Tower Hamlets Homes (202341099)

REPORT

COMPLAINT 202341099

Tower Hamlets Homes

24 June 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:
1. The landlord’s handling of the resident’s reports of noise from the property above hers.
2. The landlord’s handling of the resident’s complaint.

Background

The resident is a tenant of the landlord, which is a local authority. The local authority employed an arms length management organisation (ALMO) to manage its housing services at the time of the resident’s complaint. The resident has complained of noise from the bedsit above hers, which is a leasehold property that is sublet. The resident communicated with the landlord herself, and via a representative. Both will be referred to as “the resident” in this report.
The Ombudsman, as part of a previous case involving similar issues of noise, recommended that the landlord re-inspect the property above following the resident’s concerns that carpet had been placed on top of the laminate in the neighbouring property and that there were continuing issues of noise in June 2021. The landlord investigated the resident’s concerns at the time, and it was found that the laminate was in place under the carpet. It asked the leaseholder to remove this and completed an inspection on 21 July 2021 to confirm that the laminate had been removed.
The resident continued to report noise from the property above and continued to submit diary sheets to the landlord, noting noise related to her neighbours walking around loudly, slamming doors and windows and banging and dropping items on the floor, primarily between 11pm and 3am. The landlord referred the resident to victim support and the referral was refused at the time. It also enquired with the local authority’s Environmental Health department (EH) regarding noise monitoring equipment. EH said they did not install equipment for household noise that was not a statutory noise nuisance at the time.
Between July 2021 and the resident’s formal complaint in July 2022:
1. The resident requested a review of the landlord’s handling of her reports under the community trigger. EH declined her request and said the landlord had taken reasonable steps to investigate her concerns. EH referred the resident to victim support as part of its investigations. It also recommended that the landlord refer the resident and her neighbours to mediation. She appealed this decision and EH did not uphold the appeal. The process was completed on 8 September 2021.
2. A joint inspection involving both the landlord and EH took place in August 2021. Several tests were completed to recreate the noise the resident had said she experienced, including hoovering, walking, and slamming of doors and windows. EH concluded that any noise heard was not loud or excessive and would not cause statutory noise nuisance late at night.
3. The resident provided EH with recordings in September 2021 and between 21 and 29 October 2021, EH installed a sound level meter to record noise. In November 2021, EH confirmed that it had found no evidence of statutory noise nuisance and that it would not take any further action. It advised the resident that she could consider taking her own action under the Environmental Protection Act 1990.
4. EH reviewed the recordings at the resident’s request and confirmed on 3 December 2021 that there was no evidence to suggest a statutory noise nuisance. It further explained in January 2022 that while there were some low-level intermittent sounds within the recordings, these were not at a level to constitute a statutory noise nuisance, confirming that its case was closed.
5. The resident informed the landlord of the findings of EH, advising that the noise established during the night put her neighbour’s assertions that they did not make noise at night into dispute. She asked that the matter was treated as ASB by the landlord.
6. On 5 January 2022, the landlord said its anti-social behaviour (ASB) case would be closed as there had been no evidence of alleged noise nuisance. The resident disputed this and maintained that the matter should be dealt with as ASB in view of the impact this had on her mental health, sleep, and wellbeing.
7. The landlord referred the resident and her neighbours for mediation in January 2022. This took place in March 2022.
8. The resident pursued her concerns with her local councillor and the communication records indicate that a concern was raised regarding overcrowding in properties in the building which could lead to increased noise.
The resident raised a formal complaint on 26 July 2022 via a local councillor. She explained:
1. She had not heard from the landlord or EH and she had had trouble raising a complaint due to health issues. She had reported the issues to the police who suggested that the landlord may have interpreted the law incorrectly. The police said they would contact the landlord, but she had not heard anything further.
2. She was dissatisfied that the landlord had indicated that she may need mental health support on more than one occasion, suggesting she speak to her GP and seek a referral to a psychiatrist. She assumed that the landlord believed her to be the problem, not the continued noise issues.
3. The neighbours were now making more noise in the morning around 8am, although this varied. She had applied for priority rehousing but had not heard anything further.
