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Peabody Trust (202211489)

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REPORT

COMPLAINT 202211489

Peabody Trust

12 April 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

  1. The complaint is about the landlord’s handling of the resident’s:
    1. Reports of noise nuisance and antisocial behaviour (ASB).
    2. Formal complaint.

Background and summary of events

Background

  1. The resident is the assured tenant of the property, which is a 2-bedroom flat, and lives with her husband and 2 children. The resident, her husband and daughter have been suffering from poor mental health due to the circumstances of the complaint. Her husband also has a physical medical condition. For ease of reading, the resident and her husband are both referred to as the resident in this report. The landlord is a housing association.
  2. Under the tenancy agreement residents must not cause ASB or noise which is loud enough or happens often enough to cause a nuisance or annoyance to neighbours. The tenancy agreement also states residents must not lay laminate or wood floorings without the landlord’s permission.
  3. Under the landlord’s ASB policy defines ASB as per the Antisocial Behaviour, Crime and Policing Act 2014 as conduct which has, is likely or capable of causing harassment, alarm, distress, nuisance, or annoyance. The policy says “repeated prolonged high-level noise nuisance” is ASB but everyday noise such as footsteps and children playing is not. The landlord will carry out a risk assessment when ASB is reported. It will manage expectations and be clear on what actions it can take. It should contact the resident and the perpetrator. It will consider evidence gathering and suggest use of the noise app or noise monitoring equipment. Under the policy it may offer mediation where there is a neighbour dispute, can issue warning letters, use acceptable behaviour contracts, or take legal action if appropriate and proportionate.
  4. The Housing Act 2004 introduced the Housing Health and Safety Rating System (HHSRS). One of the 29 identified hazards is noise and covers “exposure to noise in the home caused by a lack of sufficient sound insulation.” Landlords have an obligation to minimise or remove the identified hazards.
  5. The Ombudsman’s Spotlight Report on Noise Complaints: Time to be heard, sets out recommendations for landlords in their handling of noise complaints.
  6. The Housing Ombudsman’s Complaints Handling Code (the Code) sets out how a landlord should respond to complaints. Under paragraph 5.1 a landlord should respond to a stage 1 complaint within 10 working days. The landlord should escalate the complaint if asked to do so (paragraph 5.10) and should respond within 20 working days or ask for an extension which must not exceed a further 10 working days without good reason (paragraph 5.13).
  7. The landlord defines a complaint as per paragraph 1.2 of the Code under its complaints policy in use at the time of this complaint. It operates a 2 stage complaints process. It will record stage 1 complaints within 5 working days and respond within 10 working days unless it has agreed an extension with the resident. It will respond to stage 2 complaints within 20 working days unless an extension is agreed with the resident. The Ombudsman notes the landlord has updated its policy and its most recent version complies with the Code regarding length of timeframe extensions.

