Hammersmith and Fulham Council (202204800)

REPORT

COMPLAINT 202204800

Hammersmith and Fulham Council

7 June 2023

Our approach

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

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

The complaint

1. The complaint is about the landlord’s handling of the resident’s reports of noise transference and the request for soundproofing in the property.

Background

2. The resident is a leaseholder. The resident lives in a flat, in a building of similar properties. The building had been converted into flats some time ago however, a specific year has not been provided.
3. In November 2021, the resident reported excessive noise transference between his property and his upstairs neighbour. This included footsteps, conversations and banging. A surveyor attended the property and confirmed that there was wooden flooring in the property above and advised that to reduce any noise carpets would be beneficial. However, there was no suggestion that the noise was excessive. The neighbour laid a carpet on the stairs and put rugs in the property to limit the transference.
4. In January 2022, the resident contacted the landlord again and reported footsteps and voices, no action was taken against the neighbour due to this being deemed habitable noise. A pre-planned inspection took place where the landlord conducted a sound test and reviewed some of the recordings the resident had made. No further action was required to be taken, as the noise was not deemed to be excessive.
5. The resident raised a complaint about this matter in January 2022. The resident stated that the issue surrounding noise transference from his upstairs neighbour had been ongoing since May 2021 and that he was concerned that the noise was breaching legal limits, and was affecting his physical and mental health. The resident further expressed dissatisfaction that despite taking his own recordings, these had yet to be listened to. As a resolution, the resident requested that the landlord soundproof or carpet throughout the upstairs property and for appropriate insulation to be installed.
6. In its complaint response, the landlord stated that it was unable to take any enforcement action against the neighbour as the noise was deemed to be transference and not a nuisance. It further stated that properties of this type were converted a while ago and noise transference was common. In response to these concerns however, it had completed a survey of the upstairs property and completed a noise test where the noise was assessed from both properties. It acknowledged that there was some noise transference, and as a resolution a carpet was laid on the stairs in the neighbour’s property and rugs also put down to reduce this.
7. In conclusion, the landlord stated that during its sound check there was no noise transference which was deemed to be excessive or a nuisance; however, acknowledged that some noise could be heard. In addition, the surveyors report which was completed in January 2022 stated that there were no structural defects to the property, that any noise was habitual and it would be impossible to stop all noise transference. Therefore, the landlord concluded that there were no further actions that could be taken in relation to this matter as it would not be responsible for soundproofing as it would be deemed an improvement rather than a repair.
8. The resident referred this matter to this Service in June 2022. He stated that there had been no improvements in the transference of noise from the property above, and this had continued to cause him distress including affecting his mental and physical health. The resident said that he remained unhappy that the landlord has not completed any formal sound recordings of the noise transference and would like this to be completed as a resolution to his complaint. Following on from this, he would like the landlord to install appropriate underlay to prevent excess noise transmission.

Assessment and findings

Scope of investigation

9. In the resident’s correspondence, he has made reference to historical issues of noise transference in the property dating back to May 2021; however, this was not raised as a formal complaint at this time. Under Paragraph 42(c) of the Housing Ombudsman Scheme, we may not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. This is because as the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues. Therefore, whilst the historical incidents provide contextual background to the current complaint, this assessment focuses on events from July 2021 onward, which is six months prior to the formal complaint being made in January 2022.
10. The resident has also referenced how the noise transference had impacted his mental and physical health. However, in accordance with paragraph 42(g) of the Housing Ombudsman Scheme, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing as the assessment of fairness in such matters requires a level of expertise that the Ombudsman is unable to provide.
11. In his referral to this Service, the resident stated that there was a smell of cigarettes coming through the floorboards of the property above. However, as this is a separate issue to the complaint raised with the Service, this is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and respond to this aspect. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get this matter resolved.

Assessment

12. The landlord is required to maintain the property, but it is not required to make improvements and, if there are no significant health and safety risks, the landlord is entitled to leave the property as it is, without any alterations. The landlord would not ordinarily be required to soundproof the property based on noise transference.
13. Nevertheless, upon receiving persistent noise transference reports the landlord decided to carry out an inspection of both properties to assess the level of noise transference in the building; this was a reasonable step on the part of the landlord, because it demonstrated a willingness to seek to identify ways that noise transference might be reduced.
14. When requested for noise recording equipment to be installed, the landlord informed the resident that there was a waiting list for noise recording equipment, and this would take some time to have installed. When this becomes available, it is recommended that the landlord install this in the resident’s property to further assess any noise transference. Any findings from this should be considered by the landlord in its next steps and communicated with the resident.
15. The landlord’s position that it was not able to compel the neighbour to make changes such as laying carpet was not unreasonable. The landlord took reasonable steps by making the request that she laid carpets in the property or considered other changes to try and improve the reported noise transfer between their property and the resident’s. This was a reasonable step for the landlord to take. However, it is acknowledged that the landlord has informed this Service that the upstairs neighbour was and remains unable to install carpet throughout the property for personal reasons, which the landlord does not have to disclose to the resident. Therefore, the landlord was limited in the actions it could take.
16. It was also reasonable that it considered other ways it could investigate the issue, and subsequently attended both properties with a surveyor to check for noise transfer between properties in the resident and neighbour’s block. After the report concluded that noise transfer levels were within an acceptable level and in line with building regulations, the landlord was entitled to reach its position that any further works would be considered an improvement, rather than a repair or dealing with any “structural fault”.
17. This Service does not dispute that the resident is adversely affected by the noise from the neighbour and that this causes him and his family inconvenience and distress. However, the landlord is not obliged to update or improve the soundproofing at the property. As the leaseholder of the property, it would be open to the resident to ask for the landlord’s consent to install soundproofing himself, if this were a route the resident would like to take.

Determination

18. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s handling of the resident’s reports of noise transference and the request for soundproofing in the property.

Recommendations

19. It is recommended that the landlord continue to monitor the sound transference, and when available, install noise recording equipment in the property.