The landlord issued its stage 1 response on 8 August 2022. It explained the actions it had taken since April 2021. It reiterated that EH had not found evidence of a statutory noise nuisance and explained that everyday household noise would not be considered ASB and reiterated that she may wish to take her own action as advised by EH. It noted the impact the resident had said the noise was having on her mental health, and it had also been contacted by the resident’s support worker. As a result, it had attempted to refer the resident to victim support, however, the referral was declined as it was normally victims with cases involving elements of crime that victim support accepted. This was the reason it had suggested the resident approach her GP for support. It confirmed that it had not been contacted by the police and that the resident’s housing application would be dealt with by the local authority’s lettings team who would be able to provide further advice.
The landlord contacted the resident on 17 August 2022 to confirm whether the complaint had now been resolved. The Ombudsman has not seen further evidence of communication between the parties following this until June 2023.
The landlord acknowledged that the resident had made a report of noise nuisance in June 2023. The resident said that the situation was like before, but worse as the neighbour’s child was older and more active, and the neighbours had anther child now. She said that the noise was continuous from 11pm to 5am which impacted her sleep. The landlord confirmed that it needed to investigate and contact the neighbours. The resident continued to provide diary sheets to the landlord.
The resident asked for her complaint to be escalated on 4 August 2023 and explained:
1. She had severe mental health and physical health problems that had been exacerbated by her living conditions and that the sleep deprivation made matters worse. She also advised that she had a disorder which meant that she put off doing things that were emotionally upsetting and did not feel she received the correct support which was part of the reason for the delay in her escalating the complaint.
2. That the stage 1 complaint response was sent to her representative and not her, and the initial response repeated her claims and dismissed them without considering what she had said about how the noise was impacting her. The landlord had also ignored that EH had said that there was noise coming from the upstairs property.
3. She did not feel the advice to take her own action was reasonable in view of her mental and physical health difficulties. She also noted the financial implications and that this would be impossible.
4. The police had now contacted the landlord twice but had received no response.
5. She did not agree that the noise was not a statutory noise nuisance as the noise was impacting her mental health to a point where she needed to call a crisis line.
6. She attached the communication she had initially sent to her councillor regarding her concerns which outlined her experience, including that she felt that there had been no transparency in how the landlord and EH reached their conclusions, and concern about why she was not given advice to record the noise, or offered support, at an earlier stage. She also raised dissatisfaction about how the noise tests were carried out by the landlord and EH, noting that she was not given an action plan or a report.
7. She remained dissatisfied that the landlord had closed the ASB case without offering her any other guidance or advice, and that she needed to push for the referral to mediation which had previously been recommended. She also noted that the neighbours lied about not making noise at night and felt they were getting away with it.
The landlord made the managing agent of the property above aware of the noise allegations in August 2023. It later confirmed to the resident in September 2023 that it had discussed the allegations with the managing agent and the neighbours had denied all knowledge of the allegations but had been reminded to be mindful of noise. It confirmed that it was also in touch with its leasehold service regarding the number of occupants in the property above. The landlord also made a safeguarding referral for the resident in October 2023 given her reports of how the noise was impacting her mental health.
The landlord issued its stage 2 complaint response on 2 November 2023 and apologised that its stage 1 complaint response had been sent to her representative rather than her directly. It noted it had been communicating with the resident since June 2023 regarding further reports of noise and that it and EH had not previously been able to establish a statutory noise nuisance. It had contacted the managing agent of the upstairs flat to inform them of the allegations made. The neighbours had denied the allegations of noise disturbances, but they had been reminded to be mindful of noise, particularly at night. It was in the process of allowing the resident to use its noise app to allow her to record noise. If there was further evidence of noise that required investigation, it would take appropriate action.
Following the complaint, the resident continued to submit noise recordings via the landlord’s noise app, however, the landlord confirmed in November 2023 and January 2024 that the recordings were not sufficient evidence of noise nuisance from the property above.
The resident referred her complaint to the Ombudsman in February 2024 and noted the impact the noise was having on her mental health and wellbeing. She said that she did not feel supported by the landlord and there had been a lack of action or empathy. She did not feel the landlord had taken her concerns seriously and had denied that there were issues to be resolved which had also impacted her mental health.

