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Peabody Trust (202009412)

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REPORT

COMPLAINT 202009412

Peabody Trust

23 July 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 response to the resident’s reports of noise nuisance from a neighbouring property.

Background and summary of events

Background

  1. The resident was an Assured Shorthold tenant of the landlord. The tenancy commenced on 21 August 2009 and ended in April 2021. The property is a second floor flat in a building with other similar properties.
  2. The property situated above the resident’s is the one in which this complaint concerns. Two previous antisocial behaviour (ASB) cases had been opened with the landlord regarding ASB and noise nuisance from the said property that related to the same perpetrator, who was the tenant at the time. One was opened in January 2020 and was subsequently closed in May 2020, as there were no further reports of ASB. The other ASB case was opened in September 2020 and later closed at the end of November 2020 because the perpetrator was leaving the property. These were separate issues raised with the landlord and are mentioned in this investigation for context only, as they related to ASB from a specific perpetrator residing in the property above. Both cases were later closed by the landlord and did not form part of this current complaint.

Summary of Events

  1. The landlord’s records show that it spoke to the resident on 24 November 2020 and informed her that the tenant in the property above had given notice that they were moving out. The resident requested that the flooring be repaired and insulation be installed before the next tenant moved in, to help with the noise transference into her property, which had been a component of the two aforementioned ASB complaints.
  2. The landlord’s records show that, on 26 November 2020, the landlord informed the resident that it would ask the voids team to look at the flooring in the property above and remove the laminate flooring which it said should not be there.
  3. The landlord received an email from the resident’s MP on 4 January 2021 that requested the landlord respond to the resident’s concerns regarding noise issues. The MP referenced an email the resident had sent to the MP on 11 December 2020 in which the resident had said that, after several complaints made about the flooring in the property above her own, she had not heard back from the landlord about a repair and nor had the landlord inspected the noise she was experiencing. She had also said that she had spoken to contractors who were carrying out work on the property above whilst it was empty, but they confirmed they had no directive to check the flooring.
  4. She added that she called the landlord that day who had advised her she needed to wait until the property was tenanted, to see if the resident suffered the same level of noise. She did not believe the landlord had any intention of fixing the issue and she complained that it was not helping her transfer from the property. She concluded by expressing her concern that if the property above does not have proper flooring installed, it could cause distress and inconvenience when it is re-tenanted.
  5. The landlord’s records show that it spoke with the resident on 7 January 2021 and confirmed that it would attend to inspect the flooring and contact her with an update once it had done so.
  6. In an email to the resident’s MP on 18 January 2021, the landlord explained that it was aware of the issues with noise transference from the property above the resident’s, and it had recently attempted to arrange for the floorboards to be checked and tightened while it was being prepared for a new tenant. However, it said that the work order did not make it to the contractor in time and the property had since been tenanted. It said that it was waiting for contact from the new tenant so that it could gain access to the property and then it could inspect the flooring.
  7. On 3 February 2021, the resident contacted this Service to highlight her disappointment that, despite her previous contact with the landlord regarding the noise transference, where she was told that contractors would be attending to inspect the property above, a new tenant had since moved into the property above, on 19 January 2021, yet no one had contacted her with an update. She advised that the situation was exacerbating her medical condition.
  8. In the landlord’s stage one complaint response of 11 February 2021, the landlord explained that it had carried out an inspection of the property above (no details of when this took place have been provided to this Service), which concluded that there were no obvious repairs to undertake that would improve the noise transmission.
  9. In the resident’s escalation email, dated 11 February 2021, she maintained that the landlord had not investigated the noise issue from the perspective of her own property and asked how the landlord could gain an understanding of the problem if it had not done so. She explained that now the new resident had moved into the property above, the noise nuisance was ‘overwhelming’ and was affecting her health. She asked when the inspection was completed on the property above.
  10. The landlord received an email from this Service on 14 February 2021, which advised it that the resident remained dissatisfied with the landlord’s stage one response and she therefore wished to escalate the complaint. The resident also sent an email that day clarifying that she wished to escalate her complaint. The resident said that she had been trying to get a resolution to the noise transference for two years and there had been little action taken by the landlord in that time to resolve the issue. She contended that the landlord was not interested in finding a solution and no repair had been completed.
  11. The landlord acknowledged the resident’s escalation request on 18 February 2021, which confirmed that the resident would receive a response by 17 March 2021.
  12. In the landlord’s stage two complaint response of 17 March 2021, the landlord first apologised that the request to check the floorboards in the above property was not received in time whilst the property was void. However, it confirmed that, once the new tenant moved in, it had gained access and carried out an inspection of the flooring, which found there were no necessary repairs needed to help reduce the transference of noise. Moreover, it found no movement nor excessive noise when walking on the flooring.
  13. It also confirmed that, due to budgetary restrictions, it would not be able to provide insulation at this stage. It added that sound proofing does not always eradicate the transference of noise due to the age of the property and, where residential properties are placed together, there may always be an element of noise transference. In conclusion, the landlord did not uphold the complaint on the basis that it was satisfied that it took the correct measures to inspect the flooring in the property above.
  14. The resident ended her tenancy on 3 April 2021.

