Hackney Council (202006581)

REPORT

COMPLAINT 202006581

Hackney Council

31 March 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

The complaint is about the landlord’s response to reports of anti-social behaviour and noise nuisance.

Background

1. The resident has had a secure tenancy with the landlord since 3 May 1993. The property is a two-bedroom flat on the first floor.
2. In June 2018 the resident spoke to the landlord about reports of noise nuisance against her neighbour. The resident stated that she had not filled out log sheets previously provided to her for the recording of instances of noise because she considered them to be a waste of time. The landlord noted that many cases had been opened and closed due to a lack of evidence.
3. In May 2019 the resident discussed further reports with the landlord. She noted that the incidents were ongoing and that she had spoken to police recently, but that she had not reported the issues to the police for a period of over a year prior to this. In December 2019 the landlord’s internal emails noted that there had been a number of ASB reports raised and ultimately closed by both the resident and the neighbour against each other. It set out its position that unless there was compelling new evidence of the noise nuisance, no further steps would be taken to investigate.

Summary of events

4. In May 2020 the resident has stated that she had “filled out two forms online” with the noise patrol team and did not receive a response. This was according to her email of 25 November 2020 to the landlord.
5. On 29 May 2020 the resident called the landlord to report that her neighbour had been playing very loud music from 10pm the previous evening until the early hours of the morning each day over the previous few weeks. She threatened to cut the neighbour’s electricity supply that night if action was not taken.
6. On 4 June 2020 the resident contacted the landlord to report hearing continuous music and noises from her neighbour, and that the most recent incident was on 2 June 2020 when the neighbour was allegedly playing loud music through the day. The landlord noted it would contact the resident that day but stated that the claims had been investigated at great length and remained unfounded. It stated that unless new and compelling evidence was produced, no further claims would be investigated.
7. On 12 June 2020 the landlord requested a particular team escalate the ASB investigation, noting it had been opened four to five times previously.
8. On 18 June 2020 the resident rang the landlord and repeated her allegations against the neighbour regarding the level of noise coming from their property.
9. On 19 June 2020 the local police wrote to the landlord noting that it had been receiving a large number of calls in relation to the dispute between the two neighbours, and that the resident was reporting her neighbour to be continuously playing loud music which was having a severe negative impact on her mental health. It stated that it had dealt with this appropriately but that there was not much more it could do as noise disputes are not a policing matter. It enquired as to whether a plan could be put in place between the two parties.
10. On the same day, 19 June 2020, the landlord’s internal emails noted that it would not be opening another case regarding the noise allegations as these had previously been investigated extensively with no evidence being provided or found in support. It noted it would contact the resident to attempt to provide further support.
11. On 22 June 2020 the landlord’s internal emails noted the case to be a problematic and historical one. It noted that if the case would not meet the threshold for ASBAP, it would try to find other solutions. It noted the steps it had previously taken:
    1. It had investigated approximately six cases over the years and had installed noise machines a few times, without ever finding any evidence of unacceptable noise as a result.
    2. It had told her repeatedly that it needed “new and compelling” evidence, and without this it would not reopen another case.
    3. It had tried to get her to engage with support services but she had elected not to. It had also offered her a transfer, but the resident had stated she did not see why she should have to leave her home of 20 years.
    4. It believed mediation had broken down previously. It stated that unless the two parties could sit down and attempt to find a resolution, the issue could not be resolved because it simply did not have enough evidence to support taking enforcement action.
    5. It felt it might be worth trying another noise machine once restrictions had lifted with a view to closing the case again.
12. On 10 July 2020 the resident contacted the landlord about alleged noise nuisance. On 21 July 2020 the landlord’s internal emails noted that the allegations had been investigated at length and each time they had been unfounded, despite noise monitoring devices having been installed. The resident had been advised that unless new and compelling evidence was provided, the ASB case would remain closed. Referrals had also been made for tenancy support for the resident which had, for the most part, not been engaged with.
13. On 4 August 2020 the landlord wrote to the resident acknowledging the report of 10 July 2020. It stated that it was aware there was a history of alleged noise nuisance spanning over ten years between the two properties. The complaints had been investigated extensively by both the housing management team who investigate low level ASB, and the ASB team who investigate high level ASB. It stated that despite carrying out random home visits, installing noise recording devices and using a variety of other investigatory techniques, both teams had been unable to establish that a statutory or any other form of nuisance was taking place. It had therefore closed the investigation due to a lack of evidence.
