One Housing Group Limited (202204783)

REPORT

COMPLAINT 202204783

One Housing Group Limited

21 July 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 concerns how the landlord handled the resident’s reports of noise nuisance and his request to improve the soundproofing in the building.

Background

2. The resident is a leaseholder of the landlord, which is a housing association. The property is a maisonette in a communal building.
3. The resident has experienced noise nuisance from the property above since at least April 2021. The resident described the type of noise as the moving of furniture, children running, the television played at loud volume and the use of white goods. The resident has stated that he had experienced this type of noise during the day and night.
4. The resident first contacted the landlord about the noise issue in October 2021. In November and December 2021, the landlord corresponded with the resident and the leaseholder of the property above (who sublet the property to tenants) about the issue. The landlord discovered that the property above had laminate flooring and asked the leaseholder to install carpeting. The local authority wrote to the tenants of the property above on 16 November 2021 to inform them that it had received a noise complaint, that it would look to gather evidence of any noise nuisance from the property and would contact the tenants again if it was considering taking further action.
5. On 11 March 2022 the landlord visited both properties. It wrote to the resident on 16 March 2022 and informed him that it had found that the flooring in the property above was now in compliance with the lease and that the building was in compliance with the relevant building regulations, therefore the landlord would not consider adding additional soundproofing. The landlord also informed the resident that the leaseholder of the upstairs property had agreed to talk to their tenants about the noise and advised the resident to contact the local authority’s environmental protection team if he experienced further noise nuisance.
6. On 13 June 2022 the resident wrote to the landlord and requested to raise a complaint into how it was handling the issue. He described the elements of the complaint as:
   1. The noise nuisance he was experiencing had remained unchanged since he first reported it to the landlord in October 2021.
   2. He had spoken with the tenants above about the noise, but their behaviour had not changed.
   3. The level of soundproofing in the building was not sufficient and needed to be improved. The resident requested that soundproofing was installed by the landlord while his own surveyor was on-site.
7. The landlord sent a stage one complaint response to the resident on 20 July 2022 and a stage two complaint response on 23 August 2022. In its responses, the landlord:
   1. Explained that the recordings provided by the resident did not show statutory noise nuisance and only normal everyday living noise.
   2. Confirmed that it was satisfied with the soundproofing in the building and it would not consider installing further soundproofing.
   3. Informed the resident that it had assigned a staff member to his case who would keep in weekly contact.
   4. Noted that in the stage one response it had advised the resident to keep a noise diary. It confirmed it had booked a call with a manager on 5 September 2022 to discuss the diary and what further action it would be able to take.
   5. Advised the resident to contact the local authority if he experienced any further noise nuisance.
8. Following the end of the complaint process, the landlord received noise diaries and recordings from the resident. It informed him that the level of noise was still deemed to be below the threshold of statutory noise nuisance. The landlord recommended using a professional witness to determine the level of noise and also suggested mediation between the resident and the tenants of the property above. The landlord also stated that it would write to the tenants about noise made during unsociable hours (between 11pm and 8am).
9. In referring the case to this service, the resident described the outstanding issues of the complaint as the landlord had not resolved the noise nuisance and he disputed that the flooring in the property above and the soundproofing in the building were adequate. As a resolution to the complaint, the resident requested that the landlord install additional soundproofing.

