One Manchester Limited (202101321)

REPORT

COMPLAINT 202101321

One Manchester Limited

17 January 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 the landlord’s response to the resident’s reports of anti-social behaviour (‘ASB’) by his neighbour.

Background and summary of events

The resident has an assured tenancy with the landlord for a 3-bed terraced house.

Policies, procedures, and agreements

ASB Policy:

The sets out the landlord’s general approach to dealing with ASB. It states that ASB will be dealt with firmly, fairly and proportionately by investigating and taking any necessary action to protect people and property by:
1. Always seeking ways to resolve issues at the lowest level of intervention only taking formal action when incidents are serious or persistent or when it threatens people’s safety or health.
2. Using any tools or powers available, according to our best professional judgment.
3. Offering support to those involved with ASB and Hate Crime and encouraging them to accept the support offered.

Scope of investigation

The resident has said that his property is one of four terraced properties and the problems started when his neighbour (‘Tenant A’) moved in approximately 5 years ago. The resident’s primary concerns were regarding the noise disturbances caused by Tenant A’s children playing on the trampoline in the back garden. The resident has said that, as the gardens for each property are very small, having a large trampoline in the garden was causing him and his family nuisance/disturbance. The issues between the resident and Tenant A have since escalated following ad-hoc incidents and disputes over the last three years.
However, these incidents and reports were not formally pursued by the resident at the time. It was agreed between the resident and the landlord that ongoing incidents would be noted but no formal action would be taken as the resident was unwilling to get involved in any formal investigations. Whilst the resident may well have raised complaints during the last three years, there is no evidence that these complaints had exhausted the landlord’s complaints process and/or had been referred to this Service during that time.
This investigation report will therefore only consider events from June 2020 onwards (this being six months prior to the formal complaint logged in January 2021) up until the final complaint response in April 2021. This is on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Housing Ombudsman Scheme and considering the available evidence. It should be noted however that all of the evidence provided by both parties has been considered.
As such, whilst this report may include some historical events for the purposes of context, the scope of this investigation will be limited to consideration of events from June 2020 onwards up until the final response dated 15 April 2021.
The Ombudsman understands that the resident is still pursuing ASB reports against his neighbour and that this is still being investigated by the landlord as part of a separate complaint(s). As such, any concerns the resident has about the landlord’s handling of his reports after 15 April 2021 will need to be subject to a new complaint.

