Housing 21 (202228553)

REPORT

COMPLAINT 202228553

Housing 21

31 October 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 reports of noise disturbance.

Background

2. The resident is an assured tenant of the landlord, which is a housing association. The tenancy commenced in December 2020. The property is a flat built in a complex for older people who have care needs or may have care needs in the future.
3. Between 5 December 2022 and 12 December 2022, the resident emailed the landlord about a sustained period of noise disturbances from her neighbour’s property. The landlord categorised the resident’s email as an informal complaint and following a meeting with the resident, responded on 20 December 2022. It outlined actions it would take however, the noise disturbance continued. The resident contacted the Ombudsman to investigate her complaint on 16 February 2023. This Service advised the resident she was required to complete the landlord’s informal complaints procedure and asked the landlord to log a formal complaint.
4. After an extension of 2 weeks was agreed to provide its stage 1 response, the landlord provided its response on 20 March 2023. The landlord said it would continue to monitor and work to minimise the potential for noise to be caused however, it recognised it was unable to resolve all noise due to the neighbour’s care needs. It offered £50 compensation for advising the resident she could escalate her complaint to stage 2 before it had provided its stage 1 response.
5. It provided its stage 2 response on 28 April 2023. It explained it had been difficult to identify the source of some of the noise following its investigations, due to it being intermittent. The landlord had:
   1. Several meetings with its internal and the external carers which entered the building, to remind them to be quieter between 9pm and 9am.
   2. Conducted tests to investigate noise transference and inspected soundproofing which was installed to ensure it had not been compromised. It would however arrange for a contractor to inspect the soundproofing and wall.
   3. Offered the resident a property transfer to a new flat in the building which was refused.
   4. Asked for permission to install noise monitoring equipment in the resident’s property, to assist with tracing the source of the noise which had also been refused.
   5. It explained it had therefore exhausted all avenues and reiterated it would offer a move to the next available property or install noise recording equipment the resident changed her position.
   6. The resident explained to this Service, she was dissatisfied with the landlord’s actions to resolve noise which had frequently disturbed her sleep and she wanted it to stop.

Scope of investigation

6. Paragraph 42.b. and 42.c. of the Scheme states, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion:
   2. Were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.
   3. Were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 12 months of the matters arising.
7. The resident made a complaint to her landlord previously and received a final response on 25 June 2021. She referred the complaint to this Service in December 2022 however, it was determined to be outside of this Service’s jurisdiction under paragraph 42.b. of the Scheme.
8. The resident’s second complaint was made to the landlord on 16 February 2023. In line with paragraph 42.c. of the Scheme, this investigation will only consider issues reported since 16 February 2022 and until the landlord provided its stage 2 response dated 28 April 2023.
9. Any reference to events outside of these timeframes are provided for context only and will not form part of the assessment.

