London & Quadrant Housing Trust (202100650)

REPORT

COMPLAINT 202100650

London & Quadrant Housing Trust

11 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

1. The complaint concerns how the landlord has handled:

1. The resident’s reports of antisocial behaviour (ASB) and noise nuisance prior to March 2019.
2. The resident’s reports of ASB and noise nuisance from March 2019 onwards.
3. The formal complaint into the matter.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

How the landlord handled the resident’s reports of ASB and noise nuisance prior to March 2019.

3. During her correspondence with the landlord and this Service, the resident explained that she had experienced multiple incidents of ASB over the last ten years and that she wanted the entire period to be considered as part of the complaint. The resident particularly highlighted two incidents that occurred in 2013 and 2015, when the police became involved.
4. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
5. This is in accordance with paragraph 39(e) of the Scheme, which states that the Ombudsman will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. In view of the time periods involved in this case and taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to March 2019. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in April 2021.

Background and summary of events

Background

6. The resident is an assured tenant of the landlord, which is a housing association. The property is a flat in a communal building.

The landlord’s ASB policy

7. The types of ASB which will be investigated by the landlord include:
   1. Noise where it is persistent, deliberate or targeted.
   2. Vandalism, property damage and neglect, arson or graffiti.
   3. Drug or substance misuse or drug dealing
   4. Alcohol-related incidents
8. The types of issues the landlord would not investigate as ASB include:
   1. Noise caused by people going about their daily lives.
   2. One-off events like a birthday or a religious celebration
9. The landlord’s ASB policy goes on to state that on receipt of a report of ASB, it will undertake a risk assessment of the report to determine the seriousness of the allegation and whether police involvement is necessary. If the assessment determines that no action is necessary, it will then write to the reporting party and explain the reasons for its decision, otherwise an ASB case will be opened.
10. The landlord’s ASB policy does not provide timescales for when it will respond to a report of ASB. Common industry practice would be to respond to reports of serious ASB within one working day (such as reports of physical assault or threats of violence) and all other types of ASB within five working days.
11. Once an ASB case had been opened, the landlord’s policy states that it will:
    1. Keep in regular contact with the reporting party.
    2. Provide advice and support. This could involve referring the reporting party to an outside agency.
    3. Agree on an action plan with the reporting party and keep them updated throughout the case.
12. The landlord’s policy states that it will close an ASB case for the following reasons:
    1. Where it had concluded that the ASB had not taken place or had ceased.
    2. Where it had delivered the actions that were appropriate, and it believed there was no further action necessary.
    3. Where it passed the case to a third party which was better placed to deal with the problem, and there was no further action for it to take.
    4. Where the reporting party, victims and witnesses failed to engage with the landlord or its assessment and/or investigations leads it to conclude that no further action was needed.
    5. The reporting party failed to provide information requested by it to enable to progress the case.
    6. There was insufficient evidence.
    7. No further action was possible.
13. The landlord also states that when it takes the decision to close a case it will attempt to contact the reporting party and if that is not possible, it will write and explain its reasons for closing the case.

The landlord’s complaints policy

14. The landlord operates a two-stage complaints policy. When a complaint is raised, the landlord will provide a complaint response within ten working days. If the complainant remains dissatisfied with the response, they can request an escalation to the next stage. The landlord will then send a stage two response to the complainant within 20 working days. This will be the landlord’s final response to the complaint.
15. The landlord’s complaint policy also states that it would not usually investigate a complaint relating to issues that occurred more than six months prior to the complaint being raised unless there are “exceptional circumstances”.

