Tower Hamlets Homes (202102916)

REPORT

COMPLAINT 202102916

Tower Hamlets Homes

31 January 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:
1. The complaint is about the landlord’s response to the resident’s reports of anti-social behaviour (‘ASB’) and noise reports.
2. The landlord’s complaint handling.

Background and summary of events

The resident occupied a 2nd floor, 3-bedroom flat in a block of flats under a secure tenancy with a local authority, together with her mother and brother. The landlord was an arm’s length management company (ALMO) which managed the property on behalf of the local authority. The tenancy had begun on 1 July 1985 and was at the time of the complaint in the resident’s mother’s name. Her mother had a serious health condition while her brother suffered from a mental health condition.
The resident made a complaint about noise from her neighbours’ property above and below. The neighbours above will be referred to in this report as N1 and the neighbours below will be referred to as N2. N1 were tenants of a leaseholder of the landlord’s, which leaseholder will be referred to as L1. The property above and the property below will be referred to as P1 and P2 respectively.
N1 moved out in January 2021. New tenants moved into the property above in March 2021 and are referred to as N3 in the report.

Legal and policy framework

Under the tenancy agreement, the tenant was responsible for the behaviour of all occupants in the home and was prohibited from doing anything that caused a nuisance, annoyance or disturbance to anyone else. ASB included noise nuisance, and included shouting or banging and slamming doors or any other act calculated to interfere with or cause inconvenience to another person.
The ASB policy applied to tenants and leaseholders. It stated:
1. The landlord would work with residents and its partners to moderate behaviour to an acceptable level, before considering legal or enforcement action.
2. ASB included noise nuisance, other than general living noises.
3. The landlord would respond to the complainant within agreed timescales and agree a proposed action plan and communication plan. This would be confirmed in writing and the victim kept regularly informed of subsequent progress.
4. The policy categorised cases as follows:
  1. Medium priority included noise nuisance. The landlord would review such a case every 15 days.
  2. Low priority included minor nuisance and domestic noise. The landlord would review such a case every 20 days.
5. For complaints when the behaviour involved was not considered to be anti-social within the scope of this policy, it would notify the complainant of that decision in writing within 10 working days, including advising them about other remedies which may be open to them.
6. The landlord could escalate or de-escalate the priority of a case.
7. The landlord would adopt a victim-centred approach including:
  1. Taking the complaint seriously.
  2. Being sensitive to the complainant’s needs.
8. Giving clear information on what follow-up action will be taken.
9. Keeping thorough, accurate records.
10. It would provide support for victims. It understood that by the very nature of the service, the majority of residents would be going through a period in their life where they are at a greater risk of being vulnerable. This would include:
  1. Carrying out a full risk assessment at the first point of contact.
  2. Ensuring referrals to support services are measured and the outcomes are tracked.
The landlord’s complaint procedure consisted of a two-stage procedure. It aimed to respond to a formal complaint and to an escalated complaint within 20 working days which it might extend in more complex cases.
Under the landlord’s compensation policy, it had the discretion to offer compensation for service failure in relation to distress and time and trouble. It referred to the Local Government and Social Care Ombudsman’s guidelines. Payments for time and trouble ranged from £25 to £250.
L1’s property was licensed as an HMO by the local authority in which the property was situated. The licence included a condition that the leaseholder should effectively address anti-social behaviour by not ignoring or failing to take action if he has received complaints of ASB regarding his tenants. The licence also set out a prescriptive procedure the leaseholder should follow. The HMO was generated and was enforceable by the local authority, pursuant to its function as a licensing authority. This was separate from the housing function of the local authority.
N1 was subject to a clause in their tenancy agreement as between L1 and N1 not to cause nuisance. The Ombudsman has not seen the lease between the landlord and N2 however it is likely neither L1 or N2 as leaseholders would have been subject to the same terms and conditions as the resident in that it would have prohibited causing nuisance. It would be usual, however, that leaseholders would have been subject to a clause not to cause nuisance which may or may not extend to a leaseholder’s liability for its tenants.

