Midland Heart Limited (202209417)

REPORT

COMPLAINT 202209417

Midland Heart Limited

26 June 2023

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 from a neighbour’s property.

Background

2. The resident is a tenant of the landlord. She resides in a flat, situated in a complex of similar properties.
3. The resident began complaining about noise nuisance coming from the flat above her from 2014 onwards. She felt that the issue was caused by her neighbour installing laminate flooring. The landlord has stated that at the time, it was not against the neighbour’s tenancy agreement to install laminate flooring. It investigated the residents previous noise reports throughout the years, concluding each time that the noise constituted normal domestic sound. The neighbour moved out on 3 July 2022. The landlord subsequently removed the laminate flooring from the neighbour’s flat. It also changed its standard tenancy agreement, to state that laminate flooring was now prohibited.
4. On 4 August 2022, the resident reported to the landlord that the new upstairs neighbours were now also installing laminate flooring. The resident submitted a complaint to this Service the same day. She stated that her complaints about the laminate flooring had been ignored by the landlord throughout the years. She further explained that the new neighbour had also installed laminate. The landlord told the resident on 5 August 2022 that it would ask the neighbour to remove the flooring within seven days.
5. The landlord sent its complaint response on 18 August 2022. It limited its investigation to the six months prior to the complaint, but used historic complaints to provide context. The landlord assured the resident that its team were investigating the laminate issue, and advised her to continue to make noise recordings as evidence. It acknowledged the resident’s frustration and promised to continue to oversee the complaint.
6. The resident has said that she escalated her complaint on 1 September 2022. She stated that the issue with the new neighbour had not been rectified and that she was still experiencing noise nuisance. Additionally, she was dissatisfied at the landlord’s lack of communication.
7. The evidence provided for this investigation shows that the landlord corresponded with the neighbour, made clear that the laminate needed to be removed, and visited to ensure it had been.
8. In its final complaint response the landlord apologised for not making it clear to the neighbour that they must not lay laminate. It stated that it had learnt from this and would ensure that this was now made clear at all initial sign-up meetings. It explained that it would continue to monitor the removal of the laminate over a reasonable timeframe. If the neighbour neglected to rectify the issue, then the landlord stated it would take tenancy action.
9. The landlord’s final visit to the neighbour at the end of in October 2022 showed that the laminate had been replaced with vinyl flooring, which the landlord considered to be appropriate.
10. In her complaint to this Service, the resident has stated that she is unhappy that the noise nuisance is still ongoing. She would like to be further compensated for the length of time this issue has taken to resolve.

Assessment

Scope of investigation

11. The resident has complained that she has reported noise nuisance created by her previous neighbour for the past nine years. The landlord has explained that her last complaint of this nature was made in February 2022, which was not escalated to complete the landlord’s complaint procedure. The historic complaints regarding the resident’s previous neighbour occurred over 12 months before the resident brought this complaint to this Service, and were not assessed by the landlord in its complaint response.
12. Under the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which are made prior to having exhausted a landlord’s complaints procedure, or complaints which were brought to the Ombudsman’s attention more than 12 months after they exhausted the landlord’s complaints procedure. Accordingly, although the historic complaints provide context for this report, the focus of this investigation will be on the landlord’s response to the residents reports of noise nuisance from her new neighbour, beginning in August 2022.
13. The resident has reported further noise concerns to the Ombudsman while this investigation was in progress. Any current issues of concern need to be raised with the landlord directly. The resident can raise a new complaint with the landlord if she is unhappy with its handling of her reports in the period after that considered in this report (November 2022). The Ombudsman can only assist with matters that have been considered by a landlord in its complaints process.

The landlord’s handling of reports of a noise nuisance involving a neighbour.

