Islington Council (202312930)

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REPORT

COMPLAINT 202312930

Islington Council

30 May 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:
1. Handling of the resident’s reports of noise from laminate flooring in the flat above.
2. Communication.
3. Complaint handling.

Background

The resident has been a secure tenant of the landlord since 2017. The property is a 1-bedroom first floor flat.
The resident emailed the landlord on 21 March 2023. She said the flat above had undergone refurbishment and laminate flooring had been laid. The new occupants had moved in, and the noise was unbearable. She asked the landlord, who was the freeholder of the property, to explain why the flat upstairs could lay laminate flooring whilst her tenancy agreement prohibited it.
The landlord responded on 24 March 2023. It said that it was standard procedure for all properties to have carpet laid and not laminate flooring. It explained that noise caused by children moving around, playing, crying etc was not regarded as antisocial behaviour (ASB)
There were then a number of emails between the parties from 11 April to 5 May 2023. The landlord explained that the property above the resident’s was a leasehold property. It advised the resident to record the noise on the noise app and submit the recordings so it could determine the level of disturbance she was experiencing.
The resident explained she was not complaining about the noise of children in the property. She was complaining about the installation of laminate flooring which had caused a significant increase in all noise from the property above. She believed the installation was against the lease and that the landlord should take action to have the flooring replaced. She also pointed out that the type of noise was hard to record and requested monitoring equipment. The landlord told her that she would have to use the noise app. If it considered the noise excessive it would ask the leaseholder to install carpets.
On 17 May 2023, the resident made a formal complaint. The complaint was about the installation of the laminate flooring above and the way in which the landlord had communicated with her about her concerns. She said:
1. She had contacted the landlord on 23 March 2023 about the property above her which had laminate flooring laid as part of its renovation. The landlord had told her that it was standard procedure for every property to have carpet. She had wanted to know who managed the property and why it had given permission to install laminate floors.
2. She had followed this email up on 11, 21 and 26 April 2023 but had got no response. She received an email from the landlord on 27 April 2023, it said it had “contacted them about the flooring and issued a warning about the noise.” She had requested information on the conditions for leaseholders in relation to laminate flooring but did not get a response.
3. She felt the landlord had dealt with her complaint in a dismissive manner, it had not shown a person-centred approach to her complaints about the noise. She had communicated her rational concerns and asked for reasonable information. The responses she received had been unsupportive and lacked detail.
4. She had not received answers to the specific requests she had made, including:
  1. What were the requirements for laminate flooring in leasehold properties?
  2. How had the landlord communicated with the leaseholder about her concerns.
  3. Had anyone spoken to the leaseholder.
In an email on 1 June 2023, the landlord informed the resident it wanted to conduct a noise test on 8 June 2023. The resident confirmed she would be available and asked how it conducted the noise test. On 7 June 2023, the landlord replied. It said it had not heard back from the occupant of the upstairs flat and would have to reschedule the noise test. It explained the test consisted of a colleague in the upstairs flat dropping objects, running, jumping and making normal household movements to assess the disturbance level. If it determined that the noise would be a problem, it would require the leaseholder to install carpet.
The landlord issued its stage 1 response on 9 June 2023. It summarised the resident’s complaint as dissatisfaction with its response to her reports of noise from the flat above. As well as the lack of support and communication it had provided. It listed the following points:
1. It had not been ignoring the resident. It was unable to share the information she requested about the lease or its contacts with the leaseholder due to the General Data Protection Regulations (GDPR).
2. In reference to her complaint on 27 March 2023 it said it was unable to take action for children playing or crying as it was not considered ASB. It had advised her to download the landlord’s noise app so that it could take action if the noise met the threshold of ASB. This would be used as supporting evidence if the noise was deemed unacceptable.
3. It had written to the leaseholder on 27 April 2023 and 5 May 2023 and requested that the occupant reduce the noise levels.
4. It understood the disturbance associated with laminate flooring. It intended to conduct a noise impact test on both properties.
5. It partially upheld the complaint for the issues with communication. Apologised for the delay in responding to the complaint and offered £25 compensation.
The resident escalated her complaint on 9 June 2023. She said:
1. She had never mentioned children crying and playing in her correspondence with the landlord. Her complaint was about noise from the new laminate flooring. For the 7 years she had lived in the property she had never had a problem with noise until the flooring was changed.
2. She was initially told that it was standard procedure for all flats to have carpet. She asked why the flat above had been permitted to install laminate flooring – had the leaseholder requested permission from the landlord?
