London Borough of Sutton (201908725)

REPORT

COMPLAINT 201908725

London Borough of Sutton

29 January 2021

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 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

This complaint is about:
1. The landlord’s response to the resident’s concerns about the property above being used as temporary accommodation.
2. The landlord’s response the resident’s reports of noise nuisance from her upstairs neighbour.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
The resident has complained about the property above hers was now permanently being used as temporary accommodation to house families with children. In addition, there appeared to be no due consideration given to the impact the change to the landlord’s lettings policy would have on a tenant with a disability arising from a progressive chronic health condition.
In its Stage 1 response of 20 September 2019, the landlord explained that it had been instructed by the local authority ‘‘that all one-bedroom properties that are not ground floor accessible are to be offered to Band A (urgent priority applicants) first and after that to be offered as temporary accommodation’’. The landlord explained that as a result it was not within its remit to exclude certain properties from being offered to those persons that are eligible for local authority housing and as such it does not carry out impact assessments.
Paragraph 39(m) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
After carefully considering all the evidence, in accordance with paragraph 39(m) the resident’s complaint about the above property hers being used as temporary accommodation is outside of the Ombudsman’s jurisdiction.
This is because this complaint relates to the local authority’s allocations under Part 6 and homelessness applications under Part 7 of the Housing Act 1996. Complaints relating to the local authority’s decisions in relation to how it will exercise its statutory duties including its allocation policies fall within the jurisdiction of the Local Government and Social Care Ombudsman.

Background and summary of events

Background

The resident is a secure tenant of the landlord, which is an ALMO of the local authority. The tenancy commenced on 14 July 1997.
The property is a one bedroom, ground floor flat.
The landlord has advised this service that there were no other reports of anti-social behaviour made by the resident in the six months prior to the resident logging a formal complaint.

