London Borough of Newham (202115536)

REPORT

COMPLAINT 202115536

Newham Council

29 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 landlords handling of the residents reports of noise nuisance.
This investigation has also considered the landlords complaint management.

Background and summary of events

Background

The resident has been a secure tenant of the landlord since 20 October 1980. The property is a first floor two-bedroom flat of a purpose built block. The landlord has no recorded vulnerabilities for the resident.
The resident made complaints of noise nuisance about two neighbours, one of which was not a resident of the landlord. For ease of understanding throughout this report, the property that does not belong to the same landlord will be referred to as neighbour A and the other which does belong to the landlord will be referred to as neighbour B.
The landlord’s ASB (anti social behaviour) Policy states “where evidence is gathered of persistent noise and nuisance formal enforcement action may be taken”. This policy advises where a complaint is received of noise nuisance, a letter can be sent to the alleged perpetrator to “notify them that a nuisance has been reported. This letter will outline the nature of the complaint and request that actions are taken to address the concern. The letter will also outline some practical advice around preventing a noise nuisance and the possible repercussions of continuing to cause a noise nuisance, such as statutory nuisance being caused and enforcement action that may follow”.
This same policy says the landlord will offer the noise app or in some cases noise monitoring equipment where there is “evidence of persistent noise nuisance occurring”. It states, “data collected can then be used along with other supporting evidence to take any necessary and appropriate action in order to address the noise nuisance complaints”.
The landlord’s corporate complaints policy breaks down stage 1 complaints into 2 separate themes, early resolution and investigation. Early resolution is used for non complex issues and investigation is used where a more formal investigation is required. However, its policy states these will still be considered through the complaints route, and “if appropriate expectations have not been delivered” then the matter “could be taken straight to a Stage 2 Review”.
The policy says at stage 2, a response will be issued within 15 working days or 20 working days if it relates to services delivered to a tenant or leaseholder. Its response should include “options and advice on further actions the complainant may consider”.
The landlord’s compensation policy suggests for delay and distress “where the delay and/or distress caused by the failure has an appreciable to significant effect on the anxiety, frustration and annoyance of those concerned, and/or has caused a great deal of uncertainty”, amounts in the range of £50 to £150 for Low to Moderate impacts.
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 17 January 2022. 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.

Summary of Events

In approaching this service the resident explained she made a formal complaint to the landlord on 5 May 2021 and received a response on 11 May 2021. This service has seen no evidence of this and the landlord confirmed to this service that it did not investigate the residents “concerns” as a formal complaint at stage 1 so did not provide the response to this service.
The landlord recorded it had sent an advisory letter to neighbour B on 6 May 2021.
The resident reported a noise complaint to the landlord about neighbour A on 30 July 2021, the landlord’s contact logs record this as “banging and shouting”. The resident continued to report the noise nuisance on 19 separate occasions to the landlord before it issued its final response.
The resident subsequently reported a noise complaint to the landlord about neighbour B on 31 July 2021, the landlords contact logs record this as “banging noises”. She continued to report the noise nuisance on 22 separate occasions to the landlord before it issued its final response.
On 13 August 2021, the resident contacted the landlord to report a noise nuisance incident and it noted that the resident had not yet had any response from the ASB team and she had been “placed on medications because of the stress the noise issue” had been causing.
The landlord recorded it had sent an advisory letter to neighbour B on 6 October 2021.
Following contact from this service the landlord recorded a complaint at stage 2 of its complaint process on 8 October 2021. In its acknowledgement it said the resident could expect a response by 21 October 2021.
Notes from the landlords contact log show on 23 October 2021, the resident stated she hadn’t “had much response from the ASB team”.
The landlord recorded it had sent an advisory letter to neighbour A on 25 October 2021.
The landlord advised the resident on 25 October 2021 it would require an extension in order to provide its complaint response, it gave a new target of 5 November 2021.
According to the landlords stage 2 response it called the resident on 5 November 2021 as it required a further extension to respond and gave a new target of 19 November 2021.
In an update to this service on 11 November 2021, the landlord advised it had tried numerous times to contact the resident to discuss her complaint but had not managed to do so and therefore was “unable to provide a response at that time”.
The landlord spoke to the resident on 23 November 2021 and clarified its conversation in writing on the same day. In its letter it:
1. Explained that it could not enforce domestic noise due to sound insulation issues.
2. Clarified it had received numerous reports from the resident about 2 neighbouring properties.
3. Advised advisory letters had been sent out.
4. Confirmed the agreed actions from the conversation it had with the resident, these were:
  1. It would write to both neighbours.
  2. It would follow this up by speaking to both.
  3. If needed, it would write to the landlord of one of the properties.
  4. It would visit other residents in the block.
  5. It would not divulge the residents identity to the complainants.
5. It offered the noise app for the resident to use however she did not have a smart phone so was unable to make use of this.
The landlord recorded it had sent a further advisory letter to neighbour A and B on 23 November 2021.
The landlord visited the flat block and spoke with neighbour B on 24 November 2021. This neighbour refuted the allegations and advised of historical issues in which mediation was arranged but stated the resident did not attend. The landlord visited a further 10 flats in the block, it spoke with 6 residents, all of whom said there was no issue with noise nuisance. One resident did advise of hearing the flat above walking around but did not see this as noise nuisance.
The landlord spoke to neighbour A on 17 January 2022, they also refuted the allegations but notes do state children are at the property and they “play”.
The landlord issued its stage 2 response to the resident on 17 January 2022. Within this response, the landlord:
1. Apologised for the delay to complete an investigation.
2. Summarised the communication it had with the resident.
3. Advised the key issues it considered as the complaint to be:
  1. Its response to the residents original reports of ASB,
  2. The level of communication about those reports,
  3. Its handling of the formal complaint.
4. Said it was “satisfied” the residents reports of ASB had been recorded correctly and initial action had been taken, however it accepted it could have coordinated this better and advised a new team was formed and an officer had already contacted the resident.
5. Agreed there had been a significant delay on providing the stage two response, however noted these delays were communicated to the resident.
6. Advised of an issue with a “draft” stage two response in November 2021 due to a miscommunication internally and apologised for this.
7. Offered the resident £50 compensation for the response and communication to her ASB reports and £150 for the delayed stage two response.

Events following the landlords internal complaints process.

According to the evidence provided by the landlord, following its complaint response, the resident continued to make a further 34 reports of noise about neighbour B, between the dates of 23 January 2021 and 4 March 2023. Contact logs also show she continued to make a further 95 reports of noise about neighbour A, between the dates of 4 March 2022 and 2 March 2023.
In an update to this service on 6 January 2023, the resident stated the following:
1. She had had no response from the ASB team after raising complaints on “numerous” occasions.
2. The last time she spoke to the ASB team was in July 2022.
3. She had not been told if any action had been taken.
4. She will continue to contact the landlord each time noise nuisance occurs.
5. She was very dissatisfied with how her noise nuisance complaints had been dealt with by the ASB team.
In an update to this service on 14 March 2023 the landlord advised:
1. the noise described by the resident was domestic noise.
2. It had found the neighbours not to be engaging in any form of nuisance or ASB.
3. It offered to fit noise equipment in the residents flat, but this was refused, therefore restricting “credible evidence” to be gathered.
4. It offered an “out of policy provision” to the resident, giving a direct line to an officer in working hours for her to report noise in real time so an officer could witness the noise. The resident did not report any noise this way.
5. Door knocks took place and no other resident had expressed concerns with noise nuisance.
6. Both alleged perpetrators had been visited and refuted the allegations.
7. The landlord had contacted the landlord of the other property and asked them to consider changing the flooring to help with sound transference.
8. It said the delays were due to a restructure which resulted in less resource and officers were expected to prioritise the most urgent of cases.
9. As the resident has escalated to this service, it decided to “investigate and monitor” rather than close the case.

Assessment and findings

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 landlords handling of the residents reports of noise nuisance.

The landlords ASB policy states where evidence is gathered of persistent noise and nuisance, formal enforcement action may be taken. Therefore it was appropriate for the landlord to attempt to gather evidence of the reported noise nuisance. As the resident could not utilise the noise app it was appropriate for the landlord to offer to fit noise monitoring equipment in the residents property. As the resident refused the fitting of noise monitoring equipment, the landlord was unable to gather any credible evidence to act upon. This did not stop the landlord exploring all other avenues in an attempt to resolve this for the resident however, and it asked residents of neighbouring properties in the same block if they experienced issues with noise nuisance. It also spoke with the landlord of one of the alleged perpetrators to see if they would consider the flooring in their property and sound transference issues. These are all reasonable steps the landlord took to resolve the issue in the circumstances.
The timeframe in which it took these steps however is somewhat of concern. From the evidence provided it took no action from the residents reports in July about both neighbours until October, when it sent an advisory letter. From the evidence provided to this service no action was taken in the months of August 2021 and September 2021, despite the resident making 22 separate calls about the noise. Although it recorded the noise nuisance as domestic noise, it is good practise to carry out an initial investigation, not doing so would have led to mounting frustration for the resident, which can be evidenced by the landlord’s contact log notes where she says she has not heard from the ASB team.
Its lack of recorded communication throughout handling the residents reports of noise nuisance is of a concern, even after the involvement from this service, after its initial contact the landlord did not follow through in communicating its actions back to the resident. It did not communicate back to the resident following its door knock exercise, which again would be adding to the residents frustration that nothing was happening. It is noted that the resident at times was difficult to get hold of however the landlord is still expected to update residents in such circumstances by any means available to it. Although the landlord has advised the reason for the delay in actions and lack of communication is due to a restructure, it would be expected to have an adequate plan in place to prevent or minimalise any impact of its services to residents, this is a service failure by the landlord.
The landlord tried to manage the residents expectations as it advised her over the telephone and followed up in writing on two occasions that it could not enforce domestic noise. However the delay in managing the case and the decision to keep the case open to further investigate and monitor, allowing the resident to make repeated reports of the noise, would have increased the residents expectations that the landlord could take action in this case. From the evidence provided the landlord did not consider closing the case for over a year after it was first reported nor did it consider any other avenues to settle the dispute. With no evidence gathered in this time this is unreasonable and would have increased the residents expectations and frustration in the lack of action being taken.
Although this service accepts that landlords are not responsible for soundproofing homes above the standards applicable at the time of building, it should be recognised that actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report. Ultimately, and most importantly, such measures would provide a better quality of service to its residents therefore an order has been made in respect of this.
In summary a finding of service failure has been found due to the delay in responding to the residents reports and the continued failure to manage the residents expectations.

The landlords complaint management.

The landlords complaint policy says a complaint could be taken straight to stage two if appropriate expectations have not been delivered at the early resolution stage. It is not clear from the evidence provided if the residents initial noise nuisance reports were dealt with under the early resolution stage of its complaints process for it to then record a stage 2 complaint following involvement from this service. Although this service does not advocate a landlord prolonging a complaints process, investigating a complaint at the initial stage gives the resident and landlord an opportunity to reach an early local resolution. Recording a complaint straight away at stage 2 gives no opportunity for the resident to explain why they are not satisfied with a response and subsequently the landlord is not able to put things right. This would have been appropriate in this case as the resident would have had the opportunity to make clear any continued dissatisfaction and what would resolve her complaint. Removing the chance for early local resolution, forcing escalation to alternative means, goes against the dispute resolution principles, this services complaint handling code and, is a failure.
The landlord took 68 working days in total to respond to the residents complaint. Although it is noted it advised that it required an extension on two occasions, it still took 38 working days after the date of its second extension to provide a full response. It advised this service it was unable to give a response at the time due to not being able to contact the resident despite numerous attempts. Even if experiencing difficulties in contacting a resident, it is good practise for the landlord to be expected to advise of a time to discuss the complaint or give a deadline for contact prior to issuing a response, it should not wait for prolonged periods before issuing a response due to lack of contact. It apologised for a “draft” response in November, in its final response and apologised to the resident for this however, did not explain what had happened or advise how it would prevent this from happening in the future. It therefore missed the opportunity to learn from any failures and was unable to demonstrate it had thoroughly considered what had gone wrong.
The landlord acknowledged and apologised, in its final response to the resident that it had delayed in providing its final response and offered £150 compensation for this. This is in line with its policy and is seen as appropriate by this service in the circumstances of this case. Although it is noted that no reason was given to the resident for such delay which would have led to further frustration.
The landlord did not acknowledge the impact the noise was having on the resident in its complaint process, even though its recorded her as being put on medication due to the stress. It failed to respond to the complaint in an empathetic manner or signpost the resident to or liaise with possible support services, which constitutes a further failure in its complaint handling.
In summary, the landlord held poor records, had a lack of clarity on its formal complaint stages, showed no evidence of organisational learning and a lack of empathy allied to extended delays. Taking the above into account a finding of maladministration has been made.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the residents reports of noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its complaint management.

Reasons

A finding of service failure has been found for the landlords handling of the residents reports of noise nuisance due to the delay in acting on the residents reports and the failure to manage the residents expectations.
A finding of maladministration has been found for the landlords complaint management, this is due to the missed opportunity for local resolution, a significant delay in providing a response and failure to respond in an empathetic manner.

Orders and recommendations

Orders

Within the next four weeks, the landlord is ordered to:
1. Arrange for a senior member of staff to send a written apology for the failures identified in this report.
2. Pay the resident a further £100 in addition to its offer of £50 for the distress and inconvenience caused by its failures in its handling of the residents noise reports.
3. Pay the resident a further £200 in addition to its offer of £150 for the distress and inconvenience caused by its failures in its complaint management.
The landlord must provide evidence of compliance with the above orders within 4 weeks of the date of this report.
Within 12 weeks of the date of this determination, the landlord must initiate and complete a management review of this case, identifying learning opportunities and outstanding actions. Produce a plan that must be shared with this service outlining at minimum its review findings in respect of:
1. A survey of the residents property and attempt reengagement with neighbouring landlords to establish any preventative measures which can be taken to help with the sound transference issues experienced across the properties involved in this case and to implement any possible improvements within a 12 week period from the date of this report.
2. A review of its operating practises in managing neighbour disputes where general domestic noise is reported with reference to the Ombudsman’s Spotlight Report published in October 2022.
The landlord must provide evidence of compliance with the above orders within 12 weeks of the date of this report.

Recommendations

It is recommended that the landlord review its complaint policy with particular reference to the stages referenced in the Complaint Handling Code and take into account the revised memorandum of understanding between this service and the LGSCO soon to be consulted upon.
The landlord should advise this service of its intentions for the above recommendations within four weeks of the date of this report.