London Borough of Hackney (202202843)

REPORT

COMPLAINT 202202843

Hackney Council

18 December 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:
1. The landlord’s response to the resident’s reports that she was experiencing noise nuisance and antisocial behaviour (ASB) from her upstairs neighbour.
2. The landlord’s handling of the resident’s transfer request.
3. The landlord’s complaint handling.

Background and summary of events

The resident has lived in a 1-bed ground floor flat rented from the landlord since 2011.
The resident has stated that she has been reporting noise nuisance and ASB from her upstairs neighbour to the landlord for several years. In April 2022 the resident made a formal complaint to the landlord regarding its handling of her ASB reports and associated request to be moved to another property.
The resident has stated in communications with the landlord that her mental health issues cause her to be “more affected by noises and traumatic experiences”.

Scope of the investigation

It is accepted that the resident states that she has been reporting the issue of ASB from her upstairs neighbour to the landlord for several years. Within the information seen by this Service the landlord has not disputed this statement.
This report has focussed on the events that occurred from 2022 onwards. This is in accordance with the Ombudsman’s Scheme, which states that the Ombudsman will not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising.
This Service recognises that this situation has caused the resident to report severe distress as she has experienced noise nuisance in her property over a prolonged period. Aspects of the resident’s complaint relate to the impact of her living conditions on her physical and mental health. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. The Ombudsman accepts that the resident has a number of diagnosed physical health issues, unlike a court however we cannot establish what caused the health issue, or determine liability and award damages. This would usually be dealt with as a personal injury claim through the courts. Though the Ombudsman is unable to evaluate medical evidence, it will be taken into account when considering the resident’s circumstances.

ASB policy and procedure

The landlord is responsible for dealing with incidents of ASB within the properties it manages.
The landlord’s tenancy handbook states that it will give “help and advice” to residents experiencing ASB, nuisance or harassment. It also says that it “will usually take court action against council tenants…who act in an antisocial way…or harass anyone”.
The landlord’s ASB policy defines noise as ASB. It states this includes noise from shouting and DIY activities but does not include “ordinary and reasonable household noise”.
The ASB policy states that residents living in flats must keep all floors covered with “carpet and a good-quality underlay” or other noise-reducing floor coverings.
The ASB policy defines harassment as threatening or abusive behaviour.
The landlord states that it will:
1. Contact complainants within 5 working days of a report of ASB.
2. Agree an action plan with the complainant.
3. Review all cases at least once a month.

Lettings policy

The landlord’s lettings policy states that it may transfer existing tenants “in extremely exceptional circumstances”. Transfers are handled outside the statutory common allocation process.

Complaint process

The landlord operates a 2-stage complaint process. It aims to respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.

Summary of events

In December 2021 the resident contacted the landlord to report noise nuisance from her upstairs neighbour.
The landlord wrote to the alleged perpetrator on 21 January 2022. It stated that it had received complaints that he had been shouting and banging late at night and in the early hours. The letter advised the alleged perpetrator to be considerate and keep noise to a minimum.
On 24 January 2022 the resident reported noise nuisance between 2.30am and 10am. She described loud shouting, banging and furniture being dragged along the floor. The resident recorded the noise on a mobile phone application for recording noise nuisance and sharing the recordings with landlords. In February 2022 the resident submitted noise recordings on 7 occasions. The recordings were made at various times of the day and night and she described the noise as banging and drilling. The case notes demonstrate that the ASB officer listened to the recordings. On 3 occasions he stated he could not hear any noise, on another occasion he said that the noise did not amount to nuisance.
The resident emailed the landlord on 3 February 2022 to advise she wanted to discuss noise nuisance from her upstairs neighbour. The email was forwarded to the housing officer on 9 February 2022.
The resident submitted a noise recording on 18 February 2022 between the hours of 3.20am and 4.10am. She described loud shouting, heavy footsteps, banging, and furniture being dragged around the flat above. The resident said that the noise was causing her sleep deprivation, stress and anxiety.
The landlord sent a ‘final warning’ to the alleged perpetrator on 24 February 2022. It said that it had previously written to him and had tried to telephone and visit the property but that he had not responded. The landlord said it continued to receive reports from neighbours of noise nuisance including “loud banging, shouting, moving furniture late at night and into the early hours of the morning”. It advised the alleged perpetrator that he was “clearly in breach” of the terms of his tenancy and that continued noise nuisance may lead to court action.
The housing officer sent the ASB case for review by her manager on 9 March 2022. Her manager stated that before the case could be escalated to the ASB team the housing officer needed to contact social care. She also asked if the housing officer had been able to determine the level of noise. The housing officer replied on 11 March 2022 and said that adult social care had not replied to her previous contact and that she had listened to recordings on the noise recording application but could not determine how loud the noise was.
On 30 March 2022 the landlord emailed the resident to explain that, as a result of a cyber-attack which damaged its computer systems, it was unable to process transfer requests at that time. It signposted the resident to other rehousing options such as mutual exchange.
On 1 April 2022 the resident emailed the landlord and raised a formal complaint. She said that she had been experiencing “noise pollution and harassment…over a long period” which had “severely affected [her] health and wellbeing”. She said she had reported the noise to her housing officer but the issue had continued and she felt there was a lack of empathy and understanding of the impact the issue was having on her. The resident described “stomping”, banging, and “sinister laughing and shouting”.
The housing officer emailed the resident on 7 April 2022 and said that she had requested that the case be escalated to the ASB team. She asked the resident whether there had been any improvements in the situation. The resident replied the next day and stated that she was “shocked and disappointed” that the issue was only then being escalated. She said that she had been unable to sleep in her home so had been staying in bed and breakfasts which was costing her so much money she was having to borrow some. The resident stated that she needed help to be moved to another property.
The housing officer made a referral to adult social care for support for the alleged perpetrator on 13 April 2022.
On 19 April 2022 the landlord provided a formal stage 1 complaint response. It said:
1. It had spoken to the housing officer and area housing manager and had read the notes from the ASB case.
2. The landlord had written to the alleged perpetrator on 20 January 2022 and had visited the block twice.
3. It had sent a further letter to the alleged perpetrator on 24 February 2022.
4. It had referred the issue to specialist teams in March and April 2022.
5. The case had been escalated from the housing management team to the ASB team for “a higher level ASB investigation”.
6. The landlord did not uphold the complaint as the case remained active, the housing management team had taken action to resolve the issues, and there was no service failure.
7. The ASB officer would contact the resident to discuss her concerns about harassment and the impact on her wellbeing. He would also complete a “revised action plan”.
The ASB officer telephoned the resident on 26 April 2022. The resident said that she was no longer living in her home due to the noise from her upstairs neighbour which she described as “unbearable”. She advised that she had been staying in a bed and breakfast since February 2022 and was being supported by her GP for stress due to the situation. The ASB officer asked the resident if the alleged perpetrator had ever threatened her, she advised that he had not. The resident said that she had asked him to keep the noise down on 2 occasions but that he was “unwell” and so the noise would not stop. She advised the ASB officer that she just wanted to be moved to another property.
Also on 26 April 2022 the ASB officer telephoned the alleged perpetrator but he did not answer the phone. The housing officer confirmed on 25 May 2022 that she had not been contacted social care.
The ASB case notes from 9 May 2022 demonstrate that the ASB officer asked the housing officer for an update regarding the outcome of support referrals made for the alleged perpetrator. The notes also state that as the resident was not living at the property, she was unable to provide evidence of ongoing noise nuisance.
The landlord emailed the resident on 9 May 2022 regarding her request to transferred to a new property. It said that, due to technical issues with its new housing register system, it was unable to process new housing applications. It advised that the housing register team would contact her when the system was operational. The landlord told the resident that she could apply for a mutual exchange or apply for rehousing with other housing providers.
The ASB officer telephoned the resident on 25 May 2022. The resident said that she was slowly starting to move back into her home. She said she had heard noise such as heavy footsteps and would continue to record any noise.
The case notes show that the ASB officer listened to all the noise recordings on 6 June 2022 but that they “did not evidence significant noise nuisance other than day to day noises”.
On 6 June 2022 the landlord’s ASB officer issued a ‘yellow’ warning letter to the resident. The letter stated that it had been reported that he was “regularly banging and making noise…at all hours of the day and night”. It referred the alleged perpetrator to the sections of his tenancy relevant to ASB and warned that ignoring these terms was a breach of tenancy. The landlord told the alleged perpetrator that it may take further action if “appropriate and necessary”.
Also on 6 June 2022 the ASB officer chased adult social care for a response to the housing officer’s support referral for the alleged perpetrator. Adult social care responded the following day stating that the alleged perpetrator was known to them but was not currently involved with services.
The landlord provided a stage 2 complaint response on 13 June 2022. The landlord:
1. Apologised for the delay in providing the response.
2. Said it understood that the resident was unhappy with the actions taken by the landlord in response to her ASB reports.
3. Acknowledged that the resident had asked to be moved to alternative accommodation to resolve her complaint. It was unable to meet this request as transfer applications were no longer being accepted “due to the severe shortage of housing”.
4. Advised that it did not usually rehouse victims of ASB, rather it tried to resolve the ASB issue.
5. Provided the details of its housing options team who could provide her with advice and support regarding rehousing.
6. Stated that the ASB case was still being monitored and the landlord was “liaising with the relevant agencies” to attempt to resolve the ASB.

Events after the landlord’s internal complaint procedure

The landlord contacted the resident on 1 July 2022 following a further report of noise nuisance. The landlord confirmed that it had received her noise recordings and that a ‘red’ warning would be issued to the alleged perpetrator.
The landlord was contacted by the police on 13 July 2022 to say it had attended the block following reports from the resident of noise from the alleged perpetrator’s flat.
The resident continued to report noise nuisance throughout July 2022.
The landlord sent to alleged perpetrator a ‘red warning’ letter on 2 August 2022. It said that it had continued to receive reports that he was causing a noise nuisance and that it was in the process of investigating the case. The landlord advised the alleged perpetrator that his tenancy was now at risk.
The landlord telephoned the resident on 18 August 2022 following further noise nuisance reports. The landlord sent the resident a witness statement template and asked her to provide a written statement to support legal action against the alleged perpetrator. The resident provided a written witness statement on 20 August 2022 along with a supporting letter from her GP describing the impact of the ASB on the resident’s health and wellbeing.
On 20 August 2022 the ASB officer carried out an unannounced visit to the alleged perpetrator. She witnessed noise nuisance from his property and described hearing him shouting from outside the property. The alleged perpetrator confirmed to the ASB officer that he had support needs and that he did not have any carpets or suitable floor coverings in the property. The landlord advised him he needed to fit carpets and be mindful of the noise he made. It warned him that it would consider legal action if the noise nuisance continued.
In response to a request for information by this Service the landlord has stated that a risk assessment was not completed in this case due to “the difficulty in contacting the complainant by phone”.
The landlord has stated that it has not received a formal application for rehousing from the resident.

Assessment and findings

The landlord’s response to the resident’s reports that she was experiencing noise nuisance and ASB from her upstairs neighbour

It is acknowledged that this situation has been distressing to the resident. It may help to explain that the role of the Ombudsman is to consider complaints about how the landlord responded to reports of ASB. It is not the Ombudsman’s role to decide if the actions of the resident’s neighbour amounted to ASB, but rather, whether the landlord dealt with the resident’s reports appropriately and reasonably.
Definitions of ASB, including that within the Antisocial Behaviour Crime and Policing Act 2014 which the landlord employs, are subjective. Whether a behaviour is considered to be antisocial or not depends on the impact that it has on others.
The behaviour described by the resident clearly meets the landlord’s definition of ASB and noise nuisance but does not meet its definition of harassment. The resident did not report being threatened or abused by the alleged perpetrator personally. The resident described how the noise made by the alleged perpetrator appeared to follow her from room to room and she understandably felt that this meant that the behaviour was targeted and intentional. The landlord however had no evidence to support this and it was therefore reasonable that the landlord did not respond to the case as a harassment case.
The landlord has advised this Service that it did not carry out a risk assessment in this case. While not explicitly outlined within its ASB policy, the landlord does state that it will assess reports and provide additional support where needed. Such an approach would necessitate the completion of some form of risk assessment.
Risk assessments are a fundamental tool that allow landlords to understand the risk of harm posed to an individual reporting ASB and respond appropriately. They are accepted as good practice within the ASB community and it is therefore of concern that no formal assessment has been seen to have taken place.
Throughout her communications with the landlord the resident referred to the impact the ASB was having on her physical and emotional wellbeing. She said she was sleep deprived, stressed and anxious. She described the noise as so “unbearable” that she had left the property and was accumulating financial debts by staying in bed and breakfast accommodation so that she could rest. A risk assessment would have allowed the landlord to record these impacts.
This Service has not seen evidence that any formal action plan was agreed with the resident despite this being part of the landlord’s ASB procedure. An action plan, when drawn up effectively, is a valuable tool for managing a resident’s expectations. This was a missed opportunity and was a failure by the landlord to adhere to its own ASB procedure.
Between January 2022 and August 2022 the landlord carried out the following actions in the case:
1. Sent 4 warning letters to the perpetrator.
2. Reviewed audio recordings made by the resident.
3. Referred the perpetrator for support and chased up responses to these referrals.
4. Escalated the case to its specialist ASB team.
5. Regularly telephoned the resident to discuss the case.
6. Attempted to contact the perpetrator through telephone calls and visits to the property.
The landlord has shown appropriate regard for the potential vulnerability and support needs of the alleged perpetrator. This is good practice and would be expected by a court prior to any potential legal action.
The spotlight report on noise identified that, as in this case, noise transference is a widespread issue, particularly in flats. The report encouraged landlords to consider prevention through the installation of sound insulation.
Following the landlord’s internal complaint process it successfully visited the alleged perpetrator who stated that he did not have any carpeting. The landlord’s tenancy handbook advised residents that they must have proper floor coverings to reduce sound transference. This Service has made an order for the landlord to consider how it will address this issue.
At the time the complaint was duly made to this Service the landlord’s ASB investigation was ongoing. The landlord was clearly considering legal action at that time and was carrying out the appropriate preparations for this.
The landlord has failed to follow its own procedure in relation to assessing the risk in this case and agreeing an action plan with the resident. It has however carried out several reasonable and proportionate actions clearly targeted at addressing the ASB reported by the resident. Therefore, there was service failure in the landlord’s handling of the resident’s reports of ASB.

The landlord’s handling of the resident’s transfer request

The landlord’s lettings policy states that transfers will only be considered in extremely exceptional circumstances. The policy does not describe what would constitute extremely exceptional circumstances but the landlord did advise the resident in response to her complaint that in cases of ASB it would try and resolve the issue rather than move the complainant. This Service considers that this is reasonable.
The landlord explained to the resident in June 2022 in its stage 2 complaint response that, due to severe social housing shortages in the area the landlord was no longer accepting transfer requests. It did however signpost the resident to information on alternatives including the mutual exchange process and private renting.
The landlord’s lettings policy states that it may transfer existing tenants “in extremely exceptional circumstances”. The landlord would therefore be expected to consider whether exceptional circumstances apply in this case. The policy does not specify what it considered to be exceptional circumstances which provides it with a wide degree of flexibility to apply its discretion.
This Service has not seen that the landlord applied its own lettings policy in this case or that it considered whether the resident met the threshold for a transfer due to exceptional circumstances. This is not to say that this Service considers that the resident’s circumstances were indeed exceptional when compared to others applying to the landlord for rehousing.
We have seen no information to demonstrate that the landlord’s statement that it had stopped accepting transfer applications is reflected in its lettings policy and therefore the landlord did not apply its own policy. This was a failing.
This Service considers that the landlord should have demonstrated that it had considered the resident’s application for a transfer and assessed whether her circumstances were exceptional. It did not do so and this Service has not seen evidence that the landlord’s refusal to accept transfer requests was reflected in policy. There was maladministration in regard to this issue.

The landlord’s complaint handling

The landlord’s stage 1 complaint response clearly set out its understanding of the resident’s complaint, what action it had taken, and what it would do next. The response was reasonable and in line with the landlord’s policy and the Ombudsman’s Complaint Handling Code (the Code).
The landlord’s stage 2 complaint response was delayed by 3 working days however the landlord apologised for this, which was reasonable.
The stage 2 repeated the information provided in the landlord’s stage 1 response and responded to the resident’s request to be moved to another property as a resolution to the ASB.
Overall the landlord response to the resident’s complaint was in line with its own policy and procedure and with the expectations set out in the Code. Therefore there was no maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Service failure in the landlord’s response to the resident’s reports that she was experiencing noise nuisance and antisocial behaviour (ASB) from her upstairs neighbour.
2. Maladministration in the landlord’s handling of the resident’s transfer request.
3. No maladministration in the landlord’s complaint handling.

Reasons

The landlord carried out reasonable and proportionate actions clearly targeted at addressing the ASB reported by the resident. It did however fail to follow best practice and its own procedure in relation risk assessment and action planning.
The landlord did not apply its own lettings policy and failed to demonstrate that it had assessed whether there were exceptional circumstances in the case.
The landlord clearly set out its understanding of the complaint, the actions that it had taken, and the actions it was going to take. The responses were reasonable and adhered to the landlord’s own policy and procedure and the Code.

Orders

Within 4 weeks of the date of this report the landlord to pay the resident £400 compensation comprising:
1. £150 for distress and inconvenience caused by the landlord’s failure to carry out a risk assessment or agree and action plan.
2. £250 for distress and inconvenience caused by its failure to consider the resident’s transfer request.
Within 4 weeks of the date of this report the landlord to inspect the alleged perpetrator’s property to ascertain whether appropriate floor coverings are now in place and if not, what action it intends to take to resolve the issue. The landlord should consider referring the alleged perpetrator for financial assistance to obtain carpeting.
Within 4 weeks of the date of this report the landlord to provide the resident with details of how to apply for a transfer. Within 2 weeks of receipt of a completed transfer application from the resident the landlord to demonstrate that the application has been assessed in line with its lettings policy.

Recommendations

The landlord to carry out a self-assessment against the Ombudsman’s noise complaint Spotlight recommendations with the aim of developing a good neighbourhood management strategy to assist in managing household noise as recommended by the Ombudsman in the Spotlight report on noise. The landlord must provide this Service with the outcome six weeks of the date of this report.