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London Borough of Newham (202222853)

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REPORT

COMPLAINT 202222853

London Borough of Newham

10 December 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 concerns the landlord’s handling of the resident’s reports of noise nuisance from the upstairs’ flat.
  2. This Service has also considered the landlord’s handling of the related complaint.

Background

  1. The resident is a leaseholder of a 3-bedroom flat on the eleventh floor of a block. The lease started in October 2017.  The resident’s neighbour referred to in this report is a tenant of the landlord, and lives in a property situated above the resident’s property (upstairs’ flat).
  2. The landlord has no vulnerabilities recorded for the resident on its systems.
  3. Both the resident and her flat mate were in communication with the landlord in relation to the noise issues reported during the timeframe investigated. Therefore, for this report both will be referred to as ‘the resident’.
  4. On 13 April 2021 the resident first reported noise from the upstairs’ flat including loud banging, stomping, furniture being moved and DIY, during “all hours of the day and night”. She had tried to talk to the neighbour regarding this issue to no avail. The resident submitted around a dozen more noise reports over the next 5 months. During this timeframe, the landlord sent out 2 ‘noise advisory’ letters to the neighbour.
  5. On 20 September 2021 the resident raised a formal complaint with the landlord. This stated:
    1. she had been reporting drilling and hammering at all hours of the day and night from the upstairs’ flat for the past 6 months.
    2. originally the landlord told her it was ‘ordinary domestic noise’ (ODN) however after her further calls and reports to the landlord, it eventually acknowledged that hammering at 1 am was not ODN.
    3. in a letter from the landlord in June 2021, it said the neighbour would be asked to keep the noise down, however, the noise issue continued causing significant disruption to her and her housemate’s lives.
    4. she had continued to submit noise complaints and when calling for an update, was “constantly told” by the landlord that a manager would call back but no one had.
    5. the landlord finally assigned someone “about a month ago” who said they would speak to their neighbour, yet the hammering and drilling continued daily.
  6. The resident asked for an update on the landlord’s investigation and requested that it take action to stop the neighbour causing this daily noise.
  7. On 2 February 2022 the landlord provided a stage 1 response. Within its response, the landlord:
    1. apologised for the delay in responding to her complaint.
    2. stated that it was sorry to hear that she had experienced nuisance from her neighbour.
    3. it had listened to the recordings from the noise application (noise app).
    4. its antisocial behaviour (ASB) officer had arranged to call her on 3 February 2022 to discuss the recordings and case.
    5. stated that the resident’s complaint had not been upheld.
  8. In March 2023, the landlord contacted the resident requesting further details of her noise complaint following contact from this Service.
  9. On 20 March 2023, the resident provided the landlord with details of what had happened since her stage 1 complaint. She explained that the landlord had installed noise monitoring equipment, visited the neighbour, and sent warning letters. The resident said however this action had not resolved the noise issue. She was unhappy with its handling of the matter and said the ongoing noise had caused “countless hours” of lost sleep and was impacting her health.
  10. In its stage 2 response dated 26 May 2023, the landlord set out the action taken in 2022 including:
    1. A CPW was issued following a review of recordings obtained after it installed monitoring equipment on 3 Feb 2024.
    2. during an unannounced visit to the neighbour on 9 March 2022, it found the flooring was “legal” and no evidence of craft or workshop activity.
    3. on 20 April 2022 it conducted a noise test and concluded the noise was ODN.
    4. reviewed the resident’s noise recordings and concluded that the noise was ‘mainly domestic’ noise transference due to poor flooring. As it was not statutory nuisance, it could not take further action on this basis.
  11. The landlord stated her case was then transferred to its housing team on 30 May 2022. This team:
    1. inspected the neighbour’s property on multiple occasions.
    2. wrote to the neighbour on 13 September 2022 and then followed this up with a final warning letter on 10 November 2022.
    3. referred the case to its legal team in regards to seeking an injunction that would get the neighbour to remove the flooring.
  12. The landlord stated that as no fault had been found it was not upholding her review. However, it said it fully accepted that there had been an element of poor complaint handling for which it offered her £50.00 for her time and trouble caused. The landlord explained how the resident could take private action against the neighbour.

Post the landlord’s final response

  1. Over the next 12 months, the resident continued to submit noise reports and contacted the landlord on several occasion regarding the progress of the legal action being taken in order to get the neighbour to remove the flooring.
  2. In response to the Ombudsman’s further information request, on 25 November 2024 the landlord told us that due to a misunderstanding legal action had not been progressed, but it had now provided the legal team with all the relevant documents.
  3. The landlord confirmed to us that its legal team would send a pre-action protocol letter to the neighbour informing them that they will need to remove the flooring within 28 days. It told us if the neighbour did not comply, it would proceed with seeking legal action against the neighbour from 3 January 2025.

Assessment and findings

Scope of the investigation

  1. In her 20 March 2023 communication to the landlord, the resident said the noise issues experienced were affecting her and her flatmate’s health.
  2. It is not the role of the Ombudsman to investigate if there was a causal link between reports of health issues due to the actions of the landlord. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of the complaint. As this claim is more appropriately dealt with by a court or other procedure, this element will not be investigated. However, consideration has been given to the general distress and inconvenience that may have been caused to the resident.

Landlord’s handling of the resident’s reports of noise nuisance from the upstairs’ flat

  1. The landlord’s ASB policy sets out what it considers to be noise nuisance which includes loud music and DIY work at unsociable hours. It states in instances of persistent noise and nuisance, it will open a case and undertake an investigation into the alleged nuisance. Its policy says legal action is only taken in urgent cases and those involving serious or persistent breaches of tenancy.
  2. The resident’s reports in this case concerned noise heard from the upstairs’ flat including hammering, drilling, banging, knocking, thudding, and furniture being moved. She reported that the noise happened during the day and night. The resident’s reports began in April 2021 and continued over the next 2 years up to the date of landlord’s final response.
  3. By the date of the resident’s formal complaint on 20 September 2021, the resident had submitted more than a dozen noise reports to the landlord. In response to her initial report dated 13 April 2021, the landlord opened a noise case. This was appropriate as the resident said that the noise was persistent which under its policy the landlord is required to investigate. The landlord also sent the neighbour noise advisory letters 4 days later and again on 17 June 2021. This notified them that a nuisance had been reported and asked them to address the concern. This action was in accordance with its policy which says the landlord uses a broad range of non-legal tools to combat ASB and noise nuisance which includes noise advisory letters. The landlord acted appropriately here.
  4. However, after this there is no evidence of the landlord taking any further action until 2 September 2021 when it called the resident to discuss the noise reports. This lack of action is unreasonable as the resident had made regular monthly reports in the interim. The landlord then did not take any further action until 9 November 2021 when it carried out “door knocks” on the flats in the resident’s immediate vicinity. This indicates an unreasonable delay by the landlord in acting on the resident’s noise reports which had been ongoing throughout this period. This was a failing by the landlord.
  5. This Service recognises that by knocking on doors, the landlord may establish if the noise was affecting others nearby which would help the landlord gauge the level and type of noise, as such this action was appropriate. Its records show 1 other resident also reported hearing drilling. However, when the landlord knocked on the neighbour’s door, it is evident that they denied that drilling and knocking came from their flat. The neighbour reported that they themselves heard noises including hammering which they believed were coming from the flat above them.
  6. The landlord told the resident at this time that it considered the evidence inconclusive as it could not identify if the source of the noise was the neighbours’ flat. However, it asked her to complete diary sheets and to use its noise app to submit any further noise incidents. In the circumstances, the landlord’s approach here was reasonable as its policy makes clear that to take enforcement action, evidence of persistent noise nuisance needed to be shown.
  7. After receiving diary sheets and noise recordings from the resident, the landlord reviewed these and acknowledged sounds of banging and hammering. It then called the neighbour on 17 January 2022 to discuss these noises, however the neighbour stated again that the noise was not coming from their flat. As the landlord was still uncertain about the source of the noise and if it amounted to noise nuisance, it installed a noise meter in the resident’s flat. This was an appropriate step to take as it would establish the type and level of noises heard within the property. The landlord also carried out further door knocks on 3 February 2022 although none of the occupants reported noise nuisance on this occasion (4 flats). It is unclear from the available evidence if the landlord contacted the occupants in the flat above the neighbour to investigate the neighbour’s reports.
  8. However, on reviewing the recordings on 21 February 2022, the landlord heard “many thudding bangs…some knocking and some rhythmic sounds which may or may not be hammering. Its notes say as they were heard during the evening and nighttime, they could not be maintenance on the building. The landlord concluded at this time that the noise was a nuisance due to it being: “persistent, detrimental and possibly unreasonable”. It sent the neighbour a CPW 2 days later. This action was appropriate and in accordance with its policy which says a CPW may be sent to stop someone committing ASB (including noise) which spoils the community’s quality of life.
  9. The landlord’s internal notes around this time referred to the type of flooring within the flat. It was appropriate that in addition to assessing the noise complaints, the landlord also consider if there were any issues within the flat that could be exasperating noise transference. A few days later on 9 March 2022, it visited the neighbour’s upstairs’ flat to assess the flooring and also discuss the noises. This action was reasonable. However, during the visit the landlord deemed the flooring to be “legal” and its notes of the visit stated it did not find any evidence of DIY or machinery that could account for any “non-domestic noise. Following this, it told the resident it believed that the noise coming from the upstairs’ flat was ODN.
