Peabody Trust 2018 (202005275)

REPORT

COMPLAINT 202005275

Peabody Trust 2018

7 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. This complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

Background and summary of events

Background

2. The resident is an assured tenant. The tenancy began on 11 December 2000 and the property is a one-bedroom ground floor flat.
3. The landlord has recorded that the resident has physical health problems that make household activities difficult.
4. The landlord has an anti-social behaviour (ASB) policy that commits it to a ‘victim-centred and robust approach to tackling ASB’. It lists types of behaviour it considers to be ASB, including ‘repeated prolonged high-level noise nuisance’. It states that:
   1. ‘residents or customers who wish to report an incident of ASB will be assessed for their risk and vulnerability to ensure the appropriate level of support can be provided’
   2. it will respond to low risk ASB within five working days
   3. it will ‘investigate noise nuisance where the noise is frequently excessive in volume and duration or occurs at unreasonable hours’
   4. it will ‘agree an action plan with the complainant and any witnesses and keep them informed of the actions we take’
   5. it will close a case if it can take no further action or there has been no further ASB report for six weeks and will contact the resident when it closes the case, ‘giving our reasons for doing so’.
5. The landlord has an ASB factsheet that sets out the action it may take against a person which it states can include using mediation, giving formal warnings, using good neighbour agreements, getting an injunction and seeking possession of the property if the ASB is serious.
6. The landlord has a complaints policy that provides for a two stage complaints process. It adds that ‘all complaints should be submitted to Peabody within six months of when the event occurred’. Its complaints procedure sets out timescales of 10 working days for a stage one response and 15 working days for a stage two response.
7. The resident has advised this Service that he began to report noise nuisance from the property above during April 2018. The neighbour who lives in that property is also a tenant of the landlord. This Service has not been provided with a copy of the neighbour’s tenancy agreement but it would be reasonable to conclude that the same, or similar, tenancy conditions apply.
8. The Ombudsman is only able to consider matters which have exhausted the landlord’s complaints procedure (in accordance with paragraph 39(a) of the Scheme). This is so that we can be sure the landlord has had a reasonable opportunity to resolve the issues internally before we intervene. The landlord has considered its handling of reports of ASB from early 2019 to October 2020 through its complaints process and so this report is focused on those events.

Summary of Events

9. It is not disputed that the landlord installed sound recording equipment at the resident’s property in late February 2019. The landlord has advised this Service that the equipment was in place during 21-28 February 2019 and that the decibel level recorded was of general household noise level. It has not provided evidence to this Service of how it came to install the equipment and how it assessed the content of the recordings but it has demonstrated actions as follows over the next four months:
   1. it wrote to the neighbour on 19 March 2019 to advise him of ways in which he could minimise noise transfer and remind him of prohibited times for residential noise
   2. it wrote to the neighbour on 29 March 2019 to request he attend its office to discuss noise nuisance concerns
   3. it wrote to the neighbour on 24 June 2019 – it stated that it had received allegations of banging from his property and warned that formal tenancy enforcement actions could follow
   4. it wrote to the resident (the letter is undated but the landlord has advised it was sent on 29 July 2019) to advise that it had written to the neighbour and not received further noise reports since then so the ASB case would be closed
10. The resident reported ongoing ASB on 22 August 2019 and added that this was causing him distress and loss of sleep. The resident chased this on 9 September 2019. The landlord has demonstrated it took actions as follows over the next four months:
    1. it contacted the resident on 12 September 2019 – it recorded that the resident’s concerns were about footstep and ‘living noise’ and that it told the resident it would arrange a professional witness and be in contact again
    2. the professional witness submitted a report to the landlord on 12 November 2019 – it noted that it monitored sound levels on 8-9 November 2019 and 9-10 November 2019 but no evidence of ‘noise intrusion’ was witnessed
    3. its internal records from 13 December 2019 indicate that two members of staff had visited the resident and his neighbour (on 28 November 2019) to check the sounds from above and were unable to determine any noise
    4. it reviewed the case on 24 December 2019 and noted that the neighbour ‘has laid carpet and has swapped his bedroom with his front room to avoid disturbing the tenant below’
11. The resident made a further report on 20 January 2020 that the neighbour above was stomping and tormenting him. He contacted the landlord again on 29 January 2020 to request that his neighbour be evicted.
12. The landlord’s internal records indicate that the neighbour was evicted on 24 February 2020. There is no evidence that this was due to noise nuisance and the landlord has since advised this Service that the eviction related to a separate matter and was quickly reversed. The landlord did note though that the resident had reported noise nuisance on 25 February 2020 and that it had to advise the resident that this could not have been his neighbour because he was not at the property at the time. The landlord signposted the resident to the local authority Environmental Health department.
13. The landlord made a referral to Social Services on 28 February 2020 – it reported that the resident had advised of some difficulty with household tasks due to physical health problems and requested an assessment of his needs.
14. The resident contacted the landlord on 4 March 2020 and requested an apology for their failures in managing his noise reports. The landlord asked about the resident’s circumstances and was given permission to approach his GP.
15. The landlord wrote to the resident on 5 March 2020 – it stated that it would continue to monitor reports but that the ASB case would now be closed as it could take no further action given the investigations taken and that the resident had made a noise report regarding the evening of 24-25 February 2020 when it was aware the neighbour’s property had been empty.
16. The landlord chased its earlier Social Services referral on 5 June 2020 and was advised by the local authority that they had unsuccessfully attempted to contact the resident on three occasions in March 2020. The landlord also made a GP referral on 8 June 2020 and signposted the resident to the local authority on 17 June 2020.
17. The resident’s MP made an enquiry on 3 August 2020. The MP stated the resident had reported ASB since 2018 that was still ongoing and raised a concern that the landlord had taken no actions despite collecting evidence of a week long period of disturbance in 2019. The MP asked for the landlord to take appropriate action and contact the resident to form an action plan.
18. The landlord responded to the resident’s MP on 19 August 2020. It advised that it had reviewed its records and confirmed that it installed the sound recording device during February 2019 which concluded some noise transference of household noise and led to a warning letter being sent to the neighbour. It added that it had made two professional witness attempts in November 2019 but these had not confirmed noise. Nevertheless, it stated that carpet had been installed and the neighbour was now using his living room as his bedroom. It confirmed that it could not take any further action.
19. This Service wrote to the landlord on 9 September 2020 and asked for it to progress the complaint as the resident had approached the Ombudsman to confirm he remained dissatisfied.
20. The landlord issued its final complaint response on 2 October 2020. It made the following findings:
    1. it reiterated that the sound recording in February 2019 had only established household noise that was not excessive but a warning letter was sent nevertheless
    2. its records showed that the Police had not charged the neighbour
    3. professional witness visits on 8 and 9 November 2019 had not yielded any findings of deliberate or targeted noise
    4. it had liaised with the neighbour and re-arranged the room layout as well as fitting carpets to alleviate noise transference
    5. it could not progress towards legal action due to lack of evidence but was willing to accept any new evidence the resident held
21. Internal landlord records on 20 October 2020 demonstrate that members of its staff had been in contact with the resident. It noted that its Tenant & Family Support Team had attempted to help the resident but this had been rejected and that it had liaised again with Social Services.
22. The resident has advised this Service that the landlord conducted a further sound recording exercise in the past few months, that another address in the block has also reported noise nuisance from the neighbour and that there is now a regular noise of machinery from the bathroom of the property above.

Assessment and findings

23. 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.
24. 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.
25. The resident has made reports of loud footsteps and banging from the neighbouring upstairs property. It is not disputed that the landlord made recordings of the noise alleged by the resident in February 2019. This led it to write to the resident’s neighbour on three occasions over the subsequent four months to request that the noise be reduced and warn him under the terms of his tenancy. It wrote to the resident in July 2019 to confirm the ASB case would be closed. The landlord’s ASB procedures require it to investigate noise reports, take action (including by warning the alleged perpetrator) and write to the complainant to close a case if no further incidents are reported after six weeks. The landlord’s actions following the February 2019 recording were therefore all appropriate and in line with its obligations.
26. It is not disputed that the resident made further noise reports in August 2019. Over the subsequent four months, the landlord interviewed the resident, made attempts to collect supporting evidence through professional witnessing, carried out visits to both properties, liaised with the neighbour and took steps to mitigate noise transfer within the neighbouring property. These actions demonstrated that the landlord made efforts to investigate the resident’s reports. These were reasonable responses to the resident’s noise nuisance reports and also reflect the Ombudsman’s experience of similar cases across the social housing sector as appropriate actions to take when investigating noise nuisance.
27. A landlord is required to obtain evidence of alleged instances of ASB (including noise disturbance) and to take appropriate action on any evidence it receives. Having taken the above actions and identified no evidence of the ‘excessive’ noise disturbance reported by the resident, it was appropriate that the landlord concluded that there was no further action for it to take. It wrote to the resident on 5 March 2020 to confirm this decision in line with its ASB policy – this was appropriate.
28. The evidence seen by this Service indicates that this situation has been distressing for the resident – he has reported being kept awake by his neighbour and that the noise has impacted his enjoyment of his home. It is acknowledged that this matter will have been a source of distress for the resident. However, the evidence demonstrates that the landlord has sought to provide support by relevant members of its staff engaging with the resident and referrals being made to support agencies such as social services and the resident’s GP in February and June 2020 – these were reasonable actions on the part of the landlord to ensure the resident was offered support and demonstrate that it took the resident’s circumstances into account and was ‘victim-centred’ as its ASB policy requires.
29. The resident has asked the landlord to pursue enforcement action and evict his 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. Building a robust case requires a range of evidence to be obtained such as the landlord attempted in this case.
30. The landlord has demonstrated that it attempted to gather evidence of the nuisance that the resident reported. It did so through a combination of methods such as visits, installing sound recording devices, appointing a professional witness and asking the resident to record and report incidents. These steps initially established evidence of noise nuisance sufficient for the landlord to warn the resident’s neighbour. Subsequent attempts to evidence the further noise nuisance reports were unsuccessful. Despite the evident impact the alleged ASB had on the resident, it was therefore reasonable that the landlord did not pursue legal action in this case.
31. In summary, the landlord responded appropriately to the resident’s reports of noise nuisance. It considered the resident’s reports, made reasonable attempts to evidence the noise nuisance, addressed the matter with the neighbour when evidence was obtained, took steps to mitigate the noise transfer and made referrals for support to be offered to the resident. The landlord has therefore demonstrated that it acted in accordance with its obligations.

Determination

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s ASB reports.

Reasons

33. The actions taken by the landlord in response to the resident’s noise nuisance reports were appropriate and in accordance with its obligations. It has evidenced that it took proportionate steps to investigate and address the resident’s noise concerns while offering support to him.

Recommendations

34. If it has not already done so, the landlord to write to the resident within the next four weeks to update him on:
    1. the outcome of its recent sound recording attempt
    2. its current action plan to deal with the resident’s recent noise nuisance reports, including his report of machine noise from his neighbour’s bathroom