Wandsworth Council (202122729)

REPORT

COMPLAINT 202122729

Wandsworth Council

28 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

The complaint is about the landlord’s handling of the resident’s reports of noise disturbance from Flat A.
The landlord’s response to the related complaint

Background and summary of events

Background

The resident has a secure tenancy with the landlord which commenced on 25 November 2002.
The property is described as a one-bedroom flat on the 8th floor of the building.
The resident has multiple medical conditions including heart disease and hypertension.
The landlord’s tenancy agreement obliges the tenant not to do anything which causes or is likely to cause a nuisance and gives the resident the right to exchange the tenancy with another tenant of a registered provider of social housing.
The landlord’s anti-social behaviour (ASB) policy defines ASB as conduct that has caused or is likely to cause harassment, alarm or distress to any person. It will contact the resident to discuss the problem and agree an action plan. In addition, it has a range of measures, such as interviewing and writing to the perpetuator, arranging mediation, work with partner agencies and take legal action.
The landlord’s corporate complaints policy outlines that it will respond to complaints at the first stage within 20 working days and within 15 working days at its final stage. At the final stage, it will not reinvestigate the issues and will carry out a review of the complaint.
The complaint has been made on the resident’s behalf by her son. Any contact from the resident’s son will be referred to as being from the “the resident” in this report.
The resident’s complaint concerns a neighbour who is the alleged perpetuator of the noise disturbance.

Scope of complaint

The resident has informed this Service that the reports of noise disturbance have been ongoing and reported to the landlord for a significant period of time. The resident complained about noise disturbance from Flat A such as loud noise, clicking off the light switches and the sound from the washing machine between January 2017 to March 2018. The landlord wrote to Flat A regarding the appropriate times to use the washing machine and informed the resident that it could not take stronger action. The landlord suggested mediation and a move to alternative accommodation. The resident refused both suggestions.
The Ombudsman will not investigate complaints which, in his opinion, were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be six months of the matters arising. There is no evidence that any formal complaints raised by the resident about the noise disturbance have exhausted the landlord’s complaint process and/or that any such complaint was referred to the Ombudsman.
This investigation report will therefore consider events from March 2021 on the basis of what the Ombudsman considers to be a reasonable period in light of the provisions of the Housing Ombudsman Scheme. Any reports relating to earlier than this date are for context only.

