London Borough of Newham (202205719)

REPORT

COMPLAINT 202205719

London Borough of Newham

13 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

1. The complaint is about the landlord’s:
   1. Handling of the resident’s reports about noise nuisance and antisocial behaviour (ASB).
   2. Complaint handling.

Background

2. The resident is a secure tenant of the property which is a 1-bedroom ground floor flat. The flat above the resident’s is occupied by a temporary tenant of the landlord. The resident has fibromyalgia and chronic pain. The landlord has stated that it has no recorded vulnerabilities for the resident.
3. On 21 January 2022 the resident contacted the landlord to report noise nuisance. The resident explained that the neighbour had been playing loud music, slamming doors, and causing sleepless nights. She said that she was having to wear ear plugs but that it was still very loud. The resident said that she had been reporting the issue since November 2021 and nothing had been done about it. She said she suffered from ill health and asked for the issue to be dealt with.
4. The landlord responded on the same day to advise that the neighbour’s property was managed by a different team, and it would contact the allocated officer to report this to them so they could speak to the neighbour. It also advised the resident to report each individual noise heard to the ASB team who would investigate it.
5. The resident continued to submit reports of noise nuisance to the landlord and stated that it was seriously affecting her quality of life. On 3 March 2022 the landlord advised that it had actioned a notice to the neighbour and that it had asked the neighbour’s property management team to confirm what action they were taking.
6. The resident submitted a formal complaint on 8 March 2022 to state that she had been reporting noise nuisance almost every day and had submitted over 80 recordings. She stated that her disability meant that she must spend most of her time at home and described the negative impact the loud music was having on her. The resident requested an action plan to know how and when it would stop. She stated that she wanted to live in peace and for the landlord to stop placing people in the flat who behave in an antisocial manner.
7. On 30 March 2022 the landlord informed the resident that the neighbour was visited on 18 March 2022. The neighbour was given “firm advice” and a tenancy breach letter which stated that if there was no improvement then escalation could take place. It said that it had forwarded on the resident’s recent emails to the neighbour’s housing officer for them to consider next steps. Following this, the resident continued to provide noise recordings and forms, stating that she was suffering from chronic pain and the noise was making it worse. On 5 May 2022, the landlord informed the resident that it had issued a community protection notice to the neighbour.
8. On 19 June 2022, the resident contacted the landlord to say that she had reported the neighbour to the police as they had made racist and threatening remarks towards her. She said she had video evidence and was provided with a crime reference number. The resident stated that the neighbour was still playing loud music and banging on the ceiling which she believed was done to intimidate her. The resident asked the landlord if it can issue the neighbour with an acceptable behaviour contract and take formal steps to keep the neighbour away from her.
9. The landlord provided a stage 2 response on 27 June 2022 which outlined the following:
   1. It apologised for the delay in responding and for not providing a response at stage 1.
   2. It partially upheld the complaint and said that necessary actions were taken to address the resident’s concerns but that these were not communicated to her.
   3. It could not find a reason why it was not communicated to her “beyond what appears to have been a misunderstanding between the various teams as to where the final responsibility for this lay.”
   4. It said that the relevant teams were working with the resident and continuing to monitor the issues, however, the noise did not constitute a statutory nuisance.
   5. It said that it cannot use discretion regarding who is provided accommodation, and it cannot predict who may behave in an antisocial way.
10. The resident was dissatisfied with the response and contacted the Ombudsman. The resident said she wanted the landlord to respond to her reports of ongoing ASB and to provide regular updates on the investigation. The resident requested the landlord take action to ensure that she no longer continued to be affected by the ongoing noise nuisance and ASB. The resident wanted the landlord to acknowledge failings in its handling of the matter and pay compensation for the length of time she continued to be affected.

Assessment and findings

Scope of the investigation

11. The resident has referred to her disability and that the landlord’s handling of the noise nuisance and antisocial behaviour could have had an impact on this. It is beyond the remit of the Ombudsman to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. The resident may wish to seek legal advice on making a personal injury claim if she wishes to pursue this. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to the distress and inconvenience which the resident experienced as a result of the situation.
12. In the resident’s complaint to the Ombudsman, there has been reference to historical reports of ASB which have not been progressed through the landlord’s complaints process. Therefore, whilst the historical incidents can be referenced to provide contextual background to the current complaint, this assessment focusses on events 6 months prior to the complaint being raised (March 2022) and the elements of the complaint that the landlord has responded to.

The landlord’s handling of the resident’s reports about noise nuisance and anti-social behaviour

13. The Ombudsman understands the resident’s situation and recognises that the concerns she has reported have affected and caused distress to her. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred or who is responsible. However, the Ombudsman can assess how a landlord has dealt with matters in the time of a complaint, and assess whether the landlord followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances.
14. Following ASB reports, it is necessary for the landlord to respond in accordance with its ASB policies. This should include assessing risks, discussing cases with those involved, and using available tools to discourage ASB. The landlord should consider vulnerability and carry out impact assessments, and deal with reports in a proportionate and appropriate manner. It should consider its obligation as a landlord to treat allegations from all its customers in a consistent and evidence-led way.
15. The landlord’s ASB policy states that ASB can include noise nuisance. The policy says if you report a noise or other nuisance, it will write to the resident to acknowledge receipt of the complaint as well as write to the alleged perpetrator to issue an initial warning and advice on preventing further nuisance. It states that in instances of persistent noise, it will open a case and undertake an investigation. It says where evidence is gathered of persistent noise nuisance, formal enforcement action may be taken.
16. In this case, it was difficult to determine the exact course of events due to the lack of evidence. The Ombudsman has not been provided with a comprehensive record of the decisions which were made in this case and why. It does appear that appropriate action was taken in some instances, however, it is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail of events. If there is disputed evidence and no audit trail, we may not be able to determine that an action took place or that the landlord acted fairly and in line with its policies. As such, the Ombudsman cannot conclude that the landlord pro-actively engaged with the resident up to the date of the stage 2 response.
17. Following advice from the landlord on 21 January 2022, the resident formally reported the noise using the landlord’s noise incident forms and provided several recordings to support this. This was a reasonable first step for the landlord to suggest and in line with its ASB and noise nuisance policy.
18. In her email on 21 January 2022 the resident said nothing had been done after 5 noise reports since November 2021, for which she had provided the reference numbers. There are no clear records provided about these. It is not satisfactory that the landlord did not demonstrate that it considered and addressed these reports.
19. On 28 February 2022, the landlord staff confirmed that they heard very loud music coming from the flat above the resident’s and made a recording of this. They stated that it was unacceptable, and they could see how much it must be affecting the resident, especially as this was the second consecutive tenant who had caused noise nuisance. They confirmed this with the resident and contacted the neighbour’s housing officer to request immediate action was taken. It would be expected that if the landlord had evidence that the noise was unacceptable, it should have agreed next steps with the resident so she was clear on what actions the landlord can and will take, as per its ASB policy. It is not clear what the immediate action should have been and there is no evidence that the landlord acted on this communication.
20. The ASB team contacted the resident on 3 March 2022 following her further reports of noise nuisance. The ASB team confirmed they had sent a notice to the neighbour and that they had updated the housing team about the action that had been taken. The communication and resident’s expectations may have been managed better here. Again, it was unclear what the action plan was in terms of next steps and what would happen if the neighbour breached the notice.
21. In her formal complaint, the resident requested an action plan to know how and when the noise would stop. The absence of a clear action plan meant that the resident had to chase the landlord on numerous occasions for a response and update to the investigation. While the landlord did provide an action plan to the Ombudsman, it did not adequately set out the issue or the next steps. There is also no evidence to suggest that it was shared with the resident, the neighbour, or the relevant teams involved with the issue at the time. In the Ombudsman’s view, a risk assessment and action plan should have been put together upon the case opening and where there were concerns for both the situation reported and the resident’s wellbeing. This would have helped to manage the resident’s expectations and it would have assisted the different departments regarding where each responsibility lied.
22. The Ombudsman understands that it was reasonable for the landlord to have separate departments to address different types of issues. It is for the landlord to manage the relationship between the different departments to progress issues that cross over between them. The landlord should ensure that residents are provided with a cohesive service which is not adversely affected by different teams being involved. Upon reviewing the landlord’s internal emails regarding this case, the Ombudsman finds that there has been a lack of effective collaboration between the departments, which resulted in an adverse effect on the resident.
23. On 5 April 2022 there was correspondence between the ASB team and the resident in which the allocated ASB officer asked the resident to forward her emails onto the housing officer who was responsible for the neighbours flat. In other communication, the ASB team were having difficulties receiving a response from the housing officer for the neighbour. The ASB team should have escalated this internally rather than placing the onus on the resident to contact someone who they already knew was unavailable. This was inappropriate and not in line with its ASB policy which states that anyone with a case will have a dedicated case officer.
24. The resident sent many recordings and reporting forms to evidence the noise she was experiencing. In many of her reports she would also explain the distress it was causing and the impact on her disability. It would have been reasonable for the landlord to have responded to the resident on a regular basis to feedback on the recordings. The Ombudsman can see that the resident questioned on several occasions why she was not receiving a response, but no clear explanation was offered.
25. The landlord’s internal emails stated that on 25 May 2022, it had agreed no further action on the case and suggested mediation. While this may have been the appropriate action at the time, there is no further information to explain how the conclusion was reached. More importantly, there is no evidence to suggest this was communicated to the resident at the time. Its failure to do so resulted in further upset for the resident as it did not appear that the landlord was supporting her or taking any action. In this respect, the landlord’s approach failed to manage the resident’s expectations.
26. Given the resident’s reports that she was disabled, the landlord would be expected under the Equality Act 2010 and the Regulator of Social Housing’s Tenant Involvement and Empowerment Standard, to demonstrate that it had taken steps to ensure it understood the needs of the resident and to demonstrate that it had responded to those needs in the way it provided its services and communicated with her. From the information provided, it appears that the landlord did not undertake a risk assessment at any point during the investigation or consider the resident’s disability in relation to the noise.
27. The resident also made the landlord aware of a previous incident of arson which she believed was caused by the previous neighbour of the flat above, who she also reported for noise nuisance. While the landlord is not expected to respond to historical incidents of ASB, the landlord did not acknowledge or assess how the impact of the previous incident may have affected the resident’s concerns for her safety.
28. On 19 June 2022, the resident informed the landlord that the neighbour had made racist and threatening remarks towards her. She said she had video evidence and was provided with a crime reference number. As per its ASB policy the landlord should have responded to the resident within 1 day of her report of a hate related incident, as it was categorised as priority 1. The landlord does not demonstrate in its complaint response that it considered and addressed this, and it is not evident that the landlord responded or took any action for this report. It was unacceptable that the landlord did not follow its policy in relation to what it should have categorised as a priority 1 incident.
29. The landlord informed the Ombudsman that it offered the resident access to the Noise App, however she preferred to submit incidents of noise via email. It also stated that it had installed a noise monitoring device in the resident’s property which did not capture any noise amounting to a statutory nuisance. These were appropriate actions to take, however, it is not clear when the noise monitoring device was installed. It is also not evident that the landlord considered any structural repair issues which may be allowing noise transference, despite the resident’s complaints of noise from 2 different neighbours living in the flat above.
30. In its final response the landlord acknowledged and apologised for the lack of communication throughout the case, but it did not offer a remedy to put things right. It stated that necessary actions were taken to address the resident’s concerns but that these were not communicated to her. The Ombudsman has considered the steps the landlord has taken throughout the investigation. However, it is unclear from the records when these actions took place and why they were not communicated to the resident.
31. The landlord did not acknowledge the extent of the failings highlighted in this report. Its poor record keeping meant that the risk level was unclear, decisions were not documented, and communications were not always followed up. The landlord’s correspondence both internally and with the resident, was indicative of a disorganised and confusing approach. The landlord failed to apply its own policies which impacted its ability to effectively resolve the issue. In light of the above findings, there was maladministration in respect of the landlord’s handling of the resident’s reports about noise nuisance and ASB.

Complaint handling

32. The landlord’s complaint policy provides for a 2 stage complaints procedure where it is to respond to a complainant at stage 1 within 20 working days and within 15 working days at the final stage.
33. The landlord’s compensation policy states that a decision to pay compensation is usually the result of a formal complaint, and only if relevant to the case, and there has been clear service failure, delay, injustice, effect, or costs incurred.
34. The resident submitted her formal complaint on 8 March 2022. On 13 April 2022 she was informed that she would be responded to by 25 April 2022. By the time the landlord acknowledged the complaint it should have already responded. When the resident contacted the landlord about the lack of response, the day it was due to respond, it took a further month to acknowledge this correspondence. Its 27 June 2022 response at stage 2, without a stage 1 response, was then 75 working days after the formal complaint.
35. While the resident had requested that the landlord escalate her complaint to stage 2, the resident requested this because she had not received a response at stage 1 and felt that the investigation would be more thorough if it was carried out at stage 2. The landlord’s decision to progress the complaint straight to stage 2 deprived the resident of a proper and thorough process in respect to her complaint. This was not fair to the resident, especially given the delays and escalation in ASB which she had experienced during that time.
36. In its stage 2 response the landlord apologised for the delay and for not providing a stage 1 response. It stated that necessary actions were taken to address the resident’s concerns but that these were not communicated to her. It said it cannot find a reason for this beyond what appears to have been a “misunderstanding between the various teams as to where the final responsibility lay.” It did not demonstrate what lessons it had learnt or what corrective action it would take to ensure that it would not happen again.
37. It would have been appropriate for the landlord to have offered compensation for any distress and inconvenience which the resident experienced because of the lack of communication during the noise investigation and the delays in responding to the resident’s complaint. This is in line with the Ombudsman’s remedies guidance (published on our website) and the landlord’s compensation policy. The lack of remedy and compensation for the resident suggests that the landlord had not reflected on the impact the omissions had on the resident. The Ombudsman is therefore not satisfied that the landlord put right this element of the complaint.
38. In light of the above, there was maladministration in relation to the landlord’s handling of the resident’s formal complaint. The landlord is ordered to pay the resident a total of £200 compensation to account for the landlord’s failure to provide a stage 1 response and to account for the delays.

Determination

39. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s reports of noise nuisance and ASB.
40. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

41. The landlord to offer a meeting to the resident to understand any ongoing concerns. The landlord should act in accordance with its policy. Where appropriate it should conduct a risk assessment, agree an action plan, and communicate with the relevant parties. It should provide contact details for a dedicated case officer. If the landlord considers no further action is required, it should write to the resident detailing why it has made this decision.
42. The landlord is to pay the resident a total of £500 compensation comprising of:
    1. £300 for the distress and inconvenience caused by its ambiguity and poor communication with the resident in response to the noise and ASB reports.
    2. £200 compensation for the landlord’s failure to respond to the resident’s original complaint, and delays at stage 2.
43. The landlord is ordered to review its record keeping in line with the Ombudsman’s Spotlight report on Knowledge and Information Management published in May 2023, and provide the Service with evidence of how it has considered the recommendations set out in the report.
44. The landlord is to carry out staff training to ensure that where cross-departmental working in ASB cases is required, it continues to follow its policy in relation to having a dedicated case officer.
45. The landlord is to provide compliance with the above orders within 6 weeks of the date of this report.

Recommendation

46. If it has not done so already, the landlord is encouraged to review the Ombudsman’s Spotlight report on noise complaints.