East Midlands Housing Group Limited (202108432)

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REPORT

COMPLAINT 202108432

East Midlands Housing Group Limited

15 October 2021

 

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

  1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

Background and summary of events

  1. The resident is a tenant of the landlord. Her reports of ASB concerned a neighbour who lived above her, and had not long moved into the building.
  2. On 9 June 2020 the resident reported that there was constant banging and shouting late at night from her neighbour’s property. She said she had been completing diary sheets and would send them to the landlord (it is unclear whether the landlord asked her to complete these beforehand). The landlord completed a risk assessment.
  3. On 10 June 2020 the landlord sent the neighbour a letter advising it had received ASB reports. The landlord’s records show it also spoke to the local authority on 1 July. The local authority confirmed it had also received similar reports from the resident. The local authority said the resident had sent in recordings, but it had not detected ASB in them.
  4. On 27 July 2020 the resident reported that her neighbour’s partner had scratched her car, and had threatened to kill her. She said she reported the incident to the police, who offered victim support, but said they would not take further action. On 3 August the landlord sent the resident a letter. It said it had reported her concerns to the police. It said it had also written to the neighbour warning that their behaviour needed to stop, or it would begin legal proceedings. It provided a diary log and asked the resident to record further incidents. It said she could contact a mediator to help resolve the neighbour dispute, and provided contact details.
  5. On 18 August 2020 the resident reported that her neighbour had been slamming doors in the early hours of that morning. She made a similar report the following day. The landlord contacted the neighbour to discuss the report. The landlord’s records show that on 24 August 2020 it advised the resident it had requested sound recording equipment for her flat. It is unclear when, or if this happened.
  6. On 30 September 2020 the landlord advised the resident that the neighbour’s partner had left the property. The resident said there had not been any noise since they left.
  7. On 21, 23, 26 and 30 October 2020 the resident reported noise disturbances from the neighbour’s flat. She provided videos. The landlord called the neighbour on 28 October 2020, and gave them an official warning.
  8. The resident sent the landlord a video on 3 November 2020 as evidence of the disturbances. The landlord sent the neighbour an acceptable behaviour contract (ABC, a voluntary written agreement which is signed by an individual committing anti-social behaviour. In signing the contract, the individual is agreeing to abide by the terms specified and to work with the relevant support agencies) on 9 November 2020. It is unclear when they signed this.
  9. The landlord called the resident on 9 December 2020. She said the neighbour had been quiet.
  10. On 11 January 2021 the resident reported the neighbour had a party on 8 January which kept her awake during the night. She reported disturbances on 15 January (shouting and banging on the floors), and provided a video.The landlord called the resident that day. Its records showshe explained the disturbances were only at the weekends. The landlord advised it would contact the local authority to enquire about a community protection warning, but would not seek possession at this stage(ACPW is a formal warning notice issued by local authorities telling ASB perpetrators to do, or stop doing something, or take reasonable steps to achieve a specified result. These warnings and notices can have formal and legal consequences if not complied with).
  11. On 20 January 2021 the landlord contacted the local authority to ask for its help by issuing the neighbour a CPW. The local authority confirmed with the landlord on 25 January that it would issue a “first warning letter for CPW”.
  12. The resident informed the landlord on 3 February 2021 that the local authority had told her it would not issue a “CPO” (this is understood to be the community protection warning and notice).
  13. The landlord called the resident on 11 February 2021. Its records show the resident said it now needed to evict the neighbour. The landlord explained its ASB process, and said it required evidence to warrant an eviction. It said it did not have the power to issue a CPW, and that the local authority or police did. The resident said she had been woken up by the neighbour from 9am to 10am in the morning (it is unclear when) with footsteps and banging doors. The landlord said the noise did not appear unreasonable as it was general living noise. The landlord agreed to contact the resident every two weeks for updates.
  14. The resident raised a formal complaint to the landlord on 11 February 2021 (it is unclear whether this was before or after the above telephone conversation). She said the local authority should have issued a “CPN warning letter” to the neighbour. She said the landlord had advised her that as the neighbour had broken their ABC, “the next stage was to get eviction or do a CPN warning then notice”. She said the landlord spoke to the local authority who agreed to issue a CPN, but when the resident herself spoke to the local authority it said it did not get involved with CPNs or evictions, as it was the landlord’s responsibility. She said her housing officer did not follow the correct procedure for handling ASB. She said she had provided the landlord evidence of the ASB (parties, shouting, screaming, thumping on the floors). She said the landlord needed to evict the neighbour for breaching their tenancy agreement.
  15. On 2 and 3 March 2021 the resident sent the landlord videos of the neighbour “jumping shouting and slamming doors”. The landlord advised the resident on 5 March that the noise did not constitute a statutory noise nuisance as it was noise from day to day living. The resident sent another video on 9 March.
  16. The landlord issued its stage one complaint response on 11 March 2021. It apologised for its delayed response. It said it had not identified a statutory noise nuisance from the videos the resident provided, and would not take further action in relation to her reports. It said eviction was its last resort for dealing with ASB following a clear escalation process. It signposted her to its ASB policy and procedure. It said it had contacted the local authority, as it had statutory powers to issue penalty notices such as CPWs. It said the local authority confirmed it would be in touch regarding a CPW, and that the neighbour had received communications from it. It concluded by explaining how the resident could escalate her complaint if she remained dissatisfied.
  17. The resident escalated her complaint on 24 March 2021. She asked it to provide a copy of its ASB policy. She said the local authority confirmed with her that the landlord had not contacted it regarding her ASB case. She disputed that the landlord had not identified a noise nuisance from her videos. She asked it to suggest other ways she could evidence the disturbances. She said she did not believe it was following the steps required to deal with her ASB case effectively. She asked it to consider the seriousness of her complaint, and provide a clear plan of how it intended to resolve the issue.
  18. On 26 April 2021 the resident reported further ASB to the landlord and provided videos. The landlord emailed her on 29 April and asked how she wanted to proceed with the ASB case, as it needed to agree an action plan with her. The landlord also left the resident a voicemail asking her to make contact.
  19. The landlord issued its stage two complaint response on 10 May 2021. It provided a detailed breakdown of the actions it had taken since it opened the ASB case in June 2020. For example, it said it carried out risk assessments, contacted the resident, and neighbour throughout 2020. It said in January 2021 the local authority agreed to contact the neighbour, and then decided not to pursue a CPW. It said when the resident made further reports in April 2021, it left her messages asking to contact it and discuss. It said her ASB case remained open. It said it had kept in regular contact with the resident, and taken many actions to resolve the ASB. It said it had reviewed the evidence she provided but did not detect a noise nuisance. It concluded by explaining how the resident could refer her complaint to this Service if she remained dissatisfied
  20. On 16 June 2021 the resident advised the landlord that the ASB was ongoing. It is understood that the neighbour left their property in either July or August.

