.

Determination (decision)

43. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, satisfactorily resolves its handling of the resident’s reports of noise nuisance from her neighbour.
44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.

Reasons

45. The landlord has provided reasonable redress, by way of compensation, service improvement, and setting out the next steps, for its failures in dealing with the resident’s reports of noise nuisance. However, the landlord has not managed the resident’s complaint appropriately.

Orders

46. The landlord is ordered to pay the resident £100 for the distress and inconvenience she experienced when pursuing her complaint with the landlord.
47. This is in addition to the £260 offered by the landlord during its complaint process, which it should now also pay, if it has not already done so.
48. These payments should be made within four weeks of the date of this report. The landlord should update this Service when payment has been made.