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Soho Housing Association Limited (202206050)

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REPORT

COMPLAINT 202206050

Soho Housing Association Limited

21 December 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 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 handing of the resident’s reports of noise nuisance from neighbours.

Background

  1. The resident is an assured tenant of the landlord, a housing association. The property is a 1-bedroom flat on the third floor. The landlord has no recorded vulnerabilities for the resident. She advised this Service she has mental health conditions.
  2. The resident complained to the landlord, that she continued to experience noise from the neighbours on the above floor. She had said the noise was stomping, children and washing machine sounds. This was received by it on 27 June 2022. She had previously reported noise disturbance prior to this complaint on 18 February 2022, 3 May 2022, and 15 May 2022.
  3. The landlord issued its stage 1 response on 6 July 2022. It apologised for its change in staff over 18 months as the resident had to repeat her complaint. Despite that, it did not uphold her complaint. It had said to her it was unable to “witness” noise from her neighbours, who were cooperative. When it inspected the neighbour’s flat, it found laminate flooring, but thick rugs to minimise noise transference. It had suggested she contact an environmental health noise team of a local authority. It added that it had offered mediation between the resident and her neighbours, which she had declined. It further said a move from the flat had been previously discussed and linked her to a mutual exchange website.
  4. The landlord gave the resident 30 days to decide if she wanted to escalate the complaint to stage 2 of its internal complaints process. If not, for her to have considered the stage 1 response as the final response.
  5. The resident escalated her complaint on 11 July 2022. Overall, she had contested the landlord’s response. She felt the landlord had not taken enough action and that it should have asked the neighbours to install soundproof acoustic underlay. She also mentioned that she was not informed of the noise team at the outset of her initial reports. She detailed her last experience with the noise team, where she had to wait 4 hours for their attendance. This delay meant they had missed the level of noise she regularly experienced. The noise team had also confirmed they would not install noise recording systems.
  6. On 18 August 2022, the landlord sent its stage 2 response. It said that in its conversation with the resident the day before, it had reiterated its apology regarding changes to staff. It did not uphold her complaint and stated the following:
    1. it would rearrange a visit to perform a noise test between the resident’s and her neighbours properties
    2. it booked a visit from the noise team
    3. the resident should call the noise team when there was excessive noise

Prior to the landlord’s stage 2 complaints response, there was a failed noise test attempt by it on 10 August 2022. This was due to the neighbours unavailability.

  1. The landlord carried out a noise test on 25 August 2022 between the resident’s and her neighbours properties. The noise test confirmed there was some sound transference. Additionally, the resident said it had attributed this partly to the walls and partly to the flooring of the neighbouring property. She also said the landlord’s surveyors would be contacted to inspect the floor but was previously told this in March 2022.

Assessment and findings

  1. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. The principles of effective dispute resolution are:
    1. be fair, treat people fairly and follow fair processes
    2. put things right
    3. learn from outcomes
  2. This Service will apply these principles when considering whether the landlord had taken enough action to put things right and learn from outcomes.

Scope of investigation

  1. The Ombudsman’s remit does not extend to the investigation of historical issues. A resident is expected to raise issues with both the landlord and Ombudsman in a timely manner. We acknowledge this complaint was raised separately and additionally to previous reports. But, in order to investigate this complaint in line with paragraph 42(c) of the Housing Ombudsman Scheme, this Service will consider events from 6 months prior to the complaint being received by the landlord. This is from 27 December 2021 until 18 August 2022, when it issued its final response.
  2. The Ombudsman is not able to investigate issues that post-date the completion of the landlord’s internal complaints process. Although, we can comment on whether the landlord had followed through on any agreements it might have made during its complaints process.
  3. As part of the resident’s concerns, she mentioned the approach and relationship of the landlord’s members of staff towards her neighbours. Paragraph 42(h) of the Housing Ombudsman Scheme says this Service will not consider complaints which concern terms of employment or other personnel issues. So it is not within this Service’s remit to comment on such matters and we cannot look at disciplinary action. The Ombudsman, when investigating a complaint about a member of the landlord, will consider the response of the landlord as a whole, and will only comment on the actions of the landlord.
  4. The resident had said that the noise nuisance she had experienced had exacerbated her mental health issues. The Ombudsman is an alternative to the courts. As such, is unable to establish legal liability for whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Additionally, the Service cannot calculate or award damages. Therefore, the Ombudsman is unable to consider the personal health aspects of the complaint. These matters are perhaps suited for consideration by a court. However, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.