Summary of events

On 2 December 2018, Citizen’s Advice wrote to the landlord on behalf of the resident to raise concerns about noise nuisance from the flat above her. Citizen’s Advice then wrote to the landlord again on 2 April 2019 to complain on behalf of the resident about the level of noise from the flat above hers, which she said began when new tenants moved into the flat in November 2018. Citizen’s Advice said that the resident had told them that ‘‘because the flat above her has no carpet the noise pollution, which may well be ordinary household noise, is consequently excessive’’. Citizen’s Advice went on to say that the resident had said that she whilst she was aware, as the flat above had been let as temporary accommodation, that there was no requirement on the tenant to carpet the property. However, the resident believed that if a carpet were fitted the noise property would reduce significantly.
The landlord emailed Citizen’s Advice on 5 April 2019. In its email the landlord explained that on 11 March 2019, it had received contact from solicitors acting on the resident’s behalf in relation to these matters and as such it was unable to answer questions that relate to or which threaten to become legal matters. The landlord advised that if the resident decided to end her legal action it would need to have confirmation of this directly from her and in writing before we can go any further.
On 17 April 2019, the resident called the Ombudsman. The resident said that she had tried raise a formal complaint regarding a noise nuisance from the upstairs neighbour but that the landlord’s response was outstanding. The resident explained that her upstairs neighbour had a temporary tenancy and was not obliged to install carpet in property, but the flooring in their neighbour’s flat was only floorboards which made it excessively noisy.
On 24 April 2019, the landlord wrote to the resident. The landlord asked the resident if she had decided to ‘‘de-instruct’’ her solicitors and if so, whether she wanted to make a formal complaint.
On 29 April 2019, the landlord emailed the resident in response to a call from her regarding her neighbour. The landlord acknowledged the resident’s report of ‘‘screaming and shouting’’ from her neighbours property. The landlord advised the resident that if she felt that either she or her neighbour was at any risk, she should call the police, as the safer neighbourhood team phone line is not always monitored. The landlord said that it was not against their tenancy for her neighour to have visitors, regardless of the hour, but that it would write to them and request that their visitors are noise considerate regardless of the time of day. The landlord also said that, whilst it knew that the resident had her own recording advise, it would ‘like to take this opportunity to offer you the use of the Noise App’’. The landlord attached information for the resident about the app and confirmed that the App was free to use.
On 27 June 2019, the landlord emailed this service to advise that the resident had never made a formal complaint although, it said, it had contacted her several times to ask if she wished to do so. The landlord said that the resident’s upstairs neighbour had now moved from the property and that they were looking into the possibility of installing sound proofing to the property. The landlord said that this would ‘‘hopefully reduce noise levels when a new tenant is allocated that property’’.
The landlord also explained that ‘‘properties that are designated as temporary accommodation are let under a licence agreement which means an occupant simply has permission to use a space which remains in the possession of the landlord and over which the landlord exerts control’’. The landlord acknowledged that it had ‘‘adopted different procedures in relation to flooring for secure tenants and those tenants living in temporary accommodations and that these approaches are inconsistent’’. The landlord also said that it understood that the lack of carpeting in the property above did impact on the resident in terms of noise levels. The landlord apologised for this and confirmed that it had ‘‘raised this issue to be looked into at a more senior level’’.
The landlord ending by confirming that, in order to resolve the issue of noise it had agreed to ‘‘undertake certain sound proofing works to the property above and to put down carpeting in that property so as to reduce noise levels from (that property)’’.The landlord said that it hoped this would alleviate some of the resident’s distress.
The resident contacted the Ombudsman about her complaint on 4 October 2019. The resident said that the property above hers has inadequate sound insulation which caused severe noise transference into her home. The resident said that she suffers from an auto-immune disease and progressive chronic medical conditions, and that the noise transference from the property above caused her a great deal of stress, which exacerbated her health condition and caused her anxiety. The resident said that her doctor subsequently prescribed her medication to manage her stress.
The resident said that the landlord failed to address the noise nuisance for several months, but the matter had now been resolved as the tenant above has moved out of the property and the landlord had installed carpet in the property and sound proofed it. The resident also explained that because of her health conditions it is difficult for her to use her hands and feet, which means that she is unable to escalate her complaint in writing. The resident said that she thinks the landlord may be indirectly discriminating against her as it is refusing to make reasonable adjustments in order to allow her to access its service. The resident said that she wished to make the complaint orally.
On 9 October 2019, the Ombudsman wrote to the landlord regarding the resident’s complaint and her request to escalate her complaint verbally, due to her medical condition which makes it difficult for her to write or type. The Ombudsman asked that the landlord escalate the resident’s complaint to stage 2 and contact her within the next 10 working days to discuss her complaint further.
There is no evidence of the landlord contacting the resident however, the landlord notes indicate that there was an open case 8 November 2019, but the resident failed to communicate with the landlord.
On 28 January 2020, the landlord spoke to the resident about her complaint. Following the call, the landlord emailed the resident to confirm the points the resident considered to be outstanding with regards to her complaint. These included:
1. Why flooring rules were overlooked for the tenants previously living above her, even if the tenants were only there temporarily.
2. Why did the landlord had ignored the root cause of the problem, ‘‘a combination of no sound proofing, inadequate flooring and differing household composition which wouldn’t ordinarily be housed in these types of properties that led to tensions arising to those directly being effected by the level of noise subsequently generated from the property due to the state property had been let out in’’. Why was she consistently told it was normal domestic noise instead, especially when you wouldn’t ordinarily place children in one-bedroom properties, and why, when she raised the matter with the landlord she was told ‘‘that’s what two-year old’s do’’.
3. Why submitted medical evidence was ‘‘ignored’’ by the landlord and what evidence can the landlord provide that can clearly demonstrate not only were they following correct procedures when dealing with ‘‘a vulnerable tenant whom is classified as having a protected characteristic under Equality Act 2010 due to suffering from a chronic progressive disease’’.
The landlord issued its final response on 11 February 2020. The landlord responded to each of the resident’s concerns in turn, confirming that:
1. Whilst it acknowledged that there was an increase in household noise transmitted when a property is not carpeted or have sufficient floor coverings, many households it houses are facing financial hardship. The landlord said that it would ‘‘always work with the resident to encourage them to lay floor coverings or sign post them to charities in the event they do not have the financial means to do this. Ultimately, this would not be considered a tenancy breach unless there was sufficient evidence to suggest that the noise was persistent and deliberate’’.
2. With regards to the resident’s comments that the landlord had ignored the root cause of the problem. The landlord explained it will always try to differentiate between general household noise and deliberate attempt to cause distress. The landlord said that, upon investigation, it had identified that the issues the resident had reported appeared to be a conflict of lifestyle. The landlord also said that following the resident’s complaints, it had carpeted and soundproofed the neighbouring flat before the property was let to another resident. The landlord advised that this did not form part of its normal service offer but that it was agreed to fund the work as an exceptional measure to try to minimise further noise. The landlord said that this was a service enhancement, not a service failure.
3. It apologised for the delay in contacting the resident regarding her medical evidence. The landlord said that it understood that it had initially requested the points be made in writing but, when it was highlighted that the resident would prefer to be contacted by phone to discuss this, there was a significant delay (due to both staff changes and a lack of communication within the Resolution Team) until 29 January when the landlord called the resident to obtain the information. The landlord said that this had been brought to the attention of the staff members concerned ‘‘so that we can try and prevent any repeat going forward, as you certainly should have been contacted sooner’’.
On 26 June 2020, the resident emailed the Ombudsman a copy of the landlord’s final response dated 11 February 2020. The resident said that landlord should have looked at what the real issue was; that there was no sound proofing and no carpet in the flat above to reduce noise transference. Resident said that the landlord said it couldn’t take any action because there was no evidence. The resident also said that there was only ever one sound recording, and that was her swearing because she couldn’t take it anymore.