Scope of this investigation

According to the resident, she first made a complaint in August 2019. While the Ombudsman has noted the longer history and background, this report will focus on the 9 months’ period leading up to the resident’s complaint on 25 December 2020 as the Ombudsman considers that this is a reasonable period of time to consider in detail and the evidence shows that the reports were broadly very similar throughout. The report has, however, summarised the landlord’s previous actions.

Chronology

The resident had logged noise on a daily basis from 2019. The noise reports escalated in 2020 and continued until, as far as the Ombudsman is aware, at least October 2021. The initial logs described noise that continued over a period of hours. The resident then began to record the exact times of the noise, ranging, on average, between four to ten times an hour, throughout the day, and often in the early hours. In the main, the noise reports consisted of door slamming, banging, metal scraping, machinery, objects dropping, jumping, and of a washing machine, generally during the day and occasionally in the evening and early hours of the morning. On occasions, the noise the resident described consisted of loud music, a party, DIY and of children. The resident provided the logs to the landlord on a regular basis and also reports in correspondence with the landlord. The chronology will not set out each individual report but they have been noted. The chronology will refer to specific incidents where particularly relevant.
The resident reported to the landlord on a number of occasions that the noise was having a detrimental effect on her brother’s mental health and provided correspondence from her brother’s GP surgery, the mental health crisis team and support providers setting out her brother’s mental health. There were references in the correspondence to a link between her brother’s mental health and the noise. The evidence showed that the resident provided medical evidence to the landlord, as well as reporting acute medical incidents.
While the resident also provided letters to this service from various members of the household and her own employer to explain the distress the members of the household were experiencing as a result of noise in the property, there was no evidence these were provided to the landlord. However, the resident made clear to the landlord that noise was impacting her and the household.
On 3 December 2019, the landlord opened an ASB case in relation to reports about N1. It was not disputed that in January 2020, carpetting was fitted in P1 following the landlord carrying out a sound test. The landlord set out an action plan on 31 January 2020 according to which the resident had submitted diary sheets and the resident declined a referral to victim support. On 3 February 2020, the landlord wrote to the resident escalating the case to a different team as it was unable to ascertain whether the noise was deliberate. On 4 February 2020, the environmental health team of the local authority (EHT) inspected P1 and concluded that the noise reported was “domestic”. It noted that the laminate floor in P1 had been removed and was carpeted with thick underlay. After in excess of 12 out-of-hours calls, the EHT had not witnessed any noise nuisance and closed the case. It had applied the statutory noise test.
On 8 April 2020, it sent out a further action plan including:
1. Writing to other residents to investigate whether they experienced noise.
2. Offering a professional witness service.
3. Offering mediation, which the resident agreed to on 14 April 2020.
On the same day, it identified the vulnerabilities of the occupants and offered referrals to support agencies.
Within a short time of a report by the resident of noise on 22 April 2020, the landlord wrote to N1 and made a number of specific enquiries regarding their kitchen equipment, washing machine, and then activities. N1 responded to explain that they were working from home and while they played music when working from home, N1 stated that they monitored its decibel range. They also reported that they themselves heard music in the block and accepted it as “normal living”. They requested an investigation of all the flats. According to its summary record, the landlord sent a general warning letter to N1 on 17 April 2020. On 29 April 2020, N1 informed the landlord that the previous housing officer had attending the property and asked another flat to make noise, which the resident identified as coming from N1. The Ombudsman was not provided with a record of this noise test.
The landlord wrote to the resident on 10 August 2020 as follows:
1. It would normally visit and carry out a subjective test but was unable to do so due to lockdown.
2. It offered mediation.
3. It set out what was not deemed to be ASB, including chairs being moved, DIY between 9am and 6pm, footsteps, opening and closing doors, and talking at “normal” levels.
The landlord instructed specialist patrol contractor to attend the property. It reported as follows:
1. On 3 October 2020, it witnessed constant banging, a man hanging out of a balcony above and banging an object against a wall. It offered to attend the relevant property but the resident declined.