The landlord’s policies and obligations

  1. The tenancy agreement says the landlord must keep in good repair the structure and exterior of the property. This includes the internal walls, floors, ceilings, doors, door frames, door hinges and skirting boards. It excludes internal painting and decoration.
  2. The tenancy agreement also places obligations on the resident to not cause or allow members of their household to cause nuisance or potential nuisance. It specifies that the resident cannot allow excessive noise which causes nuisance to any person in the locality.
  3. In the landlord’s antisocial behaviour (ASB) policy, it defines noise as ASB when the noise is persistent, deliberate, or targeted. A vulnerability risk assessment matrix is to be completed on all high priority ASB cases. It notes this matrix can also be considered for cases that are not high priority. The purpose is to measure any harm caused and to guide staff on the actions to take, to protect individuals from further harm.
  4. Separately, in the landlord’s ASB management procedure, there is a dedicated section for vulnerability. Its staff should identify if there are circumstances that impact on an individual’s ability to report, or impacts the handling of the case. It also says that it will not categorise “everyday noise” as ASB. It further goes on to say nuisance will be assessed after 3 working days of it being logged. Further occurrences can then be logged on open cases, re-open cases within 6 months, or log a new case.

The landlord’s handing of the resident’s reports of noise nuisance from neighbours

  1. From the information received, the resident complained of the handling of the noise nuisance, which was received by the landlord on 27 June 2022. At that point she had gone through a prolonged period with noise disturbance. So it was aware of the issues she was facing prior to this complaint being logged.
  2. Therefore, it would have been reasonable for the landlord to have attempted to survey the property promptly, to identify the level of noise and cause. However, it did not perform a noise test until 25 August 2022. In its policy, it committed to assessing nuisance in 3 working days. Considering she had reported these concerns on 18 February 2022, 130 working days passed until this type of noise assessment. It had also mentioned to her on 24 February 2022 that it would conduct a noise test when a new staff member joined. In that period it did have conversations with the neighbours about the noise reports, which was reasonable. Although this was the case, the length of time waiting was unfair and her having to pursue action from it, meant she experienced distress and inconvenience.
  3. Furthermore, the Ombudsman has not received any evidence that a risk assessment was carried out at the outset. As a result, the landlord missed the opportunity to take a harm–based approach and signpost the resident to the appropriate support services at the earliest opportunity. The landlord’s policy says it would do so on high priority ASB cases. It also mentions that it would do so on relevant standard priority cases. Although it more recently felt the noise did not necessarily constitute ASB, the evidence shows it was handled under its ASB process. This Service would expect to see all cases involving ASB to be have been risk assessed and reviewed at different milestones or stages. Failure to have adopted this as a standard approach in its policy position is unreasonable. We also expect it to take a harm–based approach in all cases of ASB, not just high level. In this case, the resident’s vulnerabilities are not recorded on its systems. It informed this Service that in its visits, she did not need referrals for support at that time. This does not outweigh that it overlooked its own policy, by not having identified her vulnerabilities or paid due regard.
  4. As above, the landlord had explained to the resident that the level of noise identified in its noise test does not necessarily constitute ASB. The Ombudsman expects it had communicated clearly with her. If it considered that this was not ASB, it should have defined to her why and referred to its policies. Such as whether it was everyday noise, therefore not ASB. In contrast, its policy does also say if the noise was persistent, it could mean it was ASB. The resident’s reports were that it was persistent noise and it affected her regularly. The landlord had not said that due to the persistent nature of the noise, that it would constitute ASB. In any event, had it completed the noise test earlier, it would have been able to manage the resident’s expectations. Even if the landlord did not view this to be ASB, it was aware of the laminate flooring and the impact it had. It should have evaluated any steps to mitigate the impact it was having upon the resident.
  5. Previously, the landlord considered that there were rugs in the neighbours’ property to minimise the noise from the laminate flooring. The resident disputed that this was sufficient. The noise test of 25 August 2022 established that there was noise from people walking around and speaking at what it described as normal volume. The landlord is responsible for maintaining the floors. The Ombudsman’s spotlight report on noise was published in October 2022. This sets out that landlords should distinguish between noise transference due to the fabric of the building and noise caused intentionally. Once the cause of the noise has been confirmed the landlord should have clear and distinct processes for dealing with the noise. 
