Wakefield And District Housing Limited (202110047)

REPORT

COMPLAINT 202110047

Wakefield And District Housing Limited

27 January 2022

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:
1. reports of noise nuisance by a neighbour.
2. request that it rehouse him or provide soundproofing; and
3. Request for support with his mental health and wellbeing.

Background and summary of events

The resident has reported noise nuisance from his neighbour’s property since he moved into his home in October 2019. Considering the timescales involved in this case, and the availability of evidence, this Service will consider the landlord’s handling of the reports made from September 2020 onwards, and, more specifically, its handling of the formal complaint in May 2021. This is in line with the Housing Ombudsman Scheme (which sets out the rules governing our service). Paragraph 39(e) of the Scheme says the Ombudsman will not consider complaints about matters which were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising;
In September 2020 the landlord advised the resident that it was looking to send a letter from its legal team. However, this does not appear to have happened and the landlord instead offered mediation and encouraging the resident to submit evidence of the noise.
In November 2020 the resident reported several incidents of noise nuisance to the landlord, in particular loud music, from his neighbour. He also submitted noise recordings and diary sheets.
The local authority’s Environmental Health department (environmental health) arranged to install noise monitoring equipment on 25 November 2020.The noise monitoring equipment was removed on 2 December 2020 and, while some music could be heard, it would not be considered a statutory noise nuisance. The landlord agreed to meet at the properties on to do a sound level setting exercise; however, the appointment for 15 December 2020 was cancelled by the neighbour and no further visit could be arranged. The landlord asked the resident to continue to keep diary sheets and use a noise recording app.
On 16 December 2020, environmental health wrote to the resident to explain that it could not take legal action at the time based on the evidence available. Following further contact from the resident, who continued to submit noise recordings, the landlord sought further legal advice. It informed the resident on 23 December 2020 that it needed more evidence because noise app recordings were not always received well in court. It said it would put him on the waiting list for ‘DAT’ (digital audio tape) and, as the noise was usually through the day, he would need to contact the landlord’s office for an officer to come and witness the noise when it occurred. The resident advised that it had been quiet for a few days.
The resident reported further noise in January 2021 and, on occasions, loud music could be heard by the landlord in his noise recordings, but this was not witnessed from the neighbour’s property when an operative attended. On 19 January 2021 the landlord spoke with the resident’s wellbeing worker, who advised that they had closed the resident’s case in November 2020 and the resident had been referred to different agencies.
The resident continued to report noise nuisance in late January and early February 2021. The landlord noted on 10 February 2021 that, due to the long-standing nature of the issue and the music appearing to be during the daytime and not lasting for long periods of time, it needed to liaise with its legal team.
On 28 February 2021 the resident reported incidents of noise nuisance from that week to the landlord, in particular his neighbour playing loud music in the morning. The resident said he used the noise app and logged the incidents on diary sheets he received from environmental health. He asked if the landlord would consider installing soundproofing to the property.
On 2 March 2021 the resident reported further loud music, and other antisocial behaviour from the neighbour. The landlord subsequently visited but did not witness loud music or any other antisocial behaviour. It spoke with the resident, who said that the incidents were weekly, and it informed him that the music was during the day and not classed as a statutory noise nuisance. The landlord advised it would close the ASB case and asked the resident to contact it if he had any further evidence of his reports.
The resident reported further loud music on 26 March 2021 from his neighbour’s property during the day.
On 31 March 2021 the landlord completed an antisocial behaviour (ASB) interview, risk assessment, and action plan with the resident. It noted that it would discuss the reports of noise nuisance with the neighbour. The landlord detailed the effect that the resident reported that the matter had on his mental health. No referrals for support were agreed at the time, but the landlord noted that the matter had a moderate impact on the resident. The landlord attempted to contact the neighbour on the same day.
On 6 April 2021 the landlord spoke with the neighbour, who denied making excessive noise. The landlord provided the neighbour with advice on limiting the noise he made. The landlord offered mediation but the neighbour declined to participate in this.
The landlord visited the resident, who asked for information on moving home, on 13 April 2021. It advised him that he would need to register with a property bidding scheme and he could also use a mutual exchange service. The landlord noted that the resident advised that the noise was not every day, and sometimes things would be quiet for days, and it informed him to continue utilising the noise app and diary sheets. It also noted that the resident was aware that environmental health would be installing noise monitoring equipment in late April 2021, and it informed him that evidence of his reports needed to be collected. Finally, the landlord confirmed that it would refer him to an out-of-hours service; however, at the time this service was only doing telephone calls and not visiting properties at that time because of coronavirus restrictions.
