Southwark Council (202304414)

REPORT

COMPLAINT 202304414

Southwark Council

31 January 2025

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 handling of the resident’s concerns about:
1. The council’s allocations process.
2. Inappropriate staff conduct.
3. Noise from the flat above him.
4. The position of the hot water pipes in the flat above him, which had caused his property to overheat.
The Ombudsman will also investigate the landlord’s complaints handling.

Background

The resident has a secure tenancy for a converted 1 bed ground floor flat, which began on 23 January 2012.
The landlord is a council. It was aware of the resident’s vulnerabilities.
Between May and July 2022, the resident reported noise nuisance to the landlord from the neighbour who lived above him.
In June and July 2022 the resident raised concerns that his neighbour was leaving their heating on, and the position of the heating pipes was causing his flat to overheat which was affecting his health.
The neighbour left the property in August 2022. A friend of the neighbours remained in the property for a short while after this.
The resident made a complaint on 14 April 2023, in which he said:
1. The landlord’s housing officer had colluded with his neighbour and their acquaintances to terrorise him. He was concerned that the housing officer would move one of his acquaintances into the flat above and was worried about his safety.
2. He had reported noise nuisance from his neighbour but most of the time he was ignored. He raised concerns that the carpet had been removed in the flat above and there was inadequate sound proofing between the flats.
3. The boiler had been moved into the living room in the flat above. The pipework in the flooring were causing his flat to overheat which was affecting his heath.
The landlord issued its stage 1 complaint response on 26 April 2023. In its response it said:
1. The housing officer was in contact with the neighbour’s friend about their whereabouts and him occupying the flat. It assured the resident that the housing officer had not colluded with the neighbour’s friend in relation to the tenancy.
2. It was discussing the neighbour’s tenancy with her son. Due to data protection legislation it could not share information about this with the resident.
3. The housing officer could not influence the allocation of properties as this was not part of his job role.
The landlord issued its stage 2 complaint response on 4 August 2023. In its response it:
1. Apologised that the resident felt he was treated with rudeness or indifference in relation to his reports of noise nuisance. However, it would not attend or become involved with normal domestic noise.
2. Confirmed its housing officers do not have any influence over the allocation of tenancies. It had examined the allocation and bidding history for the upstairs flat. It could not provide this information to the resident due to data protection legislation. The evidence showed the resident’s allegations against the housing officers were without any foundation.
3. Said it was following due process to manage and facilitate the ending of the neighbour’s tenancy. It could not provide the resident with a timeframe for when the property would be re–let.
4. Said the council would review the flooring in the upstairs flat under its void process.
5. Confirmed the boiler and serving pipework was replaced in the upstairs flat in October 2015. If there were genuine issues then this would be addressed in the councils void process. It said it was unlikely to relocate the boiler and pipework unless it was absolutely necessary due to costs.
6. Recognised there was some challenging and irregular circumstances at the neighbour’s property, which it was doing its best to resolve. However, it was unable to uphold the resident’s complaint as it found no wrongdoing.
The resident referred his complaint to the Ombudsman and said he wanted the following outcomes:
1. The upstairs flat to be let to someone according to the council’s bidding process and the Ombudsman to oversee this.
2. Soundproofing and carpet to be fitted in the upstairs flat.
3. The boiler in the upstairs flat is returned to the kitchen.
4. An investigation into whether the housing officers acted inappropriately about his complaints about the neighbour and her acquaintances.

Assessment and findings

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, in accordance with the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
The resident raised concerns about how the council has managed its allocations process. Paragraph 41.d. of the Scheme states that this service cannot consider complaints which, in the Ombudsman’s opinion concern matters in respect of local housing authorities in England which do not relate to their provision or management of social housing. This includes applications for housing under Part 7 of the Housing Act 1996. Therefore, this service cannot investigate or oversee the letting of the flat above the resident. Complaints relating to the local authority’s exercise of these duties may fall within the jurisdiction of the Local Government and Social Care Ombudsman.

