Network Homes Limited (202104214)

REPORT

COMPLAINT 202104214

Network Homes Limited

24 November 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports of noise nuisance.

Background and summary of events

The resident occupied a 2–bedroom flat with her daughter, under an assured tenancy agreement which began on 27 July 2009. The Ombudsman noted there was some lack of clarity as to whether the resident had one or two children so the Ombudsman apologies if that is incorrect. The resident reported that she suffered from depression and anxiety which vulnerabilities the landlord was aware of. She was also the carer for her father who passed away in December 2020.
The resident’s complaint referred to the Ombudsman was about the lack of action by the landlord in relation to noise nuisance, lack of communication, and the amount of compensation offered in relation to acknowledged failures by the landlord.

Legal and policy framework

The tenancy agreement stated that the tenant was forbidden from causing nuisance and annoyance to neighbours, which could include slamming doors and unreasonable noise so that it created a nuisance and annoyance.
The anti-social behaviour (ASB) policy operating till December 2020 stated that ASB included noise nuisance which examples included DIY, particularly at night. The policy’s aim included being clear about what constituted ASB and managing the resident’s expectations. The landlord would also be committed to taking effective, appropriate and proportionate action. It would also formulate and agree an action plan with the person reporting the ASB.
The landlord would take a victim-centred approach. It would assess the vulnerability and support needs of the residents. It also recognised that challenging behaviour may be the result of one or more diverse needs and would seek to work with specialist agencies to help address their needs, which could include carers and support workers. Its approach would include assessing what physical improvements could help reduce anti-social behaviour. While it could take court action, when other approaches did not work, in relation to reports of noise, it would use non-legal routes such as warnings, mediation and acceptable behaviour agreements (ABAs) and “good neighbour” agreements.
The policy set out activities that could cause domestic noise which the landlord considered to be normal household noise which included noisy household appliances, noise caused by children, banging doors and windows.
The landlord reviewed its policy in December 2020 making a number of changes including that that any court action would be a last resort and would only be taken once a proportionality assessment has been completed. Court action could include injunctions and ultimately eviction. However, an eviction would only be pursued where all other actions to tackle the ASB had failed. Legal action would take into account issues raised under the Equality Act 2010.
The landlord’s complaint policy stated that it aimed to respond to all stage one complaints within 10 working days and all stage two complaints within 20 working days. If it were unable to meet the target timescales, it would send a holding letter explaining the reasons for the delay and provide a new target response date. It would keep customers informed throughout the complaint process until the complaint was fully resolved.
In relation to distress, the landlord would pay compensation of £5 per week for “low impact”, £10 per week for “medium impact”.
In relation to the resident’s “time and trouble”, it would pay £1 per week for “low impact”, £3 per week for “medium impact” and £5 per week for “major impact”.
Low impact meant where the complainant had just cause but had not suffered significant inconvenience or distress as a result of the events. Medium impact signified unreasonable inconvenience. Major impact would have regard for the severity of the event.

The scope of this report

The resident stated that she had made complaints since 2015. In correspondence with the landlord in May 2019, she referred to a complaint which was made in February 2019. The resident submitted daily multiple ASB logs in relation to November 2019 and in relation to the period February 2020 to the end of August 2020. The reports reported that noise from her upstairs neighbour began at 9pm and lasted for a period of 2 to 5 hours. The reports cited “Running, stamping, items being dropped repeatedly, noisy doors being opened and closed repeatedly and banging on the floor, child running back and forth, shouting and screaming”. The resident reported disturbed sleep and the noise as having an impact on her mental health. She also reported that it impacted her study and work due to lack of sleep and noise when working at home, in particular following lockdown. It also impacted on her child’s education, the family’s practice of meditation, and general peace and relaxation. There were two reports that on 22 June 2006, the resident called the police and on 1 July 2006 to report loud music. The reports were dated 24 February 2019 with a further copy on 17 March 2020.
Given the reports were the same or very similar, and while the Ombudsman acknowledges that the reports had been made over a lengthy period of time, this investigation will focus on the period from February 2020.