Summary of events

  1. The resident returned to the property on or around 30 May 2022 having given birth to her second child and started to experience noise nuisance from the flat above. On 20 June 2022 she called the landlord to report the noise as ASB. The following day she also reported the noise to the council. The landlord opened an ASB case on 5 July 2022 and noted the resident had spoken to the neighbour’s father 3 weeks previously about the noise. She said the father told her he would install flooring.
  2. The same day the resident emailed the landlord and said she had been completing diary sheets and recordings on the noise app and asked it to approve the use of this. She also invited it to visit and witness the noise, which she described as banging from above. The following day the landlord replied and said it had reviewed the evidence and it was general household noise. It said it had spoken to the neighbour who said she had just moved in and did not have carpet. The landlord said it would support the neighbour to have “carpet fitted within the next 4-6 weeks.”
  3. On 25 July 2022 the resident called the landlord. Its note of the call said she said the noise was an historical problem, and the previous landlord had provided the previous tenant with carpet and underlay to solve the problem.
  4. The resident emailed the landlord’s chief executive on 8 August 2022 to ask for help. She said there was banging and continuous noise from the flat above and the neighbour did not have carpet. She had raised this with the landlord and had noise app recordings, but it had not approved the use. The noise was getting louder, and it had not kept to its 4-6 week timescale to fit carpet, which she said the landlord had told her it should not have committed to. The noise was affecting her teenager and newborn child, she thought the neighbour did not care and she wanted to move.
  5. On 9 August 2022 the landlord replied and said it could not agree a timeframe for fitting carpet, but it would work to do this in the hope it would resolve the issue. It also said to report any loud music to the council and to continue with diary sheets. The resident emailed the landlord and asked how long they were expected to wait as the noise was affecting her children. Noise could be heard in all rooms from above, it was affecting their sleep, and she was still waiting for the landlord to approve use of the noise app. The landlord replied that it would update her when it could and it would speak to the neighbour to see if this reduced the level of noise. It also said, in response to her not being able to contact a named member of staff, that “we do not provide direct contact details for staff”.
  6. The landlord’s records show it spoke to the neighbour that day, who raised some medical issues meaning carpet would not be suitable. It noted that it had asked for proof of this and of the current flooring, and that it had requested a noise monitoring device for the resident. It noted on 15 August 2022 that it had carried out a risk assessment and the score was low.
  7. On 25 August 2022 the landlord emailed a professional services company to arrange for a professional witness to visit the property to monitor the noise. The resident emailed the landlord for an update on 30 August 2022 and said that, historically, installing carpet had solved the noise issue and she questioned why it was taking so long for it to do this.
  8. The resident contacted the Ombudsman which emailed the landlord on 30 August 2022 to ask it to provide a complaint response. The landlord registered this request as a stage 1 complaint and provided its response on 7 September 2022, in which it:
    1. Defined the complaint as the neighbour making excessive noise and that the resident wanted it to install soundproofing or carpet.
    2. Said the resident raised the issue in July 2022 when it opened an ASB case, it had spoken to the neighbour and was told it was household noise and not deliberate.
    3. Confirmed it had discussed carpet with the neighbour but could not “compel them” to have this fitted.
    4. Said it was arranging a professional witness to gather evidence, which could lead to tenancy action if the noise was ASB. It also suggested mediation and strongly advised this option.
    5. Did not uphold the complaint and explained how it could be escalated.
  9. On 16 September 2022 the landlord’s records say it spoke to the neighbour about the noise and followed this with an email. It received a report from the professional services company on 20 September 2022 after the professional witness attended on 15 September 2022. The company said, “there certainly is a problem here” and the report states “the noise from the flat above is extremely intrusive”. Over the 4-hour monitoring period the report noted 9 separate incidents of noise it described as “loud, vibrating and intrusive”.
  10. The landlord called the resident on 23 September 2022 after receiving the report and said it recommended laying laminate flooring with heavy or industrial underlay in the flat above. The resident emailed it on 4 October 2022 and asked why the flooring still had not been installed. She reiterated how the noise was affecting her family’s mental health and that it had been constant. The landlord attended the neighbour’s property on 6 October 2022 with a flooring company to obtain a quote.
  11. On 11 October 2022 the resident and landlord exchanged emails. She said it had not replied to her email and she wanted to escalate her complaint. The landlord replied the following day and said it had sent a letter (which it did on 7 October 2022) and provided a copy. The resident said she still wanted to escalate her complaint and the landlord confirmed it would.
  12. Between 21 and 24 October 2022 the resident and landlord exchanged further emails. The resident said the flooring was fitted on 19 October 2022 but that it had made the noise worse. There had been a leak from above and she had called the fire brigade, who she said told her the flooring had caused the leak. She asked who had fitted it and said she had no electric. The landlord confirmed its contractor had fitted the flooring and it would investigate, but it had chosen it as it was meant to reduce noise transfer. It said it would put her on the list for noise monitoring equipment and ask if the neighbour would put down rugs.
  13. The resident said she believed the noise was intentional and that the neighbour did not care. She asked for soundproofing or to be moved and for the noise app to be authorised. The landlord replied the flooring was “said to include acoustic dampening [and was] one of the best options on the market. The laying of an additional underlay was not an option [and] this was the assessments from flooring specialists.” It also said she could report noise to the council which may be able to investigate.
  14. On 27 October 2022 the resident emailed the landlord to describe the noise. She said “we constantly hear banging, thudding and jumping above our heads in all rooms of our property so there is no respite…it’s the sheer volume of the noise transference and the vibrating through the floor joists”. She emailed again on 3 November 2022 and said the noise monitoring equipment had been installed, but she was concerned as it was not portable and so only recorded from the living room.
  15. The resident emailed the landlord on 8 November 2022 to report noise being made by the neighbour’s chairs hitting the balcony in the wind. She emailed again the following day to report that, after the landlord had spoken to the neighbour about the noise, she had gone onto her balcony to scream “profanities while banging the metal door”. She believed this was retaliatory and wanted to move. She also reported a further leak from above. Between 13 and 14 November 2022 the resident and landlord discussed the leak in emails, with the fire brigade attending the neighbour’s property again.
  16. In emails sent by the resident on 15 November 2022 she told the landlord about her husband’s medical conditions and her decline in mental health and provided a letter from her GP. She said they were on medication, did not feel safe, and wanted to move. The landlord said it would take action if the results of the noise monitoring equipment showed the noise to be ASB, but if it did not then it strongly encouraged mediation. It said it did not move residents because of “neighbour disputes” but its regular options to move were available. The resident provided further medical letters and a letter from her daughter’s school on 23 November 2022, which stated the effects the noise was having on them. The landlord explained its criteria for a management move and medical move.
  17. On an unknown date in November 2022 the professional services company sent the noise monitoring equipment report to the landlord. It noted multiple occurrences of “thuds/heavy footfall” with varying decibel levels. Between 5 and 15 December 2022 the resident emailed the landlord for the results of the report. The landlord wrote to her on 14 December 2022 with the outcome. It said the noise heard ranged from 35-40 decibels (which was incorrect) and was considered “acceptable and not intrusive”. It did not have evidence of unreasonable behaviour and most of the heavy footfall was during the day, when only “excessive prolonged noise” was considered a nuisance. Therefore, it said it would not take any further action, but still recommended mediation.
  18. The resident emailed the professional services company directly to question its positioning of the noise monitoring equipment and it replied to her on 19 December 2022. It explained that it used its experience and expertise to do this, explained why it could not offer portable equipment, and said that it was independent of the landlord.
  19. On 20 December 2022 the landlord called the resident about a report of racist abuse she had made. She said her neighbour had used racist language directed at her while on her balcony. The landlord also emailed the resident to ask for further information and asked whether this had been reported to the police. It is not known whether the resident provided this. The resident emailed the landlord the following day to report further noise during the night.
  20. The resident emailed the landlord on 5 January 2023 and said it was only interested now there had been a racist incident. She had not called the police for fear of retaliation. She asked for a copy of the noise report and for it to visit to witness the noise. She also said she had raised a stage 2 complaint in October 2022 but had only received holding emails explaining the reasons for the delays (no evidence of these emails has been provided to this Service by the landlord).
  21. In internal landlord emails of 23 January 2023 it said it had been contacted by the council about the noise. It discussed the noise report and said it “showed that there are noise transference between the flats as expected” and it “would be best” to ask the council to investigate.
  22. The landlord provided its stage 2 response on 15 February 2023 in which it:
    1. Set out the complaint history and its actions and said it had not managed the resident’s expectations effectively; it should have been clear it could not force the neighbour to have floor coverings.
    2. Said after the professional witness attended it used noise monitoring equipment and explained the noise was household and offered mediation.
    3. Confirmed it did “not normally undertake sound insulation works, but instead evidences the degree and severity of noise”.
    4. Repeated that it could not take any tenancy action as the level of noise was not a breach of tenancy. It had followed its ASB policy but had not managed her expectations.
    5. Apologised for its delay with her stage 2 complaint and offered £50 compensation. It also offered £50 for not managing her expectations.
    6. Said the resident could contact this Service if she remained dissatisfied.

