London Borough of Barnet (202201466)

REPORT

COMPLAINT 202201466

London Borough of Barnet

26 February 2024

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 the landlord’s handling of the resident’s:
1. Reports of noise disturbance.
2. Request to move to an alternative property.

Background

The resident is a secure tenant of the landlord and lived in a 1 bedroom ground floor flat in a block of a sheltered scheme. The resident moved to a new property in May 2023, and remains a tenant of the landlord under a flexible secure tenancy.
The landlord recorded the resident as vulnerable due to ag, and having disabilities associated with a brain injury.

Summary of events

The resident contacted the landlord 12 January 2022 and reported that she was having difficulty sleeping due to noise disturbance from her neighbour, who lived directly above her (Mr A). She reported that she could hear Mr A “dragging things” across the floor in the early hours of the morning, and she was of the opinion he had no carpet, which made it worse.
The landlord visited the resident and Mr A to discuss the matter around 21 January 2021 (the exact date of the visit is unclear). The landlord sent an internal email on 21 January 2021 that said:
1. It had discussed the issue with the resident, Mr A, and the immediate neighbours.
2. 2 of the neighbours reported they had not heard any noise from Mr A’s flat, another reported they could hear his walking stick “knocking on the radiator”, but had “no complaint” about it.
3. It discussed the issue with Mr A and he was of the view he was not causing a noise disturbance, and was happy to discuss the matter with the resident.
4. Mr A said he had received a letter from the environmental health team about noise disturbance, and was of the view he did not make noise other than from “daily activities”.
5. The landlord offered to discuss with issue with Mr A and the resident, with a housing officer present, and the resident had declined.
6. The resident felt that Mr A was “stalking” her, as Mr A appeared to be mirroring her movements in his own property. She gave the example of when she used the toilet, she could hear Mr A use his at the same time.
7. The resident said that she was “not interested” in mediation and wanted a transfer to a different property.
8. The landlord reported that the resident was “very distressed” by the situation and was “genuinely suffering”, and recommended a transfer to new accommodation was the best solution.
The landlord did joint visits to the resident’s block on 10 and 25 March 2022, with its noise nuisance team. The notes reflect that it discussed the issues with the resident and Mr A, and explained its ‘good neighbour’ guidance to them and the visits were “successful”.
On 30 March 2022 the landlord contacted the resident to update her on its actions in relation to her reports of noise disturbance. The notes from the conversation state:
1. It had visited Mr A the previous week and he felt he was “not at fault”. He had said he was told, by another officer, the floor was concrete so very little noise would penetrate.
2. The landlord had offered to lay carpet to reduce noise transference. Mr A had declined because his current flooring was easy to clean and maintain.
3. The resident reported that she just wanted to move, and felt Mr A was still “following” her when she moved around her flat.
The evidence indicates the landlord began looking for an alternative property for the resident, within its own stock, in April 2022. It is unclear if the decision was communicated to the resident at this time.
The resident contacted this Service on 18 May 2022 and asked for assistance in raising a complaint with the landlord. She said that she was unhappy with its handling of her reports of noise disturbance. This Service wrote the landlord on the same day, asked it to open a complaint investigation, and send its response by 1 June 2022.
The landlord emailed the resident on 18 May 2022 to acknowledge her complaint and said it would send its response within 10 working days, or advise her if there was going to be a delay.
The landlord sent the resident its stage 1 complaint response on 1 June 2022, and said:
1. Its investigation found it had “made every reasonable effort” to find a solution to the noise nuisance, which were:
  1. 4 visits to discuss the issues with the resident and Mr A.
  2. A joint visit with the environmental noise team.
  3. An offer of mediation, that the resident declined.
2. Mr A had denied that he was deliberately causing a noise nuisance, and it had concluded that a lack of sound proofing was the “main issue”.
3. As it did not retrospectively sound proof its properties, it had offered to install carpet in Mr A’s property, and he had declined this offer.
4. It could not “insist” Mr A had carpets installed.
5. Due to the resident’s “medical history” it was of the view that noise nuisance was “far more harmful” for her. As such it had given “special consideration” and approved a transfer to an alternative property.
6. It had some available units in another of its sheltered schemes, and was exploring whether they were suitable.
7. Its removal team would handle any move, including packing.
The resident contacted this Service on 13 September 2022 and asked for assistance in taking her complaint to stage 2. She explained that she was unhappy with the landlord’s response, and she was staying away from the property due to “sleep deprivation” caused by the noise disturbance. The resident said she wanted to move to new accommodation as soon as possible.
This Service wrote to the landlord on 13 September and asked it to open a stage 2 complaint investigation. We asked it to send its stage 2 complaint response to the resident within 20 working days. The landlord sent its stage 2 complaint response to the resident on 27 September 2022, and said:
1. It outlined the actions it had taken in relation to the resident’s reports of noise nuisance (as set out in its stage 1 response).
2. It noted the resident’s concerns that Mr A “mirror[ed]” her movements, but he had denied this. It had concluded that main issue was a lack sound proofing.
3. It had revisited its handling of the noise disturbance case and found everything possible was done to support the resident.
4. It was actively looking for alternative accommodation for her. The previous vacancy it had considered was deemed unsuitable, as it was not on the ground floor.
5. It advised that it was unable to offer a move out of sheltered housing, as this would require the resident to go on the general housing register. It advised that she would face a “substantial wait” for a property through the housing register.
6. It found that it had not kept the resident “adequately updated” about the progress of the move, and this had “added to [her] anxiety” about the situation.
7. It apologised, and had asked the relevant manager to provide the resident with an update about its progress on the search for an alternative property.
The resident contacted this Service on 22 November 2022 and asked us to investigate her complaint, as she was unhappy with the landlord’s final response, and said:
1. It was not a “simple case” of noise disturbance, as Mr A mirrored her movements in his own flat.
2. The landlord had said in its stage 2 complaint response that her move would be resolved by mid November, but it had not happened.
The resident moved to a new property on 2 May 2023.

Assessment and findings

Relevant obligations, policies, and procedures

The landlord’s antisocial behaviour (ASB) policy states that it does not treat noise disturbance as ASB if it deems it to be day to day living or noises that are not excessive or unreasonable. This includes the use of mobility equipment, and residents walking around their homes. If it assess a report of ASB as low risk, such as noise nuisance, it will not commit a large amount of resource to investigating it. Its actions will be around giving advice, and signposting. The policy states that it will consider management transfers in “exceptional circumstances”.
The ASB policy states that the landlord will interview the person reporting ASB, the person accused of perpetrating ASB, and any potential witnesses. It will use mediation wherever it deems it appropriate to do so.
The landlord’s ‘management transfer’ section of its allocations policy states that a management transfer is usually agreed in “extreme” circumstances. This is when it deems it the only “viable resolution” to a situation. When a transfer is agreed it will only consider alternative properties that are the same type and size as the resident’s current property.
The landlord’s vulnerable tenants policy states that it must review its service provision to residents it deems vulnerable to ensure it is flexible and suitable for their needs. This includes “adjusting processes” to meet their needs.

The resident’s reports of noise disturbance

It is evident that this situation was distressing for the resident. It is acknowledged that the resident does not believe that the landlord responded appropriately to her reports of noise disturbance. Her concern about Mr A mirroring her behaviour is noted, and the Ombudsman does not seek to dispute her claim. However, the role of the Ombudsman is not to establish whether the issues reported were occurring, or not. The Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations. This investigation has considered whether its response was fair in all the circumstances of the case.
The evidence available indicates that when the resident first reported her concerns about noise disturbance from Mr A, in January 2022, the landlord visited promptly to assess the situation. The landlord discussed the matter with the resident, Mr A, and the immediate neighbours. This was in line with its ASB policy, and reasonable in the circumstances.
On the information it obtained on its visits in January 2022, the landlord assessed that the noise disturbance did not amount to ASB. It was of the view mediation was an appropriate course of action. This was in line with its ASB policy and reasonable in the circumstances. The evidence indicates that the noise transference was due to Mr A’s use of a walking aid. That the landlord assessed this as noise disturbance, rather than ASB, was an appropriate application of its policy. It is noted that the resident did not want mediation, and wanted to move property. The evidence, from January 2022, indicates that the landlord was supportive of this.
The matter was still ongoing by March 2022, and the landlord visited the resident and Mr A, with its noise team. This was appropriate in the circumstances and evidence the landlord adopted a multi agency approach. This is evidence that the landlord was taking the resident’s concerns seriously, and took a supportive approach in order to find an appropriate solution. That the landlord offered to lay carpet in Mr A’s flat was reasonable, and evidence it was trying to resolve the situation for the resident. That Mr A refused was outside of the landlord’s control.
In relation to its handling of the noise disturbance case, the landlord’s stage 1 and 2 complaint responses were detailed in its assessment of its actions. It sought to manage the resident’s expectations about her concerns around Mr A’s behaviour, and that it had put her concerns to him. It set out its position that it was not prepared to add sound insulation, but set out its alternative to install carpets, which was reasonable in the circumstances of the case. It further sought to manage the resident’s expectations that it was unable to compel Mr A to engage with its proposed solutions. That it agreed to a transfer was an appropriate alternative, given Mr A did not want to engage with its other proposed solutions.
It is apparent that the resident was of the view that her reports of noise disturbance amounted harassment. She reported Mr A was mirroring her behaviour, and “following” her around her flat. The Ombudsman does not seek to dispute her concerns, which are very serious in nature. However, a landlord needs evidence of ASB in order to take action against a resident. Based on the evidence available for this investigation, the landlord took the resident’s concerns seriously. But, it did not have any evidence to support her claim that Mr A was behaving in the way she reported to take further action against him. This Service has therefore determined that the landlord’s handling of the residents reports of noise disturbance was reasonable in the circumstances.

The resident’s request to move to an alternative property

The resident was evidently unhappy with her new property, and the length of time it took to facilitate her move. The resident’s concerns are noted. However, the landlord’s handling of issues after the resident exhausted its complaint procedure, in September 2022, are not within the scope of this investigation.
In line with our Scheme, the landlord needs to have had the opportunity to respond to a resident’s concerns as part of a formal complaint before we can make a determination on its actions. Therefore, this investigation has focused on the landlord’s actions from when the resident raised concerns about noise disturbance in January 2022, up to the point she exhausted the complaints procedure, in September 2022. Given the resident’s ongoing concerns about her new property, this Service asked the landlord to open a fresh complaint to address the resident’s concerns on 13 February 2024. If the resident remains unhappy, after exhausting its complaint procedure, she may wish to raise a new complaint with this Service.
The evidence available indicates that the landlord, due to the impact the noise disturbance was having on the resident, was supportive of a transfer from January 2022. This is evidence that the landlord had due consideration for the individual circumstances of the resident, and her vulnerabilities. The landlord appropriately applied its vulnerable tenant policy and sought to adjust its procedure to allow the transfer to go ahead, despite the issues reported not meeting the usual threshold for doing so. This was a reasonable approach in the circumstances, and understanding of the impact the situation was having on the resident.
The landlord began looking for alternative accommodation for the resident, within its own stock, in April 2022. However, this Service has seen no evidence that it formally communicated this to the resident, and it appears she was unaware it had agreed a management transfer. This was a shortcoming in its handling of the matter. Had it formally set out its position to the resident, this would have helped manage her expectations and reassured her it was taking her request seriously.
The evidence available indicates that throughout 2022, the landlord was proactive in seeking a suitable property for the resident. It regularly sent internal emails about void properties, which was a proactive approach. However, there is no evidence to indicate that it updated the resident to keep her informed about its progress, which was a further shortcoming it its handling of the matter. Regular updates would have helped manage the resident’s expectations it was progressing. It is noted that, due to a national shortage of social housing, it was going to take time to find a suitable alternative. A more proactive approach in providing updates would have helped reassure the resident.
The landlord’s stage 1 complaint response went some way to putting the above failing right by seeking to manage the resident’s expectations about the transfer. It outlined its position that it was actively exploring a vacancy in one of its sheltered schemes. However, the lack of acknowledgement of the fact its stage 1 complaint response was the first time it had formally set out its position, was unreasonable. The resident was inconvenienced by the lack of updates, or formal communication about the transfer. The failure to acknowledge this in its stage 1 response was inappropriate.
The landlord’s stage 2 complaint response acknowledged its failings in the lack of communication about the transfer, and apologised, which was appropriate. It set out that the appropriate officer would provide an update, which was reasonable. However, its response lacked learning and it would have been appropriate to set out how it would provide regular updates going forward. Its offer of a one off update did not fully put right its admitted failing. The landlord accepted that the lack of proactive updates contributed to the resident’s “anxiety” about the situation. Given its admission about the detriment it caused, an offer of financial redress would have been appropriate in the circumstances.
The landlord’s stage 2 response sought to give further detail about the management transfer. It set out that it would only consider a like for like (sheltered) property, which was the correct application of its policy. It explained that the resident would likely be waiting a long time if she applied to the housing register. This approach was supportive and sought to manage her expectations appropriately.
The resident’s concerns about the time it took for her to move property are noted. However, this Service has seen no evidence to indicate that the landlord said she would move by mid November 2022, as the resident has suggested. The Ombudsman does not seek to dispute her claim, but we can only make findings based on the evidence we have available.
The landlord appropriately adjusted its policy, due the resident’s individual circumstances, and accepted her for a transfer. It was proactive in looking for alternative accommodation, but failed to properly communicate its decision to the resident. It accepted that its communication was poor, but failed to offer appropriate redress for its admitted failing. As such, a series of orders are made below.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the resident’s reports of noise disturbance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s request to move to an alternative property.

Reasons

On receipt of reports of noise disturbance from the resident, the landlord promptly attended the block, interviewed her, Mr A, and nearby neighbours, in line with its policy. The landlord sought to resolve the issue for the resident, and aimed to manage her expectations that it was unable force Mr A to accept carpets. Given the impact on the resident, the landlord agreed to a transfer, which was appropriate.
The landlord appropriately adjusted its policy, due the resident’s individual circumstances, and accepted her for a transfer. It was proactive in looking for alternative accommodation, but failed to properly communicate its decision to the resident, or provide timely updates. It accepted that its communication was poor, but failed to offer appropriate redress for its admitted failing.

Orders

Within 4 weeks, the landlord is ordered to:
1. Apologise for the failings identified in this report
2. Pay the resident £125 in compensation in recognition of the inconvenience caused by its handling of the resident’s request to move to an alternative property.
3. Remind its staff responsible for overseeing management transfers of the importance of providing regular updates to residents, regardless of whether an alternative property has been identified.