Westminster City Council (202008410)

REPORT

COMPLAINT 202008410

Westminster City Council

11 April 2022

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:
1. The landlord’s handling of the resident’s housing transfer application.
2. The landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) and noise nuisance.
The Ombudsman has also considered the landlord’s handling of the resident’s complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint, or part of a complaint, will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Scheme, this Service has determined that part (a) of the complaint falls outside of the Ombudsman’s jurisdiction.
This is as while the Ombudsman appreciates the resident’s dissatisfaction with the landlord’s decision following its review of her housing transfer application, this Service is unable to comment on the outcome, or whether or not the assessment of the application was fair and thorough. Instead, matters which relate to the allocation of housing by a local authority (under Part 6 of the Housing Act 1996) and decisions about whether an application qualifies for reasonable preference (such as on medical grounds), are matters which properly fall within the jurisdiction of the Local Government Ombudsman (LGO).
Under paragraph 39(m) of the Scheme, it is explained that the Ombudsman will not investigate complaints which fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Therefore, this matter has not been considered as part of this investigation. The resident will need to approach the LGO should she wish to pursue this element of the complaint.

Background and summary of events

Background

The resident is a tenant of the landlords, under a Fixed Term (Flexible) tenancy.
The property is a two-bedroom, third floor flat occupied by the resident and her daughter.
The resident moved into the property on 22 June 2020.
The landlord has advised that there are no known vulnerabilities on the residents file, however on reviewing her rehousing records, notes that the resident had previously suffered from low moods.
The complaint relates to the activity of two neighbours, occupying the properties above and below the resident. For ease of reference, the neighbour living in the property above has been referred to as Neighbour A and the neighbour living in the property below as Neighbour B.

Scope

The Ombudsman notes the resident’s suggestion that as a result of the landlord’s handling of her reports of ASB and noise nuisance, both her daughter’s and her own mental health was severely impacted. While the Ombudsman does not doubt the resident’s assertion, it is beyond the expertise of this Service to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s / resident’s daughter’s health. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought.