3. She had spoken to the agent managing the property who had been in contact with the landlord and freeholder. She felt she should have been involved in these conversations.
4. She asked if she could have a noise recording device to monitor the noise?
5. The offer of £25 compensation was insufficient. The landlord had failed to show compassion or support her welfare.
6. In an email from the landlord on 1 June 2023 she had been told that a noise test would be undertaken. This had not happened. She asked when the noise test would be conducted.
7. She said she would be open to mediation with the leaseholder and requested that her case is passed to a senior member of staff to take forward.
On 14 June 2023, the landlord emailed the leaseholder. It advised it had received reports of noise disturbance from their property due to the installation of laminate flooring. Its policy did not allow wooden or laminate flooring in flats that had dwellings below them. It asked the leaseholder to confirm availability for a noise test. If the test demonstrated the noise was excessive it would require the flooring to be replaced with a suitable alternative such as carpet.
In an internal email on 15 June 2023 the landlord confirmed it had spoken to the leaseholder. They said there had been renovations, but they had not replaced the floors. The same floors had always been present in the property. The leaseholder advised they would talk to their agent who would address the noise issues. The landlord emailed the leaseholder the same day and asked for an update on 23 June 2023.
The resident submitted 6 snapshots of the noise recorded using the noise app between 4 July and 18 July 2023. She graded the intensity of the noises as 8-9 out of 10. The duration of noise she had experienced in this period was 8 hours 15 minutes.
The landlord issued a stage 2 response on 7 July 2023. It said:
1. It was aware the resident’s complaint was in relation to noise transference from flooring rather than the behaviour of the occupant of the upstairs flat. This type of noise fell within the remit of (ASB) management.
2. In its stage 1 response it had incorrectly told her that it had written to the leaseholder on 2 occasions when in fact it had written to the occupant.
3. The specific information she had requested regarding the lease of the upstairs property was restricted under (GDPR). However, she also sought clarification on its policy surrounding laminate flooring. It should have explained in its stage 1 response that the same conditions apply to both residents and leaseholders.
4. Its properties are usually carpeted, and permission is required before residents or leaseholders install laminate flooring. Where laminate flooring is installed without permission it needs to collect evidence to demonstrate that the disturbance being caused meets the threshold for ASB before acting.
5. It apologised this had not been explained sooner and for the lack of empathy in some of its responses.
6. In June 2023 it had written to the leaseholder about the noise disturbance and the need to conduct a noise test at the property. It had also informed the leaseholder of its policy surrounding laminate flooring and that it may have to be replaced if the noise being caused was excessive.
7. It was satisfied that it had responded appropriately to her reports of noise nuisance and that sufficient information was provided on the use of the noise app. It understood the type of noise she was experiencing was difficult to record but that she should still try.
8. The leaseholder had advised they were making changes to limit noise transmission. Once this was complete the landlord would conduct a noise test.
9. She had asked about the landlord installing noise recording equipment. The current waiting time for this equipment was 6 months. It found no substantive grounds for transferring her ASB casefile to a senior officer.
10. It apologised for the upset, uncertainty and inconvenience she had been caused. It offered £200 compensation for the delays in its communication with her and the delay in contacting the leaseholder. Including the £25 it had offered at stage 1, its full and final settlement for her complaint was £225.
The resident emailed the landlord on 10 July 2023. She asked what changes the leaseholder was taking that had been referred to in the stage 2 response.
The landlord emailed the leaseholder on 11 July 2023. It said it had not received an update. It asked that they share the findings from their investigation including what steps they would be taking to reduce the noise. It also advised of the conditions in the lease that prohibited nuisance or annoyance. After a second email on 14 August 2023 the leaseholder responded to the landlord. They said they had investigated but were unable to determine where the noise was coming from.
The landlord emailed the resident on 21 August 2023. It said it had attempted to contact the occupier, but it had no response. It had sent an appointment letter to attempt another home visit to complete a noise test on 24 August 2023. The landlord attended on 24 August 2023, but the occupier of the upstairs flat was not home. This meant it could not conduct the noise test.
On 13 September 2023, the resident made another stage 1 complaint to the landlord about the ongoing noise issues from the flat above hers. She was not happy with the timeliness of follow up after her previous complaints and the landlord not supporting her or communicating efficiently. She said:
1. She was told the deadline for carpet enforcement was 31 August 2023, but she had heard nothing since.
2. The noise was affecting her mental health and causing anxiety attacks. This had caused her to have to leave her home for periods. Despite the failures detailed in its complaint responses a senior member of staff had not contacted her.
3. She had expressed that she was open to mediation or face to face contact with the landlord, leaseholder or letting agent but this had not happened.
4. She requested the landlord provide answers to the following questions:
  1. When would she be informed about the timescales for action about the flooring in the above property.
  2. What action was being taken? Will the flooring be removed and what is it being replaced with?
  3. What checks will the landlord take to ensure any new flooring is suitable and will reduce the noise levels?
  4. What action is being taken at a senior level in the team to ensure that support and communication is better going forward?
The landlord issued its stage 1 response on 2 October 2023 and listed the following points:
1. The landlord had arranged an appointment with the resident and leaseholder that would take place on 23 October 2023 to conduct a noise test and have the floor in the upstairs property assessed.
2. The leaseholder had advised the landlord that they had taken actions to reduce the noise transference between the properties. These actions would be assessed at the appointment on 23 October 2023.
3. 2 of its officers would conduct the noise test. If further changes to the floor was required a second appointment could be arranged to have the noise levels reassessed after improvement works.
4. In recognition of the difficulties the resident had experienced with communication. It offered a monthly contact appointment to provide updates until the situation was resolved.
5. It asked if the resident remained open to mediation with the leaseholder.
6. It apologised for the delay in responding to her complaint and for the stress and inconvenience it had caused.
7. It awarded a compensation payment of £100 for the delay in arranging the noise test.
On 2 October 2023, the landlord wrote to the occupant of the upstairs flat. It said that it was the landlord’s policy not to allow laminate flooring in flats that had dwellings below. It requested to attend and conduct a noise test on 23 October 2023 at 11:00 to determine if further action was necessary. On 23 October the landlord visited. The occupant was not home. It was unable to conduct the noise test.
Dissatisfied with the response and the landlord’s actions the resident escalated her complaint on 23 October 2023. She said:
1. It had arranged a noise test for 11 am on 23 October 2023 but nobody had turned up. She contacted the landlord who told her someone would be coming at 13:00.
2. The officers told her they had written to the leaseholder, who had not responded. Because there was nobody to let them into the property above, they could not conduct the noise test. She asked what actions the landlord would be taking to resolve the matter considering it had been raised in March 2023.
3. The officers advised that because the property had been empty, they could not take any action as the noise was not happening. They were only responsible for tenancy management.
4. The visit on 23 October 2023 had made her feel even less supported than any previous correspondence she had on the matter.
5. The officers told her that the installation of laminate flooring was a grey issue and that leaseholders were required to have “adequate flooring” This was different to what she had been told previously.
6. She asked the landlord, as the freeholder of the upstairs flat, how it intended to support her as its tenant.
7. She felt there had been no senior oversight of her case. The landlord’s position that the flat being empty prevented it taking action was unacceptable.
On 30 October 2023, the landlord emailed the resident. It said it had contacted the letting agent and leaseholder about the flooring and asked when the occupant would be returning. Once it heard back it would provide an update and arrange an appointment for a noise test. It said that because the property was empty, she was not experiencing noise and that it could not conduct a noise test.
The landlord issued a stage 2 response on 20 November 2023. It provided the following conclusions:
1. It said that the officers attending the appointment on 23 October 2023 should have contacted her to inform her they were running late. It apologised for not meeting the standards it aspired to.
2. It had contacted the leaseholder and estate agent of the flat above to arrange access for the noise test. They had not granted access. It had emailed her on 30 October 2023 and 17 November 2023, where it advised the freeholder did not know when the occupant would return. The landlord was unable to progress the matter until they came back.
3. It had informed the leaseholder of the impact the noise from the laminate floor was having on her. It was unable to force entry, penalise the leaseholder or pursue the matter further while the property was empty.
4. It listed clause 8.2 and 8.3 of the resident’s tenancy agreement which detailed the prohibition on laying laminate flooring without first contacting the landlord. It advised that the installation of thick underlay before installing laminate flooring would mitigate the noise. It could therefore say that the leaseholder could request permission to install laminate flooring.
5. Due to GDPR it was unable to advise her what work the leaseholder had undertaken in their property.
6. It apologised for the inconvenience caused to the resident. It said that it had to give all parties the opportunity to address the issues raised. It could not compel the leaseholder to provide access to a property not occupied and where no noise was being generated.
7. When the property became occupied it would compel the leaseholder to provide access for an inspection. where it would advise if any actions were required to be completed within a reasonable time.

