Newlon Housing Trust (202001445)

REPORT

COMPLAINT 202001445

Newlon Housing Trust

30 July 2021

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

This complaint is about the landlord’s handling of:
1. the resident’s anti-social behaviour (ASB) reports;
2. the related complaint.

Background and summary of events

Background

The resident is an assured tenant whose tenancy began on 20 May 2019. The tenancy agreement describes the property as a two-bedroom ground and basement floor flat with a garden. The property is within a conversion and is below an upstairs flat.
The landlord has advised that the resident is recorded as having a vulnerability which gives her priority for certain repairs.
The tenancy agreement obliges the resident not to ‘cause a nuisance or annoyance’ or make a noise that causes ‘nuisance or annoyance to neighbours or so that it may be heard from outside of the Premises between the hours of 11pm and 7am’.
The landlord has an ASB policy that sets out that it will:
1. consider hate-related incidents, harassment and misuse of communal areas as examples of ASB
2. consider whether the allegation meets its definition of ASB when the report is first received
3. ask the resident to keep diary sheets and submit them monthly if there is a known perpetrator of ASB
4. log a case if it meets its ASB definition and pass it to its enforcement team where there is a known perpetrator
5. ‘make an assessment of risk for the complainant in terms of whether they are in immediate danger or under threat of serious harm’
6. take further actions, depending on the severity of the case, such as requesting information from the Police (where there are criminal allegations), noise monitoring (except where the noise is household), interviewing the alleged perpetrator and using CCTV
7. only commence possession proceedings against an alleged perpetrator where ‘there is strong supporting evidence’ of ASB.
The landlord has a noise nuisance leaflet that says it will ask the resident to complete diary sheets when a noise nuisance report is received and that further actions can include mediation offers, meetings with the resident and letters to the alleged perpetrator.
The tenancy agreement sets out that the resident is obliged to maintain ‘an appropriate floor covering, such as carpet and underlay in sitting rooms, bedrooms, hallways and on stairs, and linoleum in kitchens, bathrooms and WCs’ unless it provides written consent to do otherwise.
The landlord’s website has a section on property transfers that sets out that it will consider transfers in two exceptional circumstances:
1. medical – where it needs to help someone move urgently for health reasons
2. decants – when it needs to move someone due to the poor condition of their property.
The landlord has a complaints procedure of two formal stages – stage one responses should be provided within 10 working days and stage two responses should be provided within 20 working days.
The resident’s complaint concerns neighbours living in the flat above hers who are also tenants of the landlord. This Service has not been provided with a copy of the neighbours’ tenancy agreement but it would be reasonable to conclude that the same, or similar, tenancy conditions apply as to the resident.

