Octavia Housing (201905017)

REPORT

COMPLAINT 201905017

Octavia Housing

27 January 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 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 response to the resident’s reports and concerns about:
1. Noise-related anti-social behaviour (‘ASB’) by a neighbour.
2. Use of chemicals by the neighbour when cleaning in the communal hallway.

Background and summary of events

The resident has a secure tenancy with the landlord for a ground floor two-bedroom flat (‘the property’).
The resident has said that she has been in dispute with the neighbour, who lives in the flat above her, for over 10 years. The main issues have been around noise related ASB. The following is intended as a summary of the background to the present complaint being considered.
On 18 July 2019 the resident made an ASB report for noise disturbance from the flat above. This was in respect of loud music, for which she had to call the local authority noise enforcement team. She also mentioned other noise-related nuisance such as furniture being moved around, doors slamming, loud talking and the neighbour running and power walking throughout the flat. She said that she had recordings on the Noise App and she wanted to know what action the landlord was going to take.
The landlord met with the resident on 24 July 2019 to discuss the ASB report and agree an action plan. Two issues were recorded: (a) loud music and (b) noise transference. It was agreed that the landlord would liaise with the local authority Environmental Health (‘EH’) team and it would review the Noise App recordings and it will interview the neighbour. It also agreed to carry out a sound transference test at both properties.
The email correspondence on 9 August 2019 between the landlord and the resident refers to some confusion as to whether or not the resident had raised an ASB report or a complaint. It was agreed at this point that a formal complaint would be logged about the landlord’s handling of the ASB report.
The formal complaint was acknowledged on 12 August 2019 and two additional issues were to be included in the ASB investigation: (1) use of chemicals by the neighbour when cleaning in the communal hallway which left a smell, which the resident believed was done by the neighbour deliberately to annoy her, and (2) the resident C believed the neighbour had put the chemical on her front door.
The landlord’s correspondence shows that it interviewed the neighbour on 14 August 2019 about the loud music and it discussed ways this could be dealt with.
The landlord updated the resident on 19 August 2019 and explained what it had done so far in regard to the ASB report. It had interviewed the neighbour and she had listened to the Noise App recordings and had agreed to reduce the noise level from her speaker and/or consider moving it to a different location. The landlord had agreed to do a sound transference test at both properties. With regards to the use of chemicals it had found no evidence that the neighbour was responsible, but it would issue a block letter to all residents reminding them not to use abrasive cleaning chemicals in the communal areas.
On 23 August 2019 the resident responded and said that the landlord needed to consider the impact of the chemical smell caused by the neighbour when cleaning the communal hallway. She provided the landlord with a letter from her GP explaining how the smell had affected her.
The landlord acknowledged this and said it was still investigating the complaint and it would respond by 9 September 2019.
On 30 August 2019 the landlord wrote to the resident and said that it had found no evidence to support the allegation the chemical smell was being caused by the neighbour. It reiterated its view that the fire brigade had attended on the last occasion the allegation was reported and they found no evidence of any harmful chemicals being used. It said that the resident could consider getting her own forensic testing done to establish if a chemical had been used. But as it stood, it did not have enough evidence to show that the neighbour had used chemicals on the resident’s door.
The landlord said that it had reviewed 151 noise recordings made by the resident using the Noise App and it did not need any more recordings for now and the next step would be for a sound transference test to be carried out.
On 2 September 2019 the resident reported that the noise had started again, with furniture being dragged around and heavy objects being dropped on the floor. The landlord acknowledged this and asked the resident to confirm her availability for the sound transference test.
The landlord issued its Stage 1 complaint response on 6 September 2019:
1. It was satisfied that the ASB report was investigated in line with its policy.
2. An action plan was agreed and the officers had acted in accordance with the agreed action plan and its ASB procedures.
3. A sound transference test had been booked in and once this was done it would decide the best course of action to take and it would take into account any input from the EH team.
4. It acknowledged that the neighbour was an employee of the landlord but it was satisfied that this had not influenced the investigation and the investigating officer had a duty to be impartial. It would also liaise with EH to ensure any action is appropriate and proportionate.
5. In light of the above, it was satisfied that the officers had dealt with the matter appropriately and it did not uphold the complaint.
The resident submitted a medical letter 9 September 2019 to be considered as part of her complaint. The landlord initially declined to accept this, but it subsequently agreed it would be taken into account.
The resident was also unhappy that she was not able to meet with the investigating officers in person to discuss her complaint. The landlord declined this request and said that as there was no new evidence to review a face-to-face meeting was not necessary at this stage.
