Gosport Borough Council (202204534)

REPORT

COMPLAINT 202204534

Gosport Borough Council

12 July 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 ASB and noise nuisance.
This Service has also considered the landlord’s complaint handling and record keeping.

Background and summary of events

Background

The resident lives in a two-bedroom bungalow, with her adult son. The resident has a secure local authority tenancy with the landlord that started on 21 October 2019. The landlord has recorded vulnerabilities for the resident.
On 12 June 2022, the resident explained to this Service that she was unhappy with the landlord’s handling of her reports of antisocial behaviour (ASB) and noise nuisance.

Scope of investigation

This Service acknowledges that the resident started reporting noise nuisance in December 2020, not long after the neighbour moved into the property. This Service has also seen evidence that the landlord took action at that time including involving a visit to the neighbour to discuss the noise issues reported by the resident.
The neighbour made counter complaints against the resident regarding noise coming from her property. Consequently, the landlord decided that the best way forward would be to arrange for noise monitoring equipment to be installed in order to assess the level of noise from each property.
The environmental health team installed noise monitoring equipment at the neighbour’s property in May 2021, but the results were inconclusive.
In August 2021, the landlord instructed a surveyor to visit the neighbour’s property to establish if there were any issues within the property that may have been causing the noise. It noted that there was a section of the bedroom floor that made a loud thud when walked across and some of the internal doors made a loud noise when pulled shut. The landlord confirmed that the repairs were easily fixed and hoped that by doing so it would resolve the noise issue. This Service has not seen evidence that the work was completed.
An internal email dated 24 August 2021, noted that the resident and her neighbour had spoken, and that the situation appeared to have been resolved and circumstances improved.
It is the Ombudsman’s role to assess the appropriateness and adequacy of the landlord’s actions in responding to reports of anti-social behaviour and the fairness and reasonableness of its response to the formal complaint. This does not include establishing whether a party is responsible for ASB; our investigation is limited to the consideration of the actions of the landlord in the context of its relevant policies/procedures as well as what was fair in all the circumstances of the case. The Ombudsman cannot tell the landlord to take action against neighbours.
The Ombudsman’s remit does not extend to investigation of historical issues as a resident is expected to raise issues with both the landlord and Ombudsman in a timely manner. In order to investigate this complaint fully and fairly this Service will consider events from 11 November 2021, encompassing the landlord’s formal complaints procedure which started on 22 February 2022, and culminated with the landlord’s final response of 29 April 2022.
This Service acknowledges that the resident has recounted an incident involving her neighbour, which took place after the landlord had completed its internal complaints process. However, the Ombudsman is not able to investigate issues that post-date the completion of the landlord’s complaints process, other than to ensure that the landlord has followed through on any agreements it might have made during the course of this process. Consequently, if the resident has not formally complained to the landlord regarding its response on that occasion, this Service would encourage her to do so.

