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Southwark Council (202110761)

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REPORT

COMPLAINT 202110761

Southwark Council

24 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

  1. The complaint is about the landlord’s handling of the resident’s:
    1. Reports of noise nuisance.
    2. Formal complaint.

Background and summary of events

Background

  1. The resident is the secure tenant of the property, which is a 1-bedroom flat within a block. The landlord is a council.
  2. The landlord has not provided a copy of the tenancy agreement. Its conditions of tenancy, in use from April 2014, state residents must “keep noise, however caused, at a level which does not disturb other people.” Residents must also not commit anti-social behaviour (ASB) which it defines as causing nuisance, annoyance, distress, or alarm to other residents. Residents are required to ask for permission before laying laminate or wooden flooring and the landlord will consider potential noise nuisance before agreeing. It may also make permission conditional on the resident ensuring “proper” sound insulation and can take legal action if this is not done.
  3. Under the landlord’s ASB policy it says it will adopt a risk-based approach and will exercise professional judgement when assessing how to respond to reports of ASB. It will categorise reports of ASB as either category 1 (high risk), 2 (medium risk) or 3 (low risk). It categorises noise nuisance as medium risk and harassment or threats as high risk. It will write to, call, or visit the reporting resident within 3 working days and carry out a risk assessment. It will then encourage the use of diary sheets and keep the resident updated with progress.
  4. The landlord will consider appropriate remedies such as speaking to the alleged perpetrator, warning letters, an acceptable behaviour contract, engaging a professional witness, and referring to mediation. If appropriate and proportionate it can also consider taking legal action. Its policy points out that all its actions must be compliant with its legal obligations under the Equality Act 2010 to meet the public sector equality duty.
  5. Within its tenant’s handbook, the landlord says that it cannot help residents with reports of noise caused by everyday living sounds, footsteps on wooden or laminate flooring, or noise caused by inadequate sound insulation.
  6. The Ombudsman’s Spotlight Report on Noise Complaints: Time to be heard, sets out recommendations for landlords in their handling of noise complaints.
  7. Under its complaints policy, in use at the time, the landlord defines a complaint as “any expression of dissatisfaction about any of our services requiring a response.” It operates a 2 stage complaints process and will acknowledge complaints within 3 working days. It will respond to stage 1 complaints within 15 working days and stage 2 complaints within 25 working days.
  8. The Housing Ombudsman’s Complaint Handling Code (the Code), in use at the time, sets out how a landlord should respond to complaints. A landlord should respond to a stage 1 complaint within 10 working days. If it needs a further 10 working days in exceptional circumstances, it must contact the resident to explain this. Any further delay beyond this must be agreed with the resident. It should escalate the complaint if asked to do so by the resident and should respond within 20 working days.

