Southwark Council (202345859)

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REPORT

COMPLAINT 202345859

Southwark Council

5 August 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

  1. The complaint is about:
    1. The landlord’s handling of reports of noise nuisance.
    2. The associated complaint handling.

Background

  1. The resident holds a secure tenancy which started on 6 December 2010. The property is a 2-bedroom flat on the 1st floor of a block of flats. The landlord has told this Service that it is not aware of any vulnerabilities that the resident has. The resident has 2 children, and one of them has a diagnosis of autism.
  2. The resident made a complaint to the landlord on 12 December 2023. She said that she experienced noise nuisance from the property above her flat, and she said that she was unhappy with the landlord’s handling of the issues which she had experienced since 2011. She explained that the noise nuisance included banging on the floors and walls, and she said that she felt intimidated and humiliated because of the ongoing issues.
  3. On 18 December 2023, the resident received the stage 1 complaint response. The local authority’s Noise Nuisance Team provided the response, which was not part of the landlord’s function. It explained that the local authority’s Noise Nuisance Team could not take legal action without evidence of a statutory nuisance, and it advised her to continue to submit noise reports when they occurred.
  4. The resident escalated her complaint to the landlord on 28 December 2023. She said that she was not satisfied with the outcome or response and asked it to resolve the noise nuisance with the banging from the property above. She asked it to rehouse her if it could not resolve the noise nuisance issues.
  5. The landlord provided its stage 2 complaint response to the resident on 8 March 2024. It apologised for not including the findings and actions of the landlord regarding the noise nuisance issues within its initial complaint response, and that it only referred to the actions of the local authority’s functions. It partially upheld the complaint as it acknowledged delays in making a referral to mediation services to help resolve the noise issues but explained that it had since acted appropriately. It gave her advice of how to take private action against the neighbour while it continued to investigate her concerns.
  6. The resident escalated her complaint to this Service as she remained unhappy with the ongoing noise nuisance issues from the property above. The complaint became one that the Ombudsman could investigate on 29 April 2024.

Assessment and findings

Scope of investigation

  1. The resident has said that the noise nuisance had been ongoing since at least 2011. The Ombudsman cannot consider complaints which relate to historical events because the quality and availability of any evidence that may have existed at the time may not be present now. The focus of this investigation will therefore be from 12 months prior to when the resident raised her complaint. This is in accordance with paragraph 42(c) of the Housing Ombudsman Scheme.
  2. It is evident that the resident is currently experiencing issues which she did not raise within this complaint, such as noise nuisance from a shop located below her property, heating repairs, damp and mould, and leaks. The resident may wish to log a new complaint for the landlord to investigate her concerns and have the opportunity to put things right. She may then bring that complaint to the Ombudsman as a new case to investigate if needed. This is in accordance with paragraph 42(a) of the Scheme.
  3. The Ombudsman cannot consider or assess the actions and decisions made by the local authority’s Noise Nuisance Team as this falls outside of the function of the landlord. The Local Government and Social Care Ombudsman (LGSCO) are more likely to consider these complaints. Before bringing a complaint to the LGSCO, the resident will likely need to have made a complaint to the local authority first. This is in accordance with paragraph 42(j) of the Scheme.
  4. The Ombudsman appreciates that the resident wants the landlord to rehouse her due to the ongoing noise nuisance concerns. However, it is beyond the remit of the Ombudsman to order the landlord to offer immediate rehousing to the resident, or to prioritise her over other applicants or tenants that need rehousing and who may be in a similar or greater need. The Ombudsman’s role is to determine whether the landlord acted in line with its legal obligations, policies and procedures, and best practice.

