Vivid Housing Limited (202005614)

REPORT

COMPLAINT 202005614

Vivid Housing Limited

5 February 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 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

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

Background and summary of events

Background

The resident is an assured tenant and the tenancy agreement began on 21 December 2009. The tenancy agreement describes the property as a 2nd floor 1 bedroom flat.
The landlord’s housing file has recorded that the resident has restricted mobility and ‘mental health issues’.
The tenancy agreement states that the resident has a right to peacefully occupy her home and lists examples of potential nuisance behaviour such as ‘playing of loud music’.
The landlord has an ASB Policy that sets out an aim to assess and prioritise ASB cases and take appropriate and proportional action. ‘Being very noisy’ is listed as an example of ASB that the landlord will investigate but it is added that the landlord will not act where ‘alleged nuisance is caused by reasonable everyday behaviours, such as living noise’.

It shows that ‘noise nuisance’ will be classed as a Category B incident which means it will be handled by the Neighbourhoods Team and the complainant will be contacted the following working day after the report.

The ASB Policy advises that the landlord will aim to agree an action plan, maintain contact with complainants, assess any support or vulnerabilities and ‘be honest about what we can and can’t do’. All residents are encouraged to be realistic about what the landlord is able to do and be tolerant of minor disturbances.

The policy sets out a range of actions available to the landlord though, including ‘early interventions such as warning letters, meetings, partnership visits, Acceptable Behaviour Agreements, Good Neighbour Agreements.’ Potential legal tools are also listed for instances where the landlord has sufficient evidence and the action is appropriate.

Within the ASB Policy, the landlord states that:

‘We consider the Equalities Act and Human Rights Act when considering and taking legal action; we’ll review the proportionality of the action, the needs of the victim, perpetrator and wider community’

‘We realise that some customers who behave anti-socially will need support to help them change behaviours, sustain their tenancy and reduce the risk of them losing their home. Where appropriate, we will work with support services to help them make lasting changes.’

The resident’s complaint concerns a neighbour who is also a tenant of the landlord – the resident alleges that this neighbour causes noise nuisance by causing loud banging as well as shouting and screaming during the day and night. The landlord has provided this Service with evidence related to this neighbour – this contains information that is personal to the neighbour so cannot be shared within this report but will be referred to as ‘evidence seen’.

Summary of Events

The landlord recorded contact from the resident on 2 August 2019 and 16 September 2019 where she reported her neighbour had been screaming during the day and night and banging on walls and doors. It was noted that the resident had called the emergency services.

The landlord noted that it advised the resident it was aware of an issue. Based on evidence seen by this Service, the landlord liaised with appropriate agencies and made follow-up contact. It advised the resident to persist with calling the emergency services and recommended she also contact the local authority so they could make a statutory noise nuisance assessment.

The landlord opened an ASB case file on 3 February 2020 – it described the problem as ‘verbal abuse’ given the screaming that had been reported to it by the resident. It logged the matter as a Category B type and contacted the Police on the same day it opened the case. A manager reviewed the ASB case file on 5 February 2020, agreed the Category B classification and noted that obtaining multi-agency support would be the most appropriate action. It was added in internal landlord emails that advice had been taken from other agencies.
The landlord’s records show that the resident telephoned it on 11 February 2020 in order to make a complaint. The landlord noted that the resident had complained because she was experiencing noise from a neighbour and she claimed the landlord had done nothing about it. It was added that the latest incident had occurred in the early hours of that morning when the resident stated she heard the neighbour banging on the floor. The landlord has recorded that it acknowledged this complaint by email on 12 February 2020.
The landlord recorded contact from the local authority on 13 February 2020 who stated that they had concluded there was a noise but that it was not at a nuisance level. Based on evidence seen by this Service, the landlord co-operated with other agencies regarding their intention to visit the neighbour.
The landlord noted contact with the resident on its ASB case file on 18 February 2020. It recorded that it had asked the resident to report incidents whenever they occur, that it advised the resident no other complaints had been received despite knocking on other neighbours’ doors and that the Police, support agencies and the local authority were involved.
The landlord has noted that it visited the resident on 20 February 2020. It recorded that:

it informed the resident it had sent a letter to the neighbour and was due to visit the address again with another agency
the resident had asked if the neighbour would be sectioned but the landlord explained this would not happen and a mental health assessment would not be conducted by the landlord but that various agencies were involved
it asked the resident to continue completing diary sheets and report incidents to the emergency services but the resident expressed reservations about doing so
it explained that eviction proceedings were difficult and would not be undertaken lightly
it promised to follow up with the resident in 2 weeks and agreed to make a wellbeing referral (to the wellbeing department within its own organisation)

The landlord issued a Stage 1 complaint response on 24 February 2020. It concluded that the resident had expressed satisfaction following the above visit and confirmed that it had made a wellbeing referral and would continue to monitor the case.
The landlord noted its ASB case file on 28 February 2020 and 2-3, 5, 10, 11 and 17 March 2020 to record that the resident had reported multiple loud banging incidents. In response, the landlord recorded that it had spoken to the local authority on 3 March 2020 (who again had failed to witness noise nuisance) and liaised with support agencies on 11 March 2020.
The ASB case file was closed on 23 March 2020 – evidence seen by this Service showed that support agencies had taken some action on 14 March 2020 and the resident confirmed that it had been quiet in the previous days so the case could be closed.
The landlord opened a new ASB case file on 20 April 2020 in response to noise reports received that day – it described the problem as ‘excessive noise’, logged the matter as a Category B type and issued an action plan to the resident that suggested she complete diary sheets and report incidents to the local authority while the landlord would email the other agencies involved when reports were received. The landlord also recorded that it spoke to the resident, raised the matter with the support agencies and local authority and issued diary sheets on the day it opened the case. The local authority advised that it was not presently undertaking visits due to COVID-19 and the support agencies offered an update on the neighbour.
The resident continued to submit noise incident reports to the landlord between 21 April 2020 and 24 April 2020 – this led to the landlord again raising the matter with the support agencies on 24 April 2020. The case was subsequently closed on 28 April 2020 as it became apparent that the neighbour was temporarily away from the property.
The ASB case file was re-opened on 14 May 2020 due to a further incident report from the resident. The landlord liaised with the support agencies and noted that it had obtained advice from its own tenancy enforcement team. A case review was noted the same day that showed the landlord had considered that mediation was not presently feasible due to non-engagement. Based on evidence seen by this Service, the landlord and support agencies discussed options to resolve the situation.
The landlord recorded that the resident contacted it again on 14 May 2020 to report that she had been woken up in the early hours of the morning and she wished for the neighbour to be evicted. The resident explained she had her own health issues that were being impacted by the ASB so the landlord was failing to protect her. The landlord wrote to the resident on the same day. Its Wellbeing Team followed up a telephone call it had with the resident that day. The letter showed the landlord had assessed the support already provided to the resident for her health concerns, signposted the resident to therapy and pain relief services and offered to assist further if the resident required in future.
The resident made further incident reports to the landlord on 18 May 2020. This led to the landlord speaking to the resident and raising the matter with support agencies again. It made attempts to maintain contact with the resident between 26-29 May 2020. The resident replied on 29 May 2020 to advise that she last recorded an incident on 18 May 2020 but mentioned this could be due to hearing issues she had experienced.
The landlord made a note on 2 June 2020 to show that the resident had contacted it and stated there were loud banging noises on 31 May 2020 and 1 June 2020 but the Police had not attended. The resident stated there had been five more noises of this type in the early hours of 2 June 2020 followed by shouting. The landlord passed these reports on to the local authority and support agencies on the same day. It also acknowledged the resident’s reports and advised her it was not possible for it to rapidly evict the neighbour.
The landlord noted that it spoke to the resident on 3 June 2020 and confirmed the ASB case was still open. A follow up call was recorded on 5 June 2020 when the resident advised the noise had reduced. Further contact was recorded on 9 June 2020 when it is noted that the resident had heard noise on 6 June 2020 but nothing since.
The landlord and resident exchanged texts on 12-13 June 2020 when the resident stated she had heard some noise the previous weekend but her hearing meant that she would not be aware of noises.
The resident made a report on 15 June 2020 that there had been screaming and shouting from the neighbour over the previous ten minutes. Loud impact sounds were also listed as having occurred on 22 occasions during the night of 14-15 June 2020. The landlord raised the reports with the support agencies on the same day.
The landlord recorded a conversation with the resident on 16 June 2020 when it again stated it had explained why eviction proceedings were not presently possible. The resident later wrote to the resident – within this email, she stated that:

she denied informing the landlord that the noise had stopped
the noise had been ongoing for 2 years although she acknowledged she had only reported it earnestly from February 2020
the neighbour had been moved out twice but had returned and the problem remained the same
the main noise issue was the sound of something metallic or wooden being struck against the floor during both day and night (which she stated had been witnessed)

The landlord noted a further conversation with support agencies on 17 June 2020. A complaint escalation form was also sent to the resident by the landlord that day. The resident responded on 22 June 2020 to advise that the matter was having a detrimental impact on her health and to request that the landlord take action to evict her neighbour (based on evidence seen by this Service, the landlord raised the ASB with the neighbour on 18 June 2020, referring to incidents between 21 April 2020 and 15 June 2020).
The landlord issued a Stage 2 complaint response on 23 June 2020. It concluded that:

the ASB reports had been investigated appropriately and were ongoing
it was not reasonable for the resident to ask that her neighbour be evicted
the resident should make further reports if excessive noise occurred but that the local authority had attended in the past and decided the noise was low level ‘living noise’.

The resident wrote to the landlord on 30 June 2020 to state that when the local authority had attended, the noise had reduced so they could not witness the noise but she disagreed with the comments that the noises from the neighbour were ‘living noise’.
The Ombudsman is only able to consider matters which have exhausted the landlord’s complaints procedure (in accordance with paragraph 39(a) of the Scheme). This is so that we can be sure the landlord has had a reasonable opportunity to resolve the issues internally before we intervene. Therefore, this Service cannot make determinations on the handling of new events that have arisen since the complaint exhausted the landlord’s complaints procedure in June 2020. However, evidence has been considered for the period July 2020 to November 2020 to provide further context.
Between July 2020 and November 2020, according to the landlord’s records, the resident reported:

multiple loud banging events occurred throughout July 2020
2 noise incidents in August 2020
1 noise incident each month between September 2020 and November 2020, followed by an allegation of vandalism

In response, the landlord has recorded that it told the resident it would keep the ASB case open and:

advised the resident to report incidents to the local authority
raised the ASB allegations with the neighbour again on 23 July 2020, regarding multiple incidents earlier that month
liaised with the local authority in late July 2020 which informed it that enforcement on grounds of statutory nuisance was unlikely

Assessment and findings

The Ombudsman has a specific role to consider complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
It is not disputed that the resident began to make regular reports about noise nuisance from her neighbour in February 2020. In response to these reports, the landlord recorded taking the following actions within the first week:

Opened an ASB case file under a Category B priority
Liaised with the Police and agencies supporting the alleged perpetrator
Asked the local authority to consider whether there was statutory noise nuisance
Undertook a management review and considered the evidence of the case to determine that co-operation with the support agencies would be the most appropriate course of action

These actions were all reasonable in response to the report of abusive shouting, demonstrated that the landlord considered the circumstances of the case and were in accordance with the landlord’s ASB policies.

There is no evidence that the landlord had a detailed conversation with the resident until 2 weeks after the initial report. However, it did record sending a message to acknowledge the reports within 2 working days as well as speaking to and visiting the resident 2 weeks later. During this contact, it noted that:

it managed the resident’s expectations on the likelihood of eviction proceedings (and sectioning) of her neighbour but advised her it had sent a letter to the neighbour and had visited the block
it explained that consistent reporting of the ASB would assist it nonetheless in building a case history
it considered support it could offer the resident, making a referral for internal wellbeing support and promising to make follow-up contact

These actions demonstrated that the landlord acted in accordance with its own ASB policies by being honest about what it was realistically able to do and considering any support it could offer the resident.

