Notting Hill Genesis (NHG) (202212193)

REPORT

COMPLAINT 202212193

Notting Hill Genesis (NHG)

8 January 2024

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

This complaint is about the landlord’s response to the resident’s reports of noise nuisance.
The Ombudsman also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident is an assured tenant and her tenancy began in 2006. She occupies the property with her daughter. The property is a 2 bedroom maisonette on the ground–floor of a converted building. The building contains 2 maisonettes with a shared communal entrance. Both maisonettes are split over 2 floors.
The resident is engaged in a long-running dispute with the neighbour upstairs (the neighbour). In its case evidence to the Ombudsman, the landlord told us both parties in the dispute previously declined to apply for alternative accommodation. The evidence we have seen runs from April 2022 onwards.
The landlord has a Domestic Noise and Neighbourhood Disputes Policy. It aims to manage disputes where no breach of the occupancy agreement has occurred, but a resident’s enjoyment of their home is affected. It covers disputes involving everyday household noise. This includes doors closing, talking, or television noise. Noise that is too loud will be handled as noise nuisance under the landlord’s antisocial behaviour (ASB) policy.
The policy shows the landlord can: advise the parties on technology, alterations or adaptations that may resolve the issue; encourage them to discuss matters informally; make a referral to formal mediation services; remind parties of their obligations, and refer parties to external agencies for support or information.
The landlord operates a 2 stage complaints procedure. It aims to respond to complaints within 10 working days at stage 1. At stage 2, it aims to respond within 20 working days. In the first instance, ASB reports and neighbour disputes are handled through the landlord’s relevant policies. Residents can complain about the landlord’s handling of these reports.