Assessment and findings

Scope of the investigation

The resident has reported that the noise affected her mental health. The Ombudsman does not dispute this, however, we are unable to make a determination about the causal link between the noise and any health impact. A determination relating to damages caused to her health is more appropriate for the courts. The resident has the option to seek legal advice if she wishes to pursue this. Nonetheless, the Ombudsman has considered the overall actions of the landlord and any distress and inconvenience that it may have caused as a result of any of its failures.
The Ombudsman has recently made several orders and recommendations in other investigations to this landlord in relation to complaint handling, noise and ASB. The Ombudsman has not made further orders around these aspects of service in this report but expects the landlord to take all relevant learning points from this case into future cases.

The landlord’s handling of the resident’s reports of noise from laminate flooring in the flat above.

The landlord deals with ‘noise nuisance – excessive noise’ under its ASB policy. When it receives a report of ASB it states it will conduct an interview with the victim.
On its website the landlord specifies that, “it can only take action on noise and neighbour nuisance complaints where officers can investigate, gather evidence and independently witness unreasonable noise levels. Everyday living noises such as moving furniture, doors opening and closing, people talking, children moving around etc is not anti-social behaviour and therefore not something that officers would investigate”.
Under the terms of the lease the leaseholder must allow the landlord access to examine the property’s condition between 8am and 6pm with 48 hours notice in writing. If the leaseholder refused access the matter must be referred to the landlord’s legal services team to decide if it was necessary to apply for an injunction.
The landlord’s response to the resident’s first report of noise from the upstairs property was unsympathetic to her concerns. It advised it could not take any action as the noise was not ASB and that it was standard practice for all properties to have carpet. It offered no other solutions or information in relation to the flooring or what actions it may take.
In October 2022, the Ombudsman published a spotlight report on noise complaints. One of the recommendations was that landlord’s ensure the tone of its communications did not come across as dismissive of the resident reporting the noise. The landlord failed to take account of this recommendation. Its initial response and those that followed frustrated the resident from the outset as she felt it had unreasonably dismissed her concerns.
On 27 April 2023, the landlord sent an ASB warning letter for noise nuisance to the occupant of the upstairs flat. This demonstrated that its position on the noise had changed. This was confirmed in the stage 1 response on 9 June 2023 and stage 2 response on 7 July 2023. However, it has not submitted any evidence to show that it conducted an interview with the resident, completed a risk assessment, put in place an action plan, communication plan or arranged mediation as required by its ASB policy. The landlord’s categorisation of the noise as ASB was contrary to its original position and the information on its website, which classed the noise as “everyday living noise.”
The noise was not antisocial in nature. The resident had lived in her property for 7 years and had never had reason to complain until the leaseholder installed laminate flooring. The resident herself accepted that the occupant had little control over the noise caused by the new floor. In addition, classifying the noise as ASB led to a request for her to gather evidence using the noise app when it was highly likely there would be no realistic prospect of action under ASB legislation. It was inappropriate for the landlord to classify the noise as ASB. In doing so it caused the resident distress, time, trouble and inconvenience pursuing the issue.
Our spotlight report also highlighted that ASB policies are an inadequate framework for managing noise complaints that are not ASB or statutory nuisance.
The lease of the upstairs flat requires the leaseholder to keep the floors covered with suitable material for reasonably minimising the transmission of noise to other dwellings within the building. A letter sent by the landlord to all leaseholders includes the following information: “If you lay laminate/wooden flooring, you must ensure that you use adequate underlay to prevent noise emissions to your neighbours below. If complaints are received about this issue, we will ask you to lay more suitable flooring.”
It was not until the 14 June 2023, 3 months after the original complaint that the landlord contacted the leaseholder about the issue. This was unreasonable and caused unnecessary delays in the process. The leaseholder said it would investigate the noise. The landlord requested they reported their findings by 23 June 2023. When the landlord chased a response on 11 July 2023 the leaseholder simply said it could not find the source of the noise. The landlord appeared to accept this explanation without requesting specific evidence of what the investigation had entailed and what the findings were. This showed a failure to thoroughly pursue the issue.