Summary of events

Between 11 November 2021 and 15 November 2021, the resident and landlord exchanged emails regarding the noise from the neighbour’s property. The resident emailed the landlord to report that the neighbour had started banging on the wall between two properties, late at night. She added that she was soon going on holiday and therefore didn’t want the landlord to take action but simply retain the noise complaints already made. In its response that landlord agreed not to take action and confirmed that soundproofing had been installed at the neighbour’s property.
Following a further report of banging by the resident on 14 November 2021, the landlord advised that it would fully investigate and take appropriate action. The landlord added that it felt mediation could help resolve the issues and that neither party needed to be in the same room for the mediation to take place. The resident stated that she did not feel mediation would help and stated that she had not eaten at the weekend for fear of making too much noise whilst cooking. She added that she believed the landlord was only concerned for the neighbour’s wellbeing and not hers. This Service has not seen evidence of the investigation the landlord said it would carry out.
The landlord assured her that it was concerned for both parties and had sought to resolve the issues by offering to install soft closures to her kitchen cupboard doors and by installing sound proofing in the neighbour’s bedroom. The landlord added that it wanted to conduct a joint visit to both hers and her neighbour’s property with the local PCSOs and asked when the resident was going on holiday so that it could be arranged for when she returned.
The landlord has advised this Service that on 15 November 2021, the resident agreed for soft closures to be added to her kitchen cupboards and that the following day she was advised that the PCSOs would be visiting on their own due to the landlord’s prior commitments. This Service has not been provided with details of the outcome of the PCSO visit.
On 16 December 2021, the resident met with the landlord to discuss the ongoing issues between herself and her neighbour. According to the landlord’s file note, the landlord explained that it had carried out investigations into her noise complaints and that it had received allegations regarding her behaviour in respect of her neighbour. The landlord reiterated that it had attempted to improve the situation by offering to fit soft closures on the resident’s kitchen cupboards and by installing sound proofing on the neighbour’s bedroom wall.
The landlord further explained that it was remaining impartial and that it had to investigate both hers and her neighbour’s complaints. The resident agreed that soft closures could be fitted on the kitchen cupboards and the also asked for noise loggers to be installed in her property and sound proofing to be added at the back of her kitchen cupboards. The landlord stated that it would discuss both requests with environmental health and its property department, respectively.
In an email exchange between the landlord and a local councillor the following day, the landlord explained that it had received counter allegations to the resident’s complaints and that it had to investigate both. It stated that as part of its investigations, it had spoken with other neighbours and concluded that both parties appeared to be at fault. It stated that it was at an impasse with its investigations and the actions it could take, as the neighbour had agreed to mediation but that the resident had not.
In relation to the suggestion of a transfer to another two-bedroom bungalow, the landlord explained that the resident would not attract a priority on the housing register and that her best option would be to consider a mutual exchange.
In an email exchange between the resident and landlord between 16 January 2022 and 17 January 2022, the resident reported that the neighbour had banged on her wall, she stated that she did not want the landlord to take any action as things had been better apart from at weekends. Then on 24 January 2022, the resident contacted the landlord again to report banging from the neighbour, she stated that she wanted the landlord to take action and that soft closures had been added to the cupboards as a way of placating the neighbour. The landlord said that it would contact the neighbour and discuss the resident’s noise reports.
Later that same day, the resident emailed the landlord again in response to their telephone conversation. The resident stated that in response to the neighbours reports of her noise nuisance, she denied hoovering at or after 10.30pm and stated that she was in bed every night by 10pm. She maintained that she took her kettle to her bedroom so as not to disturb the neighbour in the night and insisted that her house was silent between 10pm and 9am. She added that her kitchen is next to the neighbour’s hallway so perhaps it would be prudent to add sound proofing to that wall.
Following a further noise complaint to the landlord a week later. The landlord advised that it was at an impasse and that given the resident’s complaints, and counter complaints from the neighbour, mediation appeared to be the best way of resolving the issues. The resident responded that the loudest items she used in her property was a washing machine and dryer, both of which she used during the day. She repeated that she used her kettle in her bedroom at night in order to minimise noise and that she had moved all of the furniture against the dividing wall with sound proofing tiles behind it, which she stated she paid for, in order to reduce the noise, he could hear. She added that her mental well-being had been impacted by the issues experienced over the previous 13 months.
On 4 February 2022, the landlord hand delivered a letter to both the resident and neighbour regarding the noise reports and the apparent stalemate. In the letter to the resident, the landlord repeated that it had added soft closures to her kitchen cupboards and sound proofing to the neighbour’s bedroom wall and that since neither have fully resolved the situation, mediation would appear the best solution. The landlord added that the resident could also apply for a mutual exchange and the landlord would help with this. The resident responded that she had already applied for a mutual exchange and highlighted that there had not been any issues with the previous neighbour. She stated that she would only make contact with the landlord to report noise issues, but that it would be for recording purposes only.
Following a noise report from the neighbour on 11 February 2022, the landlord telephoned the resident to ask her to be mindful of the noise as her neighbour was not feeling well. She later confirmed her response via email and explained that she was also feeling unwell as she had just been discharged from hospital and that she was not making any noise.
