Islington Council (202006439)

REPORT

COMPLAINT 202006439

Islington Council

28 April 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 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 is about the landlord’s:

(a)  response to the resident’s reports of antisocial behaviour (ASB).

(b)  response to his associated complaint.

Background and summary of events

2. The resident lives in a three bedroom ground floor flat which is owned and managed by the landlord. His reports of noise nuisance concern the first and second floor flats directly above his property, in which live families with children.
3. In January 2020 the resident downloaded the landlord’s mobile phone noise recording app on the landlord’s suggestion as a result of his reports to the tenancy manager that the noise from the above flats was worsening. Having done so, he contacted the tenancy officer to say it was not picking up on the noise of chairs being dragged and feet stomping. He also said the flat above kept dropping items into his garden. He asked for noise recording equipment to be installed and said sound insulation was ‘an absolute must’.
4. In February 2020 the landlord installed noise recording equipment in the resident’s property. In an email exchange with the landlord’s tenancy officer in February/March 2020 the officer confirmed it had listened to 199 recordings [from the noise recording equipment] over a nine day period between 9am and 9.30pm. It said that these were considered daytime living noises, not a statutory nuisance. He also indicated he would review the phone app record. The resident said regardless of the noises occurring during the day it was still unacceptable, that he awaited an update on the problem with the mobile phone app and an update on an inspection for noise insulation, disputing the repairs team’s view that it would be an improvement, not a repair. The officer asked that the resident direct further emails to a central email address and that these would be directed to him for a response.
5. In March 2020 the resident emailed the landlord’s tenancy manager about a matter unrelated to this complaint as a result of which he asked that she no longer email him direct. In April 2020, in response to an email summarising further noise reports (and rubbish being dropped in his garden) the tenancy team manager asked that he use the phone noise app or call the ASB team. The resident replied to ask the manager to stop emailing him as he considered it harassment. In response to his reports of rubbish being dropped, the landlord wrote to all residents at this time about reports of rubbish and warned them that this constituted a breach of tenancy.
6. On 6 May 2020 the resident emailed the tenancy officer to report more noise; complaining that despite its noise team telling him it had sent his reports to the  ASB team he had had no response; that he had heard nothing about a promised survey for insulation; and he wanted an officer to visit him to help with the phone app maintaining it was an issue with the app and not his phone.
7. On 11 May 2020 the tenancy officer replied to say its team had called the neighbour to ask she be mindful of the noise but it could not visit owing to Covid. He confirmed the neighbour had adequate carpeting. Regarding the insulation he said the resident would have to contact the housing team direct to request it. With regard to the phone app he confirmed there was no error on its part but a connection issue at the resident’s end which was preventing recording being uploaded. He said he would ask the tenancy manager to check the noise app again but advised the resident to start recording new incidents so it could listen to the noise he was currently experiencing.
8. It appears that on 26 May 2020 the landlord’s tenancy officer emailed the resident to reiterate that its noise recording equipment had not found a statutory noise nuisance, only daily living noises. It said it would not change the neighbours’ kitchen flooring but that he could himself look into arranging for noise insulation for his own property. It advised him to record further noise using the mobile phone app and to contact its out of hours team. It said no further action could be taken until it had independent evidence of a statutory noise nuisance.
9. Stage 1 complaint: On 5 June 2020 the resident made a Stage 1 complaint. He complained to the landlord about its response to his reports of ‘excessive noise nuisances and bad language’ from his neighbours in the upstairs flats. He disputed the noises were acceptable; it had failed to survey for noise insulation as it said it would; had not attended to help with his phone app as it said it would; not responded to his reports within the required timescales; had failed to confirm it had received reports from its out of hours team; and was unhappy he had been told not to contact them. The landlord’s complaints team forwarded the complaint to its home and communities team for response, explaining to the resident that it did not investigate Stage 1 complaints or Stage 1 reviews.
10. Stage 1 response: On 26 June 2020 the landlord provided its Stage 1 response. It detailed the chronology of events and explained why it considered it had responded to his reports. It said it had explained his neighbours’ kitchen flooring was adequate and that it would be for him to fund any noise insulation in his flat; that it had written to the neighbours; acknowledged that its tenancy manager had responded directly to his emails to the team after he had said he did not want her to, but that its tenancy officer had subsequently advised him that it would be unable to take further action in the absence of evidence of a statutory noise nuisance. It referred to a complaint received from one of the neighbours about him having approached her about the noise and reiterated its request that he refrain from doing so. In conclusion, the landlord did not uphold his complaint.
