Midland Heart Limited (202403828)

REPORT

COMPLAINT 202403828

Midland Heart Limited

26 September 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 landlord’s handling of the resident’s reports of noise nuisance.
This Service has also investigated the landlord’s complaint handling.

Background

The resident is an assured tenant of the landlord. The tenancy began on 20 October 2015. The property is a 2 bedroom, ground floor flat. The resident lives in the property with her son.
The resident first reported issues of noise nuisance from the flat above in 2018. This was investigated by the landlord in 2018/2019 and was mostly deemed to be “daily living noise”. The resident has told this Service that she approached her neighbour directly and they resolved the issues amicably between them. However, since then the landlord has changed its approach and it now looks to support residents to resolve noise issues.
The resident reported further noise from the flat above to the landlord on 1 February 2024. The landlord said it would speak to the neighbours above.
The resident raised a formal complaint with the landlord on 5 April 2024. She told the landlord that she had been signed off work and referred to mental health services due to the banging and noise from the upstairs neighbours. She said she was unable to stay at her flat and she spent most of her time with family. She said she had not received an update from the landlord and she did not feel that the landlord had taken her concerns seriously.
The landlord sent the resident a stage 1 complaint response on 2 May 2024. It said it had found that it had acted in accordance with its policies and procedures. It said it was working with the resident to enable it to take appropriate action based on the evidence provided. It confirmed it was taking the resident’s concerns seriously and said it would continue to work with her to address the ASB and noise nuisance concerns.
The landlord issued both the resident and her neighbour a tenancy warning on 13 May 2024, in relation to incidents of noise nuisance.
Following escalation to stage 2, the landlord sent the resident a stage 2 complaint response on 1 July 2024. It said whilst it accepted that there had been issues with noise from the neighbour’s home, it also had evidence of noise from the resident’s home. Whilst it understood the reasons, it had to be fair, and any action it took must be reasonable and proportionate. It therefore felt that the warnings issued were appropriate in the circumstances. It said it had not found any service failures in the way it had managed the noise case. However, it did acknowledge that there had been failures in its handling of the resident’s complaint and it offered £170 compensation.
The resident was dissatisfied with the landlord’s response, so referred her complaint to the Ombudsman.