Summary of events

16. The landlord’s ASB and contact records state that:
    1. On 21 March 2019 the resident contacted the landlord about noise nuisance from a neighbour (the neighbour will be referred as the neighbour in flat A throughout this report). She described regular parties held at the flat that went on late into the night. The landlord’s notes state that an ASB case was opened, and it provided the resident with its noise recording phone app and diary sheets but received no further response.
    2. On 1 May 2020 the resident reported further noise nuisance and drug use from the neighbour in flat A. The landlord’s notes stated that it explained that it had previously sent the resident diary sheets and the noise app, and that it would need to gather evidence before escalating the case. The notes go on to state that the ASB case was closed on 29 June 2020 as it had received no further evidence from the resident.
    3. On 12 September 2020 the landlord’s noise team visited another of the resident’s neighbours, who will be referred as neighbour B in this report. The landlord had received reports of noise nuisance from a party in neighbour B’s property. The team asked the neighbour to turn the music down and the police were notified, although they did not attend.
    4. The resident called the landlord on 29 September 2020 and informed it that when the noise team left, the music was turned back up and the communal area of the building was left in a mess. She requested that the landlord investigate the matter. The landlord’s notes state that it attempted to call the resident back but was unsuccessful. It then sent an email. There is no record that the resident responded to this email.
    5. On 1 October 2020 the resident contacted the landlord to report ASB and noise nuisance from the neighbour in flat A. The resident described incidents of drug use and a washing machine being used at unsociable hours. The resident also stated that she believed the neighbour was in breach of his tenancy by subletting the flat. The landlord’s notes state that it called the resident to inform her that it would investigate the matter and that it had previously provided ASB diary sheets and its noise recording app.
    6. On 16 November 2020 the landlord wrote to the resident and informed her that it had attempted to call her to discuss the issues she had experienced with her neighbours in flat A and flat B. It asked her to contact it in order to progress the matter.
    7. The resident replied on 1 December 2020 and described the ongoing issues she had experienced with ASB and noise nuisance from the neighbour in flat A. She then described the party held by the neighbour in flat B and noted that although it seemed to be a one-off event, she was dissatisfied with how the landlord responded.
    8. The landlord wrote to the resident on 1 December 2020 and provided her with ASB diary sheets and requested she submit ten consecutive recordings from the noise app. The landlord’s email included information on how to use the noise app.
17. At some time prior to 8 April 2021, the resident made an online complaint relating to how her reports of ASB and noise nuisance had been handled by the landlord and that this had been an ongoing issue for ten years.
18. The landlord acknowledged the complaint on 8 April 2021. It gave a brief summary of the ASB reports it had received since 21 March 2019 and noted that the reports made by the resident had been “sporadic” and no supporting evidence had been provided. The landlord then explained that for it to be able to take action, it would require supporting evidence and that it had no records of any noise app recordings being submitted by the resident.
19. The resident replied on 9 April 2021. She informed the landlord that:
    1. She had submitted evidence via the noise app which had not been looked into by the landlord.
    2. She did not believe that the noise app was fit for purpose and would like to use a different app to make recordings, such as WhatsApp.
    3. The ongoing ASB she had experienced had caused health issues for both her and her family and also has had an impact on her income as it affected her ability to work.
    4. Serious incidents which occurred in 2013 and 2015, which involved the police, were not properly investigated by the landlord.
    5. The landlord’s email on 8 April 2021 was not an adequate response to her complaint.
20. On 20 April 2021 the resident called this Service to express her dissatisfaction with how her complaint had been handled by the landlord. She noted that following receiving a stage one complaint response on 8 April 2021, she had asked to escalate her complaint on 9 April 2020. However, she had no further contact from the landlord.
21. This Service wrote to the landlord on 29 April 2021. It passed on the resident’s concerns and requested that it confirmed to the resident that that the complaint had been escalated.
22. The landlord wrote to the resident on 30 April 2021. It confirmed that it had escalated the complaint and that it aimed to provide a response by 10 May 2021.
23. The stage two complaint response was sent on 7 May 2021. The landlord explained that it had undertaken a review of how it handled the residents reports of ASB from 21 March 2019 onwards. It also confirmed that, as per its complaints policy, it would not consider events prior to that date. It then informed her that:
    1. It had agreed to a telephone meeting to be held on 14 May 2021. It requested that the resident provide evidence via the noise app and diary sheets prior to the meeting.
    2. It then explained that it was satisfied with its previous position; that without receiving any supporting evidence from the resident, it would not be able to take any action against an alleged perpetrator.
    3. It recognised that there had been a delay in responding to the resident’s complaint and that it had not always responded in a timely manner when acknowledging the resident’s ASB and noise nuisance reports. The landlord apologised to the resident and informed her that the matter had been escalated internally to senior management and extra training had been given to the appropriate staff members.
    4. The complaint would remain open until the 14 May 2021 meeting had taken place.
24. Following the telephone meeting, the landlord sent a stage two follow-up response on 14 May 2021. This said:
    1. It had requested further information from the resident to support her allegations. The resident stated that she had experienced issues forwarding large files from the noise app. The landlord requested details from the diary sheets it had provided, and the resident confirmed that no incidents had occurred in the last three months.
    2. As there had been no incidents in the previous three months, the landlord would be closing the ASB case. However, it advised the resident to monitor any further incidents and that it will reopen the case if more incidents occur. The landlord also advised the resident to refrain from communication with her neighbour in flat A and to contact the police if she felt it necessary.
    3. It would also consider reopening previous ASB cases if the resident was able to provide it with supporting evidence.
25. The resident called this Service on 15 May 2021 and described the outstanding issues of the complaint as:
    1. She did not believe that the landlord should have closed her ASB case.
    2. She disagreed with the landlord’s decision to only look at the previous six months of ASB reports.
    3. She had received poor communication from the landlord.
    4. The landlord had not taken appropriate action in response to her ASB reports.

