Selby District Council (202100356)

REPORT

COMPLAINT 202100356

Selby District Council

26 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

The complaint refers to:
1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from his neighbours.
2. The landlord’s handling of the resident’s request for a property transfer.
3. The landlord’s handling of the associated complaint.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The landlord’s handling of the resident’s request for a property transfer

Paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.
In his communication with this Service and the landlord, the resident has commented on the landlord’s handling of his property transfer application. This is not a complaint that this service can investigate because this falls properly under the jurisdiction of the Local Government and Social Care Ombudsman (LGSCO). This is because the LGSCO considers complaints about local authorities handling of applications for re-housing including the assessment of such applications, how points are awarded under the scheme, banding or a decision that the application does not qualify for reasonable preference. As such, this report will not consider the resident’s comments regarding his housing transfer application. If the resident wants to pursue this matter further, he may wish to contact the LGSCO.

Background and summary of events

The resident is a tenant of the landlord, which is a local authority. The property is a flat within a block of flats.
On 13 July 2020, the resident reported that his upstairs neighbour had been making noise into the early hours of the morning which affected his sleep. He added that he believed his neighbour and their friend had been smoking cannabis as the smell was apparent in his property. He noted that his neighbour had defaced his bins and when they had visitors over, they cleaned their property and tipped the contents over their balcony which landed on the resident’s windows.
he landlord’s records show that it called the resident on 15 July 2020 to discuss his reports of ASB and noise nuisance. The resident reported that his neighbour had also made derogatory comments which he believed were aimed at him. He said his neighbour also regularly visited another neighbour within the block and he could hear them talking about him. He said that this was affecting his health and was in touch with his GP. The landlord advised that it would contact his neighbour and raise the issues he had reported.
The resident emailed the landlord on 16 July 2020 and explained that he was not sure whether the landlord had spoken to his neighbour yet but the cannabis smell had gone. The landlord responded on 17 July 2020 and said that it had spoken with his neighbour. It asked the resident to use diary sheets and record any further incidents for the next 14 days. If there was no improvement in the behaviour of his neighbour he could raise this with the landlord, and it would review the matter further.
The resident emailed the landlord on 7 September 2020 and explained the following:
1. He had not completed any diary sheets as he had been made aware that his upstairs neighbour was moving out, although he was unsure as to whether this had happened. He said that the ASB had stopped but were still nightly/early morning visits to his other neighbour’s property. This was causing issues with his sleep.
2. He had spoken to his other neighbour about the noise disturbances he was experiencing and they had apologised and said that they would move their radio to another room. The resident explained that the noise disturbances from this neighbour continued and that they often had guests in their property. He explained that he was regularly awoken in the early hours by the sound of voices coming from this neighbour’s property. He added that he was concerned that there were issues with the sound-proofing in the building.
3. He explained that he did not know what he had done to provoke his neighbours or the reason why he could often hear them speaking about him. He said that he had applied to move properties, as the noise was continuing.
The landlord called the resident on 8 September 2020 and explained that the neighbour who had lived in the flat above his had moved away and returned their keys to the landlord. It explained that it would investigate his concern that someone was still living in that property and if needed it would change the locks to ensure the property was secure. The resident expressed concern that the former neighbour was still visiting his other neighbour. The landlord advised that it could not prevent this from happening. The resident expressed concern that this was affecting his sleep and his medical health.
The resident sent an email on the same day and said that he had experienced another night of disturbed sleep. He had been asleep when someone had knocked on his door at around 11pm. He then heard his neighbour talking to someone about the person who had knocked on the door. He said that he had also heard the voice of the previous upstairs neighbour. He asked the landlord to confirm when his upstairs neighbour was moving out as he did not believe that they had moved already. He added that he would take this matter further if nothing was done.
The resident sent a further email to the landlord on 9 September 2020 and explained that when he got home from work the previous night, his upstairs neighbour was at his other neighbour’s property. He said he had heard his upstairs neighbour talking in their flat before they moved downstairs. He asked the landlord to confirm which date his upstairs neighbour was meant to have left the property. He also asked the landlord who the visitor to his other neighbour’s property was. He said that he did not feel he had been treated fairly by the landlord and he did not feel he should be bullied by his neighbours.
The landlord responded on 10 September 2020 and confirmed that it had changed the locks to the door of the above property the previous day. It explained that the resident should no longer hear anyone in the property other than its employees until the property was re-let. It said that if the resident heard anyone in the property out of office hours then it may have been broken into. If this was the case then the resident could contact the police. It confirmed that it had asked the resident’s other neighbour to get in touch regarding the allegations he had made. It said it would get back in touch once it had spoken to his neighbour.
The landlord’s records show that it called the resident on 11 September 2020 and explained that he had spoken to his neighbour about chatting in the early hours and the friendship with the previous upstairs neighbour. The neighbour had advised that only their partner visited their property and they had no friendship with the previous tenant. The resident said that they were lying. The landlord added that it had visited the upstairs property and found no evidence of anyone trying to gain entry. It had also spoken to the previous tenant who advised that they had not been back to the property in two weeks. The resident said that something needed to be done and that he needed to be transferred to another property. The landlord explained that tenants were allowed to have visitors and this would not be classed as ASB. The resident advised that he would be pursuing this matter further. The landlord emailed the resident on the same day to confirm this conversation.
The resident emailed the landlord on 19 October 2020 and expressed concern that the new tenant would be moving into the property above but his previous neighbour was in that property most nights. He did not see how the locks had been changed and felt that the door to the property should have been boarded until the new tenant moved in. The landlord responded on the same day and said that its contractors had been working in the flat and had not seen anything untoward. It confirmed that it would check the flat that week but it did not see how anyone would be accessing the property as the locks had been changed.
The resident sent a further email on 20 October 2020 and again said that the previous tenant was staying in the above property at night. He said that they were there the previous night and he had very little sleep. He asked the landlord to resolve the situation as the circumstances were affecting his health. The resident wrote to the landlord the following day to raise a formal complaint regarding this matter.
The resident sent a further email on 22 October 2020 and reported that there had been noise disturbances the previous night which had again affected his sleep. He expressed concern that the landlord had taken his neighbour’s word rather than his. The landlord responded on 22 October 2020 and explained that it has visited the upstairs flat that day and there was no one living in the flat, it added that the property was empty and there was no sign of damage or evidence that someone had tried to break in. It confirmed that it had spoken to the neighbours, who had said that they had no friendships with the previous tenant. It did not doubt the resident’s comments but could not find any supporting evidence that the previous tenant was occupying or visiting the above flat. It explained that it was unable to investigate this matter further without evidence to support the resident’s claim. The resident responded the following day and asked what kind of evidence the landlord would accept.
The resident sent further emails to the landlord throughout November 2020. He continued to report noise from the above property and stated that he had seen the former neighbour on the stairs. He asked the landlord to explain what kind of evidence it required and stated that he had not received a response to his complaint in various separate emails. He also expressed concern that the regular visits could be breaking the current lockdown restrictions in place because of Covid-19.
The landlord responded on 19 November 2020 and explained that it had spoken to the police who had not found any evidence relating to breaches of current Covid-19 restrictions at his neighbour’s property following a visit the previous evening. It confirmed that there was nothing further it could do in respect of this matter.
The resident emailed the landlord on 20 November 2020 and explained the following:
1. He explained that he had problems with various tenants that had lived in the property above his in respect of ASB. There had been three separate incidents where he had heard several people in the upstairs property until the early hours of the morning.
2. He added that despite the landlord’s confirmation that the previous tenant had not returned to the property, he had seen the previous resident within the communal stairwell and they had friendships with some of his neighbours.
3. He felt that the landlord could do more to investigate this matter given that he had reported the issue on several occasions. He said that the current issues of noise, disruption and intimidating comments from his neighbours were causing distress and affecting his sleep and health. He had applied for a property transfer but said that it would be some time before a suitable property became available.
The resident emailed the landlord on 23 November 2020 and said that the upstairs property had several visitors again and were disruptive into the early hours. The landlord acknowledged the resident’s complaint on 24 November 2020 and confirmed that it would respond within 20 working days.
The landlord’s records show that a telephone call took place between the resident and the landlord on 3 December 2020 where an incident which occurred on 1 November 2020 was discussed. The resident expressed concern that he had been unwell and he had heard his neighbour make derogatory comments about him that day. The landlord agreed to investigate the incident and involve the police to report the incident as a hate crime. It added that it would discuss the outcome of the investigation with the resident following the visit to the property. The landlord completed an ASB interview record form and forwarded a copy to the resident on the same day.
The landlord issued its stage one complaint response to the resident on 3 December 2020 and explained the following:
1. It had reviewed its correspondence with the resident and found that it had investigated his reports of noise nuisance from June 2020 and spoken to the relevant parties. It had asked the resident to complete diary sheets however these were not returned. The next report it had received was in September 2020 where the resident reported noise from another neighbour.
2. It was satisfied that it had followed its policies and procedures for dealing with noise nuisance and ASB and noted that the police did not take any action or identify a breach of lockdown restrictions. It believed that the resident’s reports related to general household noise and did not constitute ASB.
