Bolton at Home Limited (202220854)

REPORT

COMPLAINT 202220854

Bolton at Home Limited

26 March 2024

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 way the landlord responded to the resident’s:
1. Reports of noise nuisance;
2. Complaint.

Background and summary of events

The resident lives in a 1 bedroom flat and is a tenant of the landlord. His tenancy began in March 2011 and he has vulnerabilities about which the landlord is aware. The resident is recorded as having autism and mental health needs, for which he is receiving community support.
The records do not state how long the resident had been reporting noise from his neighbour’s property. However, on 6 April 2021, the landlord sent the neighbour a letter about noise reports the resident had made. It asked the recipient to take “practical and sensible steps to address this concern”.
On 18 April 2021, the resident contacted the landlord to report noise nuisance. He said that his neighbour and a friend had been talking loudly from 8pm to 1am. As a response, the landlord opened an antisocial behaviour (ASB) case. It contacted the resident on 22 April 2021 to conduct an initial interview, to complete a risk assessment and agree an action plan. The landlord asked him to keep a diary of any incidents of ASB and noise nuisance that affected him.
Between April and June 2021 the resident made further reports of noise disturbances from his neighbour’s property. These included loud music, the TV at full volume, “bumps and thumps in the morning” and someone making dog barking noises. On 29 April 2021, the resident told the landlord about “bumps and bangs” that had woken him up. He said the noise was disturbing his sleep.
The landlord installed noise recording equipment in the resident’s property from 16 to 22 July 2021. On 30 July 2021, the landlord reviewed the noise recordings and made a report of the noise the equipment had picked up. This included water running, footsteps on stairs, “several seconds of music”, traffic noise, “bump” noises that were possibly doors and the resident moving around in his own property. The landlord sent the resident a letter on 3 August 2021 to say that there was insufficient evidence on the recordings and that, as a result, it would close his ASB case. The landlord has not provided any record of further noise nuisance reports between August 2021 and October 2022.
On 17 October 2022, the resident’s support worker sent the landlord a stage 1 complaint on his behalf. It stated that:
1. The resident had ongoing issues with his neighbour;
2. In April 2022, he and his neighbour had taken part in mediation. However, they had broken the majority of the agreements and the relationship had worsened;
3. He had raised this with the landlord’s ASB team but was told there was nothing further it could do;
4. The situation was causing him “great distress” and he was suffering with his mental health;
5. He had been given no other option but to move out, which was not an acceptable resolution.
The landlord acknowledged the complaint on 18 October 2022 and sent its stage 1 response on 31 October 2022. This stated that:
1. It had opened an ASB case after receiving a report of loud music. It had then spoken to his neighbour about this.
2. Since then, he had made repeated allegations, which the neighbour denied. Because of this, it had fitted a digital audio tape (DAT) recorder in his property.
3. Although some “bumps and bangs” could be heard, this constituted household noise rather than a statutory noise nuisance.
4. Mediation was the only resolution available, which both parties had agreed to. Although an agreement was reached, it had since broken down. It explained that a mediation agreement was a voluntary, non-legally binding contract. The only option would be for both parties to go back to mediation and enter into a new voluntary agreement.
5. It was unable to identify a failure in its service and there was no credible evidence to enable it to pursue any formal action against his neighbour.
On 6 December 2022 the resident contacted the Ombudsman to report that he was having issues with his neighbour and that he was not receiving support from the landlord. Following our advice on how he could escalate his complaint, his support worker wrote to the landlord on 19 December 2022. She stated that:
1. Although he was still waiting on his “second chance” at mediation with his neighbour, the landlord had done nothing in the meantime about the noise nuisance and ASB.
2. The resident wished to escalate his complaint to stage 2 and be informed by post, phone, or through his support worker, that this was in progress.
The landlord acknowledged the resident’s stage 2 complaint on 20 December 2022. On 24 January 2023 it wrote to the support worker to explain it needed more time to provide a response. On 3 February 2023, it issued its stage 2 response, which stated that:
1. Since November 2022, it had received no further reports from the resident of noise nuisance from his neighbour.
2. It had reviewed the ASB case and found that the noise reports were taken seriously and investigated in line with its ASB procedures. It said it had:
  1. Advised him on the ASB process and issued him with diary sheets to record incidents;
  2. Regularly communicated with the resident and his support services;
  3. Spoken to his neighbour to make them aware of the issue and sent them a “polite noise letter”;
  4. Spoken to other residents to ask if they had experienced any noise nuisance;
  5. Installed a DAT recorder in the resident’s property to gather evidence of any noise that would constitute ASB;
  6. Referred the resident and his neighbour for mediation;
  7. Explored rehousing options with the resident.
3. Following the installation of the audio equipment, it was noted that the level and frequency of noise was deemed to be “normal household noise” experienced within a communal building.
4. There had been no noise complaints from other residents in the building about his neighbour.
5. Although it had initially failed, mediation had been reconsidered and reoffered as a resolution.
6. It was aware the resident had vulnerabilities and that he could have a sensitivity to noise. It did not have access to funding to adapt the property with soundproofing. However, his support worker could advise him on whether there was any further support available.
7. The resident may benefit from a move to “non-communal accommodation” and its home finder team could advise on rehousing options if he wished to consider this.
8. The resident was being supported by both mental health and adult autism services. If his accommodation presented a risk to his health, those services would need to provide supporting evidence to enable a management move.
The resident contacted the Ombudsman on 26 May 2023 to say he had received the landlord’s stage 2 response. He stated that the landlord had done “nothing to help” with the noise nuisance and ASB.

