London & Quadrant Housing Trust (L&Q) (202220785)

REPORT

COMPLAINT 202220785

London & Quadrant Housing Trust (L&Q)

13 February 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

1. The complaint is about the landlord’s handling of the resident’s reports of antisocial behaviour (ASB).
2. The Ombudsman has also considered the landlord’s handling of the complaint.

Background

3. The resident lives in a 1-bedroom ground floor flat and held an assured tenancy with the landlord, a housing association. The building is a house that has been converted into two flats. The resident’s tenancy began in 2011 and around January 2023, his tenancy was transferred to another housing provider.
4. The resident stated that he experienced noise nuisance from his neighbours who live in the flat above him. The noise nuisance included loud late-night phone calls which the resident said interfered with his household’s sleep. Between December 2019 and September 2022, the resident attempted to resolve the matter informally by speaking with the neighbour in person and sent a number of text messages asking them to be mindful of the noise and to consider putting some carpet down; however, the noise continued.
5. On 28 September 2022, the resident reported the noise levels to the landlord who spoke the same day to the neighbours believed to be creating a nuisance. It reminded all parties of their obligations. The landlord also requested the resident to keep noise diaries for a period of time. The resident contacted the landlord again on 30 September 2022 because the noise continued despite the landlord’s interventions, and an email was sent by the landlord to the neighbour in question.
6. The resident made a formal complaint to the landlord on 3 October 2022. He said the noise issue had been going on for over 2 years and provided recent examples of loud phone calls and banging of doors and bedroom cupboards. Given that the resident had made the neighbour aware of how much the noise was affecting him yet the noise nuisance continued, he felt it was now deliberate and amounted to (ASB). The resident wished to sleep at night free from disturbance and noise, and asked what actions the landlord would take.
7. The landlord issued its stage 1 response on 14 October 2022. It said it had spoken with the neighbour on 28 September 2022 and that they had said they believed they were considerate to the resident as regards noise but did not want to put down carpet as their view was that this would not stop the noise because the walls are thin. The landlord said it was unable to require the neighbour to put down carpet and also unable to tell them when to make their telephone calls. The landlord offered mediation with regard to the ongoing noise issues so there could be agreement on how to go forward. The landlord noted the building is a house conversion and it would be expected that residents would hear general living noise from the neighbours. Further, it said that talking is not considered to be antisocial behaviour.
8. On 29 October 2022, the resident asked to escalate his complaint. He explained that this was not a case of occasional noise; rather a consistent and deliberate attempt to disturb and bully. The resident did not understand why the landlord did not consider that being frequently awakened from sleep and being obliged to sleep in the living room amounted to ASB by the neighbours. The resident noted that the noise reported always occurred at a particular time and has done so regularly over the last 2 years. The resident said putting down carpet may not stop the noise, but he felt it would decrease it, and offered to pay for carpet to be put down so there would be no cost to his neighbour. The resident provided noise diaries on 1 November and 24 November 2022 covering the period of September to November 2022. The landlord acknowledged the stage 2 complaint on 22 November 2022.
9. The resident spoke with the landlord on 25 November 2022 and confirmed he was willing to take part in mediation. The landlord mentioned the possibility of reference to the local authority’s noise abatement team and also suggested that the resident may wish to consider a mutual exchange. Subsequently, as the resident had not heard back from the landlord about the stage 2 complaint, he contacted the Ombudsman on 3 December 2022.
10. The landlord issued its stage 2 response on 16 December 2022. It stated that, having reviewed the noise diaries of November 2022, it had identified that a number of entries related to the neighbour talking on the phone. It did not consider this to be ASB and was therefore unable to take any enforcement action. The landlord noted that the resident was willing to engage in mediation and said the neighbour would also need to participate. Moreover, it said it would cover the cost of installing appropriate carpet and underlay within the neighbour’s home and can propose this action to the neighbour. It added that it had found no proof that the neighbour had installed their own hard flooring. The landlord acknowledged that the resident’s household had suffered with noise for some time and provided the resident with information about the Noise app to make recordings. It acknowledged that there had been delays and its enquiries could have been managed more effectively, for which it apologised. It offered compensation of £180 made up of £130 for distress, inconvenience and time and effort, and £50 for the late acknowledgement and delay in its stage 2 response.
11. On 5 February 2023, the resident said that while he appreciated the landlord had engaged with him, the issue was not resolved. The resident said the landlord’s response failed to take any decisive action and also noted that the suggestion of carpeting and underlay did not place an obligation on the neighbour to accept. The resident rejected the compensation offer; he said he felt that the landlord’s response trivialised the disturbance his household experienced. The resident advised the Ombudsman that he did not want compensation; rather, as a resolution, he wishes the landlord to compel his neighbour to reinstate carpets and underlay in the living areas of their property. The resident also advised that he continues to experience noise nuisance and indeed feels that the neighbour’s behaviour has escalated. The resident added that he had arranged for a soundproofing company to install sound insulation in his own flat at his own expense in an attempt to mitigate the noise.

Assessment and findings

Scope of investigation

12. The resident has reported that the noise has been a longstanding issue and that it has taken place for a number of years. While the Ombudsman appreciates this may be the case, there have been historical reports of noise nuisance 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 investigation will not seek to examine matters from 2019 to 2021 but will focus on the events 6 months prior to the complaint being raised in October 2022 and the landlord’s response to the various elements of the complaint.
13. Paragraph 42 (c) of the Scheme states that the Ombudsman may not consider complaints which (in the Ombudsman’s opinion) were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising. In this case the resident noted noise nuisance over several years before their complaint. The resident’s formal complaint was raised on 3 October 2022. This investigation will therefore focus on the landlord’s actions from around April 2022 (six months before the formal complaint) until its final response of 16 December 2022.
14. The Ombudsman notes that the resident suggested that as a result of the landlord’s failure to enforce any action against the neighbour with respect to the noise, the health of his household deteriorated. The Ombudsman appreciates the noise reported has been longstanding and, despite the resident’s efforts, a suitable remedy has not yet been found. Unfortunately, it is beyond the expertise of the Service to reasonably determine a causal link between the landlord’s actions or inactions and the deterioration of the health of a member of the resident’s household. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought. However, consideration has been given to the general distress and inconvenience that may have been caused to the resident’s household.