Summary of events

Case notes show the resident contacted the landlord about noise nuisance several times between early April and late May 2022. The first record we have seen, from 5 April 2022, said the resident wanted to complain she had been mistreated in relation to ongoing noise from the neighbour. Further, she wanted to speak to the landlord’s local representative about the problem.
A subsequent note, on 11 April 2022, shows the resident was unhappy the landlord had not contacted her as requested. It said she would phone the landlord every time the neighbour slammed doors aggressively until the situation was resolved. A further note, around a month later, shows the resident eventually chased the landlord again.
The landlord’s records show it contacted the resident on 10 June 2022. This was around 2 months after her initial complaint. The records said the landlord would contact the local authority’s environmental health (EH) team to arrange an assessment. Further, the resident was advised to await contact from EH and chase the landlord if necessary. No information was seen to show the landlord raised a complaint at this point.
The landlord exchanged emails with EH on the same day. It said the resident mentioned EH previously identified a flooring issue between the maisonettes. The landlord asked EH for its related recommendations so it could authorise structural repairs. It also asked how to arrange an assessment at the property. EH replied its noise team would not issue a noise monitoring device because it did not investigate “loud noise due to hard flooring.”
On 14 June 2022 Citizen’s Advice contacted the landlord on the resident’s behalf. A formal complaint letter was attached to the email. It said the landlord had failed to act in relation to ongoing noise nuisance from the neighbour. Further, intrusive noise occurred “virtually every night between the hours of 11pm and 7am”. It also said the resident and her daughter were unable to sleep and the situation was impacting their “mental well-being”. Other key points were:
1. The resident reported it sounded as though the neighbour was dragging furniture around. There was also noise from slamming doors and DIY.
2. The resident had reported noise numerous times over a number of years. She submitted supporting diaries and recordings to the landlord’s previous local representative.
3. The landlord should “install adequate sound insulation” and instruct the neighbour to stop making noise during the night. It should also respond to the resident in writing.
EH updated the landlord on the same day. It said the latest visit by its out of hours noise service was on 22 May 2022. Further, the visit was prompted by the resident’s report of loud banging and furniture being moved around all day. EH said it attended the property shortly after midnight and assessed the noise from the resident’s bedroom. However, even with the windows open, no noise was heard “except normal footsteps”.
On 15 July 2022 the landlord issued a stage 1 response. This was around 23 working days after the resident complained through Citizen’s Advice. The landlord did not acknowledge a delay and the resident’s complaint was not upheld. It said there was insufficient evidence to take enforcement action against the neighbour. The main points were:
1. The landlord contacted EH for an update. It was told, during a recent assessment at the property, no noise was heard apart from normal footsteps.
2. EH declined the landlord’s request to supply monitoring equipment. The resident should request this equipment herself from the local authority.
3. The landlord’s surveyor would inspect both homes in the building to determine if additional sound insulation was needed. The provisional inspection date was 19 July 2022.
4. The landlord had asked the neighbour to be mindful of any noise. It would: monitor the situation, liaise with the resident, and share its survey findings in due course. The resident should report further disturbances to EH.
After visiting the resident and the neighbour, the landlord’s surveyor updated the landlord during internal correspondence on 29 July 2022. They said noise from the neighbour’s kitchen was audible in the property’s own kitchen. However, noise levels in the living room and bedroom were acceptable given the age of the property. This was on the basis the surveyor could “barely hear anything” and there was “nothing more (the neighbour) can do.” Other key points were:
1. The neighbour had good underlay and carpet fitted in their living room. They had renewed these items to reduce noise transfer to the property.
2. Loose timber floorboards in the neighbour’s hallway and kitchen needed to be repaired. The landlord should raise a corresponding works order for its repairs team.
3. A specialist contractor should replace old vinyl in the neighbour’s kitchen with plywood flooring. A rubber membrane should be fitted underneath to reduce noise transfer.
On 5 August 2022 the landlord issued a follow-up response at stage 1. Its formal letter relayed the surveyor’s findings to the resident. The landlord said it was sourcing a specialist contractor and it would keep the resident updated.
EH emailed the landlord 4 days later. The email wording suggests it was resending a previous reply. It said the resident had been advised EH would not provide her with noise monitoring equipment. This was on the basis EH did not investigate noise that fell under “domestic noise and ASB”. It said the dispute sounded like a tenancy issue and the landlord should buy its own monitoring device.
On 11 August 2022 Citizen’s Advice escalated the complaint on the resident’s behalf. The escalation request shows she felt the landlord’s noise testing was inadequate. This was on the basis she was being disturbed by “loud stamping and furniture being moved”. Further, she was unhappy with the limited scope of the landlord’s repairs. She felt noise reduction works should extend to every room in the neighbour’s home. Other key points were:
1. The resident and her daughter’s health was being impacted by the noise, which prevented them from sleeping. This reduced their enjoyment of the property.
2. Given the landlord’s own request was previously declined, the resident did not understand why it asked her to request noise monitoring equipment from EH.
The landlord acknowledged the resident’s complaint at stage 2 on 15 August 2022. It later said the resident should have received a response, or an update, by 8 September 2022.
The landlord issued a stage 2 response on 30 September 2022. This was around 35 working days after the resident’s escalation request. It said the parties discussed the complaint during a phone call on 15 September 2022. The Ombudsman has not seen a first-hand account of this discussion. The response acknowledged a complaint handling delay at stage 2. Though the resident was awarded £50 in related compensation, her core complaint was not upheld. The landlord’s main points were:
1. The landlord noted EH’s findings and its own surveyor’s comments. Overall, there was insufficient evidence to support the level of noise the resident was reporting. Given her health concerns, the resident could ask EH to reconsider its position on the provision of noise monitoring equipment. Alternatively, the resident could source the equipment through an acoustic consultant at her own cost.
2. The landlord was aware the resident had rearranged the property’s rooms without its permission. By using her living room as a bedroom, the resident was sleeping directly under the neighbour’s living room. Her sleeping arrangements would increase the impact of any noise. For example, sound may be audible when the neighbour used their kitchen.
3. The resident should return the property to its original layout, with the bedrooms located in the basement. She should also record the dates and times of any incidents. Though mediation had been offered on more than one occasion, the landlord’s offer was still open.
4. The landlord’s local representative would update the resident when works to the neighbour’s home were complete. They would also monitor the situation afterwards. The landlord would remind the neighbour to be mindful of noise after 9pm.
The landlord’s correspondence shows the following events occurred between 4 and 31 October 2022:
1. The resident asked for an update on the soundproofing works. The landlord replied the following day. It said it had chased the contractor’s quote and there would be a further update in due course.
2. The resident requested a more detailed update on 10 October 2022. She reported “constant” noise, and asked for a works completion date. She said it was the landlord’s responsibility to evidence the noise and it should have provided the necessary equipment.
3. The landlord replied 2 days later. It said contractor quotes had been received and forwarded to its repairs team for approval. Further, a contractor was aiming to start on 21 October 2022 and the works were expected to take around 5 days to complete.
4. In a subsequent update to the resident the landlord apologised for the delay. It said additional quotes were needed, but the works were now due to start on 7 November 2022. Further, providing there were no complications, they should be finished around a week later.
The landlord’s repair records show the soundproofing works were completed around 11 November 2022. This was around 3 weeks after the landlord’s advised start date (21 October 2022). Corresponding repair notes confirm the works were in line with the surveyor’s recommendations. They said noisy floorboards were secured before the new flooring was installed.
Within days, the resident reported nothing had changed in relation to the noise levels. She questioned the standard of the landlord’s contractor and its works. She asked for a second opinion on the works to ensure they were completed correctly. The landlord replied the same day. It said the works were completed by an authorised contractor, but it would arrange a post inspection.
The resident updated the Ombudsman around 10 days later. Our call notes show she felt the neighbour’s property should be fully soundproofed. Further, the resident was signposted to the community trigger process and EH.
The landlord post-inspected the contractor’s works on 20 December 2022. This was around 36 days after the resident asked for a second opinion on the works. The landlord’s interactions with the neighbour around this time show they were also distressed by the situation. The Ombudsman has not seen a first-hand account of the post inspection. We have seen a video of the completed soundproofing works.
The parties exchanged emails between 9 and 10 January 2023. The resident said the “deliberate noise of items being thrown to the floor…” and “furniture being dragged..” was ongoing. She asked the landlord to clarify the outcome of its inspection and create an action plan. She said she was advised it could arrange a sound surveyor’s assessment. The landlord said its surveyor’s recommendations were awaiting approval and the resident would be updated in due course.
Around a month later, the landlord made internal enquires about the standard of the works. Its senior surveyor confirmed the works were completed to the required specification. It relayed these findings to the resident in an update on 22 February 2023. It said, because the works were completed adequately, it would not arrange further checks from a specialist. Further, the resident should reconfigure her rooms and report ongoing incidents to EH.
In a follow up email on 23 February 2023, the landlord said it would clarify whether the resident could report noise nuisance to EH. This was on the basis she previously received conflicting information. It also said the landlord was unable to purchase its own noise monitoring equipment. The email wording suggests the resident was concerned she may be unable to evidence the noise. This was on the basis it stopped whenever the property was inspected.
Within days, the landlord told the neighbour it closed its related noise case because adequate works had been completed. The information seen shows the resident subsequently made a further report to EH about the neighbour. In mid-March 2023 the neighbour told EH that the resident’s “bogus” report was part of a pattern of “constant intimidation” from the resident.
The resident reiterated her previous concerns in an email to the landlord on 16 March 2023. She said the neighbour was playing loud music and slamming doors. Further, she was unhappy with the landlord’s works because there was no difference in the noise levels. There was a gap in the evidence around this point.
The resident updated the Ombudsman during a phone call on 2 January 2024. She said there was “constant deliberate noise” from the neighbour and the situation was ongoing. In addition, her family was experiencing some difficult personal circumstances and the noise was exacerbating the situation. She also said she had approached various parties, including a local MP, for help. Her main points were:
1. The resident was told to report incidents to EH. She had done this several times but she was unable to evidence the noise. By ringing the communal doorbell, EH alerted the neighbour to any inspections as they took place.
2. Intrusive noise was audible throughout the property. For example, the resident heard noise like a “volcano” while in a downstairs bathroom. On that basis, the property’s layout was irrelevant.
3. The landlord’s limited works were a waste of time and “cheap materials” were used. The resident’s previous home had been fully soundproofed. Given its property would be more valuable afterwards, this approach would also benefit the landlord.
4. The resident was promised a specialist sound surveyor but the landlord failed to fulfil this commitment. The landlord wanted to move the resident but her family was settled and they should not have to move.
5. There were issues with the landlord’s complaint handling. For example, the resident had to raise her complaint again because the landlord failed to respond. The landlord’s offer of £50 in compensation was insulting.