Assessment and findings

The landlord’s policies and procedures

The tenancy agreement states that residents must make sure no member of their household or any of their visitors cause a nuisance or annoyance or general inconvenience to neighbours. Furthermore, the agreement says that residents must not create any noise so loudly that it causes a nuisance to neighbours.
The landlord’s Anti-Social Behaviour (ASB) policy states that the landlord must complete an action plan with the resident. The action plan ensures the resident fully understands what will happen next and what is expected of them, ensuring expectations are managed. This must include a commitment from the landlord to contact the resident on a regular basis to monitor the success of the interventions. It states that it must complete a risk assessment matrix (RAM) for every reporter in an ASB case, at the initial interview stage. The purpose of the RAM is to assess the vulnerability of a reporter of ASB and, depending on the vulnerability score, access appropriate specialist support. The policy also states that, once the resident has been interviewed, the landlord should send a letter to the alleged perpetrator within 5 working days, inviting them to attend an investigatory interview.

Scope of investigation

The resident has stated that his mental health had been negatively impacted by the noise disturbance he had experienced. The resident’s comments regarding his health are noted, and are not disputed. However, the Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process. They are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim.
It is suggested from the records that there has been an ongoing history of noise reports from the resident about her neighbour. The Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment has focused on the period from April 2021 onwards. This is when the evidence shows the resident made reports of noise nuisance that led to him raise a stage 1 complaint.