Assessment and findings

Policies and Procedures

  1. Section 4.9 of the landlord’s antisocial behaviour policy states that it will only investigate noise nuisance where the noise is frequently excessive in volume and duration or occurs at unreasonable hours.
  2. Section 4.13 states that it will agree an action plan with the complainant and any witnesses and keep them informed of the actions it takes.
  3. Section 4.14 states it will close a case after investigation and appropriate action is taken and where:
    1. it is successfully resolved;
    2. there are no further reports for a period of 6 weeks (unless we have begun legal action or are gathering further evidence) or earlier if agreed with the complainant; or
    3. no further action can be taken.
  4. The landlord’s compensation policy states that compensation payments are made when a person has experienced a delay or has incurred additional costs because of a service failure on its part or if it has failed to carry out a service within its published guidelines.
  5. The landlord categorises compensation for time, trouble, and inconvenience into three categories: minor, moderate, and extensive disruption. For minor disruption, which is described as a service failure of low impact and low effort to resolve, the landlord can offer up to £100.00. For moderate disruption, which is described as a service failure of low impact but of high effort to resolve (or vice versa), the landlord can offer compensation between £101 to £300. For extensive disruption, which is described as a service failure of high impact and high effort to resolve, the landlord can offer compensation between £301.00 to £400.00.

Scope of investigation

  1. It is noted that the resident has reported that the situation has had a negative impact on her health conditions. The Ombudsman does not doubt the resident’s comments regarding her medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, we have considered the general distress and inconvenience which the situation has caused the resident. The resident may be able to make a personal injury claim against the landlord if she considers that her health has been affected by its actions. This is a legal process and the resident should seek independent legal advice if she wants to pursue this option.
  2. Further, the resident has mentioned that she had raised other complaints regarding the landlord’s response to her request to be rehoused, the landlord’s response to a number of reports of repairs required to the property, and the landlord’s response to her reports of ASB dating back to 2013. For clarity, these are separate issues raised with the landlord and do not form part of this complaint. As such, this investigation will focus solely on the landlord’s response to the resident’s most recent reports of noise nuisance only.

The landlord’s response to the resident’s reports of noise nuisance from a neighbouring property