Assessment and findings

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

It is not the role of this Service to establish whether the incidents reported by the resident have occurred or not. Our role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
The Housing Ombudsman’s Spotlight on noise complaints was published in October 2022. The report made 32 recommendations to landlords in relation to the prevention of and management of noise complaints that do not typically fall under the definition of ASB. One of the recommendations made was that a landlord should adopt a proactive good neighbourhood management strategy, distinct to the ASB policy. This was to ensure that “household” noise was not viewed through the lens of ASB, and resident’s expectations could be managed effectively whilst solutions were considered.
The resident contacted the landlord on 1 February 2024 to report noise nuisance from the neighbours in the flat above. She said she could hear banging on the floor (her ceiling) and noise from children running around. She told the landlord that she thought the neighbours had laminate flooring, which she believed was not permitted. She said the noise level was too much for her and her son, who had additional needs. The landlord said it would contact the resident in the flat above.
The resident contacted the landlord again on 2 February 2024 and 5 February 2024. She told the landlord that she was collecting evidence of the noise and she said she had submitted ‘noise app’recordings. The noise app is a digital support tool for residents to record instances of noise which are downloaded and sent directly to the landlord. The landlord opened a noise case on 6 February 2024.It would be reasonable to conclude, from the evidence provided, that the case was to be managed under its ASB policy. The landlord does not appear to have a separate policy or strategy to manage reports of household noise as recommended in the spotlight report on noise, referred to above.
The landlord spoke to the resident on 12 February 2024 and confirmed that it would contact the neighbour to discuss the noise concerns and the evidence provided by the resident. It said it would review the case on 26 February 2024. The landlord sent the neighbour a letter on 13 February 2024 advising them of the terms and conditions of their tenancy agreement. The landlord contacted the resident on 26 February 2024 to arrange a home visit on 14 March 2024. The visit was to discuss the noise concerns she had raised.
The resident contacted the landlord by telephone on 4 March 2024. She was very upset and said she could not take any more banging. She said it was disturbing her sleep and it was affecting her performance at work as she worked from home. She told the landlord that her GP had prescribed medication to help her sleep. The landlord said it would arrange to call the resident back within 24 hours to check in with her and to make further assurances that she was being listened to. It said it would also confirm the next steps in the case.
There is no evidence to suggest that the landlord called the resident back as promised. It did, however, send the resident an email. This was unreasonable as the resident had been expecting a call. An email did not give the resident the same opportunity to discuss the case or her concerns. The call back was also to “check in” with the resident. This suggests that the call handler was sufficiently concerned by how upset the resident was during the initial call. The email confirmed that the landlord had spoken to the neighbour about the obligations within their tenancy agreement. However, the landlord should have recognised at this point that the situation had the potential to escalate beyond household noise. It would have been reasonable for it to intervene and not wait until the next arranged visit.
The landlord visited the resident on 14 March 2024. This Service has not been provided with a file note or a transcript of the conversation that took place. However, the landlord has provided a copy of a follow up email sent to the resident. The email confirmed that the resident told the landlord the constant noise and banging from the upstairs neighbours was affecting both her mental and physical health. The resident had swapped her living room and bedroom around to avoid disturbance from the noise. The email confirmed it had escalated the case to another officer to manage going forward. It said it had opened a safeguarding case due to the resident’s health concerns. It also confirmed that it wanted to work with the resident and the neighbour to resolve the issues.
The landlord did not clarify or confirm in the email what it could realistically do about the noise considering it was mostly noise from laminate flooring and children in the property above. The lack of clarity and explanation of the limited options available was unfair and demonstrates that the landlord did not manage the resident’s expectations at an early stage and it created unreasonable expectations going forward.
Based on the resident’s response to the landlord it would be reasonable to conclude that the landlord had spoken to her about playing music following complaints from the neighbour. Although this was not confirmed in the follow up letter. The resident asked the landlord to confirm whether the neighbour was using the noise app to send recordings to the landlord. However, the landlord’s response was unclear and did not provide any clarity for the resident. The landlord missed an opportunity to confirm in writing, at an early stage, that it was not acceptable for the resident to play loud music even if it was to drown out the noise from the flat above.
On 18 March 2024 the landlord opened a safeguarding case in relation to the resident. This appears to follow on from the original noise case, and not run alongside it. Adult safeguarding is the protection of people who, because of care and support needs, may be more vulnerable to abuse or neglect. Within a safeguarding case it would be usual to see actions relating to safeguarding, such as a referral to the local authority, or specific actions taken to reduce the risk of abuse or neglect. However, this safeguarding case appeared to document the actions taken to manage the allegations of noise nuisance under the landlord’s ASB policy, which was confusing.
