The new improved webform is online now! Residents and representatives can access the form online today.

Bernicia Group Limited (201905757)

Back to Top

REPORT

COMPLAINT 201905757

Bernicia Group Limited

24 February 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 response to reports of Antisocial Behaviour (ASB), in particular, noise nuisance and sound transference and its subsequent complaint handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

Historic issues / ASB

  1. The resident has told this Service and the landlord, that she has experienced ASB and noise nuisance and transference for over ten years and she is dissatisfied with the landlord’s handling of the issues she has reported, believing that it has not done enough.  She has stated that these issues and the landlord’s lack of action have negatively impacted on her and her husband’s lives and wellbeing.
  2. The longevity of the reports from the resident are not in question and documentation has been provided to this Service indicating that the resident has indeed been notifying the landlord of issues of noise transference since 2009.
  3. Records show that besides 2009, the resident reported issues with noise and smoke in 2020, noise in 2013 (with the resident requested to move property at this time), 2016 regarding the noise of TVs, noise on stairs and closing doors, issues in 2017 with her neighbour activating the fire alarm, the police and ambulance regularly being called to the neighbour and shouting, as well as issues in April 2018 of music being played and hoovering being done in the middle of the night and in July 2018, issues with “random people” coming into the building.
  4. Notification of ASB or noise nuisance or transference is not the same as making a complaint.  The resident made a formal complaint about the issues in August 2019, following further reports of issues with noise in February 2019.  It is this complaint and issues pertaining to it, i.e., the issues immediately preceding this, dating back to include the previous six months, that this Service will consider and not the historic matters. 
  5. This is in accordance with the both the landlord’s complaints policy and the Housing Ombudsman Scheme.  Specifically, the Scheme states at paragraphs 39(e) and 39(d) respectively, that (39) “The Ombudsman will not investigate complaints which, in its opinion…
    1. (e) “…were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
    2. (d) “…were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure”.
  6. The landlord’s complaints policy echoes this at paragraph 2.10 that it will “not normally consider a complaint that is made more than six months after the individual first became aware of the issue they want to complain about”.
  7. The Ombudsman encourages complainants to make complaints within a reasonable time of matters arising, in order for the landlord to be able to investigate while matters are ‘live’ and evidence is available and to provide the landlord with the opportunity to put things right. Where a complaint is not made for many months or years after the event, evidence and personnel may no longer be available, compromising the thoroughness of any investigation and the passage of time means that the landlord is unable to take steps to resolve matters in a timely manner.  The landlord could not reasonably be expected to respond to and account for actions up to ten years prior, when it was unaware of them at the time.

Freedom of Information (FOI) request

  1. During the complaints procedure the resident has made FOI requests to the landlord, to which it has responded and declined to provide all of the information requested.  The resident is dissatisfied with this.
  2. The Housing Ombudsman is unable to investigate complaints regarding the handling and disclosure of data and information.  Paragraph 39(i) of the Scheme states that “The Ombudsman will not investigate complaints which, in its 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”.
  3. In this case, these matters regarding information rights fall within the remit of the Information Commissioner’s Office (ICO) to consider and the resident should approach the ICO if she remains dissatisfied with the landlord’s response to her requests.
  4. For the reasons described, after carefully considering all the evidence, in accordance with paragraphs 39(d), (es) and (i) of the Housing Ombudsman Scheme, these aspects of the complaint are outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background and policies

17. The resident has been an assured non-shorthold tenant of the landlord, at the property, from 16 March 2009.

18. The tenancy agreement states at paragraph (4) that “The tenant and every person living in or visiting the premises does not behave in a way which causes, or is likely to cause, danger, nuisance, annoyance or disturbance to any other person residing in or visiting the locality” and provides examples of such behaviour being “loud music” and “excessive noise during unreasonable hours”.

  (6) that “The Tenant is reminded that noise is likely to be a particularly sensitive issue between the hours of 11am and 7.30pm” and that “loud music/parties” and “rowdy street behaviour” are examples of this.

19. The landlord’s ASB policy and procedural documents and guidance states that “unreasonable and excessive noise” will amount to ASB.  It explains that when a report of ASB is made, the landlord will take the matter seriously, explain any action it will take, discussing an action plan and keep the reporter of ASB regularly updated.