Scope of the investigation

The resident told this service the issues he raised in his complaint had been ongoing for several years. The Ombudsman cannot consider complaints which relate to historical events because the quality and availability of any evidence that may have existed at the time, may not be present now. The focus of this investigation will therefore be from 12 months prior to when the resident raised his complaint. This is in accordance with paragraph 42.c. of the Scheme. This would be from April 2022 to the end of the landlord’s complaints procedure in August 2023.
The resident has reported anti-social behaviour (ASB) and noise nuisance from his current neighbours to the landlord. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because under paragraph 42.a. of the Scheme, the Ombudsman may not consider complaints which are made prior to having exhausted a member’s complaints procedure. The landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction prior to the involvement of the Ombudsman. If the resident continues to have issues with his current neighbours he should raise these with the landlord and ask to make new formal complaint if required.
The resident told the Ombudsman he wanted staff members to be held accountable for their actions. It is outside our role to consider or comment on how a landlord should deal with individual members of staff. This is in accordance with paragraph 42.h. of the Housing Ombudsman Scheme, which states that this Service may not consider complaints which concern terms of employment or other personnel issues. When investigating a complaint about a landlord, we will consider the response of the landlord as a whole. The Ombudsman’s determination and any associated orders and recommendations will be made against the landlord rather than an individual.
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 or wellbeing. The Ombudsman is therefore unable to consider the resident’s claims that the landlord’s handling of his concerns about staff conduct, noise and overheating had a negative impact on his health. These matters are better suited to consideration by a court or via a personal injury claim. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

The landlord’s handling of the residents concerns of inappropriate staff conduct

In the resident’s complaint dated 14 April 2023 he made allegations against members of the landlord’s staff, stating that individual staff members unduly influenced the council allocations procedure for the purpose of moving residents in to harass him. He also alleged that a member of staff collaborated with an individual to stay in a property they had no right to occupy. Whilst we will investigate how the landlord responded to your concerns regarding the conduct of their staff, we will not investigate alleged criminal conduct or make a determination that criminality has occurred. The police investigate such offences.
When a resident raises concerns regarding staff conduct, it would be expected that the landlord carries out a thorough investigation into these concerns and, if appropriate, take reasonable steps to mitigate any future instances. The Ombudsman is unable to make a determination on whether the accusations made by the resident were indeed true or whether there was misconduct by the landlord’s staff. However, we can look at whether the landlord responded fairly and appropriately to the resident’s allegations of misconduct by its staff.
The evidence the landlord has shared with this service in relation to the neighbours tenancy cannot be disclosed to the resident due to data protection guidelines, as this service is unable to share personal information about other persons without their consent. This service understands it must have been difficult for the resident to receive limited information from the landlord about the concerns he raised. However, the landlord acted appropriately by monitoring the neighbour’s situation and tenancy, whilst adhering to data protection legislation.
In the landlord’s stage 2 complaint response it told the resident it had examined the bidding history for the upstairs flat and had spoken to the relevant members of staff. The evidence provided to this service showed the landlord carried out a through investigation of the resident’s concerns. The landlord acted reasonably by explaining the council’s allocations process and its staff members job roles so the resident had a clear understanding of this.
Although it was appropriate for the landlord to tell the resident it could not find any wrongdoing by its staff based on the evidence available to it. It failed to acknowledge that the relationship between the resident and the housing officer had broken down. The resident has continued to report concerns about his housing officer to both the landlord and this service. The landlord could consider setting up a single point of contact for the resident to report issues to, that is a different member of staff to the one the resident has raised concerns about. This would show the landlord is listening to the resident’s concerns and may help to improve its relationship with the resident.
Based on the above, there was no maladministration with the landlord’s handling of the resident’s concerns of inappropriate staff conduct.

The landlord’s handling of the resident’s concerns about noise from the flat above him

