Peabody Trust (202202042)

REPORT

COMPLAINT 202202042

Peabody Trust

31 July 2023

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

The complaint is about the landlord’s response to the resident’s reports concerning antisocial behaviour (ASB) and racial harassment.

Background and summary of events

Background

The resident lives in a two bedroom ground floor flat. The resident is the leaseholder of the property and the landlord is the freeholder. The lease began on 1 October 1989.
The landlord has no recorded disabilities for the resident, but the resident has stated her daughter was nine months pregnant and suffering with anxiety at the time of the complaint.
The landlord has a two stage complaints process. Section 4.5 of the landlords complaints policy states it aims to resolve all complaints within 10 working days.
Section 3.18 of the residents lease states the leaseholder will provide carpets or such other suitable floor coverings to the floor of the premises.
Section 3.24 of the lease states the leaseholder is not to use the premises nor permit it to be used for any purpose other than as a private residence nor to permit a nuisance to arise to the owners or occupiers of the remainder of the property of which the premises forms part of.
Schedule 2 section 10 of the lease states not to do or permit on the premises or on the estate anything from which a nuisance or annoyance could or might arise to the lessees, the tenants of the landlord and occupiers of any other flats on the estate.
Schedule two section 19 of the lease states not to install any machinery on the premises which shall be noisy or cause dangerous vibration or be a nuisance to the landlord or the owners or lessees or occupiers of the nearby premises.
Section 2.12 of the landlords ASB policy states it uses the following Anti-social Behaviour, Crime and Policing Act 2014 definition for ASB.
1. Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person, conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises and conduct capable of causing housing-related nuisance or annoyance to any person.
Section 2.4.1 of the landlords ASB policy states:
1. It encourages all residents across all tenures to respect each other’s lifestyles and be mindful how their lifestyle may affect others.
2. Sometimes these lifestyles can clash but are not considered a breach of tenancy or lease, or as behaviour not compatible with living in a tenant like manner or those which might affect the quiet enjoyment by others of their homes.
3. Examples include minor disagreements between neighbours, noise from everyday living, such as babies crying, children playing, one-off parties, white goods or noise caused by pets (barking etc.), lifestyle differences, such as cooking odours, minor or irregular car repairs, putting rubbish out on the wrong day or reasonable noise occurring at unusual times because of different working patterns.
Section 2.4.2 of the landlords ASB policy states although the landlord will not generally consider these examples to be ASB it knows that sometimes low level and repeated incidents may be having a serious impact on a person’s life. Accordingly it may consider it appropriate to take a tenancy management approach to reminding residents of their responsibilities and / or take other preventative action. If the behaviour continues and it can evidence that it is ASB it may investigate in line with its policy.

Scope of the investigation

During the period covered by this investigation the resident and her daughter have both raised concerns to the landlord regarding ASB and noise from their neighbour. For clarity, in this report, they will be referred to as the resident.
The resident states she has been making complaints to the landlord about ASB from her neighbour for two years. This investigation will consider reports of ASB from November 2021 as this is considered to be a reasonable period prior to the formal complaint being made to the landlord. The Ombudsman expects formal complaints to be made within a reasonable period of the matter occurring which is usually six months. Any reference to earlier events in the report is for context only.