The landlord wrote to the occupant of the upstairs flat on 3 occasions to arrange a noise test to determine the noise transference between the properties. The occupant did not respond to any of the appointments. After the first missed appointment we would have expected it to write formally to the leaseholder to arrange access for the noise test. If they continued to refuse access the landlord had the option to apply for an injunction.
When the landlord attended the resident’s property on 23 August 2023, she explained the occupant of the flat above had begun to be absent for extended periods of time. Its response to this was that if nobody was in the flat then the issue was resolved. This was wrong. The noise would continue as soon as someone was back in the property. It had explained to the resident that two of its staff members conduct the noise test. This shows that the occupant did not need to be present for the test to take place, only access was required.
The landlord should have been proactive in its approach by requiring the leaseholder or agent to provide access for the noise test. It continually told the resident that it would require the leaseholder to change the flooring if the results of the noise test demonstrated an issue. This raised the resident’s hopes. However, the landlord’s actions to ensure the test was conducted were unsatisfactory and led to additional frustration for the resident. In its stage 1 response on 2 October 2023, it offered the resident £100 compensation for the delay in arranging the noise test. However, to date the noise test has not taken place.
A recommendation in our spotlight report was for landlords to inspect and enforce any existing clause relating to hard flooring. It was unacceptable that this did not happen. The lease and the letter sent to leaseholders is clear on the issues surrounding wooden floors. The landlord had a responsibility to investigate and the power to do so as the freeholder. However, its approach was unreasonably passive in nature, which has left the issue unresolved. Overall, it is the Ombudsman’s decision that there was maladministration in the landlord’s handling of the resident’s reports of noise from the laminate flooring.

The landlord’s communication

The Ombudsman expects landlords to have in place, apply and monitor their own communication key performance indicators, to ensure residents are responded to as required. This helps deliver clear, effective and timely communication, which is essential to an effective repairs and complaints handling process.
There is evidence throughout this case of the resident having to chase updates on the landlord’s actions. She emailed the landlord on 5 May 2023 with specific questions. She did not receive a response and had to make a complaint before someone got in touch with her. This was unreasonable.
The resident emailed the landlord on 10 July 2023 requesting an update on what changes the leaseholder was intending to make to the property. She followed this email up on 18 July and 24 July 2023. The landlord responded on 24 July 2023 and said it had made contact with the leaseholder and asked what alterations had been made to the property. The resident responded and requested further information on 24 July 2023, 1 August, 8 August and 14 August 2023 before the landlord responded on 21 August 2023. She told the landlord she was upset at its lack of response to her queries and explained the impact the issue was having on her mental health. The noise had caused her to move out of her home on occasion. There is no evidence the landlord responded to these concerns or obtained any information from the leaseholder, which was a failure.
The resident sent an escalation email to the landlord on 23 October 2023. She received no response to the email and had to contact the landlord again on 1, 9, 13 and 15 November 2023, before she received an acknowledgement email on 15 November 2023.
In the stage 1 response issued on 2 October 2023 the landlord awarded £100 compensation. Having not received it the resident emailed the landlord on 6 December 2023 and 10 January 2024. The landlord did not provide a response on when the compensation would be paid until 5 February 2024.
The resident experienced inconvenience and took extra time and trouble to contact the landlord on numerous occasions. The lack of response added to the frustration and distress she experienced. The landlord apologised for its communication failings and offered a total of £225 compensation across the 4 complaint responses. Its offer of compensation is reflective of the distress and inconvenience caused by its communication failures. We consider the offer to be reasonable redress. But for these steps the Ombudsman would have found maladministration in the landlord’s communication.