14. It noted that staff had requested installation of another noise recording device which would be installed once the lockdown restricts in place were lifted, and that it would contact her when possible to arrange a date for installation. It repeated however that if no noise was recorded other than household noise, it was unable to take enforcement action without evidence. It confirmed the process by which the resident could report noise nuisance out of hours.
15. On 14 October 2020 the resident telephoned the landlord to raise a formal complaint:
    1. The neighbour was playing his music as late as 1:30am nearly every day, and it was sometimes starting as early as 6am. She said he was not adhering to the guidelines as to when he was permitted to make noise.
    2. The police had been involved.
    3. A staff member had told her that “no one in [the team] likes you” at some time in July or August 2020.
    4. She stated that she had contacted the ASB team and the out of hours enforcement team but that nothing was being done.
16. On 28 October 2020 the landlord provided its stage one complaint response in which it set out the following:
    1. It did not have access to its ASB database, however it was aware that there had been a history of alleged noise nuisance spanning more than ten years between the parties. The complaints had been investigated extensively by its teams who had carried out random home visits, installed noise recording devices and used a variety of other techniques.
    2. It was satisfied that it had conducted all investigations in line with its policy and procedures, and nevertheless had been unable to substantiate any deliberate, intrusive or statutory nuisance caused by the neighbour.
    3. A housing officer had requested installation of another recording device which would be undertaken once Covid-19 lockdown restrictions eased further. However it noted that if no noise was recorded other than household noise, as had happened in the past, it could not take enforcement action without evidence.
    4. It had discussed the allegation with the staff member that they had made a derogatory comment on a telephone call, and they had denied doing this. It considered this would be extremely out of character for the staff member and no similar complaints had been made against them throughout their employment. It was unable to substantiate the allegations.
    5. The out of hours noise pollution was extremely busy during the circumstances and it was not always possible to answer a call in person, but the resident was able to leave a message and the call would be returned as soon as possible. It suggested the resident continue to report any further incidents to the out of hours noise team who, where possible, would be able to conduct visits to witness the alleged noise first-hand. It apologised for the inconvenience, but noted that the resident also had other avenues for reporting the noise nuisance, including to the ASB team and the police.
17. On 31 October 2020 the landlord’s out of hours team attended the property, and later reported that it had not heard any music or other noise from the neighbour.
18. On 2 November 2020 the resident requested that the complaint be escalated. The landlord discussed the matter with her on the telephone, noting her position that:
    1. Her neighbour was playing music at a loud volume every day for hours, including after 11pm and into the early hours of the morning which disturbed her sleep.
    2. The resident was considering turning off her neighbour’s electricity supply in order to stop the music and was concerned about the noise as everyone was going into another lockdown. She had called the police to report the issue who had attended the property along with an ambulance.
    3. She considered that landlord was “tipping off” her neighbour with information in response to the landlord noting that it had used noise machines in the past unsuccessfully. She also stated that she had been told by a staff member that she was disliked by the landlord’s staff which was distressing to her. She had contacted the out of hours service many times since April, but she did not receive call backs.
    4. She wanted the landlord to send a letter to her neighbour to request that he plays his music within the allowable time periods and also to arrange for an apology to her from the staff member.
19. On 3 November 2020 the resident telephoned the landlord to report that the neighbour had been playing music the previous night from 11:30pm to 1:30am. She stated she had telephoned the police who advised her they would attend the next day. The landlord noted that the complaint had been escalated and the review was being carried out. The resident noted she was having trouble using the noise app that the landlord had suggested, and the landlord attempted to assist her over the phone. The resident mentioned having evidence which the landlord asked her to explain further, with the resident responding that the landlord should take her word for it. The landlord asked her to get a neighbour who she stated had witnessed the noise to write to the landlord with this report as it would support her case.
20. On 5 November 2020 the landlord’s internal emails noted that the resident had called to report further noise that had occurred the night before, when she had called the police. She had been instructed to use the noise app but it did not appear to be compatible with her phone. It noted she had not been directly contacting the proper staff to report noise nuisance. The relevant teams had investigated the reports thoroughly and had been unable to get any evidence, even after a noise machine was installed in the property for ten days. As a result of this case and some others, it was considering lifting the current cessation of noise machine use that had resulted from Covid-19 lockdown. It noted that the resident had been provided with noise sheets on multiple occasions but refused to complete them. It also stated that it was unable to corroborate the reports given there were no recordings, no professional witnesses, no evidence captured when the machines were installed above household noise, no corroboration from other neighbours and no engagement from the resident with tenancy support.