The resident’s reports of noise nuisance

It is acknowledged that the noise the resident has reported has had a profound impact on him. However, when considering complaints relating to noise and ASB, it is not the role of the Service to reach a decision on whether they have occurred. Instead, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.
It is relevant to acknowledge that ASB cases involving reports and counter-allegations over an extended period of time, sometimes with limited or no corroborating evidence, can be among the most difficult for a landlord to manage. This is not the fault of any party, but it is important our assessment of the landlord’s actions recognises this fact.
The records show that the landlord uses a dedicated electronic system, called ReACT, for the recording, tracking and monitoring of ASB cases. The landlord did not provide the Service with a copy of its risk assessment. However, there is evidence from its electronic records to show that it completed one on 22 April 2021, during its initial interview with the resident. The evidence also shows that the landlord had been liaising with the resident’s support services. There is a record of correspondence between the landlord and a local adult autism service from 5 May 2021 that states that the resident had been referred to their service and was waiting to be assigned a case worker. It is positive to note the landlord was also in regular contact with the resident’s mental health support worker. It is noted that that the landlord had reviewed its risk assessment matrix on 4 June 2021, 15 July 2021 and 3 August 2021, as part of its action plan. The evidence shows that the landlord acted reasonably in terms of assessing and monitoring the risk to the resident.
It is noted that on 22 April 2021 the landlord had agreed an action plan with the resident. The actions recorded on the landlord’s electronic system were as follows:
1. The landlord asked the resident to keep a diary for a week to assist with evidence gathering.
2. The landlord to write letter to the resident’s neighbour, to make her aware of the noise issue.
3. The landlord to contact the resident again on 29 April 2021.
Although the evidence shows the landlord contacted the resident 29 April 2021, as agreed, there is no indication it had written to the neighbour, or made any contact with her following the resident’s reports. The landlord’s policy states that the landlord should send a letter to the alleged perpetrator within 5 working days, inviting her for an interview. There is no evidence the landlord had done this or that it had explained the reason for this omission in its case notes. However, the records show that the landlord had written to the neighbour on 6 April 2021, following reports from the resident about loud music. It is evident therefore that the landlord had previously made the neighbour aware of the resident’s concerns about noise.
The records show that from when it had opened the ASB case on 22 April 2021 to when it closed it in August 2021 the landlord did not visit or contact the resident’s neighbour regarding the noise disturbance reports. However, there is a record of a telephone conversation between the landlord and resident from 4 May 2021.During the conversation, the resident informed it that he had been woken at around 9.30am by a “thump” on the floor of his flat, which he believed was his neighbour “banging a hard object against the ceiling”. When the landlord had asked him to clarify further, he said that sometimes he did not know the source of the noise, and that it was not persistent but it was regular. In response, the landlord advised that the evidence was not sufficient to approach his neighbour. There is also evidence that the landlord had offered to contact the resident’s neighbour but that, fearing repercussions, the resident had asked it not to. The landlord’s response was reasonable in the circumstances and the evidence shows that a clear explanation was provided to the resident.
The landlord’s ASB policy states that incident diaries should not be issued lightly as they can give a resident false hopes if issued in cases where subsequent action is unlikely. Incident diaries should only be issued once the landlord is confident the resident is experiencing ASB. It adds that the landlord should consider issuing incident diaries to residents if the ASB continues following the first interview, when it has had the opportunity to speak to both parties.
The Ombudsman’s Spotlight Report on Noise Complaints, published in October 2022, states that being clear on how a noise report will be handled can only aid good communication and expectation management. It will avoid the perception felt by many residents that they kept endless diary records for no purpose or outcome.
The evidence shows that, on 22 April 2021, the landlord had asked the resident to keep diary sheets. Although the records suggest he had been keeping a diary between April and July 2021, the landlord had only provided copies of 5 sheets completed by the resident, and these were all dated from July 2021. It is therefore unclear how many diary sheets the resident had completed in total. The period over which the landlord asked the resident to complete diary sheets was not excessive. It was reasonable that, when it was unable to corroborate the noise nuisance the resident had been reporting, it acted promptly in arranging for sound recording equipment to be installed.
However, there is nothing to indicate the landlord had explained to the resident the purpose of completing diary sheets or what actions it was able to take as a result of the information he was providing. It is important that landlords take steps to manage expectations, especially when asking them to complete a diary that relates to noise nuisance. It should be clear that diary sheets alone cannot be used as evidence of noise nuisance. It should also explain the limitations of evidence from diary sheets, and that they should be used in conjunction with other means of evidence gathering, such as noise apps or third party witness statements.
It is noted that the landlord departed from its policy when it asked the resident to complete diary sheets at the initial interview stage. There is no indication it was ‘confident’ he was experiencing ASB when it issued them. In addition, there is no evidence the landlord had spoken to both parties before asking the resident to keep a diary. That the landlord failed to reasonably consider its policy’s guidance prior to issuing diary sheets shows it did not fully manage the resident’s expectations, which was a shortcoming.
The landlord told the resident on 19 May 2021 that it was “looking at installing” noise recording equipment. It is evident the equipment was in situ from 16 to 22 July 2021. Although it took around 2 months for the landlord to install the equipment, the records show that the delay was caused by lack of availability at the time. This was therefore beyond the landlord’s control. It is noted that the landlord installed the equipment shortly after it became available, and as soon as was practicable. It was also appropriate that the landlord reviewed the audio recordings in a timely manner. In addition, the evidence shows the landlord had also spoken to other neighbours as part of its evidence gathering, which was appropriate. The records show that, following its review of the recordings, it had not been able to document anything that would suggest statutory noise nuisance. It therefore acted reasonably when it wrote to the resident to inform him there was insufficient evidence to keep an ASB case open and to signpost him to mediation.
In terms of how it dealt with the reports of noise nuisance as an ASB case, the landlord has demonstrated that it had taken proportionate action. Although there were instances it had departed from its ASB policy, it followed correctly on the whole, and took reasonable steps in order to establish whether there was evidence of statutory noise nuisance.
The Ombudsman’s Spotlight Report recommends that, to handle noise reports that do not meet the statutory threshold, landlords should adopt a proactive good neighbourhood management strategy. This should be distinct to the ASB policy, with clear options for maintaining good neighbourhood relationships. It states that, this requires some landlords to recognise that noise transference is often the key issue, and address the implications of this. By doing so, landlords could stop escalating complaints into ASB and focus more on prevention.
It is acknowledged that the landlord was taking reasonable steps to try and establish whether there had been statutory noise nuisance, or a breach of tenancy. Once it had established that the noise was non-statutory, it acted appropriately by referring the resident and his neighbour for mediation. It is also positive to note that, when the initial agreement broke down, the landlord made a further offer of mediation. This demonstrates that the landlord was making efforts to improve the relationship between the resident and his neighbour as a way of resolving the noise issue.
The landlord acknowledged in its stage 2 response that the resident’s vulnerabilities may have indicated that he had a sensitivity to noise. This indicates it was aware that noise transference may have been an issue. However, it said it did not have funds to adapt the property with soundproofing. Although the Ombudsman accepts that landlords are not responsible for soundproofing homes above the standards applicable at the time of building, our Spotlight Report recommends that actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report.
There is no evidence the landlord had sufficiently considered how noise transference could be minimised. Although the noise may not have been caused deliberately, this does not lessen the impact it would have had on the resident. The landlord could have considered whether an OT assessment would be appropriate, or looked at whether there were any adjustments it could make that were more cost effective and less disruptive than installing soundproofing.
The landlord could have given the resident a more detailed explanation of what soundproofing a property would entail against the benefits of considering other options, such as a management move. This would have helped the resident make an informed decision on the options the landlord had offered. The landlord could also have explored, with the resident and his support worker, whether any funding was available for him to make his own alterations. The outcome may have concluded that no effective options were available or possible. Given the nature of his vulnerabilities, it would have been reasonable in the circumstances for the landlord to explore ways it could minimise the impact of noise transference on the resident. When investigating his reports, the landlord should reasonably have put greater emphasis on his sensitivity to the noise, even if it was deemed “general living noise”. That the landlord did not sufficiently take the issue of noise transference into account or provide any advice and support around helping the resident to manage it amounts to maladministration. The Ombudsman will make an order for the landlord to pay redress to the resident. This will be in line with our Remedies Guidance, and will recognise that the landlord failed to acknowledge its failings in respect of how it responded to the reports of noise nuisance.