Chronology

The investigation period will end on 23 February 2021. That is because the Ombudsman does not investigate the period after the conclusion of the landlord’s internal complaints procedure, given that the landlord has not had an opportunity to respond to a formal complaint after that period.
The Ombudsman has noted that the resident made reports throughout 2019, and the resident reported a lack of communication from the landlord. On 3 December 2019, the resident asked to raise a formal complaint regarding the lack of communication and support from the ASB team. The landlord proposed a face–to–face meeting with the resident and to open a “fresh” investigation.
On 29 January 2020, the resident reported that matters had improved. However, reports recommenced in February 2020, when the resident began to send noise logs. According to the landlord’s email of 25 February 2020, it contacted the neighbour and asked them to stop the noise.
On 4 March 2020, the resident reported that the warnings were ineffective and asked what the next step would be. She said completing the logs was stressful, in addition to her commitments as a single mother of two, working full time, with a mental health condition and caring for her terminally ill parent. The main issue was the neighbour’s child. She stated that she would escalate her complaint.
The landlord informed the resident on 6 March 2020 that the neighbour had signed an Acceptable Behaviour Agreement (ABA) which stated:
1. She would ensure that her son or anyone within her property was not running around, dropping objects, dragging items after 9pm until at least 8am or make any noise that can be heard from neighbouring properties 9pm until 8am.
The landlord stated that it did not class noise in ‘”social hours” as ASB. It only addressed noise made between 9pm and 8am.
The resident replied on the same day that she was suffering during “social hours” shouting, screaming, and excessive and persistent noise, running back and forth across the property, stamping and jumping repeatedly, as well as using noisy appliances after 10pm and on a frequent basis.
The landlord replied on 9 March 2020 stating that noise prior to 9pm was classed as general household noises. The neighbour’s son had the right to play in his own property when he “arrived home”. It was unable to take legal action based on general household noise.
On 20 March 2020, the landlord stated that it would speak and write to the neighbour. The resident replied stating the lockdown conditions were making the situation worse, as the family were at home. She requested noise recording equipment.
On 30 March 2020, the landlord wrote to state that it intended to issue proceedings but was unable to apply for possession proceedings at the time due to the regulations during lockdown.
On 30 April 2020, the resident reported that she had reached agreement with the neighbour so that her son played in different parts of the property to enable the family to study. However, the arrangement did not last. The landlord replied on the same day that it had contacted the neighbour referring to the ABA agreement and stating it would take legal action.
On 1 June 2020, the resident had spoken to another neighbour and asked that she be a witness. She set out what impact the noise had had on the family’s therapy and well-being.
After multiple contacts by the resident, the landlord wrote to her on 23 July 2020. It acknowledged that speaking with the family was not resolving matters, but it asked the resident to continue to provide the reports for court.
The resident wrote to the landlord on 1 September 2020 stating that the landlord should remind the neighbour of their agreement in any event, as otherwise, it may give the impression that the landlord was not following the matter up. The following day, the landlord told the resident that it would be “starting the legal process”. On 1 October 2020, the resident requested an update and for an explanation of the process. The landlord replied, after a reminder by the resident, that it was still not able to instigate court actions at that time, due to the pandemic.
On 2 November 2020, the resident made another formal complaint regarding the lack of responses and the landlord not sending the neighbour reminders about keeping the noise down. The following day the landlord stated that it would respond by 18 November 2020.
On 5 November 2020, the resident pointed out that possession proceedings were going ahead as at 27 October 2020. She also thought that hearings continued through the pandemic. She requested that “Acoustic Noise Panels” be fitted, preferably in the neighbour’s property.
On 17 November 2020, the landlord provided its first stage response to the resident’s complaint as follows:-
1. It had visited the respective properties and carried out a sound test on 6 March 2020. It consisted of one housing officer observing the child, asking the child to run, jump and drop heavy objects and another to witness the sound. The housing officer in the resident’s property reported that “faint sounds” could be heard in the resident’s property. It stated that it spoke to the neighbour on every occasion the resident sent through her reporting log sheets. It had identified that the child was a vulnerable child and the main noise was due to the child’s vulnerability. It was unable to go into further detail due to data protection. It had now reviewed the case and considered proportionality and concluded it would not be issuing proceedings. It said its housing officer felt ‘compelled’ to say it would, given her ongoing complaints. Its policy did not consider that the noise was enforceable, malicious, and intentional.
2. It recognised “the inconvenience” to the resident but explained it was obliged to act reasonably, proportionately and in accordance with the “Disability Act”. It was exploring other ways to minimise the impact of the noise, including considering the option of rehousing the neighbour.
On 23 November 2020, the resident requested an escalation of her complaint as follows:
1. She disagreed with the authenticity of the “sound test”. She stated that neighbouring residents had noted the noise. She doubted that the landlord contacted the neighbour every time, as the landlord had assured it would do.
2. She acknowledged that the child was vulnerable. She also stated there was noise from the parents including shouting, noisy washing machines, domestic abuse incidences and visitors. The neighbour had informed the resident that they were unable to “control” the child.
3. She acknowledged that the child had a disability but felt that the everyday lives of her and her child was affected. She suffered from chronic depression and anxiety. She stated that she attached a GP letter confirming this. She felt that under the Equality Act 2010, the landlord had a legal obligation to support her. She was working from home and the neighbour’s child did not attend school.
4. She requested adequate soundproofing flooring to the upstairs flat as a ‘reasonable adjustment’ under the Equality Act 2010 to help support her mental health condition. She suggested acoustic underlay mats in the property above. The landlord’s response did not take her disability into account. She stated that the noise did not only cause inconvenience but seriously affected her mental health and wellbeing.
5. In relation to landlord’s choice of words that the housing officer felt “compelled” to state it would issue possession proceedings gave the impression that the housing officer had misled her.
6. Since 30 March 2020, she had been wrongly informed this would go to court. Moreover, completing the logs was to no avail.
The landlord wrote to the resident on 25 November 2020 to say the relevant team would provide a follow-on response by 7 December 2020 rather than escalate to stage two of the complaints process. The resident chased a response a number of times.
The landlord wrote to the resident on 6 January 2021 with its “follow on response”. It had investigated sound proofing but said “at this stage” it was “not in a position to provide this”. It added “the property itself met the right regulations”. However, her neighbour’s property was unsuitable for the family due to medical grounds. It had taken the Equality Act into consideration. It was progressing a move for the neighbour. The neighbour family’s support worker would provide support to the family regarding the child’s behaviour and it would engage with regular dialogue with the neighbour and their support worker.
On 8 January 2021, the resident queried the neighbour’s banding on the housing register as the neighbour had informed her the family was in the lowest priority. On 14 January 2021, she again requested escalation of her complaint. The landlord requested her reasons. It also stated that it could not share the details but assured her it was still possible for the family to be rehoused.
The resident wrote to the landlord on 25 January 2021 expressing her dissatisfaction with the response. It did not justify its refusal to install sound proofing. She wanted the landlord to explain how it had taken the Equality Act 2010 into account. She set out in detail the impact of the noise on her family life, that she felt that the neighbour would not be moved for a long time and she was also concerned that the issue could reoccur. She also asked what steps the support worker had taken.
According to the landlord’s records, mediation was considered but eventually declined by the resident. Regarding the landlord considering soundproofing, as it was a purpose-built block, it was not considered to be necessary.
The landlord provided its final response on 23 February 2021 as follows:
1. It upheld the decision not to issue possession proceedings as it could not justify this due to the child’s disability.
2. It accepted that it failed to provide feedback on the diary sheets and they would not have “held up in court”. It also failed to state what constituted domestic noise. It accepted that it did not make its decision not to issue possession proceedings until the first stage response of the complaint. It attributed this to lockdown.
3. In relation to her report of January 2021 of the use of noisy machinery at unreasonable hours, it had yet to be provided with the exact dates or logs of these incidents. The resident had not made any reports of noise perpetrated by the adults. There was no mention of machinery noises in the logs. Mediation had been agreed. The resident’s reports could be passed on to the support worker so as to explore how matters could be improved.
4. In relation to soundproofing, there was no way of knowing if this would have solved the issue. A recommendation would be made to install soundproofing when the family moved out, but it could not guarantee this. High costs had arisen following the government changes to building safety nationally (after Grenfell), so it had had to make hard decisions about its spending, and this had affected the provision of soundproofing. While enquiries were made as to suitable housing, it could not guarantee that a similar situation could not arise with new tenants.
5. It was actively seeking a suitable property for the neighbour from its own stock.
6. It accepted that the resident had been misled in relation as to whether it would issue possession proceedings.
7. It had improved its processes.
8. It agreed that it failed to provide its “follow up” response at stage one.
9. It apologised for its failings in the previous 18 months.
10. It offered £300 in compensation in relation to its failure to adhere to its ASB policy and a further £50 for its failings “referred to”.
After the completion of the complaints process, it is noted that the landlord confirmed that the property above had carpet laid throughout the property. The landlord monitored its voids list for vacant properties for the neighbours, otherwise it was a question of the neighbours bidding on the local authority‘s housing register, but the lockdown meant few people were moving house. The resident made noise reports that did not only concern the neighbour’s son. As these events post–dated the completion of the landlord’s complaint procedure, the Ombudsman has not commented further on these issues.

