Southwark Council (202008200)

REPORT

COMPLAINT 202008200

Southwark Council

29 July 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

The complaint is about the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) and noise nuisance.
The Ombudsman has also investigated the landlord’s communication with the resident, and its handling of the formal complaint.

Background and summary of events

Background

The resident is a leaseholder of the landlord’s property. The property is a ground floor flat.

The landlord’s ASB procedure

The landlord’s ASB procedure states that “the term ‘antisocial behaviour’ includes a range of nuisances, defined by the ASB, Crime and Policing Act 2014 as – acting in a manner that caused or was likely to cause harassment, alarm or distress; or engaging in behaviour which causes or is likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in lawful activity”.
The procedure states that on receiving a report of ASB, it is for the officer to establish when the incident happened, and the associated details.
With regards to tackling the behaviour, the procedure details a range of non-legal remedies which may be suitable. These include interviewing the alleged perpetrator to address the behaviour, sending warning letters to advise of concerns, drawing up an acceptable behaviour or good neighbour contract, referring the parties to mediation services or requesting professional witness services.
The procedure provides further detail about when mediation referrals may be appropriate. These include instances where:
1. The landlord is unable to resolve an ongoing neighbour dispute through normal resident services intervention and management.
2. An existing neighbour dispute has suddenly escalated and requires urgent attention and management of the situation by an experienced third-party.
3. Council officers are not perceived as impartial by one or both parties in a dispute.

The landlord’s complaints policy

The landlord’s complaints policy defines a complaint as “any expression of dissatisfaction about any of our services requiring a response”.
The policy sets out its approach to resolving complaints. It states that it has two phases to the complaints process – the complaint phase and review phase – which gives the complainant the right to have their complaint reviewed at a more senior level if they are dissatisfied with the initial response.
In terms of timescales, the policy states that a full response is 15 working days during the complaint phase; and 25 working days for the review phase. It adds that the “response will include a clear escalation phrase”.