Assessment and findings

Relevant policies and procedures

10. The fourth schedule of the leasehold agreement relates to regulations. Section 6 of the fourth schedule, in part, states that the leaseholder is “not to play or use or permit the playing or use of any musical instrument television radio loudspeaker or mechanical or other noise making instrument of any kind nor to park or permit the practice of signing in the Demised Premises at any time or times so as to cause any nuisance or annoyance to any of the other owners tenants or occupiers of the Building particularly between the hours of Eleven p.m. and Eight a.m.”
11. The landlord’s ASB (antisocial behaviour) policy defines antisocial behaviour as “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person or conduct capable of causing a serious nuisance or conduct capable of causing housing‐related nuisance or annoyance to any person”.
12. The ASB policy also lists what the landlord does not consider to be antisocial behaviour. This includes “noise from children playing unless in an unreasonable manner. Music played during the daytime unless in an unreasonable manner. Living or domestic noises e.g., ordinary conversation heard through walls or floors, neighbours walking around their home, domestic activities such as vacuuming or using washing machines or closing doors and windows”.
13. The policy sets out the actions the landlord will look to take to resolve a dispute through its early intervention process. This includes “mediation, warnings, referrals to partner agencies, Acceptable Behaviour Commitments, Good Neighbour Agreements, [and] Parenting Commitments”. In regard to enforcement action, the ASB policy states that the landlord “will consider legal action where there is sufficient evidence of a tenancy breach. Eviction is generally only considered either in cases of serious ASB or where other interventions have failed. As appropriate, we make use of formal and informal warnings, legal notices, breach of lease, injunctions, mandatory possession, discretionary possession, section 21 notices, termination of a licence agreement, outright and suspended orders”.
14. The landlord’s website recommended that residents suffering noise nuisance should contact the local authority; explaining that it has the power to investigate and take action, such as issuing noise abatement notices and that this would provide the landlord with the evidence to enable it to take enforcement action.
15. The ASB Policy states that an ASB investigation will be closed in the following circumstances:
    1. “An investigation has been concluded, appropriate action has been taken and no further incidents have occurred over a given period (this will vary depending on the nature of the case); or
    2. We are unable to gather sufficient evidence in order to take any action.
    3. Where a resident fails to engage with us during a case investigation and this impedes our ability to address the issues being raised, we may close the case.”
16. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 20 working days. This will be the landlord’s final response to the complaint.

Scope of investigation

17. In his correspondence with both this Service and the landlord, the resident has described the effect on his mental health the noise nuisance has caused. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord as well as the landlord’s response to his concerns about his health.

How the landlord handled the resident’s reports of noise nuisance and his request to improve the soundproofing in the building