Assessment and findings

The evidence shows that the landlord’s communication improved as a result of the resident’s formal complaint in December 2019, in that it responded to the resident’s emails more frequently. It was reasonable that the landlord, on receiving the renewed reports in February 2020, contacted the resident’s neighbour and signed an ABA with the resident. This made clear what the landlord expected of the neighbour. It also acted in accordance with its policy, to seek to intervene at an early stage and deal with noise using a non-formal route.
It was not appropriate that the landlord told the resident that it only addressed noise after 9pm. While it would have been reasonable to do so, its then ASB policy did not differentiate between hours of the day, except in relation to playing music. The landlord exercised its reasonable discretion in that, while its policy stated that noise caused by children was not ASB, it investigated and took action in relation to the resident’s reports by contacting the neighbour and arranging that they sign an ABA. There was, however, no evidence that the landlord set up an action plan with clear timescales. This was not in line with its policy, the purpose of which was for the resident to be given a clear idea of what to expect. The landlord has not provided evidence to this service that it contacted the neighbour every time the resident made a report but there was evidence it was in communication with the neighbour and the family support worker.
While the landlord initially stated that the reports consisted of domestic noise and it would not take legal action, on 30 March 2020 it stated its intention to issue possession proceedings but it was unable to do so because of the stay in possession proceedings due to the Covid-19 pandemic.
It was inappropriate of the landlord to state it was unable to issue possession proceedings. That was not the precise legal position. The position was that the landlord could have served a Notice Seeking Possession, which is a formal required notification of the landlord’s intention of issue of possession proceedings. Moreover, the stay of proceedings did not prevent the landlord from issuing proceedings. The stay was a stay on the court making possession orders and a stay on evictions. The effect, however, would have been similar as any proceedings would have stayed dormant in the court.
It was also inappropriate for the landlord to have stated again on 1 October 2020 that it still could not issue proceedings. The court’s stay on possession proceedings was lifted on 20 September 2020. However, there remained a number of limitations in possession proceedings, though most of those restrictions focussed on seeking possession for rent arrears, rather than on anti-social behaviour.
There is no evidence that the landlord deliberately sought to mislead the resident. The situation was complicated and changed a number of times during the pandemic. The position of the courts was unpredictable as it was responding to an unprecedented pandemic. However, given the changing nature and complexity of the situation, the landlord’s housing officers ought to have sought information from its legal department, in order to provide accurate information to the resident. The resident herself found information on-line that was not in line with the landlord’s information.
The Ombudsman’s view is that the landlord’s decision not to issue proceedings, given the neighbour’s child disability was appropriate. Even though it was only in December 2020 that its ASB policy stated that the landlord would take the Equality Act 2010 into account, it was obliged to do so in any event, as a matter of law. Issuing proceedings in those circumstances could have been deemed to be unlawful and in breach of the Equality Act 2010. They may not have been successful in any event, as the court would have taken the neighbour’s family’s circumstances into account in its decision making.
While the Ombudsman does not criticise the landlord for reaching the conclusion that it did, the landlord ought to have considered its decision whether it would issue proceedings against the neighbour much sooner, and prior to assuring the resident on several occasions that it would issue proceedings. It was inappropriate of the landlord not to have provided correct information. It raised the resident’s expectations, caused frustration, and also led to some loss of faith in the landlord. She was put to the inconvenience of logging her reports which she found onerous. In addition, an earlier decision may have led to an offer of a direct let to the neighbour being put in hand sooner. However, it is noted that house moves were delayed by the pandemic in any event, so in practical terms, making the offer sooner may not have had a significant impact.
The resident’s complaint was that she herself was disabled and the landlord should have regard for this. It would have been reasonable of the landlord to have explicitly addressed this point and to explain in which way it had taken her disability into account. The landlord did not express itself helpfully at times. It referred to the housing officer feeling “compelled” to state it would issue possession proceedings and it referred to the impact of the noise on the resident as an “inconvenience”.
While its language at times gave a different impression, the evidence showed that the landlord took the resident’s reports seriously. It did not dispute, despite its unfortunate language at times, that the noise impacted on the resident. Despite domestic noise not constituting ASB in accordance with its policy, the landlord considered sound insulation. It considered issuing possession proceedings which is not a step a landlord would take lightly. It conducted a sound test. It checked the neighbour’s flooring.
Once the landlord had concluded that it could not issue proceedings, its options were limited. It had entered into an ABA with the neighbour. It was in regular contact with the neighbour and the support worker. Finally, while for other reasons as well, it agreed to offer a direct let to the neighbour. It offered mediation through an independent service.
It was appropriate and in accordance with the landlord’s policy to consider physical adjustments to reduce ASB. Indeed, given under the policy the noise caused by children was not deemed to be ASB, it considered soundproofing, despite it not being strictly necessary under that policy. Its explanation that it was not able to install sound insulating equipment due to cost was reasonable. It was also entitled to reach the conclusion that sound insulation was not necessary. There was insufficient evidence as to whether the landlord had a duty to make reasonable adjustments in accordance with the Equality Act 2010. In any event, cost could be a justification for not installing sound insulation. Moreover, the neighbour’s floor was laid with carpet. The landlord had also been entitled to take into account its own noise test.
In relation to the resident’s complaint that the adult neighbour also created noise, there was insufficient evidence during the period of the complaints process to support that was the case. There was one reference to “noisy appliances” in her email of 6 March 2020 which was an example of noise that the landlord considered to be domestic noise. There was also a reference to loud music dated 2006 (a date prior to the start of the resident’s tenancy) relating to February 2019, therefore not only anomalous but historical and was not pursued. While the resident did not specify in her report logs who was making the noise, it was a reasonable conclusion from the correspondence that the reports and complaint were in relation to noise made by the neighbour’s child. It was therefore reasonable that the landlord only focussed on the noise generated by the neighbour’s child and not that generated by adults.
Given the resident only referred to adult noise late in the complaint process, the actions as a result of those reports took place after the completion of the landlord’s internal complaints procedure. Accordingly, that aspect is beyond the scope of this investigation. That is because it was not part of the resident’s original complaint and the landlord has not had the opportunity to respond to that aspect.
The landlord acknowledged its failings in its communication and delay in its complaint response. It accepted that it had raised the resident’s expectations. The landlord offered compensation of £350: £300 for the period of 18 months in relation to its responses to the ASB reports and £50 in relation to its complaint handling. Given the landlord acknowledged its failings and offered compensation, it falls to the Ombudsman to consider whether the offer of compensation was fair.
The landlord’s acknowledged poor communication would have caused the resident frustration, in particular to be told proceedings were to be issued when this did not occur. If the landlord had not offered compensation, the Ombudsman would have found a service failure. However, the offer was broadly in line with the landlord’s own policies.
The Ombudsman can fully appreciate the impact the noise had on the resident and her family, particularly during the pandemic and periods of lockdown. The Ombudsman recognises the emotional and psychological impact of the landlord’s delays, and late decision process regarding proceedings. However, the landlord offered such solutions as it was able to. The offer was in line with the Ombudsman’s own orders which tend to be modest and are non-punitive. Guidance on remedies (housing-ombudsman.org.uk). On that basis, and taking all the circumstances into account, in the Ombudsman’s opinion, the offer of compensation was reasonable.