Summary of Events

The landlord’s records show that it received an ASB report from the resident on 12 March 2020. The notes show that the resident reported too much noise from the neighbouring flat during the day and night and that they had put down wooden flooring.
The landlord wrote to the resident on 18 March 2020. It provided an ASB case reference and asked her to complete incident diary sheets over the following 4 weeks.
The landlord raised the matter with the neighbour on 23 March 2020. It wrote to him and asked that his household be mindful of making noise at night so as not to cause a disturbance to others.
The landlord wrote to the resident on 15 April 2020. It acknowledged her report about laminate flooring in the upstairs property and said it was awaiting a response from another department.
The landlord wrote to the resident on 16 April 2020. It advised that the ASB case had been closed but that incident diary sheets could still be provided by her.
The landlord’s records show that it received another report from the resident on 30 April 2020. The notes indicate that the resident had been expecting further contact from the landlord and again raised problems caused by the neighbour’s wooden flooring.
The landlord’s records show that there was a telephone conversation with the resident on 13 May 2020. It noted that she was willing to engage in mediation and that it had been unable to locate evidence of written permission for any wooden flooring.
The landlord’s records show that it checked the case history on 15 May 2020 and noted that no incident diary sheets had been received and that counter allegations had been made about the resident. It added that it had assessed the ASB as everyday household noise but could review this once diary sheets were received.
The landlord wrote to the resident on 22 May 2020. It advised that it had not received any incident diary sheets, explained what it defined everyday household noise as and concluded that the resident’s ASB reports fell under this category. It offered to consider the matter further should diary sheets be received and signposted the resident to the local authority so they could assess whether there was a statutory nuisance.
The landlord’s records show that it logged contact from the resident by telephone on 4 June 2020. It noted that the resident had raised concerns about a lack of communication in response to her ASB and wooden flooring reports.
The resident submitted a complaint letter to the landlord on 15 June 2020 (the letter was dated 12 May 2020). She advised that the complaint was in response to a letter she received from the landlord that said it could not assist with everyday household noise. She complained that:
1. she had submitted incident diary sheets but the landlord said it had not received them and it had not retained her previous reports
2. she first brought the matter to the attention of the landlord in March 2020 but there had been no proper investigation
3. she had informed the landlord that her neighbour had installed wooden flooring but nothing had been done about it and the property above was overcrowded
4. she made further allegations that the neighbours had poured water into her electrics, thrown broken glass onto grass where her child plays and received indirect threats and racial discrimination
5. this situation had exacerbated the distress caused to her and her child by an assault at her previous address
6. she asked to be moved to another property in the borough on the grounds of health and other factors that she said made the property uninhabitable.
The landlord sent a holding response to the resident on 18 June 2020. It said it was awaiting information from its enforcement team and that it would provide a response within 10 working days.
The landlord’s records show that when it considered the resident’s complaint, it noted on 19 June 2020 that some tenancy agreements differ and so ‘suitable floor coverings’ may be all that the neighbour was obliged to install. It added that it would need to consider diary sheets from the resident to decide if there was a nuisance and if the flooring was a factor.
The landlord issued a stage one complaint response on 2 July 2020. It described the actions it had taken in response to the March 2020 ASB report, reiterated that the noise seemed to be everyday household noise and explained its view on the wooden flooring report (namely that it would only investigate this based on the outcome of any incident diary sheets received). It added that it would investigate the resident’s report of overcrowding in the neighbouring property.
The resident replied to the landlord on 2 July 2020. She asked to escalate her complaint on the grounds that:
1. there had been no mention of the previous ASB and harassment reports made by the resident
2. the landlord had done nothing and she had been left in a situation where the neighbours had poured water into her electrics and subjected her to racial harassment
3. she had requested a move from the property for various reasons.
The landlord acknowledged the resident’s stage two complaint on 21 July 2020. It advised that panel meetings were held twice per month and it was unlikely that the resident’s case would be considered until October 2020. It repeated the request from its stage one complaint response for 4 weeks of incident diary sheets to be provided.
The resident wrote to the landlord on 6 August 2020. She chased a response to her complaints and repeated her concerns about the neighbour.
The resident wrote to the landlord on 2 September 2020. She advised that nobody had asked her neighbour to remove their wooden flooring or a drier that had been placed above her child’s bedroom.
The resident wrote to the landlord on 19 October 2020. She chased a response and repeated the allegations about her neighbour.
The landlord wrote to the resident on 21 October 2020. It advised that it had still not received incident diaries and told her that the stage two panel hearing would be held on 6 November 2020.
The resident replied to the landlord on 22 October 2020. She explained that she had submitted diary sheets months previously but had been told they could not be found and that nobody had investigated the reports. She repeated previous allegations and added that one of the neighbours had stalked her and been offensive when she attempted mediation. She asked for either the neighbours to be evicted or for her to be moved but agreed to re-submit diaries.
The resident supplied further information on 2 November 2020 for consideration by the stage two complaint panel, including photographs of items left in communal areas and letters that her neighbour had sent to her on 30-31 May 2020 that disputed her claims and made counter-allegations about drug use and loud music.
The resident provided diary sheets to the landlord on 5 November 2020. These noted almost 30 incidents between September 2019 and October 2020.
The landlord sent its stage two complaint response to the resident on 17 November 2020, following the hearing on 6 November 2020. It concluded that:
1. it had responded to the resident’s noise reports of 12 March 2020 and 30 April 2020 by advising the resident that they appeared to be about everyday household noise but requesting that diary sheets were completed (it noted none were received on either occasion)
2. its approach was to use diary sheets to check its decision on household noise and take further action, if necessary, on receipt of these
3. the diary sheets submitted in November 2020 had been passed to its enforcement team for further consideration
4. no fault was found in the handling of the ASB case by the enforcement team.
The resident and local authority exchanged emails between December 2020 and January 2021 regarding the noise nuisance. The local authority said it would carry out a visit to attempt to witness noise and asked the resident to submit fortnightly noise diary sheets but that the landlord would be responsible for considering the resident’s reports of tenancy breaches by the neighbour.
The resident forwarded some of the above exchange on to the landlord on 26 January 2021 together with photographs of a damaged front door that she said the neighbour was responsible for.
The landlord wrote to the resident on 28 January 2021 – it acknowledged the resident’s report about the front door and said it would investigate. It updated the resident on 29 January 2021 – it said it had spoken to the neighbour who had denied the allegation and alleged bullying and harassment by the resident. It said it could take no further action due to lack of evidence but would review this outcome if the Police investigations yielded any evidence.
The resident submitted a property transfer request form to the landlord on 29 January 2021. This mentioned ASB from the neighbour as a factor in the transfer request (as well as various repairs and property condition issues).
The landlord acknowledged the resident’s property transfer request on 9 February 2021. It said it only accepted such requests from residents with an urgent medical need for a move so asked for supporting evidence to this effect. The resident replied the same day – she advised that she would provide medical evidence once she had obtained it but asked that the landlord consider her move in line with its policy that allows it to do so in exceptional circumstances.
The landlord and resident exchanged further emails about the property transfer in late February 2021 but these focused on the repairs at the property.
The resident wrote to the landlord on 19 May 2021. She expressed concern at the recent handling of her ASB case by a member of staff, particularly during a conversation on 7 May 2021. She queried why the landlord was still in discussion with the neighbour about wooden flooring and said she was no longer willing to engage in mediation with them given the history.
The landlord wrote to the resident on 18 June 2021. It advised that it had visited the neighbour’s flat and noted attempts they had made to reduce noise transfer by installing floor coverings but it had not been able to access the resident’s property at the same time. It added that it had spoken to the Police and the neighbour about an assault allegation made by the resident the week before but the neighbour had denied the allegation and the Police had advised no crime was committed that required further action.
The resident responded to the landlord on 22 June 2021. She asked why the landlord had still taken no action about the wooden flooring and reiterated that it was unsafe for her to remain in the property. She added on 24 June 2021 that she wanted the landlord to make a property offer to her within 7 days.
The landlord made a discretionary re-housing offer to the resident on 13 July 2021 that it said was due to various ASB concerns and was on a single offer basis. The resident rejected the offer the same day as the property was on the second floor – she advised that her son required a ground floor property with a garden. She requested that a further offer be made.
The landlord wrote to the resident on 21 July 2021. It advised that:
1. its medical assessment had not established a medical need for a move and the property offer made on 13 July 2021 was suitable so another offer would not be made
2. there had been no evidence that the resident had been racially abused, stalked, threatened or harassed by her neighbour.

