London Borough of Redbridge (202014608)

REPORT

COMPLAINT 202014608

London Borough of Redbridge

21 December 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 handling of the resident’s reports of antisocial behaviour (ASB).

Background and summary of events

2. The resident is a tenant of the landlord and occupies a first-floor flat with neighbours below her (the property).
3. The resident has made reports of noise from her downstairs neighbours dating back to 2011. The Ombudsman would expect the resident to raise a formal complaint about her dissatisfaction to the landlord within a reasonable time; this would normally be within six months of the matters arising. Therefore, this investigation will focus on events from May 2020 onwards, this being when the resident raised her issues with it after a significant interval.
4. The resident contacted the landlord on 19 May 2020 to report that she had experienced an asthma attack after her downstairs neighbours burnt something in their property. She advised that it had been ongoing for three weeks and she had reported the latter to the local authority’s environmental health team.
5. The landlord replied to her later that day to ask if she could identify the sources of the smoke or fire and asked what the environmental health team’s response was.
6. The landlord advised the resident on 27 May 2020 that it had instructed the neighbour to not produce any smoke from their property. It relayed to her that, due to current corona virus restrictions, it was limited to making contact by letter.
7. The resident reported on 2 and 14 June 2020 that the issue had continued and was worsening.
8. The landlord updated the resident on 16 June 2020 when it advised her that the downstairs neighbours had “categorically” stated that they had not burnt anything in the property, which had a working smoke alarm. It noted that the two parties’ accounts contradicted each other. The landlord suggested that the neighbour may have lit incense candles and asked the resident to give more details about the nature of the burnt smell she reported. It offered to update the resident further once it received more information and advised her to call the fire brigade if she smelt smoke in the future. 
9. On 28 June 2020, the resident advised the landlord that she had called the fire brigade to attend as “the whole house was again filled with smoke leading to another asthma attack”. She relayed that the fire brigade identified a “slight smell of burning but could not pinpoint it”. The resident suggested that, if the neighbour was burning incense, they could ventilate the house as there was no insulation in the floor between them.
10. The landlord emailed the resident on 2 July 2020 to confirm that her neighbours had since made a complaint in response to her calling the fire brigade. It relayed that they had informed it that they did not burn anything in the property and the fire brigade had found no evidence to support the resident’s assertion. The landlord suggested that the smell the resident was experiencing was a sensitivity related to a medical issue which it could not provide a solution to.
11. The resident called the landlord on 6 and 11 November 2020 to raise her concerns about her neighbour’s adherence to corona virus lockdown restrictions and to report the sound of a fan which could be heard throughout her property. She said that this noise continued through the night and disturbed her sleep. 
12. The landlord corresponded with the local authority’s environmental health team on 13 November 2020 which confirmed that the resident had made historical reports of noise and odours since 2011 and most recently in 2017. They confirmed that on its previous visits it did not detect any noise and it had advised her that it did not regard her neighbours burning candles as a nuisance.
13. The landlord wrote to her on 13 November 2020 to inform her that its records showed that she had reported this noise issue “intermittently” since 2017 and its previous inspections and unannounced visits to the property had found no evidence of a fan or appliance which could produce the noise which she had described as “like a helicopter”. It noted that the only fitting in the property was a fan light, which the neighbour had advised they did not use at this time of year, and it advised that it had requested another inspection of her neighbour’s property. The landlord suggested that the resident contact its ASB team if the noise became excessive so that it could witness this.
14. The resident emailed the landlord on 15 November 2020 to report that the “vibrating machinery noise” from her neighbour’s property had persisted and had led to her calling the police who had in turn called an ambulance due to physical symptoms she attributed to the “stress”. She described the source of the noise as a “contraption [which] sucks the air out of the room” and was “vibrating through the floorboards” affecting the windows and furniture. The resident stated that she had reported the issue to the police three times and to the ASB team. She now wanted the landlord to intervene “immediately”.
