Royal Borough of Kensington and Chelsea (202100841)

REPORT

COMPLAINT 202100841

Royal Borough of Kensington and Chelsea

21 April 2022

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 resident’s complaint is that the landlord has not taken appropriate steps in response to her complaint of antisocial behaviour (“ASB”) by neighbouring properties and a neighbour’s use of a shed. The landlord’s complaint handling has also been considered.

Background and summary of events

2. The resident has raised issues regarding three separate neighbours: Neighbour A, B and C. The resident’s key issues were a complaint about noise by Neighbour A (construction noise), Neighbour B (in particular noise at night) and Neighbour C (a “constant thudding” coming from the property).
3. On 14 May 2020 the landlord visited Neighbour A’s flat in response to complaints from the resident about noise levels. On 10 July 2020 the landlord wrote a letter to Neighbour A noting that it had received reports that they were undertaking “unauthorised works” and the noise was disturbing neighbours. The landlord also referred to a party held on 3 July 2020. The landlord requested an in person interview.
4. On 17 July 2020 the landlord had an interview with Neighbour A.
5. On 1 August 2020 the landlord visited Neighbour C and did not identify anything that could be making a thudding noise. It identified that no complaints had been received from other neighbouring residences.
6. On 17 August 2020 an independent mediator appointed by the landlord contacted Neighbour A.
7. On 11 September 2020 the landlord wrote to Neighbour A advising that it had received complaints of loud noise occurring early in the morning and late at night. The landlord advised that this may be in breach of the tenancy agreement. The landlord requested that the resident carry out DIY works between 08:00 and 18:00 Mondays to Fridays and for no works that would “cause a disturbance” to be done over the weekend.
8. On 30 September 2020 the landlord visited Neighbour B and reminded him of his obligations under the terms of his lease. The landlord was satisfied with the flooring, but Neighbour B committed to putting down rugs. On 1 October 2020 the landlord sent a letter to Neighbour B reminding him of his obligations regarding noise and quiet enjoyment.
9. On 7 December 2020 the landlord confirmed that Neighbour B had put down new rugs.
10. On 21 December 2020 the landlord wrote to the resident stating that it had received a number of complaints from her throughout 2020 about works being undertaken and noise. The landlord noted that it had asked other residents to record any noise nuisance and report it. The landlord requested that Neighbour A be considerate of noise over the holiday period.
11. On 22 December 2020 Neighbour A complained to the landlord about the resident, stating that they felt harassed and that the resident was engaging in ASB. Neighbour A stated that they were happy to engage in the mediation proposed by the landlord, however the resident had not engaged with it.
12. On 23 December 2021 the landlord wrote to Neighbour A advising that there should not be works between 24 December 2020 to 4 January 2021.
13. On 4 January 2021 the resident wrote to the landlord raising issues about noise nuisance by three properties near her and the use of a shed by Neighbour A. On 5 January 2021 the landlord write a letter to Neighbour A asking for them to stop making excessive noise. The landlord wrote Neighbour A a letter on 6 January 2021 stating that no further works should be undertaken until a surveyor attended the property.
14. The landlord sent a formal warning letter to Neighbour B on 13 January 2021.
15. On 15 January 2021 the landlord sent the resident a stage one complaint response. The landlord stated that it had engaged with Neighbour A and had sent a warning letter about noise disturbances. It stated that it would be taking further steps to investigate. It stated that it had visited Neighbour B and written to him (and his tenants) to confirm their obligations. It stated that it had also visited Neighbour C and inspected the property. It had not identified anything that could be causing the thudding noise and had not received complaints from any other properties. The landlord apologised that the noise recording equipment it had provided earlier had failed and offered £50 compensation for this.
16. On 21 January 2021 a surveyor from the landlord attended Neighbour A’s property. On 21 January 2021 and 26 January 2021 the landlord wrote to Neighbour A requesting further information on the proposed works. The landlord also advised Neighbour A that the installing of flooring could cause noise and neighbours should be advised when it was being done. On 21 January 2021 Neighbour A wrote to the landlord advising that work would be undertaken between 11-5 on weekdays.
17. On 25 January 2021 the landlord had a call with the resident to discuss her response to the stage one letter. The resident stated that the compensation offered was disgraceful. She stated that Neighbour A continued to make noise outside of permitted hours.
18. On 3 February 2021 in an internal email the landlord noted that the works would be considered “normal” and considered to be maintenance work.
