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Peabody Trust (202417964)

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REPORT

COMPLAINT 202417964

Peabody Trust

29 November 2024


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s handling of:
    1. The resident’s reports of noise and request for soundproofing.
    2. The resident’s concerns about the erection and position of a fence.

Background

  1. The resident is an assured tenant of the landlord. The property is a ground floor flat with another flat located above it. The rear garden of the property is a shared garden that had a fence installed around 2020 which divided the garden into separate areas for each flat to use.
  2. The resident made a complaint to the landlord on 13 June 2022. She stated she was complaining about antisocial behaviour (ASB) and the separation of the back garden. To resolve the complaint, she wanted the back garden divided equally between her and the neighbour, with a fire exit in place and soundproofing above the bedroom.
  3. The landlord issued a stage 1 response on 15 July 2022. It refused the resident’s request of soundproofing but asked her to keep a diary of noise. It said it had asked its fire safety team to confirm if it was a safety hazard in the event of a fire or other emergency for her not to have a separate exit in the garden. Once it had received a response, it would respond further to her.
  4. The resident made a new complaint on 26 October 2022. She said the landlord was meant to have been overseeing the dividing of her garden. She said the complaint had not been addressed at all, its officer had not communicated with her at any point that year and requested that it contact her regarding the fence being pulled back to allow her an equal share of the garden.
  5. The landlord issued another stage 1 response on 3 November 2022. It explained why the fence was installed and that this was not disputed at the time by the resident. It provided a response to the space she had been allocated and that the garden was not deemed to be a fire exit so it would not be making any alterations to the fence.
  6. The resident requested for the escalation of her complaint on 15 November 2022 and the landlord issued its stage 2 response on 5 January 2023. It stated that a new case had been logged in error and a further stage 1 response issued rather than contacting her to establish if she wished to escalate her complaint to stage 2. It repeated the findings regarding the garden from its November 2022 response. It offered her £300 in compensation consisting of £100 for complaint handling and £200 for time, trouble, and inconvenience chasing the matter.
  7. On 12 June 2023, the landlord’s records noted the resident had called regarding her previous complaint about the division of her rear garden and soundproofing in the bedroom. The landlord raised a new complaint.
  8. The landlord issued another stage 1 response on 23 June 2023 and repeated the findings it made in the stage 1 response issued in November 2022 regarding the fence. For her request for sound proofing due to excessive noise from her neighbour, it asked her to provide it with 10 consecutive days of recordings to use its noise app or her mobile phone to record incidents of noise nuisance.
  9. The Ombudsman contacted the landlord in April 2024 after making a determination on a separate complaint, it was asked to provide a final complaint response to the resident. The landlord contacted her on 18 April 2024, and she confirmed the next day that her complaint was about a lack of soundproofing in the bedroom and fencing to be moved back by her bedroom door to allow natural light. She also stated she was suffering from anxiety and an autoimmune disease due to the severe stress and extreme fatigue.
  10. The landlord issued a stage 2 response on 17 May 2024. It provided her with an update on the soundproofing including its response from 15 July 2022 that it did not have a budget available to cover the cost of soundproofing works. It had spoken to her neighbour about the noise and that she and her neighbour had agreed to mediation. It had also requested it re-assess its stance and view regarding soundproofing and would update her.  It said the fencing had been covered in detail in its previous responses and the position had not changed, but it had agreed with the resident and her neighbour to install an access gate on the fence. It offered £400 compensation consisting of £200 for complaint handling and £200 for further time, trouble, and inconvenience.  