2. On 7 October 2020, it attended the resident’s property and P1 but the report was “inconclusive”.
On 10 October 2020, the team reported that it could “only” hear talking.
The landlord wrote to all residents on 11 October 2020 regarding noise nuisance and to remind them of the relevant term in its tenancy agreement relating to ASB and inviting residents to report any ASB.
On 14 October 2020, the landlord put the allegations to N1 and made enquires of the owner and updated the resident which it did from time to time.
In October and November 2020, N1 reported noise although N1 did not consider it to be anti-social.
On 12 November 2020, the resident requested an anti-social community trigger which was declined by the police in January 2021
On 18 November 2020 the landlord wrote to L1. The Ombudsman has seen the letter but cannot share the contents with the resident due to data protection considerations. However, it considers it was robust. L1 explained in response that he had laid carpets and rugs. It would need evidence if it were to evict his tenants.
In November and December 2021, the landlord pursued enquiries with N1 and L1 regarding the carpet and rugs, and the resident’s reports. The landlord wanted to inspect the underlay and “padding”, given the patrol team had overheard conversations. The leaseholder agreed to cooperate with the landlord’s requests.
According to enquiries the landlord made with the EHT, the EHT had attended a number of occasions at the property in the period October to December 2020. It reported some shouting on one occasion and on 10 December 2020, it heard N1 talking. It talked to N1. On occasions, it did not witness any noise, including on 20 November 2020. On other occasions, including on 21 November 2020, the resident cancelled the call as the noise had stopped.
Included in the landlord’s evidence was an undated note of interviews with other occupants of other flats which referred to the case with N1. The reports included noise from flats they could not identity, noise from other flats, noise from a converted building at the back, domestic violence and police attendances, and one reported no noise.
On 25 December 2020, the resident made a formal complaint which included:
1. She described the frustration, dissatisfaction and lack of action over the previous 13 months and referred to her noise complaints and the health issues of the household.
2. Action and communication was delayed for example on 3 February 2020, the landlord did not contact her till 7 April 2020.
3. There was a lack of action plans. On 13 October 2020, the landlord emailed her with a draft witness statement yet the landlord wrote stating that before any legal action could be taken the landlord had to ensure the noise constituted unreasonable conduct.
4. Actions were promised but not fulfilled, such as with mediation/warning letters/carpets being checked/whether structural alterations in P1 were authorised and legal action.
5. The landlord’s policy regarding “door slamming” was not clear and the policy inconsistent with the tenancy agreement.
6. The landlord rejected her noise recordings as they did not indicate where noise was coming from.
7. She cited various occasions where she felt the landlord had failed to act in response to the reports by EHT and the patrol team.
8. She raised a previous complaint regarding leak from P1 that she said was not resolved.
9. She set out the outcomes she required.
N1 vacated the property on or around 14 January 2021.
Further to what appeared to be a SAR by the landlord to the EHT, the EHT attended on 16 January 2021 at 01:16. There was “no trace” of noise nuisance.
The resident wrote to the landlord on 1 February 2021 with a noise log from 1 February 2021 to 12 February 2021. She noted that the noise between 12am to 6am had stopped but noise up to midnight was still occurring. She concluded that more than one property was involved. She asked the landlord to investigate.
On 2 February 2021, the landlord pursued its enquiries with L1 with detailed questions about any activity in the property while it was empty. L1 replied that a cleaner and the agent may attend the property in the meantime. No works were being carried out. A joint inspection would be arranged.
On 5 February 2021, the landlord wrote to the resident with the Stage One response, the tenancy agreement, and a copy of the letter sent to the flat below. It awaited to hear from the resident regarding the compensation she wanted.
The Stage One response in fact dated 1 February 2021 was as follows:
1. While there were the limitations of conducting an investigation into her reports of noise disturbance due to lockdown, and it disputed some of the resident’s points, it was accepted that the time taken to conclude the matter from April 2020 to December 2020 was beyond an acceptable length of time.
2. The landlord acknowledged the impact on her brother and a referral had been made to Victim Support.
3. As a result of the landlord’s intervention, carpets and additional matting were installed inP1, although its suitability was not inspected.
4. It accepted that its communication could have been clearer in relation to the use of noise monitoring equipment, the availability of the patrol service, and N1’s moving date.
