Incommunities Limited (202313922)
REPORT
COMPLAINT 202313922
Incommunities Limited
28 June 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
- The complaint is about the landlord’s handling of the resident’s reports of unreasonable levels of noise from the floorboards in the property above.
Background
- The resident lives in a one bedroom flat and is a tenant of the landlord. The tenancy began on 2 May 2022.
- On 14 July 2022 the resident initially reported incidents of anti social behaviour including excessive pacing, loud arguments, loud tv and use of a dryer in unsociable hours. The landlord took actions including speaking with the resident and neighbour and issued a warning letter to the neighbour on 22 August 2022.
- On 5 October the landlord met with the resident and established the resident was concerned about the noise but she was more concerned about squeaking floorboards from the neighbour’s property and the landlord’s records state it agreed to resecure the floorboards. On 17 October 2022 the landlord’s records noted that it had provided set up details for it’s noise app to the resident to give it some objective information. The landlord wrote to the resident on 7 November 2022 stating no further reports of noise had been received and if no reports were received within the following seven days it would close it’s open anti-social behaviour case. It also stated to the resident that squeaking floorboards did not meet the threshold for anti-social behaviour but was likely to be undertaking structural works in the block to stabilise the floorboards.
- The resident contacted the landlord the next day and informed it that it was agreed on 12 October 2022 with managers from housing and repairs that the floorboards would be repaired. They had not been repaired yet and the issue was causing her alarm, distress and affecting her health. On 16 November 2022 the landlord noted it had received a lengthier list of incidents from the resident and the majority of the incidents were squeaky floorboards.
- On 2 December 2022 the landlord sent a text to the resident advising her to use earplugs as it cannot do anything about standard domestic noise and if people were moving around in a normal way, it was not ASB, but she could discuss the issues with a mediator.
- On 6 December 2022 the resident’s MP forwarded the landlord an email sent to it by the resident. The resident’s said she was not happy with the response and the suggestion to wear earplugs was not appropriate as it was dangerous as she would not hear alarms and would have to wear them all day and night. The issue was not just the floorboards creaking, but the neighbour was refusing access for the floorboards to be sorted. The resident said she had a visit from the landlord’s surveyor in October 2022 who heard the creaking and said it was bad and was going to put in a new floor but because the neighbour would not allow access she had had to suffer.
- The landlord considered this email to be a complaint and raised a new complaint the following day.
- The landlord issued its stage one response on 23 January 2023. The landlord said it apologised for the delay in responding to the complaint and as it had exceeded it’s complaint policy timescales to respond to the complaint it offered her £50. It had visited the neighbour’s property and carried out an inspection to the floorboards. The floorboards were in a good state of repair and did not require any works. The neighbour had also had carpet laid which it recommended for those living in flats which fall above others as it helped to minimise any normal living noises. It appreciated the outcome would not resolve the creaking the resident could hear and as previously advised by the Housing Officer and Housing Manager, the creaking of the floorboards would be classed as domestic noise. Domestic noise was not classified as anti social behaviour and therefore it would not be actionable under its anti social behaviour policy. However, if the resident continued to experience the issue it was recommended that she used the noise app which would help evidence the levels and frequency of the noise she was experiencing. If the noise levels were significant and proved to be anti social behaviour it could then manage that under its anti social behaviour procedure.
- The resident’s MP informed the landlord on 23 January 2023 that the resident wished to escalate her complaint to stage two. The resident in her escalation request said that she had been hardly sleeping recently and every time there was noise from the flat above it woke her up. She had said that the noise was often not just the floorboards creaking but also banging. The noise was triggering her anxiety and was making her current health circumstances much worse than they were already. As a solution to the complaint she would appreciate if the floorboards above were repaired or if she could be relocated to an alternative property so that she can get away from the ongoing noise issues. The landlord acknowledged the escalation request on 24 January 2023 and stated it would provide the stage two response within 20 working days.
- The landlord issued its stage two response on 21 February 2023. The landlord stated a Housing Officer asked both parties to consider mediation. It’s Mediator did make contact, but felt mediation was not appropriate under the circumstances at the time. An inspection took place of the floorboards at the neighbours property which were found to be in a good state of repair and covered with a carpet which should minimise noise below. The neighbour felt the work would be intrusive in removing the carpets when there were no guarantees of any improvement with noise reduction. It was unable to uphold the complaint as it believed it had taken all the necessary actions available under its anti-social behaviour procedure and it would not be repairing the floorboards which appeared to be in a good state of repair. If there had been loose/springy boards, it would have recommended they be secured.
