Rochdale Boroughwide Housing Limited (202122922)

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REPORT

COMPLAINT 202122922

Rochdale Boroughwide Housing Limited

2 December 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. The complaint is about the landlord’s response to the resident’s concerns about noise from a vacant flat above her, including staff behaviour related to this.

Background and summary of events

Background

  1. The resident is an assured tenant of the landlord. The resident is a flat in a maisonette. The resident is vulnerable and is diagnosed with ‘non-epileptic attack disorder.’
  2. The landlord’s antisocial behaviour (‘ASB’) policy confirms it aims to help tackle crime, ASB and nuisance; aims to take into account the vulnerabilities of complainants and offer assistance and signposting; and that it considers witness accounts.
  3. The landlord’s complaints policy advises that after an informal stage, it aims to respond within 10 working days at stage one, and within 15 working days at stage two.

Summary of events

  1. The information provided advises that at the end of August 2021, the flat above the resident became vacant when the former tenant moved out.
  2. On 4 October 2021, the resident emailed the landlord that she had contacted it “weeks ago” about someone squatting at the flat and her hearing ‘banging’ every night. She said that she had spoken to a relative of the former tenant at the property two weeks prior (which this investigation understands was around the week commencing 20 September 2021), and they had said the keys to the property were due to be handed in the previous week (which this investigation understands was around the week commencing 27 September 2021). She said that the relative of the former tenant had gone into the flat and said it had a cracked window and had been ‘trashed.’ She advised that loud banging was occurring at that moment (around 2pm), and she queried why the landlord was allowing the flat to be squatted in. Following this, the information provided advises that the locks to the flat above were changed on 8 October 2021 and that the resident was informed the flat was empty.
  3. On 15 October 2021, the resident emailed that the landlord was lying to her, as noise in the flat above was continuing every night and her neighbours had heard people in the flat. The information provided advises that the same day, landlord staff visited the flat above and informed the resident that the flat was empty.
  4. On 17 October 2021, the resident emailed that the landlord was lying to her and was “hiding people” in the flat above.  She said that four neighbours had sat in her flat listening to noise coming from the flat above, and that she was in the process of making a complaint about staff lying about the issue. Following this, the landlord confirmed with its empty homes team that the locks had been changed, and then spoke to the resident on 20 October 2021. It was noted that the resident said she could still hear noise from the flat although the former tenant had left in August 2021, and it was noted that she was informed the locks had been changed and there should not be anyone inside. It was also noted that the same day, the flat above was being emptied.
  5. The resident supplies a neighbour’s ‘witness statement’ (dated 14 June 2022) whose account confirms a clear out of the flat above the resident occurred on 20 October 2021. The neighbour’s ‘witness statement’ also advises that on unspecified occasions, people were coming and going and removing furniture from the flat, weeks after it was supposed to be empty; that at other points in October 2021, furniture was observed being removed from the flat above; torchlight was observed through a window of the flat above, which the landlord informed the neighbour was a workman working out of hours; and an individual was observed at a window of the flat above, which the landlord informed the neighbour it disputed.
  6. The landlord’s account advises that the resident continued to report, including via social media, that the flat was being used at night. The landlord has noted that it did not consider this to be possible as the flat was empty, and was being locked up at night following void works during the day. On 1 November 2021, two of the landlord’s staff visited the resident to issue a warning letter related to her recent behaviour in respect to the flat above her, including alleged damage she had caused. It notes that it was explained to the resident that it was not possible for anyone to be in the flat above at night as it was not let to anyone. It notes that she continued to claim she heard noise and said she had a brain injury which made her more ‘susceptible’ to noise. It notes that it was queried whether the noise could be coming from another flat, and whether the brain injury could cause confusion about where the noise was coming from. It notes that the resident was insulted by this, which she was assured was not the intention, and it notes that she asked the staff to leave.
  7. The resident subsequently contacted the landlord and said that she wished to complain about the staff who had visited her. She stated they said she “must be hearing things” because of her brain injury, and said that she felt the way that she was spoken to was rude, patronising and discriminatory to her disability.
  8. The landlord provided a stage one response to the complaint on 9 November 2021. It advised that it had spoken to relevant staff, and noted that their recollection was that the resident was asked how the brain injury she mentioned might affect her, in order to better understand the issues she was experiencing. It apologised that the resident felt that the staff were rude and patronising, and advised that it was not the staff’s intention to give that impression or cause her any distress. It concluded that it did not believe any discrimination had occurred.
  9. The resident requested escalation of the complaint in correspondence dated 15 November 2021. She said that her original complaint was about excess noise in the flat above, and said that the two staff who had visited to investigate had been dismissive of everything she was trying to explain, and informed her that nobody lived in the flat. She said that people in the flat above her was not imagined/made up as the staff implied, and that she had told the staff that this had also been observed by two neighbours who were willing to testify to this in court. She said that she felt discriminated against as the staff kept referring to her as having brain damage, which she said was irrelevant as she had made a good recovery from this. She said that the visit had a serious impact on her mental health and led to a suicide attempt, and that the stress from the noise every night and the landlord’s response to the issue had led to an increase in the frequency of seizures she experienced. She detailed a desire to move and said a flat was unsuitable for her, as due to her injury she was traumatised by and hypersensitive to noise. She requested for the complaint to be investigated further; an apology for how she was spoken to; to be informed in advance of any visits; and a housing transfer.
  10. The neighbour’s ‘witness statement’ dated 14 June 2022 advises that around November 2021, people were seen exiting the flat above, despite the landlord’s “protestations to the contrary”; the landlord’s operative went into the flat above and informed the neighbour that they had checked all the rooms and the loft; bags of rubbish were observed being removed from the flat above; and a new tenant moved in and had parties every week which the neighbour said they and the resident had to ask them to stop.
  11. The landlord’s contemporaneous records advise that around 26 November 2021, the resident emailed to query being told that the flat above her was empty when people had entered the flat, the lights were on and noise was being caused. The landlord noted that the flat was now let to a new tenant and it was suggested that the resident be made aware she should now expect to see and hear people from the flat. The landlord notes that an attempt was made to do this but that the resident hung up.
  12. The landlord provided a final response to the complaint on 9 December 2021.
    1. It acknowledged that the resident raised a number of issues in her correspondence, but it explained that its investigation was specific to the stage one complaint about the behaviour of staff when they visited her.
    2. It acknowledged that the visit left the resident feeling very upset, but advised that having looked at the information and spoken to the staff, it was satisfied that she had not been discriminated against and there had been no intention to cause her distress. It advised that reference to the brain injury had been made to understand if this, or the long term effects, could be a factor in the resident’s sensitivity to noise or in identifying where the noise came from. It advised that the reference made was relevant to the situation and the context of the discussion.
    3. It noted the resident’s request to be informed in advance of any visits, and advised that it could update its communication preferences to contact her by telephone, email or letter only, and requested her preference to record this.
    4. It noted that she sought a housing transfer, and advised that it could see she had a live re-housing application. It advised that if she felt she had further information to support the application she should supply this and discuss the application with the relevant team, which it provided the contact details for.
  13. The resident’s MP referred the complaint to this Service in January 2022, restated the resident’s dissatisfaction and desired outcomes; said that the resident stated that her hearing had been unaffected by her brain injury and did not accept a suggestion by the landlord that her brain injury caused her to be more sensitive to noise; and said that the resident reported that the landlord had repeatedly been asked to only communicate with her by email or letter but had persisted in phoning her.
  14. In March 2022, the resident contacted this Service to report a visit from two members of staff. She noted that the landlord was not supposed to contact her in this way, and said she felt bullied and intimidated by the visit. Following this, the landlord emailed the resident and queried what specifically made the resident feel that the staff’s conduct was bullying and intimidating, which she advised this Service she did not reply to.

Assessment and findings

Scope of the investigation

  1. The complaint that exhausted the landlord’s complaints procedure relates to concerns about staff behaviour and noise in the flat above the resident from August 2021 to November 2021, when a former tenant had moved out and the property was void/empty.
  2. The correspondence from the resident’s MP and the resident refer to reports about noise/events after the flat above the resident was re-let in November 2021; reports about a new tenant; and reports about a staff visit in March 2022. While this Service recognises these have impacted the resident, these were not the subject of the complaint that the resident originally brought to the landlord, or the subject of the complaint that the landlord responded to in November and December 2021, and therefore these matters are not fully considered in this investigation. The resident has the option to raise these issues to the landlord, and to also supply it with medical evidence that she has provided this Service and which post-dates the landlord’s December 2021 final response. She then has the option to submit a separate complaint to the landlord and bring its response to this Service if she remains dissatisfied.

The landlord’s response to the resident’s concerns about noise from a vacant flat above her, including staff behaviour related to this.

  1. This Service recognises that the concerns the resident have reported have affected and caused distress to her. In cases related to issues such as noise and anti-social behaviour (‘ASB’), it is not the Ombudsman’s role to determine whether noise or ASB occurred or who/what property is responsible. It is also not the Ombudsman’s role to decide whether someone should be moved, or to decide on matters such as discrimination in the same way as the courts. However, the Ombudsman can assess how a landlord has dealt with matters in the timeframe of a complaint, and assess whether the landlord has responded in a sympathetic and reasonable manner, taking account of all the circumstances of the case.
  2. In this case, the evidence shows that the landlord responded reasonably following the resident’s report on 4 October 2021 and on other occasions in October 2021. The landlord’s records, the resident’s account and her neighbour’s account show that the landlord considered concerns raised to it on multiple occasions, and took action in a reasonably timely manner to change the locks to the flat; physically check the flat was empty; internally discuss the status of the flat; and set out its position on the resident’s and her neighbour’s reports.
  3. It is recognised that the resident and her neighbours were well placed about whether the empty flat above the resident was being lived in, however it is not evident that the landlord failed to respond to concerns and failed to take action based on the information available. The resident’s reports about ‘banging’ in the flat above and the flat not being empty, were reasonably addressed by steps the landlord subsequently took to change the locks, physically visit, and confirm the flat was empty. The resident referred to other neighbours supporting her claims, and the information provided shows that the landlord considered other reports and was satisfied that the flat was not being used inappropriately. The neighbour’s ‘witness statement’ generally describe activity, such as removal of furniture and rubbish, which is not unusual for a property that has been vacated and is undergoing void works in preparation for being re-let.
  4. This Service understands that the resident was caused distress by the visit from staff in November 2021 and as noted above, it is not our role to make definitive decisions about discrimination, however we can consider if a landlord treated a complainant in an ‘unsympathetic’ manner. This investigation therefore focuses on whether the landlord responded about these events sympathetically and reasonably.
  5. The evidence shows that the landlord investigated the visit by speaking to staff and obtaining their account, which demonstrates that it took the concerns seriously and investigated these in an appropriate way. This investigation understands that the resident was unhappy her injury was referred to as brain damage, and was unhappy it was queried if this affected her hearing or ability to identify if noise came from the flat above. The landlord has stated that such discussion was relevant to the context, and this was reasonable. The resident has made statements such as that she is hypersensitive to noise, and queries to understand how her brain injury impacted her in respect to noise therefore seem reasonable, given actions such as visits and changing of locks will have reasonably led the landlord to conclude that the flat above was empty.
  6. The resident’s account of the language used by the landlord, such as claiming she was hearing things, does seem unsympathetic and this Service can understand this will have been very distressing for her. There can be different interpretations of events, and where there are two different verbal accounts of an incident, it is hard for this Service to make a definitive decision and decide one is more true than is the other. The evidence shows that the landlord detailed its staff’s explanation of the events, apologised to the resident if she felt they were rude and patronising to her, and assured her that this was not the intention. In the Ombudsman’s view, this was reasonable given the insufficient evidence about what was said, and reasonably fulfilled the resident’s desired outcome for an apology.
  7. While the landlord’s positions in respect to the flat and the staff visit were reasonable based on the evidence available, there are aspects of its handling that were not satisfactory. The resident’s complaint was about the staff visit however, as her escalation explained, this was closely linked to her reports about the flat above, and it is widely recognised that empty properties can attract crime and anti-social behaviour. The Ombudsman would therefore have liked to have seen the landlord demonstrate that it was more sympathetic and mindful of the resident’s vulnerability and provided more clear, written (not just verbal) communication to her about:
    1. the current status of the flat;
    2. the actions and evidence that led to the belief that the flat was not being used inappropriately, and led staff to discount the possibility that the reported noise was coming from it;
    3. how the resident could record and report further incidents, e.g. via diary sheets.
  8. This would have helped show that the landlord provided appropriate reassurance to the resident that it was handling the reports in a considered way, in line with an ASB procedure, and that it would continue to do so. The landlord could have demonstrated that it was more clear about what to expect during the period the flat was a ‘void’ property, as there was scope for confusion if the landlord said the flat was ‘empty’ but activity including furniture and rubbish removals took place over a period. A fuller position in writing to provide clarity may have helped avoid the resident feeling that she had no choice but to raise the issue in different ways and also progress her formal complaint. The landlord’s visit in March 2022 also suggests a further lack of mindfulness of the resident’s vulnerability and her previously stated preference for advance notice of visits. It is recognised that matters were challenging for the landlord on occasion, however the above is not entirely satisfactory and leads this Service to make a finding of service failure in respect to the complaint.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s concerns about noise from a vacant flat above her, including staff behaviour related to this.

Reasons

  1. While the landlord’s positions in respect to the flat and the staff visit were reasonable based on the evidence available, the Ombudsman would have liked to have seen the landlord demonstrate that it was more sympathetic and mindful of the resident’s vulnerability and that it provided more clear, written communication to her about its position on the issues her complaint was closely related to.

Orders and recommendations

Orders

  1. The landlord to pay the resident £100 for the issues identified in the complaint. It should provide evidence to this Service that it has taken steps to do this within four weeks.

Recommendations

  1. The landlord to:
    1. review its service and complaint handling, to ensure that it communicates more clearly to residents in respect to its actions and basis for any positions;
    2. ensure that it records the resident’s preference to be notified before visits;
    3. liaise with the resident to record her preferred method of communication.
  2. The landlord to inform this Service of its intention in respect to the above recommendations within four weeks.