Assessment and findings

Request for soundproofing

  1. Section 2.2 of the landlord’s ASB policy states that sometimes lifestyles can clash but are not considered a breach of tenancy or lease, or as behaviour not compatible with living in a neighbourly manner, or which might affect the quiet enjoyment by others of their homes. Examples include noise from everyday living and white goods. 
  2. The landlord has confirmed it is aware of the resident’s vulnerabilities including her health condition which can cause difficulty sleeping and persistent tiredness. The resident made it clear to it she had trouble sleeping in her bedroom due to the noise from the neighbour, mainly due to the neighbour’s kitchen being above her bedroom and requested soundproofing to resolve the issue.    The Ombudsman is unable to draw conclusions on the causation of, or liability for, any impact on health or wellbeing. Personal injury claims must, ultimately, be decided by the courts, as they can consider medical evidence and make legally binding findings. However, the Ombudsman will consider the general distress and inconvenience the situation may have caused her.
  3. The resident made those requests several times between 13 June 2022 and 19 April 2024.
  4. The landlord stated in the stage 1 response of 15 July 2022 that it did not have the budget for soundproofing but would ask the neighbour to be mindful of noise between 8pm and 8am. It did not provide evidence to the Ombudsman that it did so. Although in the response it encouraged her to provide a diary of the noise she experienced, there was no evidence it issued diary sheets to her or provided her with any guidance about what she would need to record.
  5. In the resident’s request to the landlord on 14 February 2023, she said she was requesting sound monitoring as it was affecting her mental health. She said the banging sounded like there was no carpets in the flat above. She could not use her bedroom due to it being under the neighbour’s kitchen, so had been sleeping in the front room for the past 6 years. She stated that she would like the banging in the kitchen and whole flat to be addressed and something done about the sound travel. The landlord would be expected to consider her reports of the effects the issue she was reporting was having on her health.
  6. After speaking with the resident on 23 June 2023, the landlord noted she had said her bedroom was under the neighbour’s kitchen and had no soundproofing which affected her sleep. The records also noted that she had previously requested soundproofing and was advised to keep a log which she provided but was still refused soundproofing.
  7. The landlord has not provided any evidence of the log it referred to regarding having conducted any investigations into the noise she stated she was hearing and its determination and ultimate refusal to provide soundproofing. This indicates a record keeping failure by the landlord.  This had also limited the Ombudsman’s ability to establish the investigations it conducted into her reports of noise.
  8. In the landlord’s stage 1 response issued on 23 June 2023, it asked the resident to provide 10 days of recordings of noise and advised her to download its noise app or use her mobile phone. Its response did not provide any reference to her previous request or the decisions it may have made regarding soundproofing based on any previous evidence she had supplied.  
  9. That stage 1 response was the first evidence of the resident being asked to use the landlord’s noise app, over 1 year after her first request for soundproofing for the period being covered in this investigation.
  10. The resident reported incidents of noise from her neighbour in July 2023 and reported her issues with being unable to sleep. The landlord’s records show it issued diary sheets to her on 10 July 2023 for completion and to return. It asked to provide any video or audio evidence she may have, and provided an ASB Noise Pack for her viewing. It noted she had contacted her local authority, and asked for its reference, proposed plan of action and for her to continue to liaise with the local authority especially if the noise was at unsociable hours. On 17 July 2023, its records show it informed her it did not carry out retro soundproofing.
