Summary: There was no fault by the Council. It considered properly whether it should take further enforcement action to compel the complainants’ upstairs neighbour to complete sound insulation work.

The complaint

1. Ms B and Ms C complain that the Council failed to properly remedy their complaint, and ensure the owner of the upper flat complies with the Improvement Notice it served. It has asked the complainants to do the work, but has not taken into consideration, that the upper flat owner will not agree to this.
2. The complainants say that as a result of the Council’s shortcomings, they are left still suffering the poor sound insulation of the flat..

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered the information provided by Ms B and Ms C and discussed the issues with Ms B. I considered the information provided by the Council including its file documents. I also considered the law and guidance set out below. Both parties had the opportunity to comment on a draft of this statement and I have considered their comments before reaching a final decision.

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What I found

The law and policy

6. The Housing Act 2004, (“the Act”) sets out that councils have a general duty to take enforcement action where it has identified a ‘category 1 hazard’ at a residential premises. This is a hazard considered a serious and immediate risk to a person’s health and safety.
7. Where a council identifies a ‘category 2 hazard’, a council has the power to use a number of enforcement powers, including serving an Improvement Notice under section 12 of the Act.
8. Satisfying the requirements of the current Building Regulations, the supporting Approved Documents and relevant standards and Codes of Practices will usually achieve the ideal for the majority of hazards. (4.18, (“The HHSRS”)
9. Section 31 and Schedule 3 to the Act enable authorities to take the action required by an improvement notice itself, with or without the agreement of the person on whom the notice was served…Authorities may have to carry out works without agreement where a notice has not been complied with. (5.13, (“The HHSRS”)
10. It is an offence for a person on whom an improvement notice is served, not to comply with the notice. (The Act, section 30(1))
11. Councils must revoke an improvement notice if they are satisfied that the requirements of the notice have been complied with. (The Act, section 16(1)). A Council ‘may’ revoke an improvement notice if it considers it is appropriate to revoke the notice. (The Act, section 16(2) (b))
12. Councils can take the same action again if they consider the action taken by them so far has not proved satisfactory. (The Act, section 7(3))

Background and the previous investigation by the Ombudsman

13. This chronology includes key events in this case and does not cover everything that happened.
14. Ms B owns her flat (‘the lower flat’) in which Ms C was living. Ms B has been complaining about noise from the upper flat owned by Mr D for some years. The Council part funded an independent acoustics report that investigated the issue from both sides of the partition between upper and lower flat.
15. The Council served an Improvement Notice on Mr D that required him to upgrade or replace sound insulation as necessary to comply with the required building control standards; and to produce a certificate of compliance from an approved acoustic consultant, setting out what work had been done and that it complied with the standards.
16. Mr D appealed against the Notice. The Tribunal decided that the notice should be varied to allow more time to complete the works so that an acoustics specialist that had already carried out testing on the flats, could be involved in assessing the work as they progressed. The Tribunal said that Mr D had been identified as the person primarily responsible for the removal of the hazard.
17. The Council received confirmation from the acoustics specialist that the works had been completed as per the Council’s specification. However, he had not been able to visit the property during the works to confirm how they had been completed, and had not known that this was the Tribunal’s intention.
18. The Council revoked the Notice, stating it was satisfied the terms had been complied with. It told Ms B that Mr D’s side of the property now met regulation standards and the Council therefore had no further legal action it could take against him.
19. Ms B commissioned her own specialist survey from her side of the partition. It said her ceiling construction was not as had been assumed by previous assessments. Mineral wool insulation had been omitted and Mr D should have installed this. Mr D had not fully complied with the Improvement Notice and the Council may have been premature in revoking it. Even if Ms B carried out further work to her flat, the omission of the mineral wool insulation means the sound insulation may still not meet minimum standards. The Council invited Ms B to apply for a £5,000 grant to carry out improvement work.
20. Ms B and Ms C complained to the Ombudsman. We decided that the Council acted reasonably when it decided to revoke the Notice based on the information from the acoustic specialist that the work had been done. However, the Council was not clear in its communications with Ms B, and did not investigate or reconsider its position when Ms B gave it evidence that the insulation was missing. We also found that it was fault for the Council not to ensure that Mr D complied with the Improvement Notice.
21. The Council agreed with our recommendations that it should:
• Apologise to Ms B and Ms C for the fault we identified.
• Pay Ms B the sum of £500 for the distress involved in pursuing these matters.
• Pay Ms C the sum of £500 to acknowledge the prolonged distress she suffered while living in a property with unacceptable noise levels, acknowledging the prolonged distress caused by the Council’s refusal to engage with Ms B and Ms C after they produced evidence that indicated the works in the Notice may not all have been completed.
• Reconsider the information provided by Ms B’s expert report. The Council agreed to instruct an expert to assess whether the Notice had been complied with. It agreed that if it was found that the Notice was not complied with, the Council would consider its next steps. It would, in any case, provide a report to Ms B, Ms C and the Ombudsman, clearly explaining the course of action it decides to take, based on the evidence.

