Wandsworth Council (202110776)

REPORT

COMPLAINT 202110776

Wandsworth Council

17 December 2021

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:
1. Handling of the resident’s reports of noise nuisance coming from his upstairs neighbour.
2. Handling of the resident’s leak reports coming from the property above.

Background and summary of events

The resident is a leaseholder, and the landlord is the freeholder. The property is a flat within a block of flats. The reports of noise nuisance and leaks in this investigation refer to one property above the resident’s home and will be referred to as ‘the neighbour’.
The resident first reported noise nuisance from the property above on 13 October 2020. The landlord issued an advisory letter to the neighbour on 28 October 2020 regarding the reports and asked that he be mindful of the flats around him.
The landlord wrote to the neighbour on 27 October 2020 and explained there was a leak coming from their property affecting the property below. It provided contact details to arrange for its contractor to attend and rectify the leak. It is unclear if this letter was in response to the resident’s reports, as no evidence of an initial report was provided.
On 3 November 2020 the resident chased the landlord for an update on the leak. He raised concerns about the water damage it was causing to his property. The landlord arranged for its contractor to attend the neighbour’s property on 5 November. On 10 November 2020 it advised the resident that the leak had been traced and resolved. It also advised the resident to contact the landlord’s insurance department to determine if a claim could be made for the damage.
The resident emailed the landlord on 4 February 2021 at 3:04am and explained hearing loud noises from the neighbours above. He said it was ongoing nightly and impacted his sleep. He also confirmed the leak had been resolved.
On 8 February 2021 the landlord responded to the resident. It said it had advised the neighbour of reports of noise nuisance and asked them to be mindful of the noise.
On 28 February 2021 the resident emailed the landlord at 1:00am. He detailed hearing things moving and vacuum cleaning which started from midnight. He said he was disabled and wanted to be able to sleep at night, so he called emergency control (EC, the local authority’s standard emergency service) about the noises.
On 4 March 2021 the landlord advised the resident, it had spoken with the neighbour who had denied cleaning and vacuuming at unsociable hours or making noise late at night. The landlord advised the resident to continue to report the noise to EC; and if the noises were found to be statutory noise nuisance, formal tenancy action would be taken.
The resident made further reports of noise nuisance on 9 and 22 March 2021. He said EC had been called around midnight, but he was advised they were unable to visit him or the neighbour. He said the issue remained unresolved and urged the landlord to send someone to attend the property to speak with the neighbours and/or witness the noise. He questioned what would be done to stop the noises and said if the problem was not handled, he would have to contact the Ombudsman.
On 24 March 2021 the landlord advised the resident that the neighbour had denied making noise. Therefore, in the absence of corroborating evidence to support the resident’s reports, it was unable to take formal action. It advised it was unable to attend physically to reports of noise nuisance due to Covid restrictions; but once they were lifted, it would attend.
The resident emailed the landlord on 25 March 2021 saying that he was disappointed with its response. He said it meant the neighbour could continue making noise until an officer attended. He questioned how he would provide evidence if an EC officer had not been sent when he reported noise nuisance. He also said its handling was unprofessional.
On 7 May 2021 the resident emailed the landlord. He explained that he heard shouting, heavy objects hitting the floor and had called EC again to report it. He also said water from the neighbour’s bath leaked into his property periodically near his electric box, which he believed was a fire hazard. He said the antisocial behaviour (ASB) affected his lifestyle, but despite raising his concerns about the noise nuisance and leaks, the issues were still occurring.
On 12 May 2021 the landlord apologised that the resident was still experiencing noise nuisance and advised him that an officer would attend the property. The landlord reiterated that the noise nuisance had not been confirmed and would therefore be unable to act. It advised him that the neighbour’s property was inspected, and no leaks were identified. It said it believed the neighbour overfilled the bath causing water ingress into the resident’s property. It had warned the neighbour about this and asked them to be more careful.
The resident continued to report noise nuisance up until 15 May 2021.
On 25 May 2021 the Local Government and Social Care Ombudsman (LGSCO) received a formal complaint from the resident. The LGO advised him that the landlord’s complaint process had to be completed before an investigation could be considered. The complaint was forwarded to the landlord for a response. In the complaint the resident detailed the noise nuisance and the landlord’s actions to resolve. He explained he had experienced the issues since he moved into the property and felt stressed and unsafe. He advised the problems had been reported to the landlord many times but were still not investigated. He said it was still ongoing and wanted the noise nuisance and the reoccurring leak to cease.
The landlord emailed the resident on 26 May 2021 and explained that the neighbour had admitted that he banged some furniture on 15 May as he became upset while watching a football match on TV but denied making other noises late at night. The landlord advised the neighbour that this was unacceptable behaviour and not to repeat in the future. It made a referral for mediation and was arranging a sign language interpreter (for the neighbour who was deaf) to assist with the communication.
On 27 May 2021 the landlord acknowledged receipt of the resident’s complaint.
The resident continued reporting further noise nuisance to the landlord from 28 May to 12 June 2021 and urged the landlord to help resolve the issues.
On 16 June 2021 the landlord issued its stage one complaint response. It detailed the resident’s noise reports and its actions taken to resolve the issues. The landlord explained that:
1. The neighbour had been spoken to and written to on several occasions, but other than the one incident had denied all other reports.
2. The noises had not been witnessed nor confirmed by an independent third-party and therefore it was unable to act against the neighbour.
3. Another neighbour had said occasional noises were heard from the neighbour’s property but stated it was not at a level that they would consider a nuisance.
4. Mediation was being progressed but had been delayed due to a sign language interpreter being required for the neighbour.
5. It had taken action to ensure EC officers could now enter the property when noises were reported.
6. The neighbour’s property had been checked by its contractor and no leaks were identified.
7. The landlord believed it had acted appropriately in addressing the resident’s reports and formal action was not possible due to the lack of evidence.
The resident reported to the landlord, hearing shouting, and thumping in the property above him on 20 June 2021. He said he called the police who attended but it advised there was no evidence of a crime. He also stated he had called EC because the neighbour’s TV volume was very loud, but no one had attended to witness. The resident explained the issues caused him stress, impacted his physical health, and he had been prescribed medication due to this. He believed the landlord should be responsible for the water damage to his property and his health if not resolved.
The resident responded to the landlord’s complaint response on 21 June 2021. He said he had done everything to try to resolve the problem including calling EC as advised. He explained the issues caused him increased stress and exacerbated his medical conditions. He said it would be difficult to sell his property and felt he was a victim of the neighbour and the landlord.
On 30 June 2021 an internal email between staff showed that the resident and the neighbour separately met with a mediator, and it had arranged for joint mediation on 15 July 2021. The outcome is not known.
The resident called the EC on 7 July 2021 because water leaked down to the electric cupboard, and he was concerned it could cause a fire.
The resident called EC on 7 July 2021 because water leaked down to the electric cupboard, and he was concerned it could cause a fire.
On 13 July 2021 the landlord wrote to the resident and apologised that there was no significant improvement regarding the noise. It asked the resident to confirm if officers had been entering his property as it instructed them, to witness the noise. The resident responded that same day and said officers had not attended to witness the noise. He advised the police had showed him how to record noises on his phone.
On 19 July 2021 he chased the landlord for a response and advised it had occurred several times before. He questioned what it did to prevent the leak from happening again and who would be responsible for the damage caused to his property.
On 19 July 2021 the landlord issued its final complaint response. It reiterated it was unable to act in noise nuisance cases without an independent third party and had insufficient evidence to base further action. It concluded it was arranging formal mediation between the resident and neighbour, but there were delays doing so due to the need for an interpreter. The landlord advised the resident on how he could escalate his complaint with the Ombudsman if he remained dissatisfied with its response.