Summary of events

On 27 July 2020 the resident contacted the landlord’s ASB team reporting frequent parties at the property above her. She advised that the matter had also been raised with the Noise Team and the police.
An ASB case was subsequently opened on the next day, followed by an interview with the ASB Case Manager (CM) on 31 July 2020. Within this interview, the resident and the CM discussed the incident, and an action plan (or “Promise”) was agreed.
The landlord detailed in a letter on 3 August 2020 that as part of “Our Promise to You”, it would:
1. Maintain frequent contact with the resident.
2. Complete a door knocking exercise to gather more information and identify others effected.
3. Work collaboratively with the police and share information with other appropriate teams.
The landlord explained that to support its efforts, the resident was required to make continuous reports throughout the case and to provide updates on any events. The resident was advised that if the nuisance stopped, or if no reports were made for a period longer than 14 days, it would consider closing the case with three days’ notice.
The Ombudsman can see that a door knocking exercise was undertaken on the same day and that other neighbours confirmed hearing loud noise from the above property.
On 13, 19 and 25 August 2020 the CM contacted the resident to request an update on any new or continuing incidents. The CM reminded the resident that as per the “Our Promise” agreement, she needed to send updates weekly. It does not appear that this was done. The case was subsequently closed on or around this time following no further reports from the resident. The resident was advised that the above property had been identified as a possible Airbnb and that this was likely causing the annoyance. Through contact with the leaseholder, the Leasehold Operations Team (LOT) would be taking action to address the issue.
On 8 September 2020 the resident contacted the CM to report substantial noise coming from the property above. She stated that while there was no music on this occasion, there was “lots of banging”. She believed that there were multiple people in the property, and had confronted Neighbour A, however he had denied that there was anyone in the property other than himself. The resident shared two video recordings with the CM from the previous week.
The CM advised the resident on the same day that reports of this nature needed to be reported to the Noise Team as and when the noise was occurring. It was explained that while the Noise Team had paused visits due to COVID-19, it had since resumed its normal service.
The resident made a further report of banging, loud talking, and harsh movements to the CM on 22 September 2020. This was followed by contact from her Support Worker (SW) from Family Services, who highlighted the impact that the noise was having on the resident and her daughter. The SW queried the steps that were being taken to stop the neighbour’s behaviour.
This Service can see that on the same day, the CM explained to both the resident and the SW that as this was considered household noise, matters were being dealt with by the Noise Team. As she understood, the previous reports of parties had been resolved by the Leasehold Team and there was no further evidence of ASB.
On 22, 23, and 25 September 2020 the resident made reports of noise to the Noise Team. She reported “lots of banging” and that she believed there to be poor sound insulation as she could “hear everything they do”. Records suggest that the Noise Officer (NO) attempted to call the resident twice without success following her report. It subsequently explained in an email that as the resident had mentioned that she could hear everything that the neighbour did, it seemed like a sound insulation issue. This was not considered a statutory nuisance and therefore not enforceable by the Noise Team as movement and normal day to day activities in the flat above were unavoidable. The resident would need to escalate matters with the Housing Officer (HO) to establish why she could hear so much activity and so that this could be investigated.
In a subsequent conversation with the NO, the resident advised that she had spoken with her HO, however had been advised to return to the Noise Team. She advised that she needed someone to sit in her property from 08:00 to 11:00, and from 20:00 to 23:00, to witness what she had been experiencing. The NO explained, however, that:
1. The resident needed to report the noise as it was occurring, as the noise had to be witnessed from within the resident’s living space whether day or night.
2. If noise nuisance was discovered, further action could be taken to abate the noise. Noise heard from individuals moving around and carrying out day-to-day activities would not be considered a statutory nuisance, however.
The Ombudsman can see that the CM provided the resident with an updated “Our promise” letter on 30 September 2020 following a further meeting. It was agreed that the CM would:
1. Complete further door knocks to gather information and identify others affected.
2. Work collaboratively with the LOT to put the allegations to Neighbour A.
3. Share information with the relevant teams to take appropriate action.
Upon receiving a further report of intermittent loud banging from the resident on 4 October 2020, the NO reiterated its earlier points. The resident was advised that it was difficult to identify the noise reported as a statutory nuisance. She was reminded, nonetheless, that she could take her own action by presenting her evidence to a magistrate.
The resident forwarded this information to the CM on 8 October 2020 highlighting that as the Noise Team were unable to deal with the matter, it was up to the landlord. The CM subsequently provided the resident with noise diary sheets. The resident was advised to keep a log for one week.
On 10 October 2020 a Police Constable (PC) explained, in an internal email to the landlord, that it had visited the resident’s property and had not witnessed any noise at this time. The resident had subsequently been advised to make contact as and when the noise occurred. The PC explained that upon also visiting Neighbour A, counter-allegations were made.
The CM confirmed with the PC that after also speaking with the resident and Neighbour A, as they had both reported experiencing noise, mediation would be offered. She would also explore whether any proactive action could be taken by the Noise Team.
Records provided by the Noise Team demonstrate that on 11 October 2020 the resident made reports of Neighbour A banging, moving things around, and harsh movements which she alleged was scaring her. She was advised that given the time of day (14:20), no action could be taken.
The option of mediation was discussed with the resident on 12 October 2020. It is noted that the resident declined this, however, as she did not believe that this would resolve the matter. She asserted that she needed to be rehoused. Further video recordings were also shared with the CM, however the CM confirmed hearing no noise nuisance at this time. The resident was additionally advised that upon speaking with the Noise Team, home visits had again been paused. An Officer could attend once restrictions had been lifted, however.
On 13 October 2020 the resident shared her diary of events from 28 September 2020 – 13 October 2020. The Ombudsman notes that she reported banging and movements which woke her and her daughter from their sleep. Further recordings were also made and shared with the CM.
The CM spoke with the resident on the phone on the same day, and subsequently wrote to the resident explaining:
1. She had considered the recordings made and had concluded that this appeared to be household noise. It was also difficult to prove that this was being caused purposefully.
2. The neighbour above had been spoken to and had appeared to be unaware of any nuisance being caused. She noted that Neighbour A had accepted the offer of mediation, however a referral would not be made as the resident had declined this.
3. As suggested by the Noise Team, the nuisance was likely being caused by a structural weakness in the building.
On 15 October 2020 the resident was advised by the CM that a case conference would take place in which her case would be discussed with the various agencies involved. This included the PC, SW, the ASB Team, the Noise Team, and the managing agent looking after the property above. This took place on 19 October 2020.