Events after the end of the landlord’s complaints process

  1. The landlord’s records say it held a community trigger meeting but decided to close the ASB case on 17 April 2023.
  2. The resident instructed a solicitor, who wrote to the landlord on 19 May 2023 to ask it to apply for a management move. The landlord replied on 30 May 2023 agreeing to apply, although it refused her application on 11 September 2023.
  3. On 19 July and 7 September 2023 the resident emailed the council to ask for help with her noise case. She also contacted her MP who emailed the landlord.
  4. The council and landlord completed a joint visit and sound test on 5 October 2023. Following this, the council served a Hazard Awareness Notice on the landlord under section 29 of the Housing Act 2004. It said there was a Category 2 noise hazard under the HHSRS and recommended works to rectify this. The landlord discussed the notice in internal emails on 31 October and 10 November 2023 in which it emphasised it was “advisory only”. It also said that if it followed the recommendations there was a likelihood sound proofing would be recommended and this was expensive, not in accordance with its policy, and may set a precedent. In said that ‘as a way of avoiding this and any escalation’ residents would be offered a management transfer.
  5. On 20 November 2023 the landlord approved a management move and the resident was given priority. Following a further email from the resident’s solicitor the landlord said on 7 February 2024 there was no timeframe for the resident to be offered an alternative property. It acknowledged that there was an (possibly structural) issue, but it was not its policy to carry out the extensive and costly works needed to eliminate the noise.
  6. At the date of this report the resident has told the Ombudsman that she still lives at the property and is still experiencing the same level of noise. She said she is constantly waiting for a call to say she can move and end the situation she has been living with for nearly 2 years. She also said that her family’s mental health has suffered and that it has felt like a fight trying to get the landlord to do anything.

