London Borough of Brent (202118180)

REPORT

COMPLAINT 202118180

London Borough of Brent

8 September 2023

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 noise nuisance complaints against the resident.
This service has also considered the landlord’s complaint handling.

Jurisdiction

Paragraph 35(b) of the Housing Ombudsman Scheme states: “a complaint is duly made when it has exhausted, or the Ombudsman has decided it has exhausted, the members internal process for considering complaints”. The landlord issued its stage 2 complaint response on 2 December 2020.
This Service asked the landlord to provide evidence related to this investigation to assist with the assessment and determination. However, the information it provided contained evidence of activity that goes beyond its final stage 2 complaint response, and therefore beyond the scope of this investigation.
It is, however, prudent for some elements of the additional evidence to be considered and referenced in the report; where it provides clarity on activity that is within the scope of this report. Where this occurs, it is noted.

Background and summary of events

Background

The resident is a secure tenant of a local authority, the tenancy began on 14 June 1993, prior to this, the resident held a joint tenancy at the property since 17 October 1977. The property is a ground floor flat with three neighbouring properties. The landlord has no recorded vulnerabilities for the resident.
The tenancy agreement states that residents should “not behave in a way which could cause harassment, nuisance, alarm or distress to any person”. This includes “making noise at an unacceptable level which disturbs other people”.
The landlord’s anti-social behaviour (ASB) policy states it will make a detailed record of incidents, complete a risk assessment form to categorise the severity of the case and contact or interview the alleged perpetrator within ten days of case creation.
The ASB policy states the initial meeting with alleged perpetrators will follow a checklist which includes:
1. Informing the alleged perpetrator of the allegations made and obtain their version of events / incidents, noting any admissions or counter allegations.
2. Identifying any vulnerabilities or support needs that may have a bearing on their behaviour, giving due consideration to what support can be provided.
3. Advising the alleged perpetrator on how the case may progress and what options are available at this stage, including mediation.
4. Advising the alleged perpetrator that their individual support needs and vulnerabilities will be assessed and re-assessed throughout the investigation, taking account of any change in circumstances, formal warnings and escalation of incidents.
The policy states “all interviews, discussions and or attempted discussions with the accused, will be recorded as evidence of attempts made to conduct an impartial and balanced investigation. A written record will be kept of all interviews and agreed actions will, where appropriate be confirmed in writing where it is reasonable to do so”.
The landlord’s complaint policy states stage 1 complaints will be responded to within 20 working days and stage two complaints within 30 working days.
It also states “in the case of complaints covered by the Housing Ombudsman Complaints Handling Code we aim to respond within 10 working days at stage 1 and 20 working days at stage 2, where possible. There will be circumstances in which this is not possible, in which case the 20 and 30 working days timescales will be applied. Complainants will be advised of the likely response timescale”.