20. The landlord has a three-stage formal complaints procedure; the landlord aims to acknowledge and respond to a complaint at stage one within 10 working days and similarly at stage two, where a complainant is dissatisfied with the outcome at stage one and requests escalation of the matter, stating what they remain dissatisfied with.

21. Where the complainant continues to be dissatisfied, they may request that the matter be progressed to stage three, where a Customer Service Committee will hear the complaint and provide a determination within 20 working days. If these timescales are not possible, the landlord will contact the complainant and let them know and provide a revised timescale as to when they should expect to hear.

Summary of events

22. On 15 February 2019, the resident contacted the landlord about a neighbour playing his TV loudly after midnight.

23. On 19 February 2019, the landlord wrote to the resident, acknowledging her contact of 15 February 2019 and included an ‘ASB Guide’, stating that it would begin an investigation into matters.  It asked the resident to complete diary incident sheets and to return these by 1 March 2019.  The landlord stated that if no information was received by this date, the case would be considered resolved and would be closed.

24. On 21 February 2019, the landlord telephoned the neighbour concerned and asked him to keep his TV volume down and if he could move the TV way from the wall, which he agreed.

25. On 28 February 2019, the resident contacted the landlord to advise that the situation had not improved.

26. It is not clear what, if any, action was taken by the landlord but on 11 March 2019, it contacted the resident to ask if the situation had now improved, to which she responded that there was still some noise but it was now OK.

27. Five months later, on 20 August 2019, the resident made a formal complaint to the landlord about its handling of her reports of noise nuisance, which she said she had experienced for 10 years and referred to a number of historic incidents, including being threatened. 

28. The resident questioned why the turnover was so high in the building, suggesting that there was a root cause to this, that being the landlord was not handling ASB as it should be.  The resident compared the management of the building with the one opposite by a different housing association, which she felt was run much better and she questioned the landlord’s lettings policy.  The resident added that the experiences she had lived through had had a detrimental impact on her husband’s health and had negatively affected the quality of their lives.

29. Three days later, on 23 August 2019, the landlord telephoned the resident to discuss the ASB but was unable to make contact.  The landlord did not attempt to make contact again, nor did it write to her.

30. The resident appears to have contacted the landlord again about the issue and on 4 September 2019 it telephoned her again to discuss matter. During the telephone call the landlord advised that a specialist survey would be arranged to assess noise transference.  It also said that it could look at the resident’s position in terms of a transfer.

31. On 7 September 2019, the landlord wrote to the resident to confirm what was discussed in the telephone conversation.  In its letter it advised that the resident is considered to be adequately housed but explained that if she could obtain a letter of support from a doctor or other medical professional, then this may support a move.

32. On 1 October 2019 the resident chased her complaint and on 4 October 2019, the landlord telephoned her to again discuss matters. This was followed up by a letter to her on 7 October 2019.  In the letter, the landlord explained that it carried out verification checks on tenants before they move in and suggested a move from the property as a potential way forward.  It also referred to its offer of a sound survey to identify whether there were any reasonable measures it could take to help reduce noise transference. 

33. On 24 October 2019, the specialist survey was carried out. Upon entering the building, the resident asked the surveyor to wait in the corridor whilst she played her radio inside the property at a “normal” level, which he did and it was noted in the report that the radio could be very clearly heard from outside.

34. The survey noted that the building had been converted into flats in 1981 and that sound proofing requirements were not as stringent as they are today.  The report concluded that there were general issues of noise transmission throughout the building and noted that there were communal signs requesting that residents be mindful of noise, although these were not on headed paper and were not dated or signed, so the source of these notices could not be confirmed. The report stated that the resident reported noise transference from all of the properties around her, with one being particularly problematic.

35. The report advised that if the floorboards in the bedroom run under the party partition of the adjoining property, this could be a source of noise transmission (although the structure could not be confirmed).  It also noted that the ducting for the gas pipes which runs the full height of the building could also be a source of noise transference. Finally, it noted there were gaps around and under doors and large holes for locks and the letter box, which could contribute to noise issues.