Summary of events

The resident has advised that he has been experiencing noise nuisance and ASB from the neighbour in the upstairs property (‘Flat A’), which is occupied by the landlord’s tenant for approximately three years.
On 30 April 2020, the resident contacted the landlord via email. He said that he wished to make a formal complaint about his neighbour. The resident explained that the neighbour had “always made loud noises and vibrations after-hours”, but that over 26 and 27 April, events were of such a nature that he and his girlfriend felt unsafe in their home.
In his email, the resident described the events that had transpired and provided the landlord with video footage via a link. The resident also listed historic reports which had been made in April 2019 and January 2020. He asked that the landlord look into the matter further and take action as the neighbour’s conduct was affecting their ability to work – as well as interfering with the enjoyment of their home.
The landlord’s Resident Services Officer (RSO) responded on 4 May and advised that the neighbour had also submitted a complaint on 27 April; and in her correspondence she had explained that an altercation had taken place between her and the resident’s girlfriend, following which the police were involved. The RSO asked if the resident could provide his own statement in relation to the incident.
The resident responded on the same day and refuted the neighbour’s allegations. He also referred to his email of 30 April, which he said detailed the events that had transpired.
Internal correspondence shows that the landlord’s antisocial behaviour unit reviewed the evidence which had been provided, alongside statements from the resident and his neighbour. It was concluded that it was a case of allegation and counter-allegation, and that shuttle mediation would be the best way of tackling the problem.
On 5 May, the resident contacted the landlord to request an update. He asked if the landlord was going to take any action, and whether it had spoken with the police. It is not clear whether the landlord responded to this.
On 29 June, the resident made a further report of noise nuisance. In his email, the resident explained that the occupants of Flat A had been “running around well past midnight” and they were unable to sleep as a result. The resident added that he had been recording the noises through the Noise App (the App), but it said that authorisation was required from the Noise Nuisance team. He said that he had spoken to the team, and it had confirmed that such a request needed to come from the landlord. The resident asked if this request could be made.
The RSO acknowledged the resident’s email on the same day, and requested up-to-date contact details. These were duly provided, and the correspondence suggests that a telephone conversation took place that day.
On the same day, the Noise Nuisance Team wrote to the resident to advise:
1. The landlord would normally deal with noise problem by means of statutory nuisance. In that, the nuisance is witnessed by an authorised officer and in their opinion, the nuisance from one property would affect the average person’s use or enjoyment of their property.
2. Various criteria would have to be taken into consideration, including the volume and characteristic of the noise, time of day and duration – in addition to the area.
3. Only what the officer witnesses during his visit can be taken into consideration.
4. Due to the situation with the Covid-19 pandemic (the pandemic), the response service from the Noise Team had been suspended; however, if the resident were to be disturbed by something in the future, once the service had been resumed, he could get in touch accordingly.
On 1 July, the resident queried whether the landlord had provided the authorisation for the App. In response, the RSO advised that it was not clear what the resident required, and he was of the understanding that the Noise Nuisance Team was dealing with the matter – but that its services had been suspended owing to the pandemic.
In response, the resident advised that he wished for the landlord to send a request to the Noise Nuisance Team with its authorisation, so that he could start using the App to record instances of noise nuisance. He added that he also wished for the landlord to issue the neighbour with a warning.
On 21 July, the resident contacted the RSO again. He said that nothing was being done, and asked why the landlord was not addressing the issues he had raised. The resident added that the neighbour had a “very noisy” dog and queried whether the landlord was going to do anything given that “the estate explicitly says no dogs are allowed”.
The landlord’s Resident Services Manager (RSM) responded to the resident on 21 July, and asked if they could arrange a mutually convenient time to discuss the issues. The resident responded and provided a summary of the problems they had experienced, and said that he wanted the landlord to:
1. Allow access to the Noise App so that he could record further instances.
2. Put soundproofing on the floor of the upstairs property, or to install soundproofing within his property.
3. Move the resident to an alternative property or buy him out, if the above was not possible.
A telephone call between the landlord’s RSM and the resident subsequently took place the next day. The resident emailed the RSM following the conversation and said that it had been agreed that the RSM would speak with the Noise Nuisance Team about authorisation for the App; and that he would speak to the neighbour – or send her a letter – in relation to the noise levels. The resident added that he also thought the RSM should speak with the neighbour about owning a dog as it was “in violation of the tenancy agreement”.
The resident emailed the RSM on 30 July to seek an update. The RSM responded on 31 July, and advised:
1. He had spoken with the resident, but she did not feel that she was making excessive noise, adding that her children are in bed by 8pm.
2. In the past mediation was discussed but not fully explored, he therefore wished to know if this was something the resident was willing to consider.
The RSM had also copied another member of staff into the email and asked him to discuss the Noise App and its limitations with the resident. It was added that he was not aware that keeping a dog was prohibited under the tenancy, but they would look into the matter.
The resident responded on 3 August. He said:
1. The keeping of a dog/dogs on the estate was prohibited under his lease agreement, and that there were signs to that effect around the estate.
2. They had tried to speak with the neighbour in the past, and the pattern had been the same. He said that they had been threated with violence and they therefore did not wish to speak with her, as they did not consider her to be “a reasonable person”.
3. With regards to the App, he would continue to record excessive noise whether or not the relevant team accepted the recordings as evidence. He was aware that Councils had professional sound recorders that measured noise, and that they could be left in properties to measure noise. The resident asked about the possibility of having one installed.
4. The noise had subsided in recent days, and this was likely to be as a result of the RSM speaking with the neighbour. However, this had happened previously, and the noise resumed soon after.
The resident subsequently sought updates via email on 6 and 11 August; and within the latter advised that he would be escalating the matter.
It is not clear what transpired following this. However, at the beginning of November 2020, the resident contacted the Ombudsman about his concerns. On the web complaint form, the resident advised that the noise disturbance had continued; and that he had arranged for a dropped ceiling with sound insulation to be installed within his property. The resident said that in order to put things right, he was of the opinion that the landlord should issue the resident with a warning; to be followed by enforcement action if violated. He also asked that the landlord install soundproofing to the neighbour’s floor.
This Service made contact with the landlord on 3 November, and asked it to respond to the resident’s concerns under its complaints procedure. Meanwhile, the resident contacted the Noise Nuisance team at the end of November 2020 to report disturbance from the neighbour’s dog barking, and queried whether the landlord could install a noise recorder in the property. The resident also queried whether the landlord would consider installing sound proofing.
In response, the RSM advised that it would be happy to explore the possibility of sound proofing. It is not clear whether the Noise Nuisance team responded to the resident’s request about the noise recorder. On 11 December, the landlord issued its stage two complaint response. Within this, it said:
1. As part of the stage two investigation, it had reviewed the history of the complaint and looked at correspondence that was issued by the RSM and the Noise Nuisance Team.
2. It noted the explanation that was provided to the resident within the stage one complaint response about how statutory noise complaints are dealt with, and the criteria that would be taken into consideration.
3. It had discussed the case with the Noise Nuisance team, and it detailed the chronology of events that it had been provided with. It also advised that the Noise Nuisance team had confirmed that the issues which had been reported were “not matters that concern” it.
4. The RSM had confirmed that there is no ‘dog policy’, and that the Conditions of Tenancy are the relevant provisions. These state:

“You are responsible for the behaviour of your animal and any animal you have allowed in the property or within its boundary at all times and you must not cause or allow the animal to cause nuisance or annoyance by excessive barking, or other noise, or aggressive or other behaviour.

You must make sure that your animal’s faeces are properly disposed of and that any animal kept by you is microchipped where the law indicates this is required”.

Given its findings, above, and the history it could not uphold the resident’s complaint. It considered the matter had been adequately addressed by staff; and the neighbour had agreed to partake in mediation to try to resolve the issues which had been reported. The landlord asked the resident to advise if he had changed his mind in relation to this.

The resident was unhappy with the response that he received, and asked the Ombudsman to investigate his complaint.

Events after the landlord’s final response letter

The landlord and the resident continued to correspond after the complaints procedure was exhausted in November 2020. In March 2021, the resident advised that he was still being disturbed by noises emanating from his neighbour’s property, and that she had since acquired a second dog. In response, the landlord advised that:
1. The noise had to be witnessed by an officer for action to be taken – and this had been relayed to the resident in the past.
2. It was noted that the resident wished to have a recorder installed at the property; however, the Noise Nuisance Team were only installing these once Government guidance allowed access to properties.
3. If the resident was being disturbed by noise, he could telephone the call centre to report the instance. However, the Noise Nuisance Team could only assist with noise such as loud music and parties, DIY work and barking dogs. The team was unable to assist with everyday noise – especially during the day – such as vacuuming, footsteps on wooden or laminate floor and noise caused due to inadequate sound insulation.
4. It was the neighbour’s choice if she wished to keep a dog. Resident Services would take action if the dog, or any person, was at risk or if the dog was causing a nuisance such as waste in communal areas, if it was not kept on a leash, or if there was unreasonable barking.
5. It could still explore mediation, although it was aware that the resident had rejected this some time ago. It was not possible to relocate the neighbour with the current evidence.
The resident was unhappy with the response he received, and he queried when the Noise Nuisance Team would be able to install a recorder. He advised that the landlord’s operatives had attended his property, and he therefore did not understand why the Noise Nuisance Team could not. The resident informed the Ombudsman towards the end of April 2021 that he had yet to receive a response to his last enquiry.