3. It expressed concern regarding the derogatory comments the resident had heard and believed to be aimed at him. It acknowledged that the resident should have been contacted on the same day of the report to discuss this further. It confirmed that it worked with the police on such matters and said it would conduct an investigation.
4. In relation to the resident’s comments that the previous occupier of the upstairs property was still staying in the building at night, it had not been able to substantiate that the former tenant had, at any time, returned to the property. It was satisfied that it had investigated the resident’s reports thoroughly and concluded that the former tenant was not living at the property based on its investigations. The landlord confirmed that the resident could escalate his complaint to stage two of its internal complaints process should he remain dissatisfied.
The resident emailed the landlord on 15 December 2020 and explained that there had been noise disturbances from the upstairs property the night before. He said that the noises included moving furniture, speaking loudly and banging as if putting furniture together. The landlord called the resident to discuss his report of noise nuisance on the same day and completed a further ASB interview form. The landlord agreed to contact his neighbour to discuss the incident. The landlord wrote to the resident on 18 December 2020 and explained that it had visited his new upstairs neighbour and discussed the issues the resident had reported. It asked the resident to keep a diary log of further incidents so it could investigate the matter and establish whether ASB was being perpetrated.
The resident emailed the landlord on 30 December 2020 to escalate his complaint and explained the following:
1. He said that he had previously used noise recording equipment and would be willing to use this in the hope that it would provide evidence to show that the former tenant was still residing at the property. He asked these to be placed near the ceiling and for cameras to be placed.
2. He reiterated his position that the ASB had significantly affected his mental health and said that he had not completed diary sheets as he was in regular contact with the landlord regarding the noise disturbances. He did not agree with the landlord’s conclusion that the property had been empty in the void period between tenants. He said that this was not true and that the landlord should be visiting the property when the events were occurring without broadcasting the visit to any other party.
3. He believed that he was experiencing excessive noise which would constitute ASB as the noise was through the night and into the early hours of the morning. He did not feel he had been supported by the landlord. He maintained his position that the previous tenant was still living in the upstairs property with their partner and the new tenant and regularly spoke to other neighbours. He added that the landlord had not resolved the issues or handled his complaint to his satisfaction.
The resident reported further noise incidents on 12 January 2021. He did not understand why the situation was being prolonged. He added that he felt his neighbours should be moved to alternative empty properties in the area. The landlord responded on 15 January 2021 and said that it had reviewed his comments and determined that the noises he reported related to everyday household noises and would not be considered ASB. It said that it was unable to take any further action as the noise was attributed to general household noise. It added that he could contact the police for further investigation of any lockdown breaches.
The resident responded on 22 January 2021 and expressed dissatisfaction with the landlord’s response. He said that as the noise disturbances occurred between 11pm and 6am, it should be classed as ASB. The landlord’s records show that it called the resident on 9 February 2021 to discuss the option of mediation. The resident stated that this would not be successful as he would need to speak to the former tenant and the landlord had stated that they no longer lived there and were no longer a tenant of the landlord.
The landlord issued its stage two complaint response to the resident on 12 February 2021 and explained the following:
1. It was satisfied that it had responded to the issues the resident had raised and would continue to do so. It had reviewed the specific incidents to which the resident had referred and said that the noise generated by his neighbours would not constitute ASB. It noted that the resident had recording equipment and would try to procure additional evidence in support of his complaint. It confirmed that it would continue to review this matter if he was able to submit further evidence.
2. It acknowledged that the resident did not agree with its position regarding his claims that the former upstairs neighbour continued to reside in the property. It explained that whilst it was sometimes able to undertake covert surveillance, the circumstances in which this could be used were limited and were not available in relation to the resident’s claims. It had been unable to substantiate whether the former tenant continued to live at the property despite its efforts to do so. It advised the resident to report any activities which were in breach of Covid-19 restrictions to the police.
3. It was satisfied that the complaint had been handled correctly and it agreed with the outcome communicated at stage one. It confirmed that it would continue to respond to any concerns the resident had regarding ASB. The landlord explained that if he was dissatisfied with this response, he could contact the LGSCO.
The resident emailed the landlord on 15 February 2021 to accept its offer of mediation. The landlord responded on 17 February 2021 and explained that it had spoken to his neighbours who said that they were willing to go through the mediation process. It confirmed that it would initiate the referral to the mediation service.
The resident continued to discuss his housing options with the landlord following its stage two complaint response. In May 2021 he emailed the landlord as he continued to experience disruptive noise from the above property, including items being dropped on the floor constantly, which he felt was intended to prevent him from sleeping. He said that he was attempting to gain photographic evidence of the former tenant who he said was still regularly visiting the upstairs property.

Assessment and findings

Scope of investigation

The resident has said he considers that the ASB and noise issues have impacted his health. The Ombudsman does not doubt the resident’s comments. However, it is beyond the expertise of this Service to make a determination on whether there was a direct link between the noise issues and the resident’s health. The resident may wish to seek independent advice on making a personal injury claim if he considers that his health has been affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced because of any errors by the landlord.

The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from his neighbours.

It is evident that this situation has been distressing for the resident and this has been considered when looking at the complaint. However, it should be noted that the role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
In line with its antisocial behaviour policy, the landlord has an obligation to investigate reports of ASB and respond appropriately. The resident has accused his neighbours of noise nuisance, which would fall under the heading of ASB, as set out in the landlord’s ASB policy. The landlord’s ASB policy states that the landlord would take proportionate action in all cases of ASB. This would include initially taking low level intervention measures such as home visits, warning letters to neighbours, mediation, counselling and environmental improvements. In line with its ASB policy, the landlord should take steps to address complaints regarding ASB and noise nuisance promptly. Where a hate crime or incident is reported, the landlord should contact the complainant the same day to discuss the incident and investigate it thoroughly.
For a landlord to take formal action in respect of ASB, such as formal warnings, injunctions etc, the landlord would require extensive evidence of the alleged behaviour to support formal action. A landlord should generally only consider taking formal action if informal attempts have been unsuccessful in resolving the issues. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both the landlord and the local authority’s Environmental Health service may be able to warn and take formal action against the perpetrator.
In this case, the landlord took reasonable steps to investigate and seek evidence of the resident’s reports of ASB by asking the resident to complete diary sheets and discussing his reports with the neighbours concerned. The landlord also offered the use of its mediation service to the resident. It was reasonable for the landlord to offer mediation as it can be helpful in resolving neighbour disputes in some cases. It is noted that the resident and his neighbours agreed to participate in mediation in February 2021, however, it is unclear if this has now gone ahead. It is recommended that the landlord honours its offer of mediation should this not have been completed already, if the resident and his neighbours remain willing to participate.
It was reasonable for the landlord to say that the resident’s reports of everyday household noise would not be considered ASB. However, following the resident’s continued reports that he was often awoken at night by noises such as loud talking and banging, it would have been appropriate for the landlord to use noise monitoring equipment or signpost the resident to its Environmental health service to identify whether the noise he experienced was excessive, and whether it would be considered a statutory noise nuisance. Noise monitoring equipment can also be useful in identifying whether any environmental improvements should be considered to prevent noise transference into the resident’s property, such as sound-proofing or floor underlay. The landlord does not appear to have considered these measures in line with its ASB policy and as such, it is recommended that if the resident reports that the noise is still continuing, the landlord considers using noise monitoring equipment to establish whether the noise experienced by the resident is excessive.
There has also been poor communication by the landlord in that it failed to respond to the resident on several occasions and did not address his reports of hearing derogatory comments about him from his neighbours or further reports of noise promptly in line with its ASB policy. Furthermore, several of the resident’s emails sent in October and November 2020 were unanswered by the landlord. The resident had asked for further information about what sort of evidence he should provide to support his claim that his former neighbour was still living in the upstairs property.
The Ombudsman does not doubt the resident’s comments regarding the previous neighbour and their partner continuing to live in the upstairs property after their tenancy had ended. However, the landlord has demonstrated that it took appropriate steps to investigate the resident’s concerns on this matter by speaking to his neighbours and the former tenant who stated that they had not returned since moving out of the property. The landlord also attended the property on several occasions and found that there was no sign of forced entry or belongings in the property which would indicate that someone was living there during the period before the new tenant moved in.
The resident has expressed concern that the landlord had not attended the property at the correct time of day to witness the former tenant within the upstairs property. Whilst the Ombudsman understands the resident’s reasons for requesting such a visit, we must also consider the fact that the landlord has limited resources and it would not be expected to arrange for its staff to visit the property at night at the resident’s request. Furthermore, the landlord would not be able to take any action about former tenants visiting the building or staying with other neighbours for a limited period. In line with the tenancy agreement, residents should not have others living with them permanently without telling the landlord, but the landlord should not refuse permission for this without good reason. Residents are allowed to have visitors, including overnight guests and they would not be obliged to notify the landlord of this. The Ombudsman has not seen any evidence to suggest that the former neighbour was banned from visiting the building to see other tenants (although they should not enter their former property), and therefore there would be no basis for the landlord to take any action against them if they were found to be in the building. Ultimately in this case, there is a lack of evidence to confirm whether the former tenant was living in or visiting the upstairs property and the landlord has taken reasonable steps to investigate this matter.
The resident also raised concern that the lockdown restrictions in place because of Covid-19 had been breached by his neighbours, who he claimed were regularly visiting each other’s properties. The landlord gave appropriate advice to the resident in that this would be a police matter, and that the resident had concerns about potential lockdown breaches he should contact the police.
In summary, there has been service failure by the landlord in respect of its response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from his neighbours. Following the resident’s continued claims of being awoken at night by noise from his neighbours’ properties, it would have been appropriate for the landlord to look at using noise monitoring equipment or signpost the resident to its Environmental health service to identify whether the noise he experienced was excessive. There has also been poor communication by the landlord in that it failed to respond to the resident on several occasions and did not address his reports of noise promptly in line with its ASB policy. In view of this, the landlord should offer the resident compensation for the inconvenience caused by its poor communication. If the resident reports that the noise is still continuing, it is also recommended that the landlord considers using noise monitoring equipment to establish whether the noise experienced by the resident is excessive.

The landlord’s handling of the associated complaint.

The landlord’s complaint policy states that it has a two–stage process for dealing with complaints. At stage one the landlord should acknowledge the complaint and formally respond within 20 working days. If the resident remains dissatisfied, they can escalate their complaint. At stage two, the landlord should respond within 20 working days.
In this case, the landlord failed to address the resident’s initial complaint raised on 20 October 2020. At this stage it would have been appropriate for the landlord to address the resident’s concerns under its formal complaints policy as attempts had previously been made to investigate his concerns of noise nuisance and ASB. The resident referred to his formal complaint in correspondence on 11 and 19 November 2020. It would have been appropriate for the landlord to check whether a formal complaint had been raised correctly at this stage and managed the resident’s expectations concerning when he would receive a response.
A stage one complaint was eventually acknowledged on 24 November 2020 and responded to within an appropriate timescale. There was a delay in providing a stage two response which was issued 11 working days outside of the landlord’s 20 working day timescale at stage two. There is no evidence to suggest that the resident was informed of the reasons behind any delay or kept regularly updated.
In summary, there has been service failure by the landlord in respect of its handling of the associated complaint. The landlord failed to address the resident’s initial complaint raised on 21 October 2020, there were subsequent delays in providing its stage two response. The landlord should offer the resident compensation in recognition of the inconvenience caused by its poor complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in in respect of its response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from his neighbours.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint

Reasons

It would have been appropriate for the landlord to consider using noise monitoring equipment or referring the resident to Environmental health given the resident’s claims that he was regularly awoken by noise from his neighbours’ properties. The landlord also could have communicated more effectively with the resident by responding to his emails and queries about the type of evidence he should be submitting to support his claims.
The landlord failed to acknowledge the initial complaint raised by the resident on 21 October 2020 which is likely to have caused some inconvenience as the resident was under the impression that he was due to receive a response. There was also an unexplained delay in providing a stage two complaint response to the resident which is likely to have caused him some distress and inconvenience. The landlord should pay compensation to the resident for this, as set out below.

Orders

The Ombudsman orders that the following actions are taken within four weeks:
1. The landlord is to pay the resident £200, comprised of:
  1. £100 in recognition of the inconvenience caused by its poor communication concerning the ASB case.
  2. £100 in recognition of the inconvenience caused by its poor complaint handling.

Recommendations

It is recommended that the landlord honours its offer of mediation should this not have been completed already.
If the resident is continuing to report noise from his neighbours, it is recommended that the landlord considers using noise monitoring equipment to establish whether the noise experienced by the resident is excessive.