The landlord’s records show that the resident submitted a copy of a letter she had received from the fire brigade dated 10 October 2019. This letter explained that its detection equipment was used to search the property, including some mop strings found on the floor, and they found no traces of hazardous materials. The resident said that the fire brigade had accepted her assertion that there was a smell. She referred to the letter where it said: ‘As explained, this does not mean that a smell was not present, but that we did not find anything harmful.’
The landlord carried out the sound transference test on 30 October 2019 and found:
1. Whilst the test carried out was in a controlled environment with a limited scope, it is my professional Judgement that the noise transference witnessed was no worse than one would expect in a typical conversion of the age and type of the building.
2. It is unlikely that any improvements/ enforcement action can be taken against Flat x to address the issues relating to sound transference.
3. Conclusion…officers conclude that the sound transference is what would be typically expected in such a conversion, and therefore, the noise transferred could be deemed as “daily living noise”.
The landlord wrote to the resident on 13 November 2019 with the sound transference test report findings. The resident was unhappy with the test and the outcome, and the landlord maintained its stance that the noise witnessed was deemed to be normal daily living noises. The resident was also unhappy that photos were taken of her home. The landlord maintained that these were taken with her consent to show the location of the properties, but it agreed they would be removed from the report. The landlord confirmed that it would now conduct a case review and make a final decision.
It was on at this time that there were several calls between the landlord and the resident which culminated in the landlord calling the Police as it was concerned for the resident’s safety and wellbeing. The landlord’s records show that the staff member was concerned about the resident’s well-being as she had mentioned threats of self-harm and feeling suicidal. The file notes for these calls explained why the landlord felt it had to notify the Police.
On 14 November 2019 the resident requested that her complaint be escalated and also included her dissatisfaction with the landlord’s decision to call the Police to check up on her. She said this was very traumatic for her and caused her severe anxiety.
The landlord carried out a case review and wrote to the resident on18 November 2019 with its outcome of its ASB investigations:
1. It confirmed it had liaised with the lead EH officer and had received a copy of the warning letters EH had issued to the neighbour.
2. It had interviewed the neighbour and had visited both properties to carry out a sound test within both properties.
3. It had agreed it would serve the neighbour with a Tenancy Caution which would remain on her file and would be taken into account if any future action is required.
4. It said that it had understood that the EH team would be installing tape recorders in the resident’s property and it would take this evidence into account to consider any further action.
5. It said that the EH team did not raise any questions about the methodology and outcomes of the sound transference test.
6. It confirmed that the ASB case would now be closed and no further action would be taken. It offered to meet with the resident to explain its decision.
7. It asked her to continue to monitor the situation and use the Noise App as necessary and it would consider either re-opening this case or setting up a new one if required.
The landlord’s records show that it reviewed 29 additional noise recordings provided by the resident and it remained of the view that the recordings showed normal daily household noises. There was no evidence of deliberate or persistent nuisance by the neighbour. It said that it would not re-open the ASB case based upon these recordings, but it would look at it again if EH become involved again.
On 26 November 2019 the resident requested that her complaint be escalated. Following on from this, there was ongoing correspondence between the landlord and the resident regarding other issues not related to this particular complaint.
The landlord and resident discussed this complaint on 9 January 2020, and the landlord then issued its Stage 2 final response on 29 January 2020:
1. It confirmed that it would take into account historical issues for the purposes of context, but it would make a determination in relation to its actions within six months of its Stage 1 complaint.
2. ASB handling – It did not uphold the main substance of the complaint about the overall handling of the ASB. It noted that the Noise App had been disabled for a few days, which should not have happened.
3. Contacting Police – It did not uphold the complaint about the decision to contact the Police as its officers’ actions were consistent with its safeguarding policy.
4. Reporting ASB – On the specific issue of being declined a face-to-face appointment, this was in context of a lack of supporting evidence for the allegations over the use of chemicals, but on receiving further representations it accepted that the officers should have reconsidered meeting with the resident on the basis that they would only be able to review actions taken/proposed on the basis of new information.
5. Chemical use by neighbour – On the alleged use of chemicals by the neighbour, in the absence of evidence that the chemical had been applied by the neighbour, officers had proposed a reasonable course of action by proposing to send a block letter to all residents. It therefore did not uphold this part of the complaint.
6. Next steps – I recognise that your concerns regarding your neighbour are long standing and that you are convinced that she is making concerted efforts to harass and antagonise you. However, it can only proceed on the basis of evidenced information and, other than the one incident of excessive loud music where it had taken action, there has been insufficient evidence to substantiate the other allegations. It asked the resident to reconsider its offer of mediation.
7. The letter confirmed this was the last stage of its complaints process. It also included an Appendix document which gave more specific detail of what it had considered under each complaint header.

