Thurrock Council (202100915)

REPORT

COMPLAINT 202100915

Thurrock Council

14 July 2021

Our approach

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

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

The complaint

1. The complaint is about the landlord’s response to the resident’s reports of noise nuisance and Anti-Social Behaviour (ASB).

Background and summary of events

Policies and procedures

2. The landlord’s ASB and hate crime process states that the responsible officer will provide the victim with an incident diary to keep a record of incidents and ask them to return them every two weeks.
3. The process document states that the landlord will need to confirm how it wishes to take the matter forward, one outcome being that there is insufficient evidence to take any action.
4. The tenancy agreement contains a list of activities that could cause nuisance, one of these being to allow dogs to bark and to foul in the property or the communal areas.

Background

5. The resident’s lease on his property began on 18 November 2019 with a deed of assignment following a mutual exchange.
6. The neighbour in question moved into their property in January 2020.

Summary

7. The landlord has a system note dated 11 March 2020 recording a visit to the neighbour to discuss a noise complaint from the resident. The neighbours said that they would be mindful of any noise they were making.
8. On 26 March 2020 the landlord sent the resident an email, following a phone call. It said that it was sorry that the resident was experiencing noise nuisance but that the resident would appreciate that evidence was needed to enable it to take formal action. It said that its procedures required the resident to complete diary sheets which would help it to understand if there was evidence of a statutory noise nuisance that went beyond everyday living noise. It said that, once it had visited the neighbour and written warning letters, if the noise nuisance continued, the resident should request further ASB diary sheets. If a review of these deemed that there might be a statutory noise nuisance, then it could request for monitoring equipment to be installed at the resident’s property. It said it understood that the resident did not want to complete diary sheets, however, without them, it would be unable to take any formal action.
9. On 14 April 2020 the landlord emailed the resident to reiterate that it would be unable to progress matters until it received completed diary sheets. It also reminded the resident that everyday living noise was not classed as statutory noise nuisance. It said that people were allowed to use electric machinery during the day for a reasonable time and that dogs will bark from time to time. Completed diary sheets would allow the landlord to judge if the noise was reasonable.
10. On 26 April 2020 the resident emailed the landlord to say that it was Sunday, which was supposed to be a day of rest, and yet his neighbour had been in his back garden, banging about in his shed at 8am. He also mentioned that the neighbour had nuisance dogs that barked. The resident said he went into his garden to get some fresh air but had to come back inside and close two doors and sit in his living room (due to the noise). He said that, after the pandemic had ended, he would make it his goal to get the landlord to change its attitude towards the way it responded to noisy neighbours. He said that being asked to fill in diary sheets was ridiculous and that he had filled these out before, only for the landlord to throw his complaints in the bin.
11. The resident made a formal complaint and on 29 April 2020 the landlord provided its stage 1 complaint response. It confirmed that it had investigated his concerns but, as previously advised, the resident needed to complete the diary sheets with as much information as possible, which could be used as evidence. It said that it had spoken to the neighbour who did not feel that their noise levels were unacceptable. They had also confirmed that another property behind the resident’s house was also having work done in their garden during the day. It said that, with regard to the issue of dog mess that the resident had raised, it was unable to determine where this had come from and so could not take any further action.
12. On 30 April 2020 the landlord again spoke to the neighbour, who said that he was not in his shed the previous Sunday. The neighbour also said that he had been getting on well with the resident and was unaware of any problems between them.
13. On 17 June 2020 the landlord sent the neighbour a formal letter reminding them of their responsibilities under their tenancy agreement. It highlighted a clause in the tenancy agreement about the landlord being able to withdraw permission for the keeping of pets if those animals were causing a nuisance. It also highlighted that tenants must not allow their dogs to foul in the property or communal areas.
14. The resident had requested that his complaint be escalated. Therefore, on 7 July 2020 the landlord provided its stage 2 complaint response. The landlord said that its further assessment of the case had concluded that nothing would be gained from carrying out a more detailed investigation. It noted that the tenancy management officer (TMO) had explained the process that needed to be followed, as well as the actions that had already been taken. The resident was advised to complete and return the diary sheets as these would form part of the evidence that would be used to take any action against the neighbour.
15. On 12 July 2020 the resident emailed the landlord to say that the TMO had not given him feedback. He said the last time he spoke to her she had said that the neighbour had been sent a letter about the dogs barking, which the neighbour has clearly taken no notice of. The resident said that the landlord was breaching its obligations by allowing the neighbour to annoy people.
16. Following a phone call with the resident on 13 July 2020, the landlord followed up with an email to him. It confirmed that it was posting diary sheets out to him that day and that it had spoken to the resident about contacting the housing allocations team and requesting a medical questionnaire in regard to the bidding process.