Assessment and findings

Landlord’s Policies and Procedures.

The landlord’s Anti-Social Behaviour (ASB) policy acknowledges serious and persistent noise nuisance as an example of ASB. However, the policy goes on to state that it does not consider complaints that relate to; everyday living situations or conflict in lifestyles which are not intended to cause nuisance or annoyance, or Children playing (unless this is persistent nuisance or an intentional act to cause nuisance), to be anti-social behaviour.
The policy also states that ASB can be reported via the telephone, in writing, email, online or in person. The policy states, that with the exception of high-level cases, officers will contact notifying persons within the landlord’s service standard of 5 working days. The policy also states with regards to low level ASB, the landlord may decide not to investigate the complaint but will write to bring the concerns to the attention of the party alleged to be causing a nuisance.
Section 5.9 of the landlord’s ASB policy acknowledges that noise nuisance caused by laminate flooring can be distressing and states that the landlord will therefore work with residents to minimise noise levels. This will include:
1. Requesting that residents lay rugs and other floor coverings to minimise the transmission of noise
2. Signpost residents who may not have the financial means to replace floor coverings to agencies or voluntary organisations who may be in a position to assist with funding
3. Work with residents to make appropriate lifestyle changes to minimise noise nuisance. This may include signposting family units to support service.
Section 2.3 of the landlord’s complaints policy states that, ‘‘Issues which are, or there is threat that they will become a legal matter’’, are not regarded as complaints and therefore are not subject to its complaints resolution procedure.
Section 3 of the landlord’s complaints policy states that complaints can be made by email, by phone, in writing or in person

The landlord’s response the resident’s reports of noise nuisance from her upstairs neighbour.