Assessment and findings

10. When investigating a complaint, the Ombudsman considers its dispute resolution principles. This is good practice guidance developed from the Ombudsman’s experience of resolving disputes for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
    1. be fair – treat people fairly and follow fair processes
    2. put things right
    3. learn from outcomes.
11. During its investigation, the Ombudsman has considered how the landlord has responded to the resident’s reports of noise. It is not the Ombudsman’s role to decide if the actions reported amounted to anti-social behaviour (ASB) or statutory noise nuisance, but whether the landlord responded to and managed the resident’s reports appropriately and reasonably.
12. The landlord’s customer handbook explained it would normally consider loud and frequent noise outside of the usual hours of 11:00pm to 7:00am as anti-social, although it installed posters around the building reminding all persons to be quiet during 9:00pm to 9:00am. The resident’s noise reports occurred during quiet hours which she said affected her sleep. She reported being woken up in the evenings and early mornings. The noise reported was described as banging on walls, talking and activity while landlord staff and carers were in the hallways, or noise associated with carers attending to her neighbour when using a hoist to get them in and out of bed. The noise occurred intermittently.
13. The landlord said it could not determine the source of some of the noises reported by the resident due to their intermittent nature, particularly the banging. It recognised some of the noise may have been caused using a hoist in her neighbour’s property however, it had been noted that some of the noise reported had occurred when carers were not present.
14. It asked the resident if it could install sound recording equipment in her property to assist in its own monitoring and investigations. It also proposed she contacted the local environmental health team to conduct their own independent investigation. These were reasonable suggestions from the landlord, as noise recording equipment would enable it to build evidence to help with its investigation and trace the source of some of the noise. It would also inform what further actions it could take, in line with its policy requirement to investigate and monitor. This Service appreciates the resident did not agree to these proposals due to privacy concerns however, this unfortunately made it difficult for the landlord to follow its policy to complete a thorough investigation.
15. Despite not having use of noise recording equipment, the landlord did take several steps to investigate and manage the noise. It agreed with the resident’s neighbour to move his evening care to an earlier time to minimise noise disturbance to the resident.
16. Equally, it was reasonable for the landlord to acknowledge that while carers were to ensure they attended at scheduled times to minimise the noise during quieter hours, there would be occasions where the visits would have to take place outside of these times due to the care provided and if internal carers were required elsewhere for urgent matters.
17. The landlord asked staff to keep a log of any noises heard during the night, to help it trace the intermittent noise reported and properly diagnose the issue. Its records state the night staff checked periodically and could not detect any noise. While this Service is aware the resident disagreed and believed the carers had lied in their report logs, we do not have evidence to support this view especially where there is no noise recording evidence.
18. This was reasonable and showed the landlord wanted to reduce the potential causes of noise, recognising the distress caused to the resident.
19. This Service recognises the resident reported a banging sound, suspected to be the neighbour’s hoist, which woke her up. The landlord’s evidence showed it conducted noise transference tests to understand what noises may be heard during the night when the carers were present. However, it is appreciated the purpose of the building meant that neighbours might have care needs, where some noise was to be expected. There was a need for the landlord to ensure the neighbour’s care needs were met under the Equality Act. It was therefore reasonable the landlord tried to manage the noise caused by speaking with internal and external care teams to minimise the noise. Although, it acknowledged it would not be possible to fully resolve the noise due to the position of the hoist on the party wall to meet the neighbour’s care needs.
20. The landlord responded to the resident’s reports of noise to discuss them in more detail. It took various steps through staff meetings, meetings with its own internal carer teams and instructions to external care teams about the noise between February 2023 and December 2023. The evidence showed it was regularly discussed that noise needed to be kept to a minimum to avoid disturbing residents while attending during quiet hours. While this Service appreciates the resident reported the noise continued, the evidence suggests the landlord took steps regularly to remind all parties to be quieter. The landlord also met with the neighbour to discuss the resident’s reports of noise which was in line with its ASB policy. While this was not satisfactory for the resident, in the circumstances the landlord acted reasonably. Where it had not been able to install noise recording equipment, it was limited in its investigation and the number of additional actions it could take.
21. The landlord had previously installed soundproofing to 2 walls in the resident’s flat to minimise the noise transference from the neighbour’s hoist, where it had to be fitted to the party wall. The resident and her daughter reported this resolved the noise transference for around 3 to 6 months before it continued. They believed the soundproofing had been compromised on her neighbour’s side, which caused the transference to continue. In resolution of the complaint, the landlord agreed to use a contractor to inspect the walls where soundproofing was installed. This Service is aware recommendations were made following the inspection, which was after the informal complaint procedure was completed. However, there is no evidence to understand whether the landlord followed the recommendations, or it explained to the resident why it would not do so to manage her expectations. This Service has therefore made a recommendation for the landlord to provide an explanation to the resident about what actions it will take.
22. The landlord offered to facilitate a move to an alternative property in the building on 8 December 2022, as it had been unable to resolve the noise the resident reported. While the resident refused to consider moving and believed the landlord should instead resolve all disturbances, the landlord believed it had done all it could to investigate and attempt to resolve the noise disturbances. The resident did not want environmental health to conduct its own investigation. The landlord had also not received cooperation to install sound recording equipment. It was a reasonable decision for the landlord to offer a move as a resolution and maintain its offer in its stage 2 response, should the resident change her mind.
23. While this Service acknowledges that the resident has reported she continued to be disturbed by noise, this Service has considered the actions the landlord had taken to investigate, monitor and address the noise disturbances which were reasonable. It put signs around the building to remind about noise during quieter hours, had meetings with internal and external staff, asked its staff to record noise disturbances, conducted tests on noise transference of equipment and asked the resident’s neighbour to move his evening care call to an earlier time. The landlord’s investigation was somewhat limited as it had been unable to install noise recording equipment to gather evidence and allow it to trace the source of noise and monitor. In the Ombudsman’s opinion, the landlord’s handling of the resident’s reports of noise disturbance was no maladministration.

Determination

24. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s reports of noise disturbance.

Recommendations

25. The landlord should provide an explanation to the resident of its planned steps in respect of the soundproofing inspection recommendations to manage her expectations.