Somerset Council (202339162)

REPORT

COMPLAINT 202339162

Somerset Council

17 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

The complaint is about the landlord’s:
1. Allocation of a tenant to the property adjoining the resident’s property.
2. Response to the resident’s reports of noise from the neighbouring property and associated works.
3. Complaint handling.

Background

The resident has a secure tenancy with the landlord, which is a Local Authority. He has lived at the property, which is a sheltered accommodation 1 bedroom, semi-detached bungalow, since October 2019. The property has a shower but no bath and the resident lives alone. The landlord has vulnerabilities recorded for the resident as mobility issues, a general disability, and mental health conditions. The resident advised this Service that he has mental health disabilities, PTSD, anxiety, panic attacks, asthma and ME.
The resident stated within his correspondence that he has experienced noise from the neighbouring property since he had moved in to the property in 2019. A new tenant of the landlord moved into the neighbouring property in March 2020. Following ongoing reports of noise from the neighbour’s kitchen and telephone calls, the landlord installed insulation boards to the resident’s bathroom wall on 17 October 2022. This rendered his shower unusable.
Another tenant of the landlord moved into the neighbouring property in September 2023 and the resident regularly reported that he could hear banging, voices and the TV. The landlord’s internal complaints procedure in respect of this concluded on 21 December 2023. It upheld the complaint and stated it should have taken action sooner to address the noise transference.
On 2 February 2024 the resident referred his complaint to this Service. He stated that no works had been completed to address the noise. He advised that the landlord had apologised for the resident not having a working shower but had not resolved this.

Correspondence following the referral to the Ombudsman

On 22 March 2024 the landlord updated its records to show the installation of soundproof boarding in the resident’s bedroom as being completed.
A sound test was conducted at the property by a specialist contractor on 17 April 2024. This found that both party walls exceeded the minimum requirements for building regulations. It provided a suggested party wall upgrade that could be used to improve the sound insulation performance of the separating wall further.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42.j of the Scheme sets out that the Ombudsman may not investigate a matter which falls within the jurisdiction of another Ombudsman, regulator or complaint-handling body. How the landlord allocates its properties, in its capacity as a Local Authority, is a function which falls within the remit of the Local Government and Social Care Ombudsman. As such the complaint about the landlord’s allocation of a tenant to the property adjoining the resident’s property is outside the jurisdiction of this Service.

Assessment and findings

Scope of investigation

The resident raised the issue of the impact of noise on his mental health. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider any personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim. However, this Service will consider the landlord’s handling of the issues and any distress and inconvenience this may have caused if a failing is identified. This Service would expect the landlord’s response to consider the resident’s reports on how the issue was impacting him, as this would reflect the detriment experienced as a result of potential failures by the landlord.
The resident advised that he had experienced noise from the neighbouring property since moving in in 2019. Generally, the Ombudsman limits its investigation and consideration of a complaint to the 12 months leading up to a complaint. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. However, in this case, the landlord considered its handling of the reports since the resident moved in in 2019, and acknowledged associated failures. It is clear that the issue complained about has been ongoing and unresolved during this time. As such, in the interests of fairness, this investigation has considered the landlord’s actions since 2019.
Following the completion of the internal complaints procedure, the resident raised concerns about the landlord’s handling of unrelated ASB, and its decision to temporarily move him from his property. As this did not from part of the formal complaint to the landlord under consideration, this is not something that this Service can investigate at this stage as the landlord needs to be provided with the opportunity to investigate and respond to these reports. It is also noted that the resident has commenced legal action in respect of this matter.

Response to the resident’s reports of noise from the neighbouring property and associated works