On the same day the resident shared a further noise diary log, detailing events from 14 – 19 October 2020. The Ombudsman can see that the resident also made reports to the Noise Team during this time. The resident’s reports referred to banging, heavy walking, swinging doors, and harsh movements. These appeared to be predominantly in the morning between 06:00 – 09:00 and in the early evening.
An ASB Officer made contact with the resident on 21 October 2020 seeking to discuss the option of a “Good Neighbour” agreement. On 22 October 2020, however, the resident explained that she did not consider this to be a viable option. She stated:
1. She had many encounters with Neighbour A and had also dealt with several different faces. This in itself made her question who would be responsible for the agreement. There were several residents in the property, and one had previously spoken to her inappropriately.
2. On another occasion Neighbour A was making considerable noise whilst taking the bins out. She stated that she confronted Neighbour A who was dismissive.
3. She did not believe that an agreement would help her, or her child, feel safe. She felt distressed that the neighbours used the lift near her property and came towards her flat.
4. She believed that she needed to be re-housed. She stated that her daughter felt that she was being followed by the neighbours and that even with the police’s involvement, the neighbours continued to behave in the same manner.
On 23 October 2020 the CM wrote to the resident. She noted:
1. The resident had been sent a housing transfer form to complete along with a medical assessment form. This would be considered once completed. A management transfer would not be processed at this time, however, as there was not enough evidence (from the resident or police) to support a move. The best option was believed to be mediation.
2. The resident needed to continue to keep a diary and was advised that Neighbour A would also be doing the same. The resident was reminded that she could call the Noise Team at any time of the day if noise was present.
3. While the Noise Team had advised that they would not take enforcement action against household noise, a trained officer could confirm the existence of a nuisance, and a detection of such could provide evidence to enable the ASB team to take further action.
Records show that the resident reported nuisance to the Noise Team on the following day. She was advised, however, that as this related to household noise, no action could be taken.
In a further email on 28 October 2020 the CM explained to the resident:
1. Following the case conference, she was unable to provide specific details, but could assure the resident that action was being taken to address Neighbour A.
2. The resident needed to keep a diary in the meantime and to call the Noise Team as and when she experienced the noise. The landlord was limited in the actions it could take as there was insufficient evidence. The CM noted that as of yet, she had been unable to identify anything substantial from the recordings shared.
3. The ASB Service did not enter resident homes to witness noise. This service was only offered by the Noise Team, however due to COVID-19 restrictions, this could not take place at this time.
On 29 October 2020 the resident wrote to several staff members including the CM, SW, HO, and her local councillor. She explained:
1. There was suspicious behaviour from Neighbour A whilst he was in the lift. She felt that she now needed to look around to see if anyone was looking at or listening to her. Her daughter also no longer felt safe, and her sleep was being severely impacted.
2. She had been referred to the Noise Team by the CM many times, however the Noise Team had advised her that they could not help her situation.
3. She had noticed a pattern of noise. It seemed that when Neighbour A had realised that she or her daughter were home, they would bang on purpose and these bangs sounded like a hammer being taken to the floor.
4. She believed it was unfair that Neighbour A was also keeping a noise log for her, when she had not created any unnecessary noise.
The resident expressed that she therefore wished for a stage two complaint to be raised. She asserted that since her email on 22 October 2020 (which she now identified as a stage one complaint), the ASB Team had provided her with the same solutions which had not helped her situation. She was dissatisfied that she had to go back and forth with the Noise Team.
The resident shared a noise diary on the same day for the period 29 October 2020 – 5 November 2020. The Ombudsman can see that within her log, she reported activities such as banging, running, the slamming of doors, and the use of a washing machine late at night.
On 10 November 2020 the CM acknowledged a report from the resident that she had experienced noise nuisance from the property below her over the weekend. The CM requested details of the nuisance experienced and on 18 November 2020, following no response from the resident, highlighted that permission was needed before any contact could be made with Neighbour B.
A case conference was held on the same day. The Ombudsman can see that the takeaway actions were to establish how the Noise Team could support the resident with the household noise and to speak with the downstairs neighbour.
In relation to the resident’s complaint, this Service contacted the landlord on 19 November 2020 encouraging it to offer a formal response within 10 working days.
On 22 November 2020, in response to the CM, the resident explained that on the weekend in question, noises of children running, screaming, and continuous jumping (in the day) could be heard from Neighbour B’s property. There were sounds of doors banging and things being thrown around. The resident stated that this was stressful and was having an impact on her wellbeing.
The Ombudsman can see from the landlord’s internal emails that action was taken against the neighbour upstairs on or around 24 November 2020. The resident was also advised on 26 November 2020 that a warning letter had been sent to Neighbour B. The CM explained that while she awaited a response from Neighbour B, on putting the allegations to the neighbour, the resident could still share any new incidents.
The landlord advised this Service – in relation to the resident’s complaint – that it had scheduled to discuss the matter with the resident on 27 November 2020. This Service has been unable to confirm that this call took place.
On 2 December 2020 the resident submitted an online complaint. The resident reiterated her points put forward on 22 October 2020 and asserted that she could not understand why her previous submissions had not been logged as complaints. She explained that she was disappointed with the way that her case had been managed.
On 3 December 2020 the CM contacted the resident to establish whether there had been any further noise nuisance. The resident responded on the same day expressing that things had remained the same and that due to a lack of sleep, her daughter’s focus at school was being impacted. She explained that she had been reporting the incidents to the Noise Team, however as nothing could be done, she had taken the decision to stop.
The CM requested that the resident direct the reports to her instead. The resident was reminded that as per the “Our Promise” letter, updates were required in order for it to assess the situation and to take appropriate action. The CM assured the resident that the landlord was working on actions (which it was unable to disclose) to address Neighbour A’s tenancy breach.
On 9 December 2020 the resident reported to the CM:
1. The noise from the property above had reduced as it appeared there were less people. Previously, however, there had been slamming, dragging, and pulling sounds. She presumed that this would become noisy again once the usual members returned to the property.
2. The new issue was with Neighbour B. Noise began every morning at 06:00, sometimes earlier. This was consistent banging and sounds of walking with heavy heels.
3. She was not keeping a log as the banging was Frequent and daily. This usually stopped between 08:00 and 09:30 and would start again in the evening between 17:00 and 18:00 until 22:00 / 23:00, sometimes later.
4. While she noted the CM had sent a letter to Neighbour B, this had not improved the situation.