Summary of events

  1. The resident called the landlord on 14 September 2020 to report noise from the property above. She said it had been ongoing for months and she had spoken to the neighbours about it. She also said one of the neighbours’ children was disabled, and the neighbours’ household was overcrowded.
  2. On 28 and 30 March 2021, and 3 April 2021 the resident called the landlord to report noise. She said the noise was banging or heavy footfall noise from above and said they had wooden flooring. On 3 April 2021 the landlord’s records say it attended and monitored noise from outside the neighbours’ front door but did not hear any. It has explained that it was not conducting internal visits at this time due to the COVID-19 pandemic.
  3. The resident called the landlord and made further reports of noise on 25 May 2021, 16 and 18 June 2021. She also sent an email containing a video recording noise. She said it was running noise and the neighbours had disclosed that their child was disabled. The landlord discussed the possibility of mediation, but also said due to the nature of the noise and reasons for it there was little action it could take. Its records say it tried to call the neighbours but there was no answer. On 22 June 2021 she called it again to report noise.
  4. On 24 and 25 June 2021 the neighbours emailed the landlord, and it called them to discuss the situation. They said the resident had been banging on her ceiling using a stick or broom handle which was causing them a nuisance. They said their child did play in the property but not during the night and confirmed they had wooden flooring. The landlord’s note says it suggested they put rugs down in the living room to lessen the noise and they agreed.
  5. The resident made further reports of noise on 7 and 19 July 2021 and said that the landlord had not helped her. She included a diary sheet and said she had reported it to the police. She said it was affecting her mental health and she had tried to start her own legal action against the neighbours. She called the landlord again on 21 July 2021 and said if she killed herself, it would be the landlord’s thought. The following day it sent an internal email to notify a manager about her comments.
  6. On 23 July 2021 the resident called the landlord, and it raised a stage 1 complaint. The complaint was about the noise from the neighbours’ property and that it had not done anything about it. She also said she had been threatened by the neighbour and had reported this to the police. The same day the neighbours emailed the landlord and reported further noise from the resident. They said she was banging her ceiling, and this was upsetting their disabled child and newborn baby. It called the resident, and she asked if it would arrange mediation. It then called the neighbours who refused.
  7. On 13 August 2021 the landlord provided its stage 1 response and said the outcome was that it would speak to the neighbours about flooring to reduce household noise. It also said how the resident could escalate her complaint.
  8. The neighbours emailed the landlord on 16 August 2021 and said the resident had prevented one of them from using the communal lift with their newborn baby, which scared them. They said they reported this to the police. They emailed it again on 23 August 2021 and asked what it was going to do to end the harassment they said they had experienced. Its notes say it called the neighbour and the resident, who made counter allegations. It said it advised all parties to stay away from each other. The police emailed it on 8 September 2021 and explained the allegations but that the neighbours did not want to prosecute.
  9. There was no contact, or no records have been provided by the landlord, for the period 9 September 2021 to 25 June 2022. However, on an unknown date the resident asked the landlord to escalate her complaint and it emailed her on 1 March 2022 to acknowledge this.
  10. The resident called the landlord on 25 June 2022 and reported further noise from the neighbours’ property, which she said had been ongoing. She said she had reported it, spoke to a councillor, and made a complaint but it had not been resolved.
  11. There was no contact, or no records have been provided by the landlord, for the period 26 June 2022 to 29 June 2023.
  12. On 27 February 2023 the resident instructed solicitors, who wrote to the landlord and asked it to provide a stage 2 response. They wrote to this Service on 21 April 2023 on behalf of the resident and asked the Ombudsman for assistance. They said it had not responded and provided evidence it had received their letter which they sent by email. The Ombudsman emailed the landlord on 20 and 30 June 2023 and asked it to provide a stage 2 response. It acknowledged the stage 2 complaint on 30 June 2023.
  13. The landlord provided its stage 2 response on 28 July 2023 in which it said:
    1. It received the stage 2 complaint on 30 June 2023.
    2. It was sorry the resident was experiencing ASB, and it had “explored all options to resolve the matter.”
    3. It concluded the ASB was noise nuisance caused by a child walking or playing and had asked the neighbours to put a rug down.
    4. The resident had only reported one noise incident since 2021.
    5. Had investigated and there was no sufficient evidence to pursue legal action against the neighbour.
    6. It did not uphold the complaint but said how to contact this Service if she remained dissatisfied.
  14. The landlord’s records state that it did not receive any further contact from the resident until she called it on 21 March 2024 to enquire about moving. Its note of the call says it did not know that the noise was still occurring and offered to send a professional witness which she agreed to.

 

 

 

Assessment and findings

The landlord’s handling of the resident’s reports of noise nuisance

  1. The resident made a report of noise nuisance in September 2020 and it is not clear from the records what, if any, action the landlord took. When she reported noise again in late March and early April 2021 the landlord attended outside the neighbours’ property to listen for noise. Within the constraints of COVID-19 rules in place at the time this was a reasonable approach for it to have taken. However, the landlord did not carry out a risk assessment as per its ASB policy. It also failed to suggest the resident keep diary sheets or record the noise to gather evidence. It did not speak to the neighbours at this point about the noise, or their flooring which the resident had raised as an issue, which was a further failing.
  2. After the resident reported noise again on 3 occasions in May and June 2021 the landlord attempted to call the neighbours. It did not attempt any further contact such as sending a letter or email which it should have. It did discuss the possibility of mediation with the resident, which was in line with its policy, and gave a realistic assessment of its likely success. It was appropriate for the landlord to manage the resident’s expectations, and it did this in a way which respected the neighbours’ privacy. The neighbours had disclosed information to the resident, about their child’s disability and being overcrowded, but the landlord did not confirm or deny these facts which was the correct approach to have taken.
  3. In late June 2021 following the neighbours’ noise complaint the landlord did ask about their flooring and made a solution focused suggestion of putting rugs down. While this was positive, it failed to consider whether the neighbours had permission for wooden flooring and whether they had used insulation or sufficient underlay. These were requirements under the tenancy conditions and the landlord should have checked these.
  4. The resident made further reports of noise in July 2021 but there is no evidence the landlord took any action. When she reported having suicidal thoughts it failed to take any safeguarding measures which was a serious failing. It also failed to investigate her reports of harassment which she said she had reported to the police when she raised her stage 1 complaint. Following further complaints from the neighbours it did then suggest mediation, which was understandably refused by the neighbours. It is clear by July 2021 that the resident and the neighbours were becoming increasingly frustrated with each other and it was too late for mediation, which it could have offered much earlier.
  5. Within its stage 1 response on 13 August 2021 the landlord said it had previously asked the neighbours to put down rugs as a solution. This had either not worked, or had been ignored, as the resident was still reporting noise. It had not visited either party, which it could have by this date as government COVID-19 rules had eased from 19 July 2021. In any event, it failed to consider what more it could do to try to resolve or reduce the noise.
  6. Within its stage 2 response the landlord said it had explored all its options but there was not enough evidence to start legal proceedings. It was reasonable for the landlord to conclude it could not start proceedings. The nature of the noise and reasons for it did not amount to culpability. In addition, the landlord had a duty to consider its Equality Act 2010 obligations in relation to the neighbours and their son. It would not have been proportionate to have taken legal action for an injunction or possession.
  7. The resident, neighbours and landlord were all in a difficult position. It was not disputed that footfall noise was coming from the neighbours’ property. It is also reasonable to presume this was not deliberate. Where the landlord failed was firstly in not trying to better manage this through regular contact with the neighbours, and in not properly addressing their wooden flooring. It failed to check rugs had been put down and did not consider a more permanent solution. It could have checked on whether it had given permission or revoked permission if it had been given and required the neighbours to have laid carpets with underlay. While it was not obliged to pay for this, it could have considered this or whether it could provide any assistance, grant, or signpost the neighbours towards funding options.
  8. There was maladministration. The resident suffered from noise which caused her frustration, distress, inconvenience and time and trouble in reporting, which may have been stopped or lessened if the landlord had done everything it could have. She told the landlord it was affecting her mental health and even attempted her own legal action to try to stop the noise. To reflect the impact an order has been made that it pay £1,000 compensation to the resident, which is in line with the Ombudsman’s guidance on remedies.

