Nottingham Community Housing Association Limited (202122912)

REPORT

COMPLAINT 202122912

Nottingham Community Housing Association Limited

27 February 2023

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

This complaint is about the landlord’s response to the resident’s reports of noise disturbance and anti-social behaviour (ASB).

Background and summary of events

Background

The resident has an assured shorthold tenancy which commenced on 15 September 2014. The resident is a tenant of the landlord.
The property is described as a three-bedroom house.
The resident’s partner has a mental health vulnerability.
The landlord’s tenancy agreement obliges the resident “not to make any noise or play any audio equipment or instruments including radios, televisions, CD or DVD players so loudly that the sound can be heard outside the property”.
The landlord’s tenancy management procedure outlines the importance of supporting households to maintain their tenancy and that it will address problems when they arise. It outlines a process whereby a warning will be given where it has evidence of tenancy breaches to enable it to have evidence to obtain possession of the property. Furthermore, it will work with agencies to gather evidence.
The landlord’s ASB and hate crime policy defines ASB as “any person acting in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household”. It recognises that behaviour perceived as nuisance is not always deliberate and can be undertaken without realising the impact on others.
The ASB and hate crime policy has four categories ranging from A+ to C. Hate crimes are categorised as A+ and its approach is towards prevention rather than enforcement. It sets out that it will work with third parties such as environmental health teams and with the police.
The landlord’s complaints procedure states that it will not investigate complaints regarding the same issue from the same resident that it has already investigated and closed. It operates a two stage complaints procedure with complaints answered within 20 working days.