Assessment and findings

It is recognised the situation is distressing for the resident. The information seen suggests the neighbour dispute has been ongoing for a considerable period of time. Where the Ombudsman finds failure on a landlord’s part, we can consider the resulting distress and inconvenience.
We cannot determine if the resident is experiencing excessive noise. EH can establish whether the noise levels amount to a ‘statutory nuisance’. Similarly, we are unable to establish whether a party is responsible for ASB. On that basis, we cannot tell the landlord to take action against the neighbour.

The landlord’s response to the resident’s reports of noise nuisance

The resident has consistently said the neighbour deliberately causes significant levels of disruptive noise. In her update to the Ombudsman, she said she was unable to evidence this noise through EH. The timeline supports her recent assertion. Given the nature of her reports, the lack of evidence is a problem for the resident. For example, the information seen shows the landlord’s ASB policy does not apply where no breach of tenancy has occurred. Similarly, any enforcement action by the landlord must be evidence–based and proportionate.
Case law has shown landlords cannot be held accountable for noise nuisance that is non-deliberate, such as noise caused by poor sound insulation, because no nuisance arises due to the normal and ordinary use of premises and the landlord is not able to authorise it expressly. There is no legal requirement for landlords to retrospectively fit improved sound insulation. Still, the landlord completed works to mitigate noise transfer from the neighbour’s kitchen. This was a reasonable step and the works were approved by the landlord’s surveyor.
Though the resident’s preference was noted, the landlord was not obliged to complete extensive soundproofing works. Further, no information was seen to show more extensive works were recommended by a suitability qualified professional. In addition, given the lack of supporting evidence, it is reasonable to conclude that, at the time of the complaint, additional soundproofing works were both unnecessary and disproportionate. It was noted the resident’s preferred works may also have a negative impact on the neighbour.
The timeline shows it was appropriate for the landlord to handle the dispute through its domestic noise policy. By improving the neighbour’s kitchen flooring, it went beyond its obligations. It was also noted the landlord received conflicting (and potentially unhelpful) information from EH during the timeline. It is typically for EH to determine whether noise amounts to a statutory nuisance. Nevertheless, the timeline points to some issues with the landlord’s approach. Specifically, it suggests there were delays and incorrect information was provided.
For example, though it subsequently apologised, the landlord failed to promptly notify the resident that upcoming soundproofing works were delayed. This was based on the period between 21 and 31 October 2022. Further, it took just over a month for the landlord to complete a post inspection in line with the resident’s request. For clarity, the Ombudsman considers 1 month a reasonable period to complete routine repairs and inspections. More significantly, the timeline shows the resident was not updated about the post inspection until 22 February 2023.
This was around 9 weeks after the post inspection took place. Given its importance to the resident, this represents an unreasonable delay. In addition, the timeline suggests the resident was advised the landlord could arrange a sound surveyor’s inspection. In her recent update to the Ombudsman, she stressed the landlord failed to fulfil this commitment. No information was seen to confirm what the landlord said. However, it is reasonable to conclude that, in any case, it failed to manage the resident’s expectations accordingly.
It was noted these issues occurred after the landlord’s final response on 30 September 2022. Nevertheless, they relate to the resident’s core complaint and the Ombudsman has seen sufficient information to make a fair assessment. With a view to resolving matters promptly for both parties, the above identified delays, of around 12 weeks in total, amount to service failure by the landlord. The Ombudsman will order proportionate compensation to put things right for the resident based on the information seen.
Service failure is a proportionate finding given the information seen. For example, no information was seen to show the above identified issues were subjected to the landlord’s complaints process. In other words, it was unclear if the landlord was given a fair opportunity to put things right internally prior to the Ombudsman’s involvement. Further, given the lack of evidence to show there was a significant ongoing noise problem, there was no evidence to support the high level of impact the resident has asserted. In other words, there was no evidence to suggest the landlord should have done more.
It is recognised the resident is having difficulty obtaining supporting evidence. Further, the situation is both distressing and frustrating for her. It was noted, in her June 2022 Citizen’s Advice complaint, the resident said she previously provided the landlord with supporting diaries and recordings. No information was seen to show the landlord’s response to this information. Since there was no evidence of a related failure on the landlord’s part, the Ombudsman will make a recommendation intended to help the resident progress her concerns.