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

15. It is acknowledged that this situation has been distressing to the resident. Our role is to consider whether the landlord responded to the resident’s reports of noise nuisance in accordance with its relevant policies and procedures, and whether its actions were fair and reasonable in all the circumstances of the case. 
16. The resident made a number of reports about their neighbour behaving antisocially including noise nuisance by way of late-night phone calls and banging. In the resident’s complaint to the Service, he states he felt the landlord did not fully take into account the information in his reports and did not support him nor take effective action against his neighbour. The resident felt his concerns were not being taken seriously and asserted that the landlord’s inaction was because the tenancy of both flats in the property were due to be transferred to another housing provider in January 2023.
17. It is clear that the resident felt that what had started as an initial nuisance several years prior had developed into antisocial behaviour. The resident felt that his efforts to resolve the matters informally were unsuccessful and that the neighbour’s behaviour continued despite being made aware of the distress the matter was causing to the resident. The resident felt that the noise became deliberate and targeted and that this constituted antisocial behaviour. This was reported to the landlord on 28 September 2022.
18. The landlord’s ASB policy states that it will not normally consider noise caused by people going about their daily lives to be ASB. The landlord will, however, record “noise” as ASB where it is “persistent, deliberate or targeted”. If, after considering the complaint, the landlord is unable to take action on behalf of the reporting party, or it does not consider the reports to be ASB, it will explain why and point the resident towards relevant agencies for support. 
19. The landlord’s ASB policy outlines that all reported ASB incidents are assessed based on risk and priority. Standard priority cases are logged and assessed by a case manager within 3 working days. In accordance with the policy, ASB comprises noise that is persistent, deliberate, or targeted. After receiving reports of ASB, the landlord will keep in regular contact with the resident as agreed, follow safeguarding procedures where appropriate, provide advice and support, and agree an action plan, keeping them updated throughout the case.
20. The Ombudsman’s Spotlight Report on Noise Complaints ‘Time to be heard’ published in October 2022 sets out that landlords should establish whether or not there is noise nuisance and, if so, whether the cause is noise transference on account of the structure of the building or antisocial behaviour. The Service considers that a landlord needs to have two distinct policies – one for good neighbourhood management and one for issues that meet the ASB threshold.  It should then follow the appropriate policy and associated procedures to deal with the matter. A good neighbourhood management policy should have clear processes including mediation, which should be offered to residents at the earliest opportunity in an attempt to establish a mutual understanding of each other’s lifestyles. In this case, the landlord acted fairly by offering mediation in good time, 12 working days after the initial report was made. This was a suitable approach and an example of prompt, appropriate and decisive action to attempt to prevent the problem escalating.
21. The resident made it clear to the landlord on a number of occasions that they did not consider the noise to be household noise. Being clear on how a noise report would be handled is key to good communication between the landlord and the resident, and aids expectation management. On receiving reports of noise nuisance, the landlord should take appropriate steps to manage expectations and set out how it will assist the resident and what steps it can reasonably take to resolve their concerns. The landlord should have a triage methodology for identifying whether a noise report should be handled under the ASB policy or the good neighbourhood management policy. This should include a recognition that the time the noise occurred has a bearing on whether the noise is antisocial in nature. Further, the landlord should take into account vulnerabilities or any other issues facing a resident and how this may impact their ability to resolve issues without support. In this case, it is not clear which policy the landlord chose to handle the noise reports under.
22. When the resident reported on 28 September 2022 noise nuisance from their neighbour, the landlord responded in good time (the same day) and asked him to keep diaries of noise nuisance, which the resident did, recording dates and times and details of the events. It sent a text to both sets of residents in the building reminding them of their tenancy responsibilities with regard to not causing a nuisance, annoyance or disturbing the peace. It subsequently contacted the neighbour to discuss noise and their behaviour. This was an appropriate approach and demonstrated that the landlord was engaging with the reports and taking the resident’s concerns seriously.
23. When considering whether the noise the resident was reporting was daily living noise, or ASB, it was appropriate for the landlord to request evidence in the form of diaries and (after the resident asked to escalate his complaint) noise recordings by way of the Noise app in order that it could establish date, time and frequency it was occurring as well as its volume. It was also reasonable that the landlord mentioned the possibility of contacting the local authority noise abatement team; this would have been to establish whether what the resident was experiencing amounted to statutory noise nuisance.
24. The landlord, having reviewed the noise diaries the resident supplied, stated that there were a number of entries relating to the neighbour making phone calls at night and this would constitute normal household noise rather than ASB; it is noted that the resident disputes this. The Ombudsman’s Spotlight Report on Noise Complaints outlines that it is unfair to both the complainant and person being complained about for the noise to be treated as something it is not, and harder for the landlord to make consistent and reasonable decisions if it does not have the right framework for all types of noise reports. The landlord’s view was in line with its policy that noise caused by people going about their daily lives would not be logged as ASB and no further action would be taken. The Ombudsman considers this was a reasonable approach. Having said this, given that the landlord was unable to take any further action, it could have set out the resident’s options at an earlier time, including signposting the resident to relevant agencies for support, such as the local authority’s noise abatement team.
25. Additionally, the landlord did not appear to agree an action plan and regular timescales for contact with the resident. Given the nature of the noise nuisance reports, this was a missed opportunity to build trust and reassure the resident that his concerns were being taken seriously and to manage his expectations from the outset. While the landlord did not create an action plan, it did, for the most part, keep the resident updated through the initial reports in September 2022 and throughout its complaints process.
26. In November 2022, the landlord’s records indicated it was keen to visit both the resident and the neighbour in person and an action plan to be formed to resolve the matter. According to the resident, the landlord did not visit them at a time when the noise would likely be heard (though the noise was often reported late at night) to experience the potential disturbance. This is concerning considering that in November and December 2022, the landlord’s records noted the importance of visiting to obtain a clear picture of what was happening and to ensure that it was providing sufficient support and advice to the resident.