11. Stage 1 review request: On 29 June 2020, dissatisfied with the response the resident requested a review. He said the landlord had failed to address his complaint about its response times; that it ought not to have told him not to directly contact an officer; disputed his neighbour’s account of their encounter; that it still had not helped him with the phone app; disputed its finding of the noise being acceptable as it occurred at night as well as during the day; that he had not had the promised surveyor’s visit; and that there had been no investigation of his report that he had been pushed by a member of staff. [This final point was with respect to an unrelated matter which is not the subject of this investigation.]
12. The landlord’s record of its internal enquiries into the complaint indicate all reports received had been forwarded on a daily basis to its home and communities team. In regard to the noise insulation survey its inspection team had advised it was not conducting surveys as a result of Covid restrictions.
13. Stage 1 review: On 16 July 2020 the landlord provided its Stage 1 review. In summary, it found as follows:
    1. As it was a review of his earlier complaint and its response to that it would not address his subsequent complaint about staff members but would address his complaint about its ASB team.
    2. That its analysis of more than 200 noise recordings [from its noise recording equipment] showed daily living noises and if its team did not always respond within its corporate timescales this was due to the time necessary to analyse the volume and frequency of reports made.
    3. That its request that he not contact staff members direct was the result of an organisation restructure in December 2019 which now required all contact through a central email address.
    4. It had transpired no inspection of the flooring between the properties could currently be undertaken because of Covid restrictions and this had been explained to him.
    5. That with regard to the encounter with his neighbour, this had made her uncomfortable and so they had asked that he not approach her again.
    6. Regarding the phone app, it had asked him for a screen shot so it could understand the issue but it had not received this.
    7. It advised he continue to report ASB to its central contact details or out of hours team and to let it know if he continued to have problems with the app.
14. Stage 2 review request: On 18 and 20 July 2020 the resident requested escalation of his complaint for a Stage 2 review by the landlord’s Chief Executive. He said his 200+ noise recordings were excessive because it was proof of the level of nuisance he was experiencing; he disputed the noise was acceptable; said he had never been asked for a screen shot of his phone app; had not heard back about the sound insulation; and reiterated it was not him but his neighbour who was responsible for ASB in their earlier encounter. The landlord acknowledged the complaint and said its central complaints team would respond direct.
15. In August 2020 the resident emailed the landlord’s tenancy officer with further summaries of noise disturbance. On 3 September 2020 the landlord’s tenancy officer replied, reiterating that he must use the noise app so the noise could be evidenced and to use its central contact details not his direct one, to ensure his emails were not missed. The resident replied, complaining of the lack of response to his noise reports and a report of drugs and of rubbish in his garden, which he said were all ‘proven’ by the night team. He said he was still waiting for a visit for help with the phone app.
16. Stage 2 review: On 28 September 2020 the Chief Executive provided the landlord’s final response. In summary, it found:
    1. The reference in its Stage 1 complaint to the number of noise reports was not intended to apportion blame. It explained the need to establish a statutory noise nuisance before issuing warnings and then legal action. It maintained the noises heard were everyday living noise and not considered excessive to warrant further action.
    2. Its noise and ASB team had carefully considered the noise reports and while neither team said there was no noise, both agreed the noise to be acceptable as daily living noise. It acknowledged his report that the noise was also at night but said this had also not constituted a statutory noise nuisance.
    3. It acknowledged he had not wanted to be contacted by its tenancy manager, apologised but explained that it was not always possible to accommodate a resident’s requests when managing staffing resources.
    4. It apologised its officer had not got back to him about the noise insulation inspection, despite visits and inspections having been suspended at that time. It confirmed sound proofing was not an option as it would be considered an improvement, not a repair.
    5. It recognised both he and his neighbours had been affected by the situation, that it would not intervene where it was one person’s view against another, and confirmed it had discussed the incident with his neighbour but that no action was required.
    6. Although it normally encouraged neighbours to resolve disputes, in light of Covid restrictions and to avoid further upset it asked that he not approach either neighbour directly but instead email its team with any concerns.
    7. Regarding the noise app, he had been advised to resolve a connection issue by deleting and reloading the app, but had declined to do so on account of not wanting to lose evidence. It advised him to contact its team if he needed further help with the app.
    8. The resident could continue to use the app/call the noise team and if excessive noise between relevant times was recorded it would be acted upon, but that action would not be taken for daily noises that did not constitute a nuisance.
    9. It said it had decided not to partly uphold the complaint on the basis that it had overlooked the aspect of his ASB report on 4 July 2020 which mentioned drug use, for which it apologised.
17. On 29 September 2020 the resident referred his complaint to the Ombudsman. [He has continued to report noise disturbance to the landlord.]