The resident’s SW advised the CM on 10 December 2020 that the resident was willing to engage in a “Good Neighbour” agreement with Neighbour B to see if the noise could be improved. It was explained by the CM on the same day that this could be explored, but Neighbour B would need to agree to partake. Further evidence was also required from the resident as in the CM’s opinion, the noise described from Neighbour B was household noise. This appeared to occur when Neighbour B was getting ready for work and later on her return.
On the same day the CM contacted the SW to discuss the best approach to supporting the resident. The Ombudsman can see that previous conversations were had and that contact was also made with a support service.
On 11 December 2020 the resident wrote to the CM. She stated:
1. The noise that she had been experiencing was not “normal” household noise. She had lived in the building for several years (in a different property), with neighbours who worked and had children, but had never experienced such noises. She stated that on most occasions she woke up scared as the banging was so bad. The resident asserted that she was living in fear.
2. She had been providing video evidence, keeping noise logs, and informing the landlord of the daily pattern. She noted that the CM had previously been unable to hear the noise in a recording sent but advised that she could share a new recording made on the previous evening. She suspected, however, that the response would be the same. She stated she had previously provided evidence that the above landlord rented the property out on weekends for parties, and other neighbours had also confirmed this too, however nothing was done. More and more evidence was being requested.
On 15 December 2020 the CM responded to the resident’s above correspondence, explaining:
1. The term “Household noise” depicted noise which could be heard from another household’s daily activities. From the evidence provided, the noise described and the times in which they occurred correlated with household living. This was deemed “normal” and not anti-social.
2. The landlord continued to work closely with the managing agent for the above property and on any progression in relation to the subletting.
3. Neighbour B had been spoken to and had denied noise nuisance. An offer of mediation had subsequently been made. There was insufficient evidence to warrant tenancy action against Neighbour B.
The CM explained that while she sympathised with the resident and her daughter, she was working hard to resolve the matter using the available tools. She suggested that in the meantime, the resident may wish to consider using earplugs when sleeping. A meeting would be arranged with the resident and her SW.
On 17 December 2020 the landlord also provided the resident with a stage one response. It explained that the resident’s complaint would not be upheld as:
1. Since opening an ASB case for the resident, it had been working closely with the relevant departments to resolve the matter.
2. Neighbour A had been interviewed and confronted with the allegations. Mediation was also offered. In a multi-agency meeting, it was additionally agreed that a “Good Neighbour” agreement could resolve the matter however the resident declined this.
3. In the meeting held on 19 October 2020, it was confirmed by the managing agent that legal action was being taken against the neighbour above once COVID-19 restrictions were relaxed. The leaseholder was also being spoken to about sound insulation.
4. The police had found no evidence of noise nuisance following their visit. It therefore had no evidence to take further action.
5. It had requested that the resident keep a diary log and recordings of the noise. It had reviewed the recordings provided to date and found no evidence of unreasonable noise. Contact had been maintained by the CM as agreed, nonetheless.
6. Since reporting noise nuisance from the below property on 18 November 2020, Neighbour B had been interviewed and the allegations denied. Mediation had also been offered and was yet to be confirmed.
7. The Noise Team had informed that due to COVID-19 restrictions, it was unable to attend and enter properties as the mixing of households was still restricted. The resident was still encouraged to make reports to the Noise Team as they could still attend to witness the noise from outside the property and should a nuisance be witnessed, an abatement could be served.
The landlord subsequently concluded that it had correctly followed its ASB process. It noted that the resident and her daughter were receiving support with regards to their wellbeing from Family Services.
On 20 December 2020 the resident expressed further dissatisfaction. She stated:
1. She saw no point in continuing to create logs or to share evidence if this was just going to be dismissed. She stated that the recordings and logs she would be giving would remain the same as the noises had not changed, neither had the pattern nor the impact.
2. She sought a response to whether it was normal to be awoken in the manner that her and her daughter had been, whether this was how she should be feeling in her own home, and whether it was her job to find out where the noise was coming from.
3. She had been in contact with Neighbour B initially to attempt to gather information about Neighbour A. The resident stated that Neighbour B had accused her of the noise, which she did not like and during a time in which she did not live in the property.
4. The landlord had shared too much information about her case with Neighbour B, who had stated that she was aware that the complaints were coming from her only. The resident stated that this was not true as the above flat had confirmed that noise could also be heard and was keeping a log. The resident asserted that from this, it was clear that the case was not being managed right.
5. She had attached another video for the CM to review. She advised, however, that it would be best for the CM to visit the property for herself to witness the noise.
On 21 December 2020 the CM replied to the resident. She explained:
1. The evidence provided had not been discarded or dismissed. The recordings had been helpful, however had not evidenced any significant noise. The resident was advised to continue to create noise diary logs.
2. She was unable to take enforcement action for noise considered to be everyday living noise or noise which was not done maliciously or on purpose.
3. Neighbour B had been contacted with the resident’s permission, and the allegations were put to the neighbour. No personal details were included in the letter. The CM additionally noted that if a “Good Neighbour Agreement” was to take place, the resident’s identity would need to be disclosed. The resident was assured that the neighbour below was only informed of the allegations of noise.
4. If the resident was unable to identify the source of the noise, no further action could be taken. The CM added that the Noise Team were equipped to identify noise and its location, but she could not as she was not a trained NO. This was also discouraged by COVID-19 guidelines.
On or around this time, an MH Service referral was made by the CM.
The Ombudsman can see that the resident provided the CM with a diary log for the period 10 – 27 December 2020. She explained on 27 December 2020 that on that morning, she had experienced further banging and had spoken with Neighbour B who had alleged that she could hear the banging too. The resident questioned where the noise could be coming from, if not Neighbour B.
On the same day the resident wrote to the landlord in relation to its complaint response. She stated:
1. She had explicitly stated in her email on 29 October 2020 that she wished to escalate her complaint to stage two. She expressed confusion as to why her ASB case was closed in August 2020 without a solution or a response from her.
2. Other neighbours had also complained about Neighbour A. Despite this, continuous requests for evidence had been made and while this had been provided, this had been dismissed.
The resident stated that she therefore wished for her complaint to be reviewed at stage two of the complaints process. She stated that her case had not been managed appropriately, she had been given the wrong advice, and had not been supported by the landlord.
On 29 December 2020 the CM advised the resident that Neighbour B had declined the offer of mediation and that as it was now unclear where the noise was coming from, the resident needed to make her reports to the Noise Team so that the source could be identified.
The CM also provided the resident’s local councillor with an update on 5 January 2021 following an inquiry on her behalf.
On 7 January 2021 the resident wrote to the landlord. She expressed:
1. Noting that Neighbour B was now claiming that she could hear the noises too, she questioned why this had not been brought to light prior to her complaint.
2. Upon speaking with another tenant of the block, they confirmed that they too heard banging and had raised this with the landlord. The resident recommended that the landlord speak with other tenants.
3. She felt it was the CM’s responsibility to investigate this matter as she believed the noise was coming from Neighbour B. She advised that no further reports would be made as she had not been staying at the property since 27 December 2020.
On the following day, the CM reminded the resident that it was not within her remit to investigate and identify noise. It was the responsibility of specially trained NOs to determine whether the noise experienced was at a level legally deemed to be a nuisance. As such, the CM noted that the ASB case would be closed. As the noise did not appear to be deliberate, this could not be considered ASB. It was noted that the resident was now unsure about where the noise was coming from too. The CM advised that she had spoken with several neighbours and no noise nuisance or ASB had been reported. There were no further actions that could be taken.
The resident responded on the same day. She requested that her case remain open and reiterated that the noise emanated from the property below. She stated that she had made contact with the noise team on several occasions, but this had not resolved anything.
It appears that a case conference took place on 12 January 2021. Following the conclusions of this conference, the resident was advised on the following day that a further offer of mediation was made to the neighbour which had been accepted. A job had also been raised with the landlord’s internal engineers to explore and consider whether the pipework could be the cause of the banging. Contact would be made to arrange an inspection.
On 18 and 27 January 2021 the resident expressed dissatisfaction that she had not heard from the CM or the engineer. She also questioned why an inspection of the pipes was only just being raised. She stated that her case had not been dealt with fairly and that the CM had been dismissive.
The CM reiterated that the engineer was to be in contact. She had also been waiting for feedback on the results of the mediation. As she had explained, however, there was nothing further that could be done in respect of the ASB.
Records from the Noise Team show that the resident made further noise reports of harsh bangs and movements coming from downstairs during the day. The resident was advised at this time that visits could not be made due to COVID-19 restrictions. Instead, this Service can see that she was advised of her right under Section 82 of the Environmental Protection Act 1990 to present her own evidence via the courts.
Mediation took place on 11 February 2021 between the resident and Neighbour B. The Ombudsman can see that reports of noise from both parties continued during February 2021, however.
On 19 February 2021 the CM wrote to the resident following a meeting with her earlier that day. The CM noted that within the meeting, the resident agreed that she would use the Noise App for two weeks to capture the noise experienced, and this would be reviewed on 10 March 2021 in their next meeting. The CM advised that she would follow up on the inspection of the pipes to establish whether this was the cause of the nuisance and the wellbeing of the resident and her daughter was also discussed. The CM agreed to make further contact with support services to explore if support could continue whilst the case was open.
On the same day, the resident explained to the CM that she had reached out to an independent sound insulation testing company and provided the CM with the details obtained. She questioned whether access could be arranged to the neighbour’s property to test this.
On 25 February 2021 the resident wrote to the landlord. She expressed that the noise app was too difficult to use and was not capturing the noise that she was hearing. She expressed that it was also difficult during the night when she was less awake and that the noises had stopped by the time she reached for her phone. The resident noted that the banging had decreased, but suggested it was still there. She instead made further reports of noise to the Noise Team.
The CM confirmed on 4 March 2021 that the recordings that the resident had made would be reviewed. A meeting with the resident’s SW was subsequently arranged on 11 March 2021.
Following a prompt from this Service, the landlord wrote to the resident on 18 March 2020 apologising for its delay in responding to her complaint. It confirmed that a response would be provided within 10 working days.
Following a meeting with the resident on 26 March 2021, the CM noted:
1. It was discussed that the noise mainly occurred in the mornings and the evenings. This correlated with the recordings sent via the Noise App. The resident was advised, however, that the recordings were not substantial enough for further action to be taken. It was explained that DIY noises between guideline hours was acceptable providing it did not last longer than four hours. The resident was encouraged to continue to use the noise app until someone could attend the property to conduct a noise test, COVID-19 permitting. This was the best way forward.
2. The resident questioned why the stage two response had yet to be provided. She was directed to the complaints Team to pursue this.
The CM advised the resident’s SW on the same day that she intended to raise her concerns with MH services. She also noted that the recordings demonstrated that the noise was mainly between normal hours – 07:00 to 21:00.
On 31 March 2021 the landlord provided the resident with its final response. Within this, it advised:
1. Upon receiving reports of noise nuisance at the property above in July 2020, the Leasehold Services team contacted the owner who took prompt action to ensure that there was no further short letting taking place. This case was subsequently closed. The landlord explained that if there was any further evidence of short lets taking place, it would seek to take legal action.
2. The resident had confirmed that the noise from the property above had significantly reduced. The owner of the property was also liaising with the landlord to resolve issues raised. The police had advised that on their visits to the property, they had found no evidence of noise. The resident was advised that she needed to contact the police if she did experience nuisance.
3. It thanked the resident for providing recordings (via her phone and noise app) and a log of the noise experienced. It explained that it had reviewed this, however, and found this to be insufficient to enable any enforcement action against either neighbour. The noise heard on the recording sounded like doors being closed and intermittent banging. This was also not at unsociable times and was considered to be everyday household noise.
4. While mediation had been arranged and taken place, it noted that unfortunately, no resolution was agreed.
5. The ASB Case Manager had met with the resident on several occasions and kept the resident updated. The resident was provided with an update on the actions that had been taken and the next steps. The resident was also advised, in March 2021, that a mechanical engineer had been consulted to establish whether the pump beneath the property could be the cause of additional noise and banging.
6. It had offered to arrange floating support for the resident should she feel that she needed any additional support with regards to her wellbeing.
7. It had noted her report that Neighbour A and B had allegedly heard the same banging noise but was unclear where this was coming from. The landlord explained that it was difficult to take enforcement action against a household if there was conflicting information about where the noise was coming from. Other residents had been contacted to establish whether they were experiencing noise issues in any case, and the communal heating system would be inspected.
The landlord concluded that it would not be upholding the resident’s complaint on this basis.
The Ombudsman can see that the Noise Service resumed its full service on or around 27 April 2021 and that the resident was advised at this time that a proactive visit would be organised depending on the availability. The CM advised that this would provide clarity on the noises experienced and whether it was a statutory nuisance.

