Southwark Council (202009093)

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REPORT

COMPLAINT 202009093

Southwark Council

12 September 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

  1. This complaint is about the landlord’s:
    1. Handling of the resident’s reports of ASB (noise nuisance) by her upstairs neighbour.
    2. Complaint handling.

Background and summary of events

  1. The resident is a secure tenant of the landlord. The tenancy commenced on 29 March 2004.
  2. In June 2019, the landlord provided its final response to a complaint by the resident about noise nuisance from the previous tenants of the flat above hers. The landlord’s response to this complaint was considered by this service and the Ombudsman’s determination issued on 13 November 2019. The previous neighbours moved out of the flat above the resident’s property in June 2020.
  3. On 24 August 2020 the resident reported noise from the flat above, which was void. The same day the landlord spoke to the contractor doing the void works who said that they only worked core hours and were not in the property at the times the resident had reported the noise.
  4. A new tenant moved into the flat above on 5 October 2020. On 14 October 2020, the resident contacted the landlord to complain about noise from the neighbour’s flat. The resident said that she had knocked on the neighbour’s door to say that she could hear everything from their flat. The landlord said that it would visit and discuss the issue with the neighbour, which it did on 16 October 2020. The new neighbour explained that due to the nature of his job he returned home from work about 11pm. The neighbour said that when the resident came to his door she had spoken to his cousin and the conversation became heated. The neighbour said that he just wanted his own peace but understood that properties can be noisy.
  5. On 19 and 20 October 2020, the resident called the landlord to say that her new neighbour was still disturbing her. The landlord advised the resident to call the noise team and that it was satisfied that the noise the resident was reporting was domestic noise.
  6. On 2 December 2020, this service emailed the landlord following contact from the resident in which she complained about how the landlord had handled her reports of ASB coming from the flat above hers. The landlord was asked to contact the resident to discuss the details of her complaint and to consider the complaint through its formal complaints process.
  7. On 4 December 2020, the landlord asked its repairs team to inspect the resident’s living room ceiling as she had reported there were holes in it. The repairs team noted that they had sent an email requesting pictures so that a desktop inspection could be completed.
  8. On 17 December 2020, the landlord was contacted by this service to confirm that the resident’s complaint was about the behaviour of her new upstairs neighbour. The landlord was asked to contact the resident to discuss the details of her complaint and to consider the complaint through its formal complaints process.
  9. The landlord issued its stage one response on 12 January 2021. The landlord:
    1. Noted that the same day the resident’s new neighbour moved into the property above her she complained about the noise of furniture being dragged, which the landlord said was to be expected when someone first moves in. The resident had also reported her upstairs neighbour making noises during the night, including dragging furniture, and that she was unable to sleep.
    2. Advised the resident that it visited the neighbour on 16 October 2020, he had advised that he worked through the day and returned home around 11pm. At that time the neighbour did carry out activities that would normally be carried out during the day and that it had spoken to him about using extra care at that time. The landlord said that this was confirmed to the neighbour in writing.
    3. Asked that, as its technical officers were not carrying out visits due to the Covid19 pandemic, the resident take a photo of the hole and sent it to her Resident Services Officer (RSO). It noted that the resident had continued to complain about noise, which she said was made worse by a hole in her living room ceiling.
    4. Said that it had made a referral to an independent Professional Witness service and in normal circumstances they would attend the resident’s property late at night and sit there for a few hours listening for noise in order to establish if there was an issue of nuisance. However, due to the pandemic, this service was currently suspended.
  10. On 26 January 2021, the landlord was contacted by this service to advise that the resident was dissatisfied with its stage one response. The landlord was advised that the resident had explained that the reason she was dissatisfied was because the landlord:
    1. Believed everything the neighbour said, including whether someone else was in the property and the hours he works but he is lying.
    2. Would not provide her with recording equipment and would not accept her recordings.
    3. Had advised that it was concerned for her mental health however it was not taking any steps to help resolve the issue which was causing her distress.
    4. Had advised that it hadn’t received any photographs of the hole in her living room ceiling, however the housing officer had been aware of this for some time and had not taken any action.
  11. The landlord was asked to escalate the complaint and contact the resident for more information.
  12. On 21 May 2021, the resident’s MP wrote to the landlord regarding its response of 10 March 2021 regarding an earlier MPs enquiry made on behalf of the resident. The MP noted in its response of 10 March 2021 the landlord had said that a referral had been made to a Community Mediator following permission from both parties. The MP advised that they had been contacted by the resident on 29 March 2021, who said that she had been contacted by a mediator in March, however, she had not heard from them since, despite leaving several voicemails.
  13. The landlord chased the Community Mediator on 24 May 2021 and 7 June 2021, following contact from the resident. On 8 June 2021, the mediator confirmed to the landlord that they were to visit the resident and her neighbour the following day to discuss whether each would be happy to attend.
  14. The landlord issued its final response on 8 June 2021. The landlord offered its sincere apologies for the delay in responding to the resident’s escalation request, which it confirmed was sent by this service on 26 January 2021 and which it had acknowledged on 28 January 2021. The landlord said that:
    1. Whilst it could not at that point disregard completely the resident’s claims of hearing noise from her neighbour’s property, there was no evidence that this was anything other than what would be classified as standard domestic noise, and there was no provision within the governing legislation for it to take enforcement action for domestic noise.
    2. There were often ‘differences of understanding’ when two neighbours have contrasting lifestyles, such as arriving and departing at different hours of the day and perhaps using the property slightly differently. However, this would still generally be classified as normal use of the property, despite the fact that another party may find it irritating. It needs to be understood that the landlord has a duty to all tenants, and is unable to restrict a resident from carrying out normal activities in their homes.
    3. It was obliged to listen to both sides of a story, her neighbour was approached for his comments, and these were received in good faith and there was no evidence that her neighbour had been anything less than truthful. The landlord explained that this was the reason why, in situation such as this where both parties accuse the other of lying, independent witness services and mediation services are offered.
    4. It had not seen any recent request for recording equipment by the resident. The landlord went on to explain the limitations on the use of such recordings with regards to legal proceedings, and that it only had access to two sets, which had limited availability.
    5. With regards to the resident’s assertion that the landlord had not taken any steps to resolve the issue, despite expressing concern for her mental health, it had made referrals to a professional witness service and had offered the option of mediation. The landlord acknowledged the profession witness service had been suspended for several months, due to Covid19, but as those restrictions were now lifted it suggested that the resident contact her RSO to pursue a mutually agreeable date for their attendance. The landlord also referred to mediation and this being something that the resident may wish to discuss again with her RSO.
    6. With regards to the hole on the resident’s living room ceiling, the landlord said that it had been unable to find any works order or request for a repair to be carried out and that the resident had been asked on several occasions to provide photos but there was no evidence of her doing so. The landlord advised the resident to report any repairs that remain outstanding, noting that as restrictions were beginning to lift there was less of an issue with attending properties and more repairs were being carried out.
    7. It did not uphold the resident’s complaint stating that it had taken all reasonable steps, there had been no conclusive evidence produced that her neighbour was doing anything inappropriate, or making anything beyond domestic noise.

