Catalyst Housing Limited (202103564)

REPORT

COMPLAINT 202103564

Catalyst Housing Limited

7 November 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

The complaint is about the landlord’s:
1. Response to the resident’s concerns about noise transference from a neighbouring property.
2. Complaint handling.

Background and summary of events

Background

The resident has a secure tenancy agreement with the landlord that started in 1983. The property is a ground floor two-bedroom flat in a converted house.
The landlord’s antisocial behaviour (ASB) policy sets out examples of what it does not consider to be ASB. This includes noise from everyday living, such as babies crying, children playing, one-off parties, white goods or noise caused by pets.
Part E of the Building Regulations came into force in the UK in 2003. It prescribes acoustic insulation levels for new and converted residential buildings and sets decibel levels (dBA) for airborne and impact noise. These standards do not apply to any home built, or converted, before 2003 and there is case law that landlords are under no obligation to soundproof homes to a standard above the one that was in force at the time of its construction.
In October 2022 the Ombudsman issued a Spotlight Report on noise complaints. It made several recommendations to strengthen landlords’ ASB policies and
neighbourhood management strategies.
At the time of the events complained about the landlord had a two‑stage complaints procedure. It said it aimed to resolve all complaints within ten working days. If it was unable to do so, it would progress the matter to stage one where it would give residents timescales of when they would receive a response. If the resident remained unhappy, the landlord could escalate the matter to stage two and it aimed to respond within ten working days.
The complaints procedure said that the landlord would not escalate all complaints to stage two. Examples of situations where it would not do so included where a previous resolution offered was in line with its policy and procedures.
In July 2020 the Ombudsman issued a new Complaint Handling Code which set out good practice that allows landlords to respond to complaints effectively and fairly. The revised Housing Ombudsman Scheme allows the Ombudsman to issue a complaint handling failure order where a landlord is failing to comply with its membership obligations. Examples of when this may happen include failure to progress a complaint through the complaint procedure.