Following the visit to the resident, the landlord took the following steps:

maintained contact with the resident and recorded reported incidents
liaised with various agencies to ensure they were aware of what the resident was reporting and discussed potential solutions with them
closed the case, following discussion with the resident, when the situation improved in March 2020

These actions demonstrated that the landlord worked pro-actively with the resident and support agencies to try to obtain a resolution and it only closed the case once this was achieved – these were appropriate actions and in accordance with the landlord’s policies.

When the resident reported noise recurred in April 2020, the landlord opened a new ASB case file. It again categorised the case, made recommendations to the resident as to how she should report new incidents and liaised with other agencies to ensure evidence was collected and shared. These were all appropriate actions and in accordance with the landlord’s ASB policy.
When the situation improved in late April 2020, the landlord closed the ASB case file temporarily but re-opened it in May 2020 when new reports were received – these actions were reasonable and evidence that the landlord took a flexible approach and was willing to quickly re-commence actions as and when required.
In the following months, the landlord has evidence that it:

maintained pro-active contact with the resident, including a telephone call and letter from its wellbeing team in May 2020 that demonstrated it had conversations with her around care and support
considered the options of tenancy enforcement and mediation
liaised with other agencies about options to resolve the noise nuisance, including sharing evidence with them
raised the matter with the resident’s neighbour
advised the resident on a couple of occasions that eviction proceedings against the neighbour were not presently an option

These actions were again reasonable given the circumstances of the case and in line with the landlord’s ASB policies as it explored early interventions, considered support it could offer the resident and liaised with other agencies to work towards a resolution.

The evidence seen by this Service indicates that this situation has been distressing for the resident – she has reported being kept awake by her neighbour and the screaming and loud banging having impacted her enjoyment of her home. It is acknowledged that this matter will have been a source of great frustration, particularly given her own health concerns. However, a landlord has to demonstrate it has taken an evidence-based and proportionate approach and the landlord’s ASB policy makes it clear that there are cases where legal action is not immediately appropriate.
The resident has asked the landlord on a few occasions for it to pursue enforcement action and evict her neighbour. However, it is relevant that the landlord was not in a position to provide this outcome as a decision to take possession of a property can only be made through a court of law. Further, legal action, such as eviction, cannot usually be undertaken except as a last resort where all other efforts at resolution have failed, and where a robust case has been built to present to the courts. Building a robust case requires a range of evidence to be obtained such as the landlord attempted in this case. A landlord would need to prove to the courts that it had tried to resolve matters with less drastic methods in order to pursue an eviction, particularly if the alleged perpetrator is vulnerable. Despite the impact the ASB may have been having on the resident, it was therefore not unreasonable that the landlord has not pursued legal action in this case and it has explained to the resident that eviction was an unlikely outcome.
In summary, the landlord’s actions in response to the resident’s allegations of ASB were appropriate and in line with its policies and procedures. They also reflect the Ombudsman’s experience of similar cases across the social housing sector. It collected and retained reports of ASB, gave accurate advice to the resident while maintaining contact with her, considered intervention options open to it, raised the ASB concerns with the alleged perpetrator and took a multi-agency approach to the problem by making pro-active contact with the Police, local authority and support agencies. This approach has assisted on a couple of occasions in reducing the noise nuisance but the problem is ongoing and still impacting the resident so the landlord has kept its ASB case file open.

Determination

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

Reasons

The range of actions taken by the landlord in response to the resident’s ASB reports were appropriate. There were no significant failings by it in its handling of the reports and it has evidenced that it took proportionate steps to investigate and address ASB.

Recommendations

The landlord to take the following action within 4 weeks of the date of this report:

Write to the resident to confirm the present status of its ASB case file and update her on its action plan
Speak to the resident to obtain an updated understanding of the present status of the noise nuisance and check if it can offer any further support to her