London Borough of Newham (202323476)

REPORT

COMPLAINT 202323476

London Borough of Newham

27 September 2024

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 handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance.
2. the landlord’s handling of the associated complaint.

Background

The resident holds a secure tenancy with the landlord, who is a local authority. The property is a 3 bedroom ground floor maisonette. The landlord has no recorded vulnerabilities for the resident, however she suffers from anxiety and depression. At times during this investigation, the resident and her daughter have engaged with the landlord and the Ombudsman. Both parties are named on the tenancy agreement. For the purpose of this report, both will be referred to as “the resident”.
Throughout 2022 the resident made several reports of antisocial behaviour (ASB) and noise nuisance. These included disturbances which were coming from 2 flats in particular. One was playing loud music, and the other could be heard acting inconsiderately at various times of the day and night. She also reported that there was noise coming from unknown youths who would congregate outside, but close to her property.
On 21 March 2023 the resident made a complaint to the landlord. She said that:
1. she had experienced ASB since 2017. She was unhappy that the landlord had recently closed her case, having advised her that what she was reporting was general living noise. She had requested the case be reopened, but had no response.
2. she was given access to the noise app and had evidence of her neighbour breaching their tenancy agreement. When she had requested the landlord install a sound machine to the property, she was ignored.
3. the situation was affecting her sleep and triggering anxiety and depression for the whole family.
4. as a resolution to her complaint, she wanted the case reopened and for the property to be soundproofed.
The landlord issued a stage 1 response on 12 April 2023 and said that it was not upholding her complaint. It said that:
1. incidences such as children playing, or noise due to overcrowding of another household would not be considered ASB under its policy.
2. as she could not identify the youths causing a nuisance on the street outside her property, it had referred the matter to its street enforcement team to include the area on their patrols.
3. it had sent one of her neighbours a warning letter about noise. A community protection warning (CPW) was later served which resulted in the loud music ceasing.
4. it would not install a sound machine without gathering evidence first. The more recent noise she had been reporting was from unknown persons and therefore the equipment would be unsuitable. Soundproofing was also not something it would consider, but she could discuss her concerns further with her housing officer.
The resident said she disagreed with the landlord’s decision. A stage 2 complaint response followed on 12 April 2023. The landlord said it had reviewed the response it had given at stage 1 and the outcome remained unchanged. It assured her that a housing officer would be in touch to introduce themselves.
In recent contact with the Ombudsman, the resident advised that the landlord has since reopened her ASB case, but she is repeatedly being told that the noise she is experiencing is “general living noise”. As a resolution to her complaint, the resident would like to be moved and compensation for the distress she has experienced.

Assessment and findings

Scope of investigation

This assessment is based on the landlord’s response to the resident’s formal complaint, which is broadly reflected in the above timeline. It may help to explain the scope of an Ombudsman investigation can be time-limited in relation to when a complaint was brought to the landlord’s attention. It is noted that the resident has reported ASB for some years. On 4 February 2022 the landlord provided her with a summary of her reports of ASB and the case was closed. This assessment is therefore focused on the events from May 2022 onwards, which is the date from which the resident raised new reports of ASB from her neighbour, and which lead to her formal complaint in March 2023.
It is recognised that the situation has caused the resident distress as she has reported ASB and noise nuisance over a prolonged period of time. Aspects of the resident’s complaint relate to the impact the situation has had on the health of her and her family. 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 diagnosis of anxiety and depression. 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.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance

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 noise. 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.
The landlord’s ASB and nuisance policy states that it considers nuisance neighbours, noisy behaviour and street based noise nuisance as ASB. It says that for “priority 2” cases, or those which it deems do not warrant an urgent or immediate response, it will respond within 5 working days. Its policy further states that any actions will be agreed with the resident reporting the issue and they will be updated of progress within 14 days.
In this case, the resident reported that her neighbour was “stomping and jumping” at high volume on 29 May 2022, to the extent that her health was being affected and she expressed she wanted to move. There is no evidence that the landlord responded to her concerns within a timely manner in accordance with its policy, causing the resident distress. It was not until 27 June 2022 that the landlord wrote the resident and acknowledged her reports. The delay was unreasonable and the resident experienced time and trouble chasing the landlord for an update.
The resident explained to the landlord that that the situation was impacting the mental and physical wellbeing of her family. The landlord’s ASB policy states that it will work with a range of agencies to ensure that any risk of harm is managed effectively and it will consider referrals to its multi-agency safeguarding hub (MASH). However, no evidence was seen that the landlord conducted a risk assessment with the resident, and it did not offer to refer her to any specialist support which was inappropriate.
It is understood that there will be a certain degree of noise between adjoined properties, and potentially at all hours depending on individual’s lifestyles and shift patterns. The landlord’s acknowledgement of the resident’s reports was an opportunity for it to have managed her expectations at the earliest opportunity and for it to have explained what it could reasonably consider as ASB under its policy.
The resident explained that it is not necessarily the type of noise in isolation that is antisocial in nature, but that any noise can be heard in the flat above at all hours and past 11pm. In response, the landlord gave the resident conflicting advice. For example, the resident was initially informed that it would send a letter to the other party to ask them to keep the noise to a reasonable level. Yet less than a month later, the landlord said that the type of noise she was describing was indicative of poor sound insulation, rather than unreasonable behaviour. This caused confusion and frustration for the resident, who felt her reports were not being taken seriously
Contrary to its ASB and noise nuisance policy, the landlord did not seek to agree an action plan and regular timescales for contact with the resident at the point it opened a new ASB case. This was a missed opportunity for the landlord to build trust and give her confidence about what actions it was able to take based on her reports. As a result, the resident had to chase the landlord for an update on several occasions, adding to her distress.
The Ombudsman’s Spotlight on Noise Complaints explains that where noise reports do not meet the statutory threshold, then landlords should adopt a proactive good neighbourhood management policy, distinct from its ASB policy, with clear options for maintaining good neighbour relationships. This should include mediation, which should be offered to residents in an attempt to establish a mutual understanding of each other’s lifestyles. In this case, there is no evidence that the landlord explored mediation as an option with either neighbour which was a missed opportunity to engage both parties in discussion about the impact the noise was having on the resident.
Records show that the landlord did engage with the other party about the type of flooring that they had, to see if other options were available to mitigate the noise. This was a reasonable approach to take, particularly as it was understood that the neighbour had laminate flooring which contributed to the noise the resident was experiencing.
On 14 July 2022 the landlord advised the resident that the other party had been given until the end of the month to either provide evidence of approval for their laminate flooring, or remove it. However there is no evidence that the landlord followed up with the resident the outcome of its discussions about the flooring until November 2022, causing her ongoing distress and frustration.
Records show that between August 2022 and November 2022 the resident was encouraged to keep a log of incidents and advised to use the noise app. This was a reasonable request, if the landlord deemed that the noise she was experiencing could be considered under its ASB policy. However as explained in paragraph 15, it did not consistently make this clear.
The landlord’s ASB and nuisance policy states that it will use a range of interventions to tackle issues. In this case, the evidence shows that some recordings the resident sent prompted the landlord to write to the other party again and later issue them with a community protection warning (CPW), which was proportionate.
Key to the ASB, Crime and Policing Act 2014 is multi-agency working between local authorities, landlords and the police. Where the landlord is a local authority, it has separate teams responsible for housing, environmental health issues and more complex ASB cases. This is a common approach and it is important that teams do not work in silo and there is coordination across specialisms who work closely with each other and partnership agencies to tackle issues.
In the handing of this case, there was evidence that the landlord referred the resident’s concerns about street noise to its enforcement patrol team which was appropriate. It also referred the resident’s concerns about sound proofing of the building to its housing team, although it is unclear what the outcome of any discussions were, and whether they were explained to the resident. This left her feeling confused about whether or not there was more that the landlord could do to reduce the impact the noise was having on her.
The landlord’s ASB policy refers to the community trigger (now known as ASB case review) and states that a review can be requested if a resident believes no action has been taken in response to their reports of ASB. It says that in order for the threshold to be met, residents must have reported ASB to the council, police or registered housing provider “three times about separate” in the last 6 months. This particular sentence is incomplete, therefore it is unclear whether the threshold is intended to refer to “separate incidents”. In any event, there is no evidence to support that the landlord considered whether a referral for a community trigger was appropriate.
After the resident made her complaint on 21 March 2023, the landlord sent the other party an “advisory letter”. It is not clear on what basis it had written the letter, given that it had informed the resident intermittently that the noise she was experiencing did not constitute ASB. This resulted in confusion for the resident, who was unclear whether the landlord intended to investigate the matter further.
Accurate record keeping is key to effective ASB case management, however there were gaps within the landlord’s records. On 4 September 2024, the Ombudsman asked the landlord to provide evidence of visits and any letters sent between January 2022 and March 2023. This is because specific events were referenced, for example a visit that took place on 4 August 2022, but no accompanying notes were provided. In response, the landlord advised the Ombudsman that it had been “difficult to obtain any additional information” and it “could not locate any visit notes or a copy of the case closure letter sent to the resident”. The failure to keep accurate and robust records was inappropriate and has hindered the landlord’s ability to demonstrate all of its interventions over time.
In its stage 1 response on 12 April 2023, the landlord explained to the resident that children playing or general living noise could not be considered ASB. It also explained that it could not fairly investigate disturbances by unknown persons using sound equipment which was reasonable. However it failed to elaborate on what further support it could offer her. For example, it did not discuss whether she might be willing to engage in mediation nor did it explore any move options that might be available to her if the property type was impacting her threshold for noise.
The landlord’s final response was an opportunity for it to adopt the Ombudsman’s Dispute Resolution Principles of “be fair, put things right and learn from outcomes”. Although the landlord’s explanation as to what it could investigate under its ASB policy was reasonable, it failed to identify that there had been delays in responding to her concerns and it had missed opportunities to risk assess the household or offer further support. To date, the resident remains confused about what the landlord’s intentions are having recently reopened her ASB case about the same nature of noise.
Overall, there was maladministration in the landlord’s handling of the resident’s reports of ASB and noise nuisance. The landlord was limited as to what enforcement action it could take against the resident’s neighbours and the unknown youths based on her reports, but it did not make this clear to her from the onset. Instead, it has opened and closed ASB cases over a considerable period of time, which have failed to manage the resident’s expectations. The landlord failed to consider mediation between both parties and it did not consider whether there was any risk posed to the resident for which it could refer her to additional support.

The landlord’s handling of the associated complaint

It is evident that the resident said she was unhappy with the landlord’s handling of her noise reports over a prolonged period of time. When receiving a complaint that references noise, it is important that the landlord distinguish whether the resident is complaining about the noise itself, or the handling of the landlord’s noise case. The danger of not recognising the difference can lead to a delay of formally investigating the matter as a complaint, as was seen in the handling of this case.
It is clear that throughout 2022 the resident expressed she was dissatisfied with the way the landlord handled her ASB case. On 24 November 2022 she told the landlord she felt she had been “more than patient, but was consistently being ignored”. The landlord failed to recognise this correspondence as dissatisfaction with its service and it did not investigate her concerns as a complaint for a prolonged period of time.
It is not until she submitted a formal complaint via its website on 21 March 2023 that it acknowledged her concerns. However it failed to contact her on receipt of the form to discuss the matter in further detail. This was a missed opportunity to understand her dissatisfaction with its service and gain a full understanding of what the resident wanted as a resolution to her complaint.
The landlord’s response on 12 April 2023 was slightly outside of the timescale expected in accordance with its complaint policy. The landlord did not acknowledge this shortcoming, nor did it apologise for the delay which was inappropriate. It took no learning from her complaint, and as a result she experienced further delays in obtaining a final response.
The landlord failed to contact the resident after she expressed she was dissatisfied with the stage 1 response, and before it provided her with a final outcome. As a result, it failed to address all of her outstanding concerns. By failing to recognise its complaint handling failures, the landlord has not adopted the Ombudsman’s dispute resolution principles. As a result, there was maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

The landlord is ordered to apologise to the resident for the failures noted within this report, within 4 weeks. The apology should be issued using the Apologies Guidance.
The landlord is ordered to pay the resident £400 in compensation. The amount is to be paid directly to the resident and not offset against any arrears, within 4 weeks. The amount is made up of:
1. £300 for the distress and inconvenience caused to the resident by the landlord’s handling of her reports of ASB and noise nuisance.
2. £100 for the time and trouble caused to the resident in bringing her complaint to the landlord.
The landlord is ordered to contact the resident within 4 weeks to:
1. obtain a full understanding of her current ASB concerns. It should explain to the resident what can reasonably be considered under its ASB policy and follow its advice up in writing. If the landlord has an open ASB case for the resident, it should agree an action plan with her to include dates for action and communication updates.
2. conduct a risk assessment with the resident and consider whether a referral to support agencies is appropriate.
3. discuss the vulnerabilities present within the household and update its records accordingly.
4. provide the resident information about her move options, should this still be an avenue she wishes to pursue.
In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a senior management review of case to identify what went wrong and what it would do differently. This should be presented to the senior leadership team and this Service within 6 weeks. The review should include:
1. a review of the resident’s ASB journey, including the landlord’s failure to conduct a risk assessment, refer to support or offer mediation.
2. an assessment against the spotlight reports on noise complaints and knowledge and information management, unless the landlord can demonstrate it has done this within the last 12 months.
3. a review of its handling of the resident’s complaint, including its failure to open a formal complaint at an earlier opportunity.

Recommendations

It is recommended that the landlord review the wording in section 8 of its ASB and noise nuisance policy to ensure that the threshold for the community trigger (now ASB case reviews) is clear.