5. N1 had denied causing a noise disturbance and made counter allegations against the resident, therefore the case required an investigation.
6. It accepted that the investigation was not concluded swiftly, following the findings of the team patrol which supported her allegations.
7. It agreed to the requests of the resident as follows:
  1. It would allocate its team leader to the case.
  2. Provide a copy of N1’s tenancy agreement and terms to the resident L1 had provided on 3 February 2021.
  3. Make enquiries whether L1/his agent had a noise nuisance policy.
  4. Re-instate the texting and patrol service.
  5. Review the communication with the flat downstairs and follow this up in writing, if appropriate.
  6. Arrange a joint inspection of the floor coverings and other noise sources whilst the property was empty.
8. It explained:
  1. It was unable to provide a copy of a warning letter to N1, as correspondence to other residents was confidential. It would not need to consider a move for her brother as N1 had moved.
  2. The landlord did not use noise monitoring equipment due to the lack of evidential value as recordings were “nondirectional”.
  3. It would offer compensation as the management of the ASB Case between April and December 2020 exceeded general good practice to conclude an ASB case investigation within 3 months, in recognition of the length of time taken to conclude the ASB case, as well as for inconvenience and distress. The landlord suggested a calculation based on 20 weeks, the additional time taken to conclude the ASB investigation, and would agree an appropriate level of compensation. The resident was seeking independent advice on the issue and would await to hear from her in that regard. It referred the resident to its policy on compensation regarding time and trouble.
On 2 February 2021, the patrol team attended an inspection of P1 and reported as follows:
1. It tested any possible sources of noise.
2. The cupboards installed within the property contained soft closure mechanisms and did not appear to cause more noise than expected. The bathroom cupboards and shower door closed quietly.
3. The entirety of the house was carpeted other than the bathrooms, and there was underlay in every room, except one bedroom. Each room had very soft carpet and the team caused minimal noise walking in boots.
4. The floor in the toilet and bathroom was solid.
5. The agent agreed to install some small pads for the inside of door frames in the bedroom doors to reduce the chance of that being an issue.
6. It did not identify any further issues which could contribute to noise.
The landlord wrote to the resident on 12 February 2021 stating that there was no evidence to support that the noise was deliberate. It stated that noise travelled in the block especially at night. It needed to identify the source through its patrol service which could witness and trace the noise. On 17February 2021, the landlord closed the case in relation to the property upstairs and opened a fresh case.
For the following few weeks, the landlord provided the patrol’s schedule for the week. It explained attendance was subject to the team’s availability and how the service worked.
The patrol team provided the following reports:
1. On 15 February 2021, it did not detect any noise. The resident stated that it had stopped before they came.
2. On 19 February 2021, the patrol team attended for 40 minutes and reported it had attended the resident’s property in the evening. It heard kitchen use and door closures but nothing “excessive” or any continuation. The property above was vacant.
3. On 23 February 2021, the patrol team attended for 20 minutes but did not hear any noise.
4. On 24 February 2021, the patrol team attended for over an hour but did not hear anything initially, but then heard children, the scraping of a chair, and some vibration, something dropping and talking. It classed it as “normal domestic noise”. It inspected outside the flat below where the resident thought that the noise was coming from and heard talking. It updated the resident.
5. On 25 February 2021, the patrol team attended for 40 minutes. It recorded that it heard children playing, kitchen activity and cupboards,. It described the team as noticeable but not excessive.
On 4 March 2021, N2 responded to the landlord’s enquiries and described their lifestyle and family makeup. N2’s household consisted of an elderly couple with a disabled wife. They did not do DIY. It considered that the noise they heard, including the resident and parties in other properties, was part of living in a flat. The landlord made further enquiries with N2. The landlord updated the resident from time to time of what steps it had taken.
On 11 March 2021, new tenants (N3) moved into P1.
The patrol team attended on 25 March 2021 and heard movement but did not deem it excessive. However it noted that the noise on the resident’s recordings was “very loud”.