15. After a further telephone conversation with the resident on 18 November 2020, the landlord wrote to her on 26 November 2020 to confirm that it had no evidence of her neighbours creating a noise nuisance. It asserted that its ASB team had sent several different officers at various times of day to attempt to witness the noise she reported, however no noise was identified. The landlord noted that the resident had reported noise from her upstairs neighbour since 2017, which she had attributed to different sources, but it had been unable to find evidence of the noise or corroborate this with her other neighbour.    
16. The landlord asserted that it had carried out a further inspection on 21 November 2020 where it had failed to identify anything which may be creating the noise the resident reported. It informed her that it had investigated her reports of noise for a “long period of time” without being able to substantiate her reports and therefore would not be investigating the matter any further.
17. In response, presumably, to counter – allegations of anti – social behaviour (ASB) by the resident’s neighbour in respect of whom the resident had complained, the landlord served an ASB ‘warning’ on 25 November 2020, then a Community Protection Order on 1 December 2020.
18. The resident raised a stage one complaint with the landlord on 2 December 2020 in which she complained that it had not taken her reports seriously since 2010 of a loud humming noise which caused her walls and floorboards to vibrate. She attributed the prevalence of the noise to a lack of soundproofing and empty cavities in the walls and floors. The resident continued to be dissatisfied with the landlord’s response to her reports, which she advised was causing her health issues.
19. The landlord issued a stage one complaint response to the resident on 18 December 2020 in which it maintained that it had made efforts “over many years” to investigate the noise reports she made. It stated that it had taken reasonable proportionate actions to investigate the noise reports. The landlord urged the resident to seek medical advice for the health concerns she mentioned. It also noted that she had expressed intentions to move to another property but had not yet registered for a mutual exchange; it offered to provide further assistance on this.
20. Also on 18 December 2020, the landlord visited the resident in response to her reports of a “strong smell” of “smoke coming from the lounge area”. It emailed her on 22 December 2020 to update her with its action plan. The landlord advised her that smoke may have been entering her property from below and it had arranged for a surveyor to inspect the property to assess this. It also advised that it had written to the neighbours to ask them to use a “non-smoke burning incense”. The landlord also asked her to forward any medical information regarding her health conditions to it to assess if it would impact on her bidding for a new property.
21. The resident escalated her complaint to the final stage on 24 December 2020 in which she contended that the landlord had shown more concern for the welfare of her neighbours than investigating her reports of noise and whether the property required soundproofing and refurbishment to prevent “incense fumes” entering it. She added that she had medical evidence that these disturbances were having a detrimental effect on her health.
22. The landlord issued a final response to the resident on 25 January 2021 in which it noted that she remained dissatisfied with its handling of her reports of noise and smells which she said were having an impact on her health. It stated that its records showed that she had been reporting the matter for “some time” dating back to 2011, with the most recent case commencing in May 2020. The landlord relayed that it had discussed the matter with the resident’s neighbour who had denied burning incense in their property. It also stated that it had visited her property and, despite the resident “insisting” that the smell and noise was present during the visit, it detected neither.
23. The landlord asserted that its surveyor would be visiting the property to assess whether insulation was required to tackle the reported noise and smells but cautioned that, while it would “consider the outcome” of the visit, there was a “strong possibility” that additional insulation would not be installed. It also advised that it had agreed to install a noise recording machine at the property. The landlord held that it had addressed the resident’s reports appropriately and did not uphold her complaint.
24. Following further contact from the resident on 26 January 2021 concerning noise and smoke, the landlord replied on 4 February 2021 to advise that a surveyor would be attending to assess what could be done to prevent smoke entering her property and a noise recording device would be installed once the corona virus restrictions at the time were lifted.  It visited her on 12 March 2021 when it listened for the noise which she insisted was present during the visit, at different locations as directed by her, but detected no noise. It confirmed to her on 16 March 2021 that it could no longer investigate this issue.

