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Wandsworth Council (202112083)

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REPORT

COMPLAINT 202112083

Wandsworth Council

26 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

  1. The complaint is about the landlord’s handling of the resident’s reports of noise nuisance by a neighbour.

Background

  1. The resident is the leaseholder of the property, which is a 1-bedroom ground floor flat. The landlord is the freeholder.
  2. On 6 March 2019 the resident contacted the landlord to report noise nuisance from the property directly above, which she stated had been ongoing for the past 6 months. She referred to previous correspondence in 2014 when she had reported similar issues, following which the landlord had contacted her neighbour and the noise had stopped for some time.
  3. Between April 2019 and December 2019, the resident reported her neighbour making very loud phone calls, shouting, talking, and laughing at anti-social hours, which was seriously affecting her sleep and wellbeing. In October 2019, the resident emailed the landlord stating that its advice to report the noise to its Emergency Control (EC) team was ineffective, as the noise was intermittent. She noted that the landlord had not responded to the email sent in March, or to her requests for the Estates Manager to contact her. The resident reported that other neighbours had also witnessed the noise and asked the landlord to take action.
  4. The resident made a formal complaint on 23 May 2020. She complained that the landlord had failed to respond to her emails of March and October 2019 and that it had incorrectly advised the Residents’ Association that she had not reported noise nuisance since 2014. The resident shared extracts from a noise diary and referred to an incident when the landlord’s officer had attended and witnessed noise at a level likely to cause a nuisance. The resident felt that the landlord was neglecting its duties and breaching the terms of her lease by failing to take action to prevent the disturbance. The resident felt that the options the landlord had offered to assist with evidence gathering were inadequate. In March 2020, the resident informed the landlord that she had been forced to leave the property due to the impact of the ongoing noise issues.
  5. In its stage 1 and 2 complaint responses, the landlord concluded that the action it had taken, and the advice it had given, was appropriate. It sympathised that the resident felt unable to remain in the property but stressed that this limited its ability to gather evidence. The landlord had spoken to the resident’s neighbour and would attempt to do so again. It also made a note asking officers to offer to enter the resident’s property to witness the noise when reported. The landlord would refer the matter to its solicitors and offered a meeting with the resident to discuss her concerns.
  6. On receipt of a further request to escalate her complaint, the landlord provided its final response. It partially upheld the resident’s complaint as it acknowledged that, following her recent reports, its officers had attended but had failed to enter her property to witness the noise, as previously promised. The landlord’s solicitors confirmed that they did not consider that there was sufficient evidence to seek an injunction or pursue tenancy enforcement action at that time.
  7. The resident believes that the landlord has enough evidence to take enforcement action against her neighbour. She remains dissatisfied with the landlord’s response to her reports. She would like the landlord to monitor the situation and if no improvements are made, to soundproof the neighbour’s property.

