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Birmingham City Council (202212344)

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REPORT

COMPLAINT 202212344

Birmingham City Council

25 January 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 response to the resident’s report of anti-social behaviour (ASB) in the form of noise from another property. 

Background and summary of events

  1. The resident is a leaseholder, and is represented by her daughter who lives in the property and who has reported the noise to the landlord. In the interest of clarity, they are both referred to in this report as the resident. The property is a 1 bedroom flat situated beneath a neighbouring property which is not owned or managed by the landlord, which is a local authority.
  2. The ASB procedure sets out the various actions the landlord will take in response to ASB reports, such as recording the ASB, giving advice if the conduct is not ASB, and offering noise monitoring equipment. The procedure states that allegations should be substantiated with evidence and then addressed through various available interventions including mediation, voluntary agreements between neighbours, or legal action for statutory nuisance. The landlord may decide to close an investigation if it cannot resolve the matter to the resident’s satisfaction. 
  1. The landlord has told the Ombudsman that complaints about carpets fall outside of its repairs remit as it is only responsible for external structure of the building, not internal floor coverings. The Ombudsman’s report Spotlight on Noise Complaints: Time to be heard acknowledges that landlords are not directly liable for the nuisance caused by other tenants or leaseholders unless it has participated or effectively authorised the noise. However, landlords should  adopt a holistic, broad, and pragmatic approach and explore simple solutions that could make a difference, such as asking occupants to lay rugs on laminate flooring, and to update its void standards to ensure that new tenants do not remove carpets when there have been reports of noise linked to the property.

Scope

  1. There have been historical reports by the resident and responses by the landlord about noise, however, those events are not within the scope of this report as they would have needed to be raised as a complaint to the landlord and then this Ombudsman at the time. This investigation is into the formal complaint of 2022.
  2. The landlord is the local authority. The local authority has also engaged with the resident’s reports as the Environmental Health Team (EHT). This investigation is only assessing the local authority’s actions in so far as it relates to its function as a landlord, in the provision and management of housing. The EHT actions are referenced only in so far as they are relevant to the landlord’s responses. Any concerns about the actions of EHT may be raised with the Local Government and Social Care Ombudsman.