21. On the same day, 5 November 2020, the landlord sent a letter to all residents of the block to remind them not to play music past 11pm at night. The landlord’s internal records noted that it could put a noise machine into the property again once lockdown had ended and that it would post further diary sheets to the resident.
22. On 6 November 2020 the resident’s son called the landlord and stated that the previous evening the resident’s friend had approached the neighbour and asked him to turn down the music to no response. He stated that the music was on from approximately midnight to 2am most nights and then turned back on at 6am. The landlord stated that it was trying to arrange for a noise machine to be put into the property, though the resident’s son stated this would not capture the bass sound which was impacting on the resident. In response to the landlord’s request for suggestions, the son asked that the landlord’s out of hours team attend the property to hear it. He stated he would not call at the time of the noise occurring, because by the time the team arrived the music would be turned off, and instead requested that the landlord schedule an attendance. He also stated that the neighbour had been threatening to assault the resident with a weapon. The landlord requested the son record the noise on his phone as well and that the resident keep a diary of the noise, but both stated this was not possible. The landlord stated that it needed evidence to take enforcement action against the resident.
23. On the same day, 6 November 2020, the landlord wrote to the Ombudsman noting that it was undertaking the review. It also set out that:
    1. It had offered to install a noise machine into the resident’s property providing this was permissible under Covid-19 restrictions, however the resident had declined this.
    2. It had asked the resident to complete diary sheets recording the noise which she declined to do. It had also asked her to phone the out of hours team that night if the neighbour played his music past 11pm, however the resident declined to do this as she said the service did not respond.
    3. The resident had noted that the landlord would be able to witness the noise if it attended the property after midnight. The landlord had requested this team visit the property that night at 12:15am to attempt to witness the noise.
24. The landlord attended the property at 12:15am on 7 November 2020 and did not observe any noise coming from the neighbour’s property. It spoke to the resident and advised her again on how to contact the relevant team when she was being affected by noise. It provided a report to other staff via email that morning.
25. On 10 November 2020 the landlord’s internal emails noted that it had investigated the reports and found no evidence of excessive noise. It noted that the resident was suggesting that someone must have tipped off the neighbour, a claim which it did not understand. It noted that it would need to continue to provide evidence that the claims were being investigated and yet nevertheless producing no results of noise. It spoke to the resident on the telephone the same day and requested that she provide the landlord with all the evidence she had regarding the noise nuisance.
26. On 11 November 2020 the landlord provided its stage two complaint response. It set out that following an investigation of the complaint, it had not found that it had been at fault. This conclusion was on the grounds that it was necessary for the resident to evidence the alleged noise nuisance that she was experiencing, and that she needed to keep a diary and contact the relevant staff members so that formal records could be made and the noise witnessed. It noted that it was attempting to arrange a date to install a noise machine at her property given her phone wasn’t compatible with the noise app, though this process was being slightly delayed due to the Covid-19 lockdown. The landlord had been unable to establish noise nuisance was taking place for lack of this evidence.
27. As part of its complaint response, the landlord provided its report regarding the investigation into the complaint in which it set out the following:
    1. Its staff had attended the neighbour’s property on 31 October 2020 and 6 November 2020 and confirmed it heard no noise. It contacted the resident following these visits to request that she contact the same team in future if necessary to arrange another visit.
    2. It had requested that instead of the resident calling every day to report noise nuisance from the night before, that she instead record this using a diary format. The resident had refused to do this on the grounds that she believed the landlord to have “more than enough evidence” already. The landlord considered that it had carried out the necessary investigations into this issue and was therefore not at faut given it needed evidence to take action against the neighbour. It had communicated this reasonably to the resident on multiple occasions.
    3. Having discussed the comments allegedly made by the staff member, the latter had stated they did not make said comments, and there was no evidence to substantiate this point. There was also no evidence to suggest corruption by the staff members or that they were tipping off the neighbour so that he could avoid having the music captured on the noise recording equipment.

