Adur District Council (201907325)

REPORT

COMPLAINT 201907325

Adur District Council

23 February 2022

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 landlords handling of:
   1. The resident’s reports concerning anti-social behaviour.
   2. The installation of soundproofing.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

3. The resident is a secure tenant of the landlord, living in a ground floor bed-sit.
4. The resident has advised of disabilities and mental health issues although the landlord has advised it does not have any medical evidence of this on file.
5. Records indicate that the resident has had issues with noise transference since 2017 prior to the current neighbours moving in.
6. The Ombudsman investigated a previous complaint about soundproofing in 2018- 2019 and found no maladministration against the landlord with respect to this issue.
7. The landlord’s Complaint Handling Policy states at each stage a written acknowledgement will be sent within five working days with contact details of the person who will investigate the complaint. The landlord will try to reply fully in writing within 10 working days for stage 1, and within 15 working days for stage 2, but if it is unable to do so it will contact the resident to explain the delay and how long it will take to respond.

Summary of events

8. Following the resident’s reports of noise nuisance, digital audio tape (DAT) recording equipment was installed in the resident’s property from 22 February 2019 to 28 February 2019.
9. The case regarding the ASB due to noise nuisance was closed on 8 April 2019 as there was no further action to take. Records provided indicate that the residents noise recordings from the DAT equipment were listened to and it was established that the noise was mainly day to day living noise.
10. Further reports of noise nuisance were made by the resident who provided diary sheets and she was put on the waiting list for the equipment again on 4 July 2019, but on 19 August 2019 the landlord advised it would not install the equipment again.
11. On 6 September 2019 the landlord wrote to the resident confirming it had not set up a new complaint regarding issues she had raised regarding alleged inappropriate behaviour and the decision not to reinstall the DAT equipment. The landlord explained that the inappropriate behaviour it was referring to was not exhibited by the resident, but rather her partner during a telephone call about its decision not to install the DAT equipment. The landlord explained and apologised that it should have made clear in its previous correspondence that reference to unacceptable behaviour was directed to the resident’s partner. 
12. With regards to the reinstallation of the DAT recorder at that time, the landlord explained that it had spoken to officers about details of the case and its assessment of the evidence supplied in diary sheets. The landlord considered the resident’s evidence between 10 January 2019 to 1 February 2019 and 27 July 2019 to 20 August 2019 and found little contrast or change in the type of noise recorded which was day to day living noise such as footsteps, bangs and kettle noises. It noted this corroborated by diary sheets received from the neighbour. It advised following review, that it could not find evidence that the case for placing a DAT recorder was justified at present. It explained that the evidence from both parties indicated a breakdown in the relationship between neighbours and the DAT recorder would not improve the situation however it suggested other methods of intervention such as mediation.
13. Between November 2019 and January 2020, the resident raised reports of noise disturbance from her neighbour and provided the landlord with video recordings. The resident felt the disturbances were being made deliberately by the neighbour and she had been waiting for mediation since February 2019.
14. The landlord issued its first response on 29 November 2019 under its reference 2561659. It apologised for the delay in issuing the response. The response considered other matters and noted that the ASB allegations and counter allegations could not be explored within the context of the complaint system but would be addressed through the separate ongoing investigation. The landlord considered its handling of the ASB and noted it had tried to act fairly and proportionately but more recent complications had been caused by the growing counter allegations made by the neighbour. With regards to the allegation of inappropriate behaviour from the resident’s partner, the landlord acknowledged that this was a misunderstanding as it had since become clear that the person who was belligerent during the call with the landlord was a member of staff from the Citizens Advice Bureau. The landlord apologised for this error and advised this matter would be picked up with the Citizens Advice Bureau if required. The landlord reiterated that the diary sheets had been reviewed and there was no noise indicative of an attempt to cause noise nuisance and it could not find justification to re-install the DAT equipment at that time. The landlord acknowledged the further diary sheets the resident submitted between 20 August 2019 and 26 September 2019. The landlord confirmed that soundproofing works at a cost of £5,000 were carried out in 2018 and this issue had already been considered in a previous complaint by the Ombudsman as reasonable.
15. The landlord confirmed that although mediation was offered and the resident accepted this, both parties were required to agree to this on a voluntary basis and the position of mediation would be looked at again when the case was reviewed.