Assessment and findings

The landlord’s handling of the resident’s reports of ASB (noise nuisance by her neighbour).

  1.  In accordance with the resident’s tenancy agreement and the landlord’s ASB Policy, the landlord has an obligation to investigate reports of ASB by its residents and take action to resolve any issues it identified.
  2. Whilst the ASB reported by the resident may appear to be low level ASB, it was appropriate and in accordance with its ASB policy for the landlord to consider the impact the reported noise was having on the resident and to take action to seek to resolve the matter informally at the earliest opportunity.
  3. Between June and the beginning of October 2020, the property above the resident’s was void. Nevertheless, when the resident reported noise coming from that property, the landlord promptly contacted its void contractor who confirmed that it had not been present in the property at the times the alleged noise took place.
  4. Following the resident’s report of noise from her new upstairs neighbour on 14 October 2020, the landlord again acted promptly, speaking initially to the resident and visiting the neighbour to discuss the allegations two days later. At this point the landlord established that the neighbour did not return home from work until 11pm and satisfied itself that the nature of the noise reported was that of normal domestic noise. On the basis of the evidence available to the landlord, it would not have been reasonable for the landlord to take enforcement action against the neighbour at that stage.
  5. When the resident contacted the landlord again on 19 and 20 October 2020, whilst the landlord had previously satisfied itself that the noise being reported was domestic noise, it nevertheless advised her to contact the Noise team. This was a reasonable suggestion for the landlord to make, its Tenancy Handbook referring to the Council having a Noise and Nuisance Team who would make an assessment of the reported noise and action as appropriate. It is not known whether the resident took the landlord’s advice however, in its stage one response of 12 January 2021, the landlord said that it had made a referral to an independent Professional Witness service. Unfortunately, due to the Covid19 pandemic, this service was suspended at that time.
  6. The landlord further agreed to refer the matter to a Community Mediator, mediation being an appropriate and reasonable response to resolve issues between two parties. It is evident from the MPs correspondence on 21 May 2021 that there was initial contact by the Community Mediator in March 2021 but no further contact since that time. The landlord’s response to this was both prompt and reasonable. The landlord contacted the Community Mediator on 24 May 2021 and 7 June 2021, following which the Community Mediator confirmed that they had arranged to visit the resident and her neighbour on 8 June 2021. This further demonstrated the landlord’s attempts to resolve the issue.
  7. Whilst in the main the landlord’s response to the resident’s reports were both fair and reasonable, its response to the resident’s concerns that the landlord would not accept her recordings was not.
  8. In response to the resident’s concerns, the landlord said that little would be achieved by such an exercise as recordings made by the resident would be unacceptable in legal proceedings. Whilst the court may decide upon what evidence was acceptable or not, this would not prevent the landlord from listening to them to ensure that its response was informed by a true understanding of the noise being reported.
  9. That the landlord did not do so has resulted in a finding of service failure for which it is to apologise to the resident and arrange for her recordings to be submitted so that they can be listened to. It has also been recommended that the landlord consider whether it might be appropriate in this case to issue the resident with the Noise App.