The landlord also opened another case in relation to the neighbour, in which they were the complainant against alleged noise from the resident. It would be reasonable to conclude, from the evidence provided, that the landlord was managing 2 cases where the parties were considered both a complainant and an alleged perpetrator. Both the resident and the neighbour were advised to make recordings of each other’s noise, and so both parties would have believed they were the complainant in the case. There is no evidence to suggest that it was made clear to each party that they were both also alleged perpetrators. This was unreasonable and unfair. This would have caused confusion and unfairly raised the expectations of both parties.
The resident contacted the landlord again on 20 March 2024. She asked it to contact her neighbour to ask them to stop the banging and running around. She said her son was unwell and she was trying to work from home. She also asked the landlord to contact her. The landlord responded by email and told the resident that the neighbour had been made aware that they were in breach of their tenancy (due to the laminate flooring). It confirmed that the case officer was aware of the events that had taken place that morning.
The case officer completed an initial case review on 21 March 2024. This Service has not been provided with the service standards for safeguarding cases. However, as the landlord had opened a safeguarding case, it would suggest that it had legitimate and sufficient safeguarding concerns in relation to the resident. Yet it took 5 working days, from the date it made the decision to open a safeguarding case, to complete the initial case review on 21 March 2024. This was unreasonable given that the very nature of a safeguarding concern would usually warrant urgent action.
The landlords ASB policy says it will agree an action plan that will be variable dependent on the circumstances, needs or risk of harm to the individual. It will ensure a method and frequency of communication is agreed with the customer and ensure all parties are kept up to date with the progress of any action being taken. However, the ASB case review that took place on 21 March 2024, by email, was not completed with, or agreed with, the resident. There was also no option available for the resident to request an amendment to the action plan that was devised by the case officer. The case officer decided the frequency of contact and when the next case review was due without the resident’s input. Therefore, the landlord did not act in accordance with its own ASB policy when it formulated an action plan and decided how often it would communicate with the resident. This was inappropriate in the circumstances and unfair to the resident.
The resident has told this Service that she did request that the landlord contact her by email as a preference. However, this was for recording purposes only. She was not against a telephone call if it was necessary for the purposes of progressing the case if the contact was followed up in writing.
The landlord’s case review email, sent to the resident on 21 March 2024, said it would work with the resident to obtain evidence to support a resolution. It said in some cases, legal action would be required, and this would involve attending court. However, there was no context to this statement. The landlord did not explain that it was unlikely that the resident’s case would progress to legal action due to the nature of the complaints. This was unreasonable and misleading. It set the conditions where the resident was given unreasonable expectations that legal action would be pursued at some point should there be no resolution.
The landlord’s ASB policy also says it will complete an initial risk assessment to assess the risk of harm to the complainant to determine the priority of the case. Although the landlord did complete a risk assessment on 21 March 2024, the evidence shows it was completed using information provided by the officer who dealt with the initial noise case. This meant that the information used was not current. As risk is generally fluid, to accurately assess the risk, the assessment should have been completed with the resident on 21 March 2024. Therefore, the landlord did not act in accordance with its ASB policy in how it assessed the risk to the resident. This was inappropriate in the circumstances and meant that the outcome was potentially inaccurate.
The landlord’s records show that the resident scored between 10 and 18 points and was assessed as a medium risk. However, the landlord has not provided any evidence to explain what this score means. There is no information on the risk assessment itself to suggest what steps a case worker should take in the event of a medium risk assessment. There is also no information on the file notes to clarify what actions were triggered as a result of the resident’s score. This was unreasonable. The score should indicate, or have a bearing on, the next steps within the case. It is also good practice to complete more than one risk assessment during a case to ensure a risk assessment is continuous (see Anti-social behaviour powers, statutory guidance for frontline professionals). This ensures that appropriate actions can be taken should the risk to the resident increase or decrease during the course of the investigation.
The resident contacted the landlord on 27 March 2024 by email. The landlord’s records also refer to a telephone call that took place on or around the same day. The resident told the landlord that she had been referred to the mental health team. She also said she had been signed off work and prescribed stronger medication. She said she barely stayed at her property because of the ongoing issues. The resident told the landlord that she felt ignored. She said she did not think it was taking her reports seriously and so she wanted to raise a formal complaint.
The landlord made an unannounced visit to the resident on 11 April 2024. It told her it had changed the way it dealt with daily living noise. It said it recognised and understood that it was having a negative impact on her and her quality of life at home. It reassured the resident that it would not close the case until it had a suitable resolution. It said it had visited the upstairs neighbour and said it would see if it could provide additional flooring to try to minimise the noise transference. This was a reasonable course of action to take in the circumstances. Although this should not have been the only course of action as, if approved, it was likely to take time to arrange.
The landlord also spoke to the resident during the visit about her playing loud music. It noted that she denied her music was loud, and that she told the landlord that the neighbour also played music, but it did not concern her. She said the banging was the main issue. However, it appears that the landlord again missed an opportunity to explain to the resident that it was not appropriate to play loud music to drown out the noise from the property above. It also missed the opportunity to explore other options in relation to the resident’s music, such as setting reasonable levels.