Summary of events

On 29 January 2021 the resident made a complaint to the landlord. She said she had previously complained and had send in many emails and telephoned but there had been no response. She said she wanted a solution to the noise problem.
In an internal email the same day, the ASB team noted that they had spoken to the resident who had made noise complaints about the neighbour in the flat above (the neighbour), who had three children. They noted the resident had said that she did not completely blame the neighbour, as she could not stop the noise from the children but said that the ceilings and floors above needed soundproofing. The ASB team noted further that the resident had said that the floorboards upstairs creaked very loudly, and the ceiling would crack when the children were walking up and down; she added that her quality of life had decreased drastically because of this.
On 3 February 2021 the landlord acknowledged a complaint from the resident and said the complaints team would get in touch by 16 February 2021.
On 9 February 2021 the landlord told the resident that it had asked its ASB and housing team to give an update on her current noise nuisance complaint and would contact her again by the end of the week with an offer of resolution.
On 12 February 2021, in response to the complaint, the landlord wrote to the resident. The main points were:
1. It apologised that the resident did not receive a response to the complaints she had made to members of its staff. It said that it was not its intention to make her feel ignored.
2. It said that, during lockdown, it was trying to mediate between households and ensure all parties understood the terms of their tenancy agreement as well as the need to show empathy to their neighbours.
3. It named the neighbourhood manager and said it understood he had made direct contact with her. It added he would work with its ASB Team and monitor the behaviour of the neighbour. It suggested that she keep diary sheets of the noise.
The landlord said, if there was anything else the resident wanted it to consider regarding her complaint, to get in touch.
The resident told this Service that the local authority had written to the landlord on 1 March 2021 explaining that, as the issue was soundproofing and not ASB, it was a matter for the landlord to resolve. It is not clear from the evidence if the resident made the landlord aware of that also.
On 19 March 2021 the resident contacted the landlord asking it to find a solution to the noise problem and gave her view that the problem was structural.
On 22 March 2021 a local councillor wrote to the landlord on behalf of the resident. They explained that there was inadequate soundproofing between the floors; consequently, the noise levels were “intolerable at times” and were affecting the resident’s health.
In an internal email dated 31 March 2021 the ASB officer noted that the ASB team would not normally get involved unless there had been noise breaches evidenced by the local authority.
In an internal email dated 28 April 2021 the landlord noted that, whilst it could take joint action against those who repeatedly made unreasonable noise that impacted on their neighbours’ enjoyment of their homes, there were some day-to-day noises that were heard due to people living in close proximity to one another, such as footsteps.
On 13 May 2021, following contact from the resident, the Ombudsman asked the landlord to progress her complaint in line with its complaints procedure or provide a copy of the final response to her complaint. (This Service had not had sight of the complaint response of 12 February 2021 at that time.)
On 18 May 2021 the landlord acknowledged the complaint and said that someone would contact the resident by 31 May 2021.
On 21 May 2021 the landlord wrote to the resident saying it had tried to contact her about the noise concerns she had raised and asked her to contact it.
The evidence suggests that on 25 May 2021 the resident confirmed she was happy someone was looking into her noise nuisance complaint. She confirmed her complaint was not about the noise itself, but rather the lack of sound proofing in the property; the noise was coming from the upstairs neighbour. The landlord noted it had advised the resident to contact the local authority’s environmental health team to report the noise.
On 30 June 2021 this Service sent a final reminder to the landlord to either issue a stage one response stating how the complaint could be escalated; or issue a final response explaining that the resident could refer their complaint to this Service.
On 19 August 2021 the Ombudsman issued a Complaint Handling Failure Order for failing to progress the complaint. On the same day the landlord told this Service it would issue a stage one response within five working days. The landlord did not do so.
On 20 April 2022 the Ombudsman decided to treat the case as if the landlord’s internal complaint procedure had been exhausted and progressed the case for investigation.
On 29 April 2022 the landlord wrote to the resident with a final response to her complaint. It gave the background to its complaint handling. The main points were:
1. The building regulations relating to resistance to the passage of sound came into force in 2003. It said that, since the building was sub-divided before that date, the current regulation requirements were not yet in place.
2. Installing additional sound insulation would set an uneconomical and unaffordable precedent across its homes.
3. It understood and empathised that there might be every day noise transferring from the property above; however, it was not required or able to carry out an investigation around potential acoustic soundproofing between homes of this build.
4. It offered a virtual meeting which it said would be an opportunity for the resident to let it know if she was still experiencing ongoing noise nuisance concerns.
The landlord signposted the resident to the Ombudsman.
The landlord subsequently told the Ombudsman that it had not inspected the property or the neighbouring property.
When the resident approached the Ombudsman, she said she was unhappy with the level of communication from the landlord. She said the level of noise transference meant that she could hear the activities of the family upstairs including conversations and when they opened and closed doors and cupboard drawers. She said she could not use her back bedroom because it was under the neighbour’s kitchen, and she could hear when they used appliances and washing machine which she described as “horrendous”.
The resident said that the landlord had told her they had sound proofed the floors at least ten years ago but it did not make any difference. She said the local authority had witnessed the noise in the presence of the landlord, which had denied the noise. To resolve matters, she would like the landlord to carry out sound proofing or insulation works

Assessment and findings

The landlord’s response to the resident’s concerns about noise transference from a neighbouring property

