Portsmouth City Council (202201665)

REPORT

COMPLAINT 202201665

Portsmouth City Council

15 January 2024

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 handling of:
1. The resident’s reports of noise nuisance from her neighbour.
2. The associated formal complaint.

Background

The resident was the tenant of a first floor 2-bedroom flat from September 2018 to January 2023.
By March 2019, the resident had contacted the landlord to report daytime noise coming from her neighbour on the second floor above her. She stated that this was happening daily. She described this noise as banging and shouting (at children). The resident, who suffers from anxiety and mental health difficulties, found this noise difficult to tolerate. The landlord was aware of her vulnerabilities.
On 2 separate occasions, between June and August 2019, the landlord installed noise monitoring equipment in the resident’s property and subsequently reviewed the recordings. It concluded that the noise did not satisfy the statutory definition of a nuisance. In January 2020 and at the end of that year, the resident raised the issue again with her landlord. The type and level of noise had not changed but she stated that it was affecting her mental health. At around this time she also referred the matter to the local authority’s Environmental Health team. It reached the same conclusion about the noise as the landlord had previously – namely that it was not legally a nuisance.
By early July 2021, the resident had complained to the landlord about its lack of action over the situation. At this point she was reporting that, additionally, the neighbour was regularly standing on her second-floor balcony having a conversation with her friend in the street below. Both were having to shout to make themselves heard by the other and she was finding this noise intrusive and distressing. In its response, on 9 July 2021, the landlord maintained its view of the noise being made and pointed out it had offered mediation which was in accordance with its policy. The resident did not seek to escalate the complaint further.
However, on 4 February 2022, the resident made a further complaint about the landlord’s lack of action and on 25 February 2022 it offered the same response. It had determined that the noise was not a nuisance, had offered mediation, and had acted appropriately. It therefore offered the resident no remedy, although on 23 March 2022 it offered her a management move to another property.
The resident was unhappy with this response and sought, on 24 March 2022, to escalate the complaint. She repeated the nature of the reports she had made and the effect it was having on her mental health. The landlord refused to take the complaint further, stating in its letter of 30 March 2022 that it had already addressed all the issues raised and it was not appropriate to escalate them to a review. The landlord provided its final response to the resident on 15 September 2022 following contact from this Service. It confirmed that it would not be escalating the complaint or opening a new one. It re-offered mediation or a move, to resolve the situation.
The resident remained dissatisfied and referred the matter to this Service. She wanted the landlord to be compelled to take action to address the noise. However, in January 2023 the resident moved out of the property and was housed elsewhere.

Assessment and findings

Scope of Investigation

The resident’s first complaint related to her reports of noise nuisance from 2019 to mid-2021. The second complaint relates to any reported noise after that point. The original reports are now historic – the events happened up to 5 years ago. As time goes by events become more difficult to investigate. Documentation may no longer be available, and witnesses’ memories may fade. A reasonable investigation may no longer be possible. Further the original complaint did not complete the landlord’s internal complaints procedure.
This investigation report will, therefore, concentrate on the second complaint (which did complete that procedure) and which relates to more recent incidents of noise. The original reports and complaint have been referred to, however, to provide context to the situation as a whole.

The resident’s reports of noise nuisance from her neighbour.