Assessment and findings

  1. The Ombudsman acknowledges the significant impact that the noise has had on the resident’s sleep and general wellbeing. The resident is understandably frustrated that the issue remains unresolved, and it must be very distressing that she has been unable to remain in her property.
  2. When the Ombudsman assesses complaints about the landlord’s handling of reports of ASB, it cannot make findings about whether ASB has occurred. Instead, this Service considers whether the landlord followed the requirements of the law and its policies and procedures, and whether it acted fairly and reasonably.
  3. The landlord’s ASB Policy states that where noise is “at a level that is intrusive or disturbing to neighbours” it may consider taking legal action. However, the landlord has explained to the resident that in order to issue legal proceedings it must be satisfied that it has sufficient evidence for there to be a realistic prospect of success. The Ombudsman would expect a landlord to provide reasonable assistance to a resident to gather evidence and to seek advice from its legal team where appropriate.
  4. The landlord investigated the resident’s complaint that it failed to respond to her emails of 6 March 2019 and 20 October 2019 and concluded that the named recipient had not received the emails due to a technical issue. It also acknowledged that it had not checked its records properly before responding to the Residents’ Association. It apologised for this, which was an appropriate and proportionate response.
  5. The landlord explained in its complaint response that it would need to acquire sufficient evidence from an independent source before considering legal action. The first recorded report of noise nuisance in the landlord’s incident log was on 30 April 2019. The landlord logged 13 reports of noise nuisance from the resident between April 2019 and October 2019. Its records show that it conducted site visits on 30 April 2019, 1 May 2019, 18 June 2019, and 6 July 2019. On 18 June 2019, the landlord’s officer witnessed noise at a level that would be deemed a nuisance to others but observed that this appeared to be the resident’s neighbour’s natural speaking voice. On the other occasions that the landlord attended, no noise was witnessed.
  6. The action taken by the landlord to investigate the resident’s reports of noise prior to the formal complaint was reasonable. Although it did not attend on every occasion, it made 4 visits within a 4-month period. As the landlord’s resources are limited, it may not always be able to attend reports of low level ASB, such as noise disturbance. Following the resident’s complaint, the landlord committed to prioritise the resident’s reports and made a note on its system that officers should offer to enter her property when attending. This demonstrated that the landlord took the resident’s concerns seriously and was willing to be flexible and accommodate her requests.
  7. It was also appropriate that the landlord encouraged the resident to continue reporting noise to its EC team, even though the noise was intermittent and difficult to witness, and an officer may not attend on each occasion. It was helpful for the landlord to maintain an independent record of the frequency of reported incidents, as this may prove to be useful evidence if legal proceedings were issued in the future.
  8. The landlord’s records show that on 2 June 2019 and 16 October 2019 the resident requested a call back from the Estates Manager. Although her requests were logged, there is no evidence that they were followed-up, which increased the resident’s frustration. The landlord is reminded of the importance of ensuring that residents receive a timely response to their requests for a call back. In general, the landlord communicated well with the resident about her concerns and devoted a considerable amount of resource to internal discussions about the best course of action.
  9.  As part of its stage 1 response the landlord offered to arrange a sound test, which was carried out on 15 December 2020 after COVID-19 restrictions were lifted. The landlord concluded that the level of noise observed was unlikely to constitute a nuisance. The landlord was also satisfied that there were adequate floor coverings within the property to minimise noise transference. The landlord noted that the resident’s neighbour had refused an offer of mediation but had agreed to be mindful of his neighbours when making phone calls at anti-social hours.
  10. The Ombudsman acknowledges the resident’s comments that the sound test did not accurately recreate the level of noise she regularly experienced. It was, however, reasonable for the landlord to attend to assess how easily noise travelled between the properties and to inspect the floor coverings, as the landlord’s findings may have influenced how it dealt with the issues going forward. For example, had the floor coverings been unsuitable, the landlord may have been able to compel the neighbour to install additional insulation.
  11. It is not always within a landlord’s power to resolve noise disturbance that does not amount to statutory nuisance. Overall, the Ombudsman considers that the action taken by the landlord in response to the resident’s reports of noise nuisance was reasonable. The landlord attempted to resolve the issues informally by discussing the resident’s concerns with her neighbour, carrying out a sound test to assess the noise transference between the properties, and offering mediation. It also provided sufficient opportunity for the resident to gather and submit evidence, which it reviewed alongside its legal team. The landlord was entitled to rely on its legal team’s advice that that an application for an injunction or tenancy enforcement action were unlikely to succeed on the basis of the available evidence.
  12. In its final complaint response, the landlord did acknowledge service failure due to its officers not offering to enter the resident’s property when they attended noise reports by her sister on 16 and 17 March 2021. The landlord’s internal communications confirm that on 8 March 2021 it had instructed the Estates Team to prioritise reports from the resident’s address, and to offer to enter her property to listen. It was reasonable for the landlord to apologise for this oversight, and to remind its officers of the need to attempt to enter the property when attending.
  13. The resident has alleged that the landlord is in breach of the lease by failing to ensure her quiet enjoyment of the property. The Ombudsman is unable to provide a binding determination of the parties’ obligations under the lease, in the way that a court can. The resident should seek independent legal advice if she wishes to pursue this aspect of her complaint.
  14. The Ombudsman notes that following the final complaint response of 18 May 2021, the resident provided a recording in December 2021, which did indicate that there may be some significant noise nuisance. On the basis of this additional evidence, the landlord’s legal team suggested that it may be helpful to install noise recording equipment within the resident’s property.
  15. The landlord could have considered installing noise recording equipment when the resident requested alternative ways of gathering evidence. This may have been appropriate, as the resident’s sister had attempted to capture the noise with sound recordings on her phone, which were of poor quality. Whilst the use of this equipment is at the landlord’s discretion, and the Ombudsman appreciates that it may not have been able to justify its installation in the absence of other evidence, a recommendation has been made that it considers installing the equipment if it has not already done so.

Determination

  1. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance.

Recommendations

  1. It is recommended that the landlord consider installing noise recording equipment within the resident’s property if it has not already done so.