Assessment and findings

Policies, procedures, and agreements

ASB policy:

This sets out the following:
1. Residents must not use their property in a way that is likely to cause a nuisance or annoyance to their neighbours…or allow anyone else to make, excessive noise at the property. Should any complaints be made that the use of an [landlord] property is unreasonably interfering with the reasonable enjoyment of another’s property or affecting the wellbeing of other residents, [the landlord] may issue complainants with equipment to record intrusive and unreasonable noise with a view to taking appropriate steps to address this as a breach of tenancy.
Noise related ASB is categorised as:
1. Category C: …repeated & persistent unreasonable noise at a level which breaches noise nuisance legislation. Landlord to respond within 5 working days.
2. Neighbour dispute: noise that is not persistent, unintentional, happens during normal working hours, or does not breach noise nuisance legislation. Landlord to respond within 10 working days.
With regards to the process, it states that ‘We will agree a plan of action with you on how we will tackle the problems and keep you regularly updated (at least fortnightly)’.
It sets out the types of action that can be taken, for example, mediation, involving other agencies such as EH or Police, issuing formal warnings and taking legal action.
It states that ‘We will only close the case when the Anti-Social Behaviour has stopped or we cannot find sufficient evidence to take further action’.
With neighbour dispute type ASB, it states that ‘It will not be possible for us to take legal action where you report neighbour problems which are infrequent, not intentional and have not caused serious harm’.

