Lambeth Council (202300789)

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REPORT

COMPLAINT 202300789

Lambeth Council

22 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 response to the resident’s reports of noise transference from her neighbour’s property.
The report also looks at the landlord’s handling of the resident’s complaints.

Background

The resident lives in a 2-bed ground floor flat in a property that is owned and managed by a local authority. The property was let under a secure tenancy agreement in 2022.
The landlord does not record any vulnerabilities for the resident but is aware that the resident’s son is autistic and noise sensitive.
In an email the resident sent to the landlord on 14 March 2023 she said that her son was on the autistic spectrum and had noise sensory issues, anxieties, and depression. She also said that her family was depressed by the noise nuisance they were experiencing. This Service is unable to look into and make a decision about the cause of, or liability for, any impact on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.
This Service asked the landlord to provide evidence related to this investigation to assist with the assessment and determination. However, the information it provided contained evidence of activity that occurred after its final stage 2 complaint response and is therefore beyond the scope of this investigation. It is, however, prudent for some elements of the additional evidence to be considered and referenced in the report; where it provides clarity on activity that is within the scope of this report. Where this occurs it is noted.

Relevant policies and procedures

The local authority’s secure tenancy agreements say that residents must ensure that they have adequate floor coverings to stop or reasonably minimise noise being transmitted to adjacent properties.
The landlord’s Anti-social behaviour (ASB) policy say that it will prevent and minimise the risk of ASB before it occurs and resolve instances of ASB as early as possible through timely and appropriate intervention. It also says that behaviours that do not constitute ASB include, but are not limited to, day-to-day living noise, which is not excessive, nor unreasonable, babies crying, children playing, and noise transference due to poor sound insulation. When it receives an ASB complaint that relates to one of the above, it will consider the experience of and the impact on the victim and the action that it takes will be proportionate.
The landlord operates a 2-stage complaints policy which says local resolution (stage 1) complaints should be acknowledged within 2 working days and responded to within 20 working days and final review (stage 2) complaints should be responded to within 25 working days.
Paragraph 4.1 of the Housing Ombudsman complaint handling code (the ‘Code’) says a complaint should be acknowledged and logged within 5 days of receipt. Paragraph 5.6 says landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate. Paragraphs 5.8 and 5.16 of the Code say that landlords must confirm the complaint stage, complaint definition, the decision on the complaint, any reasons for the decisions made, and details of how to escalate the complaint if the resident is not satisfied with the answer.