The resident made a counter accusation against the neighbour, whom she alleged was shouting and swearing. The landlord contacted the neighbour about this who confirmed that he had heard the banging from her property and explained that he had shouted as he was frustrated.
On 22 February 2022, the landlord responded to the resident’s further reports of noise nuisance and added that it had not received a response regarding its suggestion of mediation. It added that it had received counter complaints from the neighbour and that it had not been able to gather enough evidence on either side to enable it to take any other action. It confirmed that it had logged the recent noise complaints and urged the resident to consider mediation.
Later that day, the resident submitted a formal complaint via the landlord’s online form. She stated that she had experienced ASB and harassment from her next-door neighbour since December 2020. She explained that:
1. The neighbour banged on the wall whenever she made a noise and that the landlord had only offered mediation.
2. Environmental health had proven that she was not committing ASB, but that they had not considered if the neighbour was.
3. The neighbour had sent her nasty letters, which included an attack on her character.
4. She felt harassed by the landlord after it had telephoned her two weeks earlier regarding a noise complaint, even though she had just been discharged from hospital.
5. It was unreasonable to ask her to be quiet during the day in her own home.
6. It had affected her mental and physical health.
7. The landlord had added soft closures to her kitchen cupboards and sound proofing to her neighbour’s bedroom wall, so as to satisfy him, but had done nothing to help her.
The landlord responded to her complaint on 10 March 2022. It apologised for the delay in responding and stated that it understood her complaint to be:
1. Her neighbour bangs on her wall if she makes a noise.
2. She had received nasty letters from the neighbour and reported these to the police.
3. She felt the landlord was harassing her by contacting her when it received a noise complaint from the neighbour.
4. That she feels forced to get a restraining order against the neighbour.
The landlord confirmed that it had reviewed all the relevant information and acknowledged that there had been complaints from both parties. It added that soft closures had been added to her kitchen cupboards and soundproofing in the neighbour’s property as a way of minimising the impact from any noise. It reassured the resident that when a complaint was received from either party, the landlord had made contact with the other party to discuss the complaint. It repeated that mediation had been offered but declined.
The landlord confirmed that environmental health had investigated the noise complaints from both the resident and the neighbour and advised that the reported noise did not amount to a statutory noise nuisance. It added that it had asked for noise monitors to be installed in both properties, but that environmental health refused to do so as they did not believe it would be possible to identify exactly where the banging was coming from.
It concluded that it would like to meet with the resident to identify if there was anything else it could do to resolve the dispute.
The following day the resident escalated the complaint. She stated that the landlord had not responded to her complaint that it had harassed her, nor had it commented on the nasty letters that she had received. She added that the landlord’s response had also not mentioned that environmental health had proven that the only noise it could hear was movement in the kitchen during daylight hours. The landlord acknowledged the escalated complaint on 14 March 2022, and advised that it would respond within 20 working days.
The landlord responded at stage two on 30 March 2022. It confirmed that it understood the resident had escalated the complaint as she felt the landlord had not responded to the following points:
1. Evidence collected by environmental health demonstrated that there was low level noise during daytime hours.
2. Deliberate acts, threats, and nasty letters that she had been a victim of.
3. Harassment from the landlord in respect of noise complaints by the neighbour.
The landlord confirmed that its stage one response addressed the interaction with environmental health and that it had established that there had been no statutory noise nuisance from either property. It added that the response had also set out the steps that the landlord had taken in order to mitigate against noise transference.
In relation to the second point, the landlord explained that it understood the matter had been investigated by the police, but that it had not been able to take action due to a lack of evidence. The landlord added that it had seen two letters, dated December 2020 and January 2021, neither of which contained any anti-social content.
With regard point three, the landlord confirmed that its stage one response explained that it had received counter noise complaints from the neighbour. It added that where a complaint was received from one resident about another, it was reasonable to make contact with the party being complained about, in order to fully investigate the complaint and establish what further action may be needed.
The landlord acknowledged that its stage one response did not fully address point two but stated that it had dealt with the other points raised in an appropriate manner. In addition, it acknowledged that she felt the issues had impacted on her health and well-being but reiterated that it had taken all reasonable steps to resolve the matter.
The following day, the resident escalated the complaint to stage three of the landlord’s complaints process. She attached a copy of the letter that she alleged was sent by the neighbour and confirmed that she had given a copy to the police, who had stated that if it were to happen again, they would take a statement.
The landlord responded and apologised that in preparing its response at stage two it had not had sight of the letter the resident had provided earlier. It confirmed that having read the letter and noting that the neighbour had denied sending it, it had reached the same conclusion as the police, that in isolation and without proof of the sender, it was unable to take action against the neighbour. The landlord noted the resident’s request to escalate the complaint.
The landlord responded at stage three of the complaint’s process and confirmed that it had reviewed the response provided at stage one and two. It sympathised with her situation and repeated the actions that it had taken in order to resolve the situation. It added that it had not been able to determine, with any degree of certainty the level or source of the noise that the resident had been reporting.
It confirmed that it had offered to meet with the resident in order to further consider what else it could do to resolve the issues and explained that where there are complaints and counter complaints, the situation proved difficult to resolve but that it was willing to persevere in a bid to find a solution.