Summary of Events

For context in this report the resident has complained about her neighbour. The neighbouring property was sublet to the neighbour by its owner who is a leaseholder.
On 3 November 2021 the resident contacted the landlord and reported being harassed by their neighbour. The landlord offered to meet with the resident to discuss the reports. An appointment was made with the resident for 19 November 2021.
Following the meeting, the landlord wrote to the resident on 22 November 2021 and confirmed that the following actions had been agreed:
1. The resident to provide seven days of diary sheets for the period 19 November 2021 to 25 November 2021.
2. The landlord to contact the resident once a week via email to confirm if there were any new incidents and to confirm any actions it had completed.
3. The landlord to contact the leaseholder of the neighbour accused of the anti-social behaviour and advise of the nuisance concerns.
4. The landlord to confirm the type of flooring used in the neighbour’s property.
5. A meeting to be arranged between the resident, the landlord and the leaseholder of the neighbouring property if all parties were in agreement.
6. The landlord to contact neighbouring properties to confirm if there was any witnessed incidents of nuisance behaviour.
On 29 November 2021 the resident contacted the landlord and informed it she had family over to visit her property and loud banging was coming from the neighbouring property. This caused the family to leave early due to the level of banging and stamping. The resident informed the landlord there had been 49 incidents of noise between 20 November 2021 and 28 November 2021. The incidents consisted of running, stamping, marching, jumping, balls bouncing and wheels of scooters.
The landlord responded to the resident on 3 December 2021 and informed the resident it had spoken with the leaseholder of the neighbouring property. The landlord stated it was informed that the neighbour had denied causing noise nuisance in the property. The landlord also informed the resident it had spoken to another neighbour who confirmed they could hear children playing in the property so it would recontact the leaseholder again.
A sound exercise was carried out by the council on 22 December 2021 and involved a council officer being in each property to determine if noise could be heard between each property. A copy of the report was sent to the landlord on 23 December 2021. Its findings were:
1. It observed that any sort of walking movement at the neighbouring property was clearly audible at the resident’s property as it could hear children moving or running around very clearly and could easily differentiate if a grown up or a child was walking. It believed it was mainly due to the type of floor boards that had been used.
2. Noise from a water pump at the neighbouring property was heard when a toilet was flushed or a tap was used. The resident stated this noise happened 4-5 times in the night.
3. Loud voices could be heard.
4. Tests were attempted with balls bouncing and scooters, but the neighbour denied owning any of those items so the test could not be completed. The resident stated the neighbour had admitted to having a scooter during previous mediation talks.
5. The resident was asked if TV noise was an issue or if any other types of noise affected them and the resident responded that there was not.
The resident contacted the landlord on 28 December 2021 and stated she had to call 101 that week about the noise levels. The resident also stated she had not had a reply to her previous emails sent to the landlord. This service has not seen the emails the resident is referring to.
The landlord emailed the resident on 25 January 2022 stating it had obtained the email address of the neighbour and would request a meeting to discuss the concerns that had been raised.
The landlord contacted the leaseholder of the neighbouring property on 10 February 2022 and informed the leaseholder of the contents of the council’s sound report from December 2021, in particular the level of noise being heard due to the wooden flooring at the property.
The leaseholder stated the flooring was already in the property at the time he purchased it and other families with children had lived there with no reports of noise. The landlord advised the leaseholder that the property needed to be carpeted to reduce the noise transference. The leaseholder asked the landlord to ask the resident not to knock on his tenant’s door.
The leaseholder of the neighbouring property contacted the landlord on 15 February 2022. The leaseholder stated the resident had harassed its tenant and that they had decided to move from the property.
The landlord contacted the resident on 16 February 2022 and asked if there was any further support it could offer due to it being aware the resident had depression due to the harassment. The resident responded the same day to say she had been suffering with stress from the harassment and that she had been ignored by the landlord. The resident stated she was 9 months pregnant and should not be suffering the types of stress she was and that she had lived in the property for 30 years and not experienced noise issues. The resident said she would call the landlord the following week as she felt her mental health would decline if she had a discussion immediately.
The resident contacted the landlord later that day to say she had contacted the police who called an ambulance for her. The resident stated the landlord had been enabling the neighbour’s behaviour and her health was being affected.
The resident contacted the landlord the next day and asked for it to contact her regarding the noise levels. The resident also stated the police had contacted her and would be contacting the landlord directly.
On 23 February 2022 the police contacted the landlord about a report made by the resident about the level of noise from the neighbouring property and stated it required intervention by the landlord.
On 27 February 2022 the resident emailed the landlord and informed it:
1. She had to call the police twice that week.
2. The council’s noise team visited and went to the neighbouring property, was told it was kids playing and left without discussing it any further with the resident.
3. She believed the noise team were racist and there was a lot of unconscious bias going on.
4. The landlord’s officer dealing with the case had not made contact with them for a month, was lying and was siding with the neighbour.
5. The neighbour was using a drill late at night.
6. The resident knocked on the neighbour’s door to ask for the neighbour to be more considerate but this resulted in the neighbour kicking and banging on their door.
7. The resident went to A&E due to the stress of the situation.
8. The resident did not want to be in the property on her own when other members of the household were at work.
9. She had booked herself into a hotel
10. The noise was also happening when children would be at school and it would be the parents causing the noise which the resident felt was deliberate as during mediation the resident had disclosed that was what upset her the most.
The landlord contacted the resident on 3 March 2022 and stated it had contacted the leaseholder about the sound report from the council and in particular the flooring in the property. It also stated it had advised the leaseholder to check their lease agreement regarding causing nuisance to other tenants. The landlord also informed the resident it had received a concern from the leaseholder about the resident’s actions towards the neighbour and in particular about pressing their intercom. It asked the resident to stop the pressing the buzzer and instead report any incidents to the council.