Summary of events

The resident sent an email to the landlord on 10 February 2023 to say that the noise from neighbours living above her was continuous and that the children were stomping, running back and forth and were “off the rails” and unsupervised. She said that she had not heard one adult voice. She explained the ages of the children and stated that her autistic son’s mental health was taking a beating and that she needed the matter to be resolved as soon as possible.
The resident again reported noise nuisance from her upstairs neighbour to the landlord on 13 February 2023. She said that the neighbours above had previously been spoken to but there had been no difference and that her concerns related to a lack of floor coverings. The landlord sent an internal email later the same day that confirmed that there had been no previous concerns raised about ASB issues. The landlord also opened a noise nuisance ASB case, issued an acknowledgement letter to the resident and issued a written warning letter to her neighbour.
The landlord sent an internal email on 15 February 2023 to forward a noise nuisance recording it had received from the resident on 12 February 2023.
The resident reported further noise transference from the upstairs neighbour to the landlord on 16 February 2023. She said that this was not the first time she had complained about the resident living above her and that there was a trail of complaints since the previous week. The resident that she had not received a letter that she had been told had been sent to her and her neighbour on 13 February 2023.
The landlord sent a stage 1 complaint acknowledgment to the resident on 16 February 2023. The landlord said it would provide a written response to her by 16 March 2023.
The landlord contacted the resident on 17 February 2023 to advise her of the actions in had taken to respond to her reports of noise transference and to confirm that it would visit the upstairs property to conduct a floor inspection.
The landlord sent a stage 1 complaint response to the resident on 22 February 2023. The landlord attached information about its ASB noise recording app, mediation services, and diary sheets to the email in which it said:
1. It was sorry to learn that the resident was still experiencing nuisance from her neighbours.
2. It had called the resident to acknowledge her complaint and sent an acknowledgement letter to her on 13 February 2023.
3. It had sent a warning letter to her neighbours on 13 February 2023 and the case manager would contact the resident to review the case, agree an action plan and conduct a risk assessment.
4. It would send an invite to the resident to start using the app and/or the resident could record noise incidents on the diary sheets it had supplied.
5. A certain level of noise was to be expected but it would work with the resident and her neighbours to reduce the noise to levels that were less of a nuisance.
The resident sent an email to the landlord on 22 February 2023 in response to its stage 1 complaint response. She said:
1. She had started writing down the times and incidents of the noise that was taking place above and that the noise during half term the previous week had been “off the scale.”
2. The floor sounded bare as if there was no carpet, and the landlord would have known that a family of 6 living in a 1-bed flat would cause problems.
3. There were soundproofing or structural issues with the property, and she could hear the floor boards shifting with each step from a small child walking above.
4. She had not heard back from the investigating officer and had not been invited to use the ASB app as had been promised.
5. She agreed that a certain level of noise was acceptable but disagreed with the thumping, running, wrestling, bouncing of balls and marching above.
The resident emailed the landlord on 23 February 2023 to say that she had not received the invite to use its ASB app which had been promised. She said that it was trying to drag out the situation and did not understand the anxiety the matter was causing and that there was a “whole racket taking place above”.
The landlord contacted the resident on 28 February 2023 and agreed to provide her with an invite to use its ASB App.
The resident escalated her complaint to the landlord on 28 February 2023 in which she requested a change of tenancy officer. She said:
1. Her case seemed to be falling on deaf ears.
2. She had explained to her tenancy officer on 23 February 2023 that the noise nuisance took place at 2 specific times of the day; mornings between 7am and 8:30am and from 4pm until 9pm.
3. One of the problems was that there were wooden floors above with no carpets which would be considered “illegal”. Furthermore, she had previously been told that it was mandatory to lay carpets in properties above the ground floor.
4. She had been promised that an invite to the noise app would be provided the same day which she had had to email about again the following day.
5. The household was on edge first thing in the morning and again in the evenings.
6. Her son was on the autistic spectrum and had sensory issues and anxiety.
7. She was willing to walk away from the property, when the landlord could find another property for her household to live in.
8. Noone else could live below the current tenants, as they were a family of 6 living in a 1-bedroom flat.
9. She was requesting a different tenancy officer to deal with the matter because she was tired of chasing and not getting anything of substance.
The landlord visited the upstairs property on 1 March 2023 to inspect the flooring and the use of carpets and rugs in the property.
The landlord sent an internal email on 2 March 2023 to summarise the actions it had taken to address the resident’s reports of noise transference. The landlord said that the matter was very fresh, and that the resident’s expectations were very high and beyond its protocol. It said that the resident’s family member had refused access to the property, until a gas engineer had provided access which had not been helpful.
The landlord provided an invite for the resident to use its ASB app on 3 March 2023.
The landlord emailed the resident on 6 March 2023. It confirmed the actions it had previously taken in response to her reports of noise . The email also said that the landlord had discussed the case with the resident on 3 March 2023 to discuss the use of the ASB app and the access issues and behaviour towards the investigating officer. The landlord agreed to phone the resident to help her with downloading and using the ASB app, contact the neighbour about the noise, write to the neighbour about their flooring and to update the resident as the case progressed.
The resident contacted the landlord on 8 March 2023 to report noise nuisance and requested to be moved.
The resident sent another email to the landlord on 14 March 2023 to report noise nuisance. She also said that she had not heard from the investigating officer since 23 February 2023 and that so far she had only received vague information from him. She said that she needed some clarification on where the case was heading and that she had not moved forward an inch since the first time she had reported the matter.
The resident sent an email to the landlord on 14 March 2023 which said that the investigating officer had inspected the neighbour’s property and had found wooden floors which was the main cause for the disturbance. She said that she was having to put up with being woken up 7 days a week from 7am and that someone must have known about and ignored the wooden flooring before she had been offered the property. She restated that her son was on the autistic spectrum and had noise sensory issues, anxieties, and depression and said that the family were all depressed. The resident asked what the next steps forward would be and for further clarity on the letter that had been sent to her neighbour about her flooring. The resident reported that on 2 March 2023 there had been 10 people in the property and that the children had been running and bouncing all day long. The resident confirmed that she had submitted recordings via the noise app but had not heard anything from the investigating officer. She said that she found the situation intolerable and would seek legal advice.
The landlord sent an email to the resident on 15 March 2023 to confirm that it had spoken to the resident the day before and had issued a letter to her neighbour about the noise issues she had reported. The landlord said that it had to show proportionality in how it managed the case, and that mediation would be the best way forward. The landlord confirmed that it had received her recording via the noise app and would review this and let her know the outcome.
The landlord emailed the resident on 16 March 2023 to say that it had given her neighbour 28 days to comply with the tenancy conditions it had referred to.
The landlord sent a stage 2 complaint response to the resident on 5 April 2023. The landlord said:
1. The complaint had been escalated on 1 March 2023 and was about the noise coming from an upstairs neighbour who lived in a 1-bed flat with 4 children.
2. The resident had stated that there had recently been 10 people in the flat and due to the property layout noise was heard coming from throughout her flat which did not appear to have adequate flooring insulation.
3. It had discussed the matters with the tenancy enforcement officer and a noise nuisance case had been opened on 13 February 2023.
4. It had provided an acknowledgement letter with details on mediation, its ASB app and diary sheets to the resident on the same day.
5. The tenancy officer had been asked to contact the resident’s neighbour to discuss the family’s overcrowding.
6. The investigating officer had contacted the resident to confirm the actions he had taken and confirmed that he had arranged a visit to inspect the neighbour’s flooring.
7. It had established that laminate flooring had been installed in the living room, hallway, and bedroom. It had given the neighbour a verbal warning about noise and had informed her to install underlay and carpet within 28 days.
8. Due to the neighbour’s financial situation she might not be able to lay carpets, but she would make reasonable adjustments to reduce the noise.
9. The investigating officer had sent a final warning to the neighbour requesting adequate flooring was laid by the end of April 2023, or the landlord might take further action.
10. The landlord must follow ASB policy and procedures to resolve the problems before escalating to enforcement action.
11. It would monitor the case and take actions it deemed were appropriate.
12. If the resident remained dissatisfied with its final complaint response she could contact this Service.
The landlord sent an email to the resident on 13 September 2023 to confirm that it would install a noise monitoring equipment in the property on 22 September 2023. The resident raised concerns that the neighbour would be notified in advance when the sound monitoring equipment would be installed in an email she sent to the landlord on 19 September 2023. The landlord replied to the resident later the same day to say that this was common practice in line with its ASB protocols on noise machine installation process and that if she was concerned about its alert to the neighbour which might defeat the purpose of the machine, it would be more than happy to postpone the date for the following week or two.
During the course of this investigation and in a conversation this Service held with the resident on 17 May 2024 she confirmed that she noise transference matters referred to in the complaint are ongoing.