On 20 April 2021 the landlord wrote to the resident’s neighbour regarding the reports and gave a tenancy warning. It also wrote to the resident to confirm it had done so.
On 30 April 2021 the resident advised the landlord that things had been quiet since environmental health installed noise monitoring equipment on 27 April 2021. Environmental health confirmed this on 4 May 2021 and subsequently closed their case, advising that there was no evidence that the neighbour was causing a persistent noise nuisance for which it could take action and that the resident’s diary sheets confirmed this.
On 6 May 2021 the resident provided the landlord his completed noise log sheets and submitted a noise recording. He said the loud music started after a couple of weeks and he was waiting for the property bidding scheme to be in contact regarding his application, and a therapist note to assist his move. The resident continued to provide the landlord his completed diary sheets.
The resident submitted a complaints form to the landlord on 14 May 2021, asking it to take further action against his neighbour for noise nuisance and detailing the effect that the noise nuisance had on his mental health.
On 17 May 2021 the landlord wrote to the resident’s neighbour to confirm it had received noise recordings of loud music coming from the neighbour’s property and gave him a further tenancy warning.
The landlord spoke with the resident on 20 May 2021 to discuss recent incidents and advised that it would not be able to take enforcement action based on the information provided at the time. It confirmed that it would continue to monitor incidents to see if they were more frequently or at times of day it would class as intrusive. It confirmed it would be happy to explore mediation again but, if both parties refused and no further evidence was gathered, it would recommend that the ASB case was closed.
In the resident’s formal complaint, dated 20 May 2021, he complained that the landlord was not willing to act in relation to noise nuisance and was not considering the whole picture when dealing with his reports. The landlord acknowledged the complaint on 21 May 2021.
The landlord logged on 25 May 2021 that it received a further noise app recording from the resident. It said that it offered both parties mediation, but the neighbour refused it. The landlord also said it visited neighbours in the block and managed to speak to two (neighbours) who said that there were no issues with noise and it left a contact card for the other neighbours.
On 25 May 2021 the resident reported that his neighbour had started banging on the walls daily to harass him. The landlord discussed the resident’s reports with him and advised that it may speak with the neighbour again and consider a letter before action based on the noise nuisance. The resident confirmed that he would be happy with the landlord initiating legal action against his neighbour, and that he wanted the landlord to raise a formal stage one complaint.
The resident continued to submit noise recordings of banging and music.
On 26 May 2021 the resident completed an application for special needs re-housing and the landlord visited the neighbour’s property to post an appointment letter. The landlord did not witness any noise nuisance during this visit. The landlord spoke with the neighbour on the following day, who denied the allegations and made counter allegations against the resident.
On 28 May 2021 the landlord completed a wellbeing referral form with the resident.
The landlord visited the neighbour on 28 May 2021 to complete a sound level check. The neighbour agreed not to use bass when listening to music and television and declined mediation. The landlord advised that if complaints of noise from the neighbour’s property continued, it may take further action against their tenancy.
The resident continued to report noise nuisance, and the landlord encouraged the resident to call at the time of the noise during the day so it could witness the noise. The resident subsequently called at the time of an incident on 3 June 2021, and an officer attended and witnessed the use of bass. The officer reported back to the landlord that they considered the noise they witnessed to be noise nuisance.
On 4 June the landlord wrote to the resident regarding support and his banding for rehousing.
On 9 June 2021 the landlord wrote to the resident to confirm that it would be sending a formal warning letter to the neighbour, after witnessing the noise on 3 June 2021. The resident confirmed that he had not heard further noise since 1 June 2021.
The landlord delivered a warning letter to the neighbour on 11 June 2021.
In the landlord’s stage one complaint response, dated 14 June 2021. The landlord gave a detailed timeline of events and acknowledged that it failed to maintain regular contact with the resident and keep him updated. It found that it did not manage the resident’s expectations of the requirements for evidence and timescales involved in taking enforcement action. It confirmed that, while it completed an action plan, it did not agree timescales for contact with the resident and there were substantial delays of up to a month in between contacts with the resident. Additionally, the landlord confirmed that in September 2020 it indicated that it would be serving a “letter before action” and failed to do this, despite receiving further noise app recordings where loud music could be heard. The landlord advised that it had a limited number of interactions with the alleged perpetrator, which was not in accordance with its procedure. It apologised for the service failures identified and offered the resident £100 compensation. The landlord confirmed it endeavoured to keep the resident fully updated on progress to ensure it managed his expectations going forward.
