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Thurrock Council (202322101)

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REPORT

COMPLAINT 202322101

Thurrock Council

30 August 2024

 

Updated 23 December 2024 following review


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. This complaint is about how the landlord handled the resident’s reports of:
    1. Noise nuisance.
    2. Cigarette smoke from her upstairs neighbour’s property entering her property.

Background

  1. The resident is a secure tenant of the landlord. The property is a 2-bed flat within a high rise block of flats.
  2. The resident reported noise nuisance and cigarette smoke to the landlord from 5 May 2023 onwards. She said there was significant noise from a child running, jumping, throwing things, and slamming doors throughout the day and night, and that there was constant cigarette smoke from the flat above which was going into her property. She made a complaint to the landlord on 31 July 2023, and again on 28 August 2023.
  3. The landlord has not provided a copy of a Code-compliant stage 1 response. When asked for a copy of its stage 1 response, it provided an email response to the resident’s local councillor dated 7 September 2023. It issued a stage 2 response on 22 November 2023. It said the property above was owned by a leaseholder, and there was nothing in the lease which specified hard floor coverings were not allowed. It said it could not therefore make the neighbour install soundproofing. It said there were some enforcement tools available, but only if statutory nuisance could be proved. It explained the process would not be quick, and would require ongoing evidence from the resident. It said it had not received any recent evidence, so was not upholding the resident’s complaint.
  4. The landlord issued a subsequent stage 1 response on 18 December 2023, and a further stage 2 response on 19 January 2024. It said there was no law prohibiting other residents smoking in their property, that the neighbour denied any smokers lived in their property, and that there was no smell of cigarette smoke when it recently visited the neighbour’s property.
  5. The resident was dissatisfied with the landlord’s response, so referred her complaint to the Ombudsman. 

Assessment and findings

Scope of the investigation

  1. The landlord is a local authority. Paragraph 5 of the Housing Ombudsman Scheme gives the Ombudsman the power to investigate local authority social landlords only as far as the issues relate to the management or provision of social housing. The resident has referred in correspondence to local authority enforcement action for smoke or noise nuisance. This is not part of the landlord’s housing management function, so the Ombudsman cannot consider any local authority enforcement action as part of its investigation. Complaints about the local authority’s actions which fall outside of its housing management function would be for the Local Government and Social Care Ombudsman (LGSCO) to determine.
  2. Paragraph 42(a) of the Housing Ombudsman Scheme says the Ombudsman will not investigate complaints which have not yet exhausted the landlord’s internal complaints process. The resident has made reports of noise nuisance after her complaint, and told the Ombudsman that the issues are ongoing. Those issues have not completed the landlord’s internal complaints process, and as such cannot be considered as part of this investigation. This investigation can only consider the landlord’s actions up to the point of its stage 2 response.
  3. The resident has also referred to the effect the noise had on her health. The Ombudsman is unable to draw conclusions on the causation of, or liability for, any impact on health and wellbeing. However, the Ombudsman will consider any general distress and inconvenience any failings by the landlord may have caused the resident.

Policies and procedures

  1. The landlord has not provided the Ombudsman with copies of any relevant policies or procedures related to noise nuisance or other antisocial behaviour. Its website says it considers noise nuisance to be antisocial behaviour. The website also says everyday living noise and people smoking in their own homes would not be considered antisocial behaviour unless it was also a breach of the person’s tenancy agreement.