Assessment and findings

How the landlord handled the resident’s reports of ASB and noise nuisance from March 2019 onwards

26. It is not part of the Ombudsman’s role to establish whether someone has or has not committed ASB or noise nuisance. Rather, it is our role to establish whether the landlord’s response to the resident’s ASB reports was fair in line with its legal and policy obligations and industry best practice, and whether its response was fair in all the circumstances of the case.
27. The Environmental Protection Act 1990 and Noise Act 1996 give landlords the power to act where there is “excessive” noise between the hours of 11pm and 7am in domestic premises. The term “excessive” is not defined within either Act. The landlord’s website describes the circumstances when it would consider noise nuisance excessive as:
    1. “Persistent noise between the hours of 11pm and 7am could be considered as antisocial behaviour. It must occur regularly and continue over a time – it is not enough for the noise to be annoying or disturbing.”
28. The ASB records provided by the landlord show that it requested on multiple occasions for the resident to provide it with evidence of noise nuisance to enable it to take further action. It provided the resident with ASB diary sheets to note down incidents and information on how to use its noise app to make recordings. The resident has said that she provided noise recordings to the landlord but the landlord has denied receiving any recordings and the Ombudsman has not seen anything to suggest that recordings were provided. The Ombudsman acknowledges that the resident reported experiencing difficulties in forwarding large files from the noise app which may explain why the landlord appears not to have received recordings, although she says she sent them.
29. Although the resident may have been unable to provide recordings, she could have supplied diary sheets, which could also have been used as evidence to support her claim that the noise was a statutory nuisance. Given the difficulties the resident experienced in using the app, if she experiences noise again in the future, it would be reasonable for the landlord to accept evidence supplied through other apps if she finds them easier to use, or to explain why it cannot accept information obtained using other noise apps.
30. For the landlord to take formal action against an alleged perpetrator of ASB, it requires sufficient supporting evidence that the behaviour is continuing to cause significant nuisance and/or harm to others and has occurred over a prolonged of time, rather than being a one-off event or a historic issue which has since ceased. Furthermore, the landlord cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as being statutory noise nuisance, then both the landlord and the local authority’s environmental health department may be able to take formal action against the perpetrator, such as issuing a tenancy warning or an acceptable behaviour agreement.
31. As the landlord was not given any evidence to show that the noise the resident was experiencing was a statutory noise nuisance, it was reasonable for the landlord not to have taken action against the resident’s neighbour at the time of this report. The landlord was also entitled to close the ASB complaint, in line with its policy on the basis that there had been no new reports of noise nuisance for three months. However, as it has said in its final response to the complaint, the landlord should consider reopening the ASB case if further incidents are reported in the future.
32. As explained in the landlord’s ASB policy, a one–off event such as a party or religious celebration would not generally be considered to be ASB. Although it is acknowledged that neighbour B’s party caused distress and inconvenience to the resident, the landlord would not be expected to take further action on this occasion because the party was a one-off event.
33. The police would be best placed to investigate and respond to reports of criminal activity, such as drug taking and although the landlord would be expected to co-operate with any investigation by the police, it would be limited in the actions it could take against tenants following allegations of criminal activity until the police investigation was concluded. This is because, as explained above any formal action would need to be supported by extensive evidence, which could be obtained via the police’s investigation.
34. The resident has also accused neighbour A of subletting their flat. The landlord would be expected to investigate this allegation and take appropriate action but it would not be appropriate for it to share details of any actions with the resident. This is because this investigation would involve confidential information about other tenants which should not be shared with other parties without the tenants’ consent. This is in line with data protection regulations. The landlord could have explained its position in more detail to the resident, but ultimately it was reasonable for it not to respond to her directly regarding this allegation. 
35. In its stage two complaint response, the landlord acknowledged that the resident had received poor service and communication, and that the landlord had not always properly followed its ASB policy when it responded to her reports. The landlord apologised to the resident and explained that it had raised the issues she had experienced internally.
36. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
37. The landlord acted fairly in acknowledging its mistakes and apologising to the resident. It took appropriate action to put things right by raising the issues internally and giving training to the relevant staff members.
38. However, the landlord should also have offered financial compensation to the resident for any distress and inconvenience caused by its failures to properly following its ASB policy. 
39. The Ombudsman’s remedies guidance (which is available on our website) suggests a payment of £250 to £750 in cases where considerable service failure or maladministration had been found, but there may be no permanent impact on the complainant.
40. As examples for when this level of payment should be considered, the guidance suggests “failure over a considerable period of time to act in accordance with policy – for example to address repairs; to respond to antisocial behaviour; to make adequate adjustments”.
41. In this case, the landlord did not properly follow its ASB policy for a period of 21 months and did not keep in regular contact with the resident regarding her ASB case. Although, it is acknowledged that her reports of ASB were not frequent during this period, it would still have been appropriate for the landlord to explain the next steps regarding the open ASB case. Moreover, there is no evidence that the landlord; wrote to the resident when it opened an ASB case, agreed an action plan with the resident, or wrote to the resident to explain its decision when an ASB case was closed.
42. The landlord is therefore ordered to offer the resident £250 compensation in order to fully resolve this aspect of the complaint.
43. In her email to the landlord sent on 9 April 2021, the resident described the adverse effect on her and her family’s health caused by the ongoing ASB and noise nuisance they had experienced.
44. The Ombudsman does not doubt the resident’s comments regarding her health and that of her family, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing in the way that a court or insurer might. However, consideration has been given to the general distress and inconvenience which the situation has caused her.