The landlord’s complaint handling

The landlord identified a complaint handling delay at stage 2. Its final response wording shows it awarded the resident £50 in related compensation based on the duration of this delay. After deducting the landlord’s relevant timescale, the timeline confirms the delay was around 15 working days. Given the circumstances, compensation was appropriate and the landlord’s award was reasonable. Nevertheless, the timeline shows the landlord failed to identify important issues that occurred before stage 2.
Significantly, it confirms the landlord failed to respond appropriately to the resident’s initial complaint on 5 April 2022. The resident told us she ultimately had to raise her concerns again. The timeline supports this assertion. It shows she engaged Citizen’s Advice to progress the complaint on her behalf. It is reasonable to conclude this was both unnecessary and inconvenient for her. The timeline suggests, rather than log a formal complaint, the landlord attempted to resolve matters informally on 10 June 2022.
Given the above, the timeline points to a delay of around 3 months at stage 1. This was based on the period between 5 April and 15 July 2022. This was inappropriate and caused the resident additional distress and inconvenience. On that basis, the landlord should have attempted to put things right for her. The landlord also exceeded its 10 working day response timescale when it received the resident’s complaint through Citizen’s Advice. Further, it failed to identify the resulting delay (which was a similar duration to the delay at stage 2).
In summary, the landlord failed to identify, and therefore address, significant delays and failures during its internal complaints process. To avoid similar issues going forwards, it should routinely consider its own complaint handling during every complaint investigation. This consideration should begin with a resident’s initial complaint and include the landlord’s handling at stage 1. This approach will allow the landlord to fairly address any previous delays and failures at stage 2.
Given the above, there was maladministration in respect of the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Service failure in respect of the landlord’s response to the resident’s reports of noise nuisance.
2. Maladministration in respect of the landlord’s complaint handling.

Reasons

There was insufficient evidence to for the landlord to act against the neighbour. Though it was not obliged to do so, the landlord completed works to mitigate noise transfer from their kitchen. This was a reasonable step and there was no evidence the works were defective. There were some delays and failures after the landlord’s final response.
The landlord failed to identify, and therefore address, significant delays and failures during its internal complaints process. For example, its failure to respond accordingly to the resident’s initial complaint a caused a 3 month delay, which resulted in additional distress and inconvenience. The landlord should have addressed this during its internal complaints procedure.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident a total of £350 in compensation within 4 weeks. Compensation should be paid direct to the resident and not offset against any arrears. The compensation comprises:
1. £100 for any distress and inconvenience the resident was caused by the landlord’s response to her reports of noise nuisance.
2. £250 for any distress and inconvenience the resident was caused by the landlord’s complaint handling. If it has already paid this amount, the landlord is free to deduct the £50 it previously awarded at stage 2.
The landlord to share the report’s key findings, around complaint handling, with its relevant staff for learning and improvement purposes. The landlord should share a copy of its related internal communication with the Ombudsman within 4 weeks.

Recommendations

A senior noise nuisance/ASB handler to contact the resident, by phone or in writing, to explain the available next steps. They should confirm the landlord’s expectations in terms of evidence, along with the evidence gathering resources available to the resident. This is to ensure the resident has full clarity about the options available to her. For a holistic approach, the landlord could consider arranging a joint stakeholder between the resident, the landlord, and EH.
The landlord should provide evidence of compliance with the above orders and confirm its intentions with regards to the recommendation within 4 weeks.