Summary of Events

The landlord wrote to the resident on 1 August 2020 advising it had “received a complaint alleging noise caused by loud amplified music”. The resident responded to this allegation on 6 August 2020 denying the claims, she further emailed on 23 August 2020 as she had not had a response to her previous correspondence. The resident advised it was “extremely difficult” to live with such allegations and she was “treading on eggshells”. She requested the dates and times of the alleged loud amplified music and asked whether all neighbours had been contacted about the issue. The resident also requested confirmation that her neighbour above had been asked to consider their own activity.
The landlord responded to the resident on 2 September 2020, apologising for the delay in its response. Within this letter it gave the dates and details of the alleged noise which had been reported, consisting of three incidents over a period of three months regarding loud music. It referred to an “investigation protocol” when advising about contacting those alleged to be making noise nuisance. It advised of its duty to contact the individual alleged to be making the noise to inform them of the investigation. The landlord went on to explain the initial advisory letter usually helped to resolve matters as it gave the alleged perpetrator a chance to respond to allegations. It noted as the resident denied the allegations against her no further action would be appropriate at that stage, subsequently advising the case had been “closed pending evidence”. It concluded advising the resident to “log a service request noise complaint” if she was experiencing noise nuisance from a neighbour.
On the same day the resident emailed the CEO of the landlord disputing the alleged claims, the resident described the stress she was living under as “unbearable” and “detrimental” to her health. The landlord treated this as a stage one complaint although it is not clear if the resident was advised of this at the time.
The landlord provided a stage one response on 29 September 2020. Within its response it advised:
1. A complaint alleging noise nuisance was received on 20 May 2020. It specified “loud music being played through the day and night, ever since lockdown”.
2. Further complaints were received by the landlord on 11 June 2020 and 28 July 2020 which resulted in a letter being sent to the resident on 1 August 2020.
3. The landlord advised of its duty to investigate complaints of alleged statutory noise nuisance and part of its investigation process was to send an initial advisory letter to the person alleged to be making unreasonable noise.
4. It found no wrongdoing in how the ASB complaint against the resident was processed and therefore did not uphold her complaint.
The resident responded to the stage one response on 4 October 2020 refuting the conclusion and further reiterated her request for other neighbours to be consulted on the alleged noise nuisance. She said she felt victimised and she did not play loud music. She advised she was disappointed that an” unfounded” allegation led to her receiving “an intimidating” letter. She requested full “exoneration” of the matter and assurance that further false allegations would not be allowed to continue.
The landlord responded to the resident on 23 October 2020, within its email it apologised that the advisory letter was intimidating for the resident. It explained the letter was a standard letter used when allegations of noise nuisance were made. The resident responded to this and requested her complaint be escalated to stage two as she felt the landlord had “dismissed” her concerns and worries, she felt “victimised” and felt the landlord “had a strong bias” towards whoever had made the allegations.
The landlord emailed the resident on 4 November 2020 acknowledging the stage two complaint and advised she could expect a response by 14 December 2020. It gave the reference number 15627657.
The landlord wrote to the resident on 2 December 2020 in relation to her “complaint about an advisory letter from a nuisance control officer”. This was the final review stage of the landlord’s complaints procedure. Within this letter it summarised correspondence between the resident and landlord between 1 August 2020 and 23 October 2020 and detailed the residents outstanding concerns as follows:
1. The resident had requested neighbouring properties be asked if her property was the source of the noise nuisance.
2. The resident had been advised it would not be an appropriate use of officers’ time to question neighbours as the landlord’s remit is to “investigate complaints of noise nuisance to see if there is any evidence to substantiate allegations, not refute them”.
3. The resident had asked what investigations took place and what evidence was considered to close the case.
4. The resident had received similar letters previously which were not as strongly worded.
The landlord went onto advise:
1. the letter she had received was more strongly worded due to the type of allegation made and that it could have been a case of statutory noise nuisance not just domestic noise. It agreed however, that the letter should have invited the resident to “engage in a dialogue” and would remind officers to ensure letters include this in the future as it was currently reviewing its standard noise nuisance advisory letters.
2. “There was no investigation and no evidence considered beyond what has already been shared” with the resident. As there was no further reports made following the letter dated 1 August 2020 there was no need to investigate further or gather more evidence.
3. It apologised for the upset and distress experienced. It acknowledged that responses to communications were outside of its usual timescale of 10 working days and said it would remind teams about this. The landlord concluded by offering reassurance that no formal enforcement action would be taken without evidence to support such allegations.
At the conclusion of its letter, the landlord advised the resident she could escalate the complaint to the Local Government and Social Care Ombudsman if she remained unsatisfied.
The resident emailed the landlord on 15 January 2021 as she had not received its response dated 2 December 2020, the landlord forwarded her a copy of its response on this day.
The resident wrote back to the landlord on 24 January 2021 in response to its stage two letter saying she felt her concerns had not been addressed. The resident advised her complaint was not just about the letter she received but also how the case was handled and the way she felt she had been treated. Within this letter she stated clearing her name and proving her innocence was of great importance to her. The resident reiterated her question of what investigation took place and what evidence was provided to the landlord which it used to close the case. She advised the landlord that if the initial letter had invited her to contact the landlord without referencing the possible “serious consequences” it would have had a far lesser impact. She felt it would have shown impartiality and that the landlord would have been willing to discuss the matter. The letter concluded with the resident stating she would have expected a far higher standard of customer service that she had received and she would take her complaint further.

Events post the landlords internal complaints process.

While waiting for a determination, this service has been provided with further information relating to a new ASB allegation made against the resident. A case was opened on 14 April 2021 and subsequently closed on 21 June 2021 as the landlord had not “obtained evidence that the tenancy agreement had been broken”. Even though the initial advisory letter stated the allegations were that of “nuisance and noise nuisance”, when the landlord spoke to the resident on 6 May 2021 it confirmed the allegations made were:
1. throwing glass into a neighbour’s garden,
2. uplifting and removing the staples from a bamboo fence of the said neighbour’s garden.
This service has seen further communications between the dates 9 August 2021 and 1 April 2022, between the landlord and resident which echo the issues raised in her complaint raised in 2020. The resident was unhappy with how the allegations of ASB against her had been handled by the landlord. Within this time the landlord advised the resident she had been “exonerated”, and the case closed. It accepted upon review the ASB case could have been handled better and it should have reviewed the historical information in order to have a more measured response to the allegations made. It offered the resident £100 compensation for the poor handling of the ASB case and the late and missed communications.
The landlord took the residents communication as a further complaint and issued a stage one complaint response on 1 April 2022. Within this letter the landlord advised:
1. It had already responded to the concerns the resident raised.
2. It confirmed at no point during investigative enquiries it presumed the resident’s guilt.
3. It accepted the initial correspondence could have been more sensitively written.
4. It had previously acknowledged a more thorough review of the allegations received should have been undertaken.
5. It advised it had apologised for the shortcomings made and any adverse impact suffered.
6. In order to move on, an officer would contact the resident to clarify if any neighbour dispute issue was present that requires attention.
No stage two response has been seen by this service to this complaint and the landlord has advised that it would not be appropriate for them to review this complaint at stage two as it overlaps the Ombudsman’s investigation.
The resident was advised to approach this service on 4 November 2021 by the Local Government and Social Care Ombudsman (LGSCO), as she had first approached them to escalate her complaint. The LGSCO looks into complaints about council matters, it does not however look into complaints about housing.
On approaching this service, the resident’s outstanding issues were summarised as:
1. She remained unhappy with the landlord’s handling and response to the issues.
2. She remained unhappy with the landlord’s lack of investigation into the issue and its lack of communication.
3. She asserted the landlord had been biased against them.
4. The impact this had on her health and wellbeing.
The resident has stated she is seeking resolution as wanting to be able to live without allegations being made against her. She considers the landlords letters to be strongly worded, she disputes the allegations against her and wants assurance the pattern of opening and closing cases against her to stop.

Assessment and findings

The resident has said she considers that the allegations made against her have impacted her mental wellbeing. The Ombudsman does not doubt the residents comments. However, it is beyond the authority of this Service to make a determination on whether there was a direct link between the allegations made and the resident’s mental wellbeing. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been adversely affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident reports that they experienced because of any errors by the landlord.
Having considered the information supplied to this investigation, it is important to note that it is not this Service’s role to determine whether ASB occurred or, if it did, who was responsible. What the Ombudsman can assess is how a landlord has dealt with the reports it had received and whether it had followed proper procedure, followed good practice, and behaved reasonably, taking account all of the circumstances of the case.

The landlord’s handling of noise nuisance complaints against the resident.

The landlord has a duty to take reasonable steps to investigate complaints of noise so as to decide whether the noise is a statutory nuisance and take appropriate action. The landlord had no vulnerabilities recorded for this resident, therefore it was reasonable for it to send an initial advisory letter on 1 August 2020 to alert her to the allegations of noise caused by “loud amplified music” that had been reported to it.
The landlord’s ASB policy states each case will require a “tailored and proportionate response,” although there are six steps that “need to be considered/followed in tandem to ensure investigations are thorough and effective”. The first two steps of its investigation are to contact the “victim” and the “accused” it also says vulnerability assessments will be carried out for both parties, giving “due consideration to what support can be provided”. The landlord sending the resident a letter could be viewed as a contact to the accused however it did not then follow this up to conduct a vulnerability assessment. The landlord’s ASB policy also says the alleged perpetrator will have their individual support needs and vulnerabilities assessed and re-assessed throughout the investigation, which due to the lack of contact was not offered to the resident from the offset. Therefore, the landlord failed to follow its own policy, it failed to acknowledge the residents comments about her finding it “extremely difficult” to live with the allegations and failed to provide a “tailored and proportionate response” in this case.
The initial advisory letter made no mention of discussing the allegations with the resident. The landlord did not respond to the resident’s further two emails about the matter, within these emails the resident makes it clear the impact these allegations are having on her. She advised it was “extremely difficult” to live with such allegations and she was “treading on eggshells” which should have prompted the landlord to respond accordingly. Not being made aware of the allegations was causing the resident distress. The landlord only advised the resident of the detail of the allegations in the letter which it advised it was closing the case. It did not discuss the allegations with the resident on any level and failed to realise the impact that had on her. This caused the resident distress as the landlord did not ask for her version of events.
The landlords letter dated 2 September 2020, disclosed the dates of the allegations made, it is not clear however, why the landlord did not act on the previous two allegations when made. The same day the resident escalated the matter to the CEO, where she advised the stress being “unbearable” and “detrimental” to her health. These emails from the resident where she stated the impact the situation was having on her should have alerted the landlord to contact the resident or at the very least acknowledge her, the resident did not hear from the landlord until its complaint response on 29 September 2020 which is an unexplained and unreasonable delay. This shows a lack of compassion from the landlord and the lack of personal contact caused avoidable distress to the resident.
The landlord advised the resident to raise a service request when she made a counter allegation against a neighbour. This was reasonable advice given by the landlord but in this circumstance of this case it should have contacted the resident to discuss further due to the seeming longstanding neighbour dispute which the resident alluded to.
The resident was not unreasonable in her request for the dates and times of alleged noise nuisance. The ASB policy states alleged perpetrators will be informed of the allegations and given a chance to obtain their version of events. Even though the resident has managed to do this, she has done so over time, through perseverance in pursuing the landlord to disclose the detail regarding the noise complaints. The landlord did not pro-actively look to achieve this nor did it recognise the impact this situation was having on the resident.
The landlord failed to follow its own policy in conducting the ASB investigation, it made no real effort to ascertain the level, nature or frequency of the noise and it didn’t manage expectations on any level. This lack of adherence to policy ultimately means the landlord is unable to demonstrate that they had adequately investigated the noise report and responded reasonably.
The events which happened after the landlord’s complaint procedure had been exhausted, followed a similar pattern and raised similar concerns. Although it is noted the landlord accepted it could have handled the ASB case raised in April 2021 better, it still did not acknowledge any of the detriment the situation had had on the resident despite her saying on numerous occasions the stress was “unbearable”. Consequently, failing to acknowledge or respond to the resident’s communication fully and effectively gave rise to the resident’s perception of bias against her.
In summary, the landlord acted reasonably in sending an initial advisory letter to the resident. It then was made aware from the resident the impact this letter had had so should have made an effort to contact the resident, a month was too long for the resident to have to wait to receive a response from the landlord. This service has seen no evidence that the landlord reached an informed decision to close the ASB case. The landlord did not communicate clearly or detail what its actions within its investigations were, which added to the resident’s frustration and dissatisfaction. For this reason, a finding of maladministration has been made in respect of the landlord’s handling of noise nuisance complaints against the resident.

The landlord’s complaint handling

This service has considered the landlords complaint handling as it did not address each of the resident’s concerns which she raised in communications with them about how she felt she was being treated. It also refused to escalate a complaint once the resident had referred the complaint onto this service.
The stage one complaint logged on 2 September 2020, this service has also not seen evidence of the complaint being acknowledged. This is a complaint handling failure by the landlord by not adhering to its own policy.
The stage two complaint was responded to in 20 days of the complaint being escalated which is within the timeframe for housing matters in its policy. This response tried to address the concerns raised by the resident but still failed in understanding the impact it had made on the resident. As it failed to understand the resident’s complaint fully it failed to treat the resident in an empathetic manner which would constitute a failure.
The landlord failed to address all of the resident’s concerns, which is why she felt the need to escalate the complaint to this service. This is also the reason when the subsequent ASB case was raised against her the same questions were asked of the landlord. The landlord failed to address these questions with the resident which led to a considerable number of communications in the matter. This meant the resident expended time and effort in trying to ascertain what the allegations were so she could refute them.
Following this subsequent case, the landlord issued a stage one response in April 2022, by this date the resident had already been in correspondence with the landlord for around eight months, since August 2021, regarding the disputed matter. Despite the resident disputing the service she had received from the landlord again in how the allegations against her had been handled, this service has seen no evidence of it signposting the resident to its complaints procedure. It would have been appropriate to advise the resident of a complaint being recorded and what the options available to her were when she first expressed her dissatisfaction with how the ASB case had been handled.
The purpose of a complaints procedure is to provide a framework and process for landlords to resolve complaints. However, in this case it has not considered the residents complaint fully, investigated what might have gone wrong or sought any possible learning opportunities. Due to the lack of substantiated investigation the resident was uncertain about how the landlord had come to the conclusion to close the case.
The landlord’s complaint policy and information on the landlord’s website currently states that stage one complaints should be responded within 20 days and stage two complaints within 30 days. It also states “in the case of complaints covered by the Housing Ombudsman Complaints Handling Code we aim to respond within 10 working days at stage 1 and 20 working days at stage 2, where possible. There will be circumstances in which this is not possible, in which case the 20 and 30 working days timescales will be applied. Complainants will be advised of the likely response timescale”. This Service acknowledges that the landlord is a local authority which also has non-landlord functions however this information could be made more clear on its website for customers to easily understand the different expectations and a recommendation will be made in this respect.
In summary the failure to acknowledge all the resident’s concerns and the detrimental impact the situation was having on her, has resulted in a finding of maladministration for the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of noise nuisance complaints against the resident.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to communicate clearly what it’s actions within its investigations were which added to the resident’s frustration and dissatisfaction. It failed to address the impact the allegations of noise made against her, had on her day to day living. It failed to follow its own policy and to assess if any support would be required. It is noted however that the landlord had improved slightly in the way it handled the subsequent ASB case however this still could have been handled better as it still failed to follow its policy.
The landlord failed to address all of the resident’s concerns in her complaint and failed to acknowledge the detrimental impact the situation was having on her. It then corresponded with the resident over a number of months before raising an additional complaint. When it did, it refused to escalate the complaint further as the previous complaint had been referred to this service.

Orders and recommendations

Orders

Within the next four weeks, the landlord is ordered to:
1. Arrange for a senior member of staff to apologise for the failures identified in this report.
2. Pay the resident £250 for the distress caused by the failings in handling the noise nuisance complaints against her.
3. Pay the resident £200 for the distress caused by the delays and failings in handling of her associated complaint.
4. Contact the resident to assess if any additional advice or support can be offered regarding the fact that she currently feels unable to live freely in the property.
The Landlord must provide evidence to this service of its compliance with the above within four weeks of this determination.
Within four weeks of the date of this report the landlord must initiate and complete a review of this case, identifying learning opportunities and produce an improvement plan that must be shared with this Service outlining at minimum its review findings in respect of:
1. Its intention to ensure reports of noise nuisance are investigated in a timely manner and its capability to have adequate oversight of any reported noise nuisance.
2. Its intention to review its standard warning template letters to include details of allegations made.
3. Its intention and a timescale to conduct training for staff handling ASB to ensure they have adequate guidance and are fully equipped to follow its policy, with particular reference to risk assessments for victims and alleged perpetrators.

Recommendations

It would appear there is a longstanding conflict surrounding this case, it is recommended that the landlord seek to work with both parties to promote a refreshed relationship amongst its residents to achieve a level of reasonable tolerance.
The landlord should verify all the links on its website point to the most up to date complaints policy.

The landlord should advise this service of its intentions for the above recommendations within four weeks of the date of this report.