Leicester City Council (202006987)

REPORT

COMPLAINT 202006987

Leicester City Council

21 January 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 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 handling of the resident’s reports of noise nuisance caused by the neighbour’s dogs.

The Ombudsman has also considered the landlord’s handling of the resident’s complaint.

Background and summary of events

Background

The resident has been a Secure Tenant, in respect of the property, since 4 July 2017.

The property is a two-bedroom flat.

Legal and policy framework

Conditions of Tenancy (COT)

The landlord has provided this Service with a copy of its Conditions of Tenancy (COT) document (issued in March 2020). This details the landlord/resident agreement during the tenancy and makes clear the rights and responsibilities of both parties. The Ombudsman notes, under the section entitled Animals, that:

Residents are not permitted to keep domestic animals in certain blocks of flats and maisonettes.
Assistance animals (such as guide dogs) may be allowed in any property but residents need to request permission first.
Residents may keep domestic pets such as cats and dogs if they live in a property which has direct access to an individual garden.
All dogs must be on a lead and under proper control when in any communal area.
Residents must not allow their dogs, or any other animals, to foul any communal or other areas.
Residents must not allow any animal to behave in a way likely to frighten or cause nuisance to other residents.

The COT states that residents must comply with all of the conditions set out in the agreement and any breach of these could lead to legal action being taken.

Anti-Social Behaviour (ASB) policy

The Ombudsman has reviewed a copy of the landlord’s Anti-Social Behaviour (ASB) Policy. This details the landlord’s commitment to ensuring the quiet enjoyment of tenant homes and the steps the landlord will take in order to prevent behaviour which disrupts this. The policy lists a number of actions that the landlord may undertake, such as:

Interviews;
Agreeing a plan of action;
Keeping the complainant regularly updated;
Using early intervention tools such a as interviews, warning letters, and Acceptable Behaviour Agreements; and
Taking legal action.

Of particular relevance to this case, the policy explains that ASB cases may be closed where the complainant fails to provide information requested by the Housing Service or where no further action is possible.

Corporate complaints policy

The landlord has also provided the Housing Ombudsman Service with a copy of its complaints policy. This outlines the complaint process and explains that:

When a complaint is made, the landlord will acknowledge the complaint within three working days.
The landlord will try to reach a resolution within 10 weeks of the complaint being received.

The Ombudsman has noted that the landlord’s complaints policy consists of one formal stage.

Scope

The resident has suggested that as a result of the nuisance caused by the neighbour’s dogs, and the landlord’s lack of action over a period of two years, both her own and her daughter’s mental health suffered. While this may be the case, it is beyond the expertise of this Service to reasonably determine a causal link between the landlord’s actions (or lack of) and any deterioration in the resident’s health. The Ombudsman has therefore made no comments in relation to this. Should the tenant wish to pursue this matter, legal advice will need to be sought.

Summary of events

On 21 February 2019, following the resident’s report of excessive dog noise coming from her neighbour’s property, an Environmental Health Officer (EHO) wrote to the resident. He stated that in order to assess whether it was suitable to place a noise monitoring recorder at her premises, the resident would need to keep a diary of all noises over the next two weeks. The EHO issued the resident with several diary sheets for completion.

In further correspondence on 25 February 2019, the EHO explained that as per the procedural checklist, the resident would be contacted by a Dog Warden (DW) and the dog owner would be written to regarding the problem. The resident was encouraged to make further reports if the problem persisted, at which point, she would be given a Cellnet callout card. This would allow her to call while the dog was barking so that an officer could attend to witness and substantiate the report.

On 26 March 2019 the EHO confirmed receipt of the resident’s completed diary sheets, stating that these had been assessed and the resident had been placed on a waiting list to obtain a noise monitoring recorder. The waiting list for this was approximately 14 weeks.

On 25 July 2019 the Housing Officer (HO) wrote to the resident’s neighbour. The HO provided the resident’s neighbour with a reminder that they needed to be considerate of other residents and that communal areas needed to be kept clean. Pets were not allowed to foul in these areas, and should they do so, this needed to be cleaned up. The neighbour was also advised to be mindful of the noise.