19. On 9 February 2021 the landlord provided a stage two complaint response to the resident. The landlord stated that Neighbour A submitted a full proposal and timescale of works to it on 21 January which the landlord approved on 2 February. The landlord acknowledged that evidence indicated that Neighbour A had continued with some works after its warning letter of 6 January 2021 and noted that it would seek a further commitment from Neighbour A that they would not undertake work without permission. The landlord acknowledged the resident’s frustration but emphasised that all tenants had a “reasonable expectation” that they would undertake improvements and the landlord would not seek to discourage this. The landlord stated that it did not see a case to decant the resident or undertake enforcement action. The landlord noted that it had not received relevant noise complaints from other tenants. The landlord noted that it had received a complaint from Neighbour A about the resident’s own conduct, which it was duty bound to investigate. The landlord asked the resident to again consider the option of mediation by an independent third party. The landlord reiterated that its offer of £50 compensation, which the resident had declined, was for the resident’s inconvenience when the noise equipment failed to download noise recordings she had made. The landlord confirmed that it was happy to reinstall noise recording equipment.
20. On 16 February 2021 the landlord advised the resident that it had granted permission for the works to be done on the basis of the agreement between the mediator and Neighbour A.
21. On 13 March 2021 the resident sent a document to the landlord headed “Stage 3 of the Corporate Complaints Policy”, which set out the resident’s reasons for a request for her complaint to be escalated to stage three.
22. On 9 April 2021 the landlord provided its stage three complaint response to the resident. The landlord stated that the response dealt with the resident’s complaint about construction works undertaken by Neighbour A. The landlord stated that it asked the neighbour to stop works while the matter was investigated. It installed noise monitoring equipment and offered to reinstall this when it did not work. It undertook a survey and found that the works were cosmetic and did not require permission (as set out in section 5.3 of the Tenancy Agreement). The landlord did not have an obligation to consult with the resident. The mediator appointed by the landlord had contacted the resident and information she provided was taken into account in the mediator’s decision. The landlord therefore did not agree that she had not been involved in the mediation as she had stated. The landlord stated that it was satisfied that there had been no bias. There was no need to send further surveyors as one had already been sent and concluded that the scope of works were minor cosmetic changes. The landlord noted the resident’s comments that Neighbour A had extended the works past the schedule agreed with the landlord and it recommended that noise monitoring equipment be installed and invited the resident to contact it to arrange this.
23.  On 26 May 2021 the landlord advised the resident that it had already provided its stage three complaint response and the next step for escalation was to this service.
24. On 8 July 2021 the resident stated (in her letter of 16 August 2021) that Neighbour A “began reconstruction and construction work in the property”.
25. On 21 July 2021 the landlord attended Neighbour A’s property. The resident complains that this survey was inadequately carried out.
26. On 26 July 2021 the landlord wrote to the resident to advise her that Neighbour A had been spoken to and advised that the works would end on Friday of that week and that it was confirmed that no works would be carried out after 6pm. The resident stated in her letter of 16 August 2021 that the works continued after this time.
27. On 4 August 2021 the resident wrote to the landlord stating that she did not agree that the works being undertaken were “minor works”. She also complained that she had not been provided with an end date for the works. She complained to the landlord that the neighbour was being noisy at that time and requested that someone contact him and ask him not to be noisy between 3-5pm on that day as she had an interview.
28. On 16 August 2021 the resident wrote to the landlord stating that her complaint about Neighbour A taking over a shed had not been referred to in the stage three complaint letter because the landlord had ignored her complaint about this. She states that, however, this complaint point was “highlighted in all stage of our complaints and is outlined in our stage 3 complaint that I have provided you with. Therefore this issue did form part of the original complaint.” She stated that the neighbour had carried out three projects within 16 months and the neighbour had carried out “extreme and noisy building work for over 9 months”. She submitted that the works were “excessive” and hindered her ability to undertake day to day activities and to work. She stated that her “right to quiet enjoyment” was being broken. She stated that lack of communication was a key issue. She stated that her objection was the way the works had been conducted and the neighbour had not sought permission for the works. The resident listed a number of works that had been undertaken on the neighbour’s property. She stated that the landlord had ignored that the neighbour was in breach of his tenancy agreement. The resident complained that she had not been involved with the decision making process about Neighbour A’s activities. The resident submitted that the neighbour’s activities caused significant disruption, even when carried out during permitted hours.

Assessment and findings

Scope of complaint

29. The Ombudsman notes that the resident has requested that complaints about three different neighbours be considered as part of this investigation – Neighbours A, B and C. The resident has also sought that a complaint about Neighbour A’s use of a shed be considered in addition to her complaint about Neighbour A’s noise nuisance.
30. The Ombudsman is only able to consider complaints that the resident has given the landlord an opportunity to consider through its complaints process. The Ombudsman understands that, at the time the resident was communicating with the landlord about her complaint, the landlord had a three stage complaint process. The Ombudsman would expect the resident to have requested that the landlord consider a complaint ground at all three stages before bringing the issue to the Ombudsman for consideration. If the resident did not escalate an issue through the full complaints process, it would not be appropriate for the Ombudsman to make a finding in this investigation.
31. The landlord’s position is that the resident’s complaints against all three neighbours were considered at the first stage of the complaints process. The resident’s complaints about Neighbours A and B were escalated by the resident to the stage two complaint. Only the resident’s complaint about Neighbour A and noise nuisance was escalated to stage three of the complaint process and therefore the landlord’s position is that only that complaint ground can be considered as part of this case.
32. The Ombudsman has considered whether the complaints against Neighbour B and C and regarding Neighbour A’s use of a shed can be considered.
33. On 4 January 2021 the resident wrote to the landlord to complain. Her letter included a complaint about noise by Neighbour A (construction noise), Neighbour B (in particular noise at night) and Neighbour C (a “constant thudding” coming from the property).
34. In its stage one complaints response dated 15 January 2021, the landlord refers to complaints about Neighbour A due to building works, Neighbour B due to noise and keeping anti-social hours and Neighbour C due to a “repeated thudding noise”. With respect to Neighbour B, the landlord stated that it had visited the property on 30 September and reminded the leaseholder of his obligations. The landlord was satisfied with the flooring, but the leaseholder committed to putting down rugs. On 1 October 2020 the landlord sent a letter to the leaseholder reminding him of his obligations. The landlord confirmed on 7 December 2020 that new rugs had been put down. The landlord sent a formal warning letter to Neighbour B on 13 January 2021. With respect to Neighbour C the landlord stated that it had contacted the neighbour and visited the property on 1 August 2020. The landlord did not identify anything that could be making a thudding noise and no complaints had been received from other neighbouring residences.
35. The telephone notes of the resident’s call on 25 January 2021 with the landlord responding to the stage one complaint letter records that the resident stated that Neighbour B “can still be heard making noise at night” and appears to also refer to Neighbour C.
36. The Ombudsman notes that in the landlord’s second stage response dated 9 February 2021 it referred to the resident’s complaint about noise from Neighbour B. The landlord stated that it would continue to report any incidents of noise nuisance reported by the resident to the leaseholder of the property. However, it considered that it was reasonable domestic noise and the landlord was not able to do anything about this. The landlord also considered the resident’s complaint about Neighbour A’s use of a shed – apologising that it has not responded to the resident on this point earlier. The landlord acknowledged that sheds should be allocated according to a waiting list and that this would be done in future. It acknowledged that there was an omission on its part regarding the allocation of the shed. It apologised for failing to address this at stage one of the complaint. The landlord stated that if the resident wished to ask for the stage two complaint response to be reviewed the resident needed to “explain why you consider that our response has not resolved your complaint.”
37. The resident sent an email to the landlord on 11 March 2021 titled “Stage 3 of the Corporate Complaints Policy”. The Ombudsman is satisfied that this document can reasonably be considered to be the resident’s request for her complaint to be escalated to the third stage. In this document the resident referred to complaints about Neighbours A, B and C, including Neighbour A’s use of a shed.
38. The landlord sent the resident a stage three complaint response on 9 April 2021. In this document the landlord only referred to complaints about Neighbour A’s noise nuisance.
39. The Ombudsman is satisfied that the resident can reasonably be considered to have sought to escalate her complaint grounds about all three neighbours through the landlord’s complaints process. The Ombudsman is therefore satisfied it is reasonable to make a determination on the landlord’s response to the resident’s complaints about noise nuisance by Neighbours A, B and C.
40. However, under section 39(q) of the Housing Ombudsman Scheme the Ombudsman will not investigate complaints “which, in the Ombudsman’s opinion, do not cause significant adverse affect to the complainant”. The Ombudsman understands that the resident feels a sense of injustice regarding Neighbour’s A use of a shed. The landlord has acknowledged that the process for the allocation of sheds was not followed with respect to the shed which Neighbour A was using. It stated that it would follow the process in the future. Whilst the landlord may have failed to follow the correct process with respect to the shed, there is no evidence that this had an impact on the resident. For example, there is no evidence that this meant that the resident was not allocated a shed which she should have been. Therefore, the Ombudsman does not consider it appropriate for it to investigate the resident’s complaint about Neighbour A’s use of the shed and they make no finding on this complaint ground.