In his stage two escalation request, dated 15 June 2021, the resident explained that he remained unhappy because the landlord did not acknowledge the mental health issues that he expressed throughout his ASB reports. He said he needed the landlord to move him to a “quiet, better quality, and more enjoyable environment” due to the loud noise impacting his mental health but he had not had any support with moving property. The resident also said the landlord had not: considered the time and effort he spent on reporting ASB and gathering evidence, taken his reports seriously, or treat him fairly.
Following a telephone conversation with the resident on 17 June 2021, the landlord confirmed it would respond to the complaint within 20 working days of receipt. It explained that, even if it upheld the complaint, it was unlikely it could offer the resolution the resident sought as it may be disproportionate. The landlord reiterated that to take formal action against the neighbour for noise nuisance or for the landlord to be able to rehouse the resident because of ASB, it would require a substantial amount of evidence to confirm a breach of tenancy. It explained how the resident may apply for additional priority for rehousing on grounds of mental health with the local authority, if he felt his mental health was suffering because of his accommodation.
On 17 and 18 June 2021 the landlord wrote to the resident’s neighbour with an appointment to visit their property to discuss the ongoing reports of loud music from his property. It spoke with the resident that day and he reported loud music. The landlord advised that it would visit him to witness the music and, when it did, it noted that the music was audible but not intrusive and would not interfere with the resident watching his television. The landlord confirmed it would listen to the resident’s recording and asked him to fill in diary sheets with the times of the different frequencies of music. It also noted that it asked him what support it could offer him as he already had a wellbeing referral and he said he wanted support to help him move. The landlord noted that the resident was being referred for a social worker to help him with letters and forms to move from the property.
The landlord completed a healthy living assessment and support plan with the resident on 21 June 2021. Following this assessment it scored the resident as “no risk” (successfully manages without the need for formal intervention or support or has others providing support.)
On 5 and 12 July 2021 the landlord wrote to the resident to extend the timeframe for its stage two complaint response and explained this was due to it seeking further information.
In the landlord’s final complaint response of 23 July 2021, it, again, provided a detailed timeline of events. The landlord concluded that it did not take appropriate nor timely action in relation to the resident’s reports of noise nuisance. It acknowledged that: there were times where it did not keep in regular contact with the resident and update him on the actions it was taking. The landlord also acknowledged that on 14 May 2021 the resident had attempted to complain however, this was not raised as a complaint through the landlord’s internal complaints procedure. Furthermore, the landlord said it had not adequately managed the resident’s expectations and it should have explained to him the evidential difficulties in respect of noise app recordings, so he was aware of the need for the noise to be independently witnessed. It apologised for the service failures identified.
Moving forward the landlord said it believed there was sufficient evidence to consider a breach of tenancy against the neighbour and, while formal warning letters were appropriate and proportionate at the time they were issued, it now was looking into sending the neighbour a ‘letter before action’. The landlord explained that this was the first step in the legal process for a breach of tenancy. It advised that, to evict a person from their home, the courts must satisfy themselves that there had been a serious breach of tenancy, and this was why the requirement for evidence was important. Therefore, it asked the resident to continue to work with it to allow it to independently witness the noise, should it continue, following it sending the letter before action.
The landlord concluded that it had offered the resident relevant help and support with his mental health and wellbeing, as well as alternative services to try to assist him in resolving issues with his neighbour. However, it acknowledged that the situation with the resident’s neighbour had an impact on him, and it could have acted sooner to help stop the nuisance the resident was experiencing.
Finally, the landlord explained that it would only consider rehousing residents where there was serious ASB, and the decision was based on the risk posed to the resident. It said it would not generally award a priority move where a situation involved noise nuisance, as it would expect the parties to try to resolve the matter between themselves or through tenancy management. It also explained that, while its records indicated that the resident asked the landlord to soundproof his home, this was not a service it provided. The landlord confirmed it provided the resident appropriate advice about being rehoused and it did not consider an offer of rehousing or soundproofing to be appropriate or proportionate action. However, it believed it should have taken more timely action in respect of serving the neighbour with a letter before action. The landlord apologised for the impact the situation had on the resident and his enjoyment of his home and offered him £400 compensation to reflect this.

