Optivo (202009859)

REPORT

COMPLAINT 202009859

Optivo

22 April 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 the landlord’s response to the resident’s reports of antisocial behaviour (‘ASB’) from his neighbour (‘Mr. A’).

Background and summary of events

2. The resident has reported experiencing ASB over a number of years. However, the Ombudsman would expect a formal complaint to be raised within a reasonable time after the events occurring; this would normally be within six months of the events. Therefore, while some historical details may be included for context, this investigation will focus on events from February 2020 onwards.
3. The resident is a tenant of the landlord and occupies a ground-floor flat with a shared hallway and garden.
4. The resident had a previous ASB complaint against his upstairs neighbour (Mr. A) that was closed on 7 May 2019 by the landlord as the incidents reported of noise and being locked out of the building did not meet its threshold to be considered ASB. It advised that it had spoken to Mr. A to ask him to be more considerate and it had arranged for the lock on the communal door to be changed to prevent the resident being locked out again. The landlord had previously proposed mediation to him on 8 January 2019, but the resident had declined this as it had not been previously effective.
5. On 20 February 2020, the resident called the landlord asking to speak to an officer about an instance of noise which he had sent it a recording of. It called him back on 25 February 2020 to advise that it had not received the recording, which he reported was of Mr. A singing loudly and stamping on the floor. The resident agreed to wait a few days for the recording to arrive. 
6. The resident emailed the landlord on 8 May 2020 to report that Mr. A had been “continually stamping all over his flat” and could be heard laughing and coughing. He said he had sent a “Sound App” recording of Mr. A stamping and was concerned about the level of noise he experienced after 12.30 am, which he described as banging and stamping.
7. The landlord responded on 13 May 2020 to advise that it had not received the resident’s recording and directed him to its customer service department to ensure he was registered for the noise app. It confirmed to him that it did not regard coughing and laughter to be examples of ASB.
8. The resident raised a stage one complaint with the landlord on 11 August 2020 about its handling of his reports of ASB against Mr. A. He imparted that he had experienced ASB from Mr. A since 1992 and despite sending “countless” emails to its staff about this, the issue was not resolved. The resident described Mr. A “banging, stamping and shouting his flat aimed at [him]” and being noisy and abusive whilst intoxicated.
9. The resident relayed an incident on 31 July 2020 when Mr. A shouted abuse at him from the kitchen window, which he reported to the police and was witnessed by his friend and a neighbour. He provided the details of the police officer and a reference number for the report. The resident relayed that he had sent recordings of the ASB from Mr. A to the landlord.
10. The landlord’s internal email on 18 August 2020 recorded that it had sent ASB incident diary sheets to the resident to complete; these were due to be returned on 7 September 2020.
11. The landlord spoke to the resident on 19 August 2020 when it outlined the options it could pursue to tackle the reported ASB. It said that it could attempt to gather enough evidence against Mr. A to take legal action, but cautioned that this was unlikely to lead to an eviction as Mr. A was 92 years old. The landlord offered a second option of a managed move for the resident, which he requested time to consider. It advised him that the complaint resolution may be delayed.
12. The landlord spoke to the resident on 26 August 2020 when he requested more time to consider which option he wanted to pursue. It advised him that this would affect the response time for the complaint.
13. The landlord spoke to the resident once again on 2 September 2020 where he requested more time to consider his options. It advised him that it “needed to close [its] case” and it was agreed that it would write to him.