  6. This Service acknowledges the landlord had reiterated in its complaints procedure that the resident could contact the local authority noise team and keep records. It previously said to her it relied on the noise team professionally witnessing noise nuisance to take any further action. However, the landlord should have been clear with her in terms of the remit of the noise team and its own remit. The noise team would have tried to identify statutory nuisance under the Environmental Protection Act 1980. The noise identified was not a statutory nuisance, so it would not be appropriate to signpost her to the noise team. Therefore, it needed to have been clearer in its communication as to what this intervention was seeking to achieve.
  7. This Service had also received evidence that the landlord said the noise team would explore whether it was possible to setup sound recording devices. The resident was informed the noise team could not do so. In these circumstances, it should have considered whether it was appropriate to remind the resident to use noise applications or diary sheets. This would have managed expectations and assisted with evidence gathering. Prior to the landlord sending the resident its final response, she had sent videos evidencing noise from her neighbours. By saying to her, it would not have a favourable outcome in court, it was dismissive of her efforts to substantiate her allegations. It is evident it had not clearly set out an action plan with her. This meant she was unclear of what was expected of her and what she could expect as possible next steps. An action plan is a living document for the life of a case. It should have set out what was required of both parties, what evidence was needed and what interventions could be sought. Failing to do so, left the resident feeling unsupported and without any clear resolution in place.
  8. It was positive that the landlord had made suggestions to put things right. It had previously offered relocation to the resident. In its stage 1 complaint response, it provided a link to a house move website. This was appropriate as the resident could have reconsidered a potential move to a different property. It also reoffered the option of mediation between her and her neighbours, which was an appropriate remedy to offer.
  9. Despite this, the landlord overlooked that it did not respond in a timely manner to her reports in February 2022. It was not appropriate for her to wait for the landlord to make changes to its staff. In that period, it only signposted her to the noise team and had conversed with the neighbours. It did not take any other meaningful action until its complaint responses. When it decided that the case may not be ASB, it had failed to explore all available options. It also failed to understand the impact the fabric of the building was having upon noise transference and what works or improvements may have been suitable. Ultimately, it failed to demonstrate any learning or explain clearly how the issued could be resolved.
  10. Given the resident’s known vulnerabilities and the length of time waiting for a noise test with no clear resolution, the landlord did not act fairly and reasonably in all the circumstances of the case. It is not evident it completed a risk assessment therefore could not reflect this in its complaint responses. Therefore, the true impact of the noise nuisance upon the resident was not considered and it failed to take a harm centred approach. As such, this Service makes a finding of maladministration in the landlord’s handing of the resident’s reports of noise nuisance from neighbours. The orders consider the distress and inconvenience experienced, including the time and trouble expended by her. As well as assessing whether the neighbours’ flooring is suitable.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of noise nuisance from neighbours.

Orders

  1. Within 4 weeks of this report the landlord is to:
    1. Write to the resident to apologise for the failures detailed in this report.
    2. Pay the resident compensation of a total of £600, for the distress, inconvenience and the time and trouble experienced by the resident.
    3. If it has not done so, organise an inspection of the neighbours’ property to physically assess the suitability of the flooring.
      1. It should consider any suitable recommendations and explain in writing to the resident what actions may be taken if necessary and agree timescales.
    4. Contact the resident and record her current vulnerabilities appropriately in its systems and agree any reasonable adjustments.
  2. Within 10 weeks of the date of this report, the landlord is ordered to:
    1. If it has not already done so, to self-assess against the Ombudsman’s spotlight report on noise, published in October 2022.
    2. Review its ASB policy. It must ensure it reviews its position on assessment of risk for all ASB cases and advise this Service of any agreed changes to its approach.
  3. The landlord is to confirm compliance with the above orders and provide evidence it has done so.