Royal Borough of Kensington and Chelsea (202113652)

REPORT

COMPLAINT 202113652

Royal Borough of Kensington and Chelsea

9 August 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

The resident’s complaint is about the landlord’s handling of her reports of noise nuisance from neighbouring properties.

Background and summary of events

The property is a one bedroom self contained flat on the first floor. The resident was granted a secure tenancy on 21 May 2018.
On 12 January 2020 the landlord opened a noise nuisance complaint by the resident. The landlord contacted the resident’s neighbours and sent a letter reminding them to be mindful of noise transference.
On 18 May 2020 the landlord closed the complaint on the grounds that statutory noise nuisance had not been established. It advised the resident of this by telephone.
On 4 October 2020 the resident lodged an insurance claim for compensation for the impact on her mental health of the landlord failing to deal with antisocial behaviour by her neighbours.
On 13 November 2020 a new case for a complaint of noise nuisance was opened. The landlord spoke with the resident on 16 November 2020 and contacted the neighbour to reiterate that they should consider the impact of transferring noise.
On 3 December 2020 the resident told the landlord that she was experiencing noise nuisance from neighbours.
On 3 December 2020 the landlord attended the property and listened to recordings and the sounds from next door. This concluded that there were some noises coming from the neighbouring flat, however the noises were not a statutory nuisance. The landlord spoke to the neighbour and recommended how to be more mindful of the resident. The landlord offered mediation services, which the resident declined.
In December 2020 Environmental Health attended the property and found that there was not excessive noise. They suggested that a noise monitoring device be installed.
On 6 December 2020 the landlord wrote to the resident stating that it had sent a warning letter to the neighbour and the neighbour had agreed to go to mediation. It noted that the resident was uncomfortable with mediation. It advised the resident to contact Environmental Health and suggested that she keep a noise log.
On 7 December 2020 the landlord sent a further letter to the neighbours.
On 14 December 2020 the landlord conducted another home visit. The landlord concluded that it could not be definitively concluded that there were noises from the neighbours.
On 17 January 2021 the resident emailed the landlord stating she remained unhappy about noise disturbances.
On 31 January 2021 the resident raised a Community Trigger, however it was determined that the case did not meet the “no action has been taken” criteria.
On 11 March 2021 the resident was advised by the landlord’s insurance claims handler that liability was denied. It acknowledged that there was a duty to investigate noise complaints that could be classed as a statutory nuisance if it can be proved that noise levels are excessive and this interferes with the use of a home or is likely to cause injury. In this case the officer had investigated and found that the level of noise was not excessive and was not classified as a statutory nuisance. It noted that other investigations had concluded the same thing. It concluded that as the noise did not constitute a statutory nuisance there was no liability and the claim was denied.
On 15 April 2021 the Noise Nuisance Team advised the resident by letter that their investigations had concluded that statutory noise nuisance had not been established and no enforcement action could be taken.
On 10 May 2021 a council officer from the noise and nuisance team emailed the landlord about the recordings that had been provided to him. He concluded that the noise “can be classed as ordinary living noises and not actionable statutory nuisance.” The officer advised that he had written to the resident to close the case He noted that “the less than sufficient sound insulation between the walls is a contributing factor to the annoyance being suffered by [the resident]” and that, if funds became available, sound insulation between the walls would resolve the annoyance from the noise.
On 18 May 2021 the resident complained to the landlord that it was not taking sufficient steps to address her noise complaint.
On 21 May 2021 the landlord called the resident to confirm that her complaint had been logged at stage one of its complaints procedure. The resident confirmed to the landlord that she was unhappy with how her complaints of Anti-Social Behaviour (ASB) had been managed and that she had sent communications to the landlord that had been unanswered.
On 2 June 2021 the landlord sent a stage one complaint response to the resident. The landlord noted that the resident’s complaint was that a neighbour was allowing a dog to run free and bark and that she had not received a response to correspondence. The resident was seeking that the landlord enforce the conditions of the neighbour’s tenancy agreement. With respect to the resident’s noise nuisance complaint, the landlord stated that it could only act upon the evidence and it had been informed that the noise was not a statutory noise nuisance. It noted that she should have been contacted on a fortnightly basis by the landlord to keep her up-to-date and she had not been. It apologised for this and noted it had been followed up internally. It said that going forward there would be fortnightly calls to update her. The landlord would speak to the neighbour again to share the resident’s concerns. The landlord concluded that it partially upheld the resident’s complaint regarding its failure to contact the resident between 7 April 2021 and 25 May 2021. However, it stated that it took appropriate steps to deal with the report of noise nuisance. As statutory noise nuisance had not been established there was not further enforcement action it could reasonably take. It therefore did not uphold that aspect of the complaint.
On 7 June 2021 the resident complained again about noise.
On 26 June 2021 the resident emailed the landlord stating that she did not accept the contents of the email dated 2 June 2021. She stated that none of the issues she had been raised had been resolved.
On 29 June 2021 the landlord undertook another home visit. The landlord advised the resident that it could make a referral to relevant welfare support functions.
On 30 June 2021 the landlord advised the resident that there was insufficient evidence to take legal action against her neighbours.
On 2 July 2021 the resident stated that she was still unhappy with the noise and the way the case was being managed.
On 19 July 2021 the landlord provided a stage two complaint response to the resident. The landlord noted that the resident would like sound insulation works to be carried out, that further enforcement action be taken and that a specific Officer be the main point of contact and lead on enforcement action. The landlord acknowledged that its communication had been “sporadic” at times and that this was unacceptable. It stated that it had a small budget for sound insulation works and it could not respond to every request. It noted that it was guided by the Council’s Noise Nuisance Team in Environmental Health who had advised that the noise does not meet the threshold of statutory noise nuisance. The landlord noted that the Council’s Noise Nuisance Team and its own Neighbourhoods Team had made extensive efforts to investigate the reports of noise nuisance and it had not been established that it met the statutory noise threshold. The landlord stated that it was therefore not in a position to serve a formal noise abatement notice on the resident’s neighbours. It noted that it had written to the neighbours in the past to ask them to be mindful of the impact that noise can have on others and it felt that it would be excessive and unwarranted to write again given that it had been unable to establish a statutory noise nuisance. The landlord therefore concluded that it could not justify spending money on sound insulation. It set out that a particular housing officer would continue to serve as the main point of contact but at some point in time in the future this would need to be reallocated. Whilst it accepted that there had been some initial communications failings, the landlord concluded that it did not find sufficient grounds for upholding the complaint or for installing sound insulation or serving notices upon the neighbours.
On 25 November 2021 a mediation meeting took place. The resident states that the noise nuisance continued after this.
On 22 January 2022 the resident called the police regarding an incident with her neighbour.
On 27 January 2022 the landlord opened a case review. It was agreed that all options had been exhausted and statutory noise nuisance had not been established and it could not take enforcement action against the neighbours. It confirmed that it would continue to provide support to the resident in light of her health challenges.
On 31 January 2022 the resident states that the police wrote an email to the landlord asking the Housing Officer to contact the resident. On 10 February 2022 the resident left a message for the Housing Officer but was not contacted.
On 22 June 2022 the landlord wrote to the resident’s neighbours and noted that it had received reports of noise nuisance and reminding them of their obligations regarding noise.
On 1 July 2022 the landlord wrote to the resident stating that its position was that there was no basis for the landlord to take legal action as investigations had concluded that there was no statutory noise nuisance.
On 5 July 2022 the resident wrote to the landlord to state that she was upset by the email and that the noise continued to disturb her and have a significant impact on her.