It is evident that the ongoing nature of the situation has been very distressing for the resident. It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s response to the resident’s reports of noise and the reasonableness of its response to the formal complaint. This does not include establishing whether any of the neighbours were responsible for noise nuisance or ASB. The investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies and procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against a neighbour.
The landlord has acknowledged that the resident had been reporting noise from the neighbouring property since 2019. The first correspondence this Service has seen in respect of the landlord considering potential action to resolve this, was an internal note from January 2021, where it considered soundproofing between the properties. However, there is no evidence that the landlord sought to investigate the noise further or take any steps to install soundproofing at the time.
There was a gap in the correspondence seen by this Service until August 2022. Between August 2022 and the end of September 2022 the resident made a number of reports of being able to hear the neighbour using their kitchen and making telephone calls. He explained that his mental health issues were triggered by noise and requested sound proofing be installed. Following this, the landlord raised a job, on 3 October 2022, to insulate the resident’s bathroom wall (this being one of the connecting walls).
On 10 October 2022 the landlord responded to a complaint the resident had made about the neighbour and stated as follows:
1. It would liaise with the Environmental Health Department and explain that the resident had agreed to have noise monitoring equipment installed.
2. The resident wanted to move and as such he had advised that he did not want extensive sound proofing works undertaken. The resident had been “gold banded” on a home locator website and had been accepted for a direct match (high priority).
3. As a temporary solution, it had agreed to install insulation to the bathroom wall and the resident had agreed to this.
It was appropriate for the landlord to liaise with the Environmental Health Department in respect of the noise concerns, as this was the appropriate department to establish if the noises complaint about could be classed as a statutory noise nuisance. Its offer of noise monitoring equipment was also appropriate as the resident did not have access to a noise recording application on a mobile phone.
The works to add insulation boards to the bathroom wall were marked as complete on the landlord’s records on 17 October 2022. The insulation boards installed on the connecting wall meant that the resident’s shower became unusable from this date. The resident advised this Service that he had agreed to the insulation as he considered the lack of a shower to be preferable to what he described as “constant noise”. He stated that he did, however, raise his concerns about the lack of a shower with the landlord at the time. This Service has not seen evidence of the landlord’s decision making in respect of this.
Under the Landlord and Tenant Act 1985, landlords are required to ensure that their properties meet the minimum housing standards. Landlords are also required to ensure that a property is fit for human habitation throughout the tenancy. Whether a property is fit for human habitation is something which can only be determined by a Court. However a Court would consider whether there were any hazards present as set out in the Housing Health and Safety Regulations 2005. These regulations state that the inadequate provision of facilities for maintaining good personal hygiene can be a hazard.
Landlords are also required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). The HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. A lack of washing facilities, such as not having a working bath or shower, is a potential hazard that can fall within the scope of the HHSRS.
It is acknowledged by this Service that the resident had requested the bathroom insulation and had been aware that this would make the shower unusable. However, this did not negate the landlord of its basic responsibility to ensure the property met the minimum standards and was free from potential hazards. It is of significant concern that the landlord did not recognise its responsibility in respect of this and went ahead with works which rendered the shower unusable. This resulted in the only washing facilities available to the resident being the bathroom sink, which he advised he used to sponge wash.
On 24 October 2022 the resident reported that the bathroom insulation had helped but that he could still hear noises from the neighbour. That same day the landlord requested that the noise monitoring equipment be installed, so it could understand what was being heard. This Service has not seen any evidence that this was actioned.
There is a gap in the correspondence seen by this Service until June 2023 when the landlord requested additional insulation board be fitted to the bathroom wall. Subsequently, on 29 August 2023, the landlord noted that the neighbour had passed away. As such, the resident had requested soundproofing works to be carried out whilst the neighbouring property was void.
The Housing Ombudsman published a spotlight report on noise complaints in October 2022 (during the events being considered in this case). This recognised that noise can negatively impact on resident’s their mental health and well-being and it can cost landlords in protracted and often futile interventions, multi-agency liaison and staff morale. These costs are often underestimated and may be avoidable, to some extent, by adopting the different approaches set out in the spotlight report. This includes works to void properties to reduce noise transference. However, instead of taking a proactive approach to addressing the noise transference, the landlord’s voids team challenged the request to fit additional insulation, on the basis that the diving wall was “to building regs”. This showed a lack of constructive communication and understanding between landlord teams and a reluctance to consider the individual circumstances of the case. This resulted in a missed opportunity to try to resolve the ongoing issue.
Following the landlord’s internal disagreement as to the requirement of the works, it visited the property on 1 September 2023 to conduct a sound test. However, this was conducted by the landlord’s staff rather than a specialist contractor. The landlord noted that it had heard noise generated in the void property, which it described as having been “way louder than expected.” The landlord noted internally how this would impact the resident given his disclosed vulnerabilities, his “extreme sensitivity” to noise, alongside suffering from PTSD and anxiety.
To address the noise transference the landlord’s ASB team requested again that additional boarding be installed in the bathroom, soft closers on the doors and drawers in the kitchen of the neighbouring property along with matts on the cupboard shelves. The landlord’s suggestions for the works to the kitchen provided a simple and unobtrusive way to reduce noise transference and was in line with the recommendations in the spotlight report. This is something the landlord could have considered following the resident’s initial reports of noise from the neighbour’s kitchen in January 2021. The failure to consider and conduct these actions from the onset was a missed opportunity to take proactive steps to resolve the matter at an earlier stage. Instead, it took the landlord around 32 months (January 2021 to September 2023) to carrying out a noise test and identify a solution to the kitchen noise. This delay was not appropriate and caused unnecessary distress to the resident.
The landlord installed additional insulation board to the resident’s bathroom around September 2023. This resulted in the shower door being unable to be fully opened. Again, there is no evidence that the landlord had recognised its choice of actions made the shower unusable.
On 26 September 2023 the resident submitted a complaint and stated that a new neighbour had moved in. He stated that the extra insulation panel in the shower had lowered the sound of voices to “almost nothing”, however, there were still noises from anything that contacted the “counter, sink or window facing drawers”. He acknowledged that the sounds were not ASB but suggested there was a defect with the property.
At this stage, as the landlord had been aware that the noise transference had been ongoing since at least 2021 (over 2 years), and as such, it is reasonable to expect that it should have treated these new reports with added urgency. Instead it noted internally (9 October 2023) that soundproofing had not been installed in the neighbouring property whilst it was void due to time and cost. This reflected that the landlord’s internal disagreement as to the necessity of the works had impacted the works being carried out. It also demonstrated a potential missed opportunity to try to minimise the noise transference which had been witnessed by the landlord.
The landlord noted internally on 17 October 2023 that the resident would be possibly moving out of the property whilst unrelated roof works were undertaken (it did not state when). It suggested that during this time, it would look at moving the shower tray and insulate the wall. This is the first correspondence seen by this Service which demonstrated that the landlord was aware of the need to take steps to provide the resident with a working shower. Whilst the recognition that a functioning shower was necessary, was a positive development by the landlord, the delay to reach such a point was inappropriate. It is reasonable to expect that upon identifying the issue that the landlord should have expediated a solution.
On 23 October 2023 the landlord responded to the resident’s complaint at stage 1 and stated as follows:
1. It had arranged additional sound proofing to the resident’s property.
2. It had asked its surveyor to visit both properties. Should any soundproofing works be required, this could take place when the roof works commenced.
3. It concluded that the complaint was upheld.
Although it was appropriate for the landlord to arrange for a surveyor to attend, this is something it could have requested much earlier, particularly after it had witnessed the noise transference complained about and during the period when the neighbouring property was empty. It is also noted that despite offering this, there is no evidence that a surveyor subsequently attended.
On 24 November 2023 the landlord sent an “interim” stage 2 response and stated as follows:
1. It apologised that the noise transference had not been resolved since the resident had moved into the property.
2. It had attended on 14 November 2023 and had heard noises through the closed bathroom door whilst in the kitchen. The resident had advised that the bathroom insulation and the soft closures on the neighbour’s kitchen cupboards had reduced the noise.
3. The resident had advised that he did not sleep in the bedroom due to the noise transference. He had requested insulation be installed in his bedroom. It had advised him that it was not in support of installing thermal insulation board (rather than a sound absorption board) as this would have little effect on reducing noise transference.
4. It had a requirement to ensure the resident had a working shower or bath. The insulation work it had carried out at the resident’s request had rendered the shower unusable and it needed to correct this as soon as possible. It acknowledged that the resident did not want the bathroom insulation removed. It would instruct an independent sound consultant to carry out noise transference tests.
5. It required additional time to respond fully at stage 2 in order to discuss and agree a course of action and carry out the sound survey. It would provide its full stage 2 response by 22 December 2023.
The landlord sent its stage 2 response on 21 December 2023 and stated as follows:
1. It apologised for not acting promptly upon the resident’s reports of noise since he moved in. Had it properly investigated the issues at stage 1, a resolution could have been agreed earlier. It apologised and stated this would be raised with relevant staff.
2. It had installed a second layer of insulation board in the bathroom.
3. There had been one kitchen drawer in the neighbour’s property without the soft closure fitted. It had subsequently installed this on 20 December 2023.
4. It acknowledged that the resident was unhappy with the allocation of the new neighbour to the property. It stated that the noises reported had been day to day living noises and not ASB. It accepted there had been one night where there had been music until the early hours.
5. It had identified lessons to be learned from the case. It recognised it had opportunities to carry out sound testing, including when the neighbouring property was empty. It also had the opportunity to put measures in place to reduce the noise transference. This had not happened.
6. It had found that major works were required in the kitchen of the neighbouring property. It had advised the resident that it could not afford to do this. This had been incorrect. If the sound testing and remedial works indicated this work was required, it would fund this.
7. The resident had requested for his last month’s rent to be waived when he moves property. It agreed to this. He had also requested that it remove an armchair and some black sacks upon him moving. It agreed to do so without charge.
8. It would take specialist advice on what works could be carried out to address the noise transference.
9. It had been “wrong” to install insulation in the shower rendering it unusable. It would discuss this with the staff involved to ensure this did not occur again.
10. It concluded that the complaint was upheld.
This Service has seen that the landlord had realised its error in undertaking works, which made the shower unusable, by 17 October 2023. On 24 November 2023 within its interim stage 2 complaint response, it stated that it needed to correct this as soon as possible. As of 5 December 2024, this had not been done and the resident was still without proper washing facilities.
It is noted that there was a period over the summer of 2024 when the resident was not living at the property, due to an unrelated ASB allegation. However, it is clear that there was a period of over 2 years during which the resident had to sponge wash at his sink due to not having a functioning shower. Despite the landlord recognising its error more than a year ago (October 2023) the works to provide the resident with a shower have not been undertaken.
Once the landlord realised its error in installing insulation which made the shower unusable, it should have acted urgently to put things right for the resident to provide a showering facility. It is noted the removal of the insulation boards may have been contrary to the resident’s wishes, however, the landlord’s responsibility is not removed based on a resident’s wishes. This was a significant failure of the landlord to ensure the property met the basic required standard.
The landlord upheld the resident’s complaint throughout and acknowledged that it should have acted sooner to identify and action works. The landlord offered to waive one month’s rent (£474.72) and remove some items of rubbish for free, as redress. When a failure is identified, as in this case, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
When considering redress, it is appropriate for a landlord to consider a resident’s requested outcome, however, this should not be the only consideration. In this case, the landlord’s offer of redress at stage 2 was the resolution requested by the resident. There is no evidence that the landlord had considered whether this was sufficient or reflected the impact of its failings together with the wider circumstances of the case.
Given the significant period of time the resident was without washing facilities, the prolonged duration and overall impact of the failures of the landlord to address the noise transference and the failure to appropriately consider redress, severe maladministration has been determined.
The compensation offered by the landlord was unreasonable and did not reflect the landlord’s failures on the resident. The Ombudsman has made an order of compensation which reflects the significant and prolonged impact caused by the removal of a shower which caused a loss of bathroom facility.
The compensation award for the loss of bathroom facility uses rent as a basis for calculations to reflect the loss of amenity for the time period the resident was without washing facilities for 26 months (October 2022 to December 2024). As stated above, although the resident requested that the insulation be installed, the landlord had a responsibility to ensure his shower was functioning. As such, given the significant impact caused by not having washing facilities for this period of time, the landlord’s awareness of its error without rectifying this and the resident’s vulnerabilities, the calculation will be based on 25% of the resident’s rent. The landlord has stated that the resident’s rent is £474.72 per month. The rent and the period of time are only indicative and used as a guidance. As such, the compensation does not intend to amount to an exact refund or reflect current rent level. This Service has therefore calculated compensation for the loss of use of the bathroom as follows:
1. 25% of £474.72 = £118.68.
2. £118.68 x 26 months (approximate timeframe without a shower, although this has still not been resolved) = £3085.68.
In addition to compensation for the loss of facility, the Ombudsman has ordered an additional amount of £300 to acknowledge the distress and inconvenience caused to the resident by the landlord’s failures to respond appropriately to the noise issue and for the length of time the matter has been outstanding.
At the time of writing this report, the landlord had not reinstalled the resident’s shower, nor had it advised if it would be carrying out works to the wall as per the sound expert’s report. Orders have been made in respect of these below.

