Catalyst Housing Limited (202002176)

REPORT

COMPLAINT 202002176

Catalyst Housing Limited

30 July 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

The resident has complained about:
1. the landlord’s response to his reports of noise-related anti-social behaviour (‘ASB’) from his neighbour;
2. the landlord’s handling of his associated complaint.

Background and summary of events

The resident has an assured tenancy with the landlord.

Policies, procedures, and agreements

ASB Policy:

This sets out what the landlord defines as ASB e.g. conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises. It also sets out what is not deemed to be ASB e.g. the policy refers to ‘lifestyle differences’ such as disagreements between neighbours, and noise from everyday living, such as children playing.
The landlord will consider the possible vulnerability of both victims and perpetrators of ASB in considering the intervention actions that are appropriate.
The policy allows the landlord to close a case when, for example, it considers that all appropriate action has been taken in line with the action plan agreed with the resident; or the resident reporting the ASB fails to engage with the investigation; or the landlord considers that the nature of the report is unreasonable.

ASB Procedure:

This sets out how the landlord handles and responds to ASB and its case-management approach. It details the landlord’s process, which includes determining the ASB risk rating (standard, medium or high) and how best to tackle the issues.
The procedure also makes the distinction between ASB and ‘ASB-related nuisance’ which is dealt with differently and is not subject to the ASB procedure. For example, low level noise nuisance that does not justify formal enforcement action being taken is not considered as ASB and is dealt with as nuisance.
The landlord is required to set out an action plan and liaise with all relevant parties, including external agencies where appropriate. It should consider the appropriate resolutions and use the tools that are reasonable, proportionate, and most likely to produce an effective solution. The landlord can use tools such as warnings, ‘Good Neighbour Agreements’ and mediation services; as well as more formal enforcement actions.

Complaints policy:

This sets out the two-stage complaints process and states that if the resident is unhappy with the initial complaint response, they can request a review as the final stage of the complaints process. All responses will be given within 10 working days.