Post complaints process

In August 2022, environmental health sent the findings from the noise monitoring equipment that had been installed in the neighbour’s property. It stated that it could hear thudding/banging across the recordings and noted that there was normally always TV noise in the background. Environmental health was not able to establish where the noise was originating from.
The resident provided this Service with a copy of an email exchange between herself and the landlord from May 2023. In the email the resident stated that the neighbour deliberately banged his bin when he threw his rubbish away. The landlord viewed the video but did not concur with the resident’s description. It advised that it could not take action against the resident without evidence of antisocial behaviour.
In response to the resident’s application for rehousing, it stated that her application was in the process of being assessed.

Assessment and findings

Landlord’s policies and obligations

According to its statement on dealing with ASB, the landlord accepts the definition of ASB as defined by the Crime and Disorder Act 1998. It lists noise nuisance, including shouting and heavy footfalls amongst its examples of ASB.
Its policy states that it can use various tools and methods for dealing with ASB and that action taken will be proportional to the severity of the ASB.
The landlord’s antisocial behaviour enforcement policy and procedures sets out that it seeks a balanced approach to enforcement. It states that it will try to deal with low level anti-social behaviour or nuisance informally. The landlord will advise the person responsible about the complaint and set out what needs to happen in order to resolve it. When requested the landlord will send written confirmation of the behaviours that are considered unacceptable.
Section eight of the landlords ASB and enforcement policy and procedure states that all complaints of ASB and nuisance must be treated seriously and considered impartially, and details of action taken in response properly recorded at all stages. It further states that all ongoing complaints must be referred to the nuisance case management panel.
The procedure states that in the initial stages of an ASB case, the landlord should conduct an interview with the perpetrator and send a follow up warning letter.
The procedure also sets out that in some cases the landlord may interact with environmental health, for example in relation to noise nuisance.
The landlord operates a three stage complaints process. Its policy does not give a timescale for responding to stage one complaints, but it states that it will respond at stage two and stage three within 20 working days.

