Newlon Housing Trust (202000770)

REPORT

COMPLAINT 202000770

Newlon Housing Trust

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 complaint is about:
1. The landlord’s handling of the resident’s reports of noise disturbance from the property above.
2. The landlord’s complaints handling.

Background and summary of events

The resident is the leaseholder of the property, a 2 bed flat, under a shared ownership agreement with the landlord. The resident purchased the property in 2011.
The resident reports that she has been disturbed by noise transference from the property upstairs since January 2018, when she believes her neighbour altered the flooring in her property from carpet to laminate. The landlord states that the resident first made a complaint about noise from the upstairs property on 5 February 2018.
Following the complaint, the landlord provided the details of the Noise Pollution Team, who could assess whether the noise amounted to statutory nuisance. On 15 February 2018 the landlord’s Enforcement Team contacted the resident’s neighbour to discuss minimising noise transference, and followed up in writing with recommendations, such as using rugs. The resident’s neighbour was said to be reasonable and co-operative but highlighted that she had 2 young children living in the property, who were sometimes clumsy.
On 26 April 2018 the resident met with the landlord’s Enforcement Team to discuss the noise disturbance. The resident was advised that the noise reported was unlikely to be considered a breach of her neighbour’s tenancy agreement.
Further correspondence followed where the resident noted that the installation of laminate flooring had resulted in a considerable increase in noise transference. She asked the landlord to write to residents advising against the installation of anything but carpet. The resident also asked for information about the building’s construction, so that she could look into ways of sound-proofing her property. The landlord responded stating that it was unable to write to residents as requested. The resident then asked further questions about recent fire safety works in the building, which may have impacted the sound insulation.
The resident’s legal representatives wrote to the landlord on 12 June 2018. The letter was stated to be sent ‘in accordance with the Pre-Action Protocol for Debt Claims’ and it advised ‘ignoring this letter may lead to our client commencing proceedings against you’. The landlord was asked to treat the letter as a notice served under Clause 10 of the resident’s lease. The resident’s legal representatives stated:
1. Page 3 of the landlord’s ‘Noise and Nuisance’ booklet strictly prohibited the installation of laminate flooring and page 8 of the Leaseholders Handbook noted that permission must be sought from the landlord before changing the carpeting within a property. The landlord was asked to confirm whether permission to alter the flooring was requested by the resident’s upstairs and, if granted, what the landlord’s reasoning had been.
2. The landlord was obliged by clause 5.7 of the resident’s lease to enforce the covenants in her neighbour’s lease at clauses 3.6, 3.17 and 3.27. Clause 3.6 required leaseholders to provide ‘carpets or such other suitable floor coverings’ and clauses 3.17 and 3.27 prohibit leaseholders and members of their family from causing ‘nuisance, annoyance or disturbance’ to others.
3. The landlord was asked to write to the resident’s neighbour to demand that carpet, with adequate underlay, was laid in their property within 14 days.
The landlord states that around July 2018, the resident raised a general complaint that recent fire safety works in the building may have weakened the sound insulation and resulted in greater transference of noise.
The resident emailed the landlord on 14 April 2019, stating that she continued to experience ‘highly intrusive noise’ from the flat above. The resident stated that, ‘it is clear from our leases that this is not acceptable’. The landlord responded on 16 April 2019, forwarding previous correspondence from 2018. It confirmed that it had set out its position regarding the level of noise that could be expected from other occupants and noted ‘we have found no evidence of wrongdoing’.
The resident emailed the landlord again on 6 May 2019, referring to the clauses of the lease requiring suitable flooring and written consent from the landlord for alterations. The resident also indicated that clause 5.7 required the landlord to enforce the covenants in other leases, if so required by the leaseholder. The resident chased a response on 2 June 2019.
The resident made a formal complaint to the landlord on 7 May 2020 about its response to her reports of noise disturbance due to the alteration of the flooring upstairs. She stated that since early 2018 she had experienced loud noise, including running footsteps and banging, which had become ‘a huge source of anxiety and stress’. The resident’s neighbour had informed her via a letter that she had changed her flooring at this time.