16. With regards to her application for a Community Trigger based on the ASB reports, the landlord advised that this had since been conducted and the resident appealed the initial outcome. The landlord acknowledged there had been an interview in February 2019 and a letter was sent with the outcome on 27 February 2019 confirming that the resident had agreed to mediation subject to the neighbour agreeing as well. The landlord advised it was unable to find any further letter of communication since then although there was extensive email exchange.
17. The landlord acknowledged the resident’s feelings that she was being harassed in her own flat, advising that this mirrored the report provided by her neighbour. The landlord clarified that it did not refuse to open further complaints from the resident in August 2019 but rather advised that the issues raised were to be treated as a follow on to the complaint the resident had already raised with the Ombudsman. It also advised that it could find no evidence to support the resident’s claims that her neighbours were using her as a way to obtain a bigger property. It acknowledged that the change from a single person to a young couple may have been a factor in the impact of lifestyles between the two households.
18. The landlord acknowledged that there could have been more formal communications on the ASB matters during the course of the year although there had been a lot of email communications throughout. The landlord explained to the resident how she could raise complaints with the service areas involved. It also provided its timescales for its complaint handling process.
19. On 6 December 2019 the resident thanked the landlord for its apology and awaited the stage 2 response following some inaccuracies she found in the first response. The landlord responded to advise that the matters would continue in the context of a review rather than the complaints system and the review would take place as soon as possible in December 2019.
20. A letter was sent to the resident from the landlord on 19 December 2019 regarding alleged noise nuisance.
21. The resident sent a further email on 24 December 2019 detailing her concerns with the noise nuisance from the neighbour. She was unhappy with the letter she received. She felt that her reports of ASB and harassment were not being addressed and that she had not done anything to the neighbours. The resident requested the landlord confirm what reports had been made against her as she could only assume their complaint related to general living. The resident stated she was still waiting for mediation since 25 February 2019 and therefore she was unsure why this was being suggested again. The resident assumed the landlord had spoken with her neighbour as the pattern of hitting the ceiling changed over the weekend and continued and that the situation was affecting her health. The resident advised if there were any accusations against her, the landlord should inform her as she had a camera on 24/7.
22. On 24 December 2019 following the resident’s complaint email sent the same day, the landlord confirmed the case was escalated to stage 2 and she would receive a response by 2 January 2020. The resident responded to advise she had already requested the case be escalated to stage 2 in her email of 6 December 2019.
23. The landlord’s complaint handler emailed an introduction to the resident on 3 January 2020 to confirm the case was being investigated.
24. DAT equipment was installed again on 9 January 2020 and removed on 24 January 2020. The installation was done when it was dark, around 4pm, as the resident did not want her neighbours aware of the installation.
25. The landlord issued a stage 2 response on 10 January 2020 relating to its case reference 2561659. The landlord explained the review was conducted with the police and it confirmed that both tenants were sent letters to urge restraint in respect of day to day living noise and that noise was kept to a reasonable level by both households before 7am and after 11pm. The landlord advised that although the resident said she was accused of ASB and harassment, it could not find evidence of this. It explained that it would only be able to take legal action if there was compelling evidence to back up reports of ASB. The landlord confirmed that following the residents further reports of noise nuisance, it had arranged to re-install the DAT recorder in her home and the information collated from the machine would be reviewed.
26. The landlord acknowledged the resident’s submission of diary sheets and mobile phone recordings and explained that the threshold of evidence for legal intervention had not been met. It explained it would continue to review any evidence submitted and explore other possible options to assist in resolving the neighbour dispute. The landlord confirmed the option of mediation was still available. The landlord referred the resident to the Local Government Ombudsman within the closing section of the letter.
27. The landlord’s complaint handler updated the resident on 17 January 2020 that it was not able to conclude its investigation yet. It confirmed that once the information from the DAT equipment was received, it would consider this within its decision. The landlord hoped to provide a response by 31 January 2020
28. The resident emailed the landlord on 22 January 2020 to advise that since the DAT equipment had been installed, the neighbour’s noise had reduced significantly. The resident felt this was suspicious and believed the neighbour had been informed of the installation or that they also had the equipment installed at the same time. The resident requested the landlord consider the multiple video files she had sent previously when considering the reports.