14. Under the landlord’s Anti-Social Behaviour (ASB) policy, examples of noise nuisance that is considered include persistent loud shouting, loud music or televisions that can be heard outside. Sounds such as domestic living noises like doors closing, washing machines or children playing are not considered examples of ASB.
15. It is important to understand that, in line with the landlord’s ASB policy, many types of noise transmitted between homes is considered an everyday part of living, even if the level of noise is felt by a tenant to be too loud or intrusive. In such cases, a landlord has an obligation to resolve any repair issues which might be contributing to the issue, but, in the absence of such repair issues there is usually no meaningful enforcement steps a landlord can take when the noise is objectively everyday living noise.
16. As the laminate flooring had been the main source of the resident’s reports of noise nuisance, the landlord acted appropriately by using the voids period to remove it. This is in-line with the recommendations laid out in this Service’s Spotlight report on noise, which advises that landlords should utilise the period between tenancies to undertake works that lessen the likelihood of another noise complaint, such as removing hard flooring. The landlord again acted appropriately by reviewing its tenancy agreement, and changed it to make it more difficult to fit laminate flooring, which can frequently cause noise complaints when fitted in upper floor flats.
17. The current neighbour’s tenancy agreement states that they must not make any noise capable of causing a nuisance and/or annoyance to any person. Examples include noise through laminate flooring. The agreement also states that the neighbour must get the landlord’s written permission before fitting laminate flooring. If a resident fails to keep to the terms of the tenancy, the landlord can seek an injunction from the court, or commence legal proceedings in order to seek possession of the property.
18. The evidence shows that the resident reported the issue on 4 August 2022. On 5 August she contacted the landlord, who stated that it had contacted the neighbour and explained they needed to remove the laminate. This was a prompt and appropriate course of action, showing that the landlord was aware of the tenancy restrictions, and the noise impact this would potentially have on the resident.
19. The laminate was ultimately not fully removed until October 2022. This was clearly longer than the landlord had told the resident it would take. Nonetheless, the evidence seen for this investigation shows the landlord was working with the neighbour to resolve the issue, and nothing has been seen indicating it missed any opportunities to expedite the resolution.
20. The resident told the landlord that she was unsure if the laminate had been removed by the neighbours, as she was still experiencing noise nuisance.  The landlord acted reasonably, by inspecting the flooring, and taking images of the laminate, which had been removed and stored separately. On 9 November 2022, it explained to the resident that the laminate had been removed successfully, but that it would continue to work with her if there was any further noise nuisance. As the resident was reluctant to use the Noise App to record the nuisance, the landlord offered to attend the resident’s property, to assess the noise transference. This was appropriate, as the landlord would still need evidence of unreasonable noise transference in order to take steps to mitigate the nuisance.
21. In its first complaint response on 18 August 2022, the landlord acted reasonably by responding within its complaints policy timescale of 10 working days. The landlord explained that it would investigate the issue as tenancy breach and acknowledged the resident’s frustration in this matter. The landlord’s final response on 6 October 2022 was also within its policy timescales for stage two responses, which is 20 working days. The landlord said that it should have emphasised to the neighbour that they could not lay laminate prior to the start of their tenancy. It explained that it had learnt from this mistake and would now make that clear at the start of new tenancies. It offered the resident £170 compensation for this aspect. The landlord was not specifically obliged to take this action by any particular policy or practice. The fact that it did shows that it appreciated how distressing the resident had found her experiences, and that it was focussed on finding a reasonable and workable solution.
22. The landlord confirmed that laying laminate was a tenancy breach and that it was ensuring that the neighbour removed it, in line with the tenancy. The landlord apologised for its poor communication in this case, and for not investigating the neighbour’s tenancy breach sooner. It offered a further £170 for this aspect and another £100 for delays in escalating the resident’s reports to a complaint.
23. The landlord identified its errors, acknowledged the impact on the resident and attempted to put things right by apologising, endeavouring to learn from its mistakes and change its processes in regard to laminate flooring in properties above ground floor. With that, its offer of £440 compensation was in line with this Service’s remedies guidance. Overall, the landlord’s actions and remedies in response to the complaint were reasonable.

Determination (decision)

24. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.