The landlord’s handling of the associated complaint

  1. The landlord has a two stage complaints process which states that the residents can expect to receive a full written response within 15 working days at stage one, and within 25 working days at stage two.
  2. The landlord was first contacted by this service on 2 December 2020 to ask that it contact the resident to discuss a complaint she wished to make about its handling of her reports of ASB. In accordance with its complaints process, the landlord would be expected to provide the resident with its stage one response by 23 December 2020.
  3. The landlord did not issue its stage one response until 12 January 2021, exceeding its target timescale by nine working days, taking into account the Christmas and New Year bank holidays. It is noted that in its stage one response the landlord said that it had not received the resident’s complaint until 21 December 2021. However, it has provided no explanation for the delay of 12 working days from when it was contacted by this service asking that it contact the resident to when it said it received the resident’s complaint.
  4. The landlord was then advised by this service on 26 January 2021 that the resident was dissatisfied with its stage one response and that she wished her complaint to escalated to stage two. In accordance with its complaints process, the landlord would be expected to provide the resident with its stage one response by 2 March 2021. However, the landlord did not issue its stage two, and final response, until 8 June 2021, more than three months later.
  5. It is noted that in its final response the landlord did apologise to the resident for the delay in responding to the resident’s escalation request but given that there was a three month delay I am not satisfied that an apology alone provides the resident with sufficient redress. An order has therefore been made for the landlord to pay the resident compensation for this complaint handling failure.
  6. In its final response on 8 June 2021 the landlord also said that it had not received any photos from the resident and that it had no record of the requested repair. Whilst it may have been the case that the resident had not submitted any photos, it is clear from the evidence that the landlord had been on notice regarding the repair since 4 December 2020, almost six months earlier, and therefore its response with regards to it having no record of the repair was neither reasonable nor accurate.
  7. During a telephone call with this service on 7 September 2022, the resident said that nothing had been done about the hole in her living room ceiling, almost two years after she initially reported it. An order has therefore been made for the landlord to contact the resident to make an appointment to carry out an inspection of her living room ceiling to establish whether there are any repairs for which it would be responsible.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of ASB (noise nuisance) by her upstairs neighbour.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Reasons

  1. The landlord has demonstrated that it was mindful of its obligations under its ASB Policy and that in the main its actions in response to the resident’s reports were reasonable. This included discussing the issue with the resident, meeting with the neighbour, and arranging for an independent professional witness service to monitor the noise heard from the complainant’s property. However, the landlord’s approach to the resident submitting recordings was neither fair nor reasonable.
  2. Whilst the landlord apologised to the resident for the delay in responding to the resident’s escalation request, the landlord failed to provide a reasonable explanation for the delay of 12 working days from when it was contacted by this service asking that it contact the resident to when it said it received the resident’s complaint. The response provided by the landlord with regards to the resident’s reports of holes in her living room ceiling was also neither accurate nor reasonable.

Orders and recommendations

Orders

  1. That within 28 days of the date of this determination the landlord is to:
    1. Pay the resident £250 for its complaint handling failures.
    2. Apologise to the resident and arrange for her to submit her recordings so that the landlord can listen to them.
    3. Contact the resident to make an appointment to carry out an inspection of her living room ceiling to establish whether there are any repairs for which it would be responsible.

Recommendation

  1. That within 28 days of the date of this determination the landlord is to consider whether it might be appropriate in this case to issue the resident with the Noise App.