29. Between February 2020 and April 2020, the resident continued to report noise nuisance from her neighbours such as banging and thudding and the effect this was having on her health. The landlord advised that the complaint regarding this issue was currently underway and once completed she would receive the response.
30. On 13 February 2020 the resident emailed the landlord for an update regarding the escalation of her complaint. The landlord emailed the resident with an update to confirm she would receive a response by 16 March 2020 following a review of the DAT recordings and the return of her case handler from leave.
31. On 23 March 2020 the resident submitted part of her latest medical records to the landlord. The resident mentioned she had seen an adapted 3-bedroom property in the bidding magazine that she felt would be suitable for her.
32. The landlord issued its final response on 15 April 2020 and apologised for the delay in issuing the response due to the extent of the investigation and the impact of the pandemic. The landlord reiterated the details of the first response regarding the allegation of inappropriate behaviour made against the resident by the landlord. The landlord advised that it was unable to provide copies of the neighbour’s diary sheets to the resident however acknowledged that the police had spoken with the resident and her partner in February 2020 regarding the threat her partner made to her neighbour. It confirmed both parties received letters regarding day to day living noise requesting it was kept to a reasonable level before 7am and after 11pm.
33. With regards to the neighbour’s anti-social behaviour, noise and harassment, the landlord confirmed it had reviewed all the evidence submitted by the resident. It reiterated the outcome provided in the first response that the noise reports were indicative of day to day living noise and it was difficult to conclude that these were deliberate attempts to target the resident. The landlord explained that there was insufficient evidence to suggest her neighbours had breached their tenancy. It confirmed the resident’s neighbour had carpeted floors and not laminate flooring and that although the resident agreed to mediation, as the neighbour chose not to participate, the landlord could not force them to take part.
34. The landlord advised that it decided to defer reinstallation of the DAT equipment in the resident’s property due to the limited devices available as there were other urgent cases with other tenants that had not had the opportunity to have the device. It confirmed that the DAT equipment was placed in the resident’s and the neighbour’s property at different times between December 2019 and January 2020 and whilst most of the noise recorded from the resident’s property was not excessive, there was an incident on 30 December 2019 at 11.19pm that recorded a male voice from the resident’s flat shouting impolite words aggressively, aimed at the neighbour upstairs while banging on the ceiling. The abuse was later aimed at a female in the resident’s flat and the police were called. The landlord advised whilst it appreciated the distress caused due to the noise transference, the behaviour recorded was unacceptable and represented a breach of tenancy. It advised this issue would be addressed with the resident separately by the Tenancy Services Team.
35. With regards to the DAT recordings in the resident’s flat, it confirmed apart from thuds caused by the neighbour’s baby, no verbal, television, or music noise was captured. It did acknowledge that movement upstairs could clearly be heard.
36. To conclude the landlord found insufficient evidence to suggest that noise levels reported by both parties was deliberate. It advised that the issue was more likely to do with noise transference between the flats. Whilst there was no evidence to suggest the sound transference was in breach of building regulations, the landlord acknowledged the inconvenience caused to both households. The landlord noted it had discussed the matter with surveyors who advised that further extensive soundproofing could only be done when both properties were vacant, as significant parts of the building would need to be opened up. It explained it was also not possible to put a timescale or quantify the extent of the works so both parties would be supported in seeking alternative accommodation rather than wait for both flats to become empty through the normal process. The landlord confirmed both parties were awarded the highest possible banding, A, to bid for properties. It advised that due to works required in the property, it would not agree to the resident taking part in a mutual exchange as it required the property to be vacant.
37. The resident subsequently wrote to the landlord regarding a property she had seen that was a 3-bedroom disability adapted property in April 2020. The landlord referred to its decision in the final response and confirmed to the resident that at present she would only be eligible for a one-bedroom property. It also confirmed that the property she was referring to had already been allocated to an eligible applicant through the choice based letting process.
38. Following on from the landlord’s internal complaint process, both parties continued to contact the police regarding noise nuisance that was believed to be deliberate, and the police advised it did not believe this was the case. Following the complaint, mediation took place between the resident and the neighbour.
39. Since the final response, the neighbour has moved out and the property above the resident has been void since October 2021.