Assessment and findings

The handling of the ASB

Following the events on 26 and 27 April 2020, the resident contacted the landlord on 30 April to make a complaint about his neighbour. In response, the landlord’s RSO contacted the resident to advise that it had already received a complaint from the neighbour and wished to obtain his version of events. This was appropriate.
The resident’s comments that the noise had been emanating from Flat A, and that his girlfriend had tried to speak with the neighbour in relation to the noise are noted. However, the landlord had received a report from the neighbour, and had a duty to investigate the matter. The landlord’s decision to speak with the resident and obtain his comments was in line with its obligations under the policy. The Ombudsman has seen no evidence which shows that the RSO had informed the resident that he or his girlfriend were considered to be the perpetrators. Rather, the RSO remained neutral and advised that it was “alleged that there was an altercation”, and it therefore wished to obtain a statement from the resident.
On reviewing the statements and the video footage which the resident provided, the landlord concluded that it was a case of a neighbour dispute – and allegation followed by counter-allegation. While the comments about an assault had been considered, there was no contemporaneous evidence of this, and it was therefore concluded that shuttle mediation would be the best method for trying to resolve the situation.
From the evidence that has been provided to the Ombudsman, there is nothing which shows that this decision was clearly communicated to the resident – together with the reasons why. In the circumstances, it would have been appropriate for the landlord to explain that it did not have sufficient evidence to take action against either party; however, it was apparent that there was tension between both sets of residents that could be eased through mediation.
On 29 June, the resident contacted the RSO and the antisocial behaviour unit to report that they had been disturbed by noise emanating from Flat A the night before. The Noise Nuisance Team responded on the same day to provide the resident with further information about how noise nuisance is investigated, and the threshold that would need to be met for action to be taken. The Noise Team advised that owing to the situation with Covid-19, its services had been suspended.
It was appropriate for the Noise Nuisance Team to explain the threshold which would have to be met for any enforcement action to be taken. However, it is not clear why its services were still suspended at the end of June 2020 and beyond this. Government guidance, which was updated on 1 June 2020, provided that landlords could start to take steps to address wider repairs – not just emergency repairs; and that works could take place within properties so long as the specific guidance in relation to this was followed. It is acknowledged that the Government guidance referred to repairs specifically – and not other operations such as investigating ASB. However, it would have been reasonable for the landlord to provide further explanation as to why the services were suspended despite restrictions being lessened in other areas. That the landlord did not provide such an explanation was a failing in its communication with the resident.
Through July, the resident continued to ask for authorisation to use the App and asked if the landlord would issue the neighbour with a warning about the noise levels. The resident also raised concern that the neighbour had a dog. This was discussed further between the RSM and the resident during a telephone conversation. Following this, the resident informed the landlord that even if the Noise Nuisance Team felt that the recordings did not demonstrate noise of such a level that could be used in court, he wanted use of the App to be authorised so that there was a record of instances where the noise had been excessive.
On 31 July, the RSM confirmed that he had spoken with the neighbour however, she did not feel that she was making “excessive noise”. The RSM noted that mediation had been discussed before, but not fully explored and therefore asked if the resident wished to pursue this. The landlord’s actions were appropriate in the circumstances.
The landlord had appropriately considered the resident’s comments, discussed the reports with the neighbour and made enquiries with the Noise Nuisance team about whether it had evidence of excessive noise. In the absence of independent evidence corroborating the resident’s reports, the landlord asked if mediation could be explored with a view to trying to resolve the situation. The RSM also noted the resident’s comments regarding the Noise App – and referred to their conversation about the technicalities involved with obtaining sound recordings – and asked another member of staff to discuss this further with the resident. The RSM also agreed to investigate the issue of dog ownership.
In response, the resident advised that they were not willing to partake in mediation as they did not believe that it would be successful in bringing about a change. However, he queried the possibility of having noise recording equipment installed in the property. The resident chased the matter a few days later; and then informed the landlord on 11 August that he would pursue matters further given the lack of response.
From the evidence which had been provided to the Ombudsman, it is not clear if this member of staff did contact the resident to discuss the App further. There is also no evidence to suggest that the RSM reverted to the resident on the issue of dog ownership – or that the landlord provided a clear response to this until it issued its complaint letter on 11 December 2020. This was inappropriate and demonstrates a lack of communication with the resident.
However, based on the evidence provided to the Ombudsman, the landlord’s handling of the ASB reports themselves were appropriate and in line with its policy. The landlord has provided the Ombudsman with a summary of the Noise Nuisance team’s call logs. These detail that between the period 23 October 2015 to 2 November 2020, the team received a total of 15 calls. The issues reported were “footsteps, loud talking, noise from children and barking dogs”. The Noise Nuisance team’s records show that of the calls:
1. Two were three-day response calls and the resident was advised to call when the noise was happening.
2. On three occasions when the team called back to arrange a visit, the call backs were not answered.
3. On three occasions the callout was cancelled by the resident.
4. On four occasions when it called back to arrange a visit the noise had stopped.
5. On three occasions a visit was made by an officer, no noise as described was heard or witnessed – and no other noise that required action by the Team.
The Noise Nuisance team therefore did not consider that there was any action required by it, or any other council department. It follows that the landlord had no contemporaneous evidence demonstrating that it was necessary to issue the neighbour with a warning or take enforcement action against her. Given the allegations, and counter-allegations, the landlord had received it was appropriate to suggest mediation as a means of trying to resolve the issues which had been reported.