Assessment and findings

The landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) and noise nuisance.

Within the landlord’s ASB policy, it identifies noise from loud parties to be an example of ASB. This is further supported by its Conditions of Tenancy (COT) which set out the standards of behaviour that it deems acceptable and which, under Section 4 – “Living with your neighbour”, recognises the impact that noisy parties and loud music (particularly at unsociable times) can have on residents.
The Environmental Protection Act 1990 also imposes a duty on local authorities where a complaint of a statutory nuisance has been made by a resident, “to take such steps as are reasonably practical to investigate the complaint”.
It was therefore appropriate, that upon receiving the resident’s reports of parties being thrown at the above property by Neighbour A, the landlord opened an ASB case and interviewed the resident to discuss the incident. The Ombudsman can see that at this time, the landlord put together an action plan or “promise”, which set out the steps that it planned to take in response to the resident’s report. This was in line with the procedures set out in the landlord’s ASB policy.
This Service can see that the landlord honoured the actions agreed with the resident within its “promise” and in the absence of contact from the resident, closed the initial ASB case in August 2020. This was reasonable. While the resident has expressed dissatisfaction that this case was closed without her agreement, she had not maintained frequent contact despite being advised that if no reports had been made within a period longer than 14 days, such action would be taken. The landlord subsequently did not act unfairly here.
This Service is also satisfied that during this time, the landlord made contact with the leaseholder (and managing agent) and began taking steps to address the breach in the COT. While the resident was not provided with specific information, she was provided with assurance that the LOT had taken steps to address the matter and in the stage one response, that legal action would be taken once COVID-19 restrictions had been lifted. The Ombudsman cannot see that any further parties / loud music was reported after this time.
While the landlord’s ASB policy is silent on the matters that it does not consider to be ASB, its website explains that generally, it will not deal with noise reports which relate to dropping objects, moving furniture, loud talking, the slamming of doors, children playing, or everyday domestic noise. It advises that this is unlikely to be considered a statutory nuisance.
It was therefore reasonable that upon receiving reports of banging, loud talking, and harsh movements in September 2020, the resident was referred to the Noise Team. This would not have been considered ASB. The Ombudsman can see that upon making reports to the Noise Team, it was concluded that the noise reported was household noise and that no enforcement action could be taken to address this.
It was reasonable, nonetheless, that the landlord agreed – in its updated “promise” – that it would undertake a further door knocking exercise and would liaise with the LOT to put the new allegations to Neighbour A.
While the resident sought for a member of staff to sit at her property to witness the noise between specific hours, the Ombudsman is aware that the landlord’s service did not operate in this way. It was therefore reasonable that the resident was advised that she needed to report the noise as and when it was occurring for a visit to take place. The landlord reiterated, however, its difficulty in identifying noise from day-to-day activities as a statutory nuisance.
On referring this matter back to the ASB Team, it was appropriate that the CM sought to accrue further evidence of the noises experienced by encouraging the resident to maintain a diary. It was also reasonable, given that Neighbour A had also made counter allegations, that mediation was proposed. Although declined by the resident, this was a proportionate and suitable intervention. The Ombudsman appreciates, however, that as the resident had had a poor experience with Neighbour A, she did not consider this to be suitable.
In the Ombudsman’s view, a “Good Neighbour” agreement may have also brought about a better understanding of both the resident’s and Neighbour A’s situations and encouraged both parties to be mindful of any noise being emitted. The Ombudsman notes that following the initial case conference, this was believed to be a practical solution.
Recommendation that the resident consider the sound insulation was also a reasonable and fair line of enquiry. Both the NO and the CM suggested that there was likely a structural issue. From the notes available, it appears that the landlord did discuss the noise insulation with the leaseholder of the above property. This was confirmed for the resident within its stage one response and was reasonable. As the property did not belong to the landlord, the Ombudsman cannot see that it would have been able to impose any changes without the leaseholder’s consent.
While the solutions proposed at this time were unable to offer the resident a remedy which she believed to be suitable, the arrangement of case conferences was in line with good practice. This enabled the landlord to engage multiple agencies / departments to discuss the resident’s case and demonstrated that fair consideration was being given to this matter.
This Service recognises that the outcome sought by the resident was to be moved to another property. It was therefore appropriate that the resident was provided with the appropriate information to enable her to submit an application for a property transfer. As explained above, this Service cannot comment on the assessment of the resident’s application and/or whether the outcome was fair.
It was also reasonable that on receiving new reports of noise from Neighbour B, the landlord again met with the resident to obtain further details of her report, and with the resident’s permission, put the allegations to Neighbour B. This was in line with its ASB approach.
While it became the subject of dispute, the Ombudsman has seen the diary logs provided by the resident and can confirm that the events reported, and the times of the reports, would have been deemed household noise. As such, the CM explained to the resident that as it was difficult to prove that any such noise was being caused purposefully, no enforcement action could be taken. It was reasonable, nonetheless, that given the reports received, and that Section 4 of the COT also recognised that shouting and door slamming could cause an annoyance, the landlord issued a warning to both neighbours to remind them of the expectations under the COT.