The Council’s actions since the Ombudsman’s earlier decision and the scope of this investigation

22. This statement relates only to my investigation of the Council’s actions following our earlier decision. I have not re-investigated earlier actions or altered our earlier findings.
23. In line with the agreed remedy, the Council commissioned an independent specialist to further test the sound insulation. The specialist’s brief was to carry out a sound insulation test between the flats and determine the current level of sound insulation for airborne and impact sounds; determine the current construction detail; compare the test results with the building regulations; and recommend remedial works to improve sound insulation.
24. This found that the airborne sound insulation between the basement and the upper dwelling had improved. It also found however, that Mr D had not installed mineral wool insulation nor had he done required work to the floor of a cupboard in his flat. The specialist’s assessment was that the sound insulation did not meet building regulations as required by the (since revoked) improvement notice. He recommended the work to be done and found that the majority of improvements left to be made were below the lower edge of the joists. The specialist also warned that even if this work was done, the flats may still not meet the building regulations.
25. The Council visited the site with the acoustic specialist in June 2021. The officer made an assessment under the HHSRS. This agreed that the wool insulation was missing, and that the insulation failed the building control requirements. The Council concluded that further upgrading to the ceiling of the lower flat, and adding the wool insulation will reduce the likelihood of harm from noise, but may still not meet the standards.
26. The Council reconsidered whether it could take enforcement action. It decided as the insulation had improved, there was no justification, in terms of the hazard score, to serve an Improvement Notice. The Council has explained that it reached this view based on the original information on which it had served the notice, the independent assessment conducted in response to the Ombudsman’s investigation, and the joint site visit between the independent specialist and its Environmental Health Service.
27. The Council explained that it had no reasonable regulatory means to require either party to do further work. It suggested that, given the majority of the work needed to make any further improvements was below the level of the joists, Ms B could do further work to the ceiling space. It offered Ms B a grant of £5,000 to do the work. The Council explained that its offer of a grant is outside its financial assistance policy and Ms B would not normally be eligible for this. However, the grant was offered as a good will gesture to resolve the issue.
28. Ms B told the Council that they had asked several specialists to quote for the work, but none agreed to carry this out as it would mean trespassing into that part of the void between the flats owned by Mr D. She had not been able to agree with him to do the work. The Council says it signposted Ms B to the Party Wall Act which sets out a process for doing work on a party wall. Ms B has also explained that the work and the additional legal work required will cost far in excess of the grant offered, even if she could find a contractor to do this work.
29. Ms B complains the Council is now making her responsible for the work, when it was Mr D who had not complied with the notice, and when the Tribunal had found that it was primarily his responsibility to make the improvements. Ms C is still suffering with the noise from the upper flat especially as there was no work done in the cupboard, which houses the upstairs tenants’ washing machine.

Was there fault by the Council?

30. Ms B and Ms C are in a very difficult position. It is clear that the sound insulation does not meet the required standards and the fact that the Council originally served an Improvement Notice on Mr D also indicates that the deficiency was significant. In addition, Ms B initially felt supported by the Council’s actions, and then disappointed when it revoked the Notice without first checking the work had been done.
31. As mentioned above, I have not reinvestigated how the Council came to revoke that Notice. The scope of my investigation is to decide whether there is fault in the Council’s actions when it considered whether to issue a new notice or to take any enforcement action. My task is to determine whether there was fault in the Council’s decision-making. If there was no fault, I cannot criticise its decision not to take enforcement action.
32. Overall, there was no fault by the Council when it decided not to serve another Improvement Notice on Mr D, or to take any other enforcement action. The Council’s HHSRS assessment was based on its inspection of the flats. It decided the current sound insulation causes a low category two hazard. This gives the Council the power to take enforcement action, but it has no duty to do so.
33. The Council considered its own assessment and the independent specialist’s report. It made sure it had an accurate and detailed understanding of the current construction and the works that may improve this. It has used this to inform its decision. The Council could not reinstate the revoked notice. There was no fault in the Council’s decision-making and so there is no basis for me to criticise its decision.
34. The Council has not required Ms B to do the work, but has suggested that she might and has offered a grant to help with the costs. I appreciate that Mr D has not consented to Ms B doing the work, but the Party Wall Act is a legal means to resolve this. The fact that the work might exceed the £5,000 does not mean there is fault by the Council.

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Final decision

35. I have completed my investigation. There was no fault by the Council.

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Investigator's decision on behalf of the Ombudsman