The landlord’s complaint handling

45. The landlord did not follow its complaint policy correctly during this case. The landlord acknowledged the resident’s complaint on 8 April 2021. The landlord also gave an overview of how it had responded to the residents reports of ASB in this email. This email did not make it clear that it was the landlord’s stage one response to the complaint and it did it give any information on how to escalate the complaint. The email also did not give any information on when a stage one response would be sent to the resident or provide any other information on the next steps regarding the complaint.
46. It would have been reasonable for the resident to consider this email a formal complaint response by the landlord. The resident responded accordingly on 9 April 2021 disputing the points the landlord had raised. It is clear from this email that the resident remained dissatisfied and wanted to progress her complaint further, although she did not explicitly ask to escalate the complaint.
47. As the landlord did not respond to the resident’s email, she was obliged to contact the Ombudsman in order to progress her complaint. This caused an unnecessary delay and effort for the resident in pursuing her complaint.
48. Following the Ombudsman’s involvement landlord provided two responses to the resident at stage two of its internal complaints process, and also conducted a telephone meeting between to the two responses to allow the resident to explain her outstanding issues following the first stage two response. However, the earlier errors in communication about the complaint policy represent a service failure by the landlord and it would be appropriate for the landlord to offer compensation in view of the distress and inconvenience these errors would have caused the resident.
49. The Ombudsman’s remedies guidance suggests a payment of £50 to £250 in cases of service failure resulting in an impact on a complainant of a short duration that did not significantly affect the outcome of the case.
50. In this case, the landlord’s failure to properly explain the complaint process in its acknowledgement email on 8 April 2021 caused confusion and resulted in the resident approaching this Service as she believed her escalation request had been ignored. However, the landlord did respond to the complaint within its timescales and sent the resident two complaint responses.
51. The landlord should therefore offer the resident £100 compensation in view of the distress and inconvenience caused by errors in its complaint handling.

Determination (decision)

52. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect how it handled:
    1. The resident’s reports of ASB and noise nuisance from March 2019 onwards.
    2. The formal complaint into the matter.

Reasons

53. The landlord recognised the inconvenience caused to the resident by its failures to properly follow its ASB policy and the distress that this had caused to her.
54. It apologised to the resident and explained what steps it had taken to improve its service. However, the landlord should have also considered financial redress to fully resolve this aspect.
55. Given the lack of supporting evidence, it was reasonable that the landlord had not taken action against the alleged perpetrators of ASB. Although it is acknowledged that the resident had difficulties in providing noise recordings, she could have provided diary entries instead.
56. The landlord did not follow its complaint policy as it did not explain that its initial response was a stage one response to the complaint or give details of how to escalate the complaint further. The landlord did not apologise for this error in its stage two response and it did not offer appropriate compensation for its earlier errors in communication with regards to the resident’s ASB reports.

Orders

57. The landlord is ordered to do the following within four weeks of the date of this report:
    1. Pay the resident £250 compensation for its service failure in how it handled the residents reports of ASB and noise nuisance.
    2. Pay the resident a further £50 compensation for its service failure in its handling of the complaint.
    3. Review its handling of the ASB reports and formal complaint in this case and implement any necessary remedial action to improve its service delivery going forward. A copy of the landlord’s findings should be provided to both the resident and the Ombudsman.