Landlord’s handling of the ASB reports

The Ombudsman’s role includes an assessment of whether the landlord has followed its procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the ASB itself or to apportion blame on any party for any of the alleged ASB or to assess the credibility of the reports made by the resident. Our role is to consider the landlord’s response to the reports it received and to the formal complaint and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement and relevant legislation.
The correspondence from the landlord and the resident refers to longstanding ASB issues having been raised by the resident against her neighbour, and vice versa, going back several years. The Ombudsman has taken into account the historic and longstanding nature of the neighbour dispute, but it has limited its investigation to the events in 2019, as this is what has culminated in the formal complaint to the landlord and the subsequent referral to the Ombudsman.
The Ombudsman duly acknowledges what the resident has said about the impact of the alleged ASB and the distress she says it has caused her. She has said that the level of her distress had been exacerbated not only by the nature of the alleged ASB incidents themselves, but also by, what she feels is a lack of support from the landlord.
The resident has suggested that as a result of the landlord’s handling of the ASB and the distress experienced, her health was impacted. Whilst this may be the case, it is beyond the remit of the Ombudsman to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s health. The Ombudsman has therefore made no comments in relation to this, and should the resident wish to pursue this matter, she would need to obtain her own legal advice in this regard.
Both the landlord and the resident have provided documentation to enable this Service to investigate the complaint. These include copies of correspondence; the landlord’s ASB records; and copies of the landlord’s policies and procedures. It is noted that the resident has raised several issues about the landlord’s handling of the matter, and whilst the Ombudsman will not be addressing each and every specific issue, it has carefully considered all the available evidence and it will take a view on the landlord’s overall handling.
Looking now at the key issues, one of the main areas of complaint is with regards to the reports of noise nuisance made by the resident against the neighbour who lives in the flat above her. The noise issue has been handled by the landlord in two different ways: (a) dealing with the loud music, and (b) dealing with the noise transference between the properties.
In dealing with both types of noise nuisance, the landlord responded promptly by meeting with both parties and listening to the noise recordings collated by the resident using the Noise App. It attempted to mediate a resolution informally and it has said that it spoke to the neighbour who had agreed to lower the music level and move the music device to a different location to help minimise any disturbance.
It also agreed that it would carry out a sound transference test at both properties to establish the extent and nature of the noise nuisance. This was appropriate and in line with its ASB policy.
With regards to the loud music, the landlord was notified by the local authority’s EH team that the neighbour had been formally warned about this type of noise nuisance. The landlord acted appropriately by ensuring that it recorded this information and that it continued to liaise with the EH team when investigating further reports of noise related ASB.
With regards to the noise transference, the landlord has explained that it can only take action against the neighbour if the noise nuisance is deemed to be deliberate, excessive, and persistent. In order to establish this, the landlord has taken into account the Noise App recordings, which it concluded only demonstrated what would be regarded as normal daily household noises. The landlord said that the recordings did not evidence deliberate or persistent nuisance. The landlord rightly acknowledged that, whilst it could not take any action at this stage, it would continue to monitor the situation and reconsider its decision pending any further evidence from the resident or EH – which was appropriate.
While it is noted that the resident has disputed the methodology and outcome of the sound transference test, given the nature of the noise nuisance, the landlord acted appropriately by arranging the test. The resident may well disagree with the conclusions of the test, but it is not unreasonable for the landlord to have carried out the test, or to have relied upon the findings of the test and the professional opinion of its officers who carried out the test.
The types of noise nuisance reported by the resident were described as ‘…chairs being dragged, heavy stuff being dropped, door slamming, running heavily up and down the stairs talking loudly and power walking through her flat’. The report on the sound transference test was conclusive in that the officers concluded that the sound transference is what would be typically expected in this type of property, and therefore, the noise transferred could be deemed as “daily living noise” and not what could be deemed to be excessive or persistent noise nuisance.
Following the sound transference test, the landlord acted appropriately by undertaking a full case review and looking at all the available evidence. Its subsequent decision, and the rationale for not taking any further action against the neighbour at that time, was reasonable in light of the available evidence.
The Ombudsman understands that the resident is still reporting ongoing noise nuisance, and as such, the Ombudsman recommends that the landlord continue to liaise with EH and continue to proactively monitor the situation and duly consider any new evidence provided by the resident and/or EH.
The resident has also raised a few issues with regards to the landlord’s general handing of her ASB reports and its communication with her. For instance, she has said that she was, at times, not always able to get a face-to-face meeting with the ASB officers. The landlord has explained that this is not always immediately possible and it depends on the circumstances. In this case, there was an instance when a meeting was refused and the landlord has said that this was because there had been no new evidence provided by the resident that would have necessitated a face-to-face meeting at that particular time. Having said that, the landlord has appropriately acknowledged in its complaint responses that the officer could have agreed to a face-to-face meeting if only to reiterate what had already been agreed. Each case is looked at on its own circumstances, and the landlord has said that its officers should carefully consider such requests. This is a reasonable and pragmatic approach taken by the landlord.
