London Borough of Croydon (202122556)

REPORT

COMPLAINT 202122556

London Borough of Croydon

19 July 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

This complaint is about:
1. The landlord’s Noise Pollution Team’s response to the resident’s reports of noise nuisance.
2. The landlord’s response to the resident’s reports of antisocial behaviour (ASB).

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 (k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s Noise Pollution Team’s response to the resident’s reports of noise nuisance.
Paragraph 42 (k) of the Scheme states that the Ombudsman will not investigate complaints which ‘fall properly within the jurisdiction of another Ombudsman, regulator or complaint handling body’.
The landlord is a local authority and complaints concerning a local authority’s noise pollution teams are matters for the Local Government and Social Care Ombudsman. Therefore, this aspect of the complaint is outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background

The resident is a secure tenant of the landlord. The landlord is a local authority and has described the property as a first floor one bedroom flat. The landlord has recorded that the resident has health vulnerabilities.
The landlord’s conditions of tenancy says all residents are entitled to enjoy the peace, comfort and convenience of their home and local area. Any breach of this clause by any party associated with the resident(s), whether actual or perceived, will be treated as a breach by the resident(s).
The landlord has a condition of the tenancy document that obliges the residents to behave in a way that is not antisocial or causes a nuisance to their neighbours. Its definition of antisocial behaviour (ASB) includes playing of loud music and it says that it will take all complaints seriously.
The landlord currently operates the same two stage complaint procedure for its corporate and statutory complaint procedures. Its procedures require it to respond within 20 working days at each stage of the process. It states it will acknowledge complaints within 3 working days.
In the event that a complaint takes longer than the 20 working days, the investigating officer will set and agree a reasonable and appropriate revised timescale and regularly keep the customer up to date on its progress.
In October 2022 the Ombudsman issued a Spotlight Report on noise complaints. It made the following recommendation: To handle noise reports that do not meet the statutory threshold, landlords should adopt a proactive good neighbourhood management strategy, distinct to the ASB policy, with clear options for maintaining good neighbourhood relationships. This should include mediation.
The landlord’s antisocial behaviour policy includes a section on evaluation and review. The landlord states it will carry out a customer satisfaction survey (ASB case closure questionnaire) once it has closed a case. This is so it can review the actions it has taken to ensure that it was relevant and appropriate. It will use this information to consider whether there was anything it could have done differently or better, and to ensure it met the requirements of its policy.
This Service previously considered a complaint from the resident about the landlord’s handling of the resident’s reports of noise from a neighbouring property. The determination was issued on 9 December 2020. It considered events related to a complaint that exhausted the landlord’s complaints process in June 2020. An order was made that required the landlord to install noise recording equipment in the resident’s property and pay him £300 compensation. The landlord successfully installed the noise recording equipment but advised this Service that the resident refused its attempts to pay him compensation.

Summary of events

In March 2021 the landlord arranged for a Digital Audio Tape (DAT) recording machine to be installed at the resident’s address. It collected this device on 12 March 2021 and received diary sheets from the resident on 22 March 2021. The resident recorded at least 15 incidents between 3 to 11 March 2021 that he described as ‘soft music’, ‘low humming noise’, ‘vibrations’ and ‘music left playing’. The resident wrote on the diary sheets that the incidents were often occurring in the early hours of the morning and that he had been unable to sleep. He wrote that he had turned on the DAT machine when these incidents had occurred.
On 1 April 2021 the landlord wrote to the resident. It thanked him for using the DAT recording machine and providing the diary sheets. It advised him that the machine did not pick up any incidents of noise. It only recorded the resident’s own movements. It asked the resident to record things on his mobile phone if incidents happen when he no longer had the DAT machine. It provided a contact number for him to report any incidents.
On 6 May 2021 the landlord recorded that it had responded to the local councillor about the resident’s reports of noise. It agreed to provide another DAT recording machine and kept him informed of a machine’s availability.
On 18 June 2021 the landlord emailed the resident. It informed him that it had written to neighbours regarding his reports of loud music.
On 28 June 2021 the resident emailed the landlord. He advised that he had been disturbed on 26 June 2021 by loud music. It had woken him at 3.10am.
On 1 July 2021 the resident agreed for the landlord to install another DAT machine for 7 days. This period was extended as the landlord was unable to collect it on the day initially discussed. It informed him of this delay and hoped that he would benefit from using it for an extended period to record any incidents of noise.
On 21 July 2021 the landlord informed the resident that there were over 40 recordings on the recently collected DAT machine. It would provide the resident with an update once it had listened to them all.
On 2 August 2021 the landlord wrote to the resident. It thanked him for using and returning a DAT recording machine. It advised him that the machine did not pick up any incidents of noise recorded on the diary sheets. It asked the resident to record things on his mobile phone if incidents happen when he no longer has the DAT machine. It encouraged him to continue to report incidents and provided him with a contact number.
On 9 December 2021 the landlord wrote to the resident. It advised that it was unfortunately closing his case. It advised that:
1. It had previously set up noise recording machines at his property on two occasions.
2. No evidence of noise was recorded on either occasion.
3. Other residents had not reported any noise.
On 16 December 2021 this Service wrote to the landlord and asked that it acknowledge that it had received a new complaint from the resident. The resident had informed this Service that he had dropped off his complaint to the landlord’s office on 2 December 2021 but received no acknowledgement. This Service wrote to the landlord to explain that his complaint was about:
1. The landlord’s actions in response to his noise nuisance reports since December 2020.
2. The failure of his tenancy officer to return his calls.
3. The landlord’s failure to write to other residents in the building about noise as it said it would.
On 17 December 2021 the landlord recorded a new complaint for the resident upon receipt of the letter from this Service. The landlord recorded the resident was dissatisfied that it had not responded to his calls/emails and the continued noise nuisance that he was experiencing.
On 22 December 2021 the landlord visited the residential block. It recorded speaking with other residents and distributing letters regarding noise. No noise was heard during the visit. No other noise reports were received from other residents.
On 17 January 2022 the resident emailed this Service. He considered that the landlord was responding too slowly and he sought to escalate his complaint.
On 18 January 2022 this Service wrote to the landlord as the resident had said that he had not received a response to his complaint. On the same day the landlord acknowledged that the resident was due the formal response on 19 January 2022 and would ensure that it was provided.
On 19 January 2022 the landlord issued its stage 1 response. It advised that:
1. It had received his reports of noise. However no evidence of noise was recorded on the DAT machines provided in March 2021.
2. It had installed a second machine in June 2021 after contact from the resident’s local councillor. When the recordings were analysed no evidence of music had been recorded.
3. It had visited the residential block and visited neighbouring properties. No reports of loud music were given by the residents spoken to.
4. No music had been heard during the block visit.
5. It advised it would continue to monitor the situation.
On 8 February 2022 the resident escalated his complaint. In his letter to the landlord the resident said:
1. That the landlord’s response was not consistent with his letters and emails.
2. That he believed one DAT recording machine installed had no microphone and he had pressed [record] on the second machine “40 times.”
3. That he considered that his calls and emails were not being answered by the landlord or the noise pollution team.
4. He wanted the landlord to explain what it had done to remedy the noise complaint.
5. That there had been incidents of loud music that had kept him awake. He provided at least 9 dates and times in his letter. These dates were between 14 January 2022 and 1 February 2022.
6. That a neighbour had informed him that the landlord had not issued any warning letters regarding noise.
On 11 February 2022 the resident contacted this Service. He advised that the landlord had acknowledged his escalation request and advised that it would aim to respond by 6 March 2022. The resident considered this more than 20 days. On 15 February 2022 this Service successfully returned the resident’s call and explained that the landlord’s dates were correct and actually within the landlord’s 20 working day complaint response policy.
On 3 March 2022 the landlord emailed the resident. It acknowledged that its stage 2 response should be sent to him by 8 March 2022. It apologised that its response would be late due to further investigation and required information from other teams. It advised that its response would be with him by 22 March 2022.
On 7 March 2022 the landlord emailed the resident. It was responding to multiple emails received from him during the early hours of the morning. It advised that the staff member he had emailed directly was unavailable but it would ensure all messages were passed on.
On 23 March 2022 the landlord sent its stage 2 response to the resident. It said:
1. The resident consider that it had not taken appropriate action in response to his reports of noise nuisance.
2. That he felt there had been a lack of contact from his tenancy officer.
3. That he believed other residents would be contacted about noise issues. He did not feel that this had happened.
4. It advised that it had been in receipt of his reports of loud music since 2018. It advised each allegation had been assessed with relevant officers visiting and digital audio tape (DAT) machines being used. It explained that DAT machines were used in an attempt to obtain evidence of the noise occurring.
5. It advised it had spoken to both the tenancy officer and noise pollution team manager. At the beginning of 2021 the noise pollution team confirmed that it did not consider that a statutory noise nuisance existed. Therefore, any reports of noise were to be sent to the tenancy officer.
6. Its investigation identified that a DAT machine had been installed at the property on 3 March 2021 and collected on 12 March 2021. Having reviewed the recordings it informed the resident on 7 April 2021 that no noise, including loud music or heavy bass reported by the resident, had been heard. It only identified the sound of the resident moving around the property. The case had therefore been closed.
7. It recognised that on 21 April 2021 the resident expressed dissatisfied that the case had been closed and his local councillor had requested another DAT machine. It advised that it would take several weeks to obtain a DAT machine and installed a machine on 1 July 2021. It apologised for the delay.
8. The DAT machine was collected on 14 July 2021. There were 40 recordings and it advised the resident that it would take time to listen to the recordings in details.
9. On 2 August 2021 it gave the resident an update. No noise other than his general day to day movement had been recorded.
10. It advised during this period its tenancy officer sent letters to other residents. The letter explained that allegations of loud music had been made. It asked that residents ensure that volume was kept low. This letter did not lead to any further evidence or new information.
11. Following further reports on 22 October 2021 it had asked the resident if he could identify where the noise was coming from. The tenancy officer arranged to visit the area on 14 December 2021. During that visit he spoke to several residents and distributed letters advising what was expected of residents. It advised that it had received no further reports of noise concerns from any other residents.
12. It explained that it was satisfied that it had taken the correct action upon receiving the resident’s reports. It apologised for any lapse in time in return correspondence.
13. It explained that it had engaged with other residents in an attempt to locate the source of the noise. Unfortunately there had been no supporting reports from any other resident to corroborate his reports.
14. It suggested that as this had been affecting the resident for 3 to 4 years there was obvious distress. It asked if he would benefit from some outside support for his wellbeing and health. It advised in circumstances such as this it would suggest the first point of contact would be with his GP.
15. It advised of other community support and attached a leaflet.
16. It encouraged the resident to continue to report any noise issues and advised that it considered the stage 2 complaint closed.
17. It provided the steps to contact the Housing Ombudsman should he remain dissatisfied with its response.
The landlord’s letter dated 23 March 2022 was its final response to the resident’s complaint, confirming that the complaint had exhausted its internal complaints procedure.
On 28 March 2022 the landlord sent a further email to the resident. It again expressed concerns regarding his distress and asked if he would benefit from some outside support. It suggested that it would usually recommend a GP in the first instance. It provided information of a community wellbeing space and support service. It attached a leaflet and encouraged the resident to continue reporting incidents of noise so that it could investigate.

Assessment and findings

It is evident that this situation has been distressing to the resident. It may help to firstly explain that the Ombudsman’s role is not to decide if the actions of the neighbour amounted to ASB or nuisance, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
During the course of this investigation the resident has informed this Service that there have been further incidents of noise disturbance. This Service can only consider complaints that have completed a landlord’s internal complaints procedure and this report therefore concerns the resident’s complaint that exhausted the landlord’s internal complaints process on 23 March 2022. As a result, the resident was encouraged to contact the landlord and, if appropriate, raise a new complaint so the landlord had an opportunity to investigate and put things right.

The resident’s reports of antisocial behaviour (ASB)

Since 2017 the resident has reported antisocial behaviour on several occasions. He has sought support from his landlord regarding noise, in particular loud music, that he says has woken him in the early hours of the morning.
The resident has raised similar complaints through this Service and the Local Government Social Care Ombudsman (LGSCO). The LGSCO determined that there was no evidence within the resident’s complaint that required it to investigate. After the resident’s complaint the landlord encouraged the resident to continue to report any noise incident. It advised him that it would collate the reports to aid its investigation. Evidence has been provided by the landlord that includes an extensive list of emails it received from the resident. Many of these in the very early hours of the morning. Although the resident expressed a desire for an immediate response it is reasonable that the landlord was unable to meet this expectation.
It was evident to this investigation that the landlord took the following steps to respond to the resident’s reports of noise:
1. It installed DAT recording machines on two occasions.
2. It analysed the recordings against the resident’s dairy sheets.
3. It sent letters to residents.
4. It visited the block and informed the resident that it had spoken to other residents.
5. It offered the resident information about local community support.
6. It encouraged the resident to speak to his GP.
The landlord visited the residential area and distributed letters to residents. It reminded residents of their responsibility to observe tenancy conditions and manage noise. This was a reasonable action to have a visual presence on site. However the landlord observed no antisocial behaviour and received no new reports of noise during this exercise. It was therefore unable to identify the alleged perpetrator and unable to commence any enforcement action.
It was evident that the resident was experiencing distress. It was therefore appropriate that the landlord followed its ASB and complaints policy to ensure that the resident’s concerns were investigated and responded to. Although it took action to try to identify a source of the noise, it was unsuccessful and no evidence was received at the time to enable the landlord to take any enforcement action.
The resident remained dissatisfied. The landlord’s policy refers to mediation and the community trigger. These are important options to offer additional support to residents. However, it is reasonable that without evidence of an alleged perpetrator that these options were considered unsuitable for this complaint.
The landlord responded to the resident’s concerns. It has also acknowledged that it has been unable to respond to every communication received from the resident as he would like. As many emails received have been in the early hours of the morning it is reasonable that there would be a delay in the landlord’s capability to respond. However, it was evident that the landlord did respond and encouraged the resident to continue to report incidents for it to investigate. Upon investigation, the landlord received no other reports of noise from other residents.
The above actions are reasonable. The landlord has responded to the resident’s reports of noise, provided DAT recording machines, written to and spoken with other residents, visited the block and encouraged the resident to record incidents via his mobile phone. The landlord has encouraged the resident to report other incidents to enable it to investigate further.
The landlord’s actions set out in the previous paragraphs were a reasonable response to the resident’s allegations of ASB, demonstrating that the landlord had taken steps to consider how to resolve the ASB reports in response to the resident’s allegations. Ultimately though there was a lack of conclusive evidence of the ASB to support the landlord taking further, more formal action and so it was reasonable that the landlord did not do so.
During review of the landlord’s ASB policy, this Service identified that it includes a section on evaluation and review. The landlord states it will carry out a customer satisfaction survey (ASB case closure questionnaire) once it has closed a case. This is so it can review the action it took to ensure that it was relevant and appropriate. It explains that it will also use this information to consider whether there was anything it could have done differently or better, and to ensure it met the requirements of its policy. Although the landlord informed the resident of the case closures and remained in communication with him, there has been no evidence of an ASB case closure questionnaire being used at any stage of the complaint. There has been no evidence that a questionnaire has been used to discuss any future action plans with the resident, any learning opportunities identified or any need to include other partners and services. For this reason therefore there was service failure in the landlord’s response to the resident’s reports of noise.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the landlord’s response to the resident’s reports of antisocial behaviour (ASB).

Reasons

The landlord ASB policy states it will carry out a customer satisfaction survey (ASB case closure questionnaire) once it has closed a case. There was no evidence that a questionnaire has been used to discuss any future action plans with the resident, any learning opportunities identified or any need to include other partners and services.

Orders and recommendations

Orders

The landlord is ordered to pay the resident a total of £75 in compensation within four weeks of the date of this report. The compensation comprises:
1. £75 for the distress and inconvenience incurred by the resident as a result of the landlord’s response to his reports of ASB.
The landlord is ordered within four weeks of the date of this report to help the resident complete an ASB case closure questionnaire. It should review the resident’s response and use the information to consider whether there was anything it could have done differently or better, and to ensure it met the requirements of its policy.
Within four weeks of this report the landlord should provide a copy of the case closure questionnaire and its findings to this Service.

Recommendations

It is recommended that the landlord contact the resident to confirm whether he is currently experiencing any ASB or noise disturbance and if so, the landlord should consider:
1. Agreeing an action plan with the resident going forward including time frames for actions to be taken.
2. In agreeing the action plan the landlord should take into account the resident’s vulnerabilities, and how these might impact his ability to resolve issues without first identifying additional support.
3. Explaining the roles and responsibilities of the tenancy officer and noise pollution team.
4. Giving support to the resident to enable his use of a noise recording application on his telephone.
5. Providing the resident with a DAT recording machine for an extended period of time.
6. A proactive good neighbourhood management strategy, with clear options for maintaining good neighbourhood relationships.
It is recommended that the landlord reviews the Ombudsman’s Spotlight report on noise complaints. This document can be used to capture a self assessment against the report’s recommendations. It may help to identify alternative considerations that may assist in the management of this case.