The resident stated that during 2018 she discussed the issue with the landlord’s Enforcement Team and was told that the flooring had been replaced with a covering they considered to be unsuitable. The resident alleged that her neighbour had accused the landlord of harassment, at which point the landlord ‘decided it was too risky to pursue’. The landlord had failed to respond to the queries raised by her solicitor about the requirements of her neighbour’s lease and the landlord’s obligations. The resident had then followed up directly but had not received responses to emails sent in May and June 2019. A second complaint about noise due to fire safety works in the building was ongoing and not to be confused with the present complaint.
On 8 June 2020, the landlord provided a holding response, which stated that the complaint had been closed due to similarities with another complaint that was currently at stage 2 of its complaints process, but reopened following new information from the resident. The landlord stated that it aimed to respond within 10 working days.
The landlord provided a stage 1 response on 22 June 2020. The landlord recorded that the complaint was about, ‘high ASB and noise transmission’, and apologised for the delay in responding, which it stated was due to the impact of the pandemic. The landlord stated that its Enforcement Team reported that:
1. The resident’s neighbour was co-operative when approached in 2018 and it had gone ‘above what was required’ by approaching her, as there was ‘no proof that any unreasonable noise exists’.
2. The landlord denied being intimidated by the resident’s neighbour. No action was taken against her because ‘it was not appropriate to do so either legally or morally’. The lease granted the resident’s neighbour a right to ‘quiet enjoyment’ of her property, and making unsubstantiated claims of noise where no evidence exists could be interpreted as harassment.
3. Around June 2018 the resident’s legal representatives wrote to the landlord claiming that it was interfering with the resident’s quiet enjoyment of her property by refusing to enforce the lease provision requiring suitable flooring in the neighbouring flat. The claim was found by the landlord to have ‘no merit’ and, it was noted, was not pursued by the resident’s solicitor. The landlord stated that it ‘will not chase a solicitor making a claim against us if we do not hear from them’.
4. The Enforcement Team acknowledged that it was ‘not clear’ what its response had been to the resident’s letter of May 2019. It apologised for any ‘confusion’. The landlord stated it was possible that it responded verbally but not in writing at the time.
5. It was ‘not ideal’ that both the resident and her solicitor were attempting to communicate with it about the issue at the same time and the landlord asked that in future, where legal proceedings were contemplated, the resident only correspond via their solicitor.
6. The resident’s neighbour had ‘normal’ flooring and the threshold for not being ‘suitable’, in accordance with clause 3.6 of the lease, ‘would need to be very high’.
7. In response to the resident’s suggestion that her neighbour should have sought permission to change the flooring in her property, ‘no evidence exists to suggest the alleged perpetrator has tampered with the fabric of the building’, nor is there any evidence to suggest, ‘that the alleged perpetrator has done anything other than have a normal family life’.
8. The landlord did not feel that the complaints process was the correct place to address leaseholder disputes. The landlord suggested the resident seek further legal advice and noted that it would respond to any further correspondence from the resident’s legal representatives. The landlord stated that ‘the complaints process is not an appropriate forum to complain about your own solicitor not following through with legal action’.
9. The landlord offered £25 compensation for ‘poor communication around [the resident’s] emails of May 2019.
The resident requested the escalation of her complaint on 21 July 2020, as the landlord’s response had not addressed all the points raised:
1. The resident highlighted that clause 5.7 of the lease requires the landlord to enforce the covenants of her neighbour’s lease.
2. The resident stressed that both the landlord’s employee and the upstairs neighbour had previously confirmed that the flooring had been changed from the original carpet.
3. The resident considered that the flooring was not ‘suitable’ as per clause 3.6, noting that the landlord had not provided evidence of a rigorous investigation. The resident stated that, given the building’s construction, ‘to allow flooring without suitable underlay, and of a material that also is a well documented carrier of impact noise, can not be considered ‘normal’ or ‘suitable’ in these premises’.
4. The resident asked the landlord to remove the reference to ASB from the complaint. The resident was clear that their complaint was not about the neighbour’s behaviour but about the landlord’s failure to enforce the lease provision requiring suitable flooring. The resident accepted that their neighbour was leading a normal family life.
5. The resident highlighted that their solicitors had written to the landlord twice and it had failed to provide a response.