Policies and Procedures

28. The landlord’s anti-social behaviour policy sets out that it will investigate all reports of anti-social behaviour and take them seriously. In the case of ASB occurring, a resident is advised to phone the police in an emergency, but generally to contact the landlord via either email, letter, text or telephone, with the latter option being a 24-hour service for reporting ASB.
29. The landlord will contact residents within 24 hours for severe cases and within five working days for non-severe cases. The landlord will record and investigate all reports of ASB, starting with a discussion/interview with the reporting party to establish the details of the report. Following this, the landlord will take steps to investigate by speaking to the accused party or gathering evidence in other forms by speaking to the police, involving professional witnesses and giving reporting parties an incident diary to record reports. The landlord will provide reporting parties with support such as a specialist ASB victim support worker in cases where court proceedings are commenced.
30. Cases will be closed where the situation has been dealt with, both parties agree that it should be closed or the landlord is satisfied that it has done everything it reasonably can to deal with the problem. It can open cases again at any time, but there must have been further incidents of ASB.

Assessment and findings

31. The Ombudsman relies on the evidence provided by the parties to establish what was communicated to a landlord in terms of both the reporting of ASB and the complaint, before then considering whether the steps taken by the landlord to address and resolve the issue were appropriate. The landlord has reported undertaking various steps in an attempt to substantiate the resident’s claims of noise nuisance so that it can take appropriate action in response. The evidence indicates that it largely followed its policy appropriately by doing so and it kept the resident updated over the course of the investigation and complaint.
32. Following the receipt of reports of ASB from the resident in May 2020, the landlord acted promptly to investigate the issue, taking details of the reports from the resident usually over the telephone, before attempting to gather evidence to substantiate the claim. It acknowledged her frustration with the issues that she had reported intermittently over the years prior to this. Nevertheless, it maintained a consistent position that its previous investigations had not resulted in the acquiring of any evidence in support of her claims, and noted that it required new evidence to be gathered of the most recent reports before it could take enforcement action against the neighbour.
33. The landlord then used multiple approaches in an attempt to gather evidence in support of the reports. The landlord repeatedly provided the resident with diary/log sheets and requested that she fill these out to record the specific times and nature of the noise occurring, as well as to call the out of hours noise team to attend and observe the reports. Despite this, communications from the resident indicate that she declined to do this on multiple occasions, which hampered the landlord’s ability to gather primary evidence of the allegations. Nevertheless it acted appropriately in repeatedly encouraging the resident to do so in spite of her reluctance and explaining why this was necessary. It also attempted to provide her with alternative options for recording the noise by providing instructions on how to install and use a noise app on her phone, though it is unclear if this was ever used given the resident had problems installing it.
34. In addition, the landlord listened to the concerns raised by the resident about what she considered to be the futility of the evidence-gathering process. It asked the resident and her son for suggestions on how to address the issue, before adhering to the son’s request that it attend the property out of hours at a scheduled time, rather than in response to a contemporaneous report. This was on the basis of the son and resident’s opinion that without advance notice the landlord would be unable to gather the necessary evidence because the music might have stopped by the time it attended. These visits were undertaken on 31 October 2020 and 7 November 2020 and did not result in any evidence of noise being observed.
35. Such an approach was a departure from its normal reporting requirements for residents under its policy, being the calling of the out of hours team at a specific moment when noise occurred late at night. It had also acknowledged that sometimes the resident had been unable to get through to this team immediately on the phone and had to wait for a callback. As such it was a positive step to take in attempting a flexible approach for the benefit of the resident. It demonstrated through this and its other communications with her that it was focused on her wellbeing and was prepared to take steps outside its usual procedure if this would lead to a resolution of the issue. Despite this flexibility however, the landlord was again unable to find any evidence of the reported noise and reported this to the resident.