Assessment – noise

  1. The purpose of this investigation is not to determine whether noise nuisance has occurred, as that is not within the Ombudsman’s remit. However, the Ombudsman can assess whether or not the landlord responded appropriately and reasonably to the resident’s reports, taking into account all the circumstances of the case.
  2. The resident reported noise from her upstairs neighbour on 5 May, 19 May and 1 June 2023. She said the noise included the neighbour’s child running, jumping, and slamming doors in the early hours of the morning. She said she and her children were unable to sleep as a result of the noise. The landlord responded via email on 10 May 2023 and also called the resident on 2 June 2023 to offer advice, as well as signposting to Environmental Health and the police. The landlord also offered to visit the resident on 6 June 2023 as well as visit the neighbour.
  3. When a landlord receives reports of noise nuisance, it is required to investigate those reports. This may include speaking to any witnesses, reviewing incident diaries, and liaising with other agencies where appropriate. After reviewing the evidence gathered, the landlord would then determine the most appropriate action on a case-by-case basis. In practice, the options available to a landlord to resolve a case of noise nuisance can be extremely limited, especially where the individual being reported is a leaseholder rather than a tenant of the landlord, and may not extend to the resident’s preferred outcome. It is therefore important to consider whether the landlord’s response was reasonable based on the evidence available.
  4. While it is not disputed that the resident reported noise issues in May and June 2023, the landlord has provided no evidence of those reports (the resident has provided the relevant evidence), of opening an antisocial behaviour case, or of requesting any further information such as diary sheets from the resident to assess what action, if any, it would be able to take. These are the most basic first steps involved in dealing with reports of noise nuisance, and in the absence of such evidence, the Ombudsman can only conclude that the landlord took no action prior to 8 June 2023, which was just under a month after the resident’s first reports. Whilst the landlord responded and spoke to the resident shortly after her initial reports, it essentially only signposted her and took no responsibility upon itself to further investigate her concerns. This was inappropriate.
  5. On 8 June 2023, the landlord visited the upstairs neighbour to discuss the noise. Following that visit, the landlord updated the resident and advised that the neighbour had promised to keep the noise down. It asked the resident to let it know if the noise continued after that day. This was a reasonable step to take to resolve the noise nuisance, though one that should have been taken sooner.
  6. The resident next contacted the landlord on 20 June 2023. She said she understood she would have to live with the noise of children running around during the day, but there was unreasonable noise throughout the night during the previous 3 nights which prevented her and her children from sleeping. The landlord has provided no evidence of responding to this report, and its failure to respond was unreasonable.
  7. The resident next reported noise on 31 July 2023. She said she had used an app to record the noise, and that it regularly reached 100-120 decibels. She said the noise went on for hours at a time, and was affecting her health. In response, the landlord hand delivered letters to all residents of the block asking them to keep noise down and be mindful of their neighbours. It told the resident’s local councillor that it would speak to the local authority environmental protection and antisocial behaviour teams to arrange noise monitoring equipment, and that the resident had agreed to keep a note of dates and times she experienced the noise.
  8. The landlord has not provided the Ombudsman with any evidence of attempting to speak to the relevant teams, or attempting to source noise monitoring equipment following that contact with the local councillor. The resident also told the Ombudsman on 29 September 2023 that the landlord never contacted her about the noise monitoring equipment after promising to do so. In the absence of that evidence, the Ombudsman can only conclude that the landlord took no further action, which was unreasonable.
  9. The Ombudsman acknowledges that, as the owner of the property above is a leaseholder rather than the landlord’s tenant, the options open to the landlord to resolve reported noise nuisance were extremely limited. The landlord also took a number of reasonable steps such as arranging visits to the neighbour to discuss the noise, delivering letters about noise to the block, and assessing whether there were any terms in the neighbour’s lease about permissible types of flooring that it could attempt to enforce.
  10. However, the steps it took were unreasonably delayed, with no evidence of a good reason for those delays. It has also not demonstrated any proactive attempts to gather evidence or to manage the resident’s expectations. While the landlord said it requested diary sheets from the resident and she did not provide any, it has provided no evidence of requesting them prior to its stage 2 response. It also promised to attempt to obtain noise recording equipment, but has provided no evidence of taking steps to do so. It has not shown it carried out any risk assessment, or assessed whether there were any alterations it could make to the resident’s property to reduce noise transference when it concluded it could not do anything about the neighbour installing wooden flooring.
  11. Overall, the Ombudsman finds there has been maladministration with regard to the landlord’s handling of the resident’s reports of noise nuisance. The Ombudsman has therefore considered what the landlord needs to do to put things right.
  12. In this case, the landlord caused a number of avoidable delays. It then failed to contact the resident regarding noise recording equipment after promising to try to arrange it during the complaints process, leaving the resident feeling that her reports had been ignored. The Ombudsman has not seen any evidence which suggests that the overall outcome of the noise reports would have been different had the landlord taken steps to investigate sooner, as the evidence it received after attempting to take action was insufficient for it to take further action. However, the Ombudsman does consider that the landlord should pay the resident compensation for the distress and inconvenience caused.
  13. It is apparent that the reported noise has caused the resident a significant amount of distress, and that she felt that nothing was being done to help her. The landlord is not responsible for the actions of neighbours, and is only responsible for its own actions surrounding the reports. As such, the Ombudsman would not expect a landlord to compensate a resident for the actions of their neighbours, but for distress and inconvenience directly caused by any failings in how it handled the resident’s concerns.
  14. Based on the evidence provided, there were around 5 months of avoidable delays on the landlord’s part by the time it issued its stage 2 response. Taking into account all of the circumstances of the case, the Ombudsman considers that the landlord should pay the resident £350 compensation for the distress and inconvenience caused by the failings identified in this determination. This is in line with the Ombudsman’s published remedies guidance for failures which adversely affect a resident, and where a landlord has not acknowledged its failings or done enough to put things right. 