Assessment and findings

The landlord’s response to the resident’s reports of noise transference from her neighbours.

It is evident that this situation has been distressing to the resident. It may help to firstly explain that the Ombudsman’s role is not to decide if the actions of the neighbour amounted to noise nuisance or ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
When responding to the resident’s reports of noise transference the landlord:
1. Reviewed its housing databases to see if any previous reports of ASB or noise transference had been received about the resident’s neighbour.
2. Acknowledged the resident’s reports of noise transference within 1 working day of her submitting the reports on 10 February 2023.
3. Issued a warning letter to the neighbour on 13 February 2023 about the reports of noise nuisance it had received within 1 working day of receipt of the reports.
4. Provided diary sheets to the resident to assist her with recording the incidents of noise so as to build evidence of their regularity and impact.
5. Provided information about mediation services to the resident in line with its policies and procedures.
6. Completed property inspections in both properties to assess the sound transference and conditions of the floor coverings.
7. Issued a further warning letter to the resident’s neighbour with a timescale to install floor coverings in the property in response to the impact it had on the resident.
8. Held conversations with the resident on 17 February 2023, 28 February 2023 and 14 March 2023, about the case and the investigations it was undertaking to address her concerns.
However, the landlord did not:
1. Provide access and an invite to its ASB app on 22 February 2023 as it had promised. The landlord subsequently provided access to the app 7 working days later and agreed to assist her with using it on 3 March 2023.
2. Complete a risk assessment in line with its policy and the advice it had provided to her in its stage 1 complaint response of 22 February 2023.
3. Communicate clearly whether it had categorised the noise transference matters as general living noise so as to have managed the resident’s expectations.
It is evident that on 13 February 2023 the landlord opened an ASB case to address matters it had identified related to household and everyday noise. This Service’s October 2022 Spotlight report on noise recommended landlords avoid escalating noise complaints into ASB cases and focus more on prevention. It is accepted that the landlord subsequently attempted to put in place practical actions to prevent noise transference, as previously outlined. However, it was inappropriate for the landlord to have pursued the matters using its ASB procedures.
It is acknowledged that the resident indicated to the landlord on 8 March 2023 that she would be willing to move into alternative accommodation. She also advised this Service on 6 April 2023 that she would like her neighbours to be moved into a different property in recognition of their overcrowding and the associated impact on her household. The Ombudsman can understand the resident’s reasons for considering rehousing as a solution to the matters. However we would not order the landlord to move a resident immediately as part of our investigation. This is because we do not have access to information regarding the availability of suitable vacant properties owned by the landlord at any one time and we do not have details of any other prospective tenants waiting to move who may have higher priority than the resident for rehousing, such as people facing homelessness or fleeing domestic violence. It is recommended that the landlord contact the resident and the neighbour to discuss their rehousing options.
Within the short space of time between receiving reports of noise transference and issuing its final complaint response the landlord had taken appropriate actions to engage with the resident and the neighbours about the noise transference reports. However, the landlord did not clearly explain the level of evidence that would be required for it to take further action during its communication with the resident, nor how it had classified the noise transference matters. This led to a misunderstanding about the type of information that the resident subsequently reported as ASB. The landlord did not consider using an acceptable behaviour agreement to tackle the behaviour of the neighbours which was a tool available to it. It also failed to provide access to its ASB app and complete a risk assessment in line with the commitments it had provided to the resident. Taking all matters into consideration this Service finds service failure in the landlord’s response to the resident’s reports of noise transference from her neighbours.