Assessment and findings

  1. In the resident’s stage one complaint she referred to her dissatisfaction with the local authority’s decision not to pursue a CPN with the neighbour. In accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which concern the actions of a local authority when they are not acting in their capacity as a social landlord, because such actions are the remit of the Local Government and Social Care Ombudsman (LGSCO). This assessment will therefore only focus on the landlord’s actions in terms of the resident’s reports of ASB. Any complaints about the local authority’s actions would need to be raised with it first, and then potentially with the LGSCO.
  2. The landlord’s ASB policy sets out that it considers unreasonable noise to be ASB. It clarifies that everyday living noises are not ASB. Examples of non-legal remedies the landlord can take to resolve ASB include mediation, warning letters, and ABCs. It will consider legal action when appropriate and proportionate to do so. It will work in partnership with the local authority and police. Its ASB procedure sets out that when a resident reports ASB, it will interview the complainant, and then the alleged perpetrator. It will then determine the most appropriate course of action. It will continue to monitor the case and make proactive contact with the complainant.
  3. The resident began reporting ASB in June 2020. On 27 July 2020 she reported that her neighbour’s partner had threatened to kill her, and vandalised her car. She said the police were not taking further action, but had offered victim support. The landlord wrote to her on 3 August 2020. It said it had reported the incidents to the police, contacted the neighbour, advised her to record further incidents, and suggested a mediator. As the police had said they would not pursue the matter, and had already offered victim support, the landlord’s actions were proportionate to the issues reported. It was reasonable for it to encourage the resident to continue reporting ASB as it would need this type of evidence to justify it taking further action if necessary. It was also reasonable to suggest a mediator, as this was in line with its ASB policy.
  4. The evidence shows the resident made two further reports of noise disturbances in August 2020, and none in September. She made four reports in October which prompted the landlord to give the neighbour a verbal warning. The resident made a similar report on 3 November, and the landlord issued the neighbour an ABC on 9 November. The resident did not report ASB throughout December. She reported disturbances on 11 and 15 January 2021, and the landlord made an enquiry with the local authority.
  5. The landlord took prompt and proportionate actions in response to the resident’s reports. It was reasonable for it to liaise with the local authority, as its ASB policy encourages it to do so. Despite the local authority’s decision not to pursue a CPW, the landlord continued to review the resident’s recordings. It advised her that it had not detected statutory noise nuisances, and would not take further action. Given that the landlord had not identified ASB, its decision not to take further action against the neighbour was understandable and appropriate. Its decision was also in line with its ASB policy which sets out that general living noises are not examples of ASB, and that is primarily what the landlord had identified the noises to be, based on the resident’s evidence.
  6. The landlord considered installing noise recording equipment in the resident’s property in August 2020. It remains unclear whether this happened or not. Nonetheless, given that the evidence shows the noise reports were not predictable or following a pattern (e.g. some in August, and none in September) this would not have necessarily been the most effective approach to record the intermittent disturbances, as the equipment would have been in place for a set and limited period.
  7. In the resident’s stage one complaint she said the landlord needed to evict the neighbour. It stands to reason that before a landlord can consider an eviction it needs to have exhausted all other options, and gathered sufficient evidence. The landlord said it was not considering an eviction on 11 January, 11 February, and in its stage one response on 11 March 2021. It successfully managed the resident’s expectations. The landlord’s explanation was in line with the it ASB policy which sets out that legal action is its last resort. Also, as explained above, the landlord was unable to identify ASB from the recordings provided by the resident. Therefore, its decision not to consider an eviction was reasonable as it had not been presented with evidence which would warrant such action.
  8. Although the disturbances would have undoubtedly been frustrating and inconvenient for the resident, in the circumstances of this complaint, the landlord’s responses and actions were reasonable and proportionate.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the complaint.

Reasons

  1. The landlord took reasonable, and proportionate steps to address the resident’s reports of ASB.