The landlord’s handling of reports of noise nuisance

  1. The landlord’s record keeping is not clear regarding the reported noise nuisance. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. Within the final complaint response, it referred to multiple noise nuisance reports and events between 11 September 2023 and 4 March 2024, however, not all the events have been evidenced to the Ombudsman through the landlord’s records. This is a record keeping failure.
  2. In line with the landlord’s antisocial behaviour (ASB) procedure, it should raise an ASB case following a report of ASB, which includes noise nuisance reports. In the landlord’s final complaint response, it said that the resident reported noise nuisance from the property above her flat (flat A) on 11 September 2023. The landlord has confirmed that the occupants of flat A are not tenants of the landlord.
  3. The landlord’s procedure states that it will contact the resident within 3 working days for category 2 ASB cases, which include domestic nuisance cases and where inconsiderate nuisance is caused to neighbours. Due to the landlord’s poor record keeping, it is unclear when, or if, it responded to the resident’s report of noise nuisance on 11 September 2023. It is therefore difficult to establish whether it responded in accordance with its procedure.
  4. The landlord’s procedure states that it should complete a risk assessment during an initial interview with the resident to manage any risks effectively. The landlord completed an ASB risk assessment on 25 October 2023, which was over 1 month after the resident reported the noise nuisance. It is unclear why the landlord delayed in completing the risk assessment. It identified a medium level of risk and noted that it supported a move based on historic and ongoing noise nuisance from flat A. It gave the resident advice on options for rehousing following her request for this.
  5. The Ombudsman expects landlords to create an action plan to help support residents who report concerns of ASB. It is good practice for the action plan to set out steps that both the resident and landlord will take to help resolve the ASB. The landlord has not evidenced whether it completed an action plan, which is a failing.
  6. On 22 November 2023, the resident reported further noise nuisance from flat A, including banging noises. Within the landlord’s final complaint response, it said that it advised her to contact the local authority’s Noise Nuisance Team for support and it said it would make a referral to mediation services.
  7. It was appropriate for the landlord to refer the resident to mediation services as this could have helped to find a solution to the noise nuisance incidents and disputes. This action was also in line with its ASB procedure for non-legal remedies to help resolve ASB concerns. However, it then failed to make the mediation referral within a reasonable timeframe.
  8. Despite the landlord outlining its intention to refer the resident to mediation on 22 November 2023, it only made the referral on 4 January 2024, after she made further reports of noise nuisance from flat A. While it was appropriate for the landlord to acknowledge its failings with the delayed mediation referral within its final complaint response, it did not offer full redress for the failings. The landlord failed to consider the impact this would have understandably had on the resident and that its lack of action would have caused her to experience further frustration with its handling of the reports of noise nuisance.
  9. The landlord’s ASB procedure states that it will interview the alleged perpetrator to address the reported behaviour. The resident contacted the landlord on 18 December 2023, and referred to a visit from the landlord which occurred on 5 December 2023 where it visited the occupants of flat A who denied the allegations. The landlord has not provided this Service with evidence of when the visit occurred, and it has not provided any records of what it discussed or what advice it gave to either party during this visit. This is a failing.
  10. The landlord’s ASB procedure states that it should encourage residents to monitor and record reports of noise nuisance through a diary to help build a case for enforcement, if appropriate. On 12 December 2023, the landlord contacted the resident and explained that it took her concerns seriously and asked her to complete an incident diary to record incidents.
  11. While the resident expressed her dissatisfaction in her complaint escalation about the landlord giving her diary sheets, this was an appropriate step for the landlord to take. The landlord could not consider taking formal legal action without evidence of the noise nuisance. It was also reasonable for it to signpost her to contact the local authority’s Noise Nuisance Team during any incidents of noise nuisance to allow it to record the reports.
  12. On 18 December 2023, the resident asked the landlord to install sound monitoring equipment at her property to allow it to witness the reported noise nuisance. She said that she had asked the landlord previously and it had said it did not have availability to install the equipment at that time, but due to a lack of evidence provided to the Ombudsman as to whether this was a comment made by the landlord or the local authority, this Service cannot make a finding on this.
  13. In response to the resident’s request for sound monitoring equipment, the landlord asked the local authority’s Noise Nuisance Team on 16 January 2024 to install the equipment. It is evident that it provided the equipment, but it is unclear when this occurred. The delay between the resident’s request and the landlord initially contacting the local authority’s Noise Nuisance Team to arrange the instalment of the equipment would have understandably caused further distress and frustration to the resident.
  14. The final complaint response outlined that the landlord had collected the equipment, and it had reviewed the evidence but found that the noise levels recorded did not require any further action. The landlord acted appropriately by assessing the levels of noise nuisance. However, it failed to provide any detailed information regarding its reasons for deciding that no formal action was needed or clarity on whether it intends to reinstate the equipment at a date in the future (it is understood that the resident continues to experience the noise nuisance concerns). The landlord is ordered to provide this information to the resident and this Service.
  15. The ASB procedure also states that the landlord will consider involvement from a professional witness service for reports of noise nuisance to allow the reports to be independently investigated and confirmed. On 29 February 2024, the landlord referred the resident to a professional witness service. While this was an appropriate step to take to investigate the reported noise nuisance, it is unclear why the landlord delayed in referring the matter to the professional witness service, given both the historic reports of noise nuisance and that the ASB case had been open for at least 4 months at this point. The delay would have understandably caused avoidable distress to the resident.
  16. The resident asked the landlord to rehouse her due to the ongoing noise nuisance concerns. Given that the landlord did not have sufficient evidence to progress with legal action regarding the reported noise nuisance, it was reasonable for it to provide the resident with details of rehousing options available to her, such as mutual exchanges. It was also appropriate for it to refer her to its social welfare panel to consider the option of rehousing, which it did on 4 March 2024.
  17. Overall, there is evidence of the landlord following its procedures such as opening an ASB case, completing a risk assessment, and making referrals to mediation services and witness services. However, it delayed in completing such actions which would have understandably caused further distress and inconvenience to the resident. Additionally, its record keeping is a concern as it has not evidenced all of the actions it referred to in its final complaint response.
  18. Considering this, the landlord is ordered to pay £400 compensation to the resident for its handling of reports of noise nuisance. This is an appropriate award to reflect the distress and inconvenience caused to the resident. It is also in line with the Ombudsman’s remedies guidance for failures which have adversely affected the resident.

