Clarion Housing Association Limited (202003873)

REPORT

COMPLAINT 202003873

Clarion Housing Association Limited

29 June 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 complaint refers to:
1. The landlord’s handling of the resident’s reports of antisocial behaviour and noise nuisance.

Background and summary of events

The resident is a tenant of the landlord. The property is a flat within a block of flats. The resident’s neighbours live in the flat above.
A member of the neighbour’s household has a disability which made it more difficult for the neighbour to reduce the noise level in their property.
On 20 July 2020, the resident emailed the landlord and explained the following:
1. He noted that the relationship between himself and his neighbours had significantly changed. He said that on 14 July 2020 a high level of noise coming from his neighbour’s flat caused his windows to rattle. He attempted to call the neighbours, but they did not answer. The following day there was a repeat of the excessive noise; he tried to call the neighbours again, but the calls went straight to voicemail.
2. He explained that he was working from home and the excessive noise began during a video conference with his manager. This was the second week of a new job and his working environment needed to be reasonably quiet. As the neighbours were not answering his calls, he knocked on their door and was met with hostility. He asked his neighbours to consider that he was working in his living room when managing the movement of their children through the property. The neighbours had asked him not to knock on their door or call again, which he agreed to.
3. On 17 July 2020, the police attended the property as they had received a complaint of harassment from his neighbours. The police advised him to have no interaction with his neighbours and that the matter was now on record. The resident expressed concern that the noise would worsen as the neighbour’s children grew and said that this was currently affecting his family’s mental health. He also advised that he could not avoid his neighbours as there was a shared communal hallway and stairway.
4. He asked the landlord to find his neighbours an alternative, ground-floor property so that they were less burdensome on other residents. He also asked for the landlord to call him weekly with an update on the progress of this move.
The landlord acknowledged the resident’s email on 22 July 2020 and said that it would respond shortly.
The resident sent a further email to the landlord on 29 July 2020 and advised the following:
1. He reported that on 25 July 2020, the neighbour’s child had thrown several objects out of his neighbour’s window onto the balconies and the road below. This was not the first incident and these objects often included toys, food, clothing, and crockery, some of which had hit passing pedestrians.
2. He expressed concern that the neighbour’s child may one day climb through the window and fall as they now knew how to open the windows and the front door. He stated that a ground-floor property would limit this risk. He again asked the landlord to provide weekly updates on the progress of its case.
On 31 July 2020, the resident contacted this Service and explained that the case had stood still for several months and was not considered closed by the landlord.
Following contact from the resident, this Service wrote to the landlord on 21 August 2020 and asked it to respond to the resident within 15 working days. The landlord responded on 25 August 2020 and said that it had contacted the resident and would provide a complaint response within ten working days.
The landlord issued its stage one complaint response to the resident on 4 September 2020 and explained the following:
1. It said that it had discussed the ASB concerns with the resident over the phone on 25 August 2020. It had explained the difference between ASB reports and complaints and said that the resident could raise a complaint about its handling of his ASB case.
2. It confirmed that an ASB case was opened on 22 May 2020 and was currently “live”. It explained that his case did not currently meet the threshold for a management transfer, but other rehousing options were available to him, including a mutual exchange if he wished to move. It had also considered soundproofing for the building, although its surveyors had advised that this was not possible.
3. It advised that due to the complex nature of the case, it had sought expert advice from its ASB consultant. It was currently unable to consider tenancy enforcement action against the resident’s neighbour as this would be disproportionate given to the nature of their family member’s disability. It ensured that it was exploring other options to resolve the issue.
4. It explained that it had not identified any service failures in its handling of the ASB case and was confident that it had complied with its policies and procedures on this matter. It advised that it would continue to liaise with the resident regarding the case until it achieved a satisfactory resolution. It confirmed that if the resident remained dissatisfied with its response, he could escalate his complaint to stage two of its complaints procedure.
The resident responded to the landlord on 10 September 2020 and explained the following:
1. He expressed dissatisfaction that he had raised several concerns regarding his upstairs neighbours since May 2020 and had received little support from the landlord. He said that there had been constant, excessive noise which was exacerbated as the neighbour’s child got older and by the lack of noise dampening of the hardwood flooring in the neighbour’s flat .
2. He added that the relationship between himself and his neighbours had become increasingly toxic and confrontational, leading to false accusations being made and multiple visits from the police.
3. He said that the landlord’s response had only offered one option as a resolution, which was for his family to vacate the premises. He did not feel that this was appropriate as he had lived in the property for many years and his family were the victims rather than the culprits of the noise. He added that vacating the property would not resolve the underlying issue for the new tenants of his property.
4. He explained that the situation had affected his family’s mental health due to the unavoidable, excessive noise and asked the landlord to elaborate on why it would not consider installing soundproofing to the property above.
The landlord wrote to the resident on 11 September 2020 to acknowledge his recent report of ASB from his neighbours and provide a case reference number.
On 24 September 2020, the landlord approved a management transfer for the neighbour on discretionary grounds. This was on the basis that the alternative property was on the ground floor.
The landlord provided its stage two complaint response to the resident on 9 November 2020 and explained the following:
1. It confirmed that it had now agreed to a management transfer for the resident’s neighbours. It said that whilst a date was not yet agreed, it meant that the sound problems would not be an issue in the future.
2. It explained that it had reviewed the ASB cases to ensure that it had followed its ASB policy and procedure. An ASB case was opened in May 2020 and was logged as a counter-allegation against the resident. As the resident was not the complainant on this case, it was not able to create an action plan for the resident at that time. A further ASB case was opened on 11 September 2020 with the resident logged as the complainant. It explained that both parties were regularly updated on the case’s progress throughout and found no evidence that its ASB policy had not been followed.
3. It confirmed that the information it had provided in relation to the soundproofing was correct. It had considered the possibility of carpeting the floor but had decided that this would not be a sufficient standalone intervention given the high-impact noise transfer experienced.
4. The landlord apologised for the options related to re-housing offered in its stage one complaint response. It understood that having lived at the property for many years this may have been distressing for the resident and acknowledged that it could have been more compassionate when offering this advice. It offered the resident £50 in recognition of the distress caused.
5. It explained that it could not take tenancy enforcement action against the neighbour as the noise was caused by the disability of a member of the neighbour’s household. It had been advised by its ASB consultant to transfer the neighbours to an alternative property (a management transfer). It confirmed that the management transfer was approved in September 2020, and the neighbours would be offered a property in due course. It could not confirm a moving date as it would need to find a ground-floor property of suitable size in an agreeable location. It stated that it would continue to review the status of the management transfer monthly until a suitable property became available.
6. It acknowledged that the resident’s escalation email was sent to multiple members of staff which caused a delay in progressing the complaint. It apologised for the delay and offered the resident an additional £25 compensation in view of this.
The landlord wrote to the resident on 5 February 2021 and confirmed that following a telephone call it would be closing the current ASB case. It said that the management transfer request was still ongoing and would be kept open until a resolution was found.
The resident contacted this service on 12 March 2021 and expressed dissatisfaction that his neighbours had not yet been offered any alternative properties following the approval of the management transfer in September 2020.
The landlord’s records show that it completed work to install sound proofing underlay to the neighbour’s flooring in April 2021. This was installed to reduce the sound transference and was reported to reduce the noise heard by the resident by 10%.

Assessment and findings

Scope of investigation

The Ombudsman does not doubt the resident’s comments regarding his family’s health conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, consideration has been given to the general distress and inconvenience which the situation may have caused the resident and his family. The resident may be able to make a personal injury claim against the landlord if he considers that his or his family’s health has been affected by the landlord’s actions. This is a legal process, and the resident should seek independent legal advice if he wants to pursue this option.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance.

It is outside the Ombudsman’s remit to determine whether residents were subjected to ASB or nuisance. Instead, the Ombudsman’s role is to consider the appropriateness and adequacy of the actions taken by the landlord to investigate and respond to the resident’s reports of noise from a neighbouring property. The Ombudsman considers whether the landlord has acted reasonably, proportionately and in line with its policies and procedures.
In line with its antisocial behaviour policy, the landlord has an obligation to investigate reports of ASB and respond appropriately. The resident has accused his neighbours of noise nuisance, which would fall under the heading of ASB, as set out in the landlord’s ASB policy. Therefore, the landlord would have been expected to investigate and take reasonable steps to resolve the ASB. For a landlord to take formal action regarding ASB, such as written warnings, injunctions etc, the landlord would require extensive evidence of the alleged behaviour. A landlord should generally only consider taking formal action if informal attempts have not successfully resolved the issues. It should also consider any vulnerabilities or disabilities when deciding whether enforcement action is appropriate, as it may be more suitable to liaise with support services in some cases.
In this case, the landlord has taken reasonable steps to investigate the resident’s reports of excessive noise by asking the resident to complete diary entries from September 2020. It has also said that regular telephone calls took place to both the resident and neighbour to discuss the situation and provide updates; this has not been disputed by the resident. However, the records of these calls have not been provided to this Service for review.
The landlord has provided a satisfactory explanation to the resident as to why it would not be able to take any tenancy enforcement against his neighbour. It was reasonable for the landlord not to take formal action against the neighbour because a member of the neighbour’s household had a disability which made it more difficult for them to reduce the noise level in their property.
The landlord had, however, acknowledged that relocating the neighbours could be the quickest solution to the resident’s reports of noise and concerns about items being thrown from the upstairs flat. The landlord took appropriate action by discussing the possibility of a management transfer with the neighbour and used its discretion to allow this to go ahead. It is noted that the landlord was not strictly obliged to offer the management transfer as the neighbour did not meet the threshold for this, but it was reasonable for the landlord to offer this to resolve the noise issues. This also shows that the landlord took the resident’s reports of noise issues seriously and took action to find a solution.
The resident has said that he remains dissatisfied because his neighbours have not been moved following the approval of the management transfer in September 2020. This Service has not asked the landlord for detailed information on the progress of the transfer as it would involve us gathering personal information about other residents without their consent. We are therefore limited in how far we can look at the landlord’s handling of the resident’s neighbour’s transfer. The landlord would only be expected to provide limited information to the resident concerning the transfer; it could tell him that a transfer has been offered and tell them if the transfer is going ahead, but it would not be appropriate for it to share specific information about the neighbour’s transfer due to regulations surrounding data protection.
The landlord has kept the resident updated and confirmed that the management transfer would remain active for his neighbour until a suitable property was sourced. Whilst it is understandable that any delay may be frustrating for the resident due to the ongoing noise issues, social landlords have limited stock of properties and would need to wait for a suitable ground–floor property within a desired area to become available for the neighbours, as the management transfer was approved on this basis. The landlord has provided evidence that it continues to review the management transfer with the neighbour to find a suitable property, which is in line with its management transfer policy which states that if a suitable property is not readily available, the on-going need for a management transfer will be regularly reviewed. The Ombudsman is satisfied that the landlord has not caused any unreasonable delay to the neighbour’s management transfer.
The resident expressed concern that the landlord had initially said that the installation of soundproofing underlay or carpet would not be possible in its stage one complaint response. It would have been helpful for the landlord to have provided a further explanation as to why this was the case. However, the resident was not significantly disadvantaged by this as the landlord had no obligation to provide carpet or underlay for the neighbours. Overall, the initial decision not to install soundproofing was reasonable as this would be considered an improvement to the property. The landlord is expected to maintain the property but it is not obliged to carry out improvements. Furthermore, the soundproofing was only expected to reduce the noise transference by 10% and would not be considered sufficient to fully resolve the noise issues for the resident. It was reasonable for the landlord to review this decision and install underlay and carpet in the neighbour’s property in April 2021 as the noise transference was ongoing and an alternative property had not been sourced by this stage several months after the transfer was approved.
The landlord has acknowledged that its advice to the resident regarding his own rehousing options may have been distressing as he had lived at the property for many years and was now being advised to move. The landlord took reasonable steps to apologise to the resident for this aspect of its communication and has offered £50 compensation in recognition of the distress caused. This amount is in line with the Ombudsman’s own remedies guidance (published on our website) and is proportionate to the distress experienced by the resident as a result of this issue.
The landlord has also acted appropriately by acknowledging that it did not provide its stage two response within its 20-working day timescale and has offered £25 compensation in recognition of this delay. This amount is also proportionate to the inconvenience experienced by the resident because of the delay, in line with the Ombudsman’s remedies guidance.
In summary, there has been no maladministration by the landlord in respect of its handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance. The landlord has taken appropriate steps to offer a long-term resolution for the resident by arranging a management transfer for the neighbour. The delay to this transfer would be outside of the landlord’s control as it would be dependent on a suitable property becoming available. The landlord has also shown that it continues to monitor the noise reported by the resident and has taken steps to install underlay and carpet to reduce this, despite not being strictly obliged to do so. It has also taken reasonable steps to address concerns related to its communication and complaint handling prior to investigation and offered compensation which is proportionate to the inconvenience experienced by the resident caused by these issues.

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 reports of antisocial behaviour (ASB) and noise nuisance.

Reasons

The landlord has acted appropriately by taking suitable action which was proportionate to the noise issues being reported. When deciding what action to take the landlord had to take into account the reasons why it was difficult for the neighbour to control noise from their property.
The landlord has confirmed that it would continue to review the neighbour’s management transfer until a suitable property was found and has gone beyond its obligations by installing underlay and carpeting to the neighbour’s property to help reduce the noise. It has also taken steps to address concerns related to its communication and complaint handling prior to investigation and offered compensation which is proportionate to the inconvenience experienced by the resident because of its actions.

Recommendations

It is recommended that the landlord pays the resident £75 as previously agreed if it has not already done so.
It is recommended that the landlord reviews its record-keeping practices to ensure that detailed notes of all calls with its tenants are retained so that they can be provided to this Service upon request, in response to a complaint.