Co-op Homes (South) Limited (202002121)

REPORT

COMPLAINT 202002121

Co-op Homes (South) Limited

12 February 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 regarding the landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) by his neighbour.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
4. The resident states that the issue was exacerbating his pre-existent mental and physical health conditions.  However, this Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of his complaint.
5. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
6. Any mention of this issue in other sections of this report would be for contextual purposes only.

Background and summary of events

7. The resident is an assured tenant of the property, a ground floor one bedroom flat in a block, which is owned by the landlord.
8. The resident made a formal complaint to the landlord, on 12 November 2019, regarding noise and ASB by his neighbour in the flat above the property. He stated that when he was being shown around the property, prior to signing the contract, he enquired whether there were any issues with the neighbours and was told that there was a singular lady who occasionally sings. He described his experiences of noise from the neighbour as being frequent and intermittent, and it could go on for minutes or hours. It also included singing, banging on the floor and a sound like heavy furniture being dragged about. The events were disturbing his sleep and worsening his stress–related health condition.
9. The resident stated that he had written to the neighbour, but she had not apologised. He had also written to the landlord twice and had been told to resolve the issue with his neighbours. He wanted the landlord to either rehouse him or to soundproof the property. He was complaining about the landlord:
   1. Failing to disclose the noise situation prior to him signing the contract. He had become aware that a previous resident of the property moved because of the noise.
   2. Failing to deal with his complaint.
   3. Not providing a response to his letters of August and September 2019.
   4. Not providing him with quiet enjoyment of the property.
   5. Not finding alternatives to the issue, such as sound proofing.
   6. Not taking ASB action, as required on its website, to remedy the situation.
10. In its response of 21 November 2019, the landlord apologised for the delay to responding to the resident and explained why this had happened. It dealt with each of the issues raised in the complaint letter as follows:
    1. During the viewing of properties, it provides general information but not specific details regarding previous tenants. This was due to data protection requirements and the fact that noise thresholds differ for individuals. Furthermore, the local authority does not accept refusals of property from people to whom they have housing duties on the basis of a previous history of noise. It therefore did not consider that it was required to disclose the history of the property’s vacancy to the resident.
    2. Its experience indicated that cases of neighbour disputes could be resolved between the parties. It would intervene after this has been unsuccessful, noise occurs after unsociable hours and the issue is also severe. The Noise Abatement Team of the local authority would have to confirm whether the noise is at a level as to be considered as statutory nuisance. This would not include movement of children or household activity. It would also take into consideration what the impact would be on an average person without special circumstances. Following the reports, it had written to neighbours in the building to remind them about being respectful of others. It also spoke to the neighbour upstairs as well as to its technical team to find out whether any measures could be undertaken. It had however failed to respond directly to the resident and apologised for this.
    3. The delays to responding to his letters had been due to the relevant officer working part time and then embarking on annual leave.
    4. It was unable to guarantee quiet enjoyment of property to its tenants and this was not part of his tenancy agreement. It explained that quiet enjoyment meant that he would occupy the property without its interference, excepting where necessary.
    5. It apologised for not informing him about the investigation of alternative actions regarding sound proofing, which was expensive. It would be unable to buy carpeting for individual properties. It also could not insist that residents install carpeting in their homes as this was not a requirement of their tenancy agreement. It would however contact the neighbour to ask her to consider putting rugs in high footfall areas.
    6. Formal action regarding noise nuisance would require corroboration by the local authority that the noise was within the category of statutory nuisance. It understood that the resident had approached the neighbour on several occasions, and she had become scared to undertake domestic activities. It queried whether he had invited her to the property to witness the experiences he described. The neighbour had asked him to let her know about any excessive noise and if this occurred after 10:00 PM. The landlord found that she had been ‘conciliatory’, had not breached her tenancy agreement, and the incidents did not meet the threshold of ASB.  
11. The landlord advised the resident that he could call the national emergency number if he experienced violent behaviour, harassment or criminal activity. It also stated that it will provide him with diary sheets to record incidents and will do the same for his neighbour so that she could report the frequency of his complaints about noise from her ‘everyday living’. It did not believe that legal action was warranted in the case without diary sheets. It stated that it would include an article about noise in its next newsletter.
12. The landlord further stated that it would ask its technical surveyor to review likely costs of sound proofing but cautioned that its budget was tight and the acoustics in the property had already ‘been deemed acceptable’. With respect to his request to be rehoused it stated that the local authority has rights to allocations for 75% of its vacant properties and it was not able to offer standard housing transfers. The resident was not eligible for mutual exchange as he was a probationary tenant at the time. He could consider this option in July 2020 when he becomes eligible.
13. In his response of the same date the resident stated that two neighbours had informed him that previous tenants of the property had moved because of noise nuisance by the same tenant he was complaining about. He had sent letters to the landlord detailing his experiences, but the landlord had not mentioned these. He wanted photocopies of his letters, as well as the diary sheets which the landlord had not sent, for further records. He stated that he has mental health issues and physical disabilities all of which were being impacted on by the situation.
14. The resident stated that his tenancy includes an implied obligation of quiet enjoyment. He felt that the landlord was responsible for deciding whether he was experiencing unreasonable nuisance and finding a solution. He stated that he had made efforts to resolve the issues directly with the neighbour and had informed her that noise from the children had become acceptable after she took actions to reduce it. He had been unable to find the cause of the heavy banging and did not consider it helpful to invite the neighbour to the property to witness the issues if it was being caused by her actions. He wanted to know the time scale for the review of the cost of sound proofing.
15. The landlord acknowledged the escalation request in a letter of 16 December 2019 and explained that the resident’s letter had been received by it on the same day. It was its intention to respond by 23 December 2019.
16. In a letter to the resident dated 24 February 2020 the landlord mentioned a telephone conversation with the resident and a visit to him on 22 January 2020. It stated that the resident had mentioned not having received the promised diary sheets. It stated that the sheets had been sent to him, but it had not received any completed sheets. It asked him to send completed sheets to an address it provided but opined that the issue was likely to have subsided. It stated that the neighbour had been written to about the issue. It was aware of the poor acoustics in the block and had asked tenants to be considerate of others. It acknowledged the delay to its response but stated that it had been awaiting feedback on its Housing Benefit inquiry on the resident’s behalf. It stated that its internal complaints process was completed.
17. The resident wrote to the landlord on 4 March 2020 chasing its promised stage two decision. He provided his completed diary sheets as well as the letter from his GP stating his health condition and the impact of noise nuisance on him. He also enclosed a letter, dated 3 March 2020, from a friend stating that he stayed in her home whenever she travelled due to the noise situation in the property. She stated that this has been ongoing for eight months. The diary sheets detailed incidents occurring in January to March 2020. These included banging, running, booming sounds, shouting, jumping, and an item being dragged across the floor.
18. In a letter to the resident, of 16 March 2020, the landlord thanked him for his letter of 9 March 2020. It stated that this had crossed with its stage two decision dated 24 February 2020. It stated that the noise incidents, as detailed in the diary sheets, would be investigated. It acknowledged that the acoustics in the property could be improved but stated that the council’s Environmental Health Department had tested it and it met building regulations in force at the time the block was built. As the very loud noises described by the resident had been recorded by him as occurring outside acceptable hours it would be investigating this.
19. The landlord agreed that poor insulation increased noise transmission in the building and stated that other residents had reported this. They however had adapted to it and were not complaining. As the area was part of redevelopment, which might involve demolition, its budget provided for emergency or essential works only and this did not include sound proofing. It was a small housing provider and did not have suitable vacant property for him within the borough and he had expressed his preference to remain in the area. It advised him about another tenant in similar accommodation who was seeking rehousing and expressed its willingness to facilitate mutual exchange between them. It also suggested that he could register on a website to increase his search.
20. In an email to the landlord, of 16 March 2020, an advocate for the resident stated that the diary sheets showed that the issue had not subsided. As his letter to the landlord had crossed with its final response they wanted to know if the landlord was willing to review its decision, this was also with respect to the soundproofing. In its response, of 18 March 2020, the landlord apologised for the delay to its decision. It stated that it was not able to undertake the soundproofing and clarified that its internal complaints process had been completed. 
21. The resident continued to make reports of noise nuisance by his neighbour in the ensuing months, which included periods of loud music. The neighbour also wrote to report to the landlord about the resident putting letters through her door, including when she was away, and complaining about her daily living activities.

Assessment and findings

22. The landlord’s ASB Policy includes ‘persistent and serious neighbour noise’ in its definition of serious noise nuisance. This means that the resident’s description of incidents warranted consideration of the issue as ASB within the policy. It is common practice for landlords to encourage residents reporting ASB to attempt to resolve the issue directly with the neighbour by contacting them and discussing their concerns. Thus, the landlord’s initial advice to the resident was appropriate in the circumstances of the case.
23. The landlord sent a letter to the residents of the block on 15 August 2019, providing a good neighbours guide and advising them about appropriate behaviour. This did not directly address the resident’s specific complaints about the neighbour in the flat above him and was quite general in nature. It was appropriate to send a more general letter at this initial stage of the reports by the resident as a cautious approach to the issue would give room for the peaceful mutual resolution of the issues between the neighbours. However, as acknowledged by the landlord, it failed to contact the resident directly for up to two months after his reports, resulting in his making a formal complaint.
24. The landlord apologised for its failure to contact the resident regarding his letters to it of August and September 2019. Whilst explaining that this was due to the unavailability of the designated staff member it would have been helpful for it clarify how it intends to resolve such matters in the future. Landlords are expected to have measures in place to ensure that residents can report ASB throughout the week and at any time of the day or night as some issues, even though not emergencies, could be quite serious and require quick action. While it did undertake some actions without contacting the resident, it would have been helpful for another staff member to have contacted him at the time.
25. Considering the earlier delays to responding to the resident’s reports, it was unreasonable that the landlord did not provide the stage two response within the promised time scale. Additionally, there is no evidence that it contacted the resident to provide any explanations about this delay until approximately four weeks beyond the agreed date. It mentioned two matters regarding which it had assisted the resident. As these were not part of the formal complaint, it was not helpful that it chose to include responses regarding these issues in its complaint’s response. Thus, the delay to the decision was not warranted.
26. It was appropriate that the landlord explained to the resident that the level of noise would need to be assessed by the noise team of the local council in order for a conclusion to be made on whether statutory nuisance was occurring. The resident continued to report issues and provided diary sheets with multiple events recorded. Having been advised about the role of the council by the landlord he could have contacted the Noise Abatement Team as the landlord maintained that it was normal household noise.
27. The evidence provided to this Service indicates that in April 2020 the landlord discussed assisting the resident with facilitating the mutual exchange in March and April 2020. However, this was during the initial lockdown in the country and there were challenges to it taking any action at the time. The landlord was proactive in assisting the resident to register with a mutual exchange website. The evidence provided to this Service indicates that this resulted in several people showing interest in the property. The individual who previously wanted to mutually exchange with the resident changed their mind about this. Thus, the resident should have utilised the opportunity provided by the considerable interest shown by other users of the website to seek alternative accommodation as he continued to report that his neighbour’s actions were detrimental to him.
28. While no technical assessment had been undertaken regarding the level of noise from the neighbour’s home the landlord had also not ascertained that the noise the resident was reporting constituted statutory nuisance. Although the resident stated that neighbours had informed him about previous tenants leaving the property due to noise by the particular neighbour, there is no evidence that other neighbours were experiencing similar issues as the resident reported.
29. In the absence of any expert report to the effect that the building acoustics did not meet the requisite regulations for the period when it was built, there is no obligation on the landlord to undertake any soundproofing works. It was also accurate that the landlord could not require the neighbour to install carpeting in her property unless this was a condition of her tenancy agreement. However, if an assessment was undertaken and the noise was found to be excessive, then the landlord would be required to take measures to remediate the issue. This could include ensuring that carpets are installed in the neighbour’s property.
30. This Service considers that the noise in the property was not recorded by the landlord and assessed, and the investigation of the issues carried on into the national lockdown period. With the easing of the current lockdown in view, it would be helpful for the landlord to create an action plan which would include the assessment of the noise levels from the neighbour. Although there is no obligation for it to do so, it may, provide information to the resident on how he may contact council’s Noise Abatement Team with the view to securing their assistance in assessing the noise.  
31. It would have been sufficient for the landlord to inform the resident that there were counter–allegations by the neighbour and to explain that it would be investigating this. It was unnecessary that the landlord advised him of its intentions of providing the neighbour with diary sheets to record his actions in response to the incidents which he was reporting as noise nuisance.
32. Quiet enjoyment of the property is a legal term which is mainly interpreted in accordance with section D (1) of the residence tenancy agreement. As stated by the landlord in its stage one decision, it provides that he has the right to live in the property without interference from the landlord – which includes giving it access when necessary. It would be breached if the landlord, by its actions interferes with his occupancy of the property. He would have to seek legal advice regarding whether this legal right has been breached in this case. 
33. The resident disputes the landlord’s assertions that it was unable to provide information regarding previous issues of noise nuisance and the experiences of past tenants of the property despite his inquiring about noise prior to signing the tenancy contract. This Service is unable to determine the level of information which the landlord could share with the resident. Data protection issues are best referred to the Information Commissioners Office (ICO). Therefore, the resident may wish to contact the ICO to verify the accuracy of the landlord’s position.
34. There is insufficient evidence to support the resident’s views that the noise level was unacceptable and more than domestic living, but the landlord has not been proactive in contacting him or responding to the issues. Its communications on the issues were consistently slow and the explanations it provided have not justified the delays.

Determination (decision)

35. Having considered all the evidence I am satisfied that, in accordance with paragraph 54 of the Scheme there was service failure by the landlord in its handling of the resident’s reports of Anti-Social Behaviour (ASB) by his neighbour. This is particularly with respect to its delays to providing responses to the resident.

Reasons

36. There were delays to the landlord’s response to the resident’s reports of the issues, and the consideration of the formal complaint at stage two, regarding which the landlord’s explanations were inadequate.

Orders

37. I make the following orders to be complied with by the landlord within four weeks of the receipt of this report:
    1. The landlord should pay compensation to the resident of the total sum of £100 for the delays to its communication and complaint response.
    2. The landlord should contact the resident to arrange an appointment for creating a mutually agreeable action plan for its further internal assessment of the noise levels.