Shepherds Bush Housing Association Limited (202211009)

REPORT

COMPLAINT 202211009

Shepherds Bush Housing Association Limited

18 June 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

The complaint is about the landlord’s handling of reports of noise nuisance from a neighbouring property.
The landlord’s complaints handling has also been investigated.

Background and summary of events

The resident has a secure tenancy on a 1 bedroom first floor flat since August 1994. She is the only occupant and has informed the Ombudsman that she has mental health issues, but nothing has been seen to show that she made the landlord aware of this.
In June 2020 the resident reported that her upstairs neighbour had wood flooring and this was causing noise to come into her property.
The landlord spoke to the neighbour in November 2020 about the noise report. The neighbour said he obtained permission to put the wood flooring down when he moved in and could not afford to put new flooring down.
The resident continued to raise reports of noise transference and on 4 April 2022 it was agreed that a surveyor would attend the neighbour’s property to survey the flooring and what any actions the neighbour or landlord could take to mitigate the alleged transference problem. The resident had also stated her belief that insufficient thickness of her ceiling was part of the problem. As such it was also agreed that a surveyor would attend the residents property to see if additional insulation in her ceiling was something that could be done.
The surveyor attended the resident’s property in July 2022. They told the landlord they had found “nothing wrong” with the ceiling and recommended an inspection of the neighbour’s floor be carried out.
On 18 August 2022 the resident raised a stage 1 complaint about the following issues:
1. She had been trying to get landlord to do something about the noise caused by the neighbour’s laminate flooring for 3 years but nothing had been done about it.
2. The surveyor had told her ceiling was not even 2mm thick but determined it would be too much work to cover it with plasterboard. They also said residents are not allowed to have laminated floors and if that was the case with the upstairs neighbour then he should get a carpet.
3. She’d been complaining for months about the neighbour going back to playing music loud enough to “put her more on edge”.
4. She’d been calling again and again about the noise and people had been sent to her property, but nothing was ever done to resolve the problem.
5. To resolve the complaint she wanted the neighbour to get a carpet, stop playing music loudly and/or for the landlord to make her ceiling more protective than just 2mm thick.
The landlord issued its stage 1 response on 26 August 2022 and acknowledged the surveyor had confirmed the neighbour needed to install a carpet and they had spoken to him but it is not been done. It acknowledged delays in taking the resident’s concerns forward and not keeping her updated. It awarded £50 compensation for the distress and inconvenience caused. It also confirmed it will be making a “concentrated” approach by:
1. Calling and visiting the neighbour by end of 2 September 2022.
2. Based on the response – sending a letter weekly if no contact was made.
3. Keeping the resident updated weekly.
The resident escalated her complaint to stage 2 on 8 September 2022 because her emails were not being responded to, the actions the landlord said it would take in the stage 1 response had not materialized, her ceiling had very poor insulation which was not fit for purpose because it “did not meet the Decent Home Standards” and the landlord should have done something about this by now.
The landlord’s stage 2 response, dated 5 October 2022, said:
1. It acknowledged the resident was told at stage 1 she would be kept up to date weekly and that’s not happened, but on review it was impossible for this to happen given the volume of work they have.
2. It had spoken to the neighbour and would visit both parties in the next week to work out a plan of action.
3. Overall the stage 1 response was not upheld as the resident had not been updated weekly as promised and going forward would be updated when there was new information.
4. The landlord would consider transferring the resident or her neighbour given the difficulties in their relationship due to the noise but this may take time due to lack of available homes, but also mentioned all the properties are flats so noise may be an issue in other properties.
5. It asked both parties to mediate formally as part of its anti-social behaviour (ASB) policy while the option of boarding up the neighbour’s floor for them to lay carpets with insulation and/or explore the option of a transfer is considered. It also advises the boarding up may only minimise the noise and not stop it.
6. It acknowledged it should have explained the complexities of dealing with noise transference, offered mediation, offered to board up the neighbour’s flooring, asked them to put carpets in and/or offered other alternatives sooner.
7. It apologised that this stage was not reached more quickly given the length of time the resident had been complaining about the issue and confirmed lessons had been learned.
The resident remained unhappy with the landlord’s response and confirmed to the Ombudsman that she wanted it to investigate her complaint in April 2023 as none of the solutions previously offered by the landlord had been implemented.
Sound proofing board and new carpet were fitted at the neighbour’s property in June 2023. However in March 2024 the resident reported to the Ombudsman that it has not significantly mitigated the noise and nothing has been done about the ceiling thickness.