On the same day the landlord wrote to the police to establish if the resident had reported any elements of racial abuse. The police responded that she had not.
On 3 March 2022 the resident wrote to a manager of the landlord and requested assistance with her case. The resident stated the landlord had so far treated her terribly and was being treated differently because of their race. The resident said the case officer dealing with the case was ignoring her and when they did respond, would send a generic response. A manager of the landlord responded the same day to say the resident would be contacted by the end of the next day.
A manager contacted the resident on 4 March 2022 and discussed her concerns. The manager stated they asked the resident what her expectations would be and was told by the resident it was for the neighbours to be evicted. The resident told the manager she had felt like the landlord, the police and the council was not taking her family seriously.
The resident made a complaint to the landlord on 6 March 2022. The resident stated:
1. She had written to the landlord for over two years about her neighbour and the landlord had frequently ignored her communications and offered no resolution.
2. The household was being targeted because of the colour of their skin and the neighbour told them they did not want to disturb any other neighbours who were all white. They were only harassing two households in the property and both were black.
3. She was told by the landlord’s officer at the initial meeting in November 2021 that the case would be an easy one to close and it was not as serious as other cases they had dealt with.
4. A noise test was conducted in December 2021 and it was only after the resident chased the landlord for the result was it given to them and told the noise was not caused intentionally. She had asked for this to be confirmed in writing and she had never been sent it.
5. She was meant to receive weekly updates from the landlord but was not receiving those.
6. She was told in a telephone conversation the noise team had said the sound insulation at the property was very bad but she had been living with the neighbour for over eight years but the noise started two years ago so it was a poor excuse to blame poor sound installation. The noise was being created deliberately to harass them.
7. Another neighbour had spoken to the neighbour who said they were told it was the children making the noise which they were unable to stop as it caused fighting among themselves.
8. Had offered to send recordings of the noise to the landlord.
As part of the complaint the resident requested that the landlord:
1. Confirmed how the noise team came to the conclusion the noise was not caused intentionally and what that meant going forward.
2. Checked the type of flooring in the property.
3. Confirm if there was any recommendation for replacing the water pump that woke them up at night.
4. Confirm what would be done to improve the sound installation and who would be responsible for it.
5. If the landlord agreed for a meeting with them.
A Multi Agency Risk Assessment Conference on 10 March 2022 discussed the case and concluded no evidence of racial abuse had been evidenced or the resident had reported this to the police. It was deemed the noise was everyday living noise.
The landlord responded the next day to say a full response would be issued by 11 March 2022.
The landlord issued its stage one response on 11 March 2022. In the response the landlord:
1. Acknowledged there was service failure in the response times the resident had received from their case officer.
2. The case officer had worked with customers from all ethnic backgrounds with integrity and there had not been any concerns raised by a customer in the past. It appreciated the resident felt differently and reassured the resident its residents were treated with respect and fairness regardless of age, race, gender, sexuality, disability or background.
3. The case officer would continue to work on the case but, to respect the wishes of the resident all future correspondence would come from the manager or another officer.
4. The case had been investigated by the council, police and the landlord and the noise was classified as everyday living noise so was not something the landlord could take action on. It would continue to work with the noise team to mitigate the noise by visiting the neighbour and their landlord and asking them to explore flooring options in the property.
5. It encouraged the resident to consider mediation.
6. Eviction of the neighbour would not be an option due to the nature of the complaint received and the investigations completed.
7. The police had attended the neighbouring property and had not witnessed any noise other than day to day living noise and had no evidence of racial harassment. It advised the resident to report any actions they felt were racially motivated to the police. The landlord said it understood the resident believed the harassment was racist in nature but had no evidence to support that racism was a factor.
8. It was to visit the neighbour to discuss the flooring and attempt to reach a resolution.
9. It offered the resident £50 compensation for its failure to respond to the resident within the agreed timescales.
The resident responded on 13 March 2022 and stated she did not feel her complaint had been investigated, all her concerns had not been addressed and had been left unanswered about:
1. When a meeting would be arranged between the resident, the landlord and the leaseholder of the neighbouring property.
2. Other neighbours not being contacted for witness statements.
3. Not receiving a copy of the noise report completed by the noise team.
4. If the water pump was to be replaced by the landlord of the neighbour.
The resident in the same letter stated she had recordings on her phone demonstrating multiple feet stamping at the same time which were sometimes in the same spot for a lengthy amount of time. There was also recordings of items being dropped on the floor multiple times. The resident stated these noises were deliberate and not everyday living noise. The resident also stated the noise team had not spent a lengthy amount of time in her flat conducting the noise test and asked if it would be better for the noise test to be carried out without the neighbour being aware.
The landlord responded on 15 March 2022 to acknowledge the request to escalate the complaint to stage two and that the resident would be informed when the complaint had been assigned and to who.
The resident contacted the landlord on 28 March 2022 as they had not had a response from the landlord.
The landlord issued its stage two response on 7 April 2022. In the response the landlord stated:
1. A multiagency meeting would take place at a future date, to be arranged, to try and resolve the issues.
2. The landlord of the neighbouring property had been notified of the water pump concerns but had not yet responded.
3. It was consulting its legal team about whether there was a requirement for carpeted flooring when one flat was above the other.
4. The council’s noise report stated the noises were everyday living noises.
5. It had fulfilled is obligations under its ASB policy as it had examined diary sheets from the resident and escalated the noise concerns to the council’s ASB team who passed it to its noise team.
6. Acknowledged it had not spoken to another neighbour as requested by the resident.
7. As the neighbouring property was lease owned by a private landlord the flooring would have to be addressed by the leaseholder.
8. It apologised for the responses in the stage one response and that the resident’s concerns would be addressed at the multi-agency meeting. It also acknowledged the delay in providing the noise report to the resident and offered £150 in compensation.

