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Orbit Group Limited (202007513)

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REPORT

COMPLAINT 202007513

Orbit Group Limited

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

Background and summary of events

Background

  1. At the time of the complaint, the resident was a tenant at the property of the landlord. This service has not been provided with a tenancy agreement from this period, so it is not evident when the tenancy began. The landlord is a registered provider of social housing. The property has a shared wall with another property, the tenant of which is the subject of the resident’s reports.
  2. The landlord operates a two stage complaints policy.
  3. The landlord operates an ASB policy. The policy notes that noise which is deemed to be a ‘statutory nuisance’ is ASB, whereas ‘general living noise’ is not ASB. The policy also notes that the landlord will assess the ASB and advise the resident how it intends to manage their case. It further notes the landlord will clearly explain why it is closing a case.
  4. Prior to the reports which relate to noise that are the subject of this complaint, the resident reported to the local authority’s environmental health team similar instances of noise audible through the wall of his property from a previous neighbour in the same property throughout 2017.

 

 

Summary of events

  1. It is evident from the landlord’s complaint responses that it is not disputed that the resident has made multiple reports regarding noise coming from his neighbour since 2018. The reports included shouting, loud telephone calls, profanity, and speaking loudly through a gaming headset. It is evident that these reports were made to the landlord’s ‘Tenancy Services Manager’. While it is not disputed that the Tenancy Service Manager provided responses to the resident, it is not evident if any correspondence between the parties was written, and this service has not been provided with any records from the landlord of the resident’s reports across this period. The resident has advised this service that in or around October 2019, the landlord visited him in person regarding the reports and advised that the acoustic testing would not be carried out due to cost and that they could not tell the neighbour how to “live their lives.”
  2. It is evident that in or prior to April 2020, the resident referred his concerns about the ongoing noise to his local MP. On 23 April 2020, the MP advised the resident that the landlord considered the noise to be “domestic noise” which it considers to be within the remit of the local authority’s environmental health team. The MP also advised that the environmental health team would only install sound monitoring equipment it the landlord first carried out an ‘acoustic test’, but that the landlord had advised it had not received any request to carry one out from the environmental health team. The landlord also advised it had sought corroborating reports from other residents in the building, indicating that there hadn’t been any, and that it would also continue to monitor the situation. The landlord further advised it had previously explained the above to the resident in person. It is evident that this communication was not received by the resident and the MP resent it on 28 August 2020.
  3. It is evident that on or prior to 24 November 2020, the resident made a formal complaint about the landlord’s response to his reports. The landlord subsequently provided its stage one response on that date. The landlord noted that the resident had reported his neighbour speaking through a video game headset and that he had requested an acoustic test. It advised its Tenancy Service Manager had investigated the reports on “multiple occasions” and that it had determined the noise not to be ASB. It confirmed that no further action would therefore be taken. Regarding the acoustic test, it advised that it did not consider a test to be viable as it was “very costly” and not proportionate given it did not consider the noise to be ASB. It confirmed that it was “unable to assist you any further,” however, it also advised it would send a letter to the neighbour advising them to be mindful of noise.
  4. On the same date, the resident replied and noted his dissatisfaction with the response, while also requesting an escalation to stage two of the landlord’s internal complaints procedure. He noted his reports were of more than just the gaming headset noise, but of loud telephone calls, “foul expletives,” and “loud belching and breaking of wind.” He also noted that the landlord’s standard tenancy agreement stated that residents must not cause noise that causes disturbance, nuisance, annoyance, or interferes with the peace and comfort of other residents. He subsequently requested that the landlord take action against the neighbour for breach of tenancy.
  5. The landlord provided its stage two response on 11 December 2020. It noted its previous response did not clarify all of the different types of noise reported by the resident but assured him that “everything you have complained of has been investigated.” It advised that as part of its investigation, it spoke with the neighbour and that “on the evidence available, found that such noise was the result of daily living and that there was no intent to cause you a nuisance or annoyance.” It also advised that it had given the neighbour advice on how to minimise noise. It reiterated that it considered the noise to be daily living noise and that it would be disproportionate to take enforcement action. It advised that should the local authority’s environmental health team investigate and conclude that the noise constituted statutory noise nuisance, it would revisit its position. It noted that the environmental health team had opted not to install noise monitoring equipment. It noted the resident’s comments about the requirements in its tenancy agreement but advised that “there will always be some degree of domestic noise transference between properties but not every noise constitutes a breach of tenancy.” It concluded that there was no evidence that the concerns raised by the resident had “been misunderstood and dismissed” and that they had “been fully investigated and responded to in line with our policies and procedures.”
  6. It is evident that the resident recorded a number of instances of noise in an incident diary and that in or around April 2021, the resident repeated his concerns that the neighbour was in breach of his tenancy. On 12 April 2021, the landlord reiterated its position that it considered the noise to be daily living noise which was not in breach of the neighbour’s tenancy.

Assessment and findings

  1. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
  2. This Service understands the resident’s situation and recognises that the concerns he has reported have affected and caused distress to him. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor does it decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
  3. Keeping an accurate audit trail is also an important part of a landlord’s service delivery. The landlord should have systems in place to maintain accurate records of any communications, telephone notes, or meeting notes so that it can satisfy itself and the resident (and ultimately the Ombudsman if necessary) that it took all reasonable steps when investigating or deciding to close its ASB cases. It is not disputed that the resident made a number of reports to the landlord’s Tenancy Service Manager, however, this service has not been provided with any records of these reports, nor the action that the Tenancy Service Manager subsequently took. While the landlord’s ASB policy does not specifically state that its advice to the resident following an ASB report must be in writing, the Ombudsman considers it best practice to follow up any verbal advice with a written communication for the resident to refer to and to provide a record of its actions, which it did not do in this instance.
  4. Similarly, while it was appropriate that the landlord sought corroborating evidence from other residents in the building, and advised that it would continue to monitor the situation, which was in line with its ASB policy and what the Ombudsman would expect, it is not evident that this information was given directly to the resident in any written correspondence, instead having to come through the resident’s local MP following their enquiry. It is evident, however, that the landlord engaged in face-to-face discussions with the resident where it set out its position on the noise reported and the request for the acoustic test, and so while not in line with best practice, the Ombudsman does not consider the lack of written communications to constitute service failure in this instance.
  5. While it was appropriate that the landlord advised its position in its stage one response that its Tenancy Service Manager had investigated the reports on “multiple occasions” and that it had determined the noise not to be ASB, but daily living noise, it is not evident precisely what steps it took to conclude this. Additionally, while the landlord noted that it had spoken with the neighbour and concluded that the noise was not made with intent to cause annoyance, in the Ombudsman’s opinion, this does not automatically preclude it from being ASB. It would have been helpful, therefore, had the landlord provided more information about the steps it took to investigate the issue and how it reached the conclusion it was not ASB.
  6. It is the Ombudsman’s understanding, however, that there is a high threshold of evidence required to pursue legal action regarding ASB. It was therefore reasonable that the landlord noted it could take further action should the local authority’s environmental health team determine there had been statutory nuisance and that it noted the resident had already referred the incident to them. Given that the landlord had determined the noise was everyday living noise, its position that the acoustic test was prohibitively expensive in the circumstances was also reasonable and it appropriately advised the resident of this position on a number of occasions. Additionally, the Ombudsman agrees that an amount of noise is inevitable and that daily living noise would not constitute a breach of tenancy, and so the landlord’s conclusion of the same was reasonable.
  7. Further, while the landlord could have been clearer on what steps it took to investigate the noise and how it determined it was everyday noise, it is not evident that it had misunderstood or dismissed the resident’s concerns and so its finding of the same in its stage two response was reasonable. It was also appropriate that it sent the neighbour a written communication advising them to be mindful of noise, in line with its ASB policy.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports of ASB.

Reasons

  1. While the landlord’s written communications during the resident’s initial reports and following its investigations were lacking, it is evident that the landlord articulated its position to the resident in a face-to-face meeting, in which it noted its position on the noise being daily living noise, and that it was prohibitively expensive to carry out an acoustic test in the circumstances. Similarly, while its formal responses could have elaborated on its investigations, it appropriately advised it would take further action should the environmental health team, who are the appropriate body to investigate such issues, determine statutory noise nuisance. Similarly, it appropriately sent a letter to the neighbour advising them to be mindful of noise.

Recommendations

  1. The landlord to consider implementing a system to keep detailed records of ASB reports and its actions in investigating them.
  2. The landlord to consider amending its ASB procedure to ensure that updates are provided to residents in writing where possible.