The landlord’s handling of the resident’s complaints

There was maladministration in the landlord’s handling of the resident’s complaints as the landlord:
1. Did not acknowledge the resident’s stage 1 or stage 2 complaints within 5 days in line with paragraph 4.1 of the Code.
2. Did not confirm the complaint definition, or its decision on the complaint in its stage 1 complaint response in line with paragraph 5.8 of the Code.
3. Issued its stage 1 complaint response in a format that more closely resembled a general email or case update, rather than a complaint response. It also failed to reference the relevant policy, law, and good practice when outlining the actions it had taken. Providing this information would have strengthened the response and reassured the resident that the landlord was acting in accordance with its policies and procedures.
4. Failed to explain how the resident could escalate the stage 1 complaint to stage 2 in keeping with paragraph 5.8 the Code.
5. Did not issue its response to the resident’s stage 2 complaint of 1 March 2023 until 5 April 2023 which was 1 working day later than its 25-day policy target timescale.
6. Did not confirm its decision on the stage 2 complaint in line paragraph 5.16 of the Code.
When a landlord is at fault it need to put things right by acknowledging its mistakes and apologising for them, explaining why things went wrong and what the landlord will do to prevent the same mistake happening again. The landlord did not consider its handling of the resident’s complaint when reviewing the housing services it had provided. This was a missed opportunity for the landlord to consider the impact of its complaint handling delays and recognise that they had caused inconvenience, time, and trouble to the resident. An award of compensation is therefore ordered below.
In February 2022, the Ombudsman issued a special report about the landlord, highlighting concerns with its complaint handling. The report recommended the landlord review its complaint handling procedures to reduce the risk of similar failures in the future. We continued to identify problems with the landlord’s performance, reaching findings of maladministration and severe maladministration following investigations into 20 separate complaints from residents.
In June 2023 we told the landlord of our intention to carry out an inspection to find out the reasons for its ongoing failures in complaint handling. In December 2023 we issued a report setting out our findings with further recommendations for service improvement.
In this investigation we have identified failures similar to those that led to our special report in 2022 and subsequent inspection in 2023. We therefore order the landlord to consider the findings highlighted in this investigation against the recommendations in our inspection report of December 2023.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s response to the resident’s reports of noise transference from her neighbour’s property.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s handling of the resident’s complaints.

Reasons

The landlord put in place some actions to address the resident’s reports of noise transference. However it did not keep to the commitments it had provided to the resident in issuing the noise app, completing a risk assessment, and agreeing an action plan with her.
The landlord failed to comply with its own complaints policy and the Code during its handling of the resident’s complaints. The landlord failed to investigate its own complaint handling.

Orders and recommendations

The landlord is ordered to apologise to the resident for its failings in responding to her reports of noise transference and for its complaint handling failures. This is to be provided in writing within 4 weeks of the date of this report.
In addition to any previous compensation issued and within 4 weeks of the date of this report the landlord is ordered to pay the resident a total of £300 in compensation made up as follows:
1. £100 for time, trouble, and inconvenience associated with its response to the resident’s reports of noise transference.
2. £200 for time and trouble caused to the resident related to the landlord’s complaint handling failures.

The compensation is to be paid direct to the resident and not offset against any money that the resident may owe the landlord.

Within 4 weeks of the date of this report the landlord is ordered to revisit both of the properties to reassess the noise transference, the insulation and underlay to the floor coverings. The landlord is further ordered to communicate the outcomes of the inspection and any associated repairs or solutions it intends to put in place to address the noise transference matters to the resident and to this Service within 2 weeks of date of the inspection.
The landlord is recommended to contact the resident to discuss the rehousing options available to her in response to her previous requests to move from the property.