Assessment and findings

18. In order to determine the reasonableness of the landlord’s response to the resident’s ASB reports it is necessary to consider its ASB policy and procedure and to consider whether in responding to the resident’s reports it acted in accordance with this and in a way which was fair and reasonable in all the circumstances of the case.
19. In the event of a report from a resident of alleged ASB, which can include noise nuisance (and drug misuse and leaving rubbish), the landlord undertakes in accordance with its ASB policy to take action which is reasonable in light of how serious the problem is. With respect to the resident’s reports the landlord’s determination of the seriousness of the alleged reports was focused appropriately on determining the level, nature and persistency of the noise complained about. It was appropriate that the landlord seek to obtain objective evidence of the matter complained about and not rely on one party’s account over another, before deciding if any further action was necessary.
20. The landlord’s ASB policy details the tools it can use to combat and resolve ASB, with legal action as a last resort for serious persistent tenancy breaches [of which a persistent statutory noise nuisance might constitute a breach]. Under its policy, the landlord can use noise monitoring machines to ascertain the volume and nature of noise complained of and this data can be considered alongside other supporting evidence. If ASB can be established, the landlord can take steps to resolve and then escalate the matter if appropriate. But in this case, matters did not get to the point of escalation because the evidence obtained led the landlord to conclude there to be no evidence of noise nuisance of a nature or volume sufficient to constitute a noise nuisance. It is that conclusion which is central to the resident’s complaint because he considers the noise was sufficiently loud and persistent to justify further action and intervention by the landlord.
21. The evidence the Ombudsman has seen however, is that the landlord took adequate and reasonable steps, in accordance with its ASB policy, to investigate the resident’s reports. It engaged with the neighbours concerned, used noise monitoring equipment and a mobile phone app to obtain recordings of the noise complained of and analysed a large volume of recordings as a result. The Ombudsman has seen evidence of the conclusions it reached on individual recordings and this indicates it was not taking a general approach and that its analysis was appropriately thorough. It also assured itself and sought to reassure the resident that the flats above had sufficient carpeting to reduce noise transmission. The resident does not accept the landlord’s conclusion but there is no evidence that it reached that conclusion unreasonably or without full consideration of the available evidence.
22. With respect to the available evidence, the resident complains he was given insufficient help with the mobile phone app, and there does appear to have arisen some confusion as to whether or not a screenshot was requested from the resident and if this was ever sent. It appears the resident was experiencing difficulties uploading recordings to the app: the landlord appears to consider it an issue with the resident’s phone but the resident denies this. Whatever the position regarding an attempt to assess the issue through a screenshot, what is clear from the evidence is that the landlord continued to offer assistance with the app and assure itself the problem lay not at its end. The Ombudsman also considers that, in light of the resident declining to reinstall the app because he did not want to risk losing earlier recordings, the landlord was reasonably focused at that stage on enabling the resident to capture evidence of current noise rather than seeking to keep historic recordings. This is because if further action was to be taken, evidence of a current and ongoing nuisance would need to be available.
23. Ultimately, the resident is unhappy that the assistance offered fell short of the home visit he wanted. The landlord explained at the time (May 2020) that it was unable to visit because of Covid restrictions, which was a reasonable explanation as heightened Covid restrictions were in place and the request for the home visit was not for emergency purposes.
24. Notwithstanding the problem with the app, the Ombudsman has seen no indication from the evidence that this was ultimately of any significant detriment to the resident. It appears from the evidence that recordings were uploaded via the app from February 2020 onwards and these were considered by the landlord, and so even if some past or current recordings were lost (of which there is no available evidence) the landlord reasonably considered it had sufficient evidence – in light of the large volume of recordings it did have – to ascertain the nature and volume of the noise being complained of.