  10. This Service recognises that for the landlord to take enforcement action for noise nuisance it would need to show that the noise did not arise from everyday life. This is in accordance with information on the landlord’s website which states it will not take action when it concerns ODN including noise from washing machines, children crying or playing, footsteps, talking, toilet flushing, vacuuming and furniture being moved. However, the landlord’s conclusion at this time represented a change to what it previously told the resident about the persistency and timing of the noise indicating noise nuisance.
  11. The lack of consistency in its opinion here would have caused confusion to the resident and was unreasonable. However, the landlord subsequently agreed to carry out a noise comparison test to assess the level of transference between the 2 flats. This was reasonable as it demonstrated a willingness by the landlord to explore the noise issue from a different perspective.
  12. The test involved the landlord’s officer wrapping his knuckles on the floor and furniture to see if this could be heard in the resident’s flat. The landlord completed this test on 20 April 2022 concluding there was a noise transference issue. It is evident that the landlord at this time had suggested that the neighbour visit the resident’s flat to witness the test. Following this the neighbour agreed to keep the noise down going forward. However, the resident later told the landlord that she was uncomfortable with the neighbour being asked to her flat. On balance it was not appropriate for the landlord to suggest this without previously checking with the resident. This was a failing.
  13. Following further reports from the resident, the landlord visited the neighbour in June 2022 to undertake another inspection of the flooring. During this visit, it considered that the laminate flooring was making the noise transference between the 2 flats worse. It sent the neighbour a breach of tenancy letter on 12 September 2022 requesting that they remove the laminate flooring and replace this with a carpet within 28 days. This action was in accordance with its policy which includes tenancy warning letters as non-legal methods of resolving ASB and noise issues. However, the 3-month delay in sending this letter was unreasonable. The landlord did not explain to the resident why the flooring was deemed to be legal on 9 March 2022 when 3 months later in June 2022 it was considered a breach of the tenancy. This is indicative of poor communication by the landlord. The Ombudsman’s also considers the landlord missed opportunities to take steps to resolve the noise transference issue earlier.
  14. On inspecting the neighbour’s flat in mid-October 2022, the landlord found they had not complied with its request and so sent a 14-day final warning letter on 10 November 2022. This was appropriate. It is noted that around this time the resident sent video recordings from which the landlord acknowledged ‘machine noise’ could be heard.
  15. When the landlord inspected on 29 November 2022, the neighbour had still not complied with its request as the laminate flooring remained in situ. While it told the resident on 25 November 2022 that it would refer the matter to its legal team in the event the neighbour had not complied with its notice, the landlord did not follow up on this promise promptly. It took the landlord until 31 January 2023 after further reports and communication received from the resident, to refer the matter to its legal team. The delay by the landlord in taking this action, was unreasonable and therefore a failing.
  16. Furthermore, despite communications received from the resident including on 1 March 2023, at the date of the landlord’s final response on 26 May 2023, the matter was still with its legal team. This indicates a further unreasonable delay by the landlord in progressing promised action to reduce the noise transference.
  17. In summary, during the timeframe considered from April 2021 to May 2023, the landlord tried using various tools stated in its policy to investigate and address the resident’s noise complaints. It acted appropriately in this regard. However, the Ombudsman found that there were significant delays by the landlord both in responding to some of the resident’s reports and in taking action to resolve the noise issue. There were also inconsistencies in the landlord’s response in regard to whether acknowledged noises submitted by the resident amounted to a statutory nuisance or not. Neither did it clearly explain to the resident the threshold for statutory noise nuisance or the reasons it no longer viewed the noise as a nuisance after previously considering it was. This is evidence of it failing to manage the resident’s expectations while handling her reports.
  18. The landlord also changed its position about whether the laminate flooring in the neighbour’s flat was a breach of the tenancy or not. This meant there was an unreasonable delay by the landlord in sending out breach of tenancy warning letters to the neighbour in relation to the flooring. It then delayed in referring the case to its legal team to apply to the courts for an injunction when neighbour failed to comply with the final warning. Around 6 months later at the time of its final response in May 2023, the landlord told the resident her case was still with its legal team.
  19. Therefore, due to multiple and extended delays, and missed opportunities to progress action to resolve or minimise the noise issue, there was maladministration by the landlord when handling the resident’s noise reports. The landlord did not acknowledge failings identified in this investigation during its complaints process, or offer the resident appropriate redress for the distress, inconvenience, time, and trouble caused. This would have been appropriate in the circumstances.
  20. The landlord recently confirmed to this Service that due to a misunderstanding, action to apply for an injunction to get the neighbour to remove the laminate flooring had not been progressed since the date of its final response. While this Service is unable to investigate events following the date of its final response, we would expect the landlord to demonstrate it acted on promises made during its complaints process. Therefore, its ongoing failure to take action in regard to getting the laminate flooring replaced with carpet in the upstairs’ flat is a serious failing.
  21. In the circumstances, it is reasonable to order the landlord to pay the resident £650 in compensation for the distress, inconvenience, time, and trouble caused. This amount is consistent with this Service’s guidance on remedies where there has been a significant impact on the resident.