Summary of events

The resident has been making reports of noise disturbance and ASB from Property A for some time with the landlord. The landlord’s record show reports dating back to 3 September 2018 regarding the resident’s assertion that Tenant A had damaged their car and that music was played loudly in the garden. In response, the landlord wrote to Tenant A and arranged for the removal of their speakers from the garden. The landlord also spoke to the resident regarding the location of their CCTV cameras.
The reports continued between May 2019 to October 2019 regarding loud music being played in the garden and the resident’s partner informed the landlord that she wanted the landlord to enforce the tenancy agreement and take stronger enforcement action. The landlord signposted the resident to the local authority environmental health service to obtain call recording equipment and advised that the ASB report would be closed. The landlord noted that the resident had four CCTV cameras, three at the front of the property and one in the back garden.
There is a gap in reports until 20 December 2020 when the resident reported banging by Tenant A and the playing of loud music. The resident informed the landlord that she wanted to make a complaint as she felt targeted by the behaviour of Tenant A and that his actions were putting her in danger.
The following day 21 December 2020, the landlord reviewed the risk assessment completed by the resident. The landlord sent an action plan to the resident regarding the reports of noise disturbance.
On 7 January 2021, the landlord sent diary sheets to the resident.
The resident reported to the landlord on 8 February 2021 that she overheard Tenant A comment “it’s a shame we have mad people on both sides”. The resident advised that a report had been made to the police as she considered it a hate crime as it was directed at her medical condition. In response, the landlord advised the resident to make contact when she received an update from the police as it could not take act without evidence.
The resident made six further reports to the landlord regarding Tenant’s A: she reported that loud music was being played in the garden and that she could hear banging noises from the residents property. In response, the landlord confirmed that it had spoken to the police, that it could not take tenancy action as it had not assessed that the pattern of behaviour constituted harassment. However, it was willing to review any other available evidence.
On 31 March 2021, the landlord requested the reference number provided by the police for the reported incident and asked whether the resident would be interested in using its Noise App.
The NHS social prescribing link officer emailed the landlord on 1 April 2021 regarding the impact of Tenant A behaviour on the resident’s partner. The landlord responded the same day, requesting for a convenient time to make contact.
On the same day (1 April 2021) the landlord’s records show that it sent the resident a copy of the action plan.
The landlord reviewed the risk assessment completed by the resident’s partner on 5 April 2021. The resident’s partner scored high on the assessment.
The following day, the landlord wrote to Tenant A regarding the reports of loud noise in the garden. It advised that the reports did not constitute ASB but wanted to meet to discuss the reports.
The resident made three more reports between 15 April 2021 to 26 July 2021 regarding loud music being played by Tenant A. The resident requested that the landlord take tenancy action as the reports about the loud music had been going on for at least six years. The resident also advised that she was having difficulty using the Noise app. The landlord advised that it had reviewed the footage provided, visited and spoken to Tenant A. The reported issues were not ASB as the music being played was not loud and the ASB case would be closed.
On 16 June 2021, the landlord wrote to the resident regarding the CCTV cameras. It requested that the resident check that the CCTV cameras were only filming his home and garden and was not filming Tenant A or his garden.
The resident made a complaint on 3 September 2021 regarding the conduct of the officers who had investigated the ASB complaints. The resident expressed his dissatisfaction that the landlord had closed the ASB complaints about loud music and had allowed the ASB to continue. The resident expressed that Tenant A behaviour was targeted towards them and he did not believe that it was appropriate for the landlord to suggest that they should speak to Tenant A about their concerns. The resident explained that he did not want to speak to Tenant A and he was disappointed that the landlord had said that it would not take legal action against Tenant A. Furthermore, he advised that the landlord had shown a lack of empathy regarding the impact of Tenant A behaviour on his partner.