Assessment and findings

The landlord’s obligations

The landlord’s complaints policy and procedure allows for an informal stage, where the landlord will seek information on the complaint, and ask the resident if they are happy to allow the landlord to try to resolve their complaint informally and give them an outcome within seven working days.
After the informal stage, the landlord has a two stage formal complaints procedure. It will log and acknowledge stage one complaints within five working days. The landlord will respond to stage one complaints within ten working days from receipt of the complaint.
If residents remain dissatisfied, they can request to escalate to stage two of the landlord’s complaints procedure and the landlord will respond within 20 working days of the complaint being received.
The landlord’s ASB procedure gives loud music as an example of ASB. The landlord is expected to carry out a risk assessment following an initial ASB report. The landlord should interview the reporter of the ASB reporter within five working days (or one working day in cases of serious ASB or where there is a heightened risk due to the vulnerability of the victim) of receiving the ASB complaint. The landlord will complete an action plan with the resident and, where appropriate, issue diary record sheets. The landlord should interview the perpetrator within two working days of interviewing the reporter.
The landlord will write to the alleged perpetrator within seven working days of the interview advising them of the outcome of the investigation. The letter will refer, where appropriate, to the tenancy conditions which may have been breached and warn them of the consequences should there be any repeat of such behaviour. Following the interview with the perpetrator, the landlord should contact the reporter and provide details of the general outcome.
The landlord may decide to close a case based on the following:
1. the case has been resolved successfully without the need for legal action;
2. the threat of legal action or the presence of an injunction or suspended possession order has resolved the case;
3. the perpetrator has been evicted from their home or given up possession
4. the complaint is shown to be unfounded; or
5. all options have been considered and tried but there is no realistic likelihood of resolving the matter.
Before closing a case, the landlord must explain the reason for doing so to the reporter.
The landlord offers a mental health and wellbeing service to residents, in line with the mental health and wellbeing service procedure.
In line with the landlord’s choice-based lettings policy, all customers must complete a membership form to join its homesearch lettings scheme. Other registered providers of social housing advertise their properties through the landlord’s homesearch lettings scheme. Assistance will be provided to those who may need help in completing the form. Members will be placed in a band, which is appropriate to their current circumstances and housing need.

The landlord’s handling of the resident’s reports of noise nuisance by a neighbour.