On 28 July 2020, the landlord acknowledged the stage 2 escalation, advising that the complaint would be reviewed by the appeals panel in October 2020.
Evidence provided by the landlord states that on 30 November 2020, the Tenancy Compliance Manager confirmed that the resident’s upstairs neighbour ‘still has the original carpet down that was there when purchased’ with the addition of foam and rugs on top.
On 7 December 2020 the resident provided comments for the appeal panel hearing. The resident noted that the landlord had not inspected the property and had just relied on the neighbour’s photographs and comments to decide whether the flooring was suitable. As noise travelled easily between the flats due to the building’s construction, the landlord should have checked the sound level in the resident’s flat. The resident highlighted the significant personal impact on them and that the landlord had failed to respond to their solicitor’s letters.
The complaint panel appeal hearing was held on 18 December 2020 and a panel determination letter was provided on 12 January 2021, apologising for the delay. The panel determined that:
1. The Tenancy Manager had ‘attended the neighbouring flat in question and has confirmed that the original carpet that was in place when the flat was purchased is still in place’. It was also noted that additional foam underlay and rugs had been installed. The panel concluded that the flooring currently in place was ‘suitable’ and that the noise reported amounted to ‘normal household noise’.
2. The resident’s complaint about the landlord’s failure to respond to her solicitor’s queries ‘has been suitably explained at stage one’. The landlord had appropriately responded to the resident’s solicitor’s queries and would do so again if further correspondence was received.
3. Concerns about recent works in the building, which may have impacted sound insulation, had been logged as a separate complaint that had been assessed at stage 2 by a different panel. It was understood that investigations were being made to test sound insulation within the building as a result of that complaint.
4. The panel acknowledged the delay in considering the resident’s appeal and offered £25 compensation, in addition to the £25 offered at stage 1 for poor communication.
The resident responded to the panel’s determination letter on 16 January 2021. She indicated that she was unhappy that the decision had been based on the fact that the flooring had not been altered. The resident attached a letter from her neighbour stating that the flooring had been changed and repeated that she had received verbal confirmation of this from the landlord’s employees in 2018. The resident complained that the information presented to the panel was inaccurate and asked the landlord to reconsider.
The landlord responded on 22 January 2021, highlighting that as the letter had not been provided ahead of the hearing it was not available for consideration by the panel. The landlord had sought clarity on the current flooring from the Tenancy Compliance Manager.
The resident responded on 25 January 2021, noting that she had only been provided with a copy of the hearing pack 4 days before the panel hearing, and this was the first time the landlord alleged that it had inspected the flooring and the carpet was unchanged. The resident explained that she had not provided a copy of the letter from her neighbour confirming that the carpet had been changed to laminate as she did not think this was in dispute. The resident again asked for the complaint to be reheard.
The landlord responded on 19 February 2021, indicating that it was attempting to arrange access to the neighbour’s property to ‘re-inspect the floor coverings and make a final determination’. Progress had been hampered by the restrictions imposed as a result of the pandemic and so the landlord had requested photographs. The landlord provided a further update on 25 March 2021, explaining that it was still awaiting an update.
The resident outlined the outstanding issues in an email to this Service on 11 May 2021. The resident explained that she was dissatisfied that the landlord had informed the panel that the upstairs flat was still carpeted, which was untrue and contradicted by the evidence. The resident considered that her neighbour was in breach of the tenancy agreement, as she had replaced suitable flooring with unsuitable flooring. This was causing the resident severe anxiety and stress, as her neighbour’s children were very active upstairs and the noise transference was affecting the resident’s sleep. The resident believed that the landlord should not have given permission for the installation of unsuitable flooring and, if it had not done so, should have upheld the terms of the lease and insisted on its removal.
On 7 June 2021, the landlord’s internal emails show that the resident’s neighbour provided photographs of the flooring installed in her property, including details of the materials used. The landlord concluded that as laminate flooring had been laid over the existing carpet, with the addition of underlay and mats on top, the new flooring ‘should not be an issue’.

