Hammersmith and Fulham Council (202206797)

REPORT

COMPLAINT 202206797

Hammersmith and Fulham Council

12 April 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 reports of noise nuisance in relation to the resident’s laminate flooring.

Background

2. The resident has a secure tenancy with the landlord. The property is a first-floor flat.
3. The landlord sent a letter to all residents in the block about several matters on 24 June 2022. The landlord’s letter referenced reports of antisocial behaviour regarding noise nuisance due to wooden flooring. The letter reminded residents that they were not permitted to have wooden flooring if their property was above ground level because that was a breach of their tenancy agreement. The landlord advised tenants with wooden flooring that they must replace it with carpet or non-sound transferable flooring. Tenancy audits were due to be carried out by the landlord and during these audits the landlord said it would check residents’ flooring.
4. On 1 July 2022 the resident replied to the landlord’s letter by email. The resident said she felt uncomfortable in her own home due to the new neighbours below who had loud parties. The resident stated the safer neighbourhood team had visited her as she had reported one incident with her neighbours to the police. She was advised by the team to contact the landlord about the antisocial behaviour she had experienced. The resident stated that the property was inadequately soundproofed. She advised that her carpet had been removed and replaced with laminate flooring on the instruction of health professionals due to her asthma. The resident said that she could not afford to replace her flooring but if the landlord covered the cost of replacing the laminate with a non-sound transferable flooring that was not carpet, she was happy to comply.
5. The resident advised that she had many long-term health conditions and was not comfortable about an unplanned tenancy audit. She asked the landlord to contact her daughter to arrange an appointment so her daughter could be present to translate. The resident said she was happy to cooperate and find a resolution. As the resident had not received a reply to the email she sent the landlord, she raised a formal complaint on 11 July 2022.
6. The landlord issued its stage 1 complaint response on 29 July 2022. It did not uphold the resident’s complaint. The landlord stated the resident had received an automated out of office email response as the staff member she sent the email to had been on leave. It said the resident had now received a reply and an antisocial behaviour case had been opened with a sound check appointment offered. The landlord was sorry to hear the resident had needed to call the environmental health team. It had been advised a warning letter was being sent to the resident’s neighbours. The landlord stated the next steps were for the housing manager to visit, conduct a sound check, discuss the complaint and review any diary sheets. A sound check was being carried out to check the level of sound proofing provided with the laminate flooring as the neighbours below had complained about the noise as the resident did not have carpet.
7. On 2 August 2022 the landlord visited the resident and her neighbour and carried out a sound check. Both parties declined mediation but agreed to be mindful of each other, so the landlord closed the antisocial behaviour case. It stated that if further issues arose it would reopen the case and investigate until a solution was found. On 5 September 2022 the landlord sent the resident a letter to formally advise the resident she needed to remove her laminate flooring as it was causing noise nuisance.
8. On 12 September 2022 the resident requested her complaint be escalated to stage 2 as she was unhappy with the inaccuracies in the stage 1 response. The resident also stated she was unhappy that after having laminate flooring down for more than 15 years she was being asked to remove it. This especially concerned the resident as healthcare professionals had told her that carpet was detrimental to her health. The resident said how the situation was being handled by the landlord was affecting her health.
9. The landlord provided its final response on 5 October 2022. It said it was sorry to hear how the issues had impacted upon the resident’s health and wellbeing. The landlord apologised for the inaccuracies in the stage 1 complaint. It said it found the correct procedure was followed and implemented in the management of the flooring complaint. The landlord advised there was no evidence the resident had requested permission to have laminate flooring or that sufficient medical evidence had been submitted at the appropriate time. As further noise complaints had been received, the landlord said it had decided the laminate flooring needed to be removed. The landlord advised it could not investigate comments about the suitability of the property for the resident as she had not raised this as part of her stage 1 complaint.
10. Although the resident has now moved to another property, she contacted this Service as she feels the landlord should be held accountable for its actions. The resident feels the landlord was unprofessional and has not acknowledged any wrongdoing. Therefore, the resident feels the complaint is unresolved. The resident states her health has deteriorated due to the landlord’s handling of the case. The outcomes the resident wants are for the landlord to acknowledge its incompetence and apologise for the emotional distress caused. The resident wants the landlord to implement new policies so other disabled residents did not suffer in a similar way. The resident also wants some compensation.

Assessment and findings

Scope of investigation

11. The resident referenced in her correspondence to the landlord and the Ombudsman that her health has been affected and she has experienced emotional distress. While the Ombudsman is sorry to hear this, it is beyond the expertise of this Service to determine a causal link between the landlord’s action (or lack thereof) and the impact on the resident’s health.
12. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts are able to rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, she should do so via this route.  This investigation will only consider whether the landlord acted in accordance with its policy and legal obligations, and fairly in the circumstance.
13. Moreover, paragraph 42(a) of the Scheme sets out that “the Ombudsman may not consider complaints which in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale“. As such, this Service is unable to consider the condition of the property’s windows as this did not get addressed during the complaints raised by the resident. This Service is also unable to consider further communications between the parties since the landlord’s final response. This investigation focuses on the events between 24 June 2022 when the resident received a letter from the landlord about reports of laminate flooring causing noise nuisance and 5 October 2022 when the landlord issued its final response.
14. Should the resident wish for the Ombudsman to consider a complaint about the property’s windows, she should ensure that a formal complaint about the issues has been raised with the landlord and the complaints process is exhausted. If the resident is unhappy with the landlord’s final response when these issues have exhausted its complaints process, the resident can bring her complaint to this Service to be investigated under a new complaint reference.
15. Finally, paragraph 41(d) of the Scheme sets out that “the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion concern matters in respect of Local Housing Authorities in England which do not relate to the provision or management of social housing, or the management of dwellings which they own and let on a long lease”. As such, this Service is unable to consider actions taken by other departments at the local council such as the housing allocations team or the environmental health team.