Determination (decision)

In accordance with paragraph 55 of the Ombudsman’s Scheme, in the Ombudsman’s opinion there was reasonable redress offered by the landlord in relation to the resident’s reports of noise nuisance.

Reasons

The landlord acknowledged its significant delays and that it raised the resident’s expectations. It also provided misleading information and its communication was sporadic. However, the evidence showed that the landlord took the reported noise nuisance seriously. The landlord communicated with the neighbour, liaised with the neighbour’s support worker, it agreed to offer the neighbour a move, and it offered the parties mediation. It considered sound insulation and its reason for declining to install any was reasonable. Its offer to review that decision was reasonable. The landlord also stated that it had changed its processes. There was little else that was open to the landlord, given the circumstances. While the resident reported that the impact of the noise on her household was significant, in the Ombudsman’s opinion the landlord’s offer of compensation in recognition of its failings in this case was reasonable redress.

Recommendations

As set out in this report, there were failings in this case. Whilst the landlord has offered reasonable redress for these, it is important that it also learns from the outcome of this complaint. It is therefore recommended that the landlord shares this report with staff dealing with ASB, and that it ensures the following:
1. The landlord should offer training to its ASB staff and ensure the staff consults with legal advice to ensure it provides the correct information.
2. The landlord should offer training so that its responses are proactive, it ensures it offers a clear action plan with timescales so as to manage a resident’s expectations, and it uses appropriate language.
3. The landlord should ensure its ASB policy should reflect that the impact of noise varies depending on the time of day.
4. The landlord ensures that the plan for increased peer and managerial supervision is put into formal practice.
5. The landlord carries out a meaningful “proportionality assessment” that investigates the circumstances of all concerned parties early in any ASB case so that it is clear about what options are open to it and also ensure it provides the correct support to all parties.