The Ombudsman understands that the resident has experienced significant distress as a result of the situation involving his property. While we have not disregarded the effect this has had on the resident, it is important to be aware that it is not the Ombudsman’s role to establish whether someone has committed ASB but rather we will assess the landlord’s handling of the resident’s ASB reports. Rather, we will consider whether the landlord’s response was fair and reasonable in view of all the circumstances, taking into account its own internal policies and industry best practice.
Landlords can only take formal action against tenants for noise nuisance and ASB such as acceptable behaviour orders, court injunctions or eviction if there is sufficient evidence to show that formal action is appropriate. In order to secure an injunction or eviction, the landlord would have to go to court and it would be expected to show the court that the ASB was severe and persistent and (except in the most extreme cases) reasonable efforts had been made to resolve the issues informally through mediation, tenancy warnings, acceptable behaviour orders etc. before the landlord pursued court action. The landlord should also work with other agencies such as the local authority where appropriate to assist with gathering evidence to support any legal action.
It was therefore reasonable for the landlord to interview the resident and the neighbour and encourage the resident to complete diary entries and use a noise recording app to gather evidence of the noise nuisance. The landlord also liaised with environmental health which arranged for noise recording equipment to be installed in the resident’s property. It was also appropriate for the landlord to offer mediation as this can be helpful in resolving noise complaints in some cases. Mediation is entirely voluntary and both the resident and his neighbour were entitled to refuse to participate.
The landlord also sought legal advice before ultimately concluding that there was currently insufficient evidence to support legal action at that time. The landlord was entitled to rely on the advice of its legal team and it would not be expected to pursue legal action against their advice.
However, there were some failures, which that landlord has acknowledged, with its handling of the noise reports, namely that it told the resident in September 2020 that it would send the neighbour a ‘letter before action’, but it did not do this at the time, despite the resident making further complaints of noise nuisance in November 2020. The landlord has also acknowledged that it had not communicated with the neighbour as often as it would have expected, or sufficiently managed the resident’s expectations regarding the evidence it would need in order to pursue legal action. The landlord has offered the resident £400 compensation for any distress and inconvenience caused by these failings.
As the landlord has admitted its failings, The Ombudsman’s role is to consider whether the redress it has offered is sufficient to put things right and resolve the resident’s complaint satisfactorily in view of all the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
In this case, the amount of £400 compensation would provide adequate redress for the service failures identified in the Ombudsman’s investigation and is in line with this Service’s remedies guidance (published on our website) which sets out our approach to redress. The remedies guidance suggests awards of between £250 to £700 where there has been considerable service failure or maladministration by the landlord, but there may be no permanent impact on the resident. In this case, while there were service failures which had an impact on the resident, the landlord has identified its failures and since taken reasonable steps to manage the ASB in line with its ASB policy and procedure.

The complaint about the landlord’s response to the resident’s request that it rehouse him or provide soundproofing.

The Ombudsman understands the resident’s wish to have soundproofing installed in his property as this may reduce noise from his neighbour. The landlord has explained that it is not a service that it offers. In line with the tenancy agreement, the landlord is expected to maintain the resident’s property and keep it in a good state of repair. However, it is not required to make improvements to the property and adding soundproofing would be regarded as an improvement. Therefore, the landlord is not obliged to offer this.
In line with the landlord’s lettings policy, management transfers will generally only be offered in exceptional circumstances. In cases of ASB, management moves should be considered where there is an immediate risk to the safety of the resident if they remain in their current property. This would often be supported by evidence from the police. In this case, whilst the resident has clearly experienced significant distress as a result of his neighbour’s actions, it was reasonable for the landlord to conclude that he would not qualify for a management transfer. The evidence demonstrates that the landlord has provided appropriate advice to the resident regarding how he may apply to move property, in line with its choice-based lettings policy.

The level of support offered by the landlord in relation to the resident’s mental health and wellbeing.

The Ombudsman does not doubt the resident’s comments regarding his medical conditions, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. However, as set out above, consideration has been given to the general distress and inconvenience which the situation has caused the resident. The Ombudsman has also considered the landlord’s response to the resident’s concerns about his health, as explained in more detail below.
The resident may be able to make a personal injury claim against the landlord if he considers that his health has been affected by its actions or inaction. This is a legal process and the resident should seek independent legal advice if he wants to pursue this option. The Ombudsman is unable to give legal advