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LiveWest Homes Limited (202104369)

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REPORT

COMPLAINT 202104369

LiveWest Homes Limited

28 September 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:
  1. The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) from a neighbour (neighbour A).
  2. The effect of the ASB on the resident’s health.

Jurisdiction

  1. 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.

The effect of the ASB on the resident’s health.

  1. In accordance with paragraph 39(i) of the Scheme, the Ombudsman will not investigate complaints which 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.
  2. The resident has complained that the stress of the ASB she has reported has negatively impacted her health and affected her employment. She has requested compensation for this. Unfortunately, in accordance with paragraph 39(i) the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Background and summary of events  

  1. The resident is a leaseholder of her flat. The landlord is the freeholder. Her neighbour (neighbour A) is the landlord’s tenant and his flat is located next to the resident’s.
  2. On 23 March 202the resident reported to the landlord that she had been disturbed by noise at night from neighbour A’s property. This had included shouting, thumping on the wall and furniture being moved for three to four weeks. She said that another neighbour (neighbour C) told her they witnessed the noise and on one occasion, the resident was concerned by the shouting and called the police. The landlord replied on 24 March 2020, asked if the resident spoke to neighbour A about the noise, and asked her to use its noise app and keep a diary of when the noise occurred. It said it would contact neighbour A and the neighbourhood policing team to investigate. The resident replied that she had been unable to contact neighbour A, and was concerned for her safety in doing so because she believed neighbour A had mental health issues and used cannabis.
  3. Between 13 April and 6 May 2020, the resident reported noise (including loud music, shouting, and banging) during the night on several occasions to the landlord. Another neighbour (neighbour B) reported hearing shouting from the vicinity of neighbour A’s property.  The landlord listened to the resident’s noise app recordings, but could not hear anything, and spoke with neighbour A on two occasions, who gave his account of events. He provided an explanation for some of the noises which he felt could be him, such as moving furniture before a house viewing, but said he did not believe that some of the other reports were related to him.
  4. The landlord updated the resident on 6 May 2020. It explained that there was no evidence for it to progress the matter further and asked the resident to report any further incidents. The resident expressed her disappointment that the landlord accepted neighbour A’s explanations for the noise and did not deal with her reports of cannabis use or “the possible domestic violence going on”. She asked the landlord to help her liaise with the local authority regarding noise monitoring equipment. The landlord replied and reiterated that it was unable to progress the matter without evidence and advised the resident to report any drug use or domestic violence concerns to the police. It confirmed it could help the resident with the local authority.
  5. On 15 and 16 July 2020 the resident reported further noise from neighbour A, including music and voices during the early hours of the morning. She explained the impact that this had on her. She said that the noise app did not pick up the noise well. The landlord asked her to test the app by recording her television.
  6. On 4 August 2020 the resident advised the landlord that the noise she experienced from neighbour A had reduced; however, a neighbour contacted her regarding an alleged domestic incident in neighbour A’s home, including shouting and crying, and so she phoned the police out of concern for neighbour A’s partner.
  7. The local authority advised the resident on 5 August 2020 that it had booked a provisional date for noise monitoring equipment to be installed on 11 September 2020.
  8. Between 7 and 28 August 2020 the resident reported several incidents to the landlord, including neighbour A shouting and thumping the wall, playing loud music, banging, moving furniture, and shouting about somebody calling the police. The resident had called the police on multiple occasions and had recorded some of the noise. She asked for an update from the landlord. Another neighbour (neighbour D) also reported noise to the landlord, including shouting.
  9. The landlord and police completed a door knocking exercise in the building on 28 August 2020. It subsequently updated the local authority about the actions it had taken, and that the noise was not reported to be impacting on most of the other residents.  The landlord proposed a multi–agency meeting with neighbour A’s social workers and noted that the resident said noise monitoring equipment was installed and “all was quiet”.
  10. Between 1 and 28 September 2020 the resident contacted the landlord on several occasions. She confirmed she had approached neighbour A about the noise and its impact, and had had a productive conversation. After this she reported further noise but did not want neighbour A to know she had contacted the landlord. She felt neighbour A was making attempts to improve but needed “steering in the right direction” by the landlord.
  11. However, on 29 September 2020 the resident reported that she rang neighbour’s A’s intercom to speak with him about noise he was making one night. She had heard him shout from inside and he had then left his flat and shouted abuse (she had returned to her flat by this stage). The resident called the police. The landlord replied that it was investigating the issue, and that neighbour A said that he thought someone was “messing around with him and that he didn’t chase anyone”. It confirmed it was waiting to hear from the police with their view on the situation and the resident should call the police if she felt threatened.
  12. On 1 October 2020 the resident reported witnessing neighbour A acting aggressively and shouting at his visitor, resulting in the resident and other neighbours calling the police. She made further reports of noise from neighbour A’s property and the landlord made an appointment to carry out a “subjective sound test” on 16 October 2020, involving a visit to the resident and neighbour A’s properties to check noise levels.
  13. The landlord completed its sound test, alongside the local authority, on 16 October 2020. In its notes from the test, it confirmed that when music with a lot of bass was played from neighbour A’s property, this could be heard in the resident’s property. The landlord also confirmed that the noise from internal doors and kitchen cupboards could be heard from neighbour A’s flat, and when neighbour A was asked to shout loudly, this was heard in the resident’s home. The landlord noted that it informed neighbour A that when he and his partner argued, this could be heard and was upsetting for neighbours. The landlord created an action plan to look into changing neighbour A’s kitchen cupboard, drawer and door hinges; for neighbour A to arrange for carpets with underlay to be fitted; and neighbour A to work with his support network on his voice levels.
  14. The resident continued to report noise incidents by neighbour A. The landlord explained, on 20 October 2020, that it would carry out an internal case review. The case review meeting was held on 23 October 2020. The meeting notes state that the landlord would suggest mediation between the two parties. It noted that “current evidence suggests difference in lifestyle rather than ASB” and that there was not enough evidence to take tenancy enforcement action.
  15. On 26 October 2020, following a call from the resident, the landlord raised a complaint on her behalf about its handling of her ASB reports. It noted that there had been mediation (this appears to refer to the resident and neighbour A’s informal conversations), which had not worked; the resident had used the noise app but was unable to obtain enough evidence; and the landlord visited neighbour A regarding the noise, but the resident felt he had ignored the advice given. The resident was struggling to sleep in her home and felt that her attempts to mend the relationship with neighbour A had not worked. The landlord acknowledged the complaint and said it aimed to respond by 3 November 2020.
  16. The resident and local authority corresponded on 26 October 2020. The local authority arranged for sound monitoring equipment to be installed on 30 November 2020. It explained that the evidence it had from the previous installation (it is not clear what dates sound monitoring equipment was installed) was normal living noise, albeit during the night. The local authority informed the resident that the layout of the flats and soundproofing issues did not help with this, and the landlord could address some issues by installing soft closure hinges on the cupboards. It advised the resident that noise caused by prolonged episodes of rage, thumping on the walls and turning music up and down was not living noise, but evidence of this would be required, such as via the noise app or sound monitoring equipment.
  17. On 27 October 2020 the resident asked the landlord if it could share the information on the reports made by other neighbours with the local authority. There is no evidence of any response from the landlord.
  18. On 31 October 2020 and 5 November 2020 the resident provided the landlord with her completed diary sheets. The landlord’s internal note of 5 November 2020 says that it spoke with the resident regarding her concerns about the ongoing noise she experienced and agreed further time to investigate the complaint. The landlord said that it would respond by 13 November 2020.
  19. On 11 November 2020 the landlord wrote to resident A to arrange an interview for 13 November 2020 regarding the reports of ASB.
  20. On the same day the resident expressed her concern that she believed there was a lack of written communication from the landlord to resident A regarding the ASB. She said that she had received an email from the landlord advising that it was trying to contact neighbour A by telephone (this Service has not received a copy of this email) and the different agencies involved were not copied into it. The resident was therefore concerned that the landlord was not working with and sharing information with the other agencies involved in the case. The landlord replied that it had written to neighbour A and it was “often not appropriate to be copying all into e-mails in a professional capacity and it doesn’t mean that information is not being shared”.
  21. The local authority wrote to the resident on 12 November 2020 to advise that noise witnessed on 6 December (this date appears to be a mistake) was at a level deemed to be a statutory noise nuisance. It said that a legal notice was being drafted and would be served on the responsible party. It confirmed it had already contacted the landlord.
  22. On 13 November 2020 the landlord advised the resident that it had concluded its stage one investigation and arranged to call her on 17 November 2020 to discuss it.
  23. The resident reported, on 16 November 2020, that she had called the police after hearing shouting and banging noises from neighbour A’s property. On the same day the resident told the landlord that the police had sent neighbour A a community protection warning letter. She asked why the landlord had not done similarly.
  24. On 17 November 2020 the local authority issued a noise abatement notice to neighbour A.
  25. Following a call with the resident, the landlord wrote to her on 17 November 2020 to advise that it would send its written response to her complaint on 18 November 2020. It clarified a point discussed in the telephone call about acceptable behaviour contracts (ABC, a voluntary written agreement which is signed by an individual committing anti-social behaviour.  In signing the contract, the individual agrees to abide by the terms specified and to work with the relevant support agencies. They are not legally binding, however, if breached, they can be used as evidence to illustrate that enforcement action is required as the non-legal tools have been unable to successfully tackle the problem). It said neighbour A had started his tenancy with an ABC in place, which had been reviewed regularly. It confirmed it would discuss the latest reports with neighbour A and continue to liaise with partner agencies.
  26. In the landlord’s stage one response, dated 18 November 2020, it said it was satisfied that it worked closely with the local authority to find solutions to the ASB. It concluded that its information-sharing with other agencies had been appropriate. It said it found it difficult to substantiate the reports of noise and offered mediation, carried out a subjective sound test, and the local authority installed noise monitoring equipment which proved inconclusive.
  27. However, the landlord found that there was service failure that it had not drawn up an action plan with the resident, which would have been an opportunity to manage her expectations and provide information. Additionally, it said it should have reviewed the situation every two weeks with the resident. The landlord also said a discussion with her about information-sharing and how agencies work together would also have been helpful. The landlord confirmed that the findings would be shared with the teams involved and apologised for any dissatisfaction that the issues identified caused.
  28. On 23 and 24 November 2020 the resident asked the landlord how it reviewed the ABC when incidents were reported if the landlord was liaising with the local authority after the enforcement notice had been issued. She also asked for information on the next steps available.
  29. The resident reported a hearing a “domestic incident” in resident A’s home on 28 November 2020 which was reported to the police. However, on 30 November 2020 the resident and local authority agreed to postpone the noise monitoring equipment installation because “generally it has been quiet and there has been no music”.
  30. On 1 December 2020 the resident contacted the landlord and advised that she and neighbour C had witnessed further incidents. She had contacted the police due to a “domestic” in neighbour A’s property. She asked the landlord whether these incidents meant that any further action could be taken and if the landlord could look into sound insulation because she could hear the slightest household noise from neighbour A’s property. On the same day the landlord acknowledged the resident’s recent report and arranged to call her that day. The landlord received confirmation of the ASB reports by a different resident, while another resident said things appeared to be improving.
  31. The resident reported on 6 and 7 December 2020 that she was kept awake by banging, video game noises and voices from neighbour A. She said that she could hear a lot of noises which she felt should not be so clear to her and may be helped by sound insulation.
  32. On 8 December 2020 the resident asked the landlord to escalate her complaint. She said she had been informed by the landlord in the week prior (it is not clear whether this was by telephone) that it had not shared her neighbours’ reports of noise with other agencies, which she felt would have been appropriate and relevant to share. The resident also said she had unanswered questions, detailed in her email of 24 November 2020 and she was particularly concerned about a lack of information sharing with relevant agencies and a lack of enforcement action as a result of breaches of the acceptable behaviour contract/notice served.