The landlord’s ASB policy states it will respond to low risk cases within 5 working days. Its website states this includes noise issues. The policy says it will refer low risk cases to the relevant resident services officer.
The landlord’s condition of tenancy document states residents should seek permission to install new flooring or coverings, particularly laminate, wooden or similar flooring. When considering granting permission it would consider the potential noise nuisance for others, and permission may be conditional on the resident ensuring there was proper sound insulation.
The resident reported noise nuisance from his neighbour on 21 May 2022. The landlord contacted him on 25 May 2022 to explain what is considered a statutory noise nuisance and managed his expectations on when it could take action. Between May 2022 and July 2022 the resident reported noise nuisance from his neighbour several times. The landlord’s records show on every occasion it responded within its target timescale of 5 working days. The landlord visited the resident on 9 June 2022 to listen to the noise. Although the landlord’s records state it did not witness any noise nuisance, it told the resident to continue to report issues and it contacted the neighbour the same day to try to resolve the situation.
On 28 July 2022 the council’s noise and nuisance team contacted the resident and asked him to report future noise issues to them. The landlord told the resident on 16 August 2022 that it was unable to take any further action until the noise was witnessed by the noise team and deemed a statutory nuisance. The council’s noise team visited the resident on 15 and 17 October 2022 and said no statutory nuisance was witnessed. It was reasonable for the landlord to rely on the council’s assessment of the noise. However, the Ombudsman’s spotlight report on noise highlights the need for landlords to adopt a pragmatic and holistic approach to noise complaints, and not just rely on statutory noise when considering whether they can, or should, act.
The landlord’s records show one of its operatives noted in July 2022 that there was poor sound insulation between the flats. In October 2022 the council’s noise and nuisance team told the landlord they discovered the building was poorly insulated and both residents could hear everything done in each flat. No evidence was provided to show the landlord investigated these concerns about the sound insulation and whether it could do anything to mitigate this. This was not proactive or customer focused.
In the landlord’s correspondence with this service, it cited Baxter v Camden (1999) and said there was no obligation on landlords to sound-insulate their properties above the standards required at the time of construction. Although this is true, the Ombudsman’s spotlight report on noise highlighted that some landlords are taking initiatives to insulate the walls between flats that were built when the regulations did not require the walls between properties to be particularly thick. Especially when they were constantly handling reports of normal household noise. Not only would this help improve the lives of residents, but it would also reduce the number of complaints the landlord had to handle.
In June 2022 the resident raised concerns that the carpet had been removed from the upstairs flat. Due to the personal circumstances of the neighbour, the landlord did not get a chance to investigate this or carry out an inspection of the upstairs flat before she left in August 2022. In the landlord’s stage 2 response dated 4 August 2023 it told the resident the council would review the flooring in the upstairs flat under its void process. This was reasonable as the upstairs flat had remained unoccupied for a significant period, and therefore the resident was not being impacted by any noise. However, no evidence was provided to this service this was done, or that the landlord followed this up and updated the resident.
In summary the landlord responded to the resident’s reports of noise nuisance within its target timescale. It communicated well with the resident and the councils noise team. However, it failed to adhere to the promises it made in its stage 2 response. The landlord has not shown it has learnt from this complaint as its records show the resident has continued to report noise nuisance from his new neighbours and raised concerns about wooden flooring in the upstairs flat.
Based on the above, there was service failure with the landlord’s handling of the resident’s concerns about noise from the flat above him.

The landlord’s handling of the resident’s concerns that the position of the hot water pipes in the flat above him was causing his property to overheat

The landlord told this service it does not have a policy relating to excessive heat; however, it follows Building Regulations and guidance issued on the public heath website.
Between June and August 2022, the resident told the landlord 3 times his neighbour’s heating was causing his flat to overheat and it was affecting his health. The landlord’s records show it responded to the resident within a reasonable time on each occasion. It also contacted the neighbour to discuss their use of the heating and the impact it was having on the resident.
No evidence was provided to this service that the landlord carried out any inspections of the neighbour’s heating system or whether there was excessive heat in the resident’s flat. The landlord told this service that it failed to act on a report to its repairs team and the resident was instead referred back to the resident services officer. The landlord acted inappropriately by failing to investigate whether it had any repairing obligations or consider if there was any action it could take to help alleviate the resident’s concerns.
In the landlord’s stage 2 response dated 4 August 2023 it told the resident that any issues with the neighbouring flat’s heating system would be addressed in the council’s void process. There was no evidence the landlord asked the council’s void team to inspect the heating system or that it provided an update to the resident. The landlord acted inappropriately by failing to carry out the actions it promised in its stage 2 response.
The landlord told the resident it was unlikely to move the heating system in the upstairs flat unless it was absolutely necessary as the cost would be too high. It was appropriate for the landlord to manage the resident’s expectations. As a registered provider of social housing, the landlord has an obligation to ensure it manages public funds efficiently, effectively and to ensure that value for money is obtained from public investment in housing.
The landlord inspected the neighbouring flat’s heating system on 13 June 2024, this was 2 years after the resident reported the issue. This was an unreasonable delay. However, the upstairs flat was empty for most of this time and therefore the resident was not impacted by the heating. The operative confirmed that the heating system was working correctly, and the temperature within his flat was within a normal range. It provided suggestions to the resident to improve the ventilation in the property. Which included removing the heat shields he had placed on the ceilings, removing the tape that was blocking his vents, and opening the windows.
In summary there was a significant delay in the landlord investigating the resident’s concerns about excess heat. The landlord failed to acknowledge the delay in its complaint responses. Although it attempted to put things right, it showed no learning from this complaint as failed to carry out the actions it promised in its stage 2 response. And the landlord only carried out an inspection after this service made an evidence request for this investigation.
Based on the above, there was service failure with the landlord’s handling of the resident’s concerns about noise from the flat above him.

The landlord’s complaints handling

The landlord operates a 2 stage complaints process. Its complaints policy states it will acknowledge a complaint within 3 working days and respond to stage 1 complaints within 15 working days, and stage 2 complaints within 25 working days.
The resident made a complaint to the landlord on 14 April 2023. The landlord acknowledged the complaint on 18 April 2023, which was within its 3 working day target timescale. It acted appropriately by contacting the resident to discuss the complaint before issuing its response.
The landlord issued its stage 1 response on 26 April 2023. This was within its target timescale of 15 working days. The landlord investigated the resident’s main complaint issues. However, it failed to address the resident’s concerns about noise and that carpets had been removed in the upstairs flat. The landlord acted inappropriately by failing to resolve the complaint at the earliest opportunity.
This service asked the landlord to escalate the residents complaint on 21 June 2023 and chased an update on 20 July 2023. The landlord acknowledged the escalation on 3 August 2023, this was outside its target timescale of 3 working days. There was no evidence the landlord contacted the resident to discuss the complaint or the outcome he wanted before issuing its response. This was not customer focused. The landlord failed to effectively communicate with the resident and manage his expectations.
The landlord issued its stage 2 response on 4 August 2023, this was within its target timescale of 25 working days. The landlord addressed all the resident’s complaint issues within its response. The Ombudsman’s complaints handling code (Code) states that landlords should manage residents’ expectations when it feels a desired outcome is unreasonable or unrealistic. Although the landlord attempted to do this, the tone and language used in its stage 2 response was not empathetic to the resident’s concerns or situation. The landlord must ensure its complaint handlers are able to act sensitively and fairly and are trained to effectively communicate with distressed and upset residents.
In summary the landlord failed to address all the resident’s complaint issues in its stage 1 response. There was a delay in it escalating the complaint to stage 2, and the language and tone of its stage 2 response was not empathetic to the resident. The landlord failed to acknowledge these failings in its complaint responses.
Based on the above, there was service failure with the landlord’s complaints handling.

Determination

In accordance with paragraph 41.d. of the Housing Ombudsman Scheme, the landlord’s handling of the residents concerns about the council’s allocations process is not within the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the residents concerns of inappropriate staff conduct.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the residents concerns about noise from the flat above him
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the residents concerns that the position of the hot water pipes in the flat above him was causing his property to overheat.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s complaints handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord must:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident £250 compensation. This is broken down as:
  1. £50 for the distress and inconvenience caused to the resident by the landlord’s handling of the residents concerns about noise from the flat above him.
  2. £100 for the distress and inconvenience caused to the resident by the landlord’s handling of the residents concerns that the position of the hot water pipes in the flat above him was causing his property to overheat.
  3. £100 for the distress and inconvenience caused to the resident by the landlord’s complaints handling. All compensation should be paid directly to the resident, and not offset against any rent arrears.
Inspect the flooring in the flat above the resident. If the carpets have been removed and hard flooring is present, the landlord should consider signposting the neighbour to funding for carpets and rugs. If laminate flooring has been laid without permission, the landlord must consider what action it will take in line with its conditions of tenancy document. It must notify the resident of the outcome within 2 weeks of the inspection.

Recommendations

The landlord should consider investigating whether there is any action it can take to improve the sound insulation between the resident and the upstairs flat.
The landlord should consider whether it would be beneficial to set up a single point of contact for the resident to report issues to.
It is recommended the landlord considers reviewing its staff’s training needs to ensure all relevant officers respond to formal complaints appropriately. It’s responses must address all issues raised by the resident. It should ensure all relevant officers do so in an efficient and timely manner, and in accordance with its relevant policies and procedures and the Code.