Neighbour A

41. The resident’s complaint is that Neighbour A has engaged in ASB, in particular by undertaking construction works. The resident is also unhappy that Neighbour A has occupied a shed. The resident considers that the shed should have been allocated for use in accordance with the landlord’s waiting list.
42. The Ombudsman starts by noting that the landlord cannot reasonably be expected to curtail the activities of residents in neighbouring properties where the scope of these works is reasonable and undertaken in a reasonable manner. However, to determine if this is the case the landlord should take reasonable steps to investigate and to manage any issues where that is reasonably possible.
43. The landlord has provided evidence that it investigated the matter when the resident complained about Neighbour A, and asked that works be ceased whilst this was done. The investigation included the attendance of a surveyor. This was a reasonable response and the evidence indicates that the landlord took reasonable steps to assess whether the works were reasonable. The landlord advised the neighbour of his obligations to undertake work during permitted hours.
44. Whilst initially identifying that some of the actions of Neighbour A required some intervention, once the neighbour made some adjustments the landlord’s position was that the noise was “domestic noise transference” and, as such, its powers are limited. The landlord’s conclusion is that the work being undertaken by Neighbour A is reasonable and not unauthorised and Neighbour A is behaving in a conscientious way. The Ombudsman understands that the resident has found the works undertaken by Neighbour A to be distressing. However, the Ombudsman is satisfied that this is a reasonable position for the landlord to take. This is because the evidence shows that the landlord visited the property and communicated with Neighbour A on several occasion to determine the nature of the works being undertaken.
45. In its stage one complaint response the landlord noted that the resident has had a weekly call with the landlord since June 2020. The Ombudsman considers that this is a high level of support for the landlord to provide to the resident in the circumstances. The Ombudsman is satisfied that the evidence indicates that the landlord was responsive in its communications with the resident.
46. The landlord engaged a mediator which was a reasonable approach to resolving the issue. The evidence indicates that the mediator took into account the information provided to him by the resident.
47. It was reasonable for the landlord to refer the resident to Environmental Health, who have a greater remit with respect to noise complaints.
48. It is unfortunate that the noise recording equipment which the landlord provided failed in the first instance. However, the Ombudsman is satisfied that the £50 compensation the landlord offered for this was reasonable.
49. The Ombudsman therefore finds that there has not been a failing by the landlord with respect to the noise complaint against Neighbour A.

Neighbour B

50. The evidence indicates that the landlord took steps to investigate the resident’s complaint about Neighbour B. It visited the property and, whilst not identifying an issue with the flooring, the neighbour agreed to put down rugs. The landlord wrote to the resident confirming his (and his tenants) obligations.
51. The Ombudsman is satisfied that the landlord has taken reasonable steps to investigate and respond to any issues it identified regarding noise created by the occupants of Neighbour B’s property.

Neighbour C

52. The Ombudsman is satisfied that the landlord took reasonable steps with respect to the resident’s complaint about Neighbour C. The landlord visited the property and found that it could not identify anything causing the noises the resident had complained about. The landlord considered whether other neighbours had been experiencing similar problems and determined this was not the case. There do not appear to have been reasonable steps that the landlord could have taken that it failed to take.
53. The Ombudsman is satisfied that the landlord took reasonable steps to investigate and respond to the resident’s complaint about noise from Neighbour C’s property.

Complaints handling

54. The landlord has acknowledged that there was a failing by it when it failed to respond to the resident’s complaint about Neighbour A’s use of a shed in its stage one complaint response. As set out above, the Ombudsman also considers that the landlord failed to consider all the issues which the resident advised it she wanted to escalate in its escalated complaints handling.
55. The Ombudsman considers this to be a service failure. The Ombudsman is not persuaded that this had an impact on the ultimate outcome of the resident’s complaint – there is nothing to indicate that the landlord would have altered its stance if it had properly considered the full contents of the resident’s request for the matter to be escalated to stage three. However, the Ombudsman finds that these complaints handling failings in themselves caused the resident distress and inconvenience.
56. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
57. In this case, it is important to distinguish the distress the resident submits that she has felt due to the actions of her neighbours from the distress caused by the complaints handling failures. The Ombudsman appreciates that the resident was frustrated that the landlord failed to respond to all the points that she raised. However, the Ombudsman considers that the distress and inconvenience caused by the complaints handling failures was relatively minor. The Ombudsman considers that in the circumstances it is reasonable to require the landlord to pay the resident £100 compensation.

Determination (decision)

58. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the resident’s complaint that the landlord has not taken appropriate steps in response to her complaint of antisocial behaviour by neighbouring properties.
59. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there has been a service failure by the landlord in respect of its complaints handling.
60. In accordance with paragraph 39(q) of the Housing Ombudsman Scheme it is not appropriate for the Ombudsman to investigate the resident’s complaint about Neighbour A’s use of a shed.

Reasons

61. The Ombudsman is satisfied that the landlord has taken reasonable steps to investigate and respond to any issues it identified regarding noise from Neighbours A, B and C.
62. The Ombudsman considers it a failing that the landlord did not respond to all the complaint points raised by the resident in her original complaint and in her complaint escalation.
63. There is no evidence that Neighbour A’s use of the shed has had a significant impact on the resident

Orders

64. The Ombudsman orders that the landlord pay the resident £100 compensation within four weeks of the date of this determination.