The landlord’s handling of the resident’s reports of noise nuisance

This Service has seen evidence of the resident’s noise complaints against her neighbour and his counter complaints. It is clear that there was an issue of noise transference between the two properties, which affected both the resident and the neighbour and that the issues escalated as time progressed.
The landlord has shown that in May 2021, it arranged for noise monitoring equipment to be installed in the neighbour’s property. However, the results were inconclusive. In August 2021, it identified possible sources of the noise from the resident’s property and detailed repairs needed in order to address the noise. It is not obvious to this Service whether the repairs were carried out.
Nevertheless, the noise complaints appeared to subside between August 2021 and November 2021.
Between November 2021 and 22 February 2022, when the resident submitted a formal complaint in relation to the landlord’s handling of her noise complaints, the resident reported several incidents of loud banging and shouting emanating from her neighbour’s property, which the landlord advised it would investigate.
This Service acknowledges that the landlord kept in regular contact with the resident regarding her noise complaints and responded promptly to her emails.
It also acknowledged that the landlord installed soundproofing on the neighbour’s bedroom wall and soft closures on the resident’s kitchen cupboards between the properties and offered mediation to both parties. This was a reasonable and appropriate means of reducing noise transference between the properties and would support the rebuilding of neighbourly relations and coming to a local agreement to resolve the matter. The landlord gave appropriate advice around the use of mediation services and explained that the parties did not have to be in the same room for the mediation to take place. This demonstrated good practice and showed that the landlord was seeking to manage expectations and engage both parties in the process.
It would also have been appropriate for the landlord to have requested that the resident keep a record of the noise, including a description of it and the time it was taking place. The landlord failed to do this and failed to develop a clear action plan and consequently the resident did not know what to expect.
The landlord has not evidenced how it investigated the resident’s noise complaints and has failed to provide this Service with its records of action taken. It is not clear to this Service if the action taken in respect of the resident’s noise complaints were recorded at every stage, as required in its enforcement policy and procedures, or if its records amount to the emails between itself and the resident. In addition, the landlord’s enforcement policy states that ongoing complaints must be referred to the nuisance case management panel. It is not clear if the landlord followed this process. This Service finds that the landlord has failed to adhere to its own policy and procedure.
Whilst the landlord insisted that it was impartial and keen to find a resolution to the noise dispute, the resident insisted that as far as she could tell, the action taken by the landlord favoured the neighbour in so far as the soundproofing, and soft closures on her kitchen cupboards had been added for his benefit and not hers. She explained that she had taken steps to change the way she lived in her home by moving her kettle and coffee machine into her bedroom so as not to disturb the neighbour. Due to the landlord’s lack of clarity around the action it took when the resident raised a noise complaint, this Service understands that the resident perceived the landlord to have favoured the other party.
The landlord reassured the resident that when it had received a noise complaint, it had made contact with the alleged perpetrator to request that they are mindful of the noise being made. This Service has seen some communication from the landlord stating that it had spoken with the neighbour, but it has not seen any record of dates when contact had been made or exactly what was discussed. It is vital that landlord’s keep good and clear records of all contact made and details of the conversations that took place including any actions that may have been taken. This will ensure the landlord has a good audit trail of evidence, if required.
The landlord added that environmental health did not find any evidence to support statutory noise nuisance, and therefore it was limited in the actions it could take. It explained that it had received counter noise complaints from her neighbour, which it said it was obliged to investigate. This was an appropriate and reasonable response.
The landlord questioned the resident about her actions in respect of her neighbour and telephoned her in direct response to the neighbour’s noise complaints. The resident stated that she felt harassed by the landlord. Whilst this Service accepts that it was appropriate for the landlord to make contact with the resident in relation to her neighbour’s counter complaints. It did not make clear to the resident what action it was taking in regards her noise complaints or how it had investigated her complaints of the neighbour banging on her wall. Therefore, the resident perceived the landlord’s action to be one-sided and in favour of her neighbour.
Contacting an alleged perpetrator of ASB to discuss the complaints against them is an opportunity for the landlord to make them aware of the situation and get them to agree to cease the behaviour that is causing a nuisance, where appropriate. Further, identifying and developing an action plan in response to noise reports helps manage a resident’s expectations about what action the landlord can take to tackle the issues. The landlord failed to actively communicate this. It was apparent that there was an element of noise transference between the properties that had been identified . Works undertaken, did not appear to make a significant impact upon the level of transference. It would have been reasonable for the landlord to revisit this issue and assess the structure and fabric of the building to establish if any further measures or improvement could be undertaken.
This Service acknowledges that both the resident and her neighbour made noise complaints against each other, and the landlord sought to resolve the complaints in an impartial way. The landlord had previously sought advice from the environmental health team with regard the noise and it concluded that the noise did not meet the threshold to be considered a statutory noise nuisance, and therefore it was limited in the action it could take. It was appropriate for the landlord to make adjustments to the resident’s and the neighbour’s properties in a bid to minimise the noise transference and it was also appropriate for the landlord to offer mediation. However, by not recording how it was investigating the resident’s complaints and by not developing an action plan, it failed in its service delivery. This Service therefore finds a service failure in the landlord’s handling of the residents reports of ASB and noise nuisance. As set out in the Spotlight on noise report, this Service recommends that where a noise report does not meet the statutory threshold, a landlord should adopt a proactive good neighbourhood management strategy, which is distinct to the ASB policy, with clear option for maintaining good neighbourhood relationships. An order has been made in respect of this.