Summary of events

The evidence provided by the landlord and the resident shows that there is a longstanding dispute between the resident and the neighbour in the flat above him relating to noise caused by the small children in the flat above.
The available records are not entirely clear, but they do show that issues of noise nuisance were reported to the landlord by the resident in November and December 2019 and there were counter allegations made against the resident by the neighbour about, for example, banging on the ceiling.
The landlord’s records show that on 11 January 2019 there was an ‘altercation’ between the resident and the neighbour’s husband about the noise disturbance and the Police were in attendance.
The landlord visited the resident on 13 January 2019 in connection with this incident and advised him that it would await the Police Report before considering any further action. The landlord has said that during this meeting at the resident’s flat it did not evidence any significant noise nuisance from the flat above. It also offered the resident its mediation service, which it says, the resident declined. An action plan was agreed and signed by the resident setting out how he and the landlord would deal with any further noise nuisance reports. In particular, he would need to report any further noise nuisance to the local authority and he was not to engage with the neighbour, and he would need to report any further incidents of abuse or harassment to the Police.
The landlord provided the resident with details of the local authority noise team who deal with noise nuisance. It also advised him that they are unlikely to be able to assist with general household noise such as children playing. It said that it was still awaiting information from the Police about the ‘altercation’ incident and that the neighbour had agreed to an action plan too.
The landlord’s records show that it spoke to the Police on 23 January 2020 and it confirmed that it was not taking any further action in respect of the ‘altercation’ incident as there were counter allegations and ‘no evidence on either side’.
On 5 February 2020 the resident attended a meeting with the landlord to discuss an ‘Acceptable Behaviour Agreement’ (ABA). The landlord has said that the resident declined to sign it.
On 10 February 2020 the landlord visited the neighbour together with the Police. The neighbour agreed to sign the ABA and the landlord was satisfied that the neighbour was co-operating and it noted that she was prepared to try mediation.
The landlord said that it closed the case at this stage as there was no further action it could take at this time.
On 4 March 2020 the resident reported further noise nuisance to the landlord. It reminded him of the terms of the agreed action plan and the need to involve local authority noise team. It explained to the resident that the report he was making was not considered ASB, and was general living noise, and that it would not be taking any action against the neighbour at this stage. If the local authority noise team consider the issue to be a statutory nuisance, they will take appropriate action and the landlord will liaise with them accordingly.
Further noise nuisance reports were made by the resident on 6 March and the landlord reiterated its stance based upon the agreed action plan.
On 3 April 2020 the landlord said that it had received communication from the local authority noise team which said they had considered the noise recordings the resident had submitted to them, and that there was no action they could take at that time. The landlord explained to the resident why it was not taking any further action at this time given that the reported noise was not deemed to be a statutory nuisance.
On 6 April 2020 the landlord offered the resident the option of mediation again, which he declined. It also offered to make a referral to the mental health services if he felt this would help.
On 15 April 2020 the landlord asked the Police to ‘door knock’ both parties to check up on them and see if they could help in any way and to see if mediation would be possible. The Police noted that the neighbour was agreeable to mediation and had offered practical suggestions but the resident declined.
On 21 April 2020 the landlord said that it had listened to further noise recordings submitted by the resident and these did not constitute noise nuisance. During further correspondence with the resident, mediation was again offered as was advice on mutual exchanges/swaps, which the resident said he would consider.
The landlord’s records are not entirely clear, but it would appear that it received correspondence from the resident’s MP on 22 April 2020 about the noise issues. It responded to the MP on 23 April 2020 and explained that it had listened to the noise recordings provided by the resident and it was unable to hear noise which would require any further action against the neighbour. It advised that it had made three offers of mediation and the neighbour had signed an Acceptable Behaviour Agreement. It had also asked the Police to speak to both parties to try and mediate and the neighbour had agreed to ensure that her children’s play times were monitored and managed so as to minimise any noise nuisance.
It asked that the resident engage with the landlord and the Police to try and find an amicable compromise resolution. It maintained that the best way forward would be for both parties to engage in mediation at this stage.
The landlord said it spoke to the resident on 24 April 2020 and it was advised by the resident that he would be looking at taking his own legal action against the neighbour for noise nuisance, and that he was actively looking at mutual exchange applications.
On 29 April 2020 the resident logged a formal complaint on the landlord’s online complaints form:
1. He complained about the ‘constant stamping and running’ from the flat above at all times, especially in the early hours in the morning.
2. He acknowledged the offer of mediation, but he felt this would not solve the noise problem. He was also unwilling to sign a behaviour order as he had not done anything wrong.
3. He referenced his attempts to talk with the neighbour and he said they were not willing to do so and had called the Police on him a few times, and on one occasion the neighbour had pushed him away.
On 6 May 2020 the landlord confirmed to the resident that it had listened to his recordings and it could not hear any noise nuisance that would require any further action.
The landlord’s records show that it tried to contact the resident a couple of times to discuss the complaint. It spoke to him on 20 May 2020 and its records show that the resident’s focus was on removing the tenants from the above property, which the landlord explained was not possible. At this conversation it was noted that the resident had sent over 500 emails and it was not possible to answer every single one.
The resident continued to send noise recordings to the landlord, and on 27 May 2020 it explained that daily living noise would not normally warrant further action and confirmed the best option was to try mediation. The landlord asked the resident to provide details of his contact with the local authority noise team so it could consider the matter further.
The landlord formally acknowledged the complaint on 28 May 2020. Its internal correspondence showed that on 3 June 2020 it arranged to get a second opinion on the noise recordings and it was confident that the recordings did not justify any further action being taken against the neighbour and that it would not ‘penalise a family for their children playing’. The neighbour had agreed to limit and control the children’s play times and had agreed to mediation but the resident was not willing to engage on this. As such, it was left with no option but to complete the complaints process on the basis of the available evidence to date.
The landlord issued its final complaint response on 10 June 2020:
1. It said that it had listened to the call recordings and it had liaised with the ASB team and it concluded that this did not demonstrate ASB which would require it to take further action against the neighbour as the noise complained about was deemed to be day to day noises.
2. It had made several offers of mediation and had explained how this may help resolve the situation.
3. It had provided advice on what steps the resident could take to pursue any legal action himself against his neighbour directly and how the local authority noise team could also help.
4. It had sent the resident information on the mutual exchange process.
5. It liaised with the Police and tried to get them involved with informal mediation.
6. It concluded that, as the resident was not willing to accept any of the suggestions made by the landlord, it would now close the case on the grounds that it had tried to support him as best it could to try and resolve the situation.
7. It confirmed that this was its final response and the next stage was a referral to the Housing Ombudsman Service.
The resident referred the matter to this Service in June 2020. Whilst the case was awaiting further action by this Service, we were provided with further updates from the landlord. In particular, the landlord advised that it had taken legal action against the resident to seek an injunction against him for unacceptable behaviour as he had sent the landlord almost 5000 emails in the space of about six months.
As part of its submissions to this Service the landlord re-reviewed the complaint and it advised us in May 2021 that it had identified a service failure in its complaint-handling. It said that its ASB team had failed to respond directly to the resident when it responded to his MP in April 2020. In recognition of this failure it had offered the resident £150 compensation for ‘not getting a response directly to them as well as via the MP, which would have been a better service’.
The Ombudsman understands that the neighbour moved to a new property in May 2021.

Assessment and findings

The landlord’s handling of the noise reports

The Ombudsman’s role includes an assessment of whether the landlord has followed its procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the actual noise reports or to assess the credibility of the noise reports made by the resident. Our role is to consider the landlord’s response to the reports it received, and to the formal complaint, and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
It is noted that the resident has sent both the landlord and this Service a large amount of emails and noise recordings. Whilst the resident’s dissatisfaction with the landlord is duly noted, the report will not be addressing each and every specific issue or incident. Rather, the Ombudsman has carefully considered all the available evidence and the report will take a view on the landlord’s overall handling of the matter.
Looking now at the key issue, the main area of complaint is with regards to the reports of noise disturbance made by the resident against the neighbour who lives in the flat above. The landlord has evidenced that it responded reasonably and proportionately to the reports, and whilst the amount of reports made by the resident were considerable, the subject matter of the reports was the same in terms of the noise caused by the children.
The landlord met with both parties and listening to the large amount of noise recordings collated by the resident. It spoke with the neighbour to understand the situation, and it took into account that the neighbour had three small children under the age of four in a small flat. As such, it acknowledged that it would be difficult for the neighbour to minimise the noise caused by the children in those circumstances.
Nevertheless, it took into account the concerns raised by the resident and it attempted to mediate a resolution informally by liaising with the neighbour to discuss how to minimise any noise disturbance for example being more mindful about the children’s playtime to take into account the resident’s work hours.
In this particular case the evidence shows that the landlord responded in an appropriate manner to the reports made by the resident, and it took steps to investigate these reports. Given the nature of the reports, it was reasonable for the landlord to treat this as ASB-related nuisance in line with its ASB policy and procedure. It can be seen from the evidence that the landlord dealt with the reports in a timely manner and liaised, as required, with all parties involved, including the Police, and the local authority noise team.
It is acknowledged that there were numerous reports made by the resident to the landlord about the noise disturbance, but the number of reports, in itself, is not an indication that the landlord was required to take any further action. The landlord was satisfied following its investigations that these reports did not amount to ASB that required any formal action. The reported incidents were considered by the landlord (and the local authority noise team) to be matters related to general household living noise. The recordings compiled by the resident were reviewed by the landlord, and it was reasonable of the landlord to conclude that the noise did not amount to ASB that would warrant any tenancy enforcement action against the neighbour. This decision was also supported by the fact that the local authority noise team had also listened to the recordings and had concluded that the noise being complained about would not warrant any formal action against the neighbour.
In its final complaint response the landlord rightly acknowledged that, whilst the evidence did not presently support or justify any formal action against the neighbour, it did highlight the potential benefit of mediation, which can often help diffuse ongoing situations such as this.
The Ombudsman is satisfied that the landlord has appropriately evidenced that it has taken into account all the information and its subsequent decision, and the rationale for not taking any further action against the neighbour at that time, was reasonable in light of the available evidence.
The resident is unhappy with the landlord’s decision and has said that he does not feel supported by the landlord. The resident’s concerns are duly noted however, the landlord is not being unreasonable when it says that it cannot take tenancy enforcement action against the neighbour unless it has sufficient evidence to do so. The evidence available up till the time of the final complaint response in June 2020 shows that the landlord’s handling of the reports was reasonable and the landlord had acted appropriately in its handling of this matter.

The landlord’s handling of the associated complaint

The landlord’s complaints policy sets out how it handles complaints and the timeframes for its responses. Looking at the facts of this case, it is noted that the landlord did not progress the complaint efficiently or in line with its complaints policy. The landlord’s records are not as clear they should be, and it looks like a complaint was received via the resident’s MP on 22 April 2020. It is not clear if this was logged and treated as a formal Stage 1 complaint, but a complaint response was nevertheless issued to the MP the next day.
The landlord’s records show that another formal complaint was submitted on 29 April 2020 by the resident directly. This complaint was not formally acknowledged by the landlord until 28 May 2020 – some four weeks later. There is no evidence to show that a Stage 1 response was ever issued, and it would appear that the landlord only ever issued one (final) complaint response to this complaint on 10 June 2020. As such, the available evidence suggests that the landlord’s handling of the complaint was not in accordance with its complaints policy.
The landlord has belatedly acknowledged in May 2021 that there was service failure in its handling of the complaint. Specifically, in respect of its failure to provide the resident with a complaint response when it responded to his MP. The landlord has apologised for this and has offered the resident £150 compensation.
Looking at the overall handling of the complaint itself and taking into account the service failures with the complaint handling, the Ombudsman is satisfied that the landlord’s compensation of £150 is reasonable redress in this instance.
The landlord is reminded that the finding of the reasonable redress outcome is dependent upon the landlord making the requisite compensation payment to the resident in line with the Ombudsman’s recommendation below.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s concerns about noise-related anti-social behaviour from his neighbour.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord has made a reasonable offer of redress in respect of its handling of the complaint.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the resident’s concerns and it has demonstrated that it responded appropriately to the various reports and it acted in a reasonable manner and in line with its ASB policy and procedure. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of the reports was reasonable and its decision not to take action against the neighbour was appropriate, and the steps it took were proportionate to the nature of the reports.
With regards to the complaint handling, the landlord failed to act appropriately and in line with its complaints procedure. The Ombudsman is satisfied that the landlord failed to respond to the complaint in a timely manner and unnecessarily delayed the completion of its internal complaint process. However, the landlord has acknowledged service failure and has offered reasonable compensation.

Orders and recommendations

Recommendation

If it has not already done so, the landlord to pay the resident the £150 compensation it offered him in May 2021 in respect of the complaint handling service failure.