In an email correspondence between the parties of March and April 2021, the landlord noted the patrol team reports and it did not consider that the noise was excessive. An occupant in a block would hear some other household noise from time to time due to the close proximity of the properties. It referred to the resident’s recordings of “very loud noises” and advised the resident to report it specifically. The resident stated that according to the report on 24 February 2021, the noise was deemed quite serious and unacceptable. The landlord stated it would wait until end of the week before asking N1 to install furniture grippers, rugs, and door stoppers.
The EHT attended mid-evening on 27 March 2021 and reported shouting and loud music. It asked the residents to keep the noise down which they did. It attended again on 8 April 2021 but no nuisance was witnessed. The landlord also contacted N3 regarding the issue.
During April 2021, the landlord took the following steps:
1. It made enquiries of, and arranged a meeting with N2. N2 described his household circumstances. He had heard the resident’s brother thumping in response to noise, including at his hoovering at midday on a Saturday. He heard noise, had laid rugs, had felt pads on his chairs and provided photographs, a video recording and a receipt demonstrating that all the bedrooms were carpeted. He heard noise in the building including from the resident’s property that he considered to be constituted domestic noise but was not deliberate.
2. It put the events set out in the EHO’s report of 27 March 2021 to L1’s agent and chased the installation of soft closures L1 appeared to agree to.
3. The landlord established that there was no term prohibiting laminated flooring at N2.
4. L1 clarified that the entire property at N1 was carpeted. L1 provided photographic evidence which was provided to this service.
The resident requested to escalate her complaint on 4 April 2021 on the following grounds:
1. The complaint was not completely responded to.
2. She disputed the information provided by the landlord and reasons for withholding the letter to the leaseholder. It did not address the non-ASB issues.
3. The structural alterations most likely contributed to the noise level but had not been checked.
4. The patrol report had stated the noise level was “unacceptable”.
5. The landlord had offered the resident just over £9,000 in compensation which was reduced.
6. She requested to know what action would be taken against the leaseholders.
The EHT attended on 2 May 2021. It monitored noise from the resident’s property but could only hear for a short period, a low unenforceable noise coming from above which sounded like no more than three people talking.
The landlord continued to make enquiries in May 2021 of L1 suggesting he lay more rugs, asked about the extent of the carpeting, and whether the doors had soft closures. L1’s agent considered that the doors closed softly and did not need the works.
In relation to the complaint, the landlord wrote to the resident on 7 May 2021 and apologised for the delay in its response due to an administrative oversight.
The landlord wrote to the resident on 20 May with its second stage response as follows:
1. It set out the history of the case.
2. The outcome of the investigation was inconclusive in respect of evidence to support enforcement action, however, a breach of lease conditions warning letter was sent on 18 November 2020 to L1.
3. It considered that L1 and N1 had “co-operated fully” with the investigation including laying additional rugs in the property.
4. It denied making an offer of £9,000. It considered the resident’s request to extend the number of weeks but concluded the original gesture of goodwill was proportionate to the circumstances.
5. There was no evidence to support the allegation of unreasonable noise at unsociable hours from N1 or N2. It would meet with any support workers to discuss the management of the resident’s reports of noise disturbance and the offer of compensation.
The landlord wrote to the EHT on 7 July 2021 referring to a letter EHT wrote to the leaseholder. The EHT replied that it had been a reported that a party was taking place but when it attended 20 minutes after the report, there was only loud talking and laughter which fell outside its remit.
The resident’s legal advisor wrote to the landlord on 5 July 2021 raising the issues the resident had raised and requesting confirmation of the amount of compensation offered.
The landlord made a SAR to the police on 7July 2021 which logged the resident’s reports but not any police attendances.
According to a local authority log of 16 July 2021, the EHT attended the block. It did not witness a party as reported by the resident but laughing and talking. It was unable to enforce as that was outside the remit of EHT. On 23 July 2021, in response to the landlord’s request for noise monitoring equipment, the EHT explained that the noise monitoring equipment was for use by the EHT as it required specialist use and suggested the landlord could instruct an acoustician. The explanation was communicated to the resident’s advisor.
The landlord’s solicitor wrote to the resident on 13 September 2021 that it was considering L1’s application for work he had carried out in P1 and awaiting a report regarding any structural alterations. The request to reinstate the texting service was refused for all the reasons stated above.
It awaited the outcome from the Ombudsman before any further discussion was made on compensation (if any).

