Royal Borough of Kensington and Chelsea (202115157)

REPORT

COMPLAINT 202115157

Royal Borough of Kensington and Chelsea

29 November 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 complaint is about the landlord’s handling of:
   1. The resident’s reports of noise nuisance.
   2. The resident’s request for a management transfer.

Background

2. The resident is a secure tenant of the landlord. The landlord is a local authority. The property is a one bedroom flat in a block of similar properties.
3. The records that the landlord has provided to this Service are limited therefore it is unclear when the resident made his first noise nuisance report about two neighbours above him (Neighbour A and Neighbour B). The resident said he had made reports for two years prior to contacting this Service in October 2021. The landlord’s later complaint responses suggest May 2020.
4. Emails from September 2020 between the landlord and the local authority’s environmental health department (EH) say both had discussed the resident’s noise nuisance reports with him a number of times at that point. It is not clear if the landlord had referred the resident to the environmental health department or if he had approached them himself. Both the landlord and EH had advised the resident that the block of flats he lived in was notorious for poor soundproofing and that the noise was normal household noise and not something they could address, other than speaking to the neighbours and offering mediation, which the landlord had done.
5. The landlord issued a letter to all residents of the block on 7 September 2020 reminding them that the soundproofing in the block was poor and to be mindful of their neighbours and that laminate/wooden flooring was a tenancy breach. The landlord has also provided this Service with an email the resident sent it in December 2020 with a link to a video of the noise, and a copy of a second letter it sent to all residents in about noise nuisance in May 2021.
6. In October 2021, following contact from the resident, this Service asked the landlord to contact the resident to discuss his concerns about noise nuisance and to provide a written formal response. The landlord left a voicemail on the resident’s phone advising that it had raised a complaint and to contact them if necessary, but ultimately it relied on the summary provided to it by this Service to raise and investigate the complaint. However, that summary contained an incorrect reference to a neighbour having parties till 4am.
7. In its stage one complaint response on 9 November 2021 the landlord said it had investigated the residents noise nuisance reports about Neighbours A and B, since he first made a report in May 2020 and had requested that one neighbour lay rugs over the laminate flooring in their flat. It had also suggested mediation and asked that he reconsider that option. It also offered to install noise recording equipment to assess the level and frequency of the noise but said it did not want to offer false hope as what he had described appeared to be routine domestic noise. It also addressed the (incorrect) report of Neighbour C having parties till 4am. It also referred to contact the resident’s social worker had made but this Service has not been provided with records of that contact.
8. In his escalation request the resident confirmed that there had been no issues with Neighbour C or any 4am parties. He clarified that the issues were that Neighbour A made a noise like a door banging every 10-20 minutes from 11pm to 4am, and would stamp around her flat, which he felt was mainly done when his children were staying with him. He said Neighbour B’s phone vibrated on the floor above the resident’s bedroom and he could hear her phone conversations, both of which woke his children up. The resident said he appreciated that the flats had poor insulation but that the landlord should explain that to residents before they agree to move in. He said the landlord had previously said it would help him with a housing transfer but had not done so and he had had no success using its Home Swapper scheme. He explained that the situation was affecting him physically and mentally. He said the reason the social worker had contacted the landlord was because it was affecting his relationship with his children as he felt unable to have them overnight because of the noise.
9. In its stage two complaint response on 21 December 2021 the landlord sympathised that the resident had not found a property via its home swapper scheme and explained that it would not be appropriate for it to consider the resident for a management transfer, as they were generally only considered where a resident faces an immediate internal or external threat to their safety. It explained that it would not look to take enforcement action against either neighbour as the noise he had reported had been assessed by the local authority’s environmental health department as being routine domestic noise. It suggested reconsidering mediation. It said there were more noise nuisance cases for the resident’s block than in other properties which supported his claim that there was a structural issue.
10. The landlord said the problem would not be solved purely by making changes to individual flats (such as laying carpet) and that “rectifying this would require significant, lengthy and extremely disruptive work to be carried out not just within each individual property but to the overall structure of the building”. It said “the only effective way that we can look to resolve this is via the capital programme, and I would not wish to offer you false hope or assurances regarding the scope of the potential works and the length of time this could take to resolve, even in the event that we are able to find a potential cost-effective solution as part of the wider works under the capital programme”.
11. The resident contacted this Service in December 2021 as he was dissatisfied with the landlord’s response and wanted it to commit to either soundproofing the property or arranging a management transfer. In November 2022 the resident provided this Service with further information that included confirmation from the landlord that the noise recordings had only picked up household noise. It also included an email from the landlord in June 2022 in which it agreed to carry out sound proofing works in some of the resident’s block, including the resident’s property but that it could take some time for the work to begin.

Assessment and findings

Scope of investigation.

12. The resident has said that he feels that the landlord’s lack of action in resolving his reports of noise nuisance has impacted on his physical and mental health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is an accordance with paragraph 42 (g) of the Housing Ombudsman Scheme which says the Ombudsman may not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. However, consideration has been given to the distress and inconvenience the resident experienced as a result of any errors by the landlord.

The resident’s reports of noise nuisance.

13. The landlord’s Antisocial Behaviour (ASB) policy has four grades of ASB, with Grade 1 being the most serious. Noise can be assessed as being either Grade 3 or Grade 4. Grade 3 is behaviour or acts that are considered breaches of the conditions of the licence/ lease/tenancy which can include noise nuisance. It says “There are times where there may not be evidence of any statutory noise nuisance. Despite this there may still be noise from everyday living that can cause disruption. This can sometimes be due to the type of flooring, for example, if a flat has had flooring fitted without adequate underlay and sound insulation, it can cause a nuisance to a person living in a flat below. In these circumstances, [the landlord] will inspect the property in question and seek alternative options to resolving this problem; for example, if it is found that the flooring is fitted with inadequate underlay and laminate flooring, residents will be requested…to have the floor coverings removed and re-laid with adequate sound insulation underlay.”
14. The ASB policy states that the landlord will “determine the level of underlay and sound insulation that is appropriate” and will “inspect the flooring after installation to ensure that it is adequate.” It adds “This is not a definitive solution to all noise related cases; each case will be assessed on its own merits.” It says the action it will take for Grade 3 cases is “Risk assess within one working day, agree action plan with reporter within five working days of the initial report.”
15. Grade 4 is behaviour and acts that do not represent a breach of the conditions of the tenancy agreement and can include normal domestic noise such as footsteps being heard in flats above or children playing during reasonable hours”. “With grade 4 cases, the landlord is not able to act formally, although the landlord will offer a package of advice and referrals appropriate to that individual case. Mediation may also be offered in some cases.” It says the action it will take for Grade 4 cases is “Risk assess within one working day and agree action plan (if appropriate), include information and advice within seven working days of the initial report.”
16. The ASB policy also states that “Each case will be assessed individually and we will write a personalised support plan” and that “When an ASB report is received we will complete a risk assessment with individuals to assess any vulnerability/safeguarding issues”. It also states “ASB cases will be logged, managed and reported on through our Customer Relationship Management system (CRM) and will be kept in line with data retention schedules.” It also states it will “offer support and reassurance to all victims and witnesses of ASB”, “identify preferred communication methods, how to best support them and manage their case” and “agree contact frequency with victims/witnesses.”. It says it will also use early intervention methods to assist in preventing the escalation of problems, including: mediation, early warnings, visits and letters.
17. When the resident made his reports of noise nuisance to the landlord it would have been appropriate for it to have responded to them, in line with its ASB policy. In his complaint in October 2021, the resident stated that he had made numerous complaints about the noise over the previous two years and had never received a response, and that he had called about the noise nuisance many times and had no response. The landlord has stated in its complaint responses that the resident first reported noise nuisance in May 2020 and it has also provided an email exchange between the landlord and the local authority’s environmental health department in September 2020, and a video link the resident emailed to the landlord in December 2020.
18. As neither party has provided evidence of the date the first noise nuisance report was made, this report will focus on the period from May 2020 which the landlord said was the date it received the first report, till the 21 December 2021 when the landlord issued its stage two complaint response. The landlord has not provided this Service with any dates when other reports were made, or whether they were reports of noise nuisance or official complaints about its handling of the noise nuisance. It has informed this Service that it has no file records of contact notes of phone calls or meetings with either the resident or the neighbours. Therefore, it is not possible for this Service to assess whether the landlord acted in line with the timeframes in its ASB policy.
19. It would also have been appropriate for the landlord to have provided this Service with copies of any risk assessments and action plans it had completed, in line with its ASB policy. The landlord failed to provide any such documents. As the ASB policy states that “ASB cases will be logged, managed and reported on through our Customer Relationship Management system (CRM) and will be kept in line with data retention” and the landlord failed to do this, this represents maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance.
20. In his complaint the resident also stated that he had received no response to either his numerous complaints about noise nuisance or calls that he had made. The landlord referenced the action it took in response to his first report in May 2020, and it provided copies of the block letters it sent to all resident’s in September 2020 and May 2021. However, it has provided no evidence of any responses being made directly to the resident. As its ASB policy says it will “offer support and reassurance to all victims and witnesses of ASB”, “identify preferred communication methods, how to best support them and manage their case” and “agree contact frequency with victims/witnesses” and it has provided no evidence of any direct communication with the resident, this represents further maladministration by the landlord.
21. The Ombudsman would expect a landlord to keep a robust record of any reports of anti-social behaviour, contact with the complainant and the perpetrator and any action taken. However, the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. In this case, although this Service was able to investigate the complaint as a whole, the landlord’s poor record keeping meant the Ombudsman was not able to assess whether the action the landlord took in response to the resident’s reports of noise nuisance was in line with the timeframes in its ASB Behaviour policy.
22. In its complaint responses and in the email from September 2020, the landlord has said that it spoke to the neighbours regarding the allegations and suggested mediation, (and the resident has not disputed that these actions took place). Both actions are appropriate and in line with its ASB policy, as was its offer to provide sound recording equipment, though it would have been helpful if it had offered this equipment sooner.
23. The landlord took appropriate steps to send letters to all resident’s in the block in September 2020 and May 2021 reminding them that the soundproofing was poor and asking them to be considerate of neighbours, and appropriately highlighted that laminate or wooden flooring was a breach of tenancy, and that it would check that appropriate flooring was installed in any properties for which it received noise complaints. In its stage one complaint response the landlord said it had asked Neighbour A to lay rugs over their laminate flooring and that it would check whether this had been done. However, in the email exchange from September 2020 the landlord stated that it had not asked Neighbour A to address the laminate flooring as the resident thought that asking them might make things worse. The resident has told this Service that he believes that both Neighbour A and Neighbour B have laminate flooring. As it is not clear which of the two neighbours have laminate flooring and whether rugs or carpet have been requested or laid, the Ombudsman will be ordering the landlord to clarify this with the resident.
24. The landlord took appropriate steps in its complaint responses to manage the resident’s expectations by explaining that as the property had poor soundproofing, actions such as laying carpet may not resolve the noise problem, and that sound proofing works to address the structure of the building was something that it could only consider via its planned capital works programmes. This was reasonable as, due to the age of the property, the landlord has no legal requirement to update or improve the soundproofing to bring it into line with current building regulations, and social landlords have a limited budget. Therefore, agreeing to consider adding it to its capital works budget was reasonable as it was acting beyond its legal obligations. It is also reasonable for major and expensive works to be addressed via planned maintenance programmes.
25. In an email to the resident in June 2022 the landlord said it had confirmed to the resident in writing that his name had been “put on the list for soundproofing works” within the block but that it “would take some time before works begins due to the processes involved.” As this Service has not been provided with a copy of the afore mentioned written confirmation it is not clear if the resident has been given an estimated date (for example a financial year) or details of what work will be carried out. By giving an estimated date for the works to commence the landlord would effectively manage the resident expectations and give him some reassurance about when the noise may start to improve. Therefore, this Service will be ordering the landlord to provide written confirmation of both to the resident, if it has not already done so.
26. Although the landlord took several appropriate steps to address the resident’s noise nuisance reports and is acting above and beyond its legal obligations by agreeing to fund soundproofing in the block, the poor recordkeeping and poor communication have resulted in a determination of maladministration in respect of this aspect of the complaint. In recognition of this the Ombudsman, in addition to being ordered to take specific actions, the landlord has also been ordered to pay the resident compensation of £250. This is in line with the Ombudsman’s remedies guidance for cases of maladministration where there was a failure which adversely affected the resident and the landlord has failed to acknowledge its failings.

The resident’s request for a management transfer.

27. In the email exchange on 7 September 2022 the landlord stated that it had suggested to the resident that he consider applying for a mutual exchange. However, the resident has been unsuccessful in securing a mutual exchange via the Home Swapper scheme and has requested that the landlord rehouse him via a management transfer. In its stage two complaint response the landlord said it did not consider it appropriate to consider a management transfer, as they are “generally granted on an emergency basis where a resident faces an immediate internal or external threat to their safety (for example, due to domestic violence)” and that noise transference was not at a level where it could reasonably be said to pose an immediate risk to his safety.
28. The landlord’s decision was reasonable as it is standard industry practice, and noted on Shelter’s website, that management transfers are only used for those who need to move urgently, for reasons such as violence, harassment, intimidation, domestic abuse or witness protection. Although this Service does not doubt that the resident’s circumstances are stressful, they do not fall into the category where it would be appropriate to consider a management transfer. Therefore, this Service has found no maladministration by the landlord in respect of this aspect of the complaint.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance.
30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request for a management transfer.

Orders and recommendations

31. Within four weeks of the date of this letter the landlord is ordered to:
    1. Pay the resident £250 compensation for its maladministration in respect of its handling of the resident’s reports of noise nuisance.
    2. Confirm the nature of the soundproofing works it will be carrying out at the resident’s property and the estimated date for these to commence, if it has not already done so.
    3. Visit both neighbours to confirm whether laminate or wooden flooring is present in either property and update the resident of this and of what steps it has taken or will be taking to address the flooring.
    4. Confirm to this service that it has complied with the above orders.