  33. The landlord acknowledged the escalation request, and also said it was arranging a further a sound test, waiting for confirmation of the soft door closure repair order, and that neighbour A was making progress with carpets, but they had not yet been fitted. The landlord said it would contact the resident every two weeks to review the situation and update her.
  34. The resident replied that carpets were initially discussed in August 2020 and asked why there was a delay in these being fitted. She also reported a further incident of a domestic disturbance from neighbour A and his partner that day. The landlord replied that the matter of the carpets was out of its control and something it continued to work with neighbour A about. It also reassured her that relevant information was being shared with partner agencies where appropriate.
  35. On 10 December 2020 the landlord wrote to resident A to arrange to review his ABC.
  36. The resident and other neighbours made further reports of noise nuisance in mid to late December 2020. Recordings were provided, but the landlord explained they did not contain suitable evidence. Nonetheless, it asked that they continue using the noise app.  The landlord advised that it would update the resident on the case during its next review with her on 5 January 2020. It also advised there was a delay in its complaint response, which it would issue by 8 January 2021. The landlord contacted neighbour A about the further noise reports.
  37. The resident received the local authority’s community trigger review report at the end of December 2020. The report explained that, after reviewing the case files of the police, local authority and landlord, all agencies had acted reasonably in relation to handling the ASB; however, the matter was still open for all agencies involved. It said the resident seemed to expect the matter to be concluded by way of eviction, but this was an unrealistic expectation given the engagement received from resident A. The local authority recommended and would arrange mediation. It also commented on data protection, explaining to the resident that there were restrictions on sharing some types of information without the permission of the relevant parties.
  38. In December 2020 the landlord and police corresponded regarding the case. On 27 December 2020 the police advised the landlord that it would issue a revised community protection notice warning letter, which could be escalated if there was no improvement. The resident continued to report noise from neighbour’s A property to the landlord and police. In late December/early January 2020 the landlord corresponded with its contractor regarding a quote to check soundproofing between the resident and neighbour A’s flats.
  39. On 4 and 5 January 2021 the landlord internally corresponded that it could hear shouting on the resident’s noise app recordings and spoke with neighbour A about it
  40. In the landlord’s stage two response, dated 6 January 2021, it said that it found its contact with other agencies in the case to be of a good standard. It explained in detail how it balanced its data protection obligations with the need to share information with other agencies when dealing with serious ASB. It said it could not see any instances where it had not provided information when requested by another agency, and said it had responded to requests in a timely manner.
  41. The landlord reiterated that it should have agreed an early action plan with the resident and updated her more. It explained that case reviews formed a part of the escalation process, which enabled it to consider the available options. It acknowledged the resident’s concerns about neighbour A’s apparent breaches of ABCs and tenancy warnings but explained that the case involved complex health issues, and it had worked with agencies to avoid the risk of homelessness to neighbour A. The landlord concluded that it had responded appropriately to the resident’s concerns and tried hard to find a solution.
  42. Moving forward, the landlord confirmed it had completed a further case review and was now at the stage where it could consider further action. Neighbour A’s management of his tenancy had deteriorated to the level where the landlord would begin enforcement action on the basis that it would have supporting witness statements.
  43. Due to the wider increase of ASB reports generally, the landlord advised it had provided extra training to staff, extended its coaching service and was able to fund mediation which was available to the resident. It also offered to fund a session with solicitors specialising in ASB case management, who could provide the resident with advice and guidance on other actions available to her, such as potentially taking her own legal action against her neighbour.
  44. In her complaint to the Ombudsman the resident explained in detail her concerns about the landlord’s handling of her ASB reports and complaints, with a particular focus on the standard of their communication with her. She gave as examples her contact with her housing officer and other officers, primarily in the period after the landlord’s final complaint response.