Assessment and findings

The landlord’s response to the resident’s reports of ASB and noise reports.

The Ombudsman recognises the distress experienced by the resident and her family and in particular the resident’s concern for her brother’s mental health. She spent considerable time raising and pursuing her complaint to the extent of collating an extensive log of events. The Ombudsman cannot assess the extent to which a landlord’s service failure or maladministration has contributed to or exacerbated a complainant’s physical and/or mental health. It cannot assess medical evidence and does not make findings on matters such as negligence. However, the Ombudsman may set out a remedy that recognises the overall distress and inconvenience caused and where there has been a service failure by a landlord.
In cases of ASB or noise nuisance, it is not the role of the Ombudsman to determine whether or not ASB has occurred. The Ombudsman’s role in such cases is to consider whether a landlord’s responses to its resident’s reports were in line with the landlord’s legal obligations, policies, and good practice. This includes considering whether a landlord’s actions were appropriate and reasonable, as well as proportionate to the issues being reported, and that it took all the circumstances into account.
The landlord treated the resident’s reports as ASB, however there was little evidence that the landlord followed its procedures in relation to ASB. There was little evidence of it updating its actions plans and undertaking reviews. Such reviews would assist the landlord in reviewing its actions and approach. The landlord attributed some of the delays and the limitations to measures it was unable to take to lockdown. That was reasonable to the extent lockdown would have limited the landlord’s ability to visit and inspect properties and to undertake a subjective noise tests. However, the landlord considered it should have reached some conclusion after three months rather than the period from April 2020 to December 2020. The landlord also accepted that it did not update the resident as often as it might or should have done and thus recognised and acknowledged those failings.
However, in the view of the Ombudsman, the landlord’s actions demonstrated a commitment to seek to address the resident’s reports. It offered mediation and it liaised with the police and EHT. It identified the resident’s brother’s vulnerabilities, and offered referrals and to liaise with the resident’s brother’s support. It put the resident’s allegations to N1 and L1. It wrote warning letters, albeit referring to the tenancy agreement, which did not necessarily apply to all occupants of the block. It arranged for a patrol service and liaised with both the police and EHT. It undertook detailed enquiries of N1, on occasions (such as in April 2020) as the resident was sending her reports. It made enquiries of L1 and N1, as well as its managing agent of the upstairs flat. It made enquiries with other occupants of the building. When the resident considered that the noise was emanating from the property below, it made extensive enquires with N2. The landlord continued its investigations with L1 when the property became empty and began enquiries with N3 when they moved in.
While the role of the EHT was outside the scope of this investigation, given it is not part of its function of housing management, the Ombudsman would expect the landlord to liaise with the EHT in particular, as L1 held a HMO licence in respect of the property. That was the most effective tool available to it, and the evidence showed that the landlord had done so.
There was no dispute that there was noise transference in the building. This was also evidenced by a number of flats reporting noise and the steps the landlord took to minimise that noise. Even if the noise were not deliberate and therefore did not constitute ASB, the Ombudsman would expect the landlord to investigate its cause. While it is not always possible to eradicate noise transference between different floors of a property, steps should be taken to mitigate the level of noise transference, as far as reasonably possible. The evidence showed that the landlord investigated and addressed noise transference as well as ASB but that in doing so, it kept an open mind. It had L1 lay carpet. It made enquiries in order to identify the source of the noise, within the limits of lockdown and sought other noise-dampening measures and demonstrated some persistence in doing so. When it was able to, it arranged for an inspection of the property in February 2021. The landlord considered noise-reducing measures in both the properties below and above. It identified the need for soft door closures/door stoppers but did not pursue these and the Ombudsman will make a recommendation in that regard.