All residents make some noise in the course of their daily lives. Some examples include cooking, cleaning, opening and closing doors, running up and down stairs, and moving furniture. The challenge is in ascertaining what constitutes unreasonable noise and actionable nuisance in these circumstances. A landlord cannot reasonably be expected to silence its tenants, but it can be expected to assist where the noise crosses the line and becomes excessive.
In this case the landlord had already determined that the upstairs neighbour was making noise but that the level of disturbance created had not crossed that line. It was entitled to make that assessment. When the resident renewed her reports after her first complaint, and at intervals thereafter, the landlord was careful to check whether the noise was the same as before, both in terms of its nature and its intensity. The resident confirmed it was and the landlord continued the stance it had taken earlier.
The landlord operates an Anti Social Behaviour Policy which sets out its approach to such situations. That policy confirms that noise can be seen as antisocial if it is capable of being a nuisance. When determining whether behaviour is unreasonable, the landlord’s policy states that “it must be something that is likely to inconvenience anyone – not just someone who is exceptionally sensitive”.
With regard to noise complaints, the landlord’s policy requires it to liaise with the local authority’s Environmental Health service (EHS) and to offer mediation. However, that service had been involved previously and had reached the conclusion the noise was not capable of amounting to a nuisance, legally, and nothing could therefore be done about it. The landlord was reasonably entitled to rely on that service’s earlier conclusion. Indeed, it had formed the same view previously from recordings collected on monitoring equipment. Whilst it did not refer the renewed reports back to that service, it was reasonable that it did not do so given that the nature of the noise had not changed.
The landlord’s policy also states that its primary response to such reports of behaviour is a referral to mediation. It offered this as soon as the reports were renewed and at various intervals along the way. It acknowledged that the resident felt she was unable to cope with a meeting with the neighbour but arranged for her to speak with the mediator alone anyway in case that helped her.
The landlord also visited the neighbour who herself had noted vulnerabilities. It has a responsibility to that neighbour as well as to the resident and its role is to remain impartial in these circumstances.
Finally, the landlord offered a management move. Given the noise was not confirmed as a nuisance, it was not required to do this. However, this offer did reflect an awareness, on the landlord’s part, that the resident was vulnerable and needed a response which reflected that fact. Ultimately, she moved, but this may have been to downsize to a property matching her newly single status.
For the sake of completeness two further points need to be mentioned.
1. The landlord was provided with medical evidence that the noise was affecting the resident’s mental health. It is not disputed that that was the case here. However, that does not confirm that the noise was excessive and thus giving the landlord the opportunity to take action (probably legal) against the neighbour. It only confirmed that the resident was sensitive to it.
2. The landlord confirmed to the resident that it could not take action against the neighbour’s friend who shouted up to the balcony of that property because she was not a tenant there. It referred the resident to the police. This was a reasonable response to that issue and the resident followed that advice and reported it.
The landlord’s policy allows it to involve other agencies if the situation requires this and its actions were appropriate.
On the matter of medical evidence, the resident may wish to consider seeking legal advice about whether the landlord was liable for the impact the noise had on her. This is because a personal injury claim is the appropriate process for considering the issue of health impact.
In conclusion, neither the landlord, nor the local authority’s EHS were able to confirm that the noise was technically “a nuisance”. This meant that the landlord could not take action in respect of it. The landlord was entitled to rely on the EHS’ assessment of the situation and had previously made its own evaluation anyway. It must be noted that this Service is unable to assess the actions of the EHS and any complaint about the actions of this local authority department should be raised with the Local Government and Social Care Ombudsman (LGSCO).
Any legal action carries risks for a landlord – it may end up using significant resources to fight a case only to lose. A landlord is therefore entitled to weigh up the strengths of a case before taking such steps. The landlord determined in this case that it would be unable to justify going further. The landlord therefore offered free mediation and when this was not possible it offered a move. The landlord’s actions were reasonable in this case and no failings have been identified in the service it offered to the resident.
This finding does not mean that the resident’s response to the noise is in any way doubted. Her reports were genuinely made but the nature of the noise was not intense enough to give the landlord the ability to take action against it.

The resident’s complaint.

The landlord operates a Corporate Complaints Policy. It commits the landlord to acknowledging complaints in 5 working days with an initial stage 1 response being given within 15 working days. If the resident remains dissatisfied and is able to explain why, then they can escalate the complaint to a second stage which consists of a review of the situation. They must take this action within 30 working days of the landlord’s decision. A response is then to be given within 20 working days of the landlord logging the escalation request.
However, the policy further states that upon receiving an escalation request the landlord is entitled to “consider whether there is any merit in further consideration of the complaint… If they decide there is no merit… they will let the customer know the [landlord] has reached its final decision”.
In this case the resident’s complaint of 4 February 2022 was acknowledged and responded to within these timescales which was appropriate (11 and 25 February 2022 respectively). The resident wrote to the landlord on 24 March 2022 requesting an escalation – and which was in time in accordance with the policy. On 30 March 2022 the landlord refused to take this action stating it had already addressed the issues raised and the resident was merely repeating the points she had put forward and was simply unhappy with the result.
The landlord did not state that this was its final complaint response. As a result, this Service contacted the landlord on 2 August 2022 to request that it either provide a stage 2 response or, if it was maintaining its position, confirm to the resident that it’s letter of 30 March 2022 was final. On 15 September 2022 the landlord confirmed to the resident that it was not going to escalate the complaint for the reasons previously given and that letter has been taken by this Service as the landlord’s final response.
As set out above, the landlord’s policy allowed it to refuse to escalate the case where nothing new was raised which required consideration. However, whilst the resident’s escalation request did not contain any fresh representations, the landlord might reasonably have taken the following into account:
1. The level of the resident’s vulnerabilities and her ability to put forward arguments on her own behalf.
2. The fact she was effectively challenging the conclusion reached that the noise did not amount to a statutory nuisance – the complaints handling came from a starting point that the decision was right and not subject to being scrutinised.
Under these circumstances the landlord might reasonably have been expected to escalate the complaint to the second stage of its procedure – especially to confirm its findings. This is important as she had stated that the landlord advised that she “just had to put up with” the noise. The second complaint stage would have been its opportunity to respond to this and apologise for any likely insensitive comments. Instead, she was left unclear as to whether the matter had been concluded and it was necessary for her to enlist the assistance of this Service to obtain clarity on the point.
The landlord might reasonably have noted these failings in its response of 15 September 2022 and offered the resident a remedy as a result. This Service’s Remedies Guidance states that an award in the region of £50 – £250 is appropriate where a service failing has resulted in some adverse impact on the resident, but which will have no permanent effect. An order has been made below for compensation of £100 to be paid to the resident to reflect her time and trouble in pursuing matters in the face of the landlord’s refusal to escalate the case.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance from her neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s complaint.

Orders and recommendations.

Orders

The landlord should pay the resident compensation of £100 for its complaint handling.
It should confirm with this Service that it has complied with the Order within 4 weeks of receiving this determination.