18. Once it had received the reports from the resident about the noise nuisance he was experiencing, the landlord had a duty to respond to the matter in line with the obligations set out the occupancy agreement and its relevant policies and procedures. Overall, the landlord acted appropriately to the resident’s reports. The landlord’s records show that on receipt of the reports, an ASB case was opened and investigated. The landlord spoke with both the leaseholder of the property above and the resident about the issues. When it discovered that the property above had laminated flooring, it wrote to the leaseholder to ask them to replace it with carpeting. This was appropriate action for the landlord to take as laminate flooring would not be allowed under the terms of the lease and it would be the leaseholder’s responsibility (as they had signed the lease, not their tenants) to make the necessary changes to the flooring.
19. It was also appropriate for the landlord to arrange the 11 March 2021 inspection following concerns raised by the resident that the soundproofing in the building and the replacement flooring installed in the property above were not adequate. The landlord wrote to the resident following the inspection to inform him that it was satisfied that both the flooring and the soundproofing were to the expected standard. It was reasonable for the landlord to rely on the opinion of a qualified surveyor who had the opportunity to visit the property above. While it is clear that the resident disagrees with the surveyor’s findings, there is no evidence available from a similarly qualified expert to contradict the findings of the surveyor. As we are impartial, the Ombudsman can only base our decisions on the available evidence and there is insufficient evidence to support the resident’s view that that the surveyor’s opinion on the soundproofing was incorrect. While it is noted that the resident has been in contact with a building surveyor about the quality of soundproofing in the building, no report from this surveyor has been provided either to this Service or to the landlord. That it’s not to say that there is no substance to the resident’s opinion, only that it has not been possible to substantiate his position from the evidence available.
20. Based on the evidence it had gathered, the landlord concluded that the type of noise experienced by the resident did not constitute ASB as it was found to be normal everyday household noise and not caused deliberately in order to disturb the resident. This conclusion was reached in line with the guidance given on the landlord’s website and its ASB policy detailed above. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, either the landlord or Environmental Health may be able to warn and take formal action against the perpetrator. There is no evidence that the local authority made further contact with the tenants of the property above following the letter sent on 16 November 2021.  As there was no clear evidence of statutory noise nuisance, despite the landlord’s investigations into the matter, it was therefore reasonable that the landlord did not take further action against the neighbour during the period considered in the complaint and looked to resolve the matter using the early intervention methods described in its ASB policy detailed above.
21. Despite reaching this conclusion, it was appropriate for the landlord to continue to look to resolve the dispute between the resident and his neighbours. The landlord did this by advising the resident to keep a noise diary, contact the local authority, recommending using a professional witness and also suggesting mediation. Mediation is helpful in resolving disputes in some cases. However, the process is voluntary and either party is entitled to decline the offer. A professional witness is used in ASB cases when a complainant wishes to remain anonymous and have someone give evidence on their behalf, or (as in this case) to give an independent opinion in a dispute between two parties; such as what level of noise nuisance a complainant is experiencing. As there is a clear dispute between the resident and the landlord regarding the level of noise from the property above, this was a reasonable offer for the landlord to make. However, as with mediation, the resident is under no obligation to accept the landlord’s recommendation. The landlord also discussed installing noise recording equipment based on the findings of the professional witness.
22. The landlord’s suggestions are in line with the advice to landlords set out in the Ombudsman’s Spotlight on Noise Complaints (which is available on our website). This recommends what type of action a landlord can still take to resolve or alleviate noise disputes when tenancy enforcement and noise abatement orders are not feasible. This includes offering mediation, working with outside agencies, engaging with tenants, and the use of estate wardens or other staff members to witness noise; all of which were undertaken or recommended by the landlord.
23. Therefore, there is no evidence of service failure in how the landlord has responded to the resident’s reports of noise nuisance and his request to improve the soundproofing of the building. While the distress and frustration of the resident is wholly understandably, it is reasonable that the landlord did not take any action against the leaseholder or their tenants in the property above during the time period considered in the complaint as the landlord did not collect sufficient corroborating evidence to show statutory noise nuisance.
24. it is noted that this case did not meet the landlord’s criteria to install noise recording equipment (the noise diaries did not describe noise that would rise to statutory noise nuisance and the resident declined the use of a professional witness). However, it is recommended that the landlord review this decision. In light of the clear distress the matter has caused the resident, it would be beneficial to provide him with the report that would be produced from the noise recordings to give clarity on the type of noise he was experiencing. The Ombudsman understands that the landlord has a limited number of recording devices available and the demand on their use is high, which will have an effect of whether it can agree to this recommendation.
25. Prior to the 11 March 2021 inspection, there was a missed appointment on 17 January 2022. The landlord’s email dated 28 March 2022 stated that it would offer compensation in line with its missed appointment policy. The available evidence does not indicate that the landlord followed up on this or paid any compensation amount to the resident. I consider that this reflects a shortfall in service.
26. The landlord’s compensation policy states that it awards residents with compensation of £10 for missed appointments. However, given the landlord has failed to apply its own policy and that the resident had arranged for other parties to attend the appointment, which was cancelled with little notice, it is reasonable to increase the compensation to £50.
27. The landlord did not respond to the complaint at stage one of its complaints process in line with its published timescales, sending a stage one response eight working days outside of its ten working days target. From the evidence provided, the landlord did not respond to the resident’s original complaint request on 13 June 2022 and it was not until a follow-up email was sent by the resident on 1 July 2022 that the complaint was acknowledged and progressed by the landlord. Although any delay in responding would have caused some level of inconvenience to the resident, overall these delays were not excessive. However, to prevent similar issues from occurring in future, it is recommended that the landlord review its complaint handling procedures to ensure that complaint requests are properly responded to, and it is in compliance with the Ombudsman’s Complaint Handling Code.

Determination

28. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of how it handled the resident’s reports of noise nuisance and his request to improve the soundproofing in the building.

Orders

29. Within 28 days of this report, it is ordered that the landlord pays the resident £50 in compensation for the missed appointment on 17 January 2022.

Recommendations

30. It is recommended that the landlord:
    1. Review its decision whether to install noise recording equipment in the resident’s property.
    2. Review its complaint handling procedures to ensure that complaint requests are properly responded to, and it is in compliance with the Ombudsman’s Complaint Handling Code.