The landlord’s handling of reports of noise nuisance in relation to the resident’s laminate flooring.

16. A tenancy agreement that the resident signed on 19 November 2004 stated, “To keep the floors of the dwelling except for the kitchen and bathroom covered with suitable materials for minimising the transmission of noise to other dwellings, and not to lay any wooden flooring without the council’s permission”. This tenancy agreement also stated, “To obtain the council’s written permission before carrying out any works of alterations or addition to the premises, including the erection of satellite dishes or TV aerials”.
17. The landlord’s antisocial behaviour policy and procedure categorises noise nuisance due to parties, loud music and noise from wooden flooring as “grade three cases”. These cases are “behaviour or acts that are considered breaches of the conditions of the tenancy agreement for Housing”. This policy and procedure also state the landlord can send a case closing letter “when there are one-on-one complaints and mediation is refused”.
18. When the resident sent her email to the landlord on 1 July 2022, she received an automatic out of office email response. While this automated response did not contain the customer service team’s contact details as the landlord erroneously stated in its stage 1 response, it did contain the antisocial behaviour team’s contact details. Should the resident have needed to speak to somebody before her housing manager returned from leave, the resident had received the relevant contact information. The resident had been appropriately signposted by the landlord. An automatic out of office response was a fair way of managing the resident’s expectations that there would not be an immediate reply to her email.
19. The resident’s reports of antisocial behaviour and noise nuisance were responded to on 20 July 2022 when the staff member returned from leave. This was 13 working days after the resident had sent her email. This was reasonable considering the staff member had been on leave and an automatic out of office response was set containing alternative contact details. The landlord responded appropriately by opening an antisocial behaviour case, issuing diary sheets and arranging a visit.
20. On 1 August 2022 the landlord created an antisocial behaviour initial action plan which was in line with its antisocial behaviour policy and procedure. The action plan offered the resident and her neighbour mediation to try to resolve the issues that both parties had reported. The action plan referenced that if both parties refused mediation that the case would be closed. When both parties declined mediation and said they would be mindful of the noise they were producing, the case was closed by the landlord. This was an appropriate decision in line with the landlord’s antisocial behaviour policy and procedure.
21. A sound check was carried out by the landlord at the resident’s property on 2 August 2022. As a result of the sound check a repair was raised to address the noise identified in the bathroom. Despite identifying the resident had laminate flooring, the landlord did not enforce the tenancy obligation regarding wooden flooring not being permitted above ground level. This was a reasonable decision considering the resident’s concerns about her health and both parties having agreed to be considerate of each other.
22. There was no evidence that the landlord acted inappropriately regarding the resident’s health conditions. The landlord was not initially aware of the evidence the resident had submitted for her housing transfer application because that was dealt with by the housing allocations team. The evidence showed the landlord communicated with the resident’s community psychiatric nurse and was happy to communicate with the resident’s daughter.
23. When noise complaints continued, the landlord acted appropriately and reasonably in enforcing the tenancy agreement obligations regarding wooden flooring not being permitted above ground level. This could have been the landlord’s approach when it first became aware of the laminate flooring in the resident’s property. However, the landlord was reasonable and took a customer-focused approach in trying to find other solutions through mediation and allowing time to monitor the situation. It is only after the landlord felt it had exhausted other options that is requested the flooring be changed.
24. Neither party was able to evidence that the resident had or had not received permission, verbal or written, to fit laminate flooring. However, had permission been received, the landlord can revoke permission.
25. On 5 September 2022 the landlord wrote to the resident and asked her to change her laminate flooring to carpet by 3 October 2022. This only gave the resident 20 working days to get this change implemented which was a tight timescale. Subsequently, the landlord gave the resident an extension until 11 February 2023 which was a more reasonable timeframe.
26. The landlord’s complaint responses were provided appropriately in line with timescales in the landlord’s complaints policy and the Housing Ombudsman’s Complaints Handling Code. There were some inaccuracies in the stage 1 complaint response about the contact details contained in the automated out of office email response. The landlord had also stated the resident had received an apology in another email which had not been the case. However, the landlord acknowledged these errors in the stage 2 complaint response and apologised for them.
27. Considering the above, the Ombudsman has determined there was no maladministration in the landlord’s handling of reports of noise nuisance in relation to the resident’s laminate flooring. One of the outcomes the resident wanted from this investigation was for the landlord to implement new policies for disabled residents. As part of the landlord’s evidence, it submitted an additional support needs policy which it created in 2023 as part of its “Knowing our Resident’s Project”. This policy sets out the landlord’s approach to identifying, assessing and recording additional support needs.

Determination

28. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord in respect of its handling of reports of noise nuisance in relation to the resident’s laminate flooring.