Complaint handling

The landlord’s complaints policy states that at stage 1 it will acknowledge a complaint within 5 working days and respond within 10 working days. At stage 2 it will respond within 20 working days. If additional time is required at either stage it will keep the resident informed. This will not exceed a further 10 days without a reason being given or the resident’s agreement sought.
The resident submitted his complaint about the noise he could hear from the new neighbour on 26 September 2023. The landlord acknowledged this that same day and stated that it aimed to respond by 10 October 2023. On 10 October 2023 the landlord advised that it required additional time to respond as it was meeting and discussing the situation with different departments. It advised that it would respond by 24 October 2023.
It provided the stage 1 response in line with this timeframe (on 23 October 2023). It upheld the complaint and set out the actions it had taken and would take going forward.
The resident escalated the complaint on 30 October 2023. The landlord acknowledged this on 31 October 2023 and advised it aimed to respond by 28 November 2023. The landlord sent an “interim” stage 2 response on 24 November 2023. This set out the actions it had taken but that it needed extra time to agree a course of action and carry out a sound survey. An interim response is not something which is contained within the landlord’s complaints policy, nor is this in line with the Housing Ombudsman Complaint Handling Code (the Code). The stage 2 response should not be delayed to allow the landlord additional time to undertake works or investigation. The landlord subsequently provided the stage 2 response on 21 December 2023. This was 38 working days after the resident had escalated his complaint. By not acting in accordance with its policy or the Code, the landlord delayed the resident’s ability to refer his case to this Service.
The landlord did not acknowledge its complaint handling failure at stage 2 of its process, nor did it offer any redress for the impact of the delay on the resident. This was not appropriate and amounts to maladministration. To acknowledge the distress and inconvenience of this delay on the resident, compensation of £100 has been ordered. This is in line with the Ombudsman’s remedies guidance where a resident had been impacted by a failure of a landlord.

Determination (decision)

In accordance with paragraph 42.j of the Housing Ombudsman Scheme the complaint about the landlord’s allocation of a tenant to the property adjoining the resident’s property is outside the jurisdiction of this Service.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s response to the resident’s reports of noise from the neighbouring property and associated works.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to this Service:
1. A senior member of the landlord’s staff is to apologise in writing to the resident for the failures identified in this case.
2. Pay £3485.68 compensation directly to the resident. The compensation ordered by this Service is made up as follows:
  1. £3085.68 to acknowledge the impact on the resident of the landlord’s failure to ensure the resident had access to washing facilities and its handling of the noise reports.
  2. £300 to acknowledge the distress and inconvenience caused to the resident by the landlord’s failures to respond appropriately to the noise issue and for the length of time the matter has been outstanding.
  3. £100 to acknowledge the impact on the resident of the complaint handling failure.
3. Confirm to the resident and this Service the action it will take to provide the resident with washing facilities along with a timeframe for such works to take place.
4. Confirm to the resident and this Service if it will be taking any action in respect of the adjoining wall as per the sound survey finding. If no action is to be taken, the reason for this is to be provided to the resident and this Service.
The landlord is ordered to take the following action within 8 weeks of this report and provide evidence of compliance to this Service:
1. In accordance with paragraph 54.g of the Housing Ombudsman Scheme, the landlord should conduct a senior management review of the issues highlighted in this report. This should be presented to its senior leadership team and shared with the Ombudsman. Within 8 weeks the landlord should provide the Ombudsman a report summarising identified improvements, which should also be cascaded to its relevant staff. Topics for inclusion include:
  1. Why there was a significant delay by the landlord to identify and respond to the resident having no access to reasonable washing facilities. The landlord should identify any changes it should make to its processes, risk assessments, decision making and staff guidance where the consequence of accommodating requests from residents creates a hazard in the property.
  2. How the landlord will handle disagreements between its departments as to the necessity to carry out works and how it will improve its decision making and communication should this occur.
  3. How the landlord will consider the recommendations from the Ombudsman’s spotlight report on noise when responding to reports of noise transference, including the timely involvement of specialist noise contractors.
  4. How the landlord considers and calculates it offer of redress during its complaints procedure. Emphasis should be placed on what the landlord will do to be proportionate to put things right and not solely base its offer on the request of a resident.