Post Complaint

The resident contacted the landlord on 12 April 2022 to say she had not been provided with weekly updates as promised and over one month had passed since she had one. The resident asked the landlord if the mediation company had made contact with the neighbour. A further request for an update was made on 23 April 2022.
On 27 April 2022, the landlord wrote to the resident and apologised for not keeping in touch with the resident. It stated it had attended the neighbour’s property on 14 April 2022 and established there was laminate flooring in one room and there was adequate flooring in the property. The noise from the pump was heard and it would be raising this with the landlord to resolve the issue. The landlord stated there was no breaches of the tenancy that it could asked the leaseholder to enforce and there was no evidence the neighbour was deliberately targeting the resident.
In May 2022 the resident wrote to the landlord stating they had been waiting five months for the landlord to arrange a meeting with the neighbours landlord. The landlord stated this was due to getting all parties available at the same time.
A meeting took place between the resident, the landlord, the council community safety team and local policing safer neighbourhood team on 25 May 2022. following this meeting the resident states she was told by the landlord weekly updates would be provided. The resident wrote to the landlord on 3 July 2022 to say no further updates had been provided since the meeting took place.
The landlord in an email to the resident on 5 July 2022 stated that
1. The agreed contact had not been kept to and going forward a manager would be the point of contact for the resident.
2. It confirmed with the resident the neighbour had moved out of the property.
3. It was speaking with the landlord of the neighbouring property to change the water pump in the property to reduce the noise generated by the pump.
4. It wanted the contact details of another neighbour so it could contact them to discuss any noise they heard from the neighbour.
The resident’s support worker made the landlord aware the neighbours were returning to the property during daytime hours from 7 July 2022 and while in the property they were much quieter, indicating they did not wish to be noticed.
The landlord has stated the neighbour left the property in July 2022.

