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One Vision Housing Limited (202105472)

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REPORT

COMPLAINT 202105472

One Vision Housing Limited

22 September 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

  1. The complaint is about:
    1. the landlord’s handling of the resident’s reports of noise nuisance from his neighbour.
    2. The effect on the resident’s health and wellbeing.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

The effect on the resident’s health and wellbeing.

  1. In accordance with paragraph 39(i) of the Scheme the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. 
  2. The resident has complained about the effect the noise he reported had on his health and wellbeing. Unfortunately, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Therefore, in accordance with paragraph 39(i) this Service cannot investigate the resident’s complaint about the effect the noise had on his health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

Background and summary of events

  1. The resident is the landlord’s tenant and lives in a flat. His neighbour lives in a flat above.
  2. The resident and landlord have confirmed to this Service that the resident made some historical reports of noise from his neighbour above. However, due to the availability of evidence and the time that has elapsed, this investigation will focus on the resident’s more recent reports.
  3. Between May and August 2020 the resident reported on several occasions that his neighbour was making a lot of noise in the night, such as walking around and slamming doors. The landlord twice spoke with the neighbour about the reports. It advised him that he was “being heavy footed”. It asked the resident to use a mobile phone noise app to record the noise.
  4. On 29 October 2020 the landlord noted in its records that it spoke with the resident, who “reported the odd issue with the tenant above banging when walking”. It advised him that this was normal in a flat, but would be monitored going forward. The notes say that the resident was happy with this and also that the landlord had spoken with the neighbour.
  5. The resident called the landlord’s out-of-hours team (OOH) on 21 November 2020 about more noise from the neighbour’s property, including from him walking around. On 23 November 2020 the resident told the landlord that the constant noise of walking and banging through the ceiling was getting worse. The landlord called the resident on 25 November 2020 to confirm it spoke with the neighbour again, and would “look into the possibility of a move in the block”.
  6. Following contact from the resident on 10 December 2020, the landlord called him on 14 December 2020. The landlord noted that the resident “advised he could hear his neighbour walking around the flat” and that it told him it was normal to hear such living noises in a flat, but directed him to use its noise app to record evidence.
  7. On 2 January 2020 the resident called the landlord’s OOH team regarding the neighbour slamming doors in his flat. The OOH team internally noted that it spoke with the neighbour, who said he had been closing his microwave door.
  8. The resident contacted the landlord again about noise from the neighbour on multiple occasions between 17 March 2021 and 6 April 2021. He reported hearing his neighbour “pacing”, “stomping” and a “thudding sound” at night. The resident explained that the noise was affecting his sleep and mental health. The landlord spoke with the resident on more than one occasion, and also the resident’s friend, and advised that the resident would need to use the noise app to capture evidence.  The landlord also contacted the neighbour, who denied the allegations.
  9. On 9 April 2021 the landlord logged a formal complaint on the resident’s behalf about its handling of his reports of noise nuisance. The landlord noted that he said he was disturbed by the neighbour every night, and the noise affected his mental health. The resident said he could not download the noise app. On the same day the landlord wrote to the resident to advise that it would respond to the complaint within ten working days.
  10. The landlord called the resident on 13 April 2021 to discuss the complaint and advised that it would write to him with the outcome.
  11. The resident contacted the landlord’s OOH team on 16 April 2021 to report the neighbour “stomping around all night”. He said he knocked on the neighbour’s door and asked them to keep the noise down. In a further call during office hours, landlord noted that the resident said he would play loud music to disturb the neighbour and confront him if he saw him. The landlord advised him not to do so.
  12. The landlord spoke with the resident on 19 April 2021 and warned him against going upstairs to his neighbour’s property.
  13. On 22 and 23 April 2021 the resident called the landlord’s OOH team on several occasions to report his neighbour “banging about their flat”. The resident said that he would bang on the ceiling and play his music to disturb the neighbour if he did not stop.
  14. On 23 April 2021 the landlord sent the resident its stage one complaint response. It explained that it found no service failure in its handling of the ASB reports. It confirmed that it had previously requested evidence from the resident to support his reports, but none had been provided. It confirmed that it spoke with the neighbour, who had denied the allegations. The landlord said no further action could be taken at this time, however if the resident could provide evidence of the noise through its noise app it would consider it.
  15. On 25 April 2021 the resident made several calls to the landlord’s OOH team to make the same reports about the neighbour (walking and stomping). The OOH team noted that the resident was very upset and was shouting, swearing, and banging on his ceiling with a piece of wood to warn the neighbour to be quiet.
  16. The landlord spoke with the resident on 28 April 2021. According to its notes, the resident was not happy with the complaint response, and asked to escalate it. On 29 April 2021 the landlord acknowledged the stage two complaint. It said it would respond within ten working days. It attempted to call the resident on 30 April 2021 to discuss the complaint, but was unsuccessful.
  17. The landlord discussed the complaint with the resident on 4 May 2021.
  18. The landlord contacted the neighbour on 5 May 2021. It noted that the neighbour denied making noise. It also noted that it had advised the resident on several occasions that it needed evidence, which the resident could provide via the noise app or incident diaries, but the resident had not provided any.
  19. On 11 May 2021 the landlord wrote to the resident with its final complaint response. It confirmed that there had been some historic reports of noise from the resident’s neighbour upstairs, but it observed an increase in the resident’s reports of noise from his neighbour from May 2020 onwards. It explained that it spoke with the resident and his neighbour about the reports, and asked the resident to record the noise via its noise app or diary records. The landlord acknowledged that it could have contacted the resident more regularly about the progress of the ASB case and kept better notes. However, it said that it had also not received any recordings or incident diaries from the resident. The landlord explained that this information was vital for it to define the level of noise, and was required if the landlord decided to take any ASB cases to court.
  20. Additionally, the landlord noted that the increase in the resident’s reports of ASB in May 2020 coincided with the first lockdown relating to the coronavirus. It said that the resident and his neighbour spending a lot more time in their flats may have contributed to the issue. The landlord explained that the neighbour had consistently denied making noise through the night.
  21. The landlord acknowledged that the resident had handed in his notice to vacate his home and would move to a different property in the next few weeks. It said that if he changed his mind, it would suggest using noise monitoring equipment to capture evidence of the noise. It said it had not been able to do this over the last year due to the coronavirus restrictions, but would start doing this again regularly from the end of June 2021.
  22. The landlord apologised for the resident feeling the need to raise a complaint, and acknowledged that it could have kept better notes on his ASB case and given more regular updates. However, it said this had not made a difference to the overall handling of the case or the outcome. It said that in its call with the resident he asked for compensation, but the landlord could not justify this. The landlord said it believed the reported noise was low level, but if the resident could provide evidence to show otherwise, it would investigate further. The landlord confirmed it would ensure that staff dealing with ASB cases made regular contact with residents, and to keep appropriate records and notes. It advised that the resident had exhausted its complaints procedure, and the next steps he could take if he remained unhappy.
  23. Since the conclusion of the landlord’s complaints procedure, the resident has moved out of the property.

