Epping Forest District Council (202103103)

REPORT

COMPLAINT 202103103

Epping Forest District Council

8 February 2022

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. The complaint is about the landlord’s handling of the resident’s reports of noise disturbance.

Summary of events

2. At the time of the complaint, the resident was a leaseholder of the landlord. The property is a one-bedroom flat. The resident’s lease states that he was required “to keep the floors in the property covered in a manner so as to minimise the transmission of noise arising in the property to other parts of the block.”
3. The landlord has provided a copy of its generic tenancy agreement. This agreement contains the same provision about floor coverings, and adds a further provision, stating that any tenant is “to obtain the Council’s consent before installing laminate flooring or similar in any flatted accommodation.”
4. The landlord is a local authority (LA). It is important to understand that the LA’s environmental health department is independent of and separate to the LA’s housing management and landlord role. The LA’s environmental health department is not in the Ombudsman’s remit to investigate, while the LA’s landlord role is in the Ombudsman’s remit.
5. The resident made several reports to the LA (both the landlord and the environmental health team) about noise coming from his upstairs neighbour’s flat, which he believed was due to them having laminate flooring. Although records of these early reports have not been provided for this investigation, the resident’s later emails to the landlord in June 2021 refer to his view that the landlord had been aware of the problem since February 2021.
6. In an email from the landlord to the upstairs neighbour (dated 9 November 2021), the landlord reminded the neighbour that “Back in February 2021, the neighbourhoods officer advised you that permission should have been sought before putting down the wooden/laminate flooring as per the terms and conditions of your tenancy agreement. She suggested you lay a rug or a mat down in the living room and hallway to minimise the sound, and that she would monitor the noise complaints going forward but if they continued, we may ask you to remove the flooring and replace with suitable flooring/carpet.”
7. The resident made an online complaint to the LA’s environmental health department about the noise on 26 March 2021. He believed the problem was due to the hard flooring in the flat above. The department told the resident that the sounds he was reporting to it were normal household noise (such as children playing) and so it was unlikely that it would take action. The department advised the resident to make a complaint about the flooring to the housing team.
8. During this time the resident’s records show that he was also emailing the housing team, though these emails appear to have gone unanswered. The resident continued to email the environmental health department as well as the landlord. The environmental health department continued to signpost him to the housing team.
9. The resident’s records show that on 21 May 2021 the landlord wrote to the resident confirming that he had been asked via email on 10 May 2021 to complete noise diary sheets. The landlord acknowledged that he was not happy about having to fill in the diary sheets, but explained that it needed them to investigate his noise concerns. It said that if it did not receive the diary sheets by 7 June 2021 it would close the case.
10. In an email exchange between the landlord and the resident on 7 June 2021 the landlord acknowledged receiving the diary sheets. It said they would be sent to its noise and nuisance team to consider. The resident explained his concern that the upstairs neighbour was obliged by the tenancy agreement not to have laminate flooring. The landlord explained that tenants are normally advised at sign up that they need permission for laminate flooring but that, in response to his noise reports the tenant had added rugs to ensure that any day-to-day noise did not cause a nuisance. It also advised that if the noise was determined to be day to day living noise then there was little it could do. The landlord asked the resident to liaise with its noise and nuisance team.
11. The resident contacted this Service on 15 July 2021. He said he had provided the landlord with noise diary sheets, but it had not taken any action. Following further correspondence we asked the landlord to accept the resident’s concerns as a complaint.
12. The landlord logged a complaint for the resident on 31 August 2021. It noted the complaint was about its handling of the resident’s reports of noise nuisance, and its record keeping. The resident believed the landlord had lost or misplaced the information he had provided in his diary sheets and was seeking evidence that the upstairs neighbour had permission for laminate flooring.
13. On 6 September 2021 the landlord issued its stage one response. It explained that:
    1. The neighbour had received verbal permission from the landlord in October 2019 to have the laminate flooring and had now put rugs down. It’s view was that the neighbour had made every effort to mitigate noise coming from her home.
    2. The resident needed to report the problem to the LA’s environmental noise team and hadn’t done so yet.
    3. The landlord had scanned the diary sheets and still had copies but that the diary sheets did not have the information required and would not be enough for it to progress the matter,
    4. To progress the noise nuisance case the resident would need to complete more diary sheets fully for a period of 30 days and report the noise to the environmental noise team, who, if they considered the noise to be excessive, could install noise monitoring equipment if appropriate.
14. Following further contact by the resident, this Service wrote to the landlord on 17 September 2021 asking that it escalate the complaint to stage two.
15. The landlord’s records show that it rang the resident on 22 September 2021 to discuss his concerns. It noted that the resident could not understand why the neighbour was allowed to have laminate flooring, which he believed was in contravention of the tenancy agreement. He disputed why he should have to keep records or audio evidence and did not believe that the neighbour had placed rugs down. He complained also that one of the landlord’s officers had been abrupt with him when he offered to pay for carpet in the neighbour’s flat. He said he had a witness to the noise.
16. The landlord wrote to the resident on 27 September 2021. It declined to escalate the complaint, explaining that the resident had not provided any new or additional information. It explained how the resident could bring his complaint to the Ombudsman if he remained dissatisfied.
17. In November 2021 the landlord wrote to the neighbour. It reminded her of the conditions for having the hard floors (as explained above) and said that, in light of the ongoing noise reports, it had decided she now needed to cover her floors with carpet. It is not clear from the evidence what led the landlord to change its mind.