The landlord emailed the resident on 5 September 2021 to advise that she would be away from work for two weeks, however, the complaint regarding the conduct of its officers would be registered. The landlord acknowledged the complaint on 6 September 2021.
The landlord’s internal records provide a summary of the discussions that it held on 21 September 2021, 30 September 2021 and 1 October 2021. These were:
1. It had reviewed a recording which showed people in Tenant A garden on a hot day and concluded that this was not ASB or a breach of Tenant A tenancy.
2. The noise app is not available to residents unless there is an active ASB complaint under investigation.
3. It reviewed an email sent to the resident by a member of staff which said, “if you are unhappy at the property, we can accept four weeks written notice for your tenancy starting on a Monday, and I am happy to give you a reference”.
4. The resident had informed that his partner had attempted suicide as the landlord’s staff had refused to speak with the NHS social prescribing officer.
5. The ASB officer advised that he had spoken with the NHS social prescribing officer. He had advised that ASB cases are investigated on merit and that it would need evidence to take tenancy action against Tenant A.
6. An estate inspection had been carried out and the appropriate signage warning of the presence of CCTV was not visible at the resident’s property.
7. An ASB closure letter was sent to the resident.
The landlord wrote to the resident on 1 October 2021 apologising for the delay in providing its complaint response and that it would respond within 10 working days.
The landlord responded to the complaint on 8 October 2021. It confirmed that it had already responded to the resident’s complaint regarding the handling of the reports of noise disturbance and ASB and the resident had not escalated the complaint for review. Therefore, the response would address matters that was not completely addressed in the previous response and agreed that a Senior ASB officer would review the ASB complaints. The key findings were:
1. Explained that it could not take legal action without demonstrating that it had first considered non-legal means such as written warnings or mediation.
2. Apologised if it had not made clear that it had flexibility in its response to resolve the reports of ASB that were received.
3. Requested that the resident reconsider its offer of mediation with Tenant A.
4. Confirmed that the reports of loud music from Tenant A property did not meet the threshold to be considered as ASB.
5. It agreed to review the noise disturbance and ASB reports it had received to establish whether there was evidence to support the resident’s assertion that Tenant A behaviour constituted harassment.
6. Advised that the NHS social prescribing officer had not raised any concerns following their interaction with the landlord’s staff.
7. Accepted that resident could not access the noise app unless there is an active ASB investigation.
8. Agreed that its staff had made an inappropriate comment in its email to the resident. It apologised for this and advised that this would be addressed with its member of staff.
9. Agreed that the resident should not have been advised to make a subject access request to obtain the diary sheets he had submitted.
The resident escalated his complaint on 3 November 2021. He expressed that the landlord had failed to uphold the terms of the tenancy agreement in addressing the noise disturbance and ASB and that the action of the courts was not a relevant factor compared to the behaviour he was experiencing. The resident reiterated that he did not want to participate in mediation and did not accept that the reported behaviour did not constitute ASB. He advised that the NHS social prescribing officer was willing to provide further information and requested the return of the diary sheets.
The landlord responded at the final stage of the complaint procedure on 10 November 2021. The key findings were:
1. It had reviewed its previous complaint response and confirmed that the complaint response set out its position.
2. It had agreed to carry out further investigation into the pattern of the noise disturbance and ASB that had been reported.
3. It had appropriately engaged with the NHS social prescribing officer and had not received any further communication regarding this.
4. It agreed that the correspondence from its officer had fallen short of its standards, by lacking empathy and reoffered its apologies for this.
5. Confirmed that a subject access request was not required to obtain the diary sheets and that these had been sent.
The resident remained dissatisfied and escalated the complaint to this Service.