Complaint handling

The landlord’s handling of the complaint was not in line with its policy, as detailed above. The stage two response – or review response – was issued on 11 December 2020. This referred to a “stage 1” complaint response; however, the Ombudsman has seen no evidence that any such correspondence was issued.
The stage two response describes the contents of the stage one letter, and from this it appears that the landlord considered the Noise Nuisance Team’s correspondence of 29 June 2020 was the first stage complaint response. This was inappropriate, and the evidence suggests that the landlord retrospectively decided that this letter constituted the stage one complaint response.
The resident had expressed dissatisfaction with a lack of communication and the handling of his reports as early as May 2020. While it may not necessarily have been appropriate to use the complaints procedure right away, the situation should have been monitored and the resident should have been informed that he could make a formal complaint about the matter if he wished.
While the landlord later referred to the correspondence of 29 June 2020 as a stage one complaint response, there is nothing within the email itself which clearly shows that this was a complaint response. If this was intended to be the stage one complaint response, it would have been appropriate for the landlord to clearly explain that it acknowledged that the resident was unhappy with its actions and it was therefore responding through its complaints procedure. The resident should have also been offered escalation rights – in line with the landlord’s policy – so that his concerns could be considered by another member of staff if he was dissatisfied with the response. As the correspondence of 29 June was not clearly labelled as a formal complaint response, the resident did not – and could not – request escalation of his complaint.
The Ombudsman has seen no evidence that shows that the resident’s dissatisfaction with the handling of matters was acknowledged, or that the landlord decided to treat his expressions of dissatisfaction as a formal complaint. The evidence suggests that the landlord decided to treat the matter as a formal complaint only after this Service’s involvement in November 2020, and this was inappropriate. This is a significant departure from the landlord’s policy.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was:
1. No maladministration in the landlord’s handling of the resident’s reports of ASB and noise nuisance.
2. Service failure in the landlord’s communication with the resident and in its complaint handling.

Reasons

The landlord initially received a report about the incident on 26/27 April from the resident’s neighbour. It therefore contacted the resident and asked him to provide a statement so that it could investigate the matter further. The landlord concluded that it was a neighbour dispute, and that mediation would be the most appropriate method of dealing with the matter. While the landlord’s actions were in line with its ASB policy, the evidence does not show that this decision was clearly communicated to the resident.
Following further reports from the resident, the landlord discussed the matter with the neighbour – who refuted the allegations. It was appropriate for the landlord to discuss the reports with the neighbour; and in the absence of any other contemporaneous evidence, there were no grounds for the landlord to take any further action.
The landlord’s comments regarding the Noise Nuisance Team and the suspension of services are noted. However, it is not clear why the service remained suspended at the end of June 2020 given Government Guidance that was issued at the beginning of that month. In the circumstances, it would have been reasonable for the landlord to provide the resident with some further explanation in relation to this.
The landlord’s complaint handling was not in line with its policy. The correspondence sent on 29 June 2020 was not marked as a complaint response, but was retrospectively referred to as the stage one response. The resident was not offered escalation rights, and as such the complaint was only considered at stage two of the landlord’s procedure following the Ombudsman’s involvement.

Orders

Within four weeks of the date of this decision, the landlord should:
1. Write to the resident to apologise for the communication and complaint handling failures that have been identified by the Ombudsman.
2. Pay the resident a total of £150, comprised of:
  1. £50 for the inconvenience caused by the communication failures.
  2. £100 for the inconvenience caused by the complaint handling failures.
3. Review its complaint handling policy in light of the Ombudsman’s Complaint Handling Code.
Within five weeks of the date of this decision, the landlord should write to the Ombudsman detailing the actions it has taken in relation to the orders.

Recommendations

Within six weeks of the date of this decision, the landlord should contact the resident to discuss the option of installing a noise recorder at the property, now that Covid-19 restrictions have been lifted.