Clarion Housing Association Limited (202015148)

REPORT

COMPLAINT 202015148

Clarion Housing Association

15 December 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 is about:
1. The landlord’s handling of the resident’s reports of noise nuisance and antisocial behaviour (ASB) from his neighbour.
2. The landlord’s handling of the associated complaint.

Background and summary of events

The resident is an assured tenant of the landlord. The property is a flat. The neighbour involved in this case lives in the property above the resident.
The landlord emailed the resident on 12 November 2020 following a phone call where the resident said he had been experiencing noise nuisance from his neighbour. This included thumping on the floor. It said it would contact the neighbour to make them aware of the allegations and attached diary sheets for the resident to complete.
The resident emailed the landlord on 3 December 2020 and expressed dissatisfaction that the landlord had said that the noise he had reported was general living noise. He said that this was not the case and that the noise had only started recently. He said that the noise was continuing and attached a noise recording from his mobile phone. He said that he had also reported the noise nuisance to the local authority for further support.
On 29 December 2020, the resident reported that his neighbour had been verbally abusive to him when he had returned to his property the previous day. The landlord called the resident on 8 January 2021 to discuss the incident prior to calling the neighbour. The landlord sent a warning letter to the neighbour on 8 January 2021 regarding the resident’s reports of verbal abuse as it was not able to contact them by phone.
The landlord called the resident on 14 January 2021 regarding the report of verbal abuse. He said that the circumstances had improved and that there had been no further incidents. He said he suspected that his neighbour had wooden flooring which was the cause of noise transference into his property. The landlord said that the noise he had described appeared to be general household noise. At this stage the resident requested the use of noise monitoring equipment. The landlord said that noise monitoring equipment would only be used in serious issues of noise nuisance when it required evidence that the noise was deliberate. The resident was advised to keep a log of all noise he experienced. The resident confirmed that the landlord could close the ASB case. The landlord wrote to the resident on 14 January 2021 advising that his ASB case would be closed This letter has not been provided to the Ombudsman.
The resident asked for a complaint to be raised on 19 January 2021 and explained the following:
1. He said that he was sent an action plan on 7 January 2021. He had a phone call with the landlord where the member of staff advised that they would contact the perpetrator. Following this, the perpetrator had admitted to being verbally abusive to the resident. The perpetrator was given a verbal warning and was advised not to approach the resident.
2. He expressed dissatisfaction that the actions the landlord had taken had not been included in its closure letter on 14 January 2021. He asked that the landlord write to him, confirming the actions it had taken.
3. He said that he had also complained about the pounding on the ceiling he experienced daily since November 2020. The landlord had suggested that this was normal noise transference. He said that he had been a tenant since 1995 and had not experienced this issue previously. He believed that the noise was intentional, which included dropping things on the floor early in the morning. He expressed concern that his neighbour did not have carpet in their property and believed that their behaviour was similar to when they had reportedly used drugs in the past.
4. He said that the landlord had appointed a surveyor to carry out an inspection. He had asked the landlord to call the neighbour to ask if they had carpeting and the member of staff had advised that they had more important things to deal with, such as ‘music blaring, domestic abuse and murder’. He did not feel that this was an appropriate response. He asked the landlord to speak to his neighbour and ask them to stop dropping items on the floor and to stop using drugs that were altering their behaviour if they were.
The landlord emailed the resident on 10 February 2021 and acknowledged that the resident had concerns that despite his neighbour being given a warning, they continued to cause noise issues early in the morning, and had left bread on the communal pathways. It said it would send a formal letter to the resident’s neighbour, reminding them of their obligations under the tenancy agreement and to ensure that suitable floor covering was fitted. It said it would update the resident when the letter was sent.
The evidence suggests that the resident contacted the landlord on 23 February 2021 where he reported that the verbal warning previously given to his neighbour was not effective. He added that his neighbour constantly made noise in the early morning as well as leaving bread on the communal pathways.
The landlord emailed the resident on 26 February 2021 and said that it had discussed the ASB case internally and found that no further action could be taken as the noise reported was considered general household noise. It said that more detail regarding the nuisance was required and it would send diary sheets in the post.
Following contact from the resident, the Ombudsman wrote to the landlord on 19 March 2021 outlining his reasons for complaint. The landlord was asked to provide a complaint response within ten working days. On the same day, the resident contacted the landlord regarding his complaint. Following the conversation, the resident expressed concern that the landlord had advised that it would only communicate with the Ombudsman and raised a further complaint regarding this matter.
The landlord confirmed that a stage one complaint had been logged on 22 March 2021. Following contact from the resident, who said he had not received a complaint response, the Ombudsman wrote to the landlord on 8 April 2021 and asked it to provide the resident with a response within five working days.
The landlord issued its stage one complaint response to the resident on 9 April 2021 and explained the following:
1. It confirmed that an ASB case had been logged on 30 December 2020. The resident had chased this in January 2021 and it had established that an initial interview or action plan had not been completed. This was completed on 7 January 2021 and was within its five working day policy time.
2. He had reported a longstanding dispute with his neighbour and an incident involving verbal abuse on 29 December 2020. The landlord had advised the resident to keep diary entries of any further incidents. A copy of the agreed action plan was posted on 7 January 2021.
3. It had attempted to contact the alleged perpetrator on 8 January 2021 but was unable to establish contact. It then sent a letter notifying them of the allegations and their responsibilities in line with their tenancy agreement.
4. It had contacted the resident on 14 January 2021 after having spoken to his neighbour. The neighbour had admitted to the behaviour and said that this would stop. The resident had confirmed that the issues had improved and that he had not seen his neighbour. He reported new issues of noise, believed to be caused by wooden flooring in his neighbour’s property.
5. It was noted that the noise did not happen every day and seemed to occur when his neighbour was getting ready for work. The landlord identified this to be everyday household noise and not at unreasonable times. It said that a noise monitoring box would not be issued as these were used for serious issues of deliberate noise nuisance. It sent a closure letter to the resident on 14 January 2021 confirming that the ASB case was closed and that the resident could report any further instances for it to investigate.
6. It apologised for the delay in issuing a complaint response and said it had arranged for £50 to be paid into his rent account as compensation. It found that it had responded to the resident’s reports of ASB within its service level timescales and the actions taken were in line with its policies and procedures. It confirmed that the resident could escalate his complaint if he remained dissatisfied.
The landlord’s records suggest that it had called the resident on 14 April 2021 to discuss counter-allegations of ASB raised by his neighbour, and to say it could refer both parties to mediation. The resident said that he felt the ASB case had not been properly investigated and should not have been closed. He also withdrew his consent to be referred to the mediation provider. The resident sent the landlord an audio recording of noise he had heard from the upstairs property to the landlord on 22 April 2021.
The resident asked for his complaint to be escalated on 23 April 2021 and explained the following:
1. He was dissatisfied with the landlord’s response and said that it was inaccurate. He expressed dissatisfaction that the landlord had failed to mention that the Ombudsman had needed to contact it on two separate occasions to prompt a response.
2. He was not satisfied that he had been told that the landlord was too busy dealing with loud music, domestic violence and murder cases to deal with his complaint of noise from his neighbour. He had also been advised that a member of the landlord’s staff would only contact the Ombudsman which is why his complaint of 20 January 2021 was not responded to.
3. He said that on 7 January 2021 the landlord had referred to his reports of noise nuisance as a long-standing neighbour dispute. He said that the historical ASB experienced was one-sided with instances of abusive behaviour on several occasions during the time he had lived in the property. He said that he did not engage with his neighbour for any reason.
4. He said that the current situation had been ongoing since November 2020, he had not experienced noise disturbances previously and had lived at the property since 1995. He began to hear the neighbour’s alarm, which woke him at 7am most weekdays. He then heard things dropping on the floor regularly which he believed to be deliberate. He disputed his neighbour’s counter complaint of noise disturbance and said that none of his other neighbours had witnessed him making noise. He believed that the counter complaint was malicious and asked that a professional witness service or noise monitoring equipment was used.
5. He said that the noise he considered to be antisocial behaviour was exacerbated by the lack of floor covering in the neighbours property. He said that this was not everyday household noise and the stomping started shortly after the alarm went off each morning. This did not happen before November 2020. He asked the landlord to take action to stop the noise he was experiencing.
The landlord acknowledged the resident’s request to escalate his complaint on 20 May 2021 and apologised for the delay in contacting him. It explained that the delay was due to a higher volume of enquiries than usual. It said it aimed to provide its response within 20 working days.
The landlord issued its stage two complaint response to the resident on 17 June 2021 and explained the following:
1. It confirmed that the initial report of ASB was not correctly raised, which caused a delay and led the resident to contact the Housing Ombudsman. The request to escalate his complaint to stage two was also delayed due to higher than usual volume of complaints and was not responded to within its published timescales. It apologised for the inconvenience and offered £100 for the service failure and delays.
2. It acknowledged that another word could have been used to describe the nature of the incidents with his neighbour other than ‘dispute’. It apologised that the resident felt that this was not a helpful way of describing the situation. It said that this had not impacted the way it had handled the matter, and it was reasonable for the landlord to note that counter allegations had been made by his neighbour.
3. It noted that following the resident’s reports of noise nuisance in November 2020, it had contacted the neighbour and asked the resident to complete diary sheets. It was satisfied with the action it had taken following the resident’s reports of an incident on 30 December 2020. It had discussed the comments made regarding handling of issues such as domestic abuse as a priority with the member of staff and found that there had been some miscommunication. It said that it continued to investigate noise nuisance during the covid-19 lockdowns but would not be carrying out home visits or attending to install noise monitoring equipment.
4. It had found that the noise the resident had reported sounded like everyday household noise. It said that the resident was more likely to experience this kind of noise due to the construction of the property. It considered that it was reasonable for it to ask the resident to complete diary sheets of the noise as this would enable it to establish whether there was an issue which meant the noise would be considered ASB. Following the resident’s further reports of noise from his neighbour, it had asked the resident to complete diary sheets again. It had then received counter-allegations of noise from his neighbour and noted that the resident felt the allegations to be malicious. It noted that the resident had asked for his ASB case to be re-opened, but it had not received any diary entries and there was no new evidence, as such the case was not reopened. It apologised that this was not communicated with the resident.
5. It found that it had handled the resident’s reports of noise nuisance correctly. The noise reported related to the new working hours of his neighbour and there was no evidence to suggest otherwise. It had listened to the noise recording the resident had supplied but could only hear faint laughing and talking which would not be considered ASB. It noted that it had not received any diary entries from the resident and encouraged the resident to complete these so that further action could be taken if necessary. It confirmed that it had referred the neighbour for investigation of the floor covering in the property.
It appears the resident submitted diary sheets and noise recordings via and app to the landlord on 25 June 2021. This was after the final response to the complaint. The Ombudsman’s role is to assess the landlord’s handling of the complaint, therefore the investigation can only focus on the period up to the date of the final response. Where issues are ongoing, such as ASB cases, and the resident remains dissatisfied with the handling of issues and incidents after the date of the final response, then these may need to be considered through a new formal complaint investigation.
The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s response. He did not believe that the noise he experienced was everyday household noise. He said that dropping items on the floor was listed as ASB. He wanted the noise to stop, soundproofing between the properties and an investigation into the counter allegations which he felt were malicious. He noted that he had sent through noise recordings to the landlord through a third party. The landlord had advised that he was on a waiting list for noise monitoring equipment to be installed.

Assessment and findings

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

In cases concerning ASB or noise nuisance, it is not the Ombudsman’s role to ascertain whether the ASB occurred, but rather, to assess how the landlord responded to the reports of ASB and whether its response was in accordance with its policies and procedures, and whether it is appropriate and reasonable in all of the circumstances. This means there can be cases where ASB is ongoing but also where the landlord has done all that it can based on the information available to it.
The landlord’s ASB policy states that ASB includes noise nuisance and will be investigated within 5 working days of the report. It encourages residents to try and resolve noise nuisance from neighbours between themselves and advises customers to report excessive noise to their local council’s environmental health team. ASB cases can be closed where the reported behaviour cannot be reasonably described as a nuisance, there is no evidence to support the claims or where the complainant or perpetrator will not try other approaches, such as mediation, where there is not enough evidence to take any more formal action.
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 neighbour of noise nuisance, which would fall under the heading of ASB, as set out in the landlord’s ASB policy. A landlord should generally only consider taking formal action if informal attempts have not successfully resolved the issues. Informal actions include asking the resident to complete an ASB diary, interviewing the perpetrator, sending warning letters or referring the two parties to a mediation service.
For a landlord to take formal action regarding noise, such as written warnings, injunctions or eviction proceedings etc, the landlord would require extensive evidence of the alleged noise and behaviour. The landlord must also remain impartial between its two residents as it would not be fair to take action against one resident based only on the reports of another. Therefore any formal action requires sufficient independent, corroborating evidence.
Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both the landlord and the local authority’s Environmental Health service may be able to warn and take formal action against the perpetrator.
The landlord’s response to the resident’s initial noise report in November 2020 was reasonable and in line with its ASB policy. It asked the resident to complete diary sheets and contacted the neighbour regarding the allegations. There is no evidence to suggest that the diary sheets were completed and returned to the landlord at this time. There is also no corroborating evidence on file from other neighbours or authorities. As such, there were limited steps the landlord could take to resolve the issue as there was a lack of evidence to support the resident’s claims. A landlord can only be expected to act in relation to ASB if it is aware that the ASB is ongoing. Given the resident’s reports were about thumping and hearing the neighbour’s alarm, and the noise was in the morning and not at night, it was reasonable for the landlord to initially identify the noise experienced as everyday household noise.
Following the resident’s report of an incident on 29 December 2020, it was reasonable for the landlord to open an ASB case, discuss the incident with the neighbour and send a warning letter. It was reasonable for this ASB case to then be closed as the resident had reported no further incidents of this nature and had agreed that no further action was required. He continued to report ongoing noise transference into his property and was asked to complete diary sheets. It is noted that the resident had asked for noise monitoring equipment to be installed at this stage and his request was refused. This was reasonable as the resident had not provided diary sheets which suggested that the noise was ongoing and there was no other corroborating evidence. The landlord took reasonable steps to explain its position to the resident on 26 February 2021, where it advised that no further action could be taken until diary sheets were completed.
It is noted that following this, the neighbour made counter-allegations of noise nuisance from the resident. Where counter complaints are made, the landlord would require evidence from both parties to determine the action it could take. It was reasonable for the landlord to offer mediation to resolve the continued conflict between the resident and his neighbour. Mediation is not compulsory, and the resident would be entitled to refuse to participate. However, it was reasonable for the landlord to offer this as an option as it can help to resolve neighbour disputes in some cases. It is noted that the resident feels that the noise he experienced was deliberate and the counter complaint raised by his neighbour was malicious. The landlord would be expected to treat all reports of noise and ASB impartially and it was reasonable for the landlord to at least notify the resident and discuss the counter-allegations with them. Ultimately there was a lack of independent evidence to support the claims of either party and it was reasonable for the landlord to take no further action at this stage.
It is noted that the resident was under the impression that the landlord would not investigate his reports of noise as it had ‘more important things to deal with such as domestic abuse and murder’ following a phone conversation. The landlord has made reasonable efforts to discuss this with the member of staff who established that there had been some miscommunication. Whilst we are not able to establish what was said, the landlord has offered a satisfactory explanation and has said that it was not able to complete home visits during the period as a result of the Covid-19 restrictions. This was an appropriate restriction to its services given the unprecedented circumstances. The landlord demonstrated that it was taking reasonable steps to seek evidence of the resident’s claims of noise nuisance by asking him to complete diary sheets.
The landlord did say it would arrange for the neighbour’s flooring to be checked to establish whether this was contributing to the noise the resident was experiencing. However, it is not clear whether this investigation was completed. As such it is recommended that the landlord carries out this action within the next four weeks and confirms its position to the resident.
Although we were still able to determine this case using the information that was available, the landlord was not able to provide significant items such as the initial ASB case related to the resident’s reports of noise. The omissions indicate poor record keeping by the landlord in that it was not able to provide the relevant information when asked. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. More importantly, in ASB cases the need to demonstrate consistent, ongoing ASB makes the records even more important. However in this case the correspondence from the time, as well as the other information provided by both parties, was sufficient to show how the case had been handled. The dispute ultimately was not about what had happened, but about the interpretation of the ongoing noise and what the landlord should do about it.
The resident has asked the landlord to install sound proofing. Sound proofing is considered an improvement and so is outside the landlord’s repairing obligations. Equally building regulations are not retrospective therefore older buildings may not have the sound proofing of newer buildings. Regardless, the initial priority (subject to any ongoing Covid-19 restrictions) would be to check the floor coverings.

The landlord’s handling of the associated complaint.

The landlord’s complaints policy states that it has a two-stage complaint procedure. At stage one, the landlord should respond within ten working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two, the landlord should provide a response within 20 working days. If at any stage, there is likely to be a delay, the landlord would be expected to contact the resident, explain the reason for any delay and provide a new timescale for when they should expect to receive a response.
In this case, the resident originally asked for a complaint to be raised on 19 January 2021. The Ombudsman contacted the landlord on 19 March 2021 as the resident had not received a response to his complaint. The landlord then confirmed that the complaint was logged on 22 March 2021. The Ombudsman made further contact with the landlord on 8 April 2021 and a stage one complaint response was issued on 9 April 2021. It is not disputed that this response was issued outside of the landlord’s timescales at stage one. The landlord offered £50 compensation and explained that the complaint was not initially raised to the correct department which had caused the delay.
The resident asked for his complaint to be escalated on 23 April 2021 as he remained dissatisfied. The landlord did not acknowledge this request until 20 May 2021 but explained that the delay was caused by a higher volume of complaints than usual. It provided its stage two complaint response on 17 June 2021 and offered an additional £50 for the inconvenience caused.
Where there are acknowledged failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. The landlord acted fairly in acknowledging its mistake and apologising to the resident. It put things right by awarding £100 compensation to acknowledge the inconvenience. This compensation award was in line with the Ombudsman’s own remedies guidance, which states that amounts in this range are suitable in instances of service failure which had an impact on the resident but were of short duration and may not have significantly affected the overall outcome for the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of noise nuisance and antisocial behaviour (ASB) from his neighbour.
In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress to acknowledge the delayed handling of the resident’s complaint which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Recommendations

It is recommended that the landlord pays the resident £100 as previously agreed, as the finding of redress was found on this basis.
It is recommended that the landlord carries out an inspection of the flooring in the neighbour’s property as previously offered within the next four weeks if it has not already done so. The landlord should also confirm its position and the actions it is able to take to the resident following the investigation.
In view of the new evidence provided by the resident after the date of the final response, it is recommended that the landlord confirms its position regarding his further reports of noise nuisance and the actions it can take to resolve the issues reported.