36. The evidence also makes reference to the landlord taking steps to arrange for a noise machine to be installed in the property which would have been appropriate in the circumstances in an attempt to gather evidence. While there were delays in this process, the landlord has stated that these were caused by the Covid-19 lockdowns in 2020 which affected the services it was providing to residents. On 4 August 2020 it wrote to the resident stating a machine would be installed after lockdown, during which time it had a policy of not installing such machines. Internal emails on 5 November 2020 noted that it was considering lifting this cessation of the machine’s use due to the ongoing reports from the resident.
37. While there was some delay in attempting the installation of the noise machines at the property, this was influenced by the restrictions on the landlord as a result of the lockdown and the policy it had put in place to protect residents. It is unclear why the landlord was unable to install the noise machine around the time of its update to the resident of 4 August 2020 given a number of Government-mandated restrictions had lifted at this point. However it is noted that it was basing this on a policy put in place for all of its properties rather than singling out the resident’s property as not being worth investigating.
38. The evidence also indicates that the resident was reluctant to allow installation of the machines in the property in the months following the easing of lockdown restrictions, and the update from the landlord to the Ombudsman on 6 November 2020 states that the resident outright declined the offer. Even though the resident refused the offer, the landlord’s consideration of and attempts at installing the noise machine demonstrated an adherence to its policy which requires all reports to be investigated regardless of the results of previous investigations. It was additionally entitled to maintain the position that a new period of recording from the machine would need to be carried out as well as result in noise being recorded if actual enforcement action were to be taken against the neighbour.
39. The landlord engaged with the local police in June 2020 in another attempt to gather evidence and seek a professional opinion on the situation. This was appropriate as the discussions with the police examined various alternative approaches including potentially putting a plan in place to manage the issue between the two parties, and the consideration of mediation. On 3 November 2020 the landlord requested that the resident ask her independent witness to contact it to provide support for her claims, and on 5 November 2020 also sent a letter to all residents at the block reminding them of their responsibilities not to make noise after a certain time at night. On 10 November 2020, when other options had failed, the landlord requested the resident provide it with all the evidence she had in support of her reports, which she was unable to do. Each of these steps demonstrated that the landlord had taken on board the resident’s requests and acted on them when it was appropriate to do so with the aim of gathering evidence and providing a resolution to the dispute in line with its policy.
40. The evidence also demonstrates that the landlord sought to assist the resident through the process in terms of providing support as well as flexibility in its ASB procedure so as to give her the best opportunity to have her reports substantiated. It attempted to get the resident to engage in support services in July 2020, which was appropriate as another form of seeking to minimise the harm being caused to the resident in light of the reports, given the evidence was not available to address the reported root cause of the resident’s problem. It noted that it was considering lifting the cessation of the use of noise machines which had been its policy during the Covid-19 lockdown, due to the resident and other’s reports. At one point the resident had also been offered a transfer which she had refused, although it seems that this was a historical offer prior to the events leading up to this complaint.

Determination (decision)

41. In accordance with paragraph 54 of the Housing Ombudsman Scheme there has been no maladministration by the landlord regarding its handling of the ASB reports made by the resident.

Reasons

42. The landlord has undertaken a wide variety of steps to investigate the reports of ASB made by the resident. These included requests for the resident to use a noise app, diary recordings and reporting noise to a particular team, visits by staff, interviews with the resident, a letter to all residents at the block and collaboration with local police. There were attempts considered regarding the installation of the noise machine, though this was ultimately not carried out. It was entitled to take the position it did that no enforcement action could be taken against the neighbour due to lack of evidence, given it carried out a thorough investigations into the reports. It kept the resident updated on the progress of the investigation, was flexible in its approach based on the input of the resident, attempted to provide her with support and was consistent in its position and findings based on the evidence available.