On 29 July 2019 the resident alerted the landlord that the neighbour’s dog had fouled in the courtyard and the neighbour had not cleaned this up. The resident attached a picture to her correspondence.
It is unclear whether the resident made any further reports prior to 1 November 2019, or if the landlord responded to the resident’s correspondence of 29 July 2019, as no evidence has been provided.

The Ombudsman notes, however, that on 1 November 2019 the Pollution Control Officer (PCO) contacted the HO following contact with the resident about her noise report. The PCO requested details on what the tenancy agreement stated in relation to keeping pets on the resident’s estate.

On 4 November 2019 the landlord wrote to the resident. It stated that following the resident’s reports of noise nuisance, it had undertaken an investigation and would now formally close this matter. This was on the basis that it had been explained that the resident needed to make further reports to the Environmental Services, and this had not been done.

On the same day, the HO replied to the PCO providing details of the tenancy agreement. She noted that while there was not a pet ban on the properties in question, the resident’s neighbour did not have a private garden.

In response, the PCO explained that he had witnessed the dog barking himself following recordings made on equipment he had installed. He stated that the volume of the barking witnessed was very intrusive, recording at 52 decibels (with background noise included). It was noted that this would inevitably lead to more complaints and distress and he had no doubt that, in this case, noise nuisance was being suffered. As this recording was captured during the day, however, it was not considered to be a statutory nuisance on this occasion. The PCO stated that he would continue to investigate the resident’s reports and take action where noise was witnessed.

With this, the PCO added that he had considered the COT and it was clear that dogs were not permitted within this property (as there were no private gardens). The PCO questioned why the HO had not contacted the neighbour and required them to remove their dogs. He stated that by not enforcing the COT, the HO was permitting the nuisance to occur. The Ombudsman cannot see that the HO responded to this or that this was raised with the resident / resident’s neighbour.

On 6 December 2019 the Dog Warden (DW) wrote to the resident and explained that further to an earlier conversation with the resident, they had enclosed a witness statement form and free post envelope. The resident was asked to complete this detailing how the ongoing problem had affected her. The Ombudsman cannot see that this was completed.

On 31 January 2020 the HO wrote to the resident. The HO informed that she had been in contact with the noise pollution team and to date they had still not witnessed or identified a statutory nuisance. The HO reminded the resident that it was vital to continue to report incidents to enable the evidence gathering process.

On the same day, the landlord also wrote to the resident’s MP (in response to correspondence which has not been shared with the Ombudsman). The landlord stated:
1. The resident had been fully aware of how to report noise nuisance concerns.
2. A noise recorder had previously been installed at the resident’s property and no noise had been detected.
3. The HO and the DW had visited the resident’s neighbour’s property about the dogs. Full advice had been given and no issues were identified on the visit.

The landlord stressed the importance of making reports to the noise pollution team. It stated that, at present, there had been no witnessed incidents or perpetrators which required enforcement action.

On 6 February 2020 the resident’s MP wrote to the landlord explaining that the resident had again reported that the noise had not stopped. She had reported the noise on Friday 31 January to the noise team, however the noise had stopped as they arrived. She reported only being able to sleep for an hour on Friday and Saturday evening. The resident also reported that she needed to be rehoused as her daughter’s mental health had been worsened due to bullying by males in the area. Her previous applications to the housing register had been rejected.

On 10 February 2020 the landlord responded to the resident’s MP. The landlord acknowledged that the resident was still experiencing what she considered to be noise nuisance and apologised for this. The landlord asserted:

While the resident had stated that the noise had stopped on the Team’s arrival, the neighbour would not have known of the Team’s arrival. The noise was initially monitored from outside.
The resident needed to constantly report the noise which she was not doing.
It had been made aware of the resident’s daughter’s mental health condition. Further evidence of the impact on her condition was needed to support her housing application.
Bullying had been mentioned to the HO who fully investigated this, liaising with the local PCSO. No evidence of bullying was found.
The resident had been advised on how to look for a mutual exchange as a possibility of obtaining a move.