Assessment and findings

The resident’s tenancy agreement contains a term which defines harassment or disturbance as “any noise from any audio equipment or instruments that can be heard outside the home”. Consequently, the resident has expressed to the landlord that as Tenant A had breached the terms of the tenancy agreement it should take action to enforce the terms of Tenant A tenancy agreement.
The landlord has responded proportionality and responsibility towards the reports of noise disturbance received from the resident. It responded to the reports it received by arranging for the removal of the speakers from Tenant’s A garden and assessed that the reports of music being played in the garden and that of Tenant A children singing and playing music was not excessive or a breach of tenancy. The landlord managed the resident’s expectations by explaining that the music being played by Flat A did not meet the threshold to be considered as ASB, therefore was not considered a tenancy breach. Accordingly, the landlord’s communication with the resident explained that the action it had taken – it had spoken and visited Tenant A. Furthermore, it offered to arrange mediation to improve relationships between the two neighbours. These actions were reasonable so that it did not create unrealistic expectation regarding the action that it would take with regard to the reports of noise disturbance and ASB.
The landlord acted fairly by adopting a reasonable approach in its interaction with both residents and was not rigid in its interpretation of the terms within the tenancy agreement regarding the noise disturbance. This was appropriate as it acted in accordance with its tenant management procedure to support residents to maintain their tenancy recognising its reasonability to both residents to ensure that they have enjoyment of their home. It took a balanced approach recognising that that it was not practicable to expect that there would not be occasions when noise could be heard outside the properties considering the location of both properties.
The landlord decided that it does not have sufficient evidence to support the resident’s assertion that they are being harassed by Tenant A or that the level of music being played was excessive. The resident has not agreed with its assertion, pointing out that the landlord did not assess whether the pattern of the noise disturbance could be construed as harassment. The landlord has shown its willingness to resolve the resident’s complaints and agreed in its complaint response to review the reports of the noise disturbance to see whether it could establish a pattern of harassment. This was appropriate to provide reassurance that the concerns were being taken seriously.
The landlord reviewed the resident’s report that they were the victim of hate crime as they had overheard a statement made by Tenant A regarding her mental health. The landlord determined that it could not take any action as it did not have any evidence to do so. While the comment that the resident overhead was inappropriate, this was a reasonable approach as the landlord did not receive confirmation that the incident had been recorded as a hate crime to enable it to take action under the tenancy agreement.
Looking at the available information, the landlord was resolution focused as even though it had assessed that the reports of noise disturbance had not met the threshold of ASB, it discussed with the resident the non-legal remedies it could use to resolve the reports of noise disturbance and ASB such as mediation. This was reasonable as it attempted to take action to resolve the breakdown of the relationship between the two neighbours. The resident was clear that they did not want to participate in mediation and wanted the landlord to take stronger legal action using the terms expressed in the tenancy agreement.
The landlord has demonstrated that it explained to the resident the steps it would have to take to demonstrate to the court that it had acted reasonably before taking any legal action against Tenant A’s tenancy. The resident has indicated that he does not believe that the landlord should give consideration to the court’s position and should commence with taking legal action to end the tenancy of Tenant’s A. Whilst the resident view is noted, this would not be considered appropriate action by the landlord. The landlord is responsible for taking appropriate action to ensure that it enables all of its residents to maintain their tenancies and it has to evidence that it had taken all reasonable courses of action to resolve reports of noise disturbance and ASB before taking the matter to court.
Furthermore, taking legal action by a landlord should be a last resort when all other interventions to resolve the reported noise disturbance and ASB have not resulted in a change of behaviour. The landlord has reasonably determined that its communication and visits with Tenant A has achieved change and in accordance with its ASB and hate crime policy its focus is on improving the relationship between the resident and Tenant A.
In handling the resident’s reports of noise nuisance, the landlord has had to communicate difficult messages to the resident. The submission to this Service shows that it did not mislead the resident regarding the taking of enforcement action to resolve the reports of noise nuisance and ASB. Furthermore, its communication was consistent when advising that it did not have sufficient evidence to take the enforcement action requested by the resident and while accepting that the resident’s partner was affected by the nuisance, it did not believe that the behaviour of the Tenant A was deliberate.
The landlord has apologised for the content of the email which informed the resident that it would accept the resident’s termination of tenancy. It acknowledged and recognised that the content of the communication sent by a member of its staff fell below the standard of service that it expected from its staff. This was a reasonable conclusion for the landlord to reach as the tone and content of the email did not address or answer the issues that the resident had bought to the landlord’s attention, neither did it show any understanding of the resident’s situation. The shortcoming was not sufficient to reach a conclusion of service failure as the landlord’s apology addressed this within its internal complaints procedure.
The landlord has accepted that it told the resident to make recordings using the noise app when it did not have an active ASB ongoing. This was a shortcoming as it undermined the landlord’s ability to resolve the reports of noise nuisance and ASB. However, the resident has CCTV installed at their property which provided another method for the resident to provide recordings to the landlord as necessary.
The landlord has informed the resident that the CCTV installed on the property is not compliant with the Information Commissioner’s Office as the recordings are capturing people beyond the boundary of their property and the signage is not visible enough to make people aware that they have been recorded. This is appropriate as the landlord has a responsibility to ensure compliance with the regulatory authorities and to ensure that the resident is aware of their responsibilities.
The landlord has demonstrated that it is victim focused as in accordance with the ASB and Hate Crime policy on 5 April 2021, it reviewed the vulnerability risk assessments, to assess the impact of the reported noise disturbance on the resident’s partner. Following its review, it assessed that the reports did not constitute ASB, nevertheless it arranged to meet with Tenant A to discuss the resident’s concerns.
The resident has advised that the landlord did not have regard to the impact of the noise disturbance and ASB on his partner. The landlord’s position is that the reported noise nuisance did not meet the threshold for ASB and that it could not take action against Tenant A. While the landlord is being realistic about the action it can take to improve the situation, this does not mean that it lacks empathy with the resident’s situation. The available information shows it is trying to improve the relationship between the resident and Tenant A though this is not the resident’s preferred course of action.
The ASB and hate policy sets out that the landlord will work with its partners to resolve reports of noise disturbance and ASB. The evidence shows that the landlord acted in accordance with this by agreeing on the same day a convenient time to speak with the NHS social prescribing officer regarding the resident’s partner. The landlord confirmed its position that it required evidence before it could take tenancy enforcement action. There is no evidence in the landlord’s submission to this Service that the NHS social prescribing officer was unhappy with the conduct of the officer or the information that was provided.
The resident requested the return of the diary sheets that he submitted to the landlord. In its complaint response, the landlord accepted that this should have been returned to him without requesting that he make a Subject Access Request (SAR) and appropriately arranged for the diary sheets to be sent to him. This was appropriate as the resident was entitled to the return of the documents he had sent to the landlord and insisting that he make a SAR for their return was a barrier that was unnecessary.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the complaint about the landlord response to the resident’s reports of noise disturbance and anti-social behaviour (ASB).

Reasons

The landlord has investigated the resident’s reports of noise nuisance and ASB. It has advised that it has insufficient evidence to take action under the tenancy agreement. The landlord has apologised for the communication sent by its staff, acknowledging that it did not meet its communication standards.