The role of the Ombudsman is not to assess whether the resident experienced an excessive amount of noise transference but to determine whether the landlord took reasonable steps to address the issue. It should be noted that that landlord had an obligation to ensure that the building met the building regulations that were relevant at the time the property was constructed/converted.
The resident was clear at the outset that her complaint was about noise transference, rather than ASB, as well as the outcome she was seeking – sound proofing.
Following further contact from the resident in March 2021, there were several internal emails about the case but no contact was made with the resident until the end of May 2021. The evidence suggests there was a breakdown in communication at that point with the resident believing the landlord was going to act; however, by that time it had decided that it would not do so unless there had been noise breaches evidenced by the local authority.
That decision was reasonable in relation to taking tenancy action against the neighbour. However, there was other action the landlord could have taken such as visiting the property above to establish the extent of the noise transference and considering measures to reduce it for example by installing thicker underlay under the carpet of the upstairs flat, soft door closures and/or an anti–vibration mat under the washing machine. The landlord’s failure to consider these options meant an opportunity was missed to try to resolve matters at an early stage. In relation to the reports of creaking floorboards, the landlord should have treated this as a disrepair report and have inspected them in line with its repair policy to see if any repairs were required. Orders have been made, below, for the landlord to take this action.
The landlord did not make its position clear on sound proofing until the final complaint response of 29 April 2022 – some fifteen months after the complaint from the resident in January 2021. Case law has established that there is no legal requirement for landlords to retrospectively fit improved sound installation. Therefore, even if there is a lack of insulation between the flats, there is no legal obligation for the landlord to improve this. It was therefore reasonable for the landlord to decline the resident’s request for sound proofing.
It would have been reasonable for the landlord to have given the resident this information when she first enquired about sound proofing to manage her expectations. It would also have been appropriate for the landlord to have checked if any existing sound proofing or insulation has fallen into a state of disrepair. A further order has been made for the landlord to do so.
The landlord’s response to the resident’s concerns about noise transference was not appropriate because there was poor and delayed communication. It should have taken action to explore the options available to it to try to reduce the noise transference experienced by her.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
It is evident that the resident experienced inconvenience, distress and frustration by the landlord’s failure to take action to try to reduce the noise transference and by its poor communication. Financial compensation of £315 is appropriate for the impact on the resident over a period of over some twenty-one months (up to the present time).

Complaint handling

The landlord’s initial handling of the resident’s complaint from January 2021 was appropriate. It acknowledged the complaint and sent a response within the timescales set out in its complaints procedure.
When this Service contacted the landlord in May 2021, the landlord spoke with the resident; however, it failed to progress the complaint as the Ombudsman had requested. Despite the Ombudsman issuing a Complaint Handling Failure Order to the landlord in August 2021, no further complaint response was sent to the resident until April 2022.
The landlord’s complaint handling was not appropriate because it failed to follow its formal complaint procedures. Even if it had decided not to progress to stage two in line with the procedure in place at the time (and there is no evidence it made such a decision), the landlord should have written to the resident to explain that. This meant there was a delay of some eleven months in issuing the final complaint response to the resident. That was a significant service failure.
Financial compensation of £250 is appropriate here for the time and trouble taken by the resident in pursuing her complaint and the fact she had to involve a councillor and this Service to try to resolve matters.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its:
1. Response to the resident’s concerns about noise transference from a neighbouring property.
2. Complaint handling.

Reasons

While the landlord’s decision not to install sound proofing was reasonable, the landlord should have explored the options available to it to try to reduce the noise transference experienced by the resident. There was also poor and delayed communication.
Despite the involvement of this Service, there was a significant delay in issuing a stage two complaint response. This resulted in a Complaint Handling Failure Order.

Orders

The landlord should take the following action within four weeks of the date of this report and provide evidence of compliance with these order to the Ombudsman:
1. A senior manager at the landlord to apologise to the resident in writing for the failings identified by this report.
2. Pay the resident the sum of £565 made up of:
  1. £315 for the impact of its failure to act in relation to the noise transference.
  2. £250 for the impact of the complaint handling failures.
3. Visit the flat above the property to make itself aware of the extent of the noise experienced by the resident.
4. Explore if there are practical measures it can take to reduce the noise transference from the flat above including by installing thicker underlay under the carpet of the upstairs flat, soft door closures and/or an anti-vibration mat under the washing machine.
5. Investigate the report of creaking floorboards in line with its repair policy.
6. Check if any existing sound proofing or insulation has fallen into a state of disrepair and take action to remedy if appropriate.

Recommendation

It is recommended that the landlord considers the Ombudsman’s recent Spotlight report on noise complaints.