Summary of events

The landlord’s records show that an ASB case was opened in late June 2020 following a report by the resident of general noise issues. The records show that the landlord spoke to the resident on 29 June 2020 and it discussed the ASB report. The noise complained about related to everyday living noise, banging of doors, ‘but mainly the children playing on the trampoline/water fights is the main issue – screaming/shouting 7 days a week due to lockdown instead of being at school’. The landlord explained that it would speak to Tenant A and it would also write to her about the issues. The resident said that he just wanted his concerns documented for now and he would review the matter again once the children were back at school after the summer holidays.
The records show that the ASB report was closed with no further action being taken in accordance with the resident’s comments.
The resident contacted the landlord on 6 July 2020 to report further instances of ‘screaming and shouting’ and banging of doors at night. However, he did not want to pursue any action at this point as his daughter had spoken to Tenant A about the noise. The resident said he would contact the landlord again if he wanted it to pursue the matter further.
On 21 December 2020 the resident reported that Tenant A was playing loud music throughout the day. The landlord spoke to him the same day and he was advised to use the Noise App to record the noise and submit these to the landlord for review. The call notes show that the resident was cautious about pursuing any action against Tenant A and that he was also given general advice.
The landlord started an ASB cases on 4 January 2021 following a report from the resident about noise, abuse and ‘mental torture’ caused by Tenant A over the Christmas period. The landlord reviewed the noise recordings submitted by the resident for the period covering 23 December 2020 up until 2 January 2021 and then called the resident to discuss further.
The resident explained that matters had escalated over Christmas after the resident’s wife and daughter had spoken to Tenant A about the loud music. The resident said that this had antagonised Tenant A and she said she would make matters worse now that she knew that the music was causing a nuisance.
The landlord agreed to write to Tenant A about the allegations. It also asked the resident to continue to monitor and record the noise. It also signposted him to the local authority out of hours noise team.
The records show that the landlord then sent Tenant A letter about the recent allegations made by the resident, in particular with regards to loud music.
On 11 January 2021 the resident complained to the landlord saying that just sending a warning letter was not enough and the landlord needed to do more. The resident said that his CCTV had captured Tenant A making threats against him and his family and the landlord should do something before matters escalate out of hand. The resident acknowledged that the ASB officer had been very helpful but his complaint was about the landlord not taking more stronger action against Tenant A.
The landlord spoke to the resident the same day and he gave details of what the CCTV had picked up about verbal threats being made by Tenant A whilst she was on the phone to someone. The resident was advised to report this to the Police and submit the video evidence for it to review. The resident also said that his wife had spoken to Tenant A about this incident and she had told her that she did make the comments but said this was about something else and not about the resident’s family. The ASB officer then referred the matter to his manager for guidance on how best to proceed.
The records show that the landlord received several Whats App videos from the resident which were added to the ASB case for review.
The landlord spoke to the resident on 13 January 2021 and was given more details about the issues e.g. ‘kids charging around the house shouting and playing loudly in the garden late at night’; she leaves tv/radio on when she goes out; she is abusive; kids are swearing; she is mocking the resident and taunting him and his family; ‘the trampoline is massive, its right under the window, they are on it until late at night and its awful in the summer’. It was agreed that the case would be referred to a manager to review the case. The landlord would also check if the other neighbours had made any reports against Tenant A.
On 14 January 2021 the records show that the landlord checked for previous ASB cases that had been logged against Tenant A by other tenants. It also reviewed the video evidence of the verbal threat and the conversation between the resident’s wife and Tenant A. The case notes show that Tenant A was speaking on the phone and did make a comment that could be deemed a threat. However, there was no indication that this was about the resident. The officer was of the view that Tenant A was not being rude or aggressive towards the resident’s wife.
The resident reported further noise issues on 18 January 2021 and provided more noise recordings.
On 19 January 2021 the landlord contacted other tenants on the close but there was no useful information obtained.