The landlord reviewed the resident’s case again on 25 April 2024 by email. The action plan said that the resident was to continue to record incidents of noise nuisance via the noise app. Although it is unclear as to why the landlord felt this was necessary when it had already established that it was “daily living noise”. This meant that the resident was expected to actively record the noise from her neighbour’s property for the foreseeable future until the case was closed. This was unreasonable. There was no value in the resident providing further recordings of the same type of noise.
The landlord sent the resident a stage 1 complaint response on 2 May 2024. It said it had been unable to identify any service failures in its handling of the resident’s case. It said it hoped it had shown the resident that it was taking her concerns seriously. It made assurances that it would continue to work with the resident to address the ASB and noise concerns.
The resident contacted the landlord on 3 May 2024, following an incident with her neighbour. She said the neighbour had threatened her, although this was not a direct threat. The resident said her situation was much worse since the landlord intervened. In response, the landlord offered to close the case down if it was making her feel unsafe. This was not a reasonable solution as it would not provide any resolution to the resident’s complaint. It was akin to ignoring a problem in the hope it went away. The approach was also not consistent with the landlord’s approach to managing disputes between its residents.
The landlord did offer mediation to the resident on 10 May 2024. Although, as the issues had escalated between the parties by this point, it was unlikely the resident would accept the offer. It would have been more appropriate for the landlord to offer mediation in the early stages of the case when the parties were on better terms and closer to the time when they had constructively worked together to resolve issues between them.
The landlord issued both the resident and the neighbour with a tenancy warning on 13 May 2024. The neighbours warning was in relation to noise nuisance from children and the laminate flooring. The resident’s warning was in relation to excessively loud music and banging on her ceiling. Although warnings are one of the available tools within the landlord’s ASB policy for dealing with ASB, the landlord had already clarified that it considered the noise to be daily living noise. The music played by the resident in response to the banging was to drown out the noise. The banging on the ceiling was to alert the neighbour to stop making noise. There does not appear to have been a consideration by the landlord of the mitigating circumstances in the case in determining whether its response was proportionate.
The landlord’s approach to the reports was ultimately flawed as it used its ASB policy to manage incidents of household noise. The failure to recognise this led to both parties having to escalate their behaviour to try and regulate the effect of the other’s household noise, to the point where the evidence shows the ASB threshold was likely to be met.
There is no evidence to suggest that the landlord visited the resident’s property to see how loud she played her music and agree or set reasonable levels. Or that it visited the neighbour’s property whilst the music was playing to see how the noise transferred prior to the warnings being issued. There is also no evidence to suggest that the landlord attempted to witness the noise and banging from within the resident’s flat to get a better understanding of what she had to endure on a daily basis. Or that it considered any sort of sound proofing to the resident’s ceiling. It is likely that these actions would have been more effective than issuing tenancy warnings and highlights the disproportionate nature of the landlord’s chosen course of action to take an enforcement route.
The landlord fitted carpets in the neighbour’s property on 14 May 2024. This was a reasonable course of action to take in the circumstances and did improve the level of noise transfer to some extent. Although it does not appear to have completely resolved the issues, as the resident sent 95 recordings of noise to the landlord between 13 May 2024 and 10 June 2024.
The landlord’s stage 2 response, dated 1 July 2024, said it had changed its approach to noise nuisance as it understood the impact noise could have on residents. It said it looked to support residents by providing advice and guidance on measures that could be taken to resolve noise issues. It said it offered practical support where necessary, to reduce or stop noise in the home. This included fitting carpets, moving furniture to different locations, fitting door stops or soft closers, setting volumes at a certain level or wearing headphones. The landlord said that, whilst it understood the resident’s reason for playing music was to drown out the noise from the flat above, it had listened to the noise recordings. The recordings evidenced loud music from her home, and therefore the warning issued was deemed to be necessary. The landlord did say it would explore a move for the resident. However, it said it did not find any service failures in the way it had managed the noise case. Therefore, it was unable to award any compensation.
This was an unreasonable response as the landlord failed to recognise or acknowledge that it was not appropriate for it to have dealt with the residents reports of what was established to be household noise under its ASB policy.
In summary, the landlord’s approach was flawed as it used its ASB policy to manage reports of household noise. It failed to comply with its ASB policy in relation to risk assessments and actions plans. It did not adequately manage the resident’s expectations, and its actions contributed to an unreasonable expectation that legal action would be progressed. Its approach to dealing with household noise was confusing and misleading at times. It missed opportunities to offer mediation at an earlier point in the investigation. It also missed opportunities to consider alternative options to issuing tenancy warnings and to prevent matters from escalating.
As a result of these failures, and the detriment caused to the resident, the Ombudsman finds that there was maladministration by the landlord in this case.

