The Industrial Dwellings Society (1885) Limited (202009176)

REPORT

COMPLAINT 202009176

The Industrial Dwellings Society (1885) Limited

19 January 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 response to the resident’s reports of noise nuisance.

Background and summary of events

Background

2. The resident is a tenant of the landlord and has an assured tenancy.
3. The landlord’s anti-social behaviour (‘ASB’) policy says that persistent loud noise is a breach of tenancy, though everyday household noise and children playing is not a breach of tenancy.
4. The landlord’s ASB policy says it can do various actions, including speaking with neighbours and giving verbal and written warnings. However, it says it cannot ask a resident’s neighbours to stop making typical household noise.

Summary of events

5. The resident completed monitoring sheets for June and July 2020 and submitted these to the landlord. She said her neighbours in the property above were running, banging and moving furniture.
6. On 15 July 2020, the landlord wrote to the resident. It said that further to her reports of ASB, the landlord had spoken to her neighbours about the issues raised by the resident.
7. On 15 September 2020 the resident sent the landlord a text message about her neighbours using a tumble dryer, and other household noises. The landlord sent a letter to the resident’s neighbours about the matter. The resident continued to send the landlord text messages throughout September and October 2020 about ongoing noise from her neighbours. The landlord asked the resident to complete the monitoring forms.
8. The resident completed monitoring forms throughout October 2020. She sent them to the landlord on 23 October 2020 and said that it had done nothing about the noise nuisance, or if it had, then her neighbours did not care. She said there was ongoing noise from furniture being dragged across the floor in the evening, children running, banging and rolling, and the washing machine was being used at night.
9. The landlord decided to log the resident’s correspondence as a complaint. It provided its stage one complaint response on 29 October 2020. This said:
   1. It urged the resident to continue logging noise nuisance on the monitoring sheets, and to submit these to it on a fortnightly basis.
   2. In future, it asked that the resident also contact the noise nuisance team at the local council to report the matter. The landlord explained the council could arrange an out–of–hours visit.
   3. The majority of complaints made by the resident were what the landlord deemed to be regular household noise. It provided the resident with a leaflet on what it considered to be ASB.
   4. It confirmed it would let the resident know once it had spoken to her neighbours.
10. On 3 November 2020, the landlord advised the resident that it had continued to communicate with her neighbours regarding the noise complaints made and had given them advice on how to reduce noise. It said the noise described on the monitoring forms could all be deemed as general living noise which made it hard to prove ‘statutory nuisance’. However, it said that as previously advised, the resident could contact the council’s out-of-hours noise monitoring team, who could investigate and had the power to serve a noise abatement notice if necessary.
11. The resident responded to the landlord on 5 November 2020. She said the noise was not general living noise, and there had been no change to the noise and so she wanted to escalate the complaint. The resident said that children running, banging, dragging and moving furniture every evening until the early hours was not normal household noise. She pointed out that the property beneath her could hear the same noise, and so it was so loud that it could be heard two floors away.
12. The following day, the landlord called the resident to discuss the matter. It was noted that the resident had been disturbed again the previous evening but had not been able to get through to the council’s noise pollution service. The landlord advised the resident to try reporting the matter online, and also said that if her neighbours did this too, it could only help in building corroborative evidence. The landlord confirmed it would escalate the resident’s complaint to the next stage of its complaints process.
13. The resident submitted further monitoring sheets in November 2020.
14. The landlord issued its stage two complaint response on 17 November 2020. This said:
    1. The family living above her had moved into the property in November 2019.
    2. The resident had first raised concerns in June 2020 in relation to noise nuisance. It outlined the complaints she had made about the noise.
    3. In order to progress the noise nuisance case as a breach of tenancy, it would require evidence that the noise was different to everyday household noise. However, it confirmed that, in its view, the noise reported was everyday household noise.
    4. The council’s environmental health department was the statutory body that would deal with noise complaints, and it suggested the resident contact them directly. The landlord confirmed it would follow any course of action the council determined. However, if the council determined there was no statutory nuisance, there was little else that the landlord could do, other than what it had already done and what it proposed to do next.
    5. In order to try and address the issue, it had reminded her neighbours about being mindful with regard to any noise transference on 12 occasions (seven calls, three letters and two text messages), in response to the resident’s monitoring sheets.
    6. Although it did not have enough evidence to take enforcement action, in order to try and be reasonable, it would be offering additional floor coverings to the resident’s neighbours at its own expense. It confirmed it could not force the neighbours to accept this but was hopeful this would be accepted as a potential solution.
15. The resident responded to the landlord and pointed out that whilst it had said she had complained from June 2020, there had been noise from the neighbours since the previous November. The resident explained that she had asked her neighbours not to make noise as it travelled, and she thought they did not care and were doing it on purpose to cause her distress.
16. In December 2020, the resident again advised the landlord that she had continued to be disturbed by noise nuisance. She said the landlord had done nothing to resolve the matter.
17. A copy of the landlord’s internal correspondence in December 2020 said it had carried out a practical sound transmission test.
18. In February 2021, the resident received an email from the local council’s environmental health team. It said the law dealing with nuisance implies a degree of ‘give and take’, and a certain level of noise is inevitable. It said it does not count people walking around in their home as noise nuisance or ASB. It explained that for something to be a statutory nuisance, the disturbance would be persistent or ongoing and current. It said it could not take legal action to prevent normal domestic activity from happening. Finally, it said that if her neighbours created noise at an unreasonable level that could be heard outside the property, she should contact it again.
19. The landlord wrote to the resident on 27 April 2021. It said the council had looked into the matter but found the noise reported was hard to prove, and that they could not categorise the noise as a statutory nuisance. The landlord said that whilst it was happy to monitor the ongoing issues that the resident was experiencing, it said this could only be done effectively if she completed the required paperwork and submitted it. It explained that text messages would not allow it to monitor the noise affecting the resident.
20. On 25 May 2021, the landlord wrote to the resident again. It said it had carried out home visits to the resident and her neighbours, and had also liaised with the local authority. It said that it had not been able to prove that the noise the resident was reporting constituted a statutory nuisance. The landlord thought the noises reported would be considered normal domestic activity. The landlord pointed out the local council had told the resident that a certain level of noise was inevitable. Finally, the landlord encouraged the resident to report incidents that would constitute ASB, but said that on this occasion, the noises reported were not classified as this and it was therefore closing its case.
21. In September 2021, the landlord met with the resident to further discuss her concerns. The resident explained she thought her neighbours were making the noise deliberately. The landlord suggested mediation, but the resident did not wish to do this as she did not think it would be of value.
22. The resident brought her complaint to this Service. She advised that the landlord had asked her to record the noise made by her neighbours.

Assessment and findings

23. The role of this Service is not to establish whether the ASB reported was occurring or not; the Ombudsman’s role is to establish whether the landlord’s response to the resident’s report of ASB was in line with relevant policies, procedures and good practice.

24. As the resident was reporting regular noise nuisance, it was appropriate for the landlord to ask her to complete the monitoring sheets. This was so that it could establish when the noise was taking place, and also whether this would be considered ASB.

25. The landlord explained on several occasions to the resident that it thought the noise she was reporting would be considered everyday household noise, rather than a noise nuisance. Despite this, it informed her neighbours of the resident’s concerns on several occasions, which was reasonable given the continued reports from the resident.

26. Given that the resident’s reports that her neighbour below could also hear the noise, and the length of time the resident had been complaining about the matter, it was reasonable for the landlord to carry out further investigations. The landlord apparently arranged a practical sound transmission test, though it is not known what the result of that test was. In addition, the landlord offered to arrange to pay for additional floor coverings for the resident’s neighbours and also, following the completion of the complaints process, recommended that mediation between the parties take place.

27. These proposed resolutions were both reasonable and proportionate in the circumstances. The landlord acknowledged that the resident had been affected by the noise from the neighbour and explored routes for improving the situation. It also liaised with the Local Authority, signposting the resident and confirming that it would act in accordance with any recommendations that resulted from this option. However, the Local Authority did not conclude there had been noise nuisance, and appears to have also attributed the noise to normal domestic activity.

28. Consequently, it was reasonable for the landlord to close its file as it had concluded there was no ASB taking place. This was in line with its ASB policy which sets out that everyday household noise is not considered ASB and is not in breach of tenancy conditions.

29. The landlord’s offer to arrange mediation was declined by the resident as she did not believe there was any value in pursuing this option. In the Ombudsman’s experience, mediation is a very useful tool in such cases, with parties developing an understanding of one another’s experiences and needs through facilitated discussion. This can lead to a greater degree of awareness about the impact of a household’s actions and a consequential change in behaviours. In the circumstances, it is recommended that the landlord re-offer this option so that the resident has a further opportunity to consider this option.

Determination (decision)

30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s reports of noise nuisance.

Reasons

31. The landlord did not consider that the noise reported by the resident amounted to ASB as it came within the definition of everyday noise as contained within its ASB policy. Despite this, the landlord contacted the resident’s neighbours on several occasions to advise them of her reports. It also carried out a sound test, offered mediation services and offered to pay for additional floor coverings for her neighbours. The landlord also referred the resident to the Local Authority’s environmental health team and confirmed that it would act in accordance with any recommendations that resulted from this route. In all the circumstances of the case, the landlord acted both reasonably and proportionately.

Recommendations

32. The landlord to make a further offer to facilitate mediation between the resident and her neighbour.