While there was evidence of noise, there was little evidence of ASB. Normally, noise is treated as ASB when it is deliberate or would include behaviour such as frequently holding large parties and doing DIY at unsocial hours. While the reports by the patrol team and that of the resident differed on occasions, for example in the reports of 21 November 2020 and 10 December 2020, the third party witnesses reported only the occasional noise incident and which mainly consisted of conversation. Given the evidence available to the landlord, it was reasonable of the landlord to treat the noise as domestic household noise rather than ASB or noise nuisance.
The evidence indicated that there may have been a change when N3 moved in. The EHT witnessed a gathering on 27 March 2021 and intervened. However, the evidence also showed that the landlord continued to monitor the case proactively. While there were issues of noise transference, it did not necessarily constitute ASB and a breach of an occupation agreement.
The Ombudsman notes that the landlord’s policy included noise as ASB “other than general living noises” but also included domestic noise, which was somewhat contradictory. The policy could be improved by being more detailed and properly distinguish between ASB and noise transference. The landlord is right to include noise within its ASB policy and not limit it to statutory noise. However, the landlord needs to be ensure the distinction is made clear in the policy and the Ombudsman will make a recommendation in that regard.
The landlord did not clearly differentiate between ASB and mere noise transference to the resident during the management of the case, as required by its own policy. It made some attempt to explain such as on 10 August 2020 and in its letter of 12 February 2021. The landlord was right however to point out the limitations of the resident’s recordings. While by the resident’s own account, the landlord explained it would only take legal action if the conduct complained of was unreasonable, it was not clear whether the landlord followed this up or whether it explained whether she still needed to provide noise logs which she found stressful in itself. As a result, while it was perhaps a result of its open-minded approach, the landlord did not manage the resident’s expectations as well as it could have done. Regular reviews would have assisted in ensuring that the landlord managed them better.
While the Ombudsman considers that the landlord’s responses to the resident’s reports were reasonable and appropriate, there were issues of poor communication as noted in this report. The landlord acknowledged these in the main and offered compensation. The landlord also acceded to the resident’s requests in order to put things right. However, the landlord declined to set the amount of compensation and thus did not provide a resolution to the resident. If the landlord had set a level of compensation, the Ombudsman would have considered whether that compensation was reasonable, in which circumstances, the Ombudsman would have found reasonable redress. In the absence of a figure, the Ombudsman finds service failure in respect of this aspect of the complaint and will set an amount of compensation.
While the Ombudsman has found that overall, the landlord has acted reasonably and appropriately, it should continue to do so, in particular where circumstances in the block may change. Importantly, the Ombudsman has noted the vulnerability of the resident and her family, and her brother in particular. The resident has also reported to this service that the household continue to experience noise. Given those circumstances, the landlord should ensure that it remains proactive and open-minded in considering appropriate steps in the case of any ASB and continues to explore what measures it can take regarding noise insulation now that lockdown has been lifted. However, the Ombudsman also understands any measures need to be proportionate and feasible. The landlord also needs to be very clear to delineate the difference between ASB and noise transference and about what it can and cannot achieve, and why.