Assessment and findings

Policies and procedures

  1. The landlord’s ASB Policy gives guidance on how it “will investigate reports of behaviours that fall within its definition of ASB”, including noise. Where residents report being affected by excessive noise, the landlord will request that they send in evidence. It has funded a noise app to assist residents to be able to do this via a smartphone. The ASB policy says that the landlord will review the recordings and determine if there is a need to take action. If it is deemed that the recorded noise does not warrant action, and the resident disagrees with the landlord’s decision, the resident will be advised to log a complaint with the local authority which may carry out its own investigations.
  2. The ASB policy says that the landlord will assess reports of ASB at the point of contact. Those reports assessed as being ‘high level’ and at greatest risk are passed to the landlord’s Community Safety Team. All other cases are passed to the relevant neighbourhood services officers, who will support residents to find an effective resolution. The landlord will aim to respond directly to residents making reports within one working day and will offer a face-to-face appointment within five working days, if convenient. At the initial meeting the landlord will offer to complete a risk assessment and agree a plan of action with the resident. This will set out what steps each party will take to address the issues raised.
  3. After carrying out an initial risk assessments to understand any risks from identified ASB, the landlord will provide advice on how to gather essential evidence needed to justify any enforcement actions. This may include the use of ASB incident diaries.

Assessment

  1. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both a landlord and local authority environmental health service may be able to warn and take formal action against the perpetrator. 
  2. In order to establish the best way to approach a resident’s reports of noise, and understand whether further action is required, a landlord requires evidence. In this case the landlord took reasonable steps to investigate the resident’s reports, in line with its ASB policy, by interviewing on multiple occasions the resident and the neighbour, and explaining to the resident the need for evidence and how to obtain it. The resident was not able to provide evidence to support his reports, and the neighbour denied making excessive noise.  The resident’s reports to the landlord make it clear that he was experiencing a level of noise which he considered unreasonable. However, the descriptions he gave of the noise matched general living noise (which, as advised by the landlord, is common in flats). General living noise, such as walking, opening and closing doors or talking, even when it can be heard through walls or ceilings, would only potentially be considered to be ASB in the most extreme cases, and where there was robust evidence in support. In this case, no such evidence was captured or provided to the landlord. The landlord’s ultimate decision to take no further action was therefore reasonable.
  3. The evidence shows that the landlord frequently responded to the resident’s calls to its OOH team, and attempted to manage his expectations, in line with its ASB procedure and good practice, by both informing him of the difference between living noise and ASB, but also of the type of evidence it needed before it could take any formal action.
  4. The landlord’s ASB policy makes clear that it has a range of options when presented with ASB reports. These include assessing the risk to the ASB victim, or signposting them to the local authority’s environmental health team (who can also investigate noise nuisance). However, the policy also makes clear that these options become relevant when it receives reports that meet its definition of ASB. The noise reported by the resident, while clearly causing him personal distress, was not defined to be ASB, based on the information provided. The landlord required evidence to support the reports, and that is what it explained to the resident.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of noise nuisance from his neighbour.

Reasons

  1. Considering that the resident’s descriptions of the noise he experienced aligned with normal living noise in flats, and that there was no clear evidence of noise nuisance, the landlord’s approach to the reports and requests for evidence was reasonable in the circumstances of the case.