25. The landlord’s findings that the noise constituted acceptable every day living noise is disputed by the resident who maintains the noise was unacceptable, regardless if it occurred during the day. Nevertheless, the Ombudsman considers this was a determination the landlord was entitled to make. It was appropriately based on its analysis of objective evidence which it had obtained in accordance with its ASB policy. Its consequent decision not to take further action was therefore a reasonable and appropriate one. This does not mean that the resident was not experiencing noises, or that he was finding this considerably upsetting. But his upset was not evidence on which the landlord could appropriately base any action. The Ombudsman notes the landlord did explain this distinction to the resident. The landlord was required, in accordance with its ASB policy, to base any action on objective evidence of a noise nuisance. The landlord was not saying it did not believe the resident was upset at the noise, only that it was on objective evidence of the noise, not his upset, on which it must base any action.
26. In terms of the landlord’s handling of his reports, the resident has complained that his reports were not always promptly responded to. [The landlord’s ASB service standard response time for non-emergency reports is 5 working days.] While the Ombudsman has seen no evidence to indicate undue delay in the landlord’s responses the landlord did explain in its July 2020 review response that if there was occasionally a delay this would have been on account of the volume of reports received.
27. As the Ombudsman sees it, there is no evidence that the time taken by the landlord to respond to the resident’s reports ultimately caused him an injustice. The Ombudsman has not seen evidence of a failure to respond and there is evidence that on occasion the landlord sought to direct the resident back to the appropriate channels through which to make his reports, and to encourage him to use the phone app. The evidence indicates this was not in order to delay or avoid responding, but reasonably in order for the landlord to manage its consideration of the reports coming in. Further on this point, the Ombudsman has noted the resident’s concern that an officer he had asked not to contact him directly had continued to do so on a number of occasions. This fact was acknowledged by the landlord in its complaint response and reasonably, in the Ombudsman’s view, explained that this was done for operational practicalities. In any event, the Ombudsman recognises that decisions as to how the landlord deploys its resources is one that rightly falls to the landlord to determine and the landlord has apologised if this caused any upset.
28. The Ombudsman notes that in addition to the resident’s primary concern of noise nuisance, he also reported neighbours were throwing items into his garden and he also appears to have made a report of drug-related ASB. The evidence on these two additional matters is not entirely clear as the resident’s concerns and subsequent complaint are focused on his noise reports and the landlord’s response to these. In response to the resident’s report of rubbish being thrown into his garden, however, the Ombudsman notes the landlord issued all residents with a general warning not to do so, which was a proportionate response in view of the lack of evidence to identify a perpetrator. But with respect to the issue of drugs, it would appear the landlord accepted (in its Stage 2 review response) that it had not followed up a report from the resident on 4 July 2020. [Its reference to partly not upholding the complaint appears to have been a typo.] That said, there is no evidence a failure here had any lasting detriment for the resident, whose primary focus remained the noise disturbance to which this report was related.
29. Beyond the issue of evidence gathering and analysis, the resident was unhappy that the landlord would not survey the property to ascertain if noise insulation would be appropriate. As the Ombudsman sees it, having assured itself that the neighbours had adequate carpeting and that the noise was normal living noises, there was no obligation on the landlord – under its repair obligations – to take steps to insulate the properties from noise transference. On that basis, it was reasonable that it advise the resident that any insulation would be considered an improvement, not a repair, and so would fall to the resident to arrange and fund himself. That being the case, it was unfortunate that an officer who had been handling the matter had not returned his telephone call (in April 2020) as this might have helped clarify matters sooner for the resident, and the landlord has apologised for this oversight.
30. Having appropriately explained the position regarding insulation, however, the Ombudsman finds the landlord’s reference in its subsequent complaint response to it being unable to undertake a noise insulation survey because of Covid restrictions confused matters once again for the resident. The confusion was nevertheless relatively short lived as the landlord’s Stage 2 response made clear there were no grounds to justify noise insulation.