  11. On 31 October 2023, the landlord’s records show it called the resident who said her bedroom was under the kitchen and she could hear all the noise, she wanted soundproofing to be done, could not sleep properly with the noise and felt that her life was affected as she could not fully use her bedroom. It advised her that it did not do soundproofing, its surveyor did not do sound recordings, but it could ask for its contractor to do that.
  12. No further evidence has been provided to show that sound recording was conducted by the landlord or any findings if it did. The landlord stating it could ask for its contractor to do a sound recording was made over 1 year since the resident reported the noise nuisance for the period covered in this investigation although she stated she had been reporting the noise for a much longer period. It is not clear why it took that length of time for the landlord to make the offer to her.
  13. There is no evidence the landlord provided an updated response to the resident’s request for soundproofing despite agreeing to ask for its contractor to do sound recordings. Thus, it failed to manage her expectations and contributed further to her frustration. Its communication with her during the period covered in this investigation indicates that it had taken the view that it would not install soundproofing, but it had not evidenced that it conducted sufficient investigations to reach that decision. These failures indicate that there were faults in its internal communications and processes.
  14. Soundproofing works constitute an improvement outside of the landlord’s repair obligations. Landlords do not have a repair obligation to install additional soundproofing. The Ombudsman’s spotlight report on noise complaints states accepts that landlords are not responsible for soundproofing homes above the standards applicable at the time of building. However, it notes that actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report. This will, ultimately, provide a better quality of service to its residents.
  15. When the final complaint response was issued to the resident in May 2024, the landlord repeated that it did not have the budget for soundproofing and that it had requested the neighbour be mindful of the noise and had offered mediation. These offers would be expected practice by the landlord and are requirements under section 4.9 of its ASB policy. As previously stated however, it has not provided evidence of its contact with the neighbour regarding the reports of noise for the Ombudsman to establish the extent of its actions.  
  16. The landlord also stated that it had instructed its neighbourhoods and community safety team to re-assess the stance and view regarding soundproofing and would update her on that in due course. It failed however to address the offer of sound recording it made in October 2023.
  17. There were some positive steps taken by the landlord including issuing diary sheets to the resident and requesting she provide noise recordings. However, it did not evidence if those were returned, if it contacted her for any updates or that it was keeping her regularly informed of any investigations it was conducting. These failings would have caused further distress and inconvenience to her.
  18. Overall, the landlord has failed to evidence that it took a proportionate approach, over the period covered in this investigation, to investigate the resident’s reports of noise and consider her reports in relation to effects on her and her stated vulnerabilities. It has not evidenced that it conducted sufficient tests to establish if there was a soundproofing issue within the property, given the location of the neighbour’s kitchen in relation to her bedroom. In the absence of such evidence, it has not demonstrated that it came to an informed conclusion. The Ombudsman therefore finds that its handling of her reports of noise nuisance and request for soundproofing fell significantly short of appropriate standards.