The associated complaint handling

  1. The resident made a complaint to the landlord on 12 December 2023. The resident referenced dissatisfaction with the landlord’s handling of the noise nuisance reports and she mentioned her previous contact to the local authority’s Noise Nuisance Team. The landlord is a local authority. The Ombudsman acknowledges that complaints that relate to both the functions of a local authority and its landlord functions can be difficult to manage and respond to.
  2. The Ombudsman would expect the landlord to manage the complaint appropriately and provide a comprehensive response regarding its functions as a landlord. The initial complaint response was provided solely from the local authority’s Noise Nuisance Team and failed to reference any activities or actions undertaken by the landlord.
  3. The landlord later acknowledged its failings in its complaint handling. In its final complaint response, it apologised to the resident for not referencing any actions taken by it as a landlord within its initial response. While it was appropriate for it to acknowledge its failings, it failed to offer redress for the confusion, and distress and inconvenience, which its complaint handling would have understandably caused to the resident. Its complaint handling also meant that the landlord missed an opportunity to put things right and resolve the resident’s complaint at the earliest stage.
  4. Additionally, after the resident escalated her complaint to stage 2 of the landlord’s complaints process, it failed to provide its final complaint response within a timely manner. It took the landlord 50 working days to provide its final complaint response after the resident escalated her complaint on 28 December 2023. This far exceeded the timeframe set out in the Ombudsman’s Complaint Handling Code, which states that landlords should provide a final complaint response within 20 working days of the complaint escalation.
  5. The landlord communicated with the resident throughout the complaints process. On 5 February 2024, it said it would provide a response by 20 February 2024 as it failed to meet its agreed timeframe. On 22 February 2024, the resident asked the landlord for an update on the complaint response. The landlord replied on 27 February 2024 and said that it would provide its complaint response by 5 March 2024. It also referenced contact made to the resident on 16 February 2024 about the delays, but the landlord has not provided any evidence of this contact to the Ombudsman. On 5 March 2024, it apologised for the further extension needed in providing its complaint response and it said it would provide this by the end of the week, which it did on 8 March 2024.
  6. While the landlord was mostly proactive in updating the resident about delays in providing its complaint response, it failed to fully address the distress and inconvenience caused by the delays. In consideration of the time and trouble spent by the resident in chasing it for a response, and the overall distress and inconvenience caused to her by its failure to provide a comprehensive initial response to the complaint, the landlord is ordered to pay £100 compensation to the resident.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of reports of noise nuisance.
  2. In accordance with paragraph 52 of the Scheme, there was service failure in the associated complaint handling.

Orders

  1. Within 28 calendar days of the date of this determination, the landlord is ordered to:
    1. Apologise to the resident in writing regarding the failures identified within this investigation. It should include specific examples in reference to each complaint point.
    2. Pay a total of £500 compensation to the resident. This should be paid directly to the resident and not offset against her rent account. This is made up of:
      1. £400 for its handling of reports of noise nuisance.
      2. £100 for its associated complaint handling.
    3. Outline its reasons for deciding that the noise levels recorded by the noise recording equipment did not require any further action and whether it intends to reinstate the equipment in the future and, if so, when. It should provide this explanation in writing to both the resident and this Service. If it decides it does not intend to reinstate the equipment, it should provide its reasonings in writing.