Assessment and findings

Scope of investigation

In line with paragraph 42(l) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which seek to raise again matters which the Housing Ombudsman, or any other Ombudsman, has already decided upon. The resident raised similar concerns of noise from her upstairs neighbours in a case determined by the Ombudsman under reference 202005008. This report will not seek to reinvestigate matters previously determined within that case.
In view of the time periods involved in this case, considering the availability and reliability of evidence, this assessment does not consider any specific events prior to July 2021, 12 months before the formal complaint was made. The historical issues provide contextual background to the current complaint, but the assessment focuses on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in July 2022.
The resident has also raised concern about how the local authority’s noise team had handled her concerns of noise. The Local Government and Social Care Ombudsman (LGSCO) considers complaints about local authorities’ wider activities, for example how it handles reports of statutory noise nuisance to its Environmental Health (EH) Service. The actions taken by the local authority’s EH Service or noise team is not within the Housing Ombudsman’s jurisdiction to consider. The resident may wish to raise her concerns directly to EH if she remains dissatisfied with its handling of her concerns and raise a separate complaint with the LGSCO if she remains dissatisfied after exhausting the local authority’s formal complaints process.
The resident has advised that the ongoing issues with the noise nuisance have impacted her health. The Ombudsman does not doubt the resident’s comments about her health, but we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Therefore, we cannot consider whether the resident’s health was affected by any action or inaction by the landlord. 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 resident’s reports of noise