Summary of events

The landlord’s records show that it was contacted by the Emergency Control Officer (ECO) on 17 March 2021 regarding a report from the resident about noise disturbance from Flat A. The noise was described as persistent and ongoing, resulting from drills and heavy industrial tools. The resident had reported that the noise disturbance had been going on for years and she considered it “harassment”. It was noted that the last report received from the resident was in 2018 and this was assessed as household noise.
The following day 18 March 2021, the landlord wrote to the resident regarding the report of noise disturbance. It advised her to contact the Emergency Control Team (ECT) when the noise was occurring for it to be witnessed, otherwise it could not take action.
The landlord received a medical letter on 8 April 2021 advising that the resident had significant health issues. It outlined that she was living in a one-bedroom flat and that she was experiencing difficulty sleeping and that the noise disturbance was affecting her mental health. It recommended that the landlord assess the resident’s housing situation.
The resident communicated with the landlord on 3 separate occasions between 11 April 2021 to 21 April 2021 regarding the noise disturbance. The resident advised that:
1. The washing machine was being used at 3am
2. Experienced drilling sounds which resembled extensive building or refurbishment works.
3. Believed that there was an intention to cause harassment by Flat A.
4. This had been reported to the noise team and to the police.
5. Requested that the landlord support the resident’s request to move to a two-bedroom property.
6. If the landlord did not take action, he would apply for a judicial review that it was being unreasonable and delaying in taking action to resolve the reports of noise disturbance.
7. Commission a professional surveyor to determine the reason for the excess drilling.
In response, the landlord contacted the police to request information relating to the resident’s report for the previous six months and visited Flat A who advised that they had not carried out any building work. The landlord’s inspection noted that it did not see any evidence of building work being carried out. In addition, the landlord signposted the resident to the ECT if there was another occurrence of noise disturbance and to its website to apply for a transfer to another property.
On 15 April 2021, the resident reported that power tools were being used by Flat A.
The police informed the landlord on 23 April 2021 that the resident had reported that she had to stay at her son’s home due to the noise disturbance caused by Flat A using a drill and that Flat A had been throwing things around her flat. The resident reported feeling harassed. The police had passed the report to the local Safer Neighbour Team for action.
On the same day (23 April 2021), the resident sent the landlord the fee proposal from the environmental consultants it had commissioned for a report to determine the cause of the noise disturbance.
The resident contacted the landlord on 24 April 2021 to query why the landlord had advised that she should report her concerns of harassment and noise disturbance to the ECO rather than to the police. In addition, the resident requested that the landlord provide additional information on the cause of the noise from Flat A and whether it had received other complaints about the actions of Flat A. The resident informed the landlord that she had an independent forensic report to substantiate her reports of noise disturbance against Flat A.
On 29 April 2021 the landlord wrote to the resident. The landlord:
1. Clarified that reports of harassment should be reported to the police.
2. Reiterated that it could not take action until the noise was witnessed.
3. Informed the resident that it had visited Flat A property and it was satisfied that DIY had not taken place at the property.
4. Received complaints from occupants who lived on the 9th and 13th floors regarding the drilling and hammering. It had identified the perpetuator of the noise disturbance, taken action to address the noise disturbance and it would not be taking any further action.
5. Confirmed that it was not Flat A who had carried out the DIY. Also, it had not received any other complaints regarding drilling, hammering or loud noises from Flat A.
The resident made a complaint by email to the landlord on 4 May 2021. The resident complained that they had experienced unreasonable levels of noise that had been “intentionally created” by Flat A. The resident informed the landlord that Flat A had paid a compensation payment of £200 to her following a leak that had started in Flat A property. The leak had affected her property and to settle the matter before court action the compensation was paid. The resident advised that she wanted to complain about the landlord’s handling of the noise disturbance and the conduct of the ASB officer. The resident requested the complaint procedure.
The landlord acknowledged the complaint on 7 May 2021 and advised that its response would be sent within 20 working days.
On 21 May 2021, the resident contacted the landlord to reiterate that the report it had obtained from the forensic expert report contradicts the landlord’s assessment of the origin of the noise disturbance. Furthermore, the resident expressed that the landlord’s staff had falsified its reports regarding the cause of the reported noise to enable Flat A to persist in the noise disturbance. The resident also maintained that the report would confirm that the noise originated from Flat A’s property. The resident suggested that a pre-action conversation take place to obtain a resolution, otherwise court action would commence.
The landlord responded to the resident on 24 May 2021 advising that its officers had no reason to falsify evidence regarding the reports of noise disturbance and any legal action would be handled by its legal team.
On 7 June 2021, the resident wrote to the Member of Parliament (MP) advising that she had life threatening issues and suffered from extreme anxiety and distress. The resident experienced ASB such as water penetration into the property, banging, heavy drilling and the sounds of Flat A washing machine being used at 3am. The landlord had frequent change overs of staff and had not handled the concerns well.
The resident contacted the landlord on 10 June 2021 to make a complaint. The resident advised that she had experienced ASB and harassment from Flat A for over 10 years and abusive language from a member of the landlord’s staff. Flat A had caused the resident distress by her drilling with masonry drills, banging on the walls and the use of her washing machine at 3am. In addition, the landlord staff had acted unfairly by compiling false reports regarding the cause of the noise and it was in receipt of a report from a forensic expert witness which had identified the cause of the reported noise.
Furthermore, the landlord was informed that the preferred outcome was for the resident to receive an apology from the landlord and within three months be moved to a two-bedroom ground floor property, within three miles of the current property.
In response, the landlord informed the resident on the same day that it would respond to the complaint within 20 working days – 5 July 2021.
The resident contacted the MP on 11 June 2021 advising that she had to leave the property and stay with her son due to the ASB and harassment. In addition, the landlord has created false statements and was not taking action to resolve the situation.
The MP contacted the landlord on 15 June 2021 to enquire about the action it was taking to resolve the alleged ASB and harassment.
The landlord responded to the resident’s complaint on 17 June 2021. The landlord acknowledged that it had received reports of noise disturbance over the previous 10 years ranging from banging, tapping and the use of the washing machine in the early hours of the morning. It set out that it had responded to the 20 previous reports she had made regarding Flat A switching her lights on and off and that on review of the diary sheets, the same entries were made regarding another resident. Furthermore, it had apologised in 2019 that she was sent a letter in error regarding providing access to a contractor.
With regard to the reports received in April 2021, about the reports of drilling and alleged harassment from Flat A, it had not received the report that the resident had commissioned from the forensic expert, therefore it could not comment on its accuracy. However, it had received reports from other residents regarding the noise disturbance, identified the perpetuator of the noise disturbance who was unaware that they could not carry out DIY on a Sunday. The landlord confirmed that the person for the noise disturbance was not Flat A, considered that the report made by its officers was correct and requested that the resident stop calling its staff dishonest and accusing them of lying and harassment. The landlord advised that it would defend its staff against any legal action taken against them.
In response, the resident informed the landlord that its forensic expert had concluded that the origin of the noise possibly started from a property adjacent to the resident. The resident stated that she considered that the landlord’s staff had falsified its report and requested that the landlord agree to a date when an exchange of documents could take place before the stage 2 investigation commenced.
The resident’s son emailed the landlord to advise that he was no longer acting as a representative for his mother and all communication should be sent to directly to the resident.
On 22 June 2021, the landlord sent the MP a copy of its stage one complaint response.
The occupational therapist undertook a visit to the resident on 25 June 2021 and requested the housing application reference number, so that the occupational therapy report could be sent directly to the allocation team.
The landlord wrote to the resident on 2 July 2021 acknowledging that she wanted to escalate her complaint. The landlord requested that the resident supply information that she considered outstanding or wanted to be considered.
There is no evidence to show that the resident responded to the landlord until the resident’s son contacted the landlord on 17 October 2021 regarding the request to escalate the complaint to the final stage of the landlord’s complaint procedure. The resident provided to the landlord the CV of the forensic expert regarding the noise disturbance and disputed that the noise disturbance did not originate from Flat A. The resident requested an update on the transfer application and the assessment undertaken by the occupational therapist. In addition, the resident advised that legal action was not being pursued against the landlord and requested that the complaint be considered at the final stage of the complaint procedure.
The landlord informed the resident on 21 October 2021 that the complaint was responded to on 21 June 2021 and the request to escalate the complaint was made outside 20 working days, therefore it would not be considered. It did not have any further information to provide and signposted the resident to this Service.
On 12 January 2022, the MP acting as a designated person, referred the complaint to this Service.
The landlord informed this Service on 13 April 2022 that since April 2021, it has not received any further reports of noise disturbance from the resident. On 20 February 2023, the landlord informed this Service that the resident has been registered for a housing transfer since 25 October 2021. The resident requires a two-bedroom property and the application is in band C.