Assessment and findings

Policies and procedures

  1. The landlord’s ASB policy and procedure details the landlord’s approach to investigating and resolving reports of ASB. It advises that all residents are responsible for their own actions as well as their household’s and visitors’. Where actions and behaviours cause conflict but are the result of lifestyle differences, the landlord expects residents to show a degree of tolerance. It expects residents to raise concerns directly with their neighbour, and will offer advice and coaching on this, and may offer mediation. There will be some occasions when mediation won’t be appropriate due to the circumstances of either or both parties, for example vulnerabilities of any of the parties involved. In these cases, the landlord will investigate and take appropriate action, for example, it may offer to be present during conversations, or work in partnership with other agencies providing support.
  2. In line with the landlord’s ASB Procedure, an action plan must be agreed and shared with the victim, and recorded for each ASB case that is logged. The landlord will provide regular updates to the victim, dependant on the frequency they find suitable. When ASB relates to suspected criminal activity the landlord will expect residents to report this to the police.
  3. The landlord’s ASB policy lists the tools available to it. These include coaching, warnings, acceptable behaviour contracts, referrals to other statutory and voluntary agencies, community resolution and mediation services.  The landlord will aim to minimise homelessness and seek to challenge and change behaviours using tenancy sustainment and the tools available as a landlord. It will only consider eviction as a last resort.
  4. The policy states the landlord will conduct a case review when something significant has happened, in order to reduce any risks of harm. This is normally internal but could also involve third parties and be a full multi-agency review. When appropriate, the landlord will seek the co-operation of and work in partnership with statutory agencies (such as the local authority) in carrying out their duties.
  5. The landlord’s compensation guidance explains that it may make payments for a “goodwill gesture to say sorry” and recognition of the impact of the service failures. The landlord’s compensation guidance includes a guide and impact assessment for discretionary payments.

 

 