Assessment and findings

The resident’s complaints of noise disturbance have been ongoing since the beginning of 2018. Ordinarily, the Ombudsman expects residents to make a formal complaint to the landlord within a reasonable time, so that the landlord has an opportunity to put things right and it is able to conduct a thorough investigation into what went wrong. This would usually be within 6 months of an issue occurring.
In this case, a formal complaint was not made to the landlord until May 2020, although the resident had previously expressed her dissatisfaction in her correspondence of April and May 2019. During the complaints process, the landlord reviewed the action it had taken to address the resident’s concerns since 2018, and so the Ombudsman has commented on its findings as part of this investigation.

Landlord’s response to reports of noise disturbance

Following the resident’s initial reports of noise disturbance in 2018, the landlord contacted her upstairs neighbour to relay her concerns. Making the resident’s neighbour aware of the complaint was an appropriate first response and the landlord made helpful suggestions about ways to minimise the noise, such as laying rugs. The landlord correctly advised the resident that the type of noise described was unlikely to constitute a statutory nuisance, and managed her expectations about its ability to take further action for breach of tenancy.
The resident’s legal representatives then wrote to the landlord on 12 June 2018, requesting information about whether permission was sought for the change of flooring, and asking the landlord to enforce the relevant provisions of the neighbour’s lease requiring the use of suitable flooring, due to the impact on the resident’s quiet enjoyment of her property. The landlord has failed to provide evidence that advice was sought from its legal team, or that a response was provided to the either the resident or her representative at that time. The resident states that follow up communications were sent, both directly and by her legal representatives, but no response was provided to their queries.
The landlord has not evidenced that at any point prior to the formal complaint it addressed the resident’s concerns about the suitability of the flooring and whether permission was granted for the alteration, or responded to her comments about the lease provisions. Although a formal complaint was not made until a year later, this may have been avoided had the landlord provided a comprehensive response to the resident’s communications at an earlier date.
During the complaints process, the landlord failed to accurately identify the nature of the resident’s concerns, which did not relate to her neighbour’s day to day behaviour within her property. The resident repeatedly stressed that she was complaining about the landlord’s decision to allow the installation of laminate flooring, which was causing a significant disturbance to her daily life, as well as its failure to take action to insist that the flooring was removed.
There is no evidence that following the formal complaint in May 2020, the landlord inspected the flooring at the neighbouring property, or attended the resident’s property to witness the extent of the disturbance. In the Ombudsman’s view, a reasonable investigation into the resident’s concerns should have included an assessment of the level of noise audible from within the resident’s property. The panel determination of 12 January 2021 referred to a separate complaint where the landlord agreed to carry out noise transference tests. The outcome of these tests, if they have taken place, is unknown. It is also unclear whether these tests would have included an assessment of the noise transference from the property above.
During the complaints process the landlord also failed to respond to the resident’s queries about whether permission was sought by her neighbour to alter the flooring, and whether this was granted by the landlord. The landlord has provided a copy of its Leaseholders’ Handbook and in the ‘Your responsibilities’ section it states that residents should ‘provide carpets or other suitable floor coverings’ and should ‘not replace carpet with laminate or wooden flooring without seeking permission from the landlord’.
A screenshot of the landlord’s website has also been provided, which states:

‘If you want to make changes to the floor – such as putting down laminate flooring – then you should check your lease to see if it states that you are allowed to do so. If it does then you can do so without our permission. If your lease does not state that you can, then you will need to contact us’.

The complaint raises concerns about the landlord’s implementation of its policies and procedures regarding the alteration of flooring. The landlord has failed to demonstrate that it conducted a reasonable assessment of the suitability of the neighbour’s flooring, or that it has guidance in place to ensure consistency of approach in all such cases. The landlord has also failed to confirm whether permission was granted, either prior to installation of the flooring or retrospectively.
Lease provisions requiring the use of suitable flooring are common, due to the impact that the installation of hard flooring can have on neighbouring properties as a result of increased noise transference. The landlord’s response to the resident’s concerns did not demonstrate that it gave due consideration to its obligations under the lease to enforce breaches by other occupants. The landlord’s assessment that the flooring was suitable was based on insufficient and inaccurate information, and its comments during the complaints process that the threshold for unsuitable flooring would be ‘very high’ are not reflected in its policies.
The landlord has not been clear about the criteria for assessing the suitability of flooring, and there is no evidence that it has taken into account the impact on the resident in its decision making. The landlord has indicated that because the flooring is laid over the existing carpet this ‘should not be an issue’ but it has not assessed whether the resident’s reports of unreasonable disturbance have merit. The landlord did respond appropriately by conducting further investigations when the factual evidence provided to the panel was challenged, although it still appears to have based its final decision on the resident’s neighbour’s comments and photographic evidence, rather than a physical inspection.
It is not the Ombudsman’s role to assess the level of noise, or to make findings about an alleged increase in noise, as a result of alterations to a neighbouring property. In addition, the Ombudsman cannot Order the landlord to enforce the provisions within the lease of a third party. To obtain a binding determination on the landlord’s obligations under the resident’s lease, the issue would need to be referred to the courts. However, the Ombudsman is not satisfied that the landlord has conducted an adequate investigation into the resident’s concerns and it has failed to respond to the specific queries raised.