Assessment and findings

The complaint is about the landlord’s handling of the resident’s reports of noise disturbance from Flat A.

The Ombudsman’s role is to assess whether the landlord’s response to the residents reports of noise disturbance was in accordance with its legal and policy obligations. In addition, whether the landlords actions were fair in all the circumstances of the case.
It is clear from the resident’s submission that she has been distressed by the reported noise disturbances and she believes that the landlord has not taken appropriate action to identify the perpetuator of the noise disturbance. The resident’s feelings are understood and it is not disputed that dealing with such situations is stressful.
The landlord has a responsibility under the terms of the tenancy agreement to take appropriate action in response to any reports of noise disturbance or ASB that it receives and its ASB policy provides the framework under which it manages its cases.
Looking at the facts of the case and the available evidence, the resident informed the landlord that Flat A was using her washing machine at 3am in the morning. The available evidence shows that the landlord wrote to Flat A about this in 2018 and the matter was addressed. In the landlord’s complaint response, the landlord considered that this matter had been addressed. It was reasonable to conclude that the resident was referring to historic reports that had affected her as there was no evidence that since the action by the landlord that Flat A had resumed using her washing machine in the early hours of the morning.
The landlord’s ASB policy recommends that the landlord adopt a multi-agency approach. In accordance with this it contacted the police to obtain information about the action it had taken regarding the ASB reports that the resident had made. The landlord also signposted the resident to the ECT to witness the noise. This was reasonable action to take as the landlord had assessed the reported noise as household noise and its suggestion for the ECT to witness the noise would mean that it would have evidence to support taking action against Flat A, if necessary.
From the available evidence, the resident reported on 11 April 2021 that she was experiencing “drilling sounds” and that Flat A was responsible for the noise disturbance. The landlord has evidenced that it acted reasonably in response to the resident’s reports regarding the drillings sounds as it visited Flat A within a reasonable period of time and established that there was no evidence of building work taking place. The landlord has been aware of the impact on the resident and has kept an open mind about the origin of the reports noise by the resident.
The landlord in a relatively short period of time, 29 April 2021 had confirmed the identity of the perpetuator of the noise. This was another occupant of the building who was unaware that DIY should not be carried out on a Sunday. The landlord had sufficient corroboration that another occupant of the building was responsible for the noise disturbance experienced by the resident as the other occupant of the building apologised for their mistake, Furthermore, the landlord has advised that it has not received further reports of noise disturbance from the resident since April 2021.
The resident did not accept the landlord’s decision that Flat A was not responsible for the noise disturbance and continued to insist that the perpetrator was Flat A. The resident informed the landlord that it had engaged a specialist who had confirmed that the origin of the noise disturbance was from Flat A. In its complaint response, the landlord confirmed that its position that it had identified the cause of the reported noise disturbance and that as the resident had not shared its report, it was not able to comment on its findings. This was a reasonable position to take as its previous investigation had not justified the need for any further action to be taken. Its approach showed that it was willing to reconsider its decision if it received further evidence which was a reasonable and appropriate decision to make.
The landlord addressed in its complaint response the resident’s communication regarding its staff. It appropriately informed the resident that it should stop making negative comments regarding the conduct of its staff as there was no evidence that the landlord staff had not carried out a proper investigation of the resident’s concerns. Whilst the resident did not agree with the conclusions reached by the landlord, this was not a good enough reason to accuse the landlord’s staff of falsifying information and make negative comments about their character.
The evidence shows that the landlord’s handling of the resident’s reports of noise disturbance was reasonable and the landlord has acted appropriately in the handling of this matter.