Assessment and findings

Scope of this investigation

In the resident’s correspondence, she has made reference to historical issues of noise transference in the property. Under Paragraph 42(c) of the Scheme operated at the time, we may not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising.
As the resident’s formal complaint was logged on 18 August 2022, this means we would normally not be able to consider any specific events prior to 18 February 2022.
However in this instance the landlord’s call notes show the resident enquired about its complaints procedure on 14 December 2020. When asked what she was unhappy about and she mentioned several heads of complaint including “…Neighbour in Flat X has laminate flooring and causing her a disturbance…”. She also said she had raised the issues with other officers and was not satisfied with how they had handled things.
The records provided do not show that a complaint was logged at that time or that one was logged before August 2022.
Based on the conversation had with the resident on 14 December 2020, it would have been appropriate for the landlord to have logged a formal complaint at that time. By not doing so the landlord denied the resident reasonable access to its complaints procedure and this was a failure in its complaint handling.
For that reason this report will consider specific events going back as far as June 2020, 6 months before the landlord should have first logged a formal complaint. However events prior to this date may be referred to in order to provide contextual background to the current complaint.

The landlord’s handling of reports of noise nuisance

The landlord’s ASB policy says service standards relating to all cases are to:
1. Respond to reports of anti-social behaviour within our published timescales.
2. Agree a timescale for keeping complainants informed of progress with the case.
3. Contact complainants to discuss the case before it is closed.
4. If a resident is dissatisfied with our response to tackling ASB or objects the enforcement action we decide to take against them if they, a member of their household or a visitor to their home are found to be the perpetrator(s) of ASB, they can appeal against this by making a complaint via the landlord’s complaints procedure.
The landlord’s compensation and goodwill gesture policy states that where distress and inconvenience is experienced following a service failure, it can make a discretionary payment of up to £250. This includes cases of inconvenience, hardship, distress or a ‘making good’ payment.
The landlord’s records show the resident has made multiple reports of noise from her neighbours property caused by the wood flooring on various occasions since 2016, often with several reports being made yearly.
While it is evident this situation has been distressing for the resident, it is not the Ombudsman’s role to determine whether noise reported by a resident amounts to antisocial behaviour or statutory noise nuisance. The Ombudsman’s role in these types of complaints is to consider the evidence available to determine whether the landlord acted reasonably in the circumstances of the case.
It is noted that the resident has stated she considers the issues with the noise have impacted her physical and mental health. However, it is beyond the expertise of the Ombudsman to make a determination on whether there was a direct link between the noise transference and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.
As per the landlord’s ASB policy, when receiving reports of antisocial behaviour or noise nuisance it should respond to these reports within it’s published timescales and agree a timescale for keeping the resident informed of progress.
The Ombudsman would also expect the landlord to carry out an investigation into the reports. This may include speaking to both parties to gather their version of events, speaking to any witnesses, reviewing diary logs or noise recordings, and liaising with the police or other agencies where appropriate. After reviewing the evidence gathered, the landlord would then determine the most appropriate action on a case-by-case basis.
In practice, the options available to a landlord to resolve a case of noise nuisance or antisocial behaviour may not extend to the resident’s preferred outcome. It is therefore important to consider whether the landlord has acted in line with its policies and good industry practice.
In this instance it would have been a reasonable first step for the landlord to ask the resident to complete diary sheets. This is because it would have needed to ascertain the level, times and frequency of the noise to assess whether it was more than everyday living noise as that would determine what action, if any, it could take. However the landlords records do not show that any investigation into the level, times and frequency of the noise were ever carried out.
This failure to properly investigate the noise prevented the landlord from determining whether or not the noise amounted to more than everyday noise and caused an unnecessary delay in its ability to take any kind of action to resolve the matter if its investigation determined noise levels were unreasonable. As a result this would also have contributed to the resident’s distress and inconvenience due to the impact any excessive noise would have had on her full enjoyment of her home throughout the extended period in question.
Additionally the first recorded mention by the resident that her ceiling may not be thick enough and additional insulation could help reduce the noise was on 4 April 2022. During that call it was agreed that a surveyor would attend to see if anything could be done.
There was an unreasonable delay between the above call and when the surveyor did attend the property on 19 July 2022 and the landlord’s notes about what the surveyors said about the ceiling aren’t conclusive. The notes seen only say the “tenant complains with noise coming through ceiling from flat above. Nothing wrong with ceiling. Please book an appointment with flat X to inspect floor”. This somewhat contradicts the residents version of what she was told at the time, which is that the ceiling is only around 2mm thick but that any work to resolve this would be too big of a job.
Clear record keeping is an essential part of responding to complaints, as it allows a landlord to monitor outstanding works, contractor performance and provide accurate information as well as an effective service to its residents. A landlord should have systems in place to maintain accurate records including, but not limited to, resident repair reports, attendances by contractors, notes of inspections, actions taken as a result of the inspection, details of any complaints received, and its responses to complaints.
However the above mentioned notes show a failure in the landlords record keeping because it should have detailed notes to reflect exactly what the surveyor found when they attended the resident’s property. From the notes available it is unclear whether the surveyor had been instructed to check the repair condition of the ceiling or the thickness of the plasterboard which is what the resident had complained about.
With regards to the landlord’s contact with the neighbour, the records seen show the landlord spoke to the neighbour in June and November 2020 about the residents reports of noise. In both instances he confirmed he had wood flooring and would be open to installing carpet but that he could not afford this himself.
While further reports of noise were made in April 2021 and from January to April 2022, the records seen do not show any further attempts to contact the neighbour until around May 2022. These also show that several attempts were made to contact the neighbour before the landlord was able to do so in July, at which point an appointment was made for 7 August.
Despite the length of time the resident had been raising concerns about the noise from her neighbour, the records seen do not show that any decisive action was taken before August 2022 but even then sound proofing board and carpet were not fitted in the neighbours property until June 2023.
The amount of time it took for the landlord to take these steps was not in line with its published timescales and these unreasonable delays would have added to the time, trouble, distress and inconvenience the resident experienced during the period in question.
That being said, it should be noted that the installation of carpet in a property with an existing tenancy would usually be the responsibility of the resident and not the landlord. The Ombudsman’s spotlight report on noise complaints, dated October 2022, recommends that for existing tenancies where carpets were removed and/or hard flooring is present, the landlord should signpost residents where appropriate to funding for carpets.
This recommendation would have been particularly relevant in this case as the neighbour had told the landlord that he was unable to afford to install carpet. No evidence has been seen to show the landlord signposted the neighbour to the appropriate funding scheme after the spotlight report was published, instead it chose to have the carpet installed itself. So in this respect the landlord has gone beyond its duty by having the sound proofing board and carpet installed itself.
When the resident brought her complaint to the Ombudsman in April 2023 she said that in order to resolve matters she wanted the landlord to install carpet in the neighbour’s flat, add insulation to her ceiling and pay additional compensation.
She then reported in March 2024 that while the neighbour now had a carpet it had not significantly mitigated the noise and the landlord still refused to do anything about the thickness of her ceiling because it would be too much work.
The Ombudsman acknowledges the resident‘s comments about the thickness of her ceiling being a contributing factor to the noise issues and has no reason to doubt her beliefs about how thick it is.
However there is also no obligation on the landlord to carry out works on the residents ceiling as it is entitled to rely on what its contractors/surveyors have said when determining what, if any, works are required to resolve an issue.
While the landlord has not provided a report from its contractor regarding what their inspection of the ceiling showed and the only file note provided says there was “nothing wrong” with the ceiling, ultimately it was entitled to rely on this when deciding not to carry out any works on the residents ceiling.
That being said, the records seen do not show that the landlord has ever directly addressed the residents concerns regarding the thickness of her ceiling and her belief that it has contributed to the noise transference. There’s also no record of what was discussed with the resident about the ceiling at the time of the visit.
The landlords stage 2 response also informed the resident that installing boarding and carpet in the neighbours property may not eliminate the noise transference. Indeed no action which a landlord could take, with the possible exception of eviction, could be guaranteed to prevent someone from engaging in creating noise.
Although it is also important to note that the records seen show that throughout the period in question the landlord’s focus was on the neighbour’s floorboards and requesting that he install carpet. There is nothing to show that it ever considered other causative factors which it would be responsible for, such as the floorboards and ceiling infrastructure given the neighbour lived in the attic apartment.
As mentioned in the background section of this report in June 2023, after the landlord’s complaint procedure had been completed, the landlord installed sound proofing board and new carpet in the neighbour’s property. However the resident has since reported that it has not significantly mitigated the noise. Therefore it would be appropriate for the landlord to carry out an in depth additional survey of both properties to identify if there are any other causative factors which it might be reasonably expected to progress potential resolutions in respect of.
In regards to compensation, the landlord is not responsible for the neighbour’s reported actions, and the Ombudsman would not therefore expect a landlord to compensate the resident for distress and inconvenience caused by the neighbour’s reported actions. It would only be expected to pay compensation for any distress and inconvenience caused by the way it handled the resident’s reports.
Overall the landlords failures, as set out above, can be summarised as:
1. Unnecessary delays in investigating and taking action to mitigate the noise transference.
2. Inadequate record keeping which led to missed opportunities to assess whether there were any works to the floorboards in the neighbour’s property that may have mitigated the noise.
These failures have caused unnecessary and avoidable distress and inconvenience to the resident, and cumulatively amount to maladministration. An order for this has been made below.