Complaints Handling

Copies of the landlord’s complaints and compensation policies in use at the time of the complaint have not been provided to this investigation. The current Complaints Policy has been amended following the introduction of the Ombudsman’s Complaints Handling Code, and is understood to reflect its requirements. At the time of the complaint the landlord operated a 2 stage formal complaints process, with stage 1 complaints escalated to the appeal stage to be heard by an appeals panel within 30 days.
The landlord’s stage 1 response to the complaint was delayed, although it did keep the resident updated and noted that its investigation had been hampered by the impact of the pandemic. In the circumstances, the delay was not unreasonable.
The tone and content of the landlord’s stage 1 response was inappropriate, in that it attempted to discourage the resident from raising her concerns via the complaints process, failed to acknowledge and accept responsibility for the lack of response to her previous communications, and misinterpreted the nature of her complaint. The response did not demonstrate that the landlord had conducted an adequate investigation into the resident’s concerns, for example by inspecting the flooring in the neighbouring property. It also failed to confirm whether permission had been granted for the resident to alter the flooring, or to explain its position in respect of the lease provisions, beyond stating that the flooring was ‘suitable’ and for it to be considered otherwise the threshold would be ‘very high’.
The stage 1 complaint investigation and the landlord’s response was not fair, balanced or impartial. It did not acknowledge the validity of the resident’s concerns, or the impact on her, which she reported was significant. This made the resident feel that she was not being listened to, that she was being treated unfairly, and that her rights had not been balanced against those of her neighbour.
The landlord failed to identify that it had ignored pre-action correspondence and it was unreasonable for it to suggest that the resident should not simultaneously raise concerns both through her legal representatives and directly, including via the formal complaints process. The landlord’s actions were not in accordance with the Ombudsman’s dispute resolution principles, which are to be fair, to put things right and to learn from outcomes.
The Ombudsman does not support the approach of refusing or discouraging access to the landlord’s complaints process prior to the issue of legal proceedings. The landlord is encouraged to continue to work with residents during the pre-action stage, to attempt to resolve the issue informally. In this case, the landlord’s response was to direct the resident to her solicitors, and it made no commitment to attempting to resolve the issue without recourse to legal proceedings.
Following the escalation of the complaint, the resident was advised that the panel hearing should take place around October but the complaint was not considered by the panel until December 2020. The landlord offered the resident £25 compensation for the delay. Whilst the Ombudsman is mindful of the difficulties in co-ordinating a panel, due to the restrictions in place during 2020, a delay of 4 months was unreasonable and there is no evidence that the resident was kept up to date about the reasons for the delay.
As it took approximately 8 months for the landlord to provide a final response to the complaint, and it then transpired that the panel had been provided with inaccurate information, the Ombudsman is not satisfied that total compensation in the sum of £50 is sufficient to reflect the time and trouble the resident was forced to take to pursue her complaint. An additional Order for compensation is therefore made, as set out below.

Determination (decision)

Having carefully reviewed the evidence provided by the parties, the Ombudsman considers that, in accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s response to the resident’s reports of noise disturbance from the upstairs property.
2. Maladministration in the landlord’s complaints handling.

Reasons

There was maladministration in the landlord’s response to the resident’s reports of noise disturbance from the upstairs property, as it failed to carry out an adequate investigation into her concerns and failed to respond to the points she had raised about permission for alterations and its obligations under the lease.
There was maladministration in the landlord’s complaints handling due to the delays in responding to the complaint at stage 2, the inadequacy of the landlord’s investigation, the inappropriate tone of its response, the unreasonable suggestion that the resident should not pursue her concerns via its complaints process, and the inaccurate information provided to the panel at stage 2.

Orders

Within 28 days of the date of this report the landlord is ordered to:
1. Pay the resident £200 compensation in recognition of the failings identified in its handling of her reports of noise disturbance.
2. Pay the resident £100 compensation, in addition to the £50 offered at stage 2 of the landlord’s complaints process, in recognition of the additional failures identified in its complaints handling.
3. Arrange an inspection of the resident’s property to assess the level of noise disturbance from the property above and, if possible, an inspection of the resident’s neighbour’s property to physically assess the suitability of the flooring.
4. Write to the resident to confirm whether permission was granted to the resident’s neighbour to alter the flooring within her property, or explaining why it is unable to do so.
5. Seek advice from its legal team on the landlord’s obligations under the resident’s lease and provide a detailed response to the resident on matters raised in the letter from the resident’s legal representatives, dated 12 June 2018.

Recommendations

Review its policies and procedures relating to requests to requests to alter flooring within a property and consider producing written guidance for dealing with such requests.