It is important to note that it is not the purpose of this report to investigate any of the alleged ASB reports, to apportion blame or to assess the credibility of the reports made by the resident. Rather this investigation assesses the landlord’s response to the reports and to the resident’s subsequent complaint with reference to its own policies, relevant good practice and what is fair, given all the circumstances of the case.
The landlord was first advised, by Citizen’s Advice, of the resident’s concerns about the level of noise from the flat above her in December 2018. There is no evidence that the landlord took any action in response to those reports. This was not appropriate nor in accordance with its ASB policy which states that officers will contact notifying persons within the landlord’s service standard of 5 working days
Citizen’s Advice then wrote to the landlord again on 2 April 2019 to raise a formal complaint about its response to the landlord’s response to its reports. The landlord responded to Citizen’s Advice on 5 April 2019 to advise that it had received contact from a solicitor appointed by the resident threatening legal action and as such the resident would need to withdraw her legal proceedings before it could respond to her concerns as a formal complaint. This was appropriate and in accordance with its Section 2.3 of the landlord’s complaints policy.
Following contact by this service, the landlord made contact with the resident about her complaint on 29 April 2019. During the call with the resident, the landlord agreed to write to their neighbour to request that their visitors are ‘noise considerate’ regardless of the time of day. This was reasonable and in accordance with the landlord’s ASB policy which states that, in cases of low level ASB, the landlord will write to bring the concerns to the attention of the party alleged to be causing a nuisance.
Whilst it acknowledged that there was an increase in household noise transmitted when a property is not carpeted or have sufficient floor coverings, the landlord explained that many people that it houses are facing financial hardship. In accordance with Section 5.9 of the landlord’s ASB policy, the landlord went on to explain that it would ‘‘always work with the resident to encourage them to lay floor coverings or sign post them to charities in the event they do not have the financial means to do this’’.
The landlord explained to the resident that the matters she had been reported would not be considered a tenancy breach unless there was sufficient evidence to suggest that the noise was persistent and deliberate’’. The landlord offered the resident the opportunity to use its Noise App should she wish to make recordings of the noise that might be used as evidence. The landlord also provided the resident with more information about the App and advised that it was free to use. There is no evidence that the resident took the landlord up on its offer.
Given the evidence seen by this service, I am satisfied that it was reasonable and in accordance with its ASB policy for the landlord to advise the resident that without further evidence it could not take any action against her neighbour.
On 27 June 2019, the landlord advised this service that the tenant in the upstairs flat had moved out of the property and that, in order to seek a permanent solution to the issues raised by the resident, it had arranged for the neighbouring flat to be carpeted and soundproofed before the property was let to another resident. The landlord advised that this did not form part of its normal service offer but that it was agreed to fund the work as an exceptional measure to try to minimise further noise. The landlord said that this was a service enhancement, not a service failure. By carrying out these discretionary works, the landlord showed both a recognition of the resident’s concerns and a forward-looking resolution focus.
Following a conversation with the resident, the Ombudsman wrote to the landlord on 9 October 2019, explaining the difficulties the resident had with requesting an escalation of her complaint in writing. The Ombudsman asked that the landlord arrange for her to make her complaint orally as her medical condition which makes it difficult for her to write or type. In accordance with Section 3 of the landlord’s complaints policy the landlord contacted the resident by phone, so enabling her to escalate her complaint. The landlord also said that this had been brought to the attention of the staff members concerned ‘‘so that we can try and prevent any repeat going forward, as you certainly should have been contacted sooner’’.
Having considered all the evidence, and for the reasons explained above, I am satisfied that there was no service failure by the landlord in respect of its response the resident’s reports of noise nuisance from her upstairs neighbour.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no service failure by the landlord in respect of its response the resident’s reports of noise nuisance from her upstairs neighbour.

Reasons

Whilst there were delays in the landlord’s initial response to the resident’s concerns, as reported by Citizen’s Advice, overall, I am satisfied that the landlord took appropriate steps, in accordance with its policy and procedure, in its response to the resident’s reports of noise nuisance by her neighour.
The landlord also took steps to address the potential of similar issues arising in the future by agreeing to install soundproofing and carpet to the flat above the resident’s property.
Despite the steps taken by the landlord, the resident is still clearly anxious about a similar situation occurring in the future. If that were to be that case the resident would need to report it to the landlord and the Ombudsman would expect the landlord to respond to the resident’s reports in accordance with its relevant policies and procedures.