14. The landlord issued its stage one complaint response to the resident on 3 September 2020. In this, it acknowledged that he had made historical complaints of ASB against Mr. A and relayed that it had taken measures to tackle this including carrying out soundproofing to his property, changing locks to the communal front door so that he would not get locked out by Mr. A, and visiting Mr. A several times to address the issues.
15. The landlord advised that, based on the available evidence, it could not substantiate the allegations of noise and that it may not be able to carry out enforcement activity in response to noise from everyday living. It noted that the resident had since declined the option it had offered him of a managed move. Therefore, the landlord proposed to install noise monitoring equipment in the resident’s property to gather evidence of the reported noise nuisance.
16. The landlord assured the resident that it had followed its ASB policy and procedure and had carried out all actions that were within its remit. It further assured him that once it had suitable evidence to take action against Mr. A, it would do so.
17. On 7 September 2020, the resident emailed the landlord to escalate his complaint to the final stage. He highlighted the incident on 31 July 2020 which he advised had been witnessed by two other people, who would provide corroborating statements if needed. The resident informed the landlord that this incident had been investigated by the police and provided the investigating officer’s contact details.
18. The resident relayed that the noise generated by Mr. A had reduced since then up until 6 September 2020 when “loud noises” could be heard again. He contended that his sound proofing had not been properly installed to adequately mitigate the noise. The resident said that Mr. A had “no intention” of ceasing his abusive behaviour and requested that the landlord commence tenancy enforcement action against Mr. A for breaching his tenancy agreement.
19. The resident reported on 10 September 2020 to the landlord that Mr. A was causing a “loud thumping noise” at 12.45 am and clearing his throat loudly. He repeated that Mr. A had “no intention to behave”. The following day he reported Mr. A slamming a door loudly and leaving the front door to the building open.
20. The landlord wrote to the resident on 1 October 2020, after speaking to him earlier that day, to advise that it would not be escalating his complaint to the final stage. It justified this on the grounds that there were still actions it could take to resolve the complaint. The landlord agreed to speak to Mr. A about his behaviour and advised the resident that it would update him on progress by 6 October 2020.
21. On 2 October 2020, the landlord advised the resident that, should he remain dissatisfied with its response, he may bring his complaint to a designated person or the Housing Ombudsman.
22. On 4, 7 and 19 October 2020 the resident reported that Mr. A continued to generate noise by singing loudly, slamming his door, making banging noises, obstructing his bin, and “throwing bits of cloth in [his] patio”. On 5 November 2020, the landlord requested the resident return ASB incident diary sheets previously provided to him and asked for any photographs of the items had Mr. A left on his patio.
23. The resident reported further noise from Mr. A on 30 November 2020 and 11 and 25 January 2021, some of which occurred after 11.30 pm.  He acknowledged that the landlord had issued a warning to Mr. A but contended that this had been ineffective. The landlord’s records indicated that it spoke to the resident on 4 February 2021 and agreed to call Mr. A. It also recorded that there had been no verbal abuse since 31 August 2020 and he was taking legal action in respect of this.
24. The resident emailed this Service on 15 February 2021 to relay that the landlord had agreed in November 2020 that it intended to contact the police about the incident the resident reported occurring on 31 July 2020. However, he had since spoken to the police officer involved who had relayed that they had not spoken to the landlord.
25. On 8 April 2021, the landlord confirmed to the resident that it had listened to three noise app recordings submitted over the previous three months which indicated noise occurring in the early hours of the morning. It confirmed it was in the process of contacting Mr. A about this.