17. The resident responded the same day to say that his TMO had told him that the courts rarely evicted anyone from social housing, meaning the diary sheets and monitoring equipment were farcical and that he was being asked to follow a pointless procedure. He asked what the point of a tenancy agreement was if anyone could just breach them. The landlord acknowledged the resident’s comments.
18. The landlord was still operating a three stage complaints process at this time and so, on 21 July 2020, it sent the resident its stage 3 complaint response. It concluded that the housing department had been robust and that it had dealt with the complaint appropriately. Therefore, there was no justification for a full stage 3 investigation. The resident was urged to complete the diary sheets to assist the issues to move forward.
19. On 31 July 2020 the resident contacted the landlord’s customer services team to say he had witnessed the neighbour’s dog fouling the grass outside and not picking it up. He said he had recorded the dogs on the grass and that he would now take a photo from the exact position that he has pointed at on the video to prove that it was the neighbour’s dog that had messed there.
20. The resident had said that the neighbours were in breach of their tenancy agreement. However, on 25 August 2020 the landlord contacted the resident to inform him that was not the case as the tenancy conditions related to the property that the tenant was living in and any communal areas. In a further response on 27 August 2020 the landlord said that it had previously sent out letters to tenants as a polite reminder to clear up their dog mess, which was done as encouragement for tenants to keep the surrounding areas clean and tidy. It gave the resident details of the department that he could report dog mess to. The landlord also took the opportunity to remind the resident that, in relation to the dogs barking, he needed to record these incidents on the diary sheets.
21. On 7 November 2020 the resident contacted the landlord to say that his neighbour was breaching Covid restrictions because he had extended family visiting his home. The landlord responded that this was not a breach of tenancy conditions and advised the resident to call 101 to report any Covid related incidents.
22. On 3 February 2021 the landlord made a referral to its mental health team. It explained that the resident was extremely sensitive to noise and, having spoken to him many times, felt that he might benefit from some professional help. A mental health practitioner contacted the resident and then reported back to the landlord that the resident’s issue was that he could not sleep during the day due to the neighbour’s dogs barking and that he did not need mental health intervention at that time.
23. On 31 March 2021 the resident contacted the landlord to ask for some diary sheets as he had been using scrap paper to write down the times when the neighbour’s dogs were barking. The resident did then return some diary sheets that covered the period 20 March – 2 April 2021 (which he sent on 7 April 2021). They record the dogs as barking, on average, three or four times a day during the day. However, the duration of each incident has not been noted. The resident has written that it is making him angry because the dogs’ barking is waking him up.
24. On 1 April 2021 the landlord sent a referral for the resident’s case to be discussed at a ‘complex case’ meeting. The referral said that no other tenants had complained about the dogs making a noise. It said that the resident had refused to fill out diary sheets and instead sent constant emails to the landlord as well as emailing local councillors, his MP and MEP, and the police. The resident had provided a recording of the dogs barking that lasted seconds. Due to the resident’s intolerance of noise, he had moved several times and complained of noise issues at all addresses.
25. On 15 and 16 April 2021 the landlord had discussions about whether it should offer to install noise monitoring equipment at the resident’s property. However, it was concluded that it would not be offered because a) other tenants had been contacted who had stated that there was no noise nuisance whatsoever from the neighbour, b) the neighbour admitted that his dogs did bark, but only when someone came to the door and c) the landlord had not heard dogs barking in the background when on the phone to the neighbour.
26. The landlord held an ‘ASB high priority management panel’ on 20 April 2021 to discuss the case. Actions that came out of the meeting were that the resident needed trauma-based therapy to explore what his triggers were and to gain the resident’s agreement for him to be contacted in regard to this. An update from the meeting confirmed that the resident was referred for advocacy at MIND on 21 April 2021.
27. On 6 May 2021 the landlord discussed the resident’s case at a Management Move Panel. It was stated that the resident wanted to move from his one-bedroom bungalow to a first floor flat on a particular estate, due to noise issues. The outcome was that the case should be referred back to the panel once an occupational therapy (OT) assessment had been carried out to assess the resident’s current needs.
28. The OT assessment took place on 18 May 2021. As well as having a number of physical conditions, the resident was assessed as having an intolerance of noise and anger management issues. The resident reported that he struggled to live in close proximity to other people and found noise hard to tolerate, particularly loud music and dogs barking. He had moved from his last property due to music and parties held by his then neighbours. Currently he had a neighbour whose dogs barked ‘constantly’ and there had been a breakdown of communication between the resident and his neighbour. Functionally, the current property was suitable to meet the resident’s physical needs but did not meet his emotional needs. Different types of properties were discussed with the resident which might be suitable for his needs.
29. On 19 May 2021 the landlord noted that the resident had completed a housing application.