Assessment and findings

The landlord has evidenced the steps it took to initially investigate the noise from the neighbour’s property. It provided diary sheets to the resident and referred the residents reports of noise to the council’s ASB team who sent its noise team to conduct a sound exercise between the resident’s and the neighbour’s property. These steps are reasonable steps for a landlord to take to establish the cause of noise between properties and are in line with Section 3.2.1 of its ASB policy. The conclusion of the investigation was that everyday living noise was the source of the noise.
An action plan was agreed with the resident in November 2021 and provided the resident with the actions the landlord would take. The landlord’s action plan stated how it would support the resident and try to resolve the noise nuisance being reported. It was a positive action plan that aimed to cover the resident’s concerns and try to resolve the issues reported.
An internal assessment by the landlord in February 2022 found that it had agreed that a new case would be opened in October 2021 and the landlord noted the case was not opened on its systems until 16 February 2022. The landlord stated this was due to the council conducting its investigation first. Whilst it may have been reasonable to allow the council to carry out its own investigations the landlord was expected to able to record its actions and monitor progress of the case and if it did not open a new case in a timely manner than this would have impacted on its monitoring of the case including providing the resident with weekly updates.
The resident has not disputed the types of noise being heard from the neighbour’s property but has made it clear she considered the noise to be deliberate and excessive. The landlord has confirmed it asked the resident to complete one week of diary sheets in November 2021. The landlord was asked to provide a copy of these diary sheets but none were provided.
The evidence provided shows the resident reported further noise and harassment in February 2022 and March 2022. In the reports the resident made reference to the noises being made on a deliberate basis. The landlord has not shown it took any further steps to investigate these further reports and try to establish if the resident’s concerns about the noise being deliberate were correct at the time.
There is no evidence that any further type of noise tests were conducted after the initial test by the council’s noise team in December 2021 or that the landlord itself conducted or it asked the council to conduct any further noise tests.
There is no evidence of an offer of sound recording facilities in the form of noise monitoring equipment or recording apps and no evidence the resident was asked to complete any further diary sheets. The resident offered to provide the landlord with recordings they had taken in March 2022 but there is no evidence the landlord took up this request. It is therefore difficult to conclude how the landlord has established the noise was not deliberate, causing a nuisance or was not anti-social in nature.
The noise test completed by the council took place in December 2021 and the resident requested a copy of the report when its conclusions were communicated to the resident. It took until after the stage two response for the landlord to provide this. The landlord stated this was due to requiring permission from the council to provide the report to the resident. The landlord acknowledged in the stage two response that it should have requested this permission at an earlier stage.
The landlord in its response to the resident stated it had asked the leaseholder to check the lease regarding causing nuisance to other neighbours. Whilst it was reasonable to remind the leaseholder of their obligations, the landlord was expected to make these responsibilities clear even if the noise was considered day to day living noises.
The resident has stated they believed the harassment from the neighbour was racially motivated. The resident has stated the landlords response was also racially biased against her. This Service has not seen any evidence that would indicate the noise from the resident’s neighbour or the responses issued from the landlord where influenced by racial discrimination. The landlord was correct in advising the resident to report accusations of racial harassment to the police.
The resident has referred to a water pump at the neighbour’s property which caused loud vibrations and noise to her property especially at night. Schedule two section 19 of the lease refers to the installation of any machinery on the premises which shall be noisy or cause dangerous vibration or be a nuisance to occupiers of the nearby premises. The landlord did speak to the leaseholder about the water pump in July 2022 after the neighbours had moved out. The council’s sound exercise made reference to it being loud but there is no evidence any further investigations were completed to establish if further action needed to be taken. It is noted though that the pump was removed after the neighbours had moved out which the landlord has stated was so the resident would not be disturbed by the pump in the future.
In this case the resident made multiple reports to the landlord to say the noise created by the neighbour was on a deliberate basis. When notified of this the landlord would be expected to consider if there was any actions it could reasonably take to investigate the resident’s concerns. Although the landlord did do this initially in November 2021 and created an action plan, issue diary sheets and requested the noise survey be completed by the council, it failed to follow these up. The landlord repeatedly informed the resident there was nothing it could do due to the noise being assessed as everyday living noise. The landlord has not provided any evidence it took any further action to investigate the residents reports of deliberate noise from the neighbour and if this was having a disproportionate impact on the resident.
The landlord made commitments in the stage one response which were to make an appointment to visit the neighbour with the landlord, the council’s community safety team, its officer and the police to discuss the noise complaints. The landlord also offered to meet with the resident and the leaseholder in November 2021, this was chased by the resident in January 2022 and at the time of the stage one response had not yet been arrange. The landlord offered no explanation for this delay but stated the council would host a multi-agency meeting at a further date to be arranged in the stage two response.
The landlord in its commitment to supporting the resident stated that it would provide weekly updates to the resident. These commitments were made in November 2021 and continued through the stage one and stage two complaint responses. The evidence provided does not show that this was fulfilled by the landlord. There is no evidence that the resident was provided with weekly updates and the resident on many occasions wrote to the landlord stating this and asked for further updates from the landlord. It is clear that the communication promised by the landlord to the resident was not fulfilled. The landlord in its complaint response acknowledged this was the case and offered the resident £150 compensation. The compensation is not considered to be an appropriate level of redress as it is clear from the evidence provided that the resident had to continually chase the landlord for updates on her case. The landlord received consistent reports from the resident of further noise which it failed to show it had investigated. When updates were provided to the resident there was no acknowledgement or apologies for the delays in replying.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of ASB.

Reasons

The landlord stated it concluded the noise reported by the resident was everyday living noise. The landlord has failed to show it investigated the resident’s ongoing concerns that the noise generated was on a deliberate basis. The landlord failed or took too long to fulfil its commitments made to the resident including providing weekly updates and fulfilling commitments made in its action plan.

Orders

Within four weeks of the date of this report the landlord is to pay the resident £400 for its handling of the reports of ASB. This includes the £150 already offered to the resident.