Assessment and findings

Policies and procedures

25. The landlord’s antisocial behaviour policy (September 2019) defines ASB as “conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises”. This includes “making noise that is or is likely to be a nuisance or annoyance” and “local environmental quality of life issues”.
26. The landlord’s ASB policy also states that the landlord “will investigate … complaints as fully as possible, without preconceptions as to the outcome. We will seek ways of independently corroborating or refuting allegations …”
27. The landlord’s complaints policy provides for a two-stage complaints procedure with responses due within ten working days at stage one and with 20 working days at stage two.

The landlord’s handling of the resident’s reports of ASB

28. It should be clarified that it is beyond the expertise of this Service to determine whether there was a direct connection between the landlord’s actions, or lack of action, and the resident’s health concerns. It is suggested to the resident to seek independent legal advice on making a personal injury claim if she feels that the landlord’s actions have had a direct impact on her health.
29. Furthermore, the role of this Service is not ascertain whether ASB actually occurred, for example whether the resident’s neighbour was indeed creating a noise nuisance. The role of this Service is to assess whether the landlord responded reasonably, and in line with its obligations, to her reports of ASB.
30. The issues reported by the resident of the smell of smoke and noise emanating for her downstairs neighbour would constitute ASB under the landlord’s ASB policy, above at point 24. Therefore, it would be expected to investigate these issues accordingly.
31. As for whether the landlord carried out reasonable actions to identify the noise and the smell of smoke reported by the resident, this issue relates to the questions:
32. Did the landlord liaise with the environmental health department on 13 November 2020 or thereafter?
33. Did the landlord carry out visits to the property around 21 November and 18 December 2020?
34. The resident’s diary entry for 18 December 2020 confirms that at the same date a senior housing officer visited her. However, there is no evidence either in the landlord’s logs (insofar as they have been disclosed in the course of the Ombudsman’s investigation), or in the correspondence in this case, that the resident received any visit apart from this one. There is reference to Environmental Health (‘EH’) officers visiting, but no dates are mentioned, nor were any landlord logs provided that might confirm this assertion.
35. In fact, the only evidence placing a date as to when the EH officers might have visited is the resident’s diary entry for 18 November that indicates that she spoke to a housing officer on the same date who informed her that “… Environmental health had visited the property a few times including the time of the leaseholders residing here and found no faults …”. However, it is unknown when the EH inspectors visited (or in any way how recently before this conversation this occurred), because there is no record amongst the landlord’s documentation as to this EH visit having occurred. Moreover, a housing officer’s email to the resident dated 26 November 2020 refers to a ‘telephone conversation’ as having occurred on 18 November 2020, and it refers to historic reports rather than recent reports by the resident of ASB.
36. In the circumstances, the Ombudsman is satisfied that there were no documented visits to the resident’s property (apart from the one on 18 December), by EH or any other housing officer in the period post – dating her complaint of 18 November 2020.
37. Consequently, the Ombudsman finds that the landlord failed to accurately record its staff visits when it carried out its investigation when handling the resident’s ASB complaint. It wrongly asserted that multiple visits were made to her residence whereas the records indicate that there was one attempt alone (by the senior housing officer), to gather evidence in the months of November and December 2020 before it communicated its stage 1 complaint outcome. If there were visits by EH officers, they were historic in nature.
38. As there is no evidence to confirm the landlord’s assertion that its staff visited the resident’s neighbours after 2 July 2020, the Ombudsman cannot agree with the landlord’s statements. The Ombudsman does deem that given the period in time concerned (November-December 2020) the restrictions imposed through the pandemic, would in any event have limited the landlord’s ability to carry out visits, but in any event the landlord should not have noted it had done so without sufficient records.

39. Finally, the landlord did enquire as to the resident’s health, and advised it planned for a surveyor to visit the property/ install noise recording equipment and this was reasonable.

Determination (decision)

40. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of ASB.

Reasons

41. Whilst the landlord failed to accurately record visits its staff made to the resident’s property in response to the resident’s reports of noise and fumes, due to the Corona virus restrictions then in force (in November and December 2020), it is unlikely that visits would have taken place and as such the landlord’s lack of record keeping in making visits were not in themselves maladministration.

Recommendation

42. Within 4 weeks of today the landlord should write to the resident, inviting her to express permission for her property to be inspected by a surveyor at a mutually convenient date, and for recording equipment to be installed there to provide clarity on the noise and smells reported.
    1. The Ombudsman accepts that, because of uncertainty as to the possibility of new restrictions due to the corona virus pandemic, the timing of the above actions, at dates to be agreed, will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.
43. The landlord should consider listening to the resident’s noise app recordings, stated to be 107 in number.
44. The landlord should improve its record keeping practice by endeavouring to keep a clear chronological log of its staff visits to its residents’ properties in connection with investigation of complaints of anti – social behaviour.