Assessment and findings

30. Following a detailed review of the evidence submitted by both parties, the Ombudsman has found that the action taken by the landlord in response to the resident’s reporting of noise nuisance and ASB was appropriate. In the Ombudsman’s opinion the landlord followed its own policies and procedures and acted reasonably and proportionately in the circumstances.
31. As a result of the resident’s reports of noise nuisance, the landlord followed up the allegation with the neighbour and requested that the resident complete diary sheets. These steps demonstrate that the landlord took the resident’s reports seriously and was mindful of its obligations to enforce the terms of the occupancy agreements and its ASB policy.
32. The Ombudsman acknowledges the resident’s frustration that, from his point of view, he suffered noise nuisance from the neighbour which the landlord failed to find a solution for. However, the landlord was only able to rely on the available evidence to reach a conclusion which was fair to all parties involved.
33. No other tenants living close to the neighbour reported any noise issues with the dogs. Also, the landlord had been unable to witness any barking during the times it was in contact with the neighbour. The resident provided a recording of the dogs barking for a short period of time, which in isolation was not sufficient to prove a nuisance. Most significantly, the resident refused to complete diary sheets, with the exception of a two-week period during March – April 2021. However, those diary sheets lacked detail in that they did not record the duration that the dogs were barking for on each occasion.
34. By providing the resident with diary sheets, the landlord was acting in accordance with its ASB process. The contents of completed diary sheets would allow the landlord to consider appropriate next steps, such as installing noise monitoring equipment. The Ombudsman understands that the resident did not want to complete diary sheets, however this hindered the landlord’s ability to progress the case.
35. The landlord has to be fair to all sides and, without proportionate evidence, the landlord was unable to reasonably support any further action against the neighbour. This was fair and was explained to the resident on several occasions.
36. In terms of the resident’s reporting of other ASB by the neighbour, such as allowing his dog to foul on the street and breaking Covid rules, the landlord correctly informed the resident that these were not breaches of the neighbour’s tenancy agreement. For both issues, the landlord correctly signposted the resident to the correct agencies for reporting his concerns.
37. The landlord identified other factors that made the case more complex, such as the resident’s intolerance to noise. In arranging an OT assessment and making appropriate referrals to support services, it showed concern for his welfare. Also, as the resident had expressed an interest in moving, the landlord also provided assistance with that process.

Determination (decision)

38. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s response to the resident’s reports of noise nuisance and Anti-Social Behaviour (ASB).

Reasons

39. The Ombudsman is satisfied that the landlord took the resident’s reporting of noise nuisance and ASB seriously and that it acted in accordance with its ASB process to try and build a case against the neighbour to resolve the situation in a timely manner. However, due to insufficient evidence, it was reasonable and proportionate for the landlord to close the case.