The landlord’s complaint handling

The landlord has a 2-stage complaint process. In its published service standard, it commits to respond within 10 working days of receiving a complaint at stage 1, and within 20 working days at stage 2.
The landlord’s stage 1 response issued on 9 June 2023 was contradictory about the nature of the noise. It said the noise was not ASB but asked the resident to download the noise app so it could take action if it met the threshold for ASB. This was confusing for the resident and an indication that the landlord was unsure how to deal with the complaint. The resident had continually asked if the landlord had contacted the leaseholder. In the response it incorrectly said it had contacted them twice, when it had not contacted them at all. However, it later recognised this error in its stage 2 response which was the right thing to do.
In a number of the complaint responses the landlord used GDPR as a reason for not being able to provide the resident with the information about the lease and the conditions relating to wooden flooring. Even though the generic clauses in a lease are not personal information covered by GDPR. It would have been possible to provide the resident with the general information surrounding the specific clause in the lease and the letter sent to leaseholders. Not providing this information was unreasonable and led to the resident feeling the landlord was not supporting her and intentionally withholding information. If a landlord cannot provide information due to GDPR it should clearly detail what information cannot be provided along with an explanation.
The landlord also said that it could not provide the resident with information on what work had been carried out to the leaseholder’s property. However, the landlord has not provided any evidence to this service that it ever received any information from the leaseholder on any work undertaken. As with the paragraph above, a landlord must ensure it is using the restrictions of GDPR appropriately.
The information communicated to the resident regarding the restrictions on laminate flooring in leasehold properties was incorrect. In the stage 2 response on 7 July 2023 the landlord advised that the leaseholder had to request permission before installing laminate flooring. There is nothing in the lease nor in the information provided to leaseholders by the landlord that requires this. In its stage 2 response on 20 November 2023, it listed the clauses in the resident’s tenancy agreement in relation to the prohibition on laminate flooring. This information was not relevant to the complaint as it did not apply to the leaseholder. It is disappointing that the landlord was providing incorrect information. We expect landlords to ensure the staff responding to complaints provide accurate information. The provision of misleading information was a failing on the part of the landlord.
The landlord has notified us that it had become aware this information was incorrect. It said the officers had been confused about the requirements for leasehold and tenanted properties. However, it has not communicated its findings to the resident or apologised for its errors. Additionally, it advised us that it was going to award the resident an additional £100 compensation for the errors, but again she has not received it. This was a further failure on the part of the landlord. Overall, it is the Ombudsman’s decision that the landlord’s complaint handling amounts to maladministration.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s:
1. Handling of the resident’s reports of noise from laminate flooring in the flat above.
2. Complaint handling.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord made an offer of redress prior to investigation which, in the Ombudsman’s opinion, satisfactorily resolves the failings in its communication.

Orders and recommendations

Orders

Within 4 weeks from the date of this report the landlord must:
1. provide a written apology to the resident for the failures identified in this report. The apology must be written by a senior member of staff at director level. The landlord must ensure the apology meets the criteria highlighted in the Ombudsman’s remedies guidance amended on 17 April 2024.
2. pay the resident a total of £600 compensation. This amount excludes any money already paid to the resident. The compensation should be paid directly to the resident and not offset against arrears. It is comprised of:
  1. £300 for the distress, inconvenience, time and trouble associated with the landlord’s handling of the resident’s complaints about noise from the laminate flooring in the flat above.
  2. £300 for the distress, inconvenience, time and trouble associated with the landlord’s complaint handling. This includes the additional £100 referred to in paragraph 51 above.
Within 6 weeks from the date of this report the landlord must arrange access through the leaseholder to the flat above and conduct a noise test to determine its next course of action.
Within 7 weeks from the date of this report the landlord must inform the resident and this service in writing of the outcome of the noise test and its intended course of action.