The fence

  1. Whilst it is noted that the resident continues to have concerns regarding the fence, including that it is causing damp within her property, this investigation report will not consider issues which have arisen after the date of the landlord’s final complaint response on 17 May 2024. This is because it has not had an opportunity to investigate and respond to any complaint which may be raised by her in respect of those events. Any such issues that have not been subject to a formal complaint can be addressed directly with it and progressed as a new formal complaint if required.
  2. From the landlord’s records, the fence was erected between 2019 and 2020. Under the Ombudsman’s Complaint Handling Code in place at the time of the complaint, the Ombudsman will not consider complaints that were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising. Therefore, although it is acknowledged that the resident states she had been reporting her concerns regarding the fence since 2020, this Service will be considering the reports made from January 2022 as these occurred within 6 months of the formal complaint being made.
  3. The Ombudsman cannot make a finding about where the fence line should lie. This is a legal matter that should be properly determined by inspection of the land and with reference to any documents held by the Land Registry, the landlord and the tenancy agreement. However, the Ombudsman has assessed how the landlord dealt with the matter, and what steps were taken to investigate matters relating to the resident’s concerns about the location of the fence.
  4. The resident’s complaint on 13 June 2022 about the fence related to the separation of the back garden and her request for the garden be divided allowing her half of the garden. This was because she only had a walkway and no fire exit, which she said was a hazard if there was a fire at the front of the house as she would not be able to get out. In its stage 1 response on 15 July 2022, the landlord informed her it had asked its fire safety team to confirm if it was a safety hazard in the event of a fire or other emergency for her not to have a separate exit. Once it had received a response, it would respond further to her. 
  5. There was no further response evidenced by the landlord regarding its commitment to speak to its fire safety team or that it would respond to the resident as it committed to do 3 months earlier. This was a failure by the landlord to fulfil the commitment it had made in its complaint response.
  6. The resident made a further complaint to the landlord on 26 October 2022 and in that complaint said its officer had not communicated with her at any point that year. She requested that it contact her regarding the fence being pulled back to allow her an equal share of the garden and that a manager look at the situation as it had been ongoing all year.
  7. The landlord has not provided evidence relating to any correspondence it had with the resident regarding the matter in the 6 months prior to her first complaint being made and this has limited the Ombudsman’s investigation into any requests she had made and its actions during that time. This is a record keeping failure by the landlord.
  8. The landlord’s records show that on 1 November 2022 it asked its building safety team to review and confirm if there was a risk in case of a fire and if the fence should be removed to allow the resident’s flat access to the neighbouring property’s garden in the event of an emergency. This enquiry was the first evidence of it investigating the fire safety aspect of her complaint, despite it stating in its stage 1 response of 15 July 2022 that it had enquired with its fire safety team regarding that matter. This was an unnecessary delay.
  9. The landlord’s second stage 1 response on 3 November 2022 noted that it had discussed the complaint with the resident, and she said she was unhappy with the way the garden had been divided. This was because she no longer had access to the neighbouring garden in the event of an emergency, which she believed was a health and safety risk. She advised that she was not at home when the fence was erected, and she had less space than her neighbour. The landlord stated that:
    1. The resident had been given sole use of the front garden, as well as the “L” shaped space surrounding the property. When that space was measured in square meters, she had more space than her neighbour.  
    2. It had liaised with its Fire Safety Team who had reviewed the situation and explained that access into the neighbouring garden was not deemed as a fire exit so was not an area that she should need to access in the event of a fire.
    3. It acknowledged she had advised it that the London Fire Brigade (LFB) had attended and informed her the fence should be removed but it had not received any recommendations from LFB, which was the normal process if they found something needed to be addressed. If she had any paperwork following their visit, she could provide that so it could be passed to its Fire Safety Team.
    4. It would not be asking her neighbour to remove or move the fence or install a gate as there was no health and safety risk identified with the current layout. 
  10. As the landlord had confirmed there to be no health and safety risk requiring any amendments to the fence to be made, it was appropriate for it to inform the resident of that and its decision not to make any changes to the fence in that regard. It also provided an explanation to her concerns about the division of the garden and the space allocated. As previously stated, the Ombudsman cannot make a decision regarding the positioning of the fence or if it should be removed or altered. In this case, the landlord has provided a reasonable explanation for its decision.
  11. In its stage 2 response on 5 January 2023, the landlord repeated the findings of its stage 1 response and reiterated that the fence would not be removed, moved, or have a gate installed. In the absence of any evidence supporting a contrary position, it was entitled to make that decision.
  12. In the resident’s contact with the landlord on 12 June 2023, she referred to the complaint regarding the division of her rear garden and that she had no light coming into the property due to the location of the fence. From the evidence provided the landlord opened a new complaint.
  13. In its stage 1 response to that complaint, on 23 June 2023, the landlord stated that it had spoken to the resident prior to it issuing its response and noted that she had asked for the fence to be pulled back and a gate installed to allow her access in the case of an emergency. The response it issued remained the same as its previous complaint responses.
  14. There was no evidence the resident presented any new evidence for the landlord to consider regarding the gate so its response regarding that would have been appropriate. However, her concern of light issues was not addressed at all by it and there was no evidence it conducted any inspections to confirm if the fence was preventing light from entering her property, meaning she did not receive a response to that element of her complaint.
  15. The resident informed the landlord on 31 October 2023 that the fence required a gate for contractors to access the neighbour’s area of the garden without her having to grant access and the fencing also blocked out all natural light to her bedroom. There was no further evidence provided by the landlord as to its consideration of that information until it issued its final response in May 2024.
  16. Following contact to the landlord by the Ombudsman in April 2024, it was asked to provide a final complaint response to the resident. It confirmed that her complaint relating to the fence was that she had never requested the fence and wanted it to be moved back by her bedroom door to allow natural light.
  17. The landlord’s records show that on 2 May 2024 it noted that during a conversation with the resident on 27 March 2024 it had confirmed it would not be moving the fence. However, after speaking with her and her neighbour, it agreed to look into the possibility of creating a door in the current fence so that the neighbour would have access to her part of the garden. This was because she said she was tired of giving access to contractors to her part of the garden when the works being conducted was for her neighbour’s flat. It stated however it had not had the opportunity to speak to the neighbour. 
  18. The landlord therefore had failed to fulfil the commitment it had made to the resident. Given the length of time and the multiple complaints that she had made regarding the fence, it had an opportunity to provide a solution that may have alleviated some of her concerns, but by not doing so the situation remained ongoing.  
  19. The landlord did note on 2 May 2024 that it had spoken to the neighbour that day and she was open to the gate being installed, thus it would arrange for the work to take place. Its records indicate that it was assigned to a contractor on 15 May 2024. That was almost 2 months after it had first agreed to investigate the matter for the resident. The delay would have added to the distress and inconvenience felt by her.
  20. In the landlord’s final complaint response to the resident on 17 May 2024 it said the fencing had been covered in detail in its previous complaint responses. In terms of the current situation, it made compromises to resolve some issues. It had agreed to install an access gate on the fence so the neighbour could have access to her garden for when contractors needed access. This meant she did not have to ever give access to contractors working in her neighbour’s flat again, which it hoped would reduce the need to engage with the neighbour and would reduce conflict. It was conscious it was not able to agree on all the issues with the fence.   
  21. The landlord said it offered compensation of £300 in its stage 2 response on 5 January 2023, consisting of £200 for time, trouble, and inconvenience and £100 for its complaint handling. It had considered the delays and poor communication because of a restructure it had gone through. It had considered her vulnerability and health issues and that the impact on her would have been greater than otherwise, and that she had to approach the Ombudsman for intervention. Given the findings of its final complaint response and the time that had passed, it increased the offer for its complaint handling to £200 and £200 for further time, trouble, and inconvenience.
  22. At the end of the complaints process, the landlord had agreed to install the gate for contractors’ access. This was an appropriate step for it to take, however there were delays in it doing so despite commitments it had made to the resident. It also had not evidenced that it addressed her concerns of light being blocked by the fence. Given that this was originally raised by her at least on 12 June 2023, she confirmed to it that was still an issue for her on 19 April 2024 and the final complaint response was issued on 17 May 2024, it should have addressed this point.
  23. In conclusion, the landlord’s failures in addressing her issues regarding the fence include delays in contacting its fire safety team, failure to act on its commitment to speak to the neighbour about gate access for contractors and its failure to provide an explanation regarding her concerns of light into her property. The Ombudsman finds that there was service failure by the landlord.
  24. The landlord’s failings which it identified in its handling of the resident’s complaint was appropriate and the Ombudsman agrees with the findings it made in that regard. The offer of £200 redress for its handling of her complaint was reasonable. The landlord did not specify how much of the £200 for time and trouble was specific to each issue raised. However, the amount offered for both issues would not be considered reasonable, so this has been reflected in the orders made.

Determination

  1. 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 noise and request for soundproofing.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of resident’s concerns about the erection and position of a fence.

Orders

  1. By 7 January 2025, the landlord is ordered to:
    1. Pay the resident compensation totalling £550 (inclusive of the £400 offered previously as part of its stage 2 response), comprising:
      1. £100 for the failures identified in its handling of her reports of noise and request for soundproofing.
      2. £50 for the failure identified in its handling of the resident’s concerns about the erection and position of a fence.
      3. £400 offered as part of its stage 2 complaint response if it has not paid this already.
    2. Provide the resident with a written apology for the failures identified in this report.
    3. Conduct a full survey of the resident’s property by a suitably qualified person to conduct a sound test with particular focus on her bedroom. The landlord is to provide the resident with a copy of the findings and any required works including a timetable for any works to be completed.
    4. Conduct a full survey of the fence in the garden by a suitably qualified person to establish if the fence is causing any issues to the resident’s property including restricting light entering her property. The landlord is to provide the resident with a copy of the findings and any required works including a timetable for any works to be completed.