The landlord’s record keeping.

The landlord has provided copies of emails between itself and the resident which provide a good indication of the events that took place. Although this Service was still able to determine this case using the information that was available, it is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. When we investigate a complaint, this Service will ask for the landlord’s records. If there is disputed evidence and no audit trail, this Service may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. It is therefore recommended that the landlord conduct a review of its record keeping processes, ensuring that there is a clear audit trail for interactions with its residents, detailing specifically when contact was made, what was said and what the agreed next steps and expectations were.
The Ombudsman’s spotlight report on knowledge and information management published in May 2023, provides useful recommendations for handling and recording data and information, and this Service recommends that the landlord reviews its record keeping in line with this report.
The lack of detailed records showing investigations that took place and actions required indicates poor record keeping by the landlord. Consequently, there was a service failure in the landlord’s record keeping.

The landlord’s complaint handling

The Ombudsman’s complaint handling code (the Code) advises that landlord’s should operate a two stage complaints process to ensure that the complaints process is not unnecessarily long. Landlords operating a three stage complaints process must set out their reasons for this as part of its complaints handling self-assessment and publish this on its website.
In addition, landlords are expected to respond to all points raised in the complaint and provide clear reasons for decisions. It is imperative that where something has gone wrong, the landlord must acknowledge this and set out the actions it intends to take to put it right.
The landlord operates a three stage complaints process, which does not comply with the Ombudsman’s complaint handling code. In addition, in its response to the resident at stage one, it failed to address all parts of her complaint.
In responding at stage two, the landlord acknowledged that it had not fully addressed all elements of the complaint at stage one but failed to apologise for this mistake. It would have been appropriate for the landlord to apologise for this mistake and in not doing so it failed to operate an effective dispute process and failed to offer any form of redress for its error. This Service therefore finds a service failure in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the residents reports of ASB and noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s record keeping.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s complaint handling.

Reasons

The landlord failed to develop an action plan for responding to the reports of ASB and was therefore unable to handle the noise complaints in an effective and evidenced way. The landlord failed to communicate how it was investigating the resident’s noise complaints and focused upon contact regarding counter allegations made.
The landlord failed to demonstrate that it kept a clear record of all the actions and investigations carried out in respect of the noise complaints.
The landlord failed to respond to respond to the resident’s complaint in full. Whilst it later acknowledged this failing, it did not offer any form of redress.

Orders and recommendations

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Issue a letter of apology to the resident, from an appropriate member of the senior leadership team for the failings highlighted in this report.
2. Clearly explain to the resident, in writing, the actions it can take in respect of her noise complaints.
3. Assess the resident’s application for rehousing, if not already done so. If appropriate explain the rehousing process to the resident.
4. Pay the resident a total of £300, which includes:
  1. £150 for its failure to keep full records when handling the resident’s reports of noise.
  2. £150 for failing to fully respond to the resident’s complaint at stage one.
Within eight weeks of the date of this report, Self-assess against the Ombudsman’s spotlight on noise complaints report and demonstrate to this Service how it will comply with the recommendations in the report.
Provide this Service with evidence of compliance with the above orders.

Recommendations

Self-assess against the Ombudsman’s complaint handling code and publish the results of the self-assessment on its website, if it has not already done so.
The Landlord should consider updating its ASB policy and procedure in light of the Crime and Policing Act 2014.