Summary of events

  1. On 12 January 2022 the resident told the landlord that the noise which had historically been reported and resolved through mediation had returned, as there were new people living above her who had removed their carpet. The noise was described as banging cupboards and moving chairs in the early morning. The resident told the landlord that she was being kept awake and it was causing distress.
  2. On 24 January 2022 the landlord responded and explained that it could not prevent domestic noise. The resident disputed that the noise was domestic and explained that wooden flooring in the neighbour’s property was a breach of the tenancy agreement. The landlord offered to speak to the neighbour to offer mediation and ask them to put carpet down, but said it could not force them to take this action.
  3. In March 2022, the resident reported the noise levels to the EHT. Meanwhile, the landlord had advised the resident and the EHT that the neighbouring property which was the subject of the noise complaint was not owned by the Council. 
  4. According to the landlord’s investigation notes, on 8 March 2022 the landlord confirmed with the neighbour that they had fit carpets and door closures on the internal doors and the neighbour disputed the allegations of noise. They said they had to get up early to go to work and they had communicated with the resident in person and also requested that the resident did not knock on their door to complain again. The landlord informed the resident of this.
  5. The records indicate that between March and April 2022 the EHT and the landlord regularly received and assessed noise recordings from the resident through a noise app platform. The EHT assessed the noise and advised the resident that it was not unreasonable or excessive. It said that it would monitor the reports for a further period of time before closing the noise monitoring account. The landlord jointly and regularly assessed the reports and updated its record and the resident as part of its ASB investigation. On 30 March 2022, the landlord concluded that the recorded noise was not deliberate ASB.
  6. The ASB logs show that on 26 April 2022 the landlord noted that the resident had not contacted it again so the case would be considered for closure, and it emailed the resident accordingly. It invited her to make contact if she experienced ASB again. On 12 May 2022 the landlord sent the resident the closure email explaining that she had not provided evidence of ASB, but she could contact it if she had further proof.
  7. On 27 July 2022 the resident submitted a stage 1 complaint to the landlord. She reiterated that previous efforts with historic tenants to address noise coming into her flat from upstairs had been undone, as the new tenants had replaced the carpet with other flooring. She said the noise was not normal household noise, but the pulling of chairs, banging of cupboards, and the neighbour getting ready for work at 5am.
  8. In the landlord’s stage 1 response of 29 July 2022, it explained the details of its ASB investigation and closure, and noted that it had asked the resident to provide further evidence to support her claims as the recordings had not been classed as ASB. The landlord then explained how the resident could escalate the complaint.
  9. The resident submitted her stage 2 complaint on 2 August 2022, when she said that there had been banging on the ceiling since 4am that morning. She reiterated that, following mediation, the previous occupants had laid carpet and underlay, but now the landlord had let new tenants move in without putting this requirement into their tenancy.
  10. On 19 August 2022 the landlord issued its stage 2 response, as follows:
    1. It acknowledged the resident’s escalation and reiterated the actions it had taken under its ASB investigation from January to May 2022.
    2. On 24 January 2022, it had told the resident that it could not prevent domestic noise or force the neighbour to put down carpet, but it would ask.
    3. The resident had described the noise as loud music and banging, and the wooden flooring as a breach of the neighbour’s tenancy. The landlord reiterated that it would speak to the neighbour, but noted that the resident had not complained about music before.
    4. On 8 March 2022 the landlord had confirmed with the neighbour that they had fitted carpets and door closures on the internal doors. In March 2022 the landlord told the resident of this update and also that the neighbour denied making excessive noise, he had to get up early for work, and he did not want the resident to knock on his door to make further complaints.
    5. The landlord said it was satisfied that the neighbour had done all that was possible to avoid causing a nuisance, it would not be taking further action, and reminded the resident of the option to engage in mediation.
    6. The landlord said that the resident had been advised of how to download the noise app to record evidence, and the recordings that it had seen were not considered to be deliberate ASB (which the resident was told in April 2022).
    7. On 26 April 2022 the landlord told the resident that it was closing the ASB case, and invited her to provide any further evidence. The resident did not reply and the case was closed on 12 May 2022.
    8. The resident was signposted to the LGSCO.
  11. Later in August 2022, following the resident’s report of noise from the neighbour’s bathroom at night, EHT wrote to the neighbour and also advised the resident on submitting diary sheets while explaining that the noise she was reporting may not amount to a statutory noise nuisance.
  12. On 11 October 2022 the resident escalated her complaint to the Housing Ombudsman, explaining that she experienced anxiety attacks, she could not sleep, and her mood was low. She said that she wanted the landlord to remove the floor boards and compensate her for the pain and stress that she had endured, and so far it had not done anything but protect the perpetrator.

Assessment and findings

  1. The Ombudsman acknowledges the distress which the resident has explained this has caused. However, the property which is causing the noise is not a Council owned property. The landlord is therefore extremely limited in the extent to which it can compel the neighbour to do anything. It does not have a landlord and tenant relationship with the neighbour and it has no control over the terms of their occupancy agreement. The Ombudsman has assessed the landlord’s actions in respect of this and its relationship with the resident.
  2. According to the ASB procedure, when the landlord receives a report of ASB, it should record it, assess the evidence, and regularly communicate with the resident on the ASB investigation, including giving advice if the conduct is not ASB and when it will close the case. The evidence shows that the landlord followed these steps, which was appropriate. It concluded that the conduct was not deliberate, advised the resident of the actions it could take, and explained the significant limitations on it given that the neighbour was not its resident and it could not force them to take the actions it suggested.
  3. The landlord took reasonable steps to engage with the neighbour in so far as it was able, by making them aware of the reports and communicating their agreed actions with the resident. The landlord liaised with EHT, who separately engaged in the assessment of evidence and communication with the neighbour. The landlord was resolution focused, and informed the resident of the limitations it was under from the outset. There was no maladministration by the landlord.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s response to the resident’s report of ASB in the form of noise from another property. 

Reasons

  1. The landlord took reasonable steps in line with its ASB policy to engage with the resident’s reports about the noise. It communicated with the neighbour and resident about the actions that had been taken to address the noise, though the resident has reported that it has persisted. It had limited capacity to take enforcement action, as it is separate to EHT.

Orders and recommendations

  1. Within four weeks of the date of this report the landlord is recommended to:
    1. Consider carrying out a risk assessment of the resident if the resident’s reports persist and she continues to report distress.
    2. Circulate the Spotlight report on noise: Time to be Heard with its relevant staff, including its complaint staff. This is so that they are reminded of the approach and recommendations within it in respect of noise complaints.