Assessment and findings

40. When investigating complaints about ASB, it is not the role of the Ombudsman to determine whether the ASB exists as alleged, rather, the Ombudsman’s role is to review the evidence that is available and determine whether the landlord acted in line with its duties, obligations and procedure as set out in any relevant policies.
41. The Ombudsman has not seen any evidence which suggests that the landlord has acted inappropriately in relation to the incidents which occurred. The resident’s reports were investigated, and the landlord was in regular communication with the resident through reports. Diary sheets were provided and reviewed, a DAT recorder was installed on more than one occasion, the landlord also acknowledged the resident’s phone recordings, and the landlord attempted to arrange mediation with the resident and her neighbour. It was reasonable for the landlord to send both residents letters regarding the level of noise as they were both raising similar reports mainly regarding day to day living due to the noise transference. 
42. It was appropriate that the landlord asked the resident to make reports of noise to the Environmental Health Service as it has the power to determine whether the noise reported constituted a statutory noise nuisance which could lead to the serving of an abatement notice and inform action that the landlord could further take.  It should be noted though that everyday household activities and squeaky floorboards in flats would not usually be considered as noise nuisance.
43. Evidence indicates that the landlord set up the DAT equipment at separate times for each tenant for impartiality. The landlord can only rely on the evidence it has received and in order to take any formal action, it would need to be sure that the evidence demonstrates ASB. In this instance, it was unable to prove that the noise the resident was experiencing was anything other than day to day living. As such, the Ombudsman is unable to find service failure against the landlord with regards to this issue.
44. The landlord in its correspondence also indicated that a level of noise was inevitable given the structure of the building, in particular the floor structure. In this situation, had it been proven that the neighbours were intentionally causing alarm or distress then the landlord would have been able to consider further tenancy action.
45. Regarding the noise transference, the landlord’s obligation is for the property to comply with the Building Regulations in force at the time of construction. The landlord confirmed that this was the case, and no evidence has been provided to contradict this. I note as soundproofing is considered an improvement to the property, the landlord has no obligation to do this although it did carry out some work in 2018. Given the landlord has decided to carry out more extensive soundproofing works, it supports the fact that the landlord did not trivialize the resident’s reports and is keen to improve the sound transference going forward.
46. The landlord established that the main problem was noise transference and advised within its final response that due to the type of work required, both properties would need to be vacant in order to do the work.
47. I appreciate the resident is unhappy with this, as sound improvement works were carried out in a similar property adjacent, and the resident move out temporarily. However, given that the soundproofing carried out in 2018 when the flat above was empty has not alleviated the resident’s experience with noise transference, it is reasonable for the landlord to consider more extensive work.
48. It is reasonable that the landlord would rely on its surveyors with regards to what type of work is required, both when work was done in 2018 and with regards to the works required now. Therefore, as the landlord was informed that the work would require opening up parts of the building and it was unable to establish the timescale for the work, the reason it required both properties to be vacant is valid. The landlord again has reasonably given the highest banding possible on the rehousing list to expedite both parties in finding an alternative property.
49. The resident has mentioned that the ASB she experienced with her neighbour affected her health. However, this Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. The resident may wish to seek independent  legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of her complaint.
50. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
51. Based on the evidence available the landlord provided the correct advice with regards to the noise transference and soundproofing installation as the noise was caused by day-to-day living, and the Ombudsman appreciates that it would be particularly difficult in this instance to evidence that this was intentional.