Assessment and findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

ASB Reports

The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
It is not disputed that the resident’s initial ASB reports about the neighbouring property were made in March 2020 and that they related to ‘too much noise’ from the property above. The landlord took the following actions in response:
1. acknowledged the resident’s reports and sent an action plan to her requesting completion of incident diary sheets
2. opened an ASB case file and wrote to the neighbour to request that noise is not caused at night
3. determined that the noise was everyday household noise but committed to review this upon receipt of completed incident diaries.

These actions were in line with the landlord’s ASB policy and its noise nuisance leaflet and therefore appropriate. It was reasonable for the landlord to assess the noise as household in nature but to advise the resident that it would reconsider this once completed diary sheets were provided.

When the resident raised the issue again in April 2020, the landlord’s notes show that the noise was described as ‘constant’. The landlord reviewed its records and wrote to the resident on 22 May 2020 to reiterate that the noise had been determined to be everyday household noise and that she would need to provide incident diaries as previously requested. These actions were again appropriate as the landlord’s ASB policy says it will ask a complainant to submit incident diaries on a monthly basis where the alleged perpetrator is known.
The resident reported that the neighbour had wooden flooring in both March and April 2020 and that this had contributed to the noise problem. The landlord considered its records, established that no written permission had been given for wooden flooring in the upstairs property and said it would review this again on receipt of completed incident diaries.
However, the landlord has not demonstrated that it checked the neighbour’s tenancy agreement to determine what obligations the neighbour had nor that it raised the floor covering issue with the neighbour. It was unreasonable that the landlord decided not to take further steps to investigate the wooden flooring issue and it was not until June 2021 that it visited the neighbour’s property to assess the floor coverings – this was an unreasonable delay. It remains unclear if the landlord has now given the neighbour permission to have wooden flooring.
When the resident made further ASB reports in June 2020, she alleged that the neighbour had damaged her property, subjected her to racial discrimination and had thrown dangerous items into her garden. No evidence has been seen by this Service to demonstrate that the landlord opened a new ASB case file, investigated these new reports or addressed them with the neighbour – this was inappropriate as these allegations met the landlord’s definition of ASB.
The landlord’s ASB policy sets out that it should pass the case to its enforcement team where there is a known perpetrator and that it should form an action plan, complete a risk assessment and take steps to gather evidence. There is no record that the landlord completed these actions in response to the more serious ASB reports made by the resident since June 2020 – this was inappropriate. It did not investigate any non-noise related reports until it considered the resident’s allegations of damage to the front door in January 2021 and an assault in June 2021 – this was an unreasonable delay.
The resident has asked the landlord to pursue enforcement action and evict her neighbour. However, the landlord was not in a position to provide this outcome as a decision to take possession of a property can only be made through a court of law. Further, legal action, such as eviction, cannot usually be undertaken except as a last resort where all other efforts at resolution have failed, and where a robust case has been built to present to the courts.
The resident also asked to be moved from the property but the landlord was not obliged to do so under its property transfer process. Nevertheless, the landlord decided in July 2021 that it would make a re-housing offer to the resident. Although the resident decided the offer was unacceptable, it was reasonable for the landlord to make a discretionary re-housing offer and this demonstrated that it was resolution-focused.
In summary, the landlord’s initial response to the resident’s noise reports was appropriate and its recent decision to make a re-housing offer was reasonable. However, it has not demonstrated that it made a decision on the neighbour’s wooden flooring or that it investigated the resident’s allegations of hate-related incidents, harassment and misuse of communal areas from June 2020 to date.

Complaint handling

The resident raised initial concerns on 4 June 2020 and submitted a complaint to the landlord on 15 June 2020 regarding its handling of her ASB reports up to May 2020. The landlord did not respond to the complaint until 2 July 2020. This was narrowly outside of the 10 working days its complaints procedure requires for a stage one complaint response but it did offer a holding email in the meantime, as its procedure requires, and its response did demonstrate that it had reviewed its actions in response to the resident’s March and April 2020 noise reports – its handling of the stage one complaint was therefore appropriate.
The resident asked to escalate the complaint on 2 July 2020. The landlord failed to acknowledge the escalation request until 21 July 2020. Although it attempted to manage the resident’s expectations by advising her that the panel was unlikely to consider the complaint escalation until October 2020, it was inappropriate that it took the landlord more than 5 months to provide its final complaint response – this was well outside of the landlord’s complaints procedure timescale of 20 working days for a stage two complaint.
Further, the resident escalated her complaint on 2 July 2020 partly on the grounds that the landlord had failed to answer her concerns about harassment. The eventual final complaint response was silent on this point except to say that the ‘non-noise related abuse’ was ‘previously unreported’ but this was inaccurate as the resident had already reported these issues to the landlord in her initial complaint in June 2020. The landlord’s failure to review its handling of this concern was therefore unreasonable.
In summary, the landlord’s handling of the stage one complaint was appropriate but it delayed unreasonably in considering the stage two complaint and failed to address its handling of the ‘non-noise related abuse’.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of:
1. the resident’s anti-social behaviour (ASB) reports
2. the related complaint.

Reasons

The landlord did not address the resident’s reports of harassment, racial abuse and damage to her home that she originally made in June 2020 and delayed in reaching a view on the resident’s report that her neighbour had installed wooden flooring.
The landlord delayed unreasonably in its handling of the resident’s escalated complaint and did not address all the resident’s complaint points.

Orders

The landlord to write to the resident to:
1. apologise for the service failures identified in this report
2. offer to visit again to assess the noise transfer into her property and advise her if it has determined that the neighbour’s floor covering is appropriate or not, explaining the reasons for its decision
3. check if she is still experiencing ASB beyond the noise issue and, if so, take steps to investigate this in accordance with its ASB policy.
The landlord to pay compensation totalling £225 to the resident comprised of:
1. £150 in recognition of the distress and inconvenience caused to her by its service failures in the handling of her ASB reports
2. £75 in recognition of the distress and inconvenience caused to her by its services failures in the handling of the related complaint.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

The landlord to ensure relevant staff are reminded of the obligations to conduct risk assessments and options for investigating non-noise related ASB allegations within its ASB policy.

The landlord should confirm its intentions in regard to this recommendation to this Service within four weeks of the date of this report.