The landlord wrote to the resident on the same day with the same advice.

On 4 May 2020 the resident emailed the landlord and shared photos of the neighbour’s dog fouling in the communal area. The landlord noted that it went out on the following day and the communal area was clear of dog excrement.

On 20 May 2020 the PCO confirmed that noise nuisance had been witnessed on 19 May 2019 at 01:32. A warning letter was delivered to the resident’s neighbour. The PCO explained that this was the first stage in dealing with the noise nuisance. The resident was encouraged to continue to report the matter as the PCO would be unable to take further action unless further nuisance was witnessed.

On 21 May 2020 the landlord wrote to the resident’s MP. It confirmed that the HO had spoken with the resident earlier in the day to discuss her concerns in more detail. The HO had also contacted other departments/agencies to confirm whether reports had been made and found that nothing significant had been reported. It noted that the resident had been advised on what was required for the ASB reports to be progressed. The landlord explained that the resident’s reports were sporadic and had little substance to them. It asserted that some of the issues were caused by a lifestyle clash and, while it sympathised, there was little it could do to help. Further diary sheets were provided as well as information on support groups.

On 11 July 2020 the resident contacted the Dog Warden and reported further dog mess in the communal area. The Dog Warden replied on 13 July 2020 explaining that she had visited and witnessed a clear communal area.

On 13 July 2020 the PCO wrote to the resident’s neighbour explaining that complaints had been received concerning excessive noise. It was confirmed that this had been witnessed. The neighbour was encouraged to make contact to discuss the matter and informed that, if any further noise was witnessed, legal action would be taken.

On 13 September 2020 the resident wrote to the landlord requesting to make a complaint about her HO. She stated that she had reported her ongoing issues with noise nuisance and harassment to the HO, however nothing had been done about it. The resident explained that she had called to discuss the noise and had been informed by the HO that she was not to call this number and the phone call was cut off. She highlighted that she had provided the HO with evidence of the dogs excreting by the sheds, yet this was not enough evidence. She believed that her daughter’s anxiety had also been disregarded. She asked to speak to another HO.

The Ombudsman notes that within the landlord’s internal emails, it explained that it had spoken with the resident on the phone and clarified that her complaint actually related to the noise from her neighbour. The resident was advised that she needed to contact the noise team about this and if they confirmed a nuisance, this would be followed up with a warning. A meeting would also be arranged with the HO, who would explain how best to make reports. This was therefore considered to be a further nuisance report and not a service complaint.

The Ombudsman can see from the landlord’s internal emails that the resident reported her neighbour’s dogs again on 22 September 2020.

On 24 September 2020 the resident submitted a formal complaint. The resident stated that she had endured the problem for two years and did not feel safe or comfortable in her home. She explained that her neighbour had two dogs which caused stress, anxiety and an excessive amount of noise. She had informed her HO of this however the HO had not been helpful and had advised her not to make contact about the dogs, deeming it to be a lifestyle clash. The resident requested a different HO and an investigation into why the HO had not taken any action to address the dogs.

On 30 September 2020 the landlord provided the resident with a complaint response. The landlord concluded:

The problem it had encountered in its investigation was the lack of evidence provided by the resident.
The noise pollution team had visited on a number of occasions in response to the resident’s reports and advised that there was no evidence to support her claims.
Noise pollution had been witnessed (not in relation to the dogs) and the appropriate action had been taken.
The HO had not advised the resident not to contact her about dog complaints but had advised of the appropriate service to report the complaints to, as without evidence, little action could be taken.
The HO would remain the resident’s contact and would take the necessary action if further evidence was provided.

On 15 October 2020 the resident contacted the Dog Warden sharing pictures of the neighbour’s dogs which she wished to add to her complaint. The Ombudsman notes that these photos were dated April and July.

In response, the Dog Warden wrote to the resident explaining that there was no legislation covering dogs urinating. They therefore would not take any further action. The correspondence would be forwarded to the HO in any case.

On 20 October 2020 the landlord wrote to the resident’s MP. The landlord explained that the resident’s neighbour was being investigated and appropriate action would be taken. It explained it had introduced a new set of terms and conditions of tenancy, effective from March 2020 and would be enforcing these once a fair amount of time had passed. The landlord highlighted that this was a slow process. The landlord noted that the resident felt her complaints were being overlooked, however confirmed that appropriate advice had been given to the resident on each occasion.

On the same day, the landlord wrote to the resident’s neighbour. It explained that changes to the terms and conditions had taken effect from 2 March 2020 and all residents had been issued with a copy prior to this. It had been agreed that any breaches of this would be enforced after allowing residents a reasonable time to make the required adjustments.

The landlord advised that the resident’s neighbour was now in breach of the COT with regards to keeping pets. Complaints had been received that the neighbour had two large dogs which he was not allowed to keep in this style of accommodation. This was a breach of the previous COT and now the updated version. The landlord stated that as it had received complaints, it had no choice but to advise the neighbour to arrange an alternative home for the dogs.
On 23 October 2020 the resident wrote to the landlord. She stated:

Three dogs was a breach of tenancy within a block of flats.
The last visit by the noise control team did not demonstrate an accurate view of the situation. On this occasion the noise was not severe but on previous occasions the noise control team had been able to detect the noise.
There were witnesses to the noise and photographic evidence.
She was unable to have peace in her home and this had impacted her life and mental health for two years. She stated that her daughter had been forced to move away as this had impacting her mental wellbeing. She believed that her complaints were continuously being dismissed and no resolution offered. She requested resolution and confirmation on the rules regarding pets within the tenancy agreement.

The Ombudsman notes that on 16 November 2020 the landlord wrote to the resident and explained that as the resident had exhausted its process, it would not consider the complaint further.

Assessment and findings

The landlord’s handling of the residents reports of noise nuisance caused by the neighbour’s dogs.

In line with the landlord’s ASB policy, the landlord should take reasonable steps to ensure that residents are able to have quiet enjoyment of their properties without disturbance. It should therefore act appropriately to address reports of ASB, specifically noise nuisance, where it is brought to the landlord’s attention.

The Ombudsman can see that a noise report, resulting from the neighbour’s barking dogs, was raised with the landlord as early as 21 February 2019. The resident was advised of the need to document the occurrences of noise and, on 26 March 2019, following receipt of the diary sheets, the landlord confirmed that sufficient evidence had been accrued to warrant use of its noise monitoring recorder. This was appropriate. While the wait time for the deployment of the equipment was relatively long, the Ombudsman is satisfied that the appropriate level of action was being taken.

The Ombudsman cannot see that the findings of these recordings were ever shared with the resident, however. The Ombudsman notes that in the internal correspondence, on 4 November 2019, the PCO raised to the HO that while the noise could not be considered a statutory nuisance, an intrusive level of noise was witnessed. It therefore would have been appropriate for the landlord to have explained this to the resident, and to have taken informal steps (such as a warning letter or visit to the neighbour’s property) to advise the neighbour of what had been witnessed to manage the situation.

The Ombudsman has acknowledged that on 29 July 2019 the landlord did write to the resident’s neighbour providing proportionate advice and warning in relation to noise, and the cleanliness of communal areas. This was reasonable. It appears, however, that this correspondence was prompted by the resident’s reports made in February 2019 (although considerably delayed). The Ombudsman notes that on 25 February 2019 the landlord explained that, as per its procedural checklist, the resident’s neighbour would be written to. The Ombudsman cannot see that any correspondence was sent to the resident’s neighbour until late July 2019.

Equally, the Ombudsman notes that on 25 February 2019, it was suggested that the resident would be contacted by a DW. The Ombudsman cannot see that this took place. The Ombudsman cannot see that the DW made contact with the resident until 6 December 2019, in which the resident was provided with an opportunity to detail how the ongoing problem had affected her. In the Ombudsman’s view, this delay was unreasonable.

In light of the evidence that has been provided, the Ombudsman has determined that it was appropriate for the landlord to close the resident’s complaint in November 2019. The Ombudsman recognises that the resident was encouraged on several occasions to make continuous reports and was advised on the importance of evidence in pursuing an investigation. In the months prior to the landlord’s communication in November 2019 however (March to November 2019), the Ombudsman has seen no reports from the resident. As set out in the landlord’s ASB policy, where the complainant fails to provide information requested by Housing Services, cases will be closed. It is clear, therefore, that the landlord acted in line with its policy here.

The Ombudsman also notes that the landlord took appropriate steps to accrue evidence for itself before taking enforcement action. The landlord attended the resident’s property following her reports on 31 January 2020 (finding no noise nuisance on arrival). Similar action was taken on 20 May 2020 and 13 July 2020, and upon witnessing a nuisance, a warning letter was issued to the resident’s neighbour. This was appropriate.

The Ombudsman is conscious, however, that there are several gaps in the evidence provided by the landlord. The Ombudsman notes that the landlord’s actions / correspondence on 1 November 2019, 31 January 2020, 20 May 2020, 21 May 2020, and 13 July 2020 would have all been prompted by reports from the resident or her MP, however this evidence has not been shared with the Service. The Ombudsman is displeased with the lack of appropriate records.

In the Ombudsman’s opinion there was a significant delay in addressing the resident’s neighbour’s breach of tenancy and the landlord’s justification for this is unclear. As per the COT, the resident’s neighbour was not permitted to keep dogs in the flat. Not only was this documented in the previous COT agreement, the Ombudsman also notes that this was flagged by the PCO on 4 November 2019. The landlord therefore should have taken reasonable enforcement action to uphold the COT at an earlier stage than 20 October 2020. As the Ombudsman has added above, the COT states that residents must comply with all of the conditions set out in the agreement. The Ombudsman therefore would have expected the landlord to address this at its earliest opportunity. The Ombudsman has seen no evidence that the landlord proactively raised this breach with the resident’s neighbour prior to October 2020 however, and has been unable to determine why the landlord had not pursued this. The Ombudsman has subsequently concluded that the landlord unreasonably delayed in taking the necessary action to enforce its agreement and to demonstrate to the resident that it was taking reasonable steps to proactively resolve the situation.

Moreover, the COT outlines that residents must not allow any animal (that they are responsible for) to foul any communal or other areas. It was therefore appropriate for the resident to bring to the landlord’s attention in May, July, and October 2020 that her neighbour’s dog had done so. The Ombudsman can see that following the resident’s reports, the landlord visited the communal area on one occasion finding no dog excrement, and on another, took no action in response to the resident’s report of urination. In the Ombudsman’s opinion however, the images provided by the resident should have been sufficient in evidencing her claims. The Ombudsman has reviewed the pictures and it is clear that the events reported had occurred. Therefore, in the Ombudsman’s view, the landlord should have at minimum issued the resident’s neighbour with a reminder of their obligation to prevent this.

Where there is a breach of the COT, appropriate action should be taken. This not only enables the landlord to ensure that residents are acting appropriately, but is also for the protection of others where the breach results in greater inconvenience. The Ombudsman appreciates that in cases where there are pets involved, residents may find difficulty in rehousing them. The landlord should, however, demonstrate that reasonable steps are being taken to reach a suitable outcome and in good time.

The Ombudsman has also considered the landlord’s handling of the resident’s complaint.

A complaints procedure with only one stage poses a number of risks and is not in keeping with the Housing Ombudsman’s dispute resolution principles (Be Fair, Put Things Right, Learn From Outcomes). Only allowing one response to a complaint will be unfair if this does not allow sufficient opportunity for complainants to respond to the landlord’s position, particularly where this includes information that may be new to the complainant. Having a further stage allows for a review at a more senior level (e.g. Director or Board), bringing a wider perspective and level of expertise to a complaint, and may ensure full consideration of both sides of a complaint. Such senior reviews also provide an opportunity for landlords to spot patterns, nip issues in the bud and to learn from outcomes.

The Ombudsman has noted that the landlord’s complaints procedure only entails a one stage process and in the Ombudsman’s view, this was insufficient in this case. The lack of a two-stage process meant that the resident was unable to challenge the landlord’s complaint response (as seen in the landlord’s correspondence on 16 November 2020). Equally, this deprived the landlord of the opportunity to put things right. As stated above, the landlord did, on 20 October 2020, recognise that the resident’s neighbour was not permitted to keep its dogs. Additionally, the resident had also requested confirmation on 23 October 2020 of the rules surrounding pets within the COT. In the Ombudsman’s opinion, a stage two response would have subsequently offered the landlord the opportunity to address these points, to acknowledge its failings, and to offer a suitable resolution. This may have also prevented further escalation to the Housing Ombudsman Service.

The Ombudsman also notes that the neighbour requested a different HO as she was dissatisfied with the service provided by the HO she had been liaising with. The Ombudsman appreciates that the landlord considered its efforts to be suitable and did not consider it necessary to offer the resident a different point of contact. Still, in the Ombudsman’s view, it would have been appropriate for the landlord to offer the resident a sufficient explanation for its refusal. The Ombudsman also notes that following the resident’s earlier complaint about the HO the landlord informed the resident that a meeting would be arranged to enable the resident to discuss her issues. The Ombudsman cannot see that this was done, however.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
1. A service failure in respect of the complaint about the landlord’s handling of the resident’s reports of noise nuisance caused by the neighbour’s dogs.
2. A service failure in respect of the landlord’s handling of the resident’s complaint.

Reasons

The Ombudsman has arrived at the above determination as:

In the Ombudsman’s view, the landlord failed to communicate its findings where noise nuisance had been recorded; unreasonably delayed in undertaking the actions set out in its procedural checklist; and significantly delayed in undertaking enforcement action following a breach of tenancy. This ultimately hindered the resident in achieving resolution and the landlord in putting things right. The Ombudsman has seen no records to explain why, in November 2019, the landlord did not pursue enforcement action to address the breach of the COT. In the absence of this, the Ombudsman is concerned about the length of time it took the landlord to raise the breach with the resident’s neighbour and to begin taking steps to uphold its COT.

The landlord’s complaints process was insufficient in addressing the resident’s dissatisfaction. In the Ombudsman’s opinion, the landlord should have provided the resident with the opportunity to challenge its response and to have her comments reviewed/responded to. What’s more, the landlord failed to take this opportunity to reflect on the resident’s neighbour’s breach of the COT. Had it done this, the landlord may have recognised its unreasonable delay in undertaking necessary action which would have offered resolution. Adding to the service failure, where the resident requested a different HO, it would have been reasonable for the landlord to offer the resident an appropriate explanation to support its refusal.

Orders and recommendations

Orders

In recognition of the above service failures, the Ombudsman orders the landlord to award the resident £400. This has been calculated as:
1. £300 to fairly reflect the failure, over a considerable length of time, to take appropriate action to enforce the COT which subsequently resulted in distress, inconvenience and nuisance for the resident. This also accounts for the landlord’s delays in making contact both with the resident and her neighbour.
2. £100 to reflect the landlord’s complaint handling which, in the Ombudsman’s view, was insufficient, considering the resident’s experience, and did not offer a fair review of the circumstances.

Recommendations

The Ombudsman understands that the landlord will be introducing a two-stage housing complaints process from March 2021 onwards. This should assist in overcoming issues such as those identified above, and better position the landlord to manage housing complaints. The landlord’s staff may also benefit from undertake the E-learning on complaint handling, available on the Housing Ombudsman Service website, to supplement this transition.