27. The Ombudsman notes the resident reported a large fight that took place a couple of years ago involving the neighbour where the police were called. The resident had concerns about potential domestic violence in the neighbour’s property. The landlord acted appropriately and in line with its policy by informing the resident that if they themselves felt in danger or believed there was criminal activity, to call 999. It also took steps to set up a separate case which would be assigned to the ASB team for investigation and made appropriate internal enquiries. The resident was referred by the landlord to victim support, refuge and adult social care following their reporting of this incident. This was a satisfactory approach.
28. The police are best placed to respond to and investigate reports of domestic violence. Although the landlord would be expected to co-operate with any investigation by the police, it would be limited in the actions it could take against tenants following allegations until any police investigation was concluded. This is because, as explained above, any formal action would need to be supported by extensive evidence, which could be obtained by way of a police investigation.
29. The resident queried why his situation which caused great annoyance was not considered a breach of tenancy by the neighbour, given that he felt that they had gone against the tenancy conditions. The landlord appears to have looked into this and came to the conclusion that it did not have sufficient evidence to enforce tenancy action against the neighbour on the grounds that evidential recordings that provide satisfactory evidence of noise nuisance ASB are not easy to produce. While this was not the outcome the resident wanted, it was reasonable for the landlord to explain this. For the landlord to take formal action against the neighbour, it requires sufficient supporting evidence that the behaviour is continuing to cause significant nuisance and/or harm to others and has occurred over a prolonged of time, rather than being a one-off event or a historic issue which has since ceased.
30. Landlords cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise such as talking. However, if a noise is confirmed as being a statutory noise nuisance, then both the landlord and the local authority’s environmental health team may be able to take formal action against the neighbour, such as issuing a tenancy warning or an acceptable behaviour agreement. As the landlord was not given evidence to show that the noise the resident was experiencing was a statutory noise nuisance, it was reasonable for the landlord, at the time, to not have taken action against the neighbour following the resident’s reports. With that said, it should have made an attempt to assess whether there was a statutory nuisance.
31. The Ombudsman has seen internal notes which state a phone call on 25 November 2022 discussed the possibility of a mutual exchange to enable the resident to move to another property; however, it is unclear if the resident was interested in pursuing this. The landlord acted appropriately by offering this as it was an option open to the resident. Subsequently, in its stage 2 response, the landlord provided information about the Noise app. The landlord suggested the resident use this to record the frequency and intensity of any future noise incidents and provided a reference sheet with information about how to use the app. However, despite it promoting its use on its website, the landlord only signposted the resident to the Noise app in its final response which was 57 working days after the resident had raised his concerns with the landlord. This was an oversight and should have been suggested earlier.
32. The Ombudsman has seen evidence from the landlord’s internal records that it checked the assured tenancy terms and conditions which applied to both resident and neighbour and found that it was silent with regard to hard flooring. This was appropriate in order to ascertain possible future actions. However, in the landlord’s final response it concluded that the neighbour had not installed their own hard flooring although it is unclear how it arrived at this conclusion given that a visit to the neighbour’s property to inspect the flooring was not documented in its submissions to the Ombudsman.
33. This was particularly relevant given the nature of the noise the resident was reporting including phone calls, thumps and banging. It is noted that the landlord’s repairs policy states residents are responsible for floor covering such as carpets. It remains the case that the landlord should have carried out an inspection of the neighbour’s property at the earliest instance after receiving reports of ASB and confirmed the nature of the flooring. Had it done this, and were the noise issues to continue, the use of the Noise app would capture, along with diary sheets, any noise made during unsociable hours which would help build a case for enforcement action.
34. Moreover, in the Ombudsman’s Spotlight report on Noise Complaints, our recommendation in respect of existing tenancies is: “For existing tenancy agreements where hard flooring is only permitted with permission and/or with conditions (such as appropriate underlay or that permission will be rescinded if a noise report is made), if a noise report is made, those clauses should be inspected against and enforced.” The landlord has not provided the Ombudsman with its reference records of the nature of the flooring in the neighbour’s property at the time the neighbour’s tenancy commenced nor did it refer to any of its previous property inspections. It is further noted that the landlord has no record of asking the neighbour what type of flooring they have in the living areas and bedroom. This was inappropriate given the circumstances.
35. While the landlord acted appropriately by offering to lay carpets and underlay in the neighbour’s living areas and bedroom to help minimise noise transference, the resident said the neighbour’s floors were wooden and felt the laying of carpet and underlay should have been enforced by the landlord. It appears that the neighbour did not agree to have carpet/underlay laid in the living areas in their property despite the fact that this would have been at the landlord’s expense; it is not clear if this was explained to the neighbour. The Ombudsman appreciates that this is frustrating for the resident, but the landlord cannot be held accountable for the actions or decisions of third parties. In this case, with the evidence that was available to the landlord, it was not within its power to oblige the neighbour to lay carpets in their living areas and bedroom.
36. The Ombudsman also notes that the landlord’s laminate flooring guidance states “where residents have laid laminate flooring and do not have our permission, they may be asked to remove it if noise complaints are received”. It also states that, had residents installed their own [hard] flooring, the landlord would “not have legal grounds to enforce removal of laminate unless the noise was classed as ASB”. The landlord would therefore need to independently verify the noise, by way of the Noise app and noise abatement team, to establish that the neighbour’s behaviour was antisocial over a period of time in order for it to take enforcement action with respect to the flooring.
37. In its stage 2 response, the landlord offered compensation of £130 for distress, inconvenience, time, and effort, which appeared to be in respect of its handling of the issues at stage 1. Where there are acknowledged failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord has put things right and resolved the resident’s complaint satisfactorily in the circumstances.
38. In summary, the Ombudsman recognises that this was clearly a resident who wanted the noise nuisance to be resolved and made concerted efforts to resolve matters both informally and via the landlord’s complaints process. The landlord’s offer of compensation in its stage 2 response was broadly in line with the Ombudsman’s remedies guidance which suggests compensation from £100 for failures that adversely affected the resident. While the landlord made efforts to assist the resident, recognised some of its oversights and made an offer of compensation, it failed to acknowledge or recognise that it did not inspect the neighbour’s flooring at any point during reports or the subsequent complaint. It also delayed in offering some its available tools to the resident. In view of this, the Ombudsman considers its offer of compensation was not satisfactory in putting things right for the resident. Orders and recommendations have been made below.

The landlord’s handling of the complaint

39. The complaints policy advises that it will deal with stage one complaints within 10 working days, and stage 2 complaints within 20 working days.
40. The resident made a formal complaint on 3 October 2022. The landlord acted in line with its policy by issuing its stage 1 decision within 10 working days on 14 October 2022. The resident asked to escalate his complaint on 29 October 2022. This was not acknowledged by the landlord until 15 working days later on 21 November 2022.
41. As the resident did not receive the stage 2 response by 28 November 2022, he referred the matter to the Ombudsman. On 16 December 2022, the landlord issued its stage 2 response. This was a period of 34 working days and outside of its policy timescale. Although the delay was minor, the landlord failed to update the resident as required and provide a new date of response in accordance with its policy. This would have caused frustration to the resident.
42. The landlord missed opportunities to respond to the resident’s complaint sooner at stage 2. Nevertheless, it provided an explanation for the delays and offered an apology to the resident. In addition, it offered £50 compensation for these complaint handling failures. While there were delays in responding to his concerns through its complaints process, its offer of compensation was in line with the Ombudsman’s remedies guidance and proportionate to the adverse effect caused which involved the time and trouble the resident had experienced and his efforts in involving the Ombudsman.

Determination

43. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of antisocial behaviour (ASB).
44. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress with respect to its handling of the complaint which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Orders and recommendations

Orders

45. Within 28 calendar days, the landlord must:
    1. provide the resident a written apology for the failings and shortcomings identified in this report.
    2. pay the resident £100 for its failure to adequately investigate the nature of the neighbour’s flooring during the complaints process.
46. The landlord shall contact the Ombudsman within 28 calendar days to confirm that it has complied with these orders.

Recommendations

47. It is recommended that the landlord:
    1. pay the resident £180 as offered in its stage 2 response if it has not done so already.
    2. work in partnership with the new housing provider by ensuring that it has shared all records that relate to the noise reports and ASB in the building, if it has not done so already.
    3. encourage the new housing provider to check the nature of the flooring in the neighbour’s property and, if appropriate, to seriously consider the installation of carpet and soundproofing underlay in the neighbour’s living areas and bedroom.
    4. encourage the new housing provider to offer noise monitoring equipment in the resident’s property. If the resident accepts, and regular noise is found to be above the relevant threshold over the relevant period of time, the new housing provider should take appropriate action.
    5. consider whether it can action some of the recommendations in the Ombudsman’s Spotlight report on noise nuisance.
    6. review its handling of noise nuisance complaints such as this to ensure that the properties of all relevant parties are appropriately inspected when reports of noise nuisance are made.