Complaint handling

The landlord operates a 2 stage complaints process. Its policy says that stage 1 complaints are responded to within 10 working days. Stage 2 complaints are responded to within 20 working days.
It is unclear from the information provided exactly when the initial complaint was made. Although it appears to be around 3 April 2024. The landlord acknowledged the resident’s complaint on 5 April 2024. It told the resident that it would issue a formal response by 17 April 2024. On 19 April 2024 it sent the resident a letter to extend the expected date of its stage 1 response to 2 May 2024. It said the reason for the delay was because it did not have all the information it needed to finalise a response.
The landlord provided the resident with a stage 1 response on 2 May 2024. This was around 20 days from the date the complaint was first raised. In the stage 1 response the landlord apologised for the delay and offered £100 compensation for poor complaint handling.
The resident escalated her complaint to stage 2 on 2 May 2024. On 3 June 2024 the landlord sent the resident a letter to extend the expected date of its stage 2 response to 1 July 2024. It said the reason for the delay was because a director was completing the review to ensure the response was fair and thorough.
The landlord provided the resident with a stage 2 response on 1 July 2024. This was 43 days from the date of escalation. In the stage 2 response the landlord apologised for the delay in providing a response and increased its offer of compensation to £170.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In this case the landlord’s offer of £170 compensation, its apology, and its acknowledgement of the delays represents reasonable redress for the identified failings. In the Ombudsman’s opinion, the landlord has been able to evidence it made reasonable and proactive efforts to resolve the complaint and “put things right” in accordance with the Ombudsman’s Dispute Resolution Principles.
In summary, although there were delays in both the stage 1 and stage 2 responses, the landlord attempted to put things right through its complaints process. The redress offered by the landlord was reasonable in the circumstances, and in line with the remedies guidance provided by the Ombudsman for cases where there was a minor failure by the landlord in the service it provided. The landlord is therefore to pay the overall compensation of £170 if it has not already done so. The finding of reasonable redress is dependent on the compensation being paid.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of noise nuisance.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in its handling of the associated complaint.

Orders and recommendations

Orders

Within four weeks from the date of the report, the landlord must:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident compensation of £500 in recognition of the distress and inconvenience caused by the landlord’s handling of the resident’s reports of noise nuisance. The landlord must pay the compensation directly to the resident.
3. Consider whether there are any measures it could reasonably take to reduce the noise transference from the flat above. Such as sound proofing the resident’s ceiling. The landlord should confirm its considerations and the measures it can take in writing to the resident. The landlord should send a copy of the letter to this Service.
4. Assess and agree the level that the resident can play her music to avoid any further action for a breach of tenancy/ASB. The landlord should confirm the acceptable levels in writing to the resident and send a copy to this Service.
Within 8 weeks of the date of the report, the landlord must carry out a self-assessment against the recommendations contained in the Ombudsman’s Spotlight Report on noise complaints. The landlord should provide this Service with a copy of the self-assessment detailing any changes it intends to make to is current policies.
The landlord should reply to this Service with evidence of compliance with these orders within the timescales set out above.

Recommendations

It is recommended that the landlord should, if it has not already done so, pay the resident the £170 compensation it offered in its stage 2 response.
The landlord should reply to this Service within four weeks of the date of this report to advise of its intentions in regard to the above recommendation.