36. Neither the report or findings were communicated to the resident and on 20 January 2020 she wrote to the landlord, asking for a copy of the report and chasing her complaint of the previous August.

37. Having not heard anything from the landlord, the resident chased the matter again on 18 March 2020 and 20 March 2020.  On 20 March 2020, the resident reported noise nuisance her neighbour, specifically, loud music, people running up and down the stairs and the street making lots of noise and playing the TV loudly.  The resident also reported noise from another neighbour also playing the TV loudly.

38. On 26 March 2020 the landlord telephoned the resident to discuss the issues.  The resident advised there were no issues at present but she was concerned there would be with everyone being in lockdown due to the Covid-19 pandemic. The landlord advised to keep a record of any incidents.

39. The following month, on 24 April 2020, the landlord wrote to the resident.  It apologised for its delay in responding, explaining that this was due to the pandemic and home working.  It advised that the resident’s complaint would be investigated and responded to.

40. On 29 April 2020, the landlord wrote to the resident again and advised that it had no record of her letter of 20 January 2020 (to which she had referred) but said that it would like to discuss her concerns with her over the telephone.

41. On 5 May 2020 the resident provided the landlord with a copy of the letter she sent to it dated 20 January 2020 and reiterated her request for a copy of the noise report.

42. Following further telephone conversations between the landlord and resident, on 13 May 2020 the landlord responded to her complaint.  It advised her that a copy of the report would be available within the next few days and answered questions she had raised about tenancy turnover, advising that this was usual but did not address the substance of the complaint.

43. On the same date, the resident asked the landlord to respond to her complaint of the previous August.

44. On 21 May 2020 the landlord provided a copy of the report to the resident and asked her what issues were outstanding in respect of her complaint, noting that it had provided a response on 7 October 2019.

45. The following day, the resident wrote to the landlord, again requesting that her complaint of August 2019 was addressed stating that its communication of 7 October 2019 had not addressed her concerns, nor was a complaint response.

46. On 29 May 2020 the landlord responded. It acknowledged that sound travels more easily in the building than it would do in a more modern building but it did not uphold the complaint, finding that it had responded to reports of ASB appropriately.

47. On 2 June 2020, the resident once again contacted the landlord asking for her complaint to be properly addressed.  On 8 June 2020 the landlord responded, advising that it would do so.

48. The following day, the landlord responded to the resident, stating that if she wished for her complaint to be escalated to the Customer Service Committee she could do so, however, they would want to know what outcome she was seeking.

49. On 11 June 2020, the resident responded, stating that she would like the landlord to look at her complaint, as required by procedure. The landlord replied, asking what outcome the resident was seeking, to which the resident responded, asking it to refer to her email of 2 June 2020.  The landlord responded stating that the resident’s complaint would be escalated, however, it was still not clear of the outcome she was seeking. It advised that the findings of the panel would be relayed by no later than 9 July 2020.

50. On 12 June 2020 the resident emailed the landlord advising that as an outcome to her complaint she would like the landlord to address the issues she had raised, identify where improvements can be made and make amends for all of the hurt and loss she had experienced.  The resident expressed that she was of the view that she had been paying a premium to live in the property where she had experienced unnecessarily high and avoidable ASB, which had caused distress and had adversely affected her and her husband’s lives.

51. On 1 July 2020 the Customer Service Committee met to consider the case and determined that the landlord had acted appropriately and reasonably in responding to the issues, however, there had been failings in its handling of the complaint, namely not logging the complaint in a timely manner, not sending the surveyor’s report to her in good time (although this was not something it was obliged to send) and not writing to the resident when it could not get hold of her having made a telephone call on 23 August 2019. 

52. In order to prevent a recurrence of the failings identified, the landlord had reminded the individual concerned of the findings and reminded them of the correct procedure.  It was also noted that the January 2020 letter from the resident had gone missing and acknowledged that its scanning process needed “tightening up”. The landlord offered to soundproof the property as resolution to the complaint or alternatively, suggested that the resident could consider moving to another property. 

53. The landlord wrote to the resident on 2 July 2020 advising her of the outcome of her complaint and apologised that her letter had gone missing and for the delays in dealing with her complaint. It explained that some of the reports the resident had made constituted ordinarily living noise and not ASB, however, examples being the volume of TVs.  It said that in respect of these issues it had responded appropriately.

54. The landlord noted that although the resident had referred to historic reports of ASB dating back to 2009, she had refused to document incidents on diary logs, when asked to do so following a complaint in 2016, stating that she did not wish to be used as “frontline policing of [the landlord’s] ASB policy”. It reiterated that tenancy checks are conducted before individuals move in, to avoid problems but where there do become issues, these are addressed with tenants or action is taken to remove them.

55. The landlord acknowledged that the resident had referred to being threatened in her complaint of August 2019, although this had not been reported to it and so it was unable to take action.  It advised that she should call the police if she felt threatened.  It noted that a number of incidents referred to seem to have involved a particular resident and his visitors; a resident who had since been evicted. The landlord stated that the resident had contacted it once in 2019 and once in 2020 about noise nuisance and so it assumed she was not experiencing threatening behaviour or other incidents currently.

56. The landlord expressed its apologies that the resident felt she had not received value for money but explained that the amount of rent was comparative to other similar properties.  It explained that it had only received one other noise complaint which was from another tenant in 2017 and acknowledged that the building was old but that the noise reported mostly amounted to ordinary living noise which did not warrant soundproofing, although the resident was welcome to put in an application to soundproof the property herself. The landlord reiterated that an alternative would be to seek to move on medical grounds, although the resident would need to evidence this and that it would support her in this process.

Assessment and findings

57. In complaints about ASB and noise nuisance, it is not the role of the Ombudsman to determine whether the issues reported occurred, but rather, to assess how the landlord responded to the reports and whether its response was in accordance with its policies and procedures and appropriate and reasonable in all of the circumstances.

58. When the resident reported noise nuisance from her neighbour playing his TV loudly after midnight, this was noise being made at an unreasonable hour.  While TVs being played ordinarily do not constitute noise nuisance, but rather, ordinary living noise, the report that the TV was being played loudly and late at night meant that the landlord was required to respond in accordance with its ASB policy.  That is not to say that ASB was definitively being committed but nonetheless, the landlord was obliged to investigate matters given the notification.

59. The landlord acted appropriately in contacting the resident and advising that it was carrying out an investigation, in doing so, indicating that it was taking the matter seriously. It was also appropriate that it asked the resident to complete diary incident sheets.  This is because where a report of ASB or noise nuisance is made, it is important for evidence first to be gathered; evidence will enable the landlord, where appropriate, to take greater steps in addressing and resolving the issues.  There is a reasonable expectation on the resident reporting the issue to cooperate in any investigation, including completing diary incident sheets; there is no indication that the resident did this.  In asking for the diary incident sheets back within a defined period of time, the landlord provided a reasonable amount of time for evidence of incidents to be gathered. 

60. Similarly, in discussing the issue with the neighbour concerned, the landlord provided an opportunity for him to respond to the allegation and a chance to put things right.  This approach is in accordance with the landlord’s ASB policy and best practice. It was reasonable for the landlord to ask the resident to move his TV.  This is because the landlord was not obliged to do this, nor the resident obliged to move it and demonstrates an effort on the part of the landlord to seek a quick an amicable resolution.

61. It is unclear, however, what, if any, investigations the landlord undertook besides telephoning the neighbour.  The landlord did not let the resident know what actions it would take, nor did it update her or check to see if things had improved, which it transpired they had not, with the landlord contacting the landlord again about this on 28 February 2019.  The landlord did not manage expectations in these ways, which undoubtedly contributed to the resident’s sense of the landlord not taking things seriously or taking sufficient steps to address and resolve matters.

62.It is again not clear what, if any, action the landlord took following the resident’s further report of issues, however, the landlord did contact the resident later on to monitor the situation and was advised that things were fine.  It was appropriate for the landlord to close the ASB case thereafter, given that there were no diary incident sheets and no further reports.

63. Living in close proximity to others it is inevitable that noise from other properties will be heard and ordinary living noise such as noise from TVs, footsteps and doors closing is not considered noise nuisance; that is, unless the noise is unreasonably loud or at unsocial hours, as was reported in this case. 

64. Turning to the landlord’s offer to carry out a specialist survey to assess the level of noise transference in the building, this was a reasonable step on the part of the landlord, because it demonstrated a willingness to seek to identify ways that noise transference might be reduced, despite the fact that it was not obliged to soundproof the property.  The landlord, was not required to soundproof the property because notwithstanding that the property was converted at a time when standards were not as stringent as today, to soundproof the property would amount to an improvement, rather than repair, which the landlord is not obliged to undertake.

65. The landlord did not let the resident know the outcome of the survey, however, again not managing expectations, leaving the resident in a prolonged place of unknowing as to the findings and any next steps.  It was inappropriate that having advised that it would undertake the survey, the landlord failed to let the resident know what had been found.

66. The landlord, whilst not being obliged to undertake soundproofing steps, agreed to carry out the survey in order to identify what steps might be possible.  There is no evidence of the landlord considering any of the recommendations made or reflecting on the findings of the report, despite it advising the resident that this was the purpose of the report.  It was inappropriate that not only did it not do this, but it stated in its complaint response that the resident could apply to soundproof the property herself if she wished. Having communicated that it would identify possible steps it could take to help, this gave rise to a reasonable expectation on the part of the resident that the landlord would follow through on this and do so.

67. Turning specifically to the handling of the complaint itself, the landlord failed to manage the complaint appropriately, specifically, it took too long to respond to the complaint, providing its final response almost a year after the complaint was made. This length of time was inappropriate, not being in accordance with the timescales set out in its complaints policy and without update or explanation, besides a late reference to the impact of Covid-19.  While Covid-19 undoubtedly led to some delay, the delay in this case and the repeated chasers by the resident in seeking a response was unacceptable and this is exacerbated by the loss of the resident’s January 2020 letter.

68. In terms of the responses themselves, they failed to address the substance of the complaint; although the resident had made statements and asked questions about the landlord’s management of the property and tenant turnover, the landlord did not grasp the core of the complaint itself.  The resident was clearly dissatisfied with the landlord’s response to her reports of ASB and noise nuisance over a protracted period of time and she felt unheard in this and not taken seriously by the landlord in her concerns. 

69. Responding to a complaint is an opportunity for a landlord to demonstrate that it has heard and understood the matters complained about and a chance to remedy matters and put things right.  The landlord missed this opportunity and did not properly respond to the complaint; even where a response is that the landlord will not address historic issues, it did not make this clear, neither did the landlord demonstrate understanding of the situation.

70. The landlord has identified learning in terms of its scanning procedure and acknowledged that the complaint was delayed and it did not contact the resident when it should.  It is not clear, however, what specific changes or improvements the landlord has made in response to the complaint, to prevent a recurrence. 

71. The suggestion of a move elsewhere was reasonable; the resident had previously asked about this in relation to the noise she had reported and it was a way forward, albeit not considered an ideal one.  The suggesting that the resident request to soundproof the property herself has been dealt with above.

Determination

72. In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in respect of the complaint.

Reasons

73. There was service failure by the landlord insofar as it did not effectively manage the resident’s expectations in respect of the investigation it said it would initially undertake, nor did it set out an action plan with the resident or keep her up-to-date with the step it had taken in contacting the neighbour.

74. The landlord failed to manage expectations in advising the resident that it would undertake a sound survey to ascertain what steps it could take to help reduce noise levels, then not considering or acting on the findings of the report and advising the resident to apply for soundproofing herself.  Further, the landlord failed to communicate the findings of the report and even when requested by the resident, took too long to provide the information.

75. The landlord failed to adequately identify and respond to the substance of the complaint and was excessively delayed in providing its formal responses.

Orders and recommendation

Orders

76. The landlord is to pay the resident £150 for the service failures found in respect of the complaint.

77. The landlord is to identify learning from the complaint and to put in place an action plan as to the steps it will undertake to help prevent a recurrence and to provide this action plan and confirmation of completion of identified steps, to this Service. In particular, the landlord to address learning around its complaint handling in terms of timescales and appropriately identifying and responding to a complaint.

Recommendation

79. The landlord is recommended to revisit the report from the noise survey and to assess what actions it is willing to undertake from this.