The landlord’s handling of the resident’s formal complaint

  1. The landlord raised a stage 1 complaint after the resident expressed dissatisfaction with its handling of her reports of noise nuisance on 23 July 2021. It failed to acknowledge her complaint in breach of its complaints policy and the Code. It provided its stage 1 response on 13 August 2021, which was within its 15 working day policy timeframe but in breach of the 10-working day timeframe set out in the Code.
  2. On an unknown date, but before 1 March 2022, the resident asked to escalate her complaint to stage 2 of the landlord’s process. The landlord has failed to provide evidence of escalation or acknowledgement. However, the resident provided a copy of its acknowledgement dated 1 March 2022. A year later it had still not provided its stage 2 response. Following the resident instructing solicitors, and the solicitors emailing the landlord to ask for a stage 2 response, it again failed to provide one.
  3. After the Ombudsman emailed the landlord, twice to ask for its response, it provided it stage 2 response on 28 July 2023. This was 356 working days, or 15 months, after it first acknowledged escalation which was an unacceptable and unreasonable delay. This was in clear breach of its policy and the Code. Within its stage 2 response it incorrectly stated that escalation was requested on 30 June 2023 which was clearly incorrect. It failed to recognise, acknowledge, apologise for, or offer redress for its complaint handling failings which was a further failing.
  4. The Ombudsman’s Dispute Resolution Principles are to Be Fair, Put Things Right and Learn from Outcomes. The landlord failed to do this within its complaint handling. There was severe maladministration which caused further frustration, distress, inconvenience, time and trouble for the resident in pursuing her complaint. To reflect the impact an order has been made that the landlord pay £600 compensation.
  5. This Service notes that the response timeframes set out within the landlord’s compliance policy do not comply with the Code. This has been raised in previous cases and has been referred to the Ombudsman’s duty to monitor team.

Determination (decision)

  1. In accordance with Paragraph 52 of the Scheme, there was severe maladministration in relation to the landlord’s handling of the resident’s formal complaint.
  2. In accordance with Paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s handling of the resident’s reports of noise nuisance.

Reasons

  1. There was severe maladministration as the landlord failed to respond to the resident’s stage 2 complaint, despite being chase on several occasions, within its policy or the Code’s timeframe. Its delay was unacceptably long, and it failed to acknowledge this, apologise, or offer redress in its stage 2 response.
  2. There was maladministration as the landlord failed to regularly contact the neighbours after the resident reported noise. It did not fully investigate the neighbours’ flooring, whether they had permission for wooden flooring, and whether it should have enforced its tenancy conditions regarding flooring.

Orders

  1. Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Provide a written apology to the resident from the chief executive for the failures detailed in this report.
    2. Pay directly to the resident compensation of £1,600 made up of:
      1. £1,000 for the frustration, distress, inconvenience, time and trouble caused by its failings in complaint handling.
      2. £600 for the distress, frustration, inconvenience, time and trouble caused by its failing in its handling of the resident’s reports of noise nuisance.
  2. Within 6 weeks of the date of this report, the landlord is ordered to:
    1. Visit the neighbours’ property to view whether rugs have been put down. During this visit the landlord is to discuss the fitting of carpet and how this could be achieved, whether it would pay for this or whether any grants or funding is available. A note of the visit (redacted where needed to comply with data protection) is to be provided to this Service.
    2. In accordance with paragraph 54(g) of the Scheme, provide a copy of its self-assessment against the recommendations within the Ombudsman’s Spotlight Report on Noise Complaints, and comment on how it has considered the recommendations.
  3. In accordance with paragraph 54(g) of the Scheme, within 12 weeks of the date of this report, the landlord is ordered to carry out a case review of this complaint and report the outcome of this review to its board and this Service. This review is to include (but not be limited to) its processes for recording, handling, and monitoring compliance with its complaints policy timeframes.
  4. The landlord is ordered to confirm compliance with these orders to this Service within the stated deadlines.