Assessment and findings

The landlord’s handling of the resident’s reports of noise nuisance and ASB

  1. The resident said that she started to report noise in June 2022, but the landlord failed to open an ASB case until 5 July 2022. As the landlord does not have a separate noise policy or process, it started to follow its ASB policy. It correctly considered the evidence the resident provided and spoke to the neighbour. It decided, based on the evidence and conversation, that the noise was household and due to the neighbour moving in, which was a reasonable conclusion to make at that time.
  2. The landlord also correctly considered the affect the neighbour not having carpet would have on the noise produced and said it would assist her in having this fitted which was solution focused. It gave a timeframe of 4-6 weeks but later said it should not have done this. It is not clear whether the neighbour had agreed to have carpet, or flooring, fitted at this time but if she had then stating the timeframe was reasonable. The landlord then did not take any action, even after the resident advised that carpet had solved the problem previously before it became the landlord. Following the resident’s email of 8 August 2022 the landlord would have been aware that the noise still being reported and was no longer related to the neighbour moving, yet it had still not taken any steps to install flooring, which was a failing.
  3. Prompted by the resident’s email to its chief executive, the landlord spoke to the neighbour on 9 August 2022 to ask her to be more considerate and about the carpet. It correctly asked for evidence when the neighbour raised medical reasons why she could not have carpet. However, there is no evidence the landlord had spoken to her between its first call and this one, which was not a sign it was taking the resident’s complaints seriously and was a failing. It also delayed in carrying out, or recording, a risk assessment until 15 August 2022 which was a failing under its policy as it should have done this when it opened the ASB case.
  4. The landlord’s lack of action on flooring led the resident to make a complaint via the Ombudsman on 30 August 2022. Its response said it could not compel the neighbour to have carpet fitted which was correct. It does not have a policy on flooring, however, under the tenancy agreement permission is required for hard flooring, which left no flooring the remaining option (which it is presumed was the situation at that time).
  5. The landlord also said it had arranged for a professional witness and suggested mediation. The landlord’s thinking appears confused. On the one hand it appeared to accept that the lack of appropriate flooring was the cause of the noise transference, and on the other it was arranging for an ASB investigation and suggestion mediation. However, arranging a professional witness was a positive step.
  6. The landlord considered the professional witness’ report and then correctly considered what other flooring options it could use. However, it should have done this sooner. The landlord arranged a quote within 2 weeks of its decision and the flooring was installed within 2 weeks of the quote, which were reasonable timeframes. However, by now, over 3 months had passed since the resident’s ASB case was created and the neighbour had confirmed she did not have flooring. Considering the effect the noise was having on the resident and her family, and that she had consistently told the landlord about this, 3 months was an unreasonable delay in trying to resolve the issue. It also unreasonably delayed in approving use of the noise app, which was provided for under its policy.
  7. It is unfortunate that the flooring fitted did not resolve the noise issue and it is accepted that the landlord followed the advice of the flooring company on what to install. It is also correct that the landlord had due regard to the neighbour’s medical conditions as required under the Equality Act 2010. The resident raised in response that the landlord had not had regard for her and her family’s mental health and that was a valid point.
  8. By October 2022 the resident believed the neighbour was making noise deliberately (although there is no evidence of this) but the neighbour, in living her life, possibly without any consideration, may have led to this conclusion. The landlord did not give any verbal or written warnings under its policy, and so appears to have accepted that the issue was with the building and not the neighbour, but then contradictorily arranged for noise monitoring equipment. The resident did report the neighbour shouting profanities after being spoken to by the landlord which would constitute ASB.
  9. The landlord did respond to the resident’s reports of racist language being used by the neighbour, but it is not clear whether it received all the information it needed, or evidence, to have been able to act on this.
  10. Following receipt of the noise monitoring equipment report, the landlord determined the noise to be household, acceptable and not intrusive, which was opposite to the conclusion reached by the professional witness. The landlord said it could not take tenancy action against the neighbour, which was correct. However, it seems to have missed the point. In considering the issue under its ASB policy it had blinded itself to the actual problem, which was noise and not tenant behaviour.
  11. Determining that noise is not intentional, extreme, or prolonged (which is disputed by the resident) does not eliminate the noise or find a solution to it. While accepting that a landlord’s actions must be proportionate, at this point the landlord gives up and simply advises mediation which in the circumstances would not solve the issue. This is further evidenced by it preferring the council to investigate.
  12. Throughout, the resident had asked to move but the landlord only seriously considered this after she instructed a solicitor, and after its stage 2 response. It only agreed to this after a joint visit with the council, and after being served a Hazard Awareness Notice. It had followed its policy on moves in previously denying the request. Its final agreement however was disingenuous and designed to avoid the issue being escalated by the council as evidenced in its internal emails.
  13. While the landlord may have a policy not to install soundproofing (which it has not provided to this Service) its approach in this complaint demonstrated a complete refusal to demonstrate the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes. No consideration was given to physical remedies even when it accepted the cause of the noise was likely to be structural, and the council’s specialist advised further investigation. No consideration was given to whether discretion could have been exercised due to a view of setting a precedent, which is the opposite of being solution focused. When the resident eventually moves the problem will remain for the next resident.
  14. Considering the landlord’s response and actions, and what is fair in all the circumstances, there was severe maladministration. This caused, and continues to cause, distress, inconvenience, frustration, time, and trouble to the resident. To reflect the impact an order has been made that the landlord pay £1,500 compensation to the resident.