Complaint

The landlord’s Customer Feedback (Complaint) Policy lists 2 complaint stages. It states that it will aim to respond to stage 1 complaints within 10 working days. It aims to acknowledge stage 2 complaints within 5 working days and provide a response within a further 15 working days. If it needs more time, it will contact the resident to explain why, and how much more time it will need. It intends to offer the resident a full response by not exceeding a further 10 working days.
The landlord responded to the resident’s stage 1 complaint within 10 working days, which was reasonable, and in line with its policy. The records show that the resident escalated his complaint on 12 December 2022. However, it was not until 3 February 2023 that the landlord issue a stage 2 response, which meant it took 31 working days for it to respond.
It is acknowledged that the landlord wrote to the resident on 24 January 2023 to provide an update and to explain why there was a delay. However, the evidence shows the landlord did not do this until 23 working days after the resident had escalated his complaint. It is acknowledged that the period of time between the escalation and complaint response included the Christmas and New Year holidays, which may have had some impact on service provision. However, the landlord should be sufficiently resourced in order to be able to provide a service that complies with its published timescales. Although the delay in its response was not excessive, the landlord failed to contact the resident once it was aware there would be a delay. It should have ensured that, as soon as it was aware it could not provide a response within its 15 working day timescale, that it let the resident know. The Ombudsman will order the landlord to issue an apology to the resident for its delayed communication.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s reports of noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the way the landlord responded to the resident’s complaint.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Pay the resident compensation of £200 in recognition of the distress and inconvenience caused as a result of its failure to ensure that it had adequately supported the resident with regard to noise transference. It is the Ombudsman’s position that compensation awarded by the Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears, where they exist;
2. Provide a written apology to the resident from a senior member of staff for the failures identified in this report, including its delay in providing a timely update about the progress of its stage 2 investigation;
3. The landlord should evidence compliance with these orders to the service within the timescales set out above.
Within 8 weeks of the date of this report:
1. The landlord to carry out a review on how it deals with complaints about non-statutory noise nuisance and consider any amendments it makes to the relevant policy and procedure against the recommendations made in the Ombudsman’s Spotlight Report. The landlord to report back to the Service with the outcome of its review.
2. The landlord is ordered to contact the resident to discuss if there is any advice or support it could provide in order to minimise any noise transference from neighbouring properties. Consideration should be given on any improvements or alterations the resident could make to ensure any noises from other properties are less acute. With the resident’s permission, the landlord may also consider liaising with his support worker to establish if there are any adjustments the landlord could make to minimise any distress caused by external noise. The landlord to report back to the Ombudsman the outcome of those discussions within the timescale as mentioned above.