Assessment and findings

Policies

26. The landlord’s ASB policy confirms that it does not consider “noise transference due to poor sound insulation” or “everyday behaviour occurring at unusual times” to be ASB. It confirms that “playing loud music”, “verbal or physical abuse”, “arguing and slamming doors” and “offensive behaviour” to be ASB. This policy further states that the landlord will take proportionate actions based on “the seriousness, impact and frequency of the behaviour” but “will not take action where there’s insufficient evidence”. If there is an ongoing police investigation, the policy states that it may wait to see the outcome of this before taking further action.
27. The landlord’s complaints resolution policy confirms that a resident may raise a complaint about its service within six months of the matter arising but older complaints may be considered at its discretion. This policy provides for a two-stage complaints procedure, with stage one complaints to be responded to within ten working days and the final panel review stage, where the landlord is to advise the resident within ten working days if it is not escalating the complaint for a panel review.

The landlord’s response to the resident’s reports of ASB

28. With the exception of the incident of verbal abuse that the resident reported to have occurred on 31 July 2020, his other reports of ASB were all issues relating to noise. As specified in the landlord’s ASB policy, noise from everyday living does not constitute ASB; therefore, it would have been reasonable for the landlord to not investigate any further. However, the fact that it offered to carry out an ASB investigation with a view to carrying out enforcement actions against Mr. A, as well as offering the resident a managed move to another property, was a reasonable and positive response from it. This demonstrated a proportionate response to the incidents of noise and verbal abuse reported.
29. As the resident declined the managed move offered by the landlord, it was reasonable for it to therefore decline to escalate his complaint as the remaining resolution offered was to investigate the ASB. As specified by its ASB policy above at point 26, sufficient evidence is required for it to take action in respect of reports of ASB. It is noted that there is evidence of the landlord engaging with the resident in providing ASB incident diary sheets, examining noise recordings, and contacting Mr. A about the issues. This was a reasonable and proportionate response from the landlord to the nature of the reports made by the resident.
30. The landlord’s final complaint response acknowledged that one of the requests made by the resident in his escalation request was that the landlord speak to the neighbour regarding their behaviour, particularly in relation to the incident on 31 July 2020. It is noted that the landlord did talk to the neighbour on a number of occasions with the goal of resolving the issues. However the complaint response does not acknowledge that in the escalation request, the resident specifically referenced the police interaction with the neighbour on that date and provided the name of the attending police officer, their contact details and the police incident reference number.
31. The final response in fact makes no reference to the police attendance on the date of the incident, the resident’s request or the possibility of liaising with the police to discuss the case to gather further evidence. Given the landlord’s policy notes that it may liaise with police as part of an agreed action plan with the resident, it would have been appropriate for it to acknowledge this request and consider it given it was specifically set out in the resident’s correspondence. The resident noted that the landlord later agreed to do this, but asserted that the police had reported to him having received no contact from it as at 15 February 2021. It is important to note that this does not amount to service failure given the various other steps taken by the landlord to investigate the report, and the fact that the details of this one incident as reported by the resident would not have substantially affected the obligations of the landlord in terms of taking a proportional approach in all the circumstances. The landlord is however reminded to address each point raised in a complaint and escalation response and to follow-up with its commitments to the resident as a matter of good practice.
32. The resident has requested that the landlord take tenancy action against Mr. A. For formal tenancy enforcement activity to be taken against a resident, it would be expected that the landlord exhaust all other options of addressing the reports made against him. Therefore, the landlord has acted reasonably in engaging with the resident to gather evidence to support any enforcement action and there is no evidence of any failings by the landlord in its response to the resident’s reports of ASB. It additionally explained to the resident the low chance of enforcement action resulting in the neighbour being evicted, which was appropriate so as to keep the resident informed and manage his expectations. This also justified its decision not to pursue enforcement action at that time and the approach of attempting to gather further evidence prior to taking this step.
33. The landlord offered to install noise monitoring equipment at the resident’s property, but it is unclear if this was carried out or not. This would be an effective method of obtaining evidence to support the resident’s reports of noise and a recommendation will be made about this below.

Determination (decision)

34. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of ASB from Mr. A.

Reasons

35. The landlord responded proportionately and reasonably to the resident’s reports of ASB and engaged with him to investigate his concerns. It took steps to investigate the reports, attempted to gather evidence in support of these and gave due consideration to the likelihood of particular approaches succeeding. While there is no evidence that it contacted the police about the specific incident on 31 July 2020 referenced by the resident, it largely acted appropriately in seeking to gather information via a variety of means. It kept the resident updated on its investigations throughout the process.

Recommendation

36. If it has not done so already, the landlord within the next six weeks to install noise monitoring equipment at the resident’s property to continue to gather evidence of his reports of ASB, if these reports continue.