Complaint handling

The complaint response recognised its failings and its explanations were reasonable. It continued to make enquiries regarding the alterations. It also agreed to the resident’s requests. In the circumstances, the complaint process itself improved the service to the resident which is an important function of complaint handling.
However, there was a significant delay in its complaint responses. Moreover, the landlord did not use the complaint process to address aspects of the resident’s complaint, including its reasons why it did not act to the EHT and patrol teams reports or address the issue of the leak and the Ombudsman will make an order in that regard.
The Service listened to the telephone call in which the resident advised she was offered £9000. The housing officer used an example of offering £9000 for a six month delay in failing to repair hot water. This was calculated at £50 a day for six months. I have not been able to identify where in the landlord’s policies that this calculation is reflected. In any event, the example that was given was a resident being without hot water for six months which is not the same scenario within this complaint which is about ASB and at the end of the call both parties agreed to go away and seek advice. The landlord did, however, make reference to the Ombudsman’s guidance within its response. This indicated that such an offer was highly unlikely as that level of compensation would only be awarded in very rare circumstances.
However, as stated, the landlord failed to make an offer of compensation. The Ombudsman would expect the landlord to make a clear offer of compensation as part of its effective resolution-handling to put things right. The complaint could not be concluded satisfactorily without making a concrete offer.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in its response to the resident’s reports of ASB and noise reports.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was service failure its complaint handling.

Reasons

The landlord was responsive overall. It took reasonable and appropriate steps to investigate any ASB and to address noise transference. However, there were delays, failures to update the resident, and lack of clarity in the landlord’s management of the case, including that a failure to distinguish clearly between noise complaints and ASB. While it recognised its failings, and sought to put matters right, it made an offer of compensation, without setting a figure. In the circumstances, the Ombudsman is unable to consider a finding of reasonable redress.
The complaint handling was constructive and responsive. The landlord acknowledged its failings and offered compensation. However there were significant delays to its responses. While it was a reasonable attempt to agree a sum for compensation, given the negotiation was inconclusive, it was ultimately for the landlord to set an amount of compensation for its failings without which the complaint was not resolved, which was frustrating for the resident.

Orders

The Ombudsman orders the landlord to:
1. Pay the resident the sum of £500 within 28 days as follows:
  1. £350 as the sum the Ombudsman sets in relation to the landlord’s response to the resident’s reports of ASB and noise reports.
  2. £150 in relation to the landlord’s complaint handling.
2. Take steps to investigate the leak and update the resident and respond to the resident’s complaint of 25 December 2020 about the leak within 28 days.
3. The landlord is ordered to contact victim support to ensure the referral was submitted correctly and that the resident’s brother has access to the support needed.

Recommendations

The Ombudsman makes the following recommendations that the landlord should:
1. Ensure it offers mediation to the resident if she still requires it.
2. Update a resident as to whether it is beneficial for them to continue to provide noise reports.
3. Consider instructing an independent noise specialist, acoustician or surveyor to undertake a specialist investigation of the insulation, including inspecting the floorboards of the properties above and below in order to consider whether there are any further measures it can reasonably take to provide noise insulation. It should then provide feedback to the resident as to its actions, together with an explanation.
4. Pursue its request for soft closures to the doors in the property above and provide feedback to the resident as to its actions.
5. Ensure that it reviews its ASB cases in accordance with its policies, both to ensure it is taking the appropriate corrective action and to ensure it is managing the resident’s expectations.
6. Consider adopting NoiseApps or similar, if appropriate.
7. Consider amending its ASB policy regarding noise that provides clear guidance as to what is and what is not ASB, ensures it distinguishes between noise transference and noise nuisance/ASB and sets out how it would respond to reports of noise.
8. Ensure it complies with its own complaint policy and is referred to the Ombudsman Complaint Handling Code at Complaint Handling Code – Housing Ombudsman (housing-ombudsman.org.uk).
9. Provide feedback to the Ombudsman as to what action it intends or does actually take in response to the above recommendations.