The landlord’s handling of the resident’s formal complaint

  1. It is not clear when, how, or if the resident raised a complaint about the landlord’s handling of her ASB case directly with it. Following the Ombudsman’s request the landlord promptly raised a complaint within its 5-working day timeframe and responded within its 10-working day timeframe and in compliance with the Code. Its response was also Code compliant.
  2. Following the resident’s request to escalate the landlord acknowledged this within its policy timeframe. The resident said it sent emails stating its response was delayed but these did not give a good reason or set a timeframe as required under paragraph 5.13 of the Code and was a failing.
  3. The landlord provided its stage 2 response on 15 February 2023, 88 working days after escalation. This was an unreasonable delay in breach of its policy timeframe and further breach of paragraph 5.13 of the Code. Recognising its delay the landlord apologised and offered £50 compensation.
  4. In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes, as well as our own guidance on remedies.
  5. There was service failure due to the delay, breaches of its policy and the Code, for which its offer of compensation did not adequately remedy. In addition, the landlord failed to say how it would prevent similar delays in future or how it had learnt from the complaint. To reflect the time and trouble caused to the resident an order has been made that the landlord pay £75 additional compensation.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was:
    1. Severe maladministration in relation to the landlord’s handling of the resident’s reports of noise nuisance and ASB.
    2. Service failure in relation to the landlord’s handling of the resident’s formal complaint.

Reasons

  1. There was severe maladministration as the landlord delayed in taking action to address the noise by fitting flooring. It did not give proper weighting to the independent witness report and misinterpreted the findings of the noise monitoring equipment. It failed to consider how to lessen the noise but focused on the neighbour’s behaviour even after it accepted this was not a deliberate cause. Its approach following service of the Hazard Awareness Notice also did not demonstrate it wanted to solve the issue or that it had learnt from the complaint.
  2. There was service failure as the landlord failed to respond to the stage 2 complaint within its policy timeframe and in breach of the Code. While it did send emails about extending the timeframe, these did not comply with the Code.

Orders

  1. Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Provide a written apology to the resident from the chief executive for the failures detailed in this report.
    2. Pay directly to the resident compensation of £1,625 made up of:
      1. £1,500 for the distress, inconvenience, frustration, time, and trouble caused to the resident by its severe maladministration.
      2. £75 for the time and trouble caused by its complaints service failure.
      3. £50 offered within its stage 2 response if it has not already done so.
    3. Provide evidence of its efforts in trying to find a suitable property to offer to the resident as a management move.
    4. Consider creating a noise policy separate from its ASB policy and provide evidence of its consideration to this Service.
    5. Consider the findings in the Housing Ombudsman’s spotlight report on Noise Complaints against any self-assessment it has done and report if there are additional actions it needs to take or how the actions it has already identified would prevent the same service failings reoccurring.
    6. Review how it monitors complaint response due dates to ensure it responds within its policy timeframes.
    7. Confirm compliance with these orders to this Service.