Complaint handling

  1. The resident raised her complaint on 20 September 2021. The landlord provided its stage 1 complaint response on 2 March 2022, which was 114 working days later. This was inappropriate because it was inconsistent with the landlord’s complaints policy (at the time of the complaint) which gave a 20-working day timescale.
  2. Although this timescale is not in line with the Ombudsman’s complaint handling code (the Code) which requires landlords to provide a stage 1 response within 10 working days, we are satisfied the landlord had since amended the timescale in its policy to comply with our timescale. As such no related order is included below.
  3. Having reviewed the landlord’s stage 1 response however, it is the Ombudsman’s opinion that this did not give sufficient details of its investigation into its handling of her reports which by that stage had been ongoing for nearly 6 months. The landlord also failed to acknowledge any failings in its handling of her reports.
  4. This Service acknowledges that it transpired that the resident had not received the landlord’s stage 1 response. This is unfortunate however the reason for the resident not receiving its stage 1 response at that time, is unclear from the available evidence. The landlord subsequently provided its stage 1 response to the resident after contact from this Service on 14 March 2023 notifying the landlord that she had not received a complaint response. The landlord’s response was appropriate in the circumstances.
  5. On receipt of the resident’s stage 2 complaint on 20 March 2023, the landlord acknowledged her complaint and told her it would provide a stage 2 response by 19 April 2023. However, the landlord did not provide its stage 2 complaint response until 26 May 2023, which was 46 working days later. This was inappropriate as it was outside the 20-working day timescale stated in its policy.
  6. It is acknowledged that on 5 May 2023, the landlord had written to the resident apologising for the delay in providing its response which it said was in part due to staff on leave. The landlord told her it was extending the deadline until 19 May 2023. Its failure to meet this second deadline given, is further evidence of the landlord’s poor complaint handling.
  7. In its stage 2 final response the landlord acknowledged and apologised for elements of poor complaint handling and offered the resident £50 in compensation for her time and trouble. Based on the number of failings identified, the Ombudsman considers that the redress offered by the landlord was insufficient to put these right. This is indicative of service failure by the landlord while handling the resident’s related complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of noise nuisance from the upstairs’ flat.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord while handling the related complaint.

Orders and Recommendations

Orders

  1. The Ombudsman orders the landlord within 4 weeks to:
    1. Provide a written apology to the resident for the failings identified in this investigation.
    2. Pay additional compensation of £700 (£750 including the £50 already offered) made up of:
      1. £650 for distress, inconvenience time and trouble for failings while handling reports of noise nuisance.
      2. £50 for distress, inconvenience time and trouble for failings while handling the related complaint.
  2. The Ombudsman orders the landlord with 8 weeks to:
    1. Provides a written update to the resident on its position regarding making an application to the court for an injunction.
    2. Contact the resident to agree how frequently it will contact her to update about the flooring issue.
    3. Provide this Service with evidence of compliance with the above orders.

Recommendations

  1. The Ombudsman recommends that the landlord investigate any further reports of noise nuisance received from the resident in accordance with its ASB policy.