Finally, the resident was also unhappy with the way the landlord staff dealt with her on the phone. On one occasion, a staff member had concerns about the resident’s well-being after comments were made by her about possible self-harm. The staff member was concerned for the resident’s welfare and she contacted the Police, who in turn visited the resident to check up on her. The resident has said that this was unnecessary and the Police visit caused her more stress and anxiety and the staff member should not have called the Police. If anything, as the resident has a support worker, the landlord should have contacted the support worker, and not the Police, if it had any concerns about her welfare. The resident is adamant that she was not at any risk of self-harm and had made the comments in a sarcastic manner.
The Ombudsman does not have the recording of this call and it cannot therefore independently verify exactly what was said, or in what context or tone the reference to self-harm was made. What the Ombudsman can do is look at how the landlord has responded to the resident’s complaint about this issue.
It is noted from the landlord’s records and correspondence that it investigated the resident’s concerns and took into account the explanations provided by the resident and the officers that were involved in the calls that day. Having done so it was of the view that the officer who took the call was of the opinion that the resident was clearly stressed and agitated during the call. The officer sought assurances from the resident about her wellbeing, and as this was not provided, the officer felt she had to take action.
Having considered this further, the Ombudsman considers that the landlord’s actions were not inappropriate given the circumstances. The resident has said that the act of calling the Police was ‘callous’. However, the Ombudsman considers that the landlord had reasonable concerns about the immediate welfare or safety of the resident, and as such, it was not unreasonable for it to take a precautionary approach and notify the Police of its concerns. It must also be noted that the landlord staff are not qualified medical experts and cannot determine such issues for themselves.
Having said that, if the resident does indeed have a support worker, the landlord ought to have contact details for the support worker, and it could have contacted the support worker instead. But this does not take away from the fact that notifying the Police of its safeguarding concerns was appropriate.
As a general reminder and recommendation to the landlord, it should ensure that it has up to date information about the resident’s vulnerabilities, and her support needs, and if it has any safeguarding concerns in the future it should liaise with the support worker in the first instance.
With regards to the issue around the use of chemicals, the resident has said that she fears for her safety and has alleged that the neighbour has used strong chemicals near her front door which have left an obnoxious smell. She has referred to the neighbour’s alleged actions as ‘psychological warfare’ against her.
From the evidence that is available, it can be seen that these allegations have been made previously by the resident. On this occasion the landlord has not taken any action against the neighbour as it does not have enough evidence to demonstrate that the neighbour was responsible for the use of any harmful chemicals in the communal hallway near the resident’s front door.
The resident is unhappy with the landlord’s inaction and has said that she does not feel supported by the landlord, and she has also alleged a conflict of interest as the neighbour is an employee of the landlord. The Ombudsman notes that following the report in August 2019 the fire brigade attended and carried out an examination of the building. The correspondence from the fire brigade to the resident confirms that they found no evidence of any harmful substances or chemicals. The resident has also commented that the Police have also not found any evidence of harmful chemicals.
The resident’s concerns are duly noted, however, the landlord is not being unreasonable when it says that it cannot pursue the neighbour unless it has sufficient evidence to do so. In its investigation of the matter, and in its discussions with the resident herself, it has not been disputed by the resident that there is no evidence of the neighbour’s involvement. As such, the landlord has acted appropriately in its handling of this matter.
The resident has said that there is a lingering smell and she wants the landlord to carry out forensic testing of the front door and the communal hallway to establish if any harmful chemicals had been used by the neighbour. The landlord has explained that it does not have the expertise to carry out forensic testing of this kind and having due regard to the tests carried out by the fire brigade, it does not feel that this course of action is proportionate or reasonable. The Ombudsman considers that the landlord has duly acknowledged the resident’s concerns and has investigated the matter appropriately. With regards to the smell, it has offered to write to the other residents and remind them not to use harsh or abrasive cleaning fluids in the communal area. This seems like a sensible and pragmatic approach given the lack of evidence to demonstrate that the neighbour was responsible for the chemical smell. It must also be taken into account that other residents have seemingly not complained about the use of chemicals or a chemical smell in the communal hallway.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s concerns about the noise related ASB and the use of chemicals by the neighbour.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the seriousness of the resident’s allegations and it has demonstrated that it responded appropriately to the various reports and it acted in a reasonable manner and in line with its ASB policy and procedure. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of the ASB reports, was proportionate and appropriate.

Recommendations

As mentioned above in the body of the report, the Ombudsman recommends that the landlord consider the following:
1. The Ombudsman understands that the resident is still reporting ongoing noise nuisance, and as such, the Ombudsman recommends that the landlord reviews the available evidence and liaises with EH over any action it can take in the circumstances.
2. As a general reminder and recommendation to the landlord, it should ensure that it has up to date information about the resident’s vulnerabilities, and her support needs, and if it has any safeguarding concerns in the future it should liaise with the support worker where possible.