Summary: Mr L complains about a council’s response to problems with the temporary housing a council placed him in. We do not uphold Mr L’s complaints about gas safety checks in his flat. However, there was fault because the Council provided an inaccurate complaint response and failed to carry out an assessment of noise from the flat above Mr L. This caused avoidable inconvenience. The Council will apologise and carry out an assessment of the noise under antisocial behaviour procedures.

The complaint

1. Mr L complains about London Borough of Newham (the Council). He says the Council and its agent (the Agent) failed to:
1. Complete gas safety checks
2. Repair windows
3. Deal with his complaints about noise
2. Mr L says the Council’s failings are absurd and insulting. He wants the Council to move him elsewhere.

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The Ombudsman’s role and powers

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If we are satisfied with a council’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

6. I considered the Council’s responses to the complaint, Mr L’s complaint to us and documents from the Council and agent including emails and gas certificates and a video of the roof window.
7. Mr L and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

8. In the past, it was established law that the ordinary use of a home where the noise generated was caused by normal living, could not be a nuisance.
9. Since the introduction of the Housing Health and Safety Rating System (HHSRS) in 2006, all councils are required to assess potential risks to the physical and mental health of occupants from exposure to noise inside a home, including that caused by a lack of sufficient sound insulation. Where a HHSRS assessment identifies a category one hazard, there is a mandatory duty to reduce it. Although the test is quite high and may vary with the circumstances and health of the particular tenant – the potential for a hazard under the HHSRS should at least be considered by councils. Preventative measures may include improving sound insulation between buildings. Councils may take action to deal with noise nuisance under antisocial behaviour procedures in cases where using the HHSR process is not appropriate.

What happened

10. The Agent provides temporary accommodation to the Council which it uses to fulfil its legal duties to homeless applicants, including Mr L and his family.
11. Mr L told me he complained about missing glass to his cooker door when he moved into the flat in 2017. The Council and Agent deny receiving any complaints about the cooker and have provided no records of complaints about the cooker in 2017. An inspection of the property by the Agent in September 2017 did not mention any problems with the cooker. Mr L signed the inspection report.
12. A contractor on the gas safe register completed gas safety checks in August 2017 and 2018. These said the gas cooker was safe to use.
13. The Council and Agent’s records show Mr L first complained about noise from the flat above him in May 2019. Mr L reported a stomping noise from his neighbour walking around upstairs. The Agent does not own the upstairs flat and it is rented to a private tenant. The records show the Agent checked the land registry, which only gave the property owner’s name and no contact details.
14. The Agent completed an inspection report at the end of July 2019. This said the property was in good repair. There was no mention of any problem with the cooker. Mr L signed the inspection report.
15. A contractor on the gas safe register completed a gas safety check on 9 September 2019 which identified no defects.
16. The Council’s responses to Mr L’s complaint (September and November 2019) said:
• It gave the Agent 21 days to sound-proof the property and to review the opening mechanism for the window. This was done. The housing officer looked at a video of the window mechanism to one of the windows in the flat which was easy to use;
• It was sorry for the failure to renew the gas safety certificate. The housing officer wrote to the Agent before the certificate ran out and threatened to suspend rent payments if the certificate was not renewed. A problem with the cooker delayed the certificate which was issued in September 2019 once the cooker was replaced;
• The Council took reasonable steps to address his concerns.
17. Correspondence from the Council to Mr L’s MP says the tenant above Mr L had put down a carpet.
18. There are no records of any further action taken to address Mr L’s concerns about the stomping noise from the neighbour upstairs. The Council asked the Agent to move Mr L to a different property but the Agent did not have any other properties available. The Council suggested Mr L could find another private flat to rent and the Council would help him with a deposit.
19. The Agents told me there was no record of Mr C complaining about noise recently (since October 2019) and it had contacted the managing agent of the upstairs property to advise of the problem, but was not sure what, if anything had been done to sound proof the floor above.

Was there fault?

20. The Agent acts for the Council in providing temporary accommodation for Mr L and his family. And fault by the Agent is fault by the Council.

Gas safety checks

21. There was a short period in August and September 2019 where there was no valid gas safety certificate. This was fault by the Agent acting for the Council as there is a legal requirement to ensure there is a valid gas safety certificate. The Council has apologised for this and this is an appropriate remedy.
22. The August 2019 gas safety certificate was delayed because the cooker needed to be replaced because of broken glass to one of the doors. Mr L says he told the Council or Agent about the broken glass to the cooker when he moved in to the flat in 2017. There are no records to support this and I would have expected Mr L to have raised the issue during the yearly inspections of the property in 2017 and 2018. There is no record of him raising any concerns on the inspection reports, which he signed. I am unable to conclude on the basis of evidence available that there was a failure to repair/replace the cooker before the issue came to light in August 2019. The records indicate that the Agent replaced the cooker promptly once Mr L raised it.
23. Mr L suggested in his contacts with the Council that there had been fabrication of the gas safety checks. There is no evidence to support this.

Repair of windows

24. I have seen a video of the Agent showing Mr L how to use a pole to open and close the roof window. There is no evidence the window fastening was broken or needed any repairs. I accept the pole is awkward to use but this is not fault. Mr L suggested rain coming into the property affected his son’s asthma but I see no reason why Mr L should not use the pole to shut the window when it rains. So I do not uphold this complaint.

Complaints about noise from the flat above

25. There is no evidence the Council carried out any assessment of the property under the HHSRS to see whether the noise from the upstairs neighbour was a category one hazard. We would expect the Council to use the HHSRS framework to assess hazards and decide on whether to take any action. The failure to do so was fault.
26. The Council’s complaint response said it had instructed the Agent to soundproof the floor/ceiling within 21 days. On the basis of the records I have seen, the Agent did not do this. And the Agent was not able to confirm whether the owner of the flat above had taken any action to insulate the flat above. The Council’s complaints response was inaccurate and this was fault.

Agreed action

27. Since issuing a draft of this statement, the Council has reviewed Mr L’s case and decided its antisocial behaviour (ASB) team will visit Mr L to carry out an assessment under ASB procedures. I am satisfied this is an appropriate remedy for the lack of service Mr L has had to date.
28. The Council will, within one month:
• Apologise to Mr L for providing an inaccurate complaint response
• Carry out an assessment under ASB procedures and consider whether to take action against the neighbour for noise nuisance.
29. Mr L wants a recommendation that the Council should move Mr L to a different property. There is high demand for family-sized accommodation in London and the Council should deal with his application for rehousing in line with its allocations policy. There are no grounds for me to recommend rehousing.

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Final decision

30. There was fault by the Council because it provided an inaccurate complaint response and failed to carry out an assessment of noise from the flat above Mr L. This caused avoidable inconvenience. The Council will apologise and carry out an assessment of the noise under antisocial behaviour procedures.
31. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman