Croydon Council (202000081)

REPORT

COMPLAINT 202000081

Croydon Council

9 December 2020

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 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 the landlord’s:
1. Response to and handling of the resident’s reports of noise nuisance
2. Complaint handling

Background and Summary of Events

Background

The resident is the tenant of the property (the property) which the complaint concerns. The landlord owns the property.
The property is a first floor flat.
The landlord is a local authority. Where a landlord is a local authority this Service can only look at the landlord in relation to its housing activities so far as they relate to the provision or management of social housing. This does not include the actions of the local authority’s Noise Pollution Team (the NPT) as it is not a function undertaken for the purposes of housing management. However the Ombudsman would generally expect to see that a landlord’s housing management team has liaised with the NPT and acted on any advice or information provided by it.

Summary of events

On 9 October 2019 the resident wrote to the landlord to “make a formal complaint” about the landlord’s response to and handling of his noise nuisance allegations. In summary the resident said:
1. The noise nuisance was “excessive noise from a neighbour playing very loud music at various unsocial hours”. The resident noted that the noise caused “vibrations”.
2. The noise nuisance was impacting on his health causing him “distress” and loss of sleep. The resident noted that his GP had prescribed him medication.
3. He first reported noise nuisance to the Noise Pollution Team (NPT) in 2017. The resident confirmed that the NPT arranged for noise monitoring equipment to be installed in the property for a period of a week, however it did not detect any noise. The resident said that he was informed that the equipment only recorded him “lying down”.
4. Following the noise monitoring equipment he contacted the NPT again who advised him to contact his tenancy officer for assistance.
5. His tenancy officer (officer A) told him to keep diary sheets documenting the noise nuisance, however despite doing so “no action was taken”.
6. Following further complaints to officer A he was informed that a DAT recording machine would be placed in the property to gather evidence however “to date” the machine had not been provided.
7. Despite officer A stating that they would provide other residents in the block with diary sheets to document noise nuisance they had not done so.
8. The conduct of his current tenancy officer (officer B) had been unprofessional during a recent telephone conversation as they had told him to “do what I want” in respect of the noise nuisance.
On 11 November 2019 the landlord provided its stage one response. In summary the landlord said:
1. It was aware that the NPT had installed noise monitoring equipment in the property in 2017 which did not pick up any noise nuisance. The landlord said that as no noise was detected it could not take any action.
2. Its records indicated that the resident’s noise nuisance allegations were passed to officer A in October 2018. The landlord confirmed that officer A completed a home visit on 31 October 2018 in response to the allegations where they “encouraged [the resident] to contact the noise pollution team” so that it could witness the noise.
3. Officer A arranged for diary sheets to be issued to all residents on 5 November 2018 which were collected on 12 November 2018. The landlord confirmed that, apart from the resident’s diary sheets, “no other residents submitted any information identifying noise nuisance”. The landlord noted that while collecting the diary sheets officer A spoke with five residents within the block and none reported any issues with noise. The landlord said that officer A provided the resident with details of the outcome of the “witness appeal”.
4. Officer A encouraged the resident to continue to document noise nuisance and confirmed that they would arrange for noise monitoring equipment to be installed in the property again. The landlord apologised that the equipment had not yet been provided.
5. Officer A was no longer employed by it so it would arrange for a tenancy sustainment officer (officer B) to visit the resident to discuss the ongoing problem.
6. The resident should continue to contact the NPT each time he was confronted with noise nuisance.
The landlord concluded that the resident may request to escalate his complaint if he was not satisfied with its investigation of his complaint.
On 15 November 2019 the resident responded to the landlord’s stage one response. The resident said that he found the landlord’s response to be “highly offensive”. The resident said that the landlord’s “casual and slow approach” was unhelpful. In response the landlord said that it was sorry that the resident found its response to be offensive and unhelpful. The landlord confirmed that it was arranging for officer B to visit the resident, “hopefully next week”, to discuss the noise nuisance.
Between December 2019 and February 2020 the resident and landlord corresponded regarding the noise nuisance. The resident said that the noise nuisance persisted. The landlord said that it would investigate in line with its “procedure” and it was “still actively” seeking a noise monitoring machine to install in the property to capture the noise.
In March 2020 the resident contacted the Ombudsman in respect of his complaint. In summary the resident said:
1. Despite his complaint the landlord had failed to take action to investigate or address the noise nuisance. The resident said the landlord had still not undertaken a second exercise of noise monitoring despite promising to do so.
2. He had experienced noise nuisance since 2017 which was “loud humming and echoing”, “vibrations”, “music playing and stopping from 10pm to 3, 4 and even 5am continuously”. The resident said that the noise was disturbing his sleep and having “a big impact” on his health.
3. He had provided records of the noise nuisance to the landlord on many occasions and to many different officers.
4. The noise monitoring exercise undertaken in 2017 only captured him “lying down”.
5. He had attempted to escalate his complaint with the landlord however had not been successful.
6. His employer, who was the CEO of a mental health charity, had written to the landlord regarding the noise nuisance however the landlord had not responded.
7. His MP had made a request to the landlord, on his behalf, to return his completed diary sheets, however the request was ignored.
On receipt of the resident’s referral the Ombudsman contacted the landlord on 30 April 2020 to request that it review the resident’s complaint.
On 8 May 2020 the resident wrote to the Ombudsman advising that the landlord had committed to providing a stage two response by 2 June 2020. Within his correspondence the resident noted that the noise nuisance persisted, noise monitoring equipment was still outstanding, and the landlord had informed him that it had not received a copy of his escalation request.
On 1 June 2020 the landlord provided its stage two (final) response. In summary the landlord said:
1. It had reviewed its records dating back to 2017 in respect of the resident’s noise nuisance reports. The landlord said that it was “confident” that it took measures to try and assist the resident in relation to the noise nuisance in 2017. The landlord confirmed that this included advising the resident to contact the NPT and investigating the resident’s allegations “many times”.The landlord advised that it also made appointments to visit the resident however these were “unsuccessful” as the resident was not home. The landlord noted that the NPT installed noise monitoring equipment in the property for one week.
2. The noise monitoring exercise in 2017 only captured noise from within the property.
3. It was aware that the resident had been waiting “a long time” for a second noise monitoring exercise to be undertaken. The landlord explained that the delay was because its own equipment was broken. The landlord confirmed that it was unable to borrow equipment from its Anti-Social Behaviour Team as they were all in use.
4. It was in the process of purchasing new noise monitoring equipment as a priority.
5. The exercise would be further delayed due to Covid-19 and social distancing.
6. Following its stage one response the resident’s current tenancy officer (officer C) visited the resident in February 2020. The landlord advised that officer C explained that the landlord was in the process of purchasing new noise monitoring equipment.
7. Officer C contacted the NPT on 6 March 2020 to check the availability of its noise monitoring equipment however it was in use and there was a waiting list.
8. While the noise monitoring exercise was outstanding the resident should “record disturbances on [his] mobile phone and make a note of the date and time” in addition to contacting the NPT.
9. It was important that the resident documented the noise nuisance as it would “help to resolve the problem”.
10. It had not received any correspondence from the CEO of a mental health charity or a request to return any completed diary sheets.
11. It was sorry that the situation was impacting on the resident’s health and disturbing his sleep.
The landlord concluded by confirming that if the resident was unhappy with its response he may refer the matter to the Ombudsman for consideration

Assessment and Findings

Scope of investigation

The resident made his formal complaint in October 2019 and the landlord issued its final response in June 2020. The Ombudsman is aware that following the landlord’s final response, the landlord and resident have continued to communicate on the substantive issue of the complaint. The focus of this investigation is the matters which resulted in the original complaint and the landlord’s response to this. This is in accordance with paragraph 39(a) of the Housing Ombudsman Scheme which sets out that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure.
The resident has suggested that as a result of the noise nuisance and the landlord’s inaction, his health has deteriorated. Whilst this may be the case, it is beyond the expertise of this Service to reasonably determine a causal link between noise nuisance and the resident’s health. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought.

The landlord’s response to and handling of the resident’s reports of noise nuisance

It is noted that the resident reports that his noise nuisance concerns date back to 2017. The Ombudsman cannot see that the resident made a complaint to the landlord in 2017 regarding his handling of those concerns.
Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within six months of the matters arising.
Paragraph 39(d) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.
As the substantive issues become historic it is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the actions taken to address those issues. In view of the time periods involved in this case, taking into account the availability and reliability of evidence and the Ombudsman’s jurisdiction, this assessment will therefore only look at the landlord’s response to the resident’s concerns from October 2018, which is approximately 12 months prior to his formal complaint.
Noise nuisance can be difficult to tackle and requires a landlord to consider whether the noise is anti-social in nature or normal living. Consideration should also be given as to whether the noise is reasonable or within statutory levels. There is no single defining factor as to what constitutes a statutory noise. It is an assessment of a number of factors including the level, frequency and time of the noise.
The landlord has adopted the definition of ASB as detailed in section 2 of the Anti-Social Behaviour, Crime and Policing Act 2014 which states that “ASB means behaviour by a person which causes or is likely to cause harassment, alarm or distress to any person, conduct capable of causing nuisance or annoyance to any person in relation to that person’s occupation of residential premises or conduct capable of causing housing related nuisance or annoyance to any person”. The landlord’s ASB policy sets out that noise nuisance “can give rise to ASB concerns”.
The evidence shows that in order to fully investigate the resident’s noise nuisance concerns the landlord is waiting to complete a noise monitoring exercise in the resident’s property.
Noise monitoring equipment is an effective tool in determining the presence of noise into a property and whether it is everyday living or a statutory nuisance. The Ombudsman therefore understands why the landlord wishes to carry out a noise monitoring exercise in response to the resident’s allegations.
The Ombudsman can see that the noise monitoring exercise has been outstanding since the end of 2018. The Ombudsman is concerned regarding the time taken to complete the exercise. While the Ombudsman notes the landlord’s explanation for the delay in completing the exercise, due to availability of the equipment and then Covid-19 from spring 2020, the Ombudsman finds that more than 12 months is an unsatisfactory period of time for the exercise to be outstanding. (The Ombudsman accepts the delay from Spring 2020 due to the Government’s guidance on social distancing as this was beyond the landlord’s control). The Ombudsman has not seen any evidence that during 2019 the landlord actively pursued identifying noise monitoring equipment to install into the property until the resident made his complaint in October 2019.
As part of its complaint response the landlord noted the other actions it had taken in response to the resident’s allegations. This included a home visit on 31 October 2018, a witness appeal in November 2018, requesting the resident to complete diary sheets, requesting the resident to report noise to the NPT and meeting with the resident in February 2020.
The landlord has provided limited evidence to support these actions in the form of contemporaneous records, such as a home visit report, written exchanges with the resident and full details of the witness appeal and the other residents it spoke with. The landlord has also been unable to confirm if the resident provided completed diary sheets, as he informed this Service he did. This is unsatisfactory as a landlord should have systems in place to sufficiently document its response.
The Ombudsman cannot see that the landlord considered informing the alleged perpetrator of the allegations made against them or offering mediation between the parties. In the Ombudsman’s opinion consideration of these actions would have been appropriate including to allow the alleged perpetrator to modify any behaviour which may be causing excessive noise and which they were unaware of, and to bring the parties together.

The landlord’s complaint handling

The landlord’s complaint policy sets out that it will respond to stage one and two complaints within 20 working days.
The evidence shows that the landlord responded to the landlord’s stage one complaint within target.
On 15 November 2019 the resident responded to the landlord’s stage one complaint response. The Ombudsman notes that while the resident expressed dissatisfaction with the landlord’s response he did not state that he wished to escalate the complaint at that time. In the Ombudsman’s opinion it was therefore reasonable that the landlord responded to the correspondence informally.
The resident informed the Ombudsman that he wrote to the landlord in early March 2020 to escalate his complaint. While the Ombudsman does not dispute that the resident did do so, the Ombudsman has not seen any evidence of the escalation request and notes that the landlord advises that it did not receive a copy of the escalation request.
In response to the Ombudsman’s enquiry on 30 April 2020, sharing the resident’s on-going concerns in relation to its handling of noise nuisance, the landlord escalated the complaint. This was appropriate in order to respond to the resident’s outstanding concerns. The evidence shows that the landlord responded to the resident’s escalation request within 20 working days of receipt from the Ombudsman.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Service failure by the landlord in respect of its response to and handling of the resident’s reports of noise nuisance
2. No maladministration by the landlord in respect of its complaint handling

Reasons

While the Ombudsman understands that the landlord wishes to undertake a noise monitoring exercise in the resident’s property in response to his noise nuisance allegations, the Ombudsman is concerned that the exercise has been outstanding for more than 12 months. The Ombudsman notes that despite offering noise monitoring equipment in late 2018, there is no evidence demonstrating that the landlord took steps to progress the exercise until the resident’s complaint in October 2019.
The landlord has not been able to satisfy this Service through its records, of the other steps it said it took to investigate and respond to the resident’s noise nuisance allegations while the noise monitoring exercise was outstanding. Further, in the Ombudsman’s opinion, it was unreasonable that the landlord has not demonstrated that it considered informing the alleged perpetrator of the allegations against them or offered mediation as a resolution.
The landlord’s decision to not escalate the resident’s complaint in response to his correspondence dated 15 November 2019 was reasonable as the resident did not state that he wished to escalate the complaint at that time. The Ombudsman notes that the landlord responded to the correspondence informally.
Following notification of the resident’s continued concerns regarding its handling of his noise nuisance allegations from the Ombudsman the landlord promptly responded to the resident by providing a final response under its complaint procedure.

Orders and Recommendations

Orders

The landlord should pay the resident £300 compensation, within four weeks of the date of this report, in respect of its response to his noise nuisance allegations, and the inconvenience and distress he would have experienced as a result of the delay in noise monitoring equipment being provided to him.
The landlord has informed the Ombudsman that it has purchased noise monitoring equipment. The landlord should write to the resident within four weeks of the date of this report, to confirm plans for the instillation of the equipment in the property, taking into account any Government restrictions in relation to Covid-19.

Recommendations

The landlord should review its handling and response to the resident’s noise nuisance allegations in order to determine if any other intervention would be appropriate such as discussion with the alleged perpetrator or mediation. In doing so the landlord should take into account any data protection issues, including disclosing the source of the allegations.
The landlord should review its record keeping to ensure accurate records are kept which it may rely on when responding to a complaint.