31. This brings the Ombudsman to consider landlord’s response to the resident’s complaint more generally. The landlord operates a two stage complaints procedure through which it undertakes to report the outcome of its Stage 1 investigation within 21 calendar days and its Stage 2 review at Chief Executive level (if the complainant remains dissatisfied) within 28 calendar days. Before agreeing to escalate a complaint to its Stage 2 the landlord’s complaints policy states that it will first review its Stage 1 response and report the outcome of that review within 10 working days.
32. While it is reasonable for the landlord to seek to minimise any unnecessary escalation to Chief Executive level and look to resolve a complaint at the earliest opportunity, it must ensure that in doing so its process does not unnecessarily confuse or protract matters for the resident. In this case, it does appear from the resident’s responses that he was not entirely clear about the landlord’s complaint process, and the Ombudsman recognises how a complaint process involving two review stages might be confusing for a complainant. In this case, the Ombudsman notes the landlord’s complaints team’s initial response to the resident, on receipt of his formal complaint, that it did not investigate Stage 1 complaints/reviews, would have done little to resolve any potential confusion.
33. With respect to the substance of its responses, the Ombudsman considers the landlord’s replies were reasonably and appropriately focused on addressing the individual aspects of the resident’s complaint, provided detailed explanations of its action taken and decisions made, while acknowledging any shortcoming in its service. 
34. But the Ombudsman finds the time taken by the landlord to provide its final Stage 2 review was significantly outside its service standard response time, taking over 10 weeks as opposed to the 28 calendar days envisaged under its complaints policy. The Ombudsman finds that this delay compounded an already lengthy complaints process prescribed in the landlord’s complaints policy which, even had responses been provided within the requisite timescales, would have taken 9 weeks to completion from Stage 1 complaint to Stage 2 review response.
35. As it transpired in the resident’s case the complaints process took 16 weeks from start to finish, a timescale the Ombudsman considers was an unacceptably long period of time for the resident to await the final outcome of his complaint. This would have been a cause of understandable frustration for the resident, particularly as an aspect of his complaint concerned his dissatisfaction with the landlord’s response times. The landlord apologised for the delay in its response but this did not, in the Ombudsman’s view, go far enough in providing the resident with tangible recognition of the annoyance and frustration the delay would have caused him. Finally, on this point, the Ombudsman notes the landlord’s final response also incorrectly signposted the resident to the Local Government and Social Care Ombudsman should he remain dissatisfied, although there is no evidence of this having caused any undue delay in the resident referring his complaint appropriately to this Service.

Determination (decision)

36. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s reports of ASB.
37. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to the resident’s associated complaint.

Reasons

38. The resident was unhappy with the landlord’s determination that the neighbour noise he found unacceptable was insufficient to constitute a statutory noise nuisance to justify the landlord’s intervention. The Ombudsman has found that the landlord arrived at this position through appropriate investigation of the noise, in accordance with its ASB policy, and that its decision to take no further action at that time was an evidence-based decision it was entitled to make. The Ombudsman has identified some minor administrative shortcomings in the landlord’s handling of the resident’s reports for which the landlord has apologised but the Ombudsman finds these caused no overall detriment to the resident.
39. There was, however, service failure by the landlord in its handling of the resident’s complaint, in which it took over 10 weeks to provide its Stage 2 review response rather than the 4 weeks this should take under its policy.

Order

40. Within four weeks of the date of this determination the landlord is ordered to pay the resident £200 compensation for its delayed complaint response.

Recommendation

41. It is recommended that the landlord ensures that on receipt of a complaint from a resident and when providing its subsequent responses it takes the opportunity to clearly explain to the resident the next stage of the process and the route of escalation to this Service.