- It had noted the level of detail the resident had recorded the dates and time when she heard the noise, but it did not consider the recordings could be classed as noise nuisance. It wanted the resident to consider downloading the noise app, which when activated recorded noise and allowed it’s staff to review remotely on a regular basis. If the resident wished to consider moving home, she would need to register for a move on the housing register. It was unable to consider an internal transfer until the beginning of May 2023 when the resident would have been a tenant at her current address for a year.
Events after the landlord complaint process
- On 21 July 2023 the landlords records stated it visited the neighbour to discuss flooring issues and asked if they would be happy with-it sound proofing the floorboards. This was declined as the neighbour did not want the disruption.
- The landlord’s records show it offered a bungalow to the resident in February 2024 as it believed this would be a good option, as it was in a quiet location. This was declined by the resident.
Assessment and findings
The landlord’s handling of the resident’s reports of unreasonable levels of noise from the floorboards in the property above.
- In cases concerning noise transference, it is not the role of the Ombudsman to determine whether the levels of noise transference breached Building Regulations or any other standards, but rather, to assess how the landlord responded to reports of issues with noise transference and whether its responses were in accordance with its policies and procedures and appropriate in all the circumstances.
- Although the resident had made other reports of anti social behaviour from her neighbour, the evidence provided by the landlord showed the resident first reported her concerns about the level of noise coming from floorboards in the flat above her on 5 October 2022. The resident did not specifically appear to complain that the floorboards noise was caused by inappropriate behaviour by the neighbour in the flat above but rather that the level of noise was due to the condition of the flooring in the flat above as the floorboards were squeaking.
- Landlords are not generally required to take formal action for noise that is considered everyday household noise, even when the noise is exacerbated by sound transference, unless the nuisance is caused in some way by repair issues which the landlord is responsible for. If there are no apparent repair issues a landlord does not have an obligation to provide noise insulation, as this would be considered an improvement to the property, and beyond the terms of the tenancy agreement.
- As the resident’s complaints of noise nuisance continued, the landlord took steps to get the resident to use the noise app which was a reasonable step, in line with what the Ombudsman would expect, and in line with best practice.
- Mediation was also offered by the landlord which both parties initially accepted. However, it did not remedy the situation as the resident continued to make reports of noise. It was nevertheless a reasonable option in circumstances such as this for the landlord to offer mediation as the parties involved could come to a mutual agreement by themselves to try to resolve the issues.
- The landlord’s actions of speaking with the resident and neighbour about the issues, offering advice to the resident to use the ‘Noise App’, writing to the neighbour about the issues reported and offering mediation were appropriate and within timescales expected by the landlord to take reasonable action. They were appropriate because in doing so, the landlord demonstrated that it was taking matters seriously and taking steps to investigate and find a satisfactory resolution. A satisfactory resolution, however, was not reached.
- Although issuing of the ‘Noise App’ may have been helpful in capturing the level of the noise in order to ascertain whether the noise amounted to a statutory nuisance the resident was not complaining of noise nuisance in the context of anti social behaviour. Her complaint was that the squeaking from the floor boards were impacting on her.
- There is evidence to suggest that the landlord visited the neighbour’s and resident’s property to investigate the noise. However the landlord has not provided any evidence of what was investigated and what action if any was concluded to be needed.
- The landlords records noted on 5 October 2022 it would resecure the floorboards and provide a noise app to the resident to resolve the issues. The resident emailed the landlord on 8 November 2022 asking for an update and stated it was agreed on 12 October 2022 with a housing manager and repairs manager that the floorboards in the flat above were to be repaired, but had yet to be repaired. The resident made a further request for an update on 21 November 2022. There is no evidence the landlord responded to the resident for any of these requests and the landlord has not demonstrated it was appropriately keeping the resident informed of its actions regarding the resecuring of the floorboards.
- However the landlord did respond on 21 November 2022 to an MP enquiry on behalf of the resident and it informed the MP it had continued to chase the works for the floorboards with its internal repairs team who had had difficulty accessing the neighbours property and would continue to address that concern but the creaking may be related to the age of the property and may not be easily resolved. The landlord has not provided evidence of what steps it had taken and what the outcome of any work requests with its internal repairs team were. This has meant this Service is unable to determine the extent of the landlords actions.
- From the evidence provided the landlord’s records stated on 5 October 2022 it would secure the floorboards and on 21 November 2022 informed the MP it was chasing the works for the floorboards. At this point the evidence is clear that the landlord had committed to undertake works to the floorboards and at least resecure them.
- The landlord’s records showed that following the resident’s complaint in December 2022, a manager noted that the neighbour was very reluctant to have their carpets lifted and the floorboards resecured and it was their opinion that it would make little difference. The landlord however has not provided evidence of how it came to this conclusion especially given the earlier decision to resecure the floorboards.
- The landlord eventually concluded that there was no malice in the actions of the neighbour and would not be anti social behaviour.
- In the case closure letter to the resident on 9 January 2023 it informed her that it’s investment and regeneration team were uncertain that resecuring of the floorboards would make any significant difference. The landlord failed however to offer an explanation of why it had initially stated it would resecure the floorboards then stated it would not. This was a failure by the landlord to offer the resident an explanation of its decision and the change of stance without an explanation would have caused distress to the resident.
- In the landlord’s stage one response it stated it had inspected the floorboards and that they were in good condition and did not require any works. This seemed to contradict the information the resident said she was provided in October 2022 that the floorboards were bad and needed to be replaced and its own records that stated that as a minimum the floorboards needed resecuring.
- As part of this investigation the landlord was asked to provide documents, correspondence, and any other evidence relevant to the resident’s complaint. This Service has not been provided with a comprehensive record of inspections the landlord took to inspect the floorboards or of its attempts to complete works in the neighbours property.
- It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail as this helps this Service to understand the landlord’s actions and decision making at the time. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. It is therefore recommended that the landlord conduct a review of its record keeping processes, ensuring that there is a clear audit trail for complaints, which provides details of specifically when contact was made, what was said and what were the agreed next steps and expectations.
- In this case this Service is unable to determine that the landlord conducted inspections of the floorboards and the evaluations it made following any inspections. The landlord has also not evidenced why it informed the resident it would resecure the floorboards only to then inform her three months later it did not feel this would have any affect. There was also a discrepancy with the resident saying she was told in October 2022 the flooring was bad and the landlord in it’s complaint response in January 2023 stating the floor was in good condition.
- Deciding to commission an independent report may have been an appropriate way forward on the part of the landlord, as its specialist nature and independence from all parties would have meant that an impartial assessment could be undertaken and a way forward might be agreed.
- It is noted the landlord did make some attempts with the neighbour to allow some works to take place but these did not proceed due to the neighbour’s reluctance. However under the terms of a tenancy a resident must allow the landlord access to the property to conduct any repairs it is responsible for. The landlord has not evidenced what steps it attempted to gain access to inspect or complete any repairs.
- It is noted that following more reports of noise from the floorboards by the resident the landlord wrote to both parties on 9 February 2023. The landlord stated to the neighbour that it not considering work to the floorboards was unreasonable and stated to the resident that the neighbour felt her request for repairs would be inconvenient and be costly to them. It hoped both parties would develop a compromise. The emails issued would indicate the landlord had acknowledged that some repairs could still be attempted. However as previously mentioned, the absence of any inspection evidence has hampered this Services ability to establish what was assessed as being required.
- The landlords repairs policy states that the landlord is responsible for repairs needed to the structure of the property, which would include floorboards. The resident is responsible for the decoration of the property, including floor coverings. The landlord’s repairs policy confirms that emergency repairs should be attended to within 24 hours and routine repairs within 20 working days. From the evidence provided no repairs have been completed since the landlords records stated it would resecure the floorboards on 5 October 2022 and as of this report no works have been evidenced as being carried out meaning any required works would be outstanding much beyond the landlord repairs policy timescales.
- Overall the landlord has not provided records detailing the inspections and it’s subsequent conclusions or the attempts it made to have the works in the neighbour’s property completed. This Service relies on documentary evidence to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances of the case.
- It is evident that general noise transference from the floorboards, aggravated by the opposing waking hours of the neighbouring household, affected the resident intermittently over the period covered in this investigation. The evidence provided shows the landlord made commitments to the resident that it would secure the floorboards and it had failed to do so. It also later informed the resident and her MP that the floorboards were in good condition and no work was required.
- This contradiction in the landlords assessment of the floorboards along with the lack of evidence demonstrating the inspections it took and the subsequent determinations made means the landlord has not evidenced that it completed an appropriate investigation into the resident’s reports of noise from her neighbours floorboards and took any actions it may be required to take to remedy the situation. This is maladministration by the landlord for which it should pay the resident £300.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of unreasonable levels of noise from the floorboards in the property above.
Orders
- Within four weeks of the date of this report the landlord must:
- Provide a written apology for the failures identified in this report to the resident.
- Pay the resident £300 for the distress and inconvenience caused by the landlord’s handling of the resident’s reports of unreasonable levels of noise from the floorboards in the property above.
- Complete an assessment of the current condition of the floorboards to determine if any works are to be required and provide its conclusion in writing to the resident along with an action plan if required.
Recommendations
- The landlord considers its record keeping practices against the Ombudsman’s Spotlight on Knowledge and Information Management including a review of its record keeping processes ensuring that evidence of repair inspections and determinations are held and monitored on its systems appropriately.
- The landlord advises the resident of her options with regards to moving properties.