Complaint handling

52. The landlord’s details about the complaint were complicated as different departments were dealing with different aspects of the complaint. It is also noted that the actual complaint points dealt with in the responses differed and did not remain constant. The Ombudsman appreciates that further issues arose in between the responses that the landlord needed to address.
53. It is also acknowledged that initially there was confusion regarding the landlord setting up the complaint as the Ombudsman had considered a similar case relating to the soundproofing of the property. The landlord has also advised that there is a separate complaint that is being investigated by the Local Government Ombudsman.
54. The Ombudsman appreciates that the resident provided the landlord with a considerable amount of correspondence regarding her ASB complaint and so did the neighbour. Whilst there was a lot of information for the landlord to collate, I note that there were delays in it completing its complaint process.
55. Following the first response, the resident responded on 6 December 2019 requesting her complaint be escalated to stage 2. Although the landlord responded, it advised that it took the approach to review the case rather than provide a second response. Further to the resident’s email on 24 December 2019, she then received an acknowledgment the same day to advise her case was escalated to stage 2. It is unclear why her request to escalate the complaint on 6 December 2019 was not considered and due to this there was a delay in issuing the final response.
56. It is also noted that the due date for the second response was 2 January 2020 however, the resident then received a stage 2 response on 10 January 2020 that advised that the complaint was still ongoing due to further information that still needed to collect from the DAT recorder. This letter referred her to the Local Government Ombudsman. In the interim she received a letter on 3 January 2020 from the case handler who was investigating her complaint and a follow upholding email on 17 January 2020 advising the landlord hoped to provide a response by 31 January 2020.
57. In February the resident chased the progress of her complaint and the landlord responded to advise that it hoped to provide a response by 16 March 2020. The final response was issued by the landlord on 15 April 2020.
58. Based on the evidence provided, the Service notes that the landlord did not keep the resident updated in line with its policy on the progress of her stage two complaint. The resident had to chase the landlord for an update regarding her case and there is no evidence to show the landlord updated the resident on the delay when it failed to meet the deadline it provided of 31 January 2020.
59. It is appreciated that the landlord has advised that due to the number of communications and the case worker being on leave there was a delay, however, the resident should still have received updates and holding letters regarding the delays within a reasonable timeframe. This did not happen and amounted to service failure.

Determination (decision)

60. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of noise nuisance from the neighbour’s property.
61. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the installation of the soundproofing.
62. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Reasons

63. The landlord has over the course of the resident’s complaint taken various steps to engage with the parties, investigate the resident’s reports of noise and seek a resolution to her concerns. After the resident continued to report noise, the landlord acted reasonably in making the arrangements for more extensive soundproofing work to be done and adding the resident to the housing list at band A to allow her to find an alternative property. The landlord has also acted reasonably by keeping the property above the resident vacant until it is able to carry out the works.
64. Following its investigation, it was established that the problem was mainly due to noise transference in the building and the landlord has advised on the steps it can take to ensure the building is improved to reduce any noise transference concerns with this property going forward. It was reasonable for the landlord to rely on advice from the surveyor about the work that was required, and the Ombudsman acknowledges that in order to do this work both properties need to be vacant.
65. Whilst the Service appreciates the amount of communication collated regarding this case, the landlord was responsible for ensuring that each case it was dealing with was being handled correctly with regards to keeping the resident updated. There were also delays noted in the escalation of the complaint and it is unclear why the delays occurred.

Orders

66. The landlord is ordered to compensate the resident £50 for the delay in progressing the complaint and the failure to keep her reasonably updated with regards to its progress. The compensation is in line with the Ombudsman’s remedies guidance.
67. Payment should be made within 4 weeks of this report.

Recommendations

68. The landlord is recommended to provide information as to what happens next with regards to re-letting the property above if the resident is unable to find a suitable home or chooses to stay in her current residence, and to confirm what timescale it is considering allowing for this.