Assessment

  1. In the resident’s complaint to the Ombudsman she provided significantly more detail about her concerns about the landlord’s communication quality than she did in her complaints to the landlord itself. Most of the examples she had provided in support post-date the landlord’s complaint responses. The Ombudsman’s remit is focussed on considering how a landlord has handled the substantive issues giving rise to a complaint, and how it handled the complaint itself. Any landlord must be given an opportunity to address a tenant’s concerns before the matter is considered by the Ombudsman. Because of that, this investigation centres on the period of time leading up to the end of the landlord’s complaints process, and on the issues the resident raised with the landlord (rather than with the Ombudsman). That includes issues of communication in general, but not any specific issues which have not been put to the landlord first.
  2. Landlords will generally only seek to have someone evicted for ASB if the behaviour is serious and persistent and all other interventions have failed. To evict an individual, a landlord will also need substantial evidence that it can rely on in court. When it is clear that serious and persistent ASB is occurring a landlord must try to gather evidence to support any formal tenancy enforcement. Residents must also cooperate with a landlord’s efforts if it is to have a chance of success. Even in the most serious of situations, eviction permission is not guaranteed to be granted by a court.
  3. In this case, it was evident that the landlord took reasonable steps to investigate and seek corroborative evidence in line with its obligations, alongside the local authority and police. For example, the landlord provided the resident and neighbours with advice to diarise any incidents and use its noise app to gather evidence. The landlord initially encouraged the resident to speak with her neighbour, met with neighbour A and other neighbours, attended alongside the local authority to conduct sound tests, and considered the results of the local authority’s noise monitoring equipment. It correctly directed the resident to call the police if she felt unsafe or suspected criminal activity.
  4. The evidence shows that the landlord considered mediation between the two parties, for example during its case review on 23 October 2020. At that point, the evidence did not demonstrate that there was a specific noise nuisance, and so mediation may have been a possible way of resolving the problem. However, shortly after the case review the resident raised her formal complaint and explained that she had already engaged in dialogue with neighbour A, but the noise nuisance had continued. Additionally, after this the landlord began to receive further evidence of antisocial behaviour and began building its case to take formal action.
  5. The resident has explained to this Service and the landlord that she was unhappy with its communication with the local authority and police. The evidence shows that, in line with its ASB policy and procedure, the landlord communicated and worked with the local authority and police when appropriate. For example, the landlord and police completed a door knocking exercise on 28 August 2020, the landlord and local authority completed a sound-proof test on 16 October 2020 and, in December 2020 the landlord and police corresponded regarding the case, resulting in the police advising it would issue a revised community protection warning letter. The resident was unhappy that the landlord did not share specific neighbours’ reports of noise with the local authority. However the landlord reviewed its contact with the other agencies and explained in detail how it handled residents’ data, and the circumstances in which it could legitimately share information with outside parties or agencies. The local authority commented similarly in its community trigger report. No evidence has been seen in this investigation of the landlord acting unreasonably in this regard.
  6. In line with the landlord’s ASB policy and procedure, it should have created an action plan with the resident to set out actions it would take in relation to the ASB, the options available to the resident, and agree the frequency of updates. In its stage one response the landlord acknowledged that it failed to complete an action plan with the resident, and that its communication with her could have been better. It said that it should have been updating her every two weeks, and offered to fund a session for the resident to speak with a solicitor specialising in ASB, as a “gesture of goodwill”. While the landlord’s ASB policy and procedure does not specify that the landlord should update the resident specifically every two weeks, the evidence does demonstrate that the landlord proceeded to do this thereafter.
  7. However, it is noted that the resident contacted the landlord on several occasions via email, and received no response. For example, on 23 and 24 November 2020 and 1 and 23 December 2020, the resident asked the landlord for information on how her continued reports of ASB would be progressed, and how acceptable behaviour contracts were reviewed. There is no evidence that the landlord responded.
  8. The landlord’s offer to fund a session for the resident with a solicitor was a constructive one, albeit quite specific, and primarily only relevant if the resident was prepared to undertake such action. It would have been reasonable for the landlord to also consider other remedies it had available to it, such as compensation. The landlord’s compensation procedure allows for discretionary payments based on the impact of any service failure, similar to the Ombudsman’s remedies guidance. None of the evidence indicates the landlord considered that option, and, in the circumstances of the case, that was a failing, leaving the complaint not fully resolved.

 

 

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the complaint about its handling of the resident’s reports of antisocial behaviour from a neighbour.

Reasons

  1. The evidence indicates that the landlord took reasonable actions to investigate the resident’s reports and worked with other agencies such as the police and local authority in doing so. However, the landlord did not create an action plan with the resident, and its communication with her was not always consistent. The landlord identified and acknowledged these failings, and partially remedied them by offering to fund advice and guidance about legal options. However, it did not consider other remedies available to it.

Order and recommendations

Order

  1. In light of the findings of this investigation, the landlord is ordered to:
    1. Pay the resident £200 for the frustration and inconvenience caused to the resident. This payment must be made within four weeks of this report. The landlord should update this Service when payment has been made.

Recommendation

  1. This was a complicated and serious ASB case, and the volume of correspondence between the resident and landlord was predictably large. In the circumstances, it was perhaps inevitable that some communication would go astray or not be responded to. The resident’s frustration when that happened was wholly understandable. It was appropriate for the landlord to acknowledge that it had not always communicated with her, or updated her, as well as it should have. In light of that, it is recommended that the landlord consider what lessons it can learn from this complaint, with a view to improving its handling of correspondence, requests, and enquiries in ASB cases, where the seriousness of the matter and potential impact on a tenant make good quality communication of paramount importance.
  2. The landlord is asked to share the outcome of any such consideration with this Service.