The landlord spoke to the resident on 20 January 2021. It explained its present position was that it had reviewed the evidence but this was not enough to take formal legal action against Tenant A. It explained that it was not reasonable to remove the children’s trampoline. The landlord agreed to speak to Tenant A again about the issues.
The resident provided further noise recordings which were reviewed by the landlord. The case notes show that some noise could be heard, but these were ‘not extremely loud’. ‘Faint music and voices’ could be heard as well as a ‘shuffling sound’.
The landlord wrote to Tenant A on 21 January 2021 about the ASB reports. It then spoke to Tenant A on 26 January 2021 and carried out a formal interview with her. With regards to the alleged verbal threat she said that this was a private conversation she was having about something else, nothing to do with the resident’s family. She also made counter-allegations about the resident recording her and her children.
With regards to the alleged noise issues, she accepted that her daughter may have on occasions played loud music as she had been given a karaoke machine for Christmas. However, she is now more mindful of this. Tenant A also gave some background information about historic disputes with the resident e.g. there was an incident in the summer when she had been hovering the artificial grass in her garden at night and she apologised for this at the time. There had been other instances in the summer when she had stopped the children from playing on the trampoline following a conversation with the resident’s wife.
Tenant A made counter allegations against the resident about his general behaviour and said she could hear noise coming from the resident’s property but she just lives with this. She reiterated that the children playing noisily in the garden during lockdown was not unreasonable. She also said that one of her children had hearing issues and that is why sometimes his iPad can be loud but she will be mindful of this. With regards to the children slamming the doors, she accepted that this did happen, but she feels that this was ‘just normal kid behaviour’ and the resident was being unreasonable in complaining about it.
The landlord then spoke to the resident and updated him on its present position. It explained that children playing noisily on the trampoline and banging doors etc. had to be considered in light of the lockdown and being stuck at home. As for the verbal threat, it said that it could not be sure that this was directed at the resident. It also noted that the resident had not reported this to the Police either. The landlord explained that it needed to be reasonable and have sufficient evidence to pursue legal action.
On 27 January 2021 the landlord carried out an ASB case review. It was decided that there was not enough evidence to pursue Tenant A for any tenancy breaches. The CCTV footage of the verbal threat was inconclusive and the landlord had been advised by its legal team that this evidence would not hold up in court. It was agreed that the landlord would explain its position via the complaints process.
On 28 January 2021 the records show that a noise recording was reviewed and the notes show ‘can hear faint banging – sounds possibly like running up stairs’.
The landlord issued it Stage 1 complaint response on 10 February 2021:
1. It acknowledged that the neighbour dispute had been ongoing for a few years. However, until December 2020 the resident had not wanted to pursue the matter. It noted historic reports in 2017 and 2019 and in both instances, it had been noted that the resident did not wish to pursue the matter further.
2. Similarly, with regards to the incident in June 2020 about children playing noisily, the resident did not want the landlord to take formal action.
3. Following further reports in December 2020 and January 2021 the landlord wrote to the neighbour and advised the resident to continue to send in noise recordings.
4. The letter goes on to detail the reports made between January and February 2021 and the actions taken by the landlord in response. Which included, reviewing noise recordings, reviewing CCTV footage, carrying out a case manager review, speaking to the parties and issuing a warning.
5. The landlord’s position was that there was not enough evidence to justify taking any further formal legal action against the neighbour. It explained that any legal action would depend upon the evidence and it would consider issuing a final warning and then look at the legal options if the evidence warranted this. The resident was also advised to contact the Police if further threats were made.
6. The landlord concluded that it had taken appropriate action in this case, and the complaint was not upheld.
On 17 February 2021 the landlord spoke to the resident and reiterated its position. It explained the process for taking action for breach of tenancy, the evidence required, and how courts view noise issues such as children playing. It reiterated its view that it could not establish that the verbal threat was directed at the resident’s family and without clear evidence it could not take this further.
The resident acknowledged that the noise issues had somewhat subsided but he was anxious that it would re-start again in the summer. The landlord confirmed that if further evidence was provided which was sufficient to prove a tenancy breach, then the landlord would look to take further action.
On 25 February 2021 the resident reported more noise issues to do with children screaming and slamming doors whilst playing hide and seek till late at night. The landlord reviewed the noise recordings and spoke to the resident. It explained that this did not constitute ASB/breach of tenancy. The resident accepted that the loud music had stopped following the warning letter, but Tenant A was now ‘making the children play noisily to annoy’ the resident. The resident agreed to continue to submit noise recordings.
On 8 March 2021 the records show that further noise and video recordings had been reviewed by a manager which showed children playing noisily.
The resident reported on 9 March 2021 that Tenant A had made further threats and had posted messages on Facebook about his family. The landlord spoke to the resident the same day and said it would review the evidence and see what action, if any, could be taken. The notes show that possible action could include seeking an injunction and also looking at installing any additional safety measures at the resident’s property. The resident’s wife was not willing to pursue legal action and it was agreed that the matter would be left on file for now with no further action being taken. The landlord reminded the resident that it needed to work with the landlord to progress any action. The resident said that he would see how matters pan out for now and if it got any worse, he would contact the landlord again.
The resident provided the landlord with further video evidence, and the landlord agreed to provide security coverings for the windows and other safety measures such as a fireproof letterbox.
On 16 March 2021 the resident contacted the landlord to say that he wanted the landlord to take legal action against Tenant A. The landlord spoke to both the resident and Tenant A about the recent noise issues and Tenant A accepted that she had been playing loud music. The landlord then issued Tenant A with a formal warning letter regarding the noise.
The landlord explained to the resident that if there were further breaches following the warning letter it will review the evidence with a view to potential legal action.
Tenant A contacted the landlord to complain that the resident had been knocking on her walls at 5am. It was discussed that Tenant A needed to be more mindful of the noise level going forward.
On 17 March 2021 the resident reported further incidents of the children playing on the trampoline. He said that there were fields near the property where the children could play, and that Tenant A was deliberately allowing the children to play on the trampoline to annoy and harass him.
The landlord spoke to the resident on 19 March 2021. It was acknowledged that the loud music had stopped. As for the trampoline noise, this was not a breach of the tenancy. The landlord offered mediation but this was refused by the resident stating, ‘there is no point’.
Given the resident’s continued dissatisfaction, the landlord agreed to deal with his concerns as a Stage 2 complaint and a formal case review would be done and all the evidence would be reviewed.
On 8 April 2021 the landlord discussed the review with the resident and it was noted that this was a difficult call due to the resident’s anger and frustration, and what the landlord deemed to be abrasive personal comments directed at the officer. The resident was adamant that the landlord seek an injunction to stop the children from playing on the trampoline. The landlord explained why it could not take action against children playing in the garden and it could not tell Tenant A to remove the trampoline. The evidence showed that the children were playing loudly but given their ages, this would not be a breach of the tenancy agreement.
The landlord issued its final complaint response on 15 April 2021:
1. It said that it was satisfied that all the evidence had been considered properly, and that it had followed its process correctly.
2. It explained that it did not take action on some of the historic reports because the resident did not wish to pursue the matter.
3. In reviewing the video evidence it was noted that the trampoline could not be moved elsewhere. As for the children using foul language, it said that this was not directed at the resident’s family and formed a part of their normal speech.
4. The evidence showed that loud music could be heard on occasion and at other times it was at a low level when compared to the few internal noises that could be heard. Action was taken in response to the noise and the neighbour was given a warning.
5. It recommended the use of mediation but noted that the resident was unwilling to engage with this.
6. In conclusion it said that it had acted appropriately in this case, the issues raised had been properly considered and factors such as children needing to play outside during lockdown had been factored in. Reasonable action was taken based upon the evidence that was available. It again recommended that the resident consider mediation.
7. The letter also addressed a separate point about why the ASB officer felt that the resident’s manner had been threatening during a recent phone call.
The resident then referred the matter to this service on 16 April 2021.

Assessment and findings

The resident has told the Ombudsman that matters have escalated recently and there have been further recent incidents and the Police were now involved. As explained above under the ‘Scope of Investigation’ this report will only focus on the events between June 2020 up until the final response in April 2021.
It is clear from the resident’s submissions that he has been distressed by the ongoing dispute with his neighbour and he is clearly angry and frustrated about the landlord’s handling of the matter. The resident’s feelings are acknowledged and it not disputed that dealing with such situations would no doubt have been stressful for the resident and his family.
However, it must be made clear that the purpose of this report is not to investigate the actual ASB itself, or the conduct of the neighbour, or to assess the credibility of the reports made by the resident. The Ombudsman’s role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement.
The resident has reported similar allegations continuously over a period of several months and has provided a significant amount of noise recordings and videos as evidence. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and the report will take a view on the landlord’s overall handling of the matter.
Looking now at the key issues, one of the main areas of complaint is with regards to the behaviour of the children of Tenant A and the reports of noise disturbance whilst playing in the garden. The issues primarily relate to the children playing noisily on the trampoline, screaming and shouting and using foul language. As the trampoline is situated very close to the resident’s window, this amplifies the noise disturbance. There were also reports of children running around screaming and shouting and slamming doors.
The landlord has evidenced that it responded reasonably and proportionately to these reports, and whilst the amount of reports made by the resident were considerable, the subject matter of the reports was the same in terms of the noise disturbances caused by the children.
The landlord responded appropriately by advising the resident to collate video and noise recording evidence. It reviewed all the collated evidence in an appropriate manner and there is nothing to suggest that it did not take the resident’s concerns seriously. It spoke with Tenant A to understand the situation, and it took into account that there were two small children and that many of the reports were made during periods of COVID lockdown. As such, it acknowledged that it would be difficult for Tenant A to minimise the noise caused by the children in those circumstances.
Whilst children playing noisily in the garden could be deemed by the resident to be annoying and disruptive, the landlord explained to the resident why this would not amount to a breach of the tenancy. The resident has consistently asked the landlord to take legal action against Tenant A, and the landlord has responded appropriately by thoroughly reviewing the evidence and explaining its position to the resident. The landlord also suggested the use of mediation, which was reasonable in these circumstances.
The landlord also acted appropriately by setting and managing the resident’s expectations about how it deals with neighbour disputes of this kind and that legal enforcement options were possible, but unlikely, and would very much depend upon the evidence to demonstrate the nature and severity of the disturbances. Ultimately, the evidence shows that the noise being complained about in terms of the trampoline would not warrant any formal action against Tenant A.
The landlord’s decision not to take action against the neighbour is supported by the fact that case reviews were carried out and various staff reviewed the noise recordings. It was acknowledged that whilst the children’s noisy playing may well cause the resident concern, the landlord was satisfied that they do not amount to ASB in this instance. There is also no evidence to suggest that Tenant A was deliberately using the children’s use of the trampoline to antagonise or harass the resident.
In its final complaint response the landlord rightly acknowledged that, whilst the evidence did not presently support or justify any formal action against the neighbour, it did highlight the potential benefit of mediation, which can often help diffuse ongoing situations such as this.
With regards to the general noise caused by the children inside the property, e.g. slamming doors, and also the incidents of loud music, the landlord responded appropriately to these issues. The evidence shows that the landlord took appropriate action to investigate these reports. It spoke to Tenant A about the issue and reminded her of the need to be mindful of the noise levels and that this could potentially be treated as a breach of the tenancy. The landlord also took appropriate and proportionate action following further reports by issuing a formal warning letter.
With regards to the verbal threat made by Tenant A and caught by the resident’s CCTV, the resident has said that this was meant for him and his family. The landlord has taken appropriate action by reviewing the footage and speaking to Tenant A. It has also taken into account the fractured nature of the relationship between the parties, including the role of the resident’s daughter and that counter-allegations had also been made.
From what can be seen, the landlord has acknowledged the resident’s concerns and it has demonstrated that it has investigated those concerns appropriately. The landlord did not have sufficient evidence to prove that the verbal threat that was overheard was directed at the resident or his family. The resident may well want stronger action to be taken against the neighbour for this incident, but the Ombudsman is satisfied that the landlord has appropriately evidenced that it has taken into account all the information and its subsequent decision, and the rationale for not taking any further action against the neighbour at that time, was reasonable in light of the available evidence.
The resident is unhappy with the landlord’s decision and has said that he does not feel supported by the landlord. The resident’s concerns are duly noted however, the landlord is not being unreasonable when it says that it cannot take tenancy enforcement action against the neighbour unless it has sufficient evidence to do so. The evidence available up till the time of the final complaint response in April 2021 shows that the landlord’s handling of the reports was reasonable and the landlord had acted appropriately in its handling of this matter.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s reports of anti-social behaviour (‘ASB’) by his neighbour.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the resident’s concerns and it has demonstrated that it responded appropriately to the various reports and it acted in a reasonable manner and in line with its ASB policy. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of the reports was reasonable and its decision not to take action against the neighbour was appropriate, and the steps it took were proportionate to the nature of the reports.