The landlord’s complaint handling

Based on all of the above, it was appropriate for the landlord to acknowledge the service failings and uphold the resident’s complaint at stage 1.
However further compensation is warranted to adequately address the distress and inconvenience caused by the landlord’s failure to act on the residents reports of noise transference and take decisive action within a reasonable timeframe.
When the resident escalated her complaint to stage 2 the main reasons given were that she had not been kept updated as promised in the stage 1 response and the landlord had done nothing about her ceiling which she believed was not fit for purpose and did not meet the Decent Home Standards because of “very poor insulation”.
The landlords stage 2 response did not uphold its stage 1 response because the resident had not been kept up to date weekly as had been promised, and it apologised because it would never have been possible to keep her updated so regularly.
The response appropriately acknowledges and apologises for the landlords failings, it says lessons were learnt regarding over promising and how long it took to reach this stage given the length of time the resident had been contacting it about the noise. It also confirms the landlord will be taking action to prevent this happening in future.
However the stage 2 response does not address the resident’s concerns about the ceiling not meeting the Decent Home Standards. The Ombudsman’s Code, operated at the time, required that landlords must address all points raised in a complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.
As mentioned at the beginning of this report the resident’s complaint was logged in August 2022 but there is evidence to show it should have been registered in December 2020.
Given the landlord only took steps to address the issues after it had logged her complaint in 2022, it is entirely likely that had the landlord logged her complaint in 2020 then it would have taken steps to try and resolve these issues at that time. Thereby allowing the resident to live for an additional 2 years with the noise transference impacting her enjoyment of her home without the landlord acting on the concerns she had raised.
Overall the landlords failures, as set out above, can be summarised as:
1. Failure to log the resident’s complaint in December 2020.
2. Failing to address all the residents points.
3. Inadequate compensation offered.
For the above reasons the Ombudsman finds there was maladministration in the landlords management of the resident’s complaint and orders it to pay £200 compensation directly to the resident.
The Ombudsman also orders the landlord to pay an additional £550 compensation directly to the resident for the time, trouble, distress and inconvenience caused by the maladministration of its handling of reports of noise nuisance as well as the impact this had on the residents full enjoyment of the property during the period in question, bringing the total award for this aspect to £600.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in relation to its handling of reports of noise transference from a neighbouring property.
In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in relation to its complaint handling.

Orders

Within 4 weeks the landlord should provide the Ombudsman with evidence that it has paid £800 compensation directly to the resident, this includes the £50 it offered in its stage 1 response, comprised of:
1. £600 for the time, trouble, distress and inconvenience caused by the time it took to act on the resident’s reports of noise transference.
2. £200 for the maladministration by the landlord in relation to its complaint handling.
Within 8 weeks the landlord should provide the Ombudsman with evidence that it has undertaken a review of this case and identified learning opportunities, in particular to:
1. A suitable methodology to ensure adequate oversight, for example by dip sample, of its complaint capture and response coverage.
2. Make clear to its complaint handlers as to the treatment of clear expressions of dissatisfaction as formal complaint.
3. If it has not done so already, the landlord must make it’s position on the installation of laminate/wood flooring clear and publish this on it’s website.

Recommendation

The landlord should consider arranging an additional survey of both properties and structural features to identify if there are any other causative factors of the reported noise transference which it might reasonably be expected to progress potential resolutions in respect of.