It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to her reports of noise from the neighbouring property. The role of the Ombudsman is not to establish whether the noise reported was occurring or not. Our role is to establish whether the landlord’s response to the resident’s reports of noise was in line with its legal and policy obligations and whether its response was fair in all the circumstances.
In line with its antisocial behaviour policy, the landlord considers noise nuisance, other than general living noise, as antisocial behaviour (ASB). It would be expected to take steps to gain evidence of the alleged behaviour using diary sheets or noise monitoring equipment where possible to support it in taking action. Actions where there is evidence of noise could include informal warnings, offering mediation between parties, or formal steps including formal warnings, eviction or legal proceedings.
It is noted that in this case the property above was sublet by a leaseholder. The landlord would ultimately be limited in the action it could take against the tenants directly as its contractual relationship was with the leaseholder of the property above. The Ombudsman notes that the landlord had historically taken steps to inform its leaseholder of the actions of their tenants (the resident’s neighbours) and asked them to remove the laminate flooring in the property above to minimise the impact of noise transference on the resident. It is evident that there was a delay in the laminate flooring being removed which may have impacted the resident, however, this was confirmed as completed in July 2021, a year prior to the resident’s formal complaint.
The Ombudsman has seen evidence that the landlord tried to support the resident prior to EH’s involvement by attempting to refer her to victim support in view of her concerns about the impact of the noise on her but this was denied at the time. It had also made enquiries with EH about the possibility of installing noise monitoring equipment, but this was also declined at the time. This was outside of the landlord’s control, and it was not unreasonable for the landlord to advise the resident to seek support through her GP in view of the impact she said this matter was having on her health.
The resident continued to report noise issues such as hoovering, stomping, items being dropped, and windows and doors being closed from her neighbour’s property at night. It should be noted that landlords cannot reasonably be expected to take formal action against tenants or leaseholders for noise that is considered domestic or everyday household noise; however, if a noise is confirmed as excessive, or constituting statutory noise nuisance, then both the landlord and EH may be able to warn and take formal action.
The landlord acted reasonably in this case by engaging with EH’s investigations and providing information where requested into the actions it had taken in response to the resident’s reports of noise. It was reasonable for the landlord to allow EH to take lead on the investigations as EH are responsible for determining whether the noise experienced met the threshold to be considered a statutory noise nuisance.
In this case, following investigations by EH between August 2021 and January 2022, EH determined that there was no evidence of a statutory noise nuisance which would support it in taking further action. While it is noted that the resident disputes this, this would fall under EH’s responsibility to determine, not the landlord’s. The landlord was entitled to rely on the findings of EH when determining that there was no evidence of a statutory noise nuisance.
It is noted that EH made no specific recommendations to the landlord regarding actions that should be taken, other than stating that it would make a recommendation for the landlord to refer both the resident and her neighbour for mediation on 16 August 2021. It remains unclear as to when this recommendation was made to the landlord directly, however it is noted that the resident had said the referral was not made until November 2021.
It is noted that following the referral, mediation was confirmed as being carried out until March 2022. Ultimately, once the referral was made, any subsequent delay would have been outside of the landlord’s control. It is noted that the resident felt that mediation was unsuccessful and had not helped resolve the issues, however, mediation can be a useful tool to resolve neighbour disputes and it was ultimately reasonable for the landlord to make the referral following EH’s recommendation. It would have been appropriate for the landlord to have addressed her concern about the delay in its stage 2 complaint response given that the resident had specifically raised this issue within her complaint escalation.
Given that there was no statutory noise nuisance found by EH, the landlord was limited in the steps it could take as it could not take formal or enforcement action against the leaseholder of the property above without evidence of a statutory noise nuisance. It is, however, noted that the resident had asked the landlord to consider her reports as ASB by the neighbours on 4 January 2022 and the landlord, in response, closed the ASB case. Despite the resident asking why the matter would not be considered ASB in view of the impact the noise was having on her, the Ombudsman has not seen evidence that the landlord offered any further clarity to the resident at the time.
It is evident that the resident was dissatisfied that her neighbours had denied making noise at night and stated that their assertions were in dispute after EH had established that there was some low-level noise at night. The Ombudsman would have expected to see evidence that the landlord had clearly explained any limitations in the actions it was able to take to the resident and explain why confirmation of low-level noise would not be sufficient in supporting it taking further action in order to manage her expectations.
While it confirmed that everyday household noise would not be considered as ASB within its stage 1 complaint response on 8 August 2022, it could have done more to communicate why it would not consider taking any further action, explain any limitations at the time and why it believed its advice to consider taking her own action was reasonable.
Ultimately, however, there was no clear evidence of excessive noise, despite the investigations into the matter, and it was therefore reasonable that the landlord did not take further action against the neighbour at the time. It is noted that there was then a significant gap of 10 months with no evidence of communication during this time. It was reasonable that no further investigations were carried out by the landlord during this period as it had not been made aware of any ongoing issues.
Following the resident’s further reports of noise on 7 June 2023, the landlord acted reasonably by acknowledging the resident’s reports and asking her to complete diary sheets to obtain evidence of the alleged noise. It also took reasonable steps to contact the resident. In view of the reported issues, it was appropriate for the landlord to contact the managing agent of the above property to make them aware of the allegations in August 2023. It also acted reasonably by completing a safeguarding referral in view of the resident’s comments regarding her mental state in October 2023.
As the upstairs neighbour had denied making excessive noise, the landlord would require sufficient evidence of the noise to support it taking further action. It was therefore reasonable for the landlord to provide the resident with access to its noise app to gather evidence. As above, as the occupants of the other property had denied making noise, the landlord would need sufficient evidence of a noise nuisance to support it in taking further action. It would not be reasonable for the landlord to issue warning letters to the leaseholder regarding their tenants’ behaviour or take formal action without strong supporting evidence.
It is evident that the landlord had some concern about the number of occupants in the property above following the resident’s comments that the neighbour had more children than before which was impacting the level of sound heard. The evidence shows that it had made the managing agent aware of this concern, and it informed the resident on 21 September 2023 that it was in contact with leasehold services regarding the number of occupants residing in the property. While the landlord may have been limited in the information it was able to share with the resident regarding another person’s tenancy or lease, it could have done more to communicate with the resident regarding realistic action it could take to manage her expectations on the most likely outcome.
The Ombudsman notes that the landlord failed to consider either how it had communicated with the resident or her concerns about the “lack of transparency” in its actions within its subsequent complaint response following her escalation. The Ombudsman has seen evidence of similar communication issues following the landlord’s final complaint response in November 2023. For example, it is evident that the resident was seeking clarity on the amount of information that she needed to provide and how she could “substantiate” that the noise was from the upstairs property following the landlord’s comments that the recordings were insufficient evidence. Again, the landlord could have provided clear, transparent information regarding any limitations it faced. This demonstrates that it failed to learn from the complaint to improve the service it provided moving forward.
The Ombudsman notes that the ASB case was closed in January 2024 due to evidence the landlord received via the noise app which had suggested that the noise was being made deliberately from the resident’s property. The resident asked for this to be reviewed, however, the Ombudsman has not seen the outcome of the review.
In summary, the Ombudsman has found service failure in the landlord’s handling of the resident’s reports of noise nuisance from her upstairs neighbour. While it is evident that the situation has been distressing for the resident, there were limited steps the landlord could take to address her concerns without evidence to show that the noise was excessive or a statutory noise nuisance. However, the landlord did not communicate this effectively to the resident or provide clear information about the realistic action it could take or the likely outcomes of any investigations to manage her expectations. This was likely to have added to the resident’s frustration and cause inconvenience.