Assessment and findings

The landlord’s ASB housing standards include serving noise abatement notices within five days where serious noise nuisance is reported and confirmed, providing a dedicated noise nuisance line during and outside normal working hours, operating 24-hour emergency control (EC) service seven days a week 365 days of the year, responding to calls that require the attendance of an officer within 30 minutes and keeping the resident informed of actions to be taken to address ASB and its outcome.
The landlord advises its estate service officers are available 24-hours a day to investigate reported problems including noise nuisance and act as a witness where required. This allows the situation to be observed and ensures enforcement action is decisive effective and resolves situations promptly. It advises its officers will monitor and act on reports of noise nuisance which can include issuing warnings, noise abatement notices, injunctions etc to provide a fast conclusion.
In accordance with the lease the resident is obliged to keep the property in good repair and condition, and to make good all damage to the property caused by a leakage or overflowing of water in or from the flat or any part thereof.
According to the landlord’s repair policy the landlord is responsible for repairs to the structure and exterior of resident’s homes and must keep installations in the property for electricity and water supplies in good working order.

The landlord’s handling of reports of noise nuisance

When a complaint of a statutory nuisance is made to a landlord by one of its leaseholders/residents the landlord should take such steps as are reasonably practicable to investigate the reports.
In this case, the landlord, for the most part, took reasonable steps to investigate the resident’s reports of noise nuisance, especially given the restrictions in place during the period from 6 January 2021, when the third UK lockdown began, to 21 June 2021, when all restrictions were lifted. That said, the landlord, although it was not obligated to, could have provided alternative ways to record evidence; for example, the use of noise monitoring app or equipment, whilst it was unable to visit the property. This would have been a significant and relevant step to take, as it would have potentially allowed the capture of evidence without the need for physical visits. The resident said in an email to the landlord on 13 July 2021 that the police had already showed him how to record noises on his phone, but there is no indication that they any recordings were provided to the landlord, or whether the landlord asked for them.
The landlord issued warnings to the neighbour about the noise reports. It arranged mediation for the two to try and resolve the issues of noise nuisance and leaks. Although joint mediation between the resident and neighbour was delayed due to the requirement of a sign language interpreter, that was a positive and appropriate course of action for the landlord to take as mediation can help to reduce tensions, and possibly allow amicable resolutions.
In short, from 4 February 2021, when the first report was made following the initial report in October 2020, to 21 June 2021, the landlord’s response to the resident’s reports of noise nuisance was reasonable and proportionate in the circumstances.
Overall, while there appears to be more the landlord can do in terms of following up the resident’s noise recordings, its general handling of the resident’s reports, in the circumstances, was not unreasonable.

The landlord’s handling of leak reports from the upstairs property.

When a resident reports a leak into a property, it would be expected that the landlord investigates, first and foremost, to establish if the issue was structural in nature, as per its repairs policy. If so, it would be responsible to repair the issue and make good any damage caused to the resident’s property. However, leaks caused by other leaseholders are usually not the landlord’s responsibility to resolve, and are matters for the leaseholders to resolve directly between themselves, potentially with assistance from the landlord.
The resident reported a leak entering his flat from the neighbour’s property at the end of October 2020. The landlord wrote to the neighbour on 27 October, and on 10 November 2020 the leak was resolved. A further leak was reported on 7 May 2021 and on 12 May it confirmed that, after inspection of the neighbour’s property, it found no leaks. It uncovered the cause of the leak was the neighbour overfilling their bath. A landlord would not be responsible for a leak caused by another tenant, except to repair any damage caused to the structure or installations owned by the landlord (as opposed to those owned by the leaseholder).
The resident requested the landlord to take responsibility for the damages to his property. It advised him to contact its insurance department to determine if a claim could be made for the damage against its building insurance. According to its repairs policy damage caused by escape of water can be raised under the landlord’s insurance codes therefore the landlord acted appropriately in line with its policy, and in line with its obligations.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its:
1. Handling of the resident’s reports of noise nuisance coming from his upstairs neighbour.
2. Handling of the resident’s leak reports coming from the property above.

Reasons

The landlord adhered to its obligations in responding to the resident’s noise reports, especially as it was restricted in what actions it could take due to the lockdown.
The landlord acted in line with its repairs policy to identify and resolve the leak entering the resident’s property from the neighbour’s above.

Recommendations

If the resident continues to report noise from his neighbour the landlord should fully explore options for him to record the noise for review, rather than rely on officers attending to physically witness it.