  1. The Environmental Protection Act 1990 states that noise (including vibration) emitted from premises to be prejudicial to health or a nuisance constitutes as a statutory nuisance. It states that where a complaint of a statutory nuisance is made to the landlord by a person living within its area, the landlord is to take such steps as are reasonably practicable to investigate the complaint.
  2. In this case, it is evident that the landlord undertook an inspection of the flooring in the property above the resident’s, which would constitute a reasonable step to take, to investigate whether the issue with noise transference could be addressed or minimised by carrying out any necessary repairs.
  3. Following the inspection, it was reasonable for the landlord to rely on the findings of its qualified staff and contractors, who concluded that there were no obvious repairs required to the flooring. The landlord’s decision to only look at potential repairs at this stage, whilst the property was void, was reasonable in the circumstances, as there was no indication, at that point, to suggest that the new tenant would also create noise similar to that of the previous tenant. Moreover, its later explanation, in its stage two response of 17 March 2021, that it was unable to install insulation due to budgetary constraints was adequate, as the landlord was under no legal obligation to do so.
  4. Furthermore, its perspective that, due to the age of the building and the proximity of the properties, it may not be able to eradicate all noise transference was a reasonable expectation to relay to the resident, as some noise transference would be expected, and may be deemed as everyday household noise, which would not constitute as statutory noise nuisance and thus no formal action could be taken.
  5. In these circumstances, therefore, a landlord should await further reports from a resident once the new tenant has moved in, if any, and then consider what other measures it could take in accordance with its antisocial behaviour policy above at paragraph 18 and its obligations to take such steps that are reasonably practicable to investigate. The landlord would be required to establish whether the noise was excessive and to consider whether the noise occurs at unreasonable hours so that it could make an informed determination about the next actions.
  6. In order to do so, a landlord has multiple options such as installing noise monitoring equipment, conducting eye-witness accounts by its staff and/or professional witnesses, and by requesting that the resident keep a diary of the dates, times, and frequency of the instances.
  7. However, following further reports of noise nuisance after the new tenant had moved in on 11 February 2021, the landlord has not endeavoured to take reasonable and practicable steps to investigate further, as per its obligations. In accordance with the landlord’s ASB policy, the landlord will only investigate noise nuisance where the noise is frequently excessive in volume and duration or occurs at unreasonable hours. For a landlord to establish the severity of the noise and comply with its obligations, it should have conducted a further investigation, using the aforementioned tools to help it make an informed determination. Instead, the landlord has reiterated its position following the initial inspection: that there was nothing further it could do to help resolve the issue, having established that no repairs were required.
  8. Because the landlord did not demonstrate that it had taken the sufficient steps to establish the severity of the noise, following the neighbouring property becoming tenanted once again, this would constitute a failure by the landlord.
  9. As such, when a landlord is at fault, it needs to put things right by acknowledging its mistakes and apologising for them, explaining why things went wrong, and confirm what the landlord will do to prevent the same mistake happening again; it could also offer compensation as a way of redress when it is unable to put the resident back in a position they were in before the complaint was made or if the severity of the situation deems it necessary.
  10. As the resident moved out of the property on 3 April 2021, the landlord would not be in a position to carry out further investigation. Still, the landlord should provide compensation as redress, to put matters right, as far as possible, in acknowledgment of the distress and inconvenience caused, and for the time and trouble spent pursuing the matter with the landlord, her MP, and this Service.
  11. What is more, the landlord should also provide compensation for its poor communication and for the delay in conducting the initial inspection of the flooring, following the landlord’s confirmation on 26 November 2020 that it would inspect the above property whilst it was not tenanted. The exact date of this inspection is not clear, but it is evident that it took place after the new tenant moved in January 2021 and the resident had to pursue the matter with the landlord rather than the landlord actively keeping her updated. The resident had found out that the voids team had not been advised to check the flooring by the contractors themselves and there is no evidence that the landlord was keeping her sufficiently updated with proceedings. In fact, it was not until 11 February 2021 that the resident was informed that the inspection had actually taken place, approximately two months after she had requested the issue be looked at.
  12. The landlord did offer an apology for the delay in carrying out the assessment of the flooring during the complaint process, but this was not sufficient redress to satisfactorily resolve this aspect of the complaint and therefore compensation should be offered.
  13. In short and in light of the above identified failings, and in accordance with the landlord’s compensation policy above at paragraphs 21 and 22, the landlord should provide compensation in line with its definitions for minor and moderate disruption.
  14. Finally, though we were still able to determine this case using the information that was available, it is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. Only limited information was received, which did not include significant items such as the date that the inspection took place and the tenant’s handbook. In this particular case, the investigation has been able to reach a determination based on the information available. However, the omissions indicate poor record keeping by the landlord in that it was not able to provide the relevant information when asked. A recommendation will therefore be made.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord for its response to the resident’s reports of noise nuisance from a neighbouring property.

Reasons

  1. The landlord did inspect the flooring in the above property, which concluded that there were no obvious repairs required that would alleviate any of the noise transference into the resident’s property following the previous tenant moving out. However, once the property was tenanted again, the landlord should have further investigated the resident’s reports of noise nuisance, in accordance with its obligations, so that it could demonstrate that its determination was evidence-based. The landlord has missed the opportunity to further investigate and thereby make a more informed decision of the severity of the noise.
  2. Furthermore, there were further service failures identified for the delay in conducting the initial inspection of the flooring in the above property and for the landlord’s related poor communication, whereby the resident was actively pursuing a response from the landlord rather than the landlord keeping the resident informed of the progress.

Orders and recommendations

Orders

  1. That within 28 days of the date of this determination, the landlord is to pay the resident compensation of £250.00, which is broken down as follows:
    1. £150.00 for not conducting a thorough enough investigation into the noise following the new tenant’s arrival.
    2. £50.00 for the delay in carrying out the inspection of the flooring in the neighbouring property.
    3. £50.00 for its poor communication.
  2. The landlord is to confirm to this service that it has complied with the above order within 28 days of the date of this determination.

Recommendations

  1. It is recommended that the landlord conduct a review of its record keeping in light of the omissions detailed in this report.