Assessment and findings

Anti Social Behaviour (“ASB”) case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
This Service understands the resident’s situation and recognises that the concerns she has reported have affected and caused distress to her. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor does it decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
The background to this complaint is one of allegations of ASB by the resident. The Ombudsman notes that the evidence indicates that the neighbours have expressed their own distress at these allegations and the situation. It is relevant for the Ombudsman to acknowledge at the outset that ASB cases involving a number of parties can be amongst the most difficult and intractable for a landlord to resolve. The landlord has a responsibility to all parties. That difficulty is not the fault of any party, but it is important that the Ombudsman’s assessment of the landlord’s actions recognises this fact.
The evidence indicates that a complaint was first opened by the landlord on 12 January 2020. The resident has stated as recently as 5 July 2022 that noise nuisance from neighbours continues to disturb her and have a significant impact on her.
The evidence indicates that the landlord has taken a number of steps regarding this matter. The landlord has:
1. undertaken a number of home visits to listen to the noise itself;
2. referred the matter to the council’s Noise Nuisance Team, who investigated and found that the threshold for a statutory noise nuisance was not met;
3. written letters to the neighbours on a number of occasions advising them of their obligations regarding noise;
4. facilitated and supported mediation;
5. referred the resident to relevant support services;
6. supported an insurance claims assessment;
7. provided a nominated officer to manage the complaint and provided regular updates. The Ombudsman notes that initially there were some communications failings, which the landlord has acknowledged. However, the Ombudsman is satisfied that, after these initial failings, the landlord’s communication has been reasonable and appropriate.
It is noted that the resident raised a Community Trigger on 31 January 2021. This assessed whether the matter met the criteria for “no action taken” and found that it did not. This conclusion is based on an assessment that reported problems have been acknowledged and the resident contacted, the problems have been appropriately investigated, the resident’s vulnerabilities have been considered and information was shared with relevant services.
The evidence indicates that the noises that are disturbing the resident appear to be of a routine domestic nature rather than the neighbours engaging in inappropriate or vexatious behaviour. A certain level of such noise is to be expected in properties that are in close proximity. However, the Ombudsman notes that the landlord has acknowledged that there is scope for sound proofing insulation to reduce the noise. The officer from the Council’s Noise and Nuisance team advised the landlord of his view that the sound insulation between the walls was less than sufficient and that sound proofing interventions would reduce the impact of the noise. The Ombudsman would expect the landlord to take this advice into account and to consider undertaking soundproofing interventions.
The evidence indicates that the landlord considered soundproofing but, given that a statutory noise nuisance had not been found, it could not justify allocating money for the soundproofing. The Ombudsman understands that this is frustrating to the resident. However, the landlord has limits to its financial resources and must take into account its obligations to all tenants across its property portfolio. The Ombudsman therefore is satisfied that the landlord turned its mind to soundproofing measures and made a reasonable decision that it was not appropriate in this case.
The Ombudsman is sympathetic to the resident and understands that given her health challenges she finds the situation particularly distressing. However, the landlord has taken all steps the Ombudsman would reasonably expect it to. The Ombudsman is satisfied that the landlord has been reasonable to conclude that there is not a statutory noise nuisance and it is therefore not able to take enforcement or other legal steps. The evidence indicates that the landlord continues to provide appropriate support to the resident. The Ombudsman therefore concludes that there has not been a failing by the landlord.

Determination (decision)

In accordance with section 54 of the Housing Ombudsman Scheme there has been no maladministration by the landlord with respect to the resident’s complaint about the landlord’s handling of her reports of noise nuisance from neighbouring properties.

Reasons

The landlord has taken all steps the Ombudsman would reasonably expect it to. The Ombudsman is satisfied that the landlord has been reasonable to conclude that there is not a statutory noise nuisance and it is therefore not able to take enforcement or other legal steps. The landlord continues to provide appropriate support to the resident.