Assessment and findings

18. The landlord’s neighbour nuisance and antisocial behaviour (ASB) policy states that in order to deal with reports of ASB or nuisance, it needs information on what has been happening. It offers diary log sheets to help tenants record the relevant information.  After receiving a noise report the landlord will consider the most appropriate course of action. Possible actions can include: asking the tenant to collect more evidence; write to the neighbour; interview the neighbour; or offer mediation.
19. The first clear evidence of noise reports to the landlord (as opposed to the LA) was around April 2021 when the resident was sending it emails reporting noise from the flat above, largely in the form of children playing, and other household sounds. The resident explained his view that the problem was exacerbated by the hard floors in the flat above. The landlord provided noise diary sheets for the resident to document the noise he was experiencing. That was a reasonable and appropriate action for the landlord to take because it was in line with its policy and procedures and was necessary for the landlord to be able to identify the nature and frequency of the noise. It is incumbent on any resident to report noise nuisance to their landlord and provide supporting information to the landlord if the resident expects the landlord to be able to take any action.
20. The landlord’s tenancy agreement makes clear that hard floor surfaces are possible for a tenant to have, provided permission is granted by the landlord. The evidence shows that while the neighbour had not originally sought permission, they were given permission by the landlord in February 2021, if not earlier, albeit under the condition that the neighbour laid down rugs, and with the understanding that permission could later be withdrawn if noise complaints were received.
21. Everyday housing noise which is transferring through to other properties is not usually something which a landlord has an obligation to resolve, provided the noise transference is not due to any specific faults or repair issues in the structure of the properties or building. The noise reported by the resident to the landlord appears to be almost entirely described as everyday household noise. However, in this case, the noise was claimed to be exacerbated by the hard floors. The landlord had explained to the neighbour that its permission might be reconsidered if noise complaints were received. It appears from the evidence that the conditions for that reconsideration were met from around April 2021 (the circumstances of any earlier reports, in February 2021, are not clear).
22. Despite the conditions it set for the neighbour to have hard floors, no evidence has been provided showing that, after becoming aware of the noise reports, the landlord considered whether to revoke the permission. In its first response to the resident’s complaint the landlord explained that it was satisfied the neighbour had taken appropriate steps to mitigate noise, but nothing in the evidence indicates what that decision was based on, what those steps were, or how their effectiveness had been assessed.
23. There is no guarantee that covering the hard floors would have resolved the noise problem, or any way of knowing how long the neighbour might reasonably have needed to make such a change. Nonetheless, the landlord had the opportunity and grounds to consider revoking its consent for the hard floors, and if such an action had been taken, it might have reduced the impact on the resident. The failure to at least consider the measure meant that the landlord missed an opportunity to potentially resolve the matter and was a service failure.

Determination (decision)

24. In line with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the complaint.

Reasons

25. Despite having the grounds to do so, the landlord failed to consider whether to revoke the permission it had granted for hard floors in the flat above the resident’s. This meant that an opportunity to potentially resolve the noise reports was missed.

Orders and recommendations

26. In light of the missed opportunity to resolve the noise issue, the landlord is ordered to pay to the resident £175 compensation.
27. This payment must be made within four weeks of this report. The landlord should update this Service when the payment has been made.