As the resident suggested that the warning letter had no impact on Neighbour B, and had expressed an interest in partaking in a “Good Neighbour” agreement, it was appropriate that the landlord arranged for mediation to take place. The Ombudsman notes that this was initially rejected by Neighbour B, however on further communication with her, the CM was able to arrange this. While mediation was unsuccessful in curbing the alleged noise, it was a reasonable intervention to utilise.
The Ombudsman appreciates that the resident was hesitant to provide ongoing evidence for Neighbour B, given that logs, recordings and reports had been made about Neighbour A’s alleged banging, and little action had been taken. It is worth noting, however, that as the reports about Neighbour B would have been considered as a separate noise nuisance case, the landlord would have needed to accumulate sufficient evidence for any action to take place against Neighbour B. It would have been unable to rely on earlier reports that related to Neighbour A. It was therefore reasonable that the landlord continued to ask the resident to collect evidence. This was particularly important as the landlord was unable to confirm any significant (and intentional) noises on considering the noise recordings provided.
On learning of the uncertainty about where the noise was coming from in late December 2020, and that Neighbour B (allegedly along with other residents) had asserted that they could also hear banging, it was an appropriate next step to consider whether there was noise transference from the building’s pipework. The Ombudsman notes that the resident questioned why this did not take place earlier, but cannot see that this would have been appropriate given the type of reports that were being made. It was also not unreasonable that the CM subsequently advised the resident that the ASB case would be closed, with no evidence of ASB occurring.
In the Ombudsman’s view, it might have been reasonable for the landlord to have provided the resident with the Noise App at an earlier time to assist her in capturing the noise experienced. This would have been a useful evidential tool. The Ombudsman accepts, nonetheless, that up until this time, the resident had been providing recordings made from her phone. It is also recognised that upon use of the Noise App, on review of the recordings made, the landlord was unable to confirm any significant noise. The landlord satisfied for itself that there was not enough noise to warrant any further action and explained this to the resident in March 2021.
It is noted that the resident expressed that she had not been supported by the landlord despite her several reports that the noise was having an adverse impact on both her daughter’s and her mental health. The Ombudsman is satisfied, however, that while the noise issue was not resolved, the landlord did maintain communication with the resident and her SW throughout the time, making several referrals to support services and engaging different agencies. The Ombudsman has also seen evidence of discussions with the resident in regard to her mental health and how best to assist her. This, in the Ombudsman’s opinion, was reasonable.
While the above actions from the landlord were all considered to be fair, this Service does note that in January 2021 the resident was advised that she would be contacted to arrange an inspection of the pipework and has seen no evidence that this took place. The Ombudsman notes that this matter was still outstanding by the time of the landlord’s final response, and it is still unclear whether this has taken place. The landlord failed to provide a specific date in its final response of when the communal heating system would be inspected. Given that this matter had been outstanding since it had been suggested on 12 January 2021, this would have been appropriate.
What’s more, the Ombudsman can see that in relation to Neighbour B, the resident made arrangements for a private company to test the noise insulation at Neighbour B’s property and had presented this information to the landlord. A request was made for access to Neighbour B’s property to undertake this. As the evidence provided at this time was still insufficient, the Ombudsman appreciates that the landlord may not have welcomed this or covered the cost of the insulation test. It would have been appropriate, however, for the landlord to have provided the resident with a full response explaining why this had not been taken up. This Service has seen no evidence that it did.
Finally, on reviewing the correspondence with the resident as a whole, this Service has found that there was a conflict in the advice given by the landlord and the actions taken.
The landlord’s website explains that where a noise complaint is made, officers will often need to visit the property in person and may be limited in the action it can take if it is unable to do so. The Ombudsman accepts that due to COVID-19 restrictions, the Noise Team temporarily suspended its normal service and were therefore unable to enter resident homes to witness noise. It is also accepted that this was not a service that the ASB Team would provide, being that they were not trained noise specialists.
The Noise Team was, however, able to attend the property to witness the level of noise from the outside. This Service notes that the resident had been advised of this in various correspondence. It was explained that a specially trained officer could attend the resident’s property to determine whether the noise reported was at a level legally deemed to be a nuisance and confirmed in the stage one response that while government guidelines restricted the mixing of properties, an assessment could be done from outside. The landlord explained that if a nuisance was witnessed, an abatement notice could be served and follow up action taken.
With this in mind, it is unclear why an external visit did not take place. This Service notes that instead, the resident was continuously advised that no action could be taken (and was reverted back to her HO). This would have been confusing for the resident. The Ombudsman can appreciate that the resident became dissatisfied with the advice given by the landlord and that she had been directed back and forth between the Noise Team and the landlord. In the Ombudsman’s view, this was inappropriate.
This Service is aware that where a landlord is unable to witness the noise being complained of itself, Section 82 of the Environmental Protection Act 1990 gives the complainant a direct path to the courts without having to involve the local authority. The Ombudsman notes that the resident was subsequently advised of this too, upon contacting the Noise Team, and this was reasonable. Still, however, given that the landlord had advised that it could take external visits to witness the level of noise, and therefore to potentially further the resident’s case, this should have been done. This omission was a service failure. The Ombudsman notes that it was not until 27 April 2021, when the Noise Service resumed its normal service, that the landlord sought to arrange a visit.

The landlord’s handling of the resident’s complaint.

The Ombudsman has also considered the landlord’s handling of the resident’s complaint and on review of this, has found that the landlord failed to manage the resident’s complaint appropriately.
Within the landlord’s “Best Practice Guide for Effective Complaints Handling”, it explains that the landlord operates a two-stage complaints procedure. At stage one, its guide suggests that a complaint will be acknowledged within two calendar days and subsequently responded to within 10 working days. The same timeframe is set out for responses at stage two of the procedure.
Contrary to this, however, the Ombudsman notes that upon raising her complaint on 29 October 2020, the resident’s dissatisfaction with the handling of her case was not acknowledged or responded to within the proposed timeframes. While a complaint response would have been expected by 12 October 2020, no complaint response was offered.
In the absence of this, and an indication that her complaint was being considered, the resident brought the matter to this Service and on 19 November 2020, the landlord was advised to offer a complaint response within a further 10 working days. The Ombudsman notes that in response, the landlord advised this Service that it had scheduled to speak with the resident about her complaint on 27 November 2020.
Despite this, however, the landlord still failed to provide a complaint response. The Ombudsman has not seen that there was any communication with the resident during this time explaining why a complaint response had not been provided.
Adding to the landlord’s omission here, this Service notes that the resident reiterated her complaint via the landlord’s website on 2 December 2020. This provided the landlord with a further prompt yet still no response was provided until 17 December 2020 – approximately a month and a half after the complaint had initially been raised. This was inappropriate.
Furthermore, the landlord failed to provide the resident with a response within a reasonable timeframe at stage two of the complaints procedure. While the resident set out clearly on 27 December 2020 that she remained dissatisfied with the landlord’s response and wished to escalate her complaint to stage two, the landlord did not provide its response until 31 March 2021. This was inappropriate.
Similar to the events at stage one, this Service had to prompt the landlord to offer its final response and although it suggested that it had indicated to the resident that there could be a delay, this Service has seen no evidence of this.
In light of the delay at each stage of the complaints procedure, in the Ombudsman’s view, it would have been reasonable for the landlord to have acknowledged its poor complaint handling and the impact this had on providing prompt resolution for the resident. While the landlord apologised for the delay in providing the resident with an outcome within its stage two response, by this time, its poor handling of the resident’s complaint had delayed the resident by approximately four and a half months in total. Its apology was therefore a disproportionate response. In the Ombudsman’s view, an offer of compensation should have been made to account for this. Ultimately, the landlord’s failure to honour its timeframes prevented the resident from being able to bring her complaint to this Service for investigation.
For completeness, it is acknowledged that the resident considered her report on 22 October 2020 to be her stage one complaint and subsequently, on 29 October 2020, requested that the landlord escalate matters to stage two. Within her later correspondence, she questioned why the landlord had not considered her previous emails as complaints.
The Ombudsman appreciates, however, that while the resident had sent several emails to the landlord expressing her dissatisfaction with the noise, this would not have been deemed a complaint by the landlord but rather a noise / ASB report or a service request. This is as the complaints made prior to 29 October 2020 were not about the landlord’s Service, but instead, were about the alleged behaviours of the neighbours and the impact. It was therefore appropriate that the landlord did not respond to these under its complaints process, although it might have been reasonable to have explained this to the resident.

Determination (decision)

In accordance with paragraph 39(m) of the Scheme, the Ombudsman has determined that the complaint about the landlord’s handling of the resident’s housing transfer application falls outside of this Service’s jurisdiction.
In accordance with paragraph 54 of the Scheme, there was:
1. A service failure in respect of the landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) and noise nuisance.
2. Maladministration in respect of the landlord’s handling of the resident’s complaint.

Reasons

The Ombudsman has arrived at the above determinations as:

While the landlord’s ASB response was appropriate and in line with its policy, this Service is not satisfied that the landlord took sufficient action to assess the household noise experienced and reported by the resident. As the Assessment and Findings section of this report demonstrates, although the landlord advised that it was capable of witnessing the noise externally (while COVID-19 restrictions were in place) to gauge the level of noise and to establish whether this level could be deemed a statutory nuisance, it did not do this. Instead, the resident was continuously told to report her issues to the Noise Team, and her reports met with no action. This was inappropriate. The Ombudsman cannot see that any explanation was given for why the external visits were not taking place.

It is also unclear why the landlord did not follow up on the resident’s request for Neighbour B’s sound insulation to be assessed. This Service notes that both the Noise Team and the CM indicated that this could be an issue, yet upon receiving details of an organisation capable of undertaking an inspection, the opportunity to pursue this was not taken up. This Service has seen no evidence that the sound insulation was ever seriously considered or that reasons against this action were ever put forward.

Finally, it was inappropriate that the landlord delayed in organising an inspection of the pipework, as it said it would in January 2021. Given that Neighbour B (and several other neighbours, allegedly) had also reported hearing banging noises, it would have been reasonable for the landlord to have ruled this out as a possible cause as early as possible. While the landlord suggested, months later in its final response, that an engineer had been consulted and that the communal heating system would be inspected, it gave no indication of when this would take place. This would have been appropriate as the matter was outstanding.

The landlord failed to act in accordance with its complaints guidance and the timeframes set out within this. As a result, the resident’s complaint was delayed by several months. This Service has recognised that the landlord apologised that it had not provided an outcome sooner, however in the Ombudsman’s opinion, an offer of compensation should have also been made to adequately put things right.

Orders and recommendations

Orders

In recognition of the landlord’s handling of the resident’s reports of Anti-Social Behaviour (ASB) and noise nuisance, the Ombudsman orders the landlord to:
1. Award the resident £150 to recognise the distress and inconvenience which would have resulted from the conflict in the advice given and action taken.
2. The landlord should also, if it has not done so already, write to the resident to set out when the inspection of the pipework will take place to rule this out as the possible cause of banging. Within this letter, the landlord should also include its position on the sound insulation and whether this will be assessed. If the decision is taken not to do so, the landlord should set out why.
In recognition of the landlord’s handling of the resident’s complaint, the landlord should award the resident £150.
The landlord should make the above payments within four weeks of receiving this determination.

Recommendations

The landlord should ensure that upon receiving complaints, it provides the complainant with an acknowledgement and response within the timeframes set out in its complaints guidance. The landlord may wish to revisit this Service’s Complaint Handling Code, to remind itself of the Ombudsman’s expectations and why good complaint handling is important.