The landlord’s handling of the resident’s complaint

The resident initially raised her complaint via her councillor which was sent to the landlord on 26 July 2022. The landlord sent its stage 1 complaint response on 8 August 2022 which was within 10 working days and considered reasonable. The response was sent to the resident’s representative, for which the landlord apologised in its subsequent stage 2 complaint response. It is, however, noted that the landlord contacted the resident directly on 17 August 2022 to confirm whether it had adequately resolved the complaint and the resident would have had the opportunity to reply at the time had she not received the response directly.
The resident asked for her complaint to be escalated on 4 August 2023, almost a year later. It was reasonable given the resident’s reports of struggles with her mental health for the landlord to accept the complaint at stage 2 despite the significant timescale since its initial response. The landlord issued its stage 2 complaint response on 2 November 2023, which was a period of 64 working days.
The landlord somewhat managed the resident’s expectations that there would be a delay in issuing its stage 2 complaint response on 25 August 2023 when it acknowledged her escalation. At this stage, it confirmed that the delay was the result of a staffing shortage and it aimed to respond in 30 working days. The Ombudsman has not seen any further evidence to confirm that the resident was updated as to when she would receive a response which was likely to have caused inconvenience, and the landlord issued its response a significant time later than the 30-working day period provided. While the landlord apologised for the delay within its response, it would have been appropriate for it to have offered compensation to the resident in view of the inconvenience caused to her.
The Ombudsman expects landlords to address each aspect of a resident’s complaint and set out its position. It is noted that the resident had said, in her stage 2 escalation on 4 August 2023, that the landlord had failed to address each complaint aspect and attached her initial communication to her councillor who had raised the complaint on her behalf. It is noted that the initial complaint raised by the councillor related to a lack of response from the landlord to both her and the police, its suggestion that she needed mental health support on more than one occasion, ongoing noise issues and her housing application.
The landlord addressed these aspects within its stage 1 complaint response and there is no evidence to suggest that it had been informed of the other concerns the resident had raised directly to her councillor. It is evident, however, that this information was provided to the landlord within the escalation and it would have been appropriate for it to have acknowledged and addressed the other aspects raised, and to have confirmed its position if it was not the correct department to address her concerns (where her concerns related to EH’s handling of her reports) to more fully resolve the complaint through its internal complaints process.
The landlord’s stage 2 complaint response failed to demonstrate that it had fully considered the resident’s escalation request, including the communication she had previously sent to her councillor. This was likely to cause frustration and inconvenience to the resident who had said that she did not feel her concerns were taken seriously. In view of the above, the Ombudsman has found service failure in the landlord’s handling of the resident’s complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports of noise from the property above hers.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s complaint.

Orders

Within 4 weeks, the landlord is to write to the resident to apologise for the communication and complaint handling failings identified.
Within 4 weeks, the landlord is to pay the resident £150 in recognition of the distress and inconvenience caused by the failings identified.
Within 4 weeks, the landlord is to provide the outcome of the review into her noise reports, if it has not already done so. It should take steps to effectively manage the resident’s expectations regarding action it is able to take and any limitations it faces. It should also confirm whether it is willing to discuss the installation of sound dampeners to the windows and doors of the property above given that these were previously suggested to reduce the noise the resident had experienced.
The landlord is to provide evidence of compliance to the Ombudsman within 4 weeks.

Recommendations

It is recommended that the landlord arranges for the resident to be contacted regarding her housing options given that she has expressed an interest in moving.
It is recommended that the landlord considers carrying out staff training for complaint handlers to ensure that each aspect of a residents complaint is responded to.
The landlord is to confirm its intentions in relation to the above orders within 4 weeks.