The landlord’s response to the related complaint

The Ombudsman’s complaint handling code sets out that the landlord’s response at the first stage of the complaints procedure should be completed within 10 working days. The landlord can agree with the resident to provide its response within a further 10 working days once there is a good reason.
The landlord’s complaint time limits does not comply with the Complaint handling code as it states that its first stage response will be provided within 20 working days. This is not in accordance with the response time frames prescribed by the Ombudsman.
The resident made her complaint to the landlord on 10 June 2021. The landlord was aware that at that time she was represented by her son. Seven days later, the resident’s son informed the landlord that he was no longer acting as a representative for his mother. By the time the landlord sent the resident her complaint response on 17 June 2021, it was aware that she no longer had representation regarding her complaint.
The final stage of the complaint process enables the resident to have an independent review of their concerns and outstanding issues. The landlord was aware that the resident wished to do this as on 2 July 2021 it acknowledged her final stage complaint and requested that she provide information about the matters that she wished to have considered.
From the available information, the landlord did not provide a final stage complaint response to the resident. This was not reasonable or appropriate as it was aware that she had unresolved concerns regarding the cause of the noise disturbance and that she was at that time without representation. Furthermore, there is no evidence that it took any significant steps to enquire whether she wished to progress with the escalated complaint.
The landlord’s decision not to progress the complaint to the final stage of the complaint procedure when it was contacted by the resident’s son, three months after it had issued its first stage response was not reasonable. The landlord relied on the fact that the request from the resident’s son to escalate the complaint exceeded the 20 working days outlined in its complaint procedure without giving proper consideration to the fact that it had not responded to the resident made by the resident on 2 July 2021 for it to provide its escalated complaint response. The Ombudsman’s Complaint Handling Code requires landlords to provide a clear and reasonable explanation to residents if it decides that it will not consider a complaint. There is no evidence that it did this.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling and response to the resident’s reports of noise disturbance from Flat A.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the related complaint

Reasons

Following the resident’s report of noise disturbance described as drilling sounds, the landlord acted in accordance with ASB policy by obtaining information from its partners. The landlord identified the perpetrator of the noise disturbance and reminded them of their obligations under the agreement. The landlord has advised that it has not received a noise report from the resident since the incident.
The landlord did not act in accordance with the complaint handling code following the resident’s request for her complaint to be escalated to the final stage of the complaint procedure. It did not action the resident’s request and when her representative made contact at a later date, it did not use that opportunity to review its actions and address the resident’s concerns through its complaint procedure.

Order

The landlord to write to the resident to apologise for the service failures identified in this report.
The landlord to pay the resident £250 compensation for its failure to consider the resident’s complaint under its complaint procedure.
The landlord to carry out a self-assessment of its complaint handling timescales against the Ombudsman’s Complaint Handling Code and inform us of the outcome of its review.
The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.