Assessment – cigarette smoke

  1. The resident said her upstairs neighbours smoked, and that the smoke travelled into her property. Following the resident’s reports in May 2023, the landlord visited the upstairs neighbour on 8 June 2023. The occupier of the property denied that anyone in the property was a smoker, and the landlord told the resident the outcome of the visit.
  2. The Ombudsman does not dispute that cigarette smoke may well travel from the upstairs flat into the resident’s flat via the windows, as she reported in her complaint, and that the resident may well find this distressing. However, it is not within the remit of this Service to determine whether or not her neighbours smoke. We would only consider whether the landlord acted appropriately and in line with its obligations.
  3. Someone smoking in their own home is an everyday activity which would not constitute antisocial behaviour. As such, the landlord does not have any obligation, as part of its housing management function, to stop owner-occupiers of adjacent flats from smoking in their homes. Notwithstanding the lack of obligation to do so, the landlord chose to visit the neighbour with a view to resolving the issues the resident was experiencing. This was reasonable, and the resident told the landlord the visit had stopped the neighbours smoking in their property between June and September 2023.
  4. When the resident told the landlord in October 2023 that she thought the window seals contributed to smoke entering her property, the landlord arranged for a contractor to inspect the windows for any defects. The operative told the landlord that there were no window defects, and no repairs were needed. The landlord is entitled to rely on the opinion of its contractors, and it was reasonable for the landlord to conclude based on that advice that there was not a building defect causing cigarette smoke to enter the resident’s property. The landlord then appropriately explained in its stage 2 response that other residents are entitled to smoke in their homes, that it had spoken to the neighbour again but seen no evidence of smoking, and that there was no evidence of defects with the windows.
  5. Having considered all of the above, the Ombudsman finds there has been no maladministration with regard to the landlord’s handling of the resident’s reports of cigarette smoke from her neighbour’s property.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration with regard to the landlord’s handling of reports of noise nuisance.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been no maladministration with regard to the landlord’s handling of reports of cigarette smoke from her upstairs neighbour’s property entering her property.

Orders

  1. Within 4 weeks of the date of this report, the landlord is ordered to:
    1. Issue a written apology to the resident for the failings identified in this report.
    2. Pay the resident £350 compensation for the distress and inconvenience caused by its handling of her reports of noise nuisance.
    3. Assess whether there are any changes it could make to the property to reduce the impact of noise transference from the property above. It must then write to the resident to set out the outcome of that assessment within the same timescale. If it concludes there are no steps it can take, it must also confirm whether or not it is able to offer the resident any rehousing options given the reported impact the noise has on her daily life.
    4. Contact the local authority’s antisocial behaviour team and environmental health as promised in its contact with the resident’s local councillor to determine what multi-agency support or noise recording equipment, if any, can be arranged. It must confirm to the resident that it has done so within 4 weeks of the date of this report, and provide her with an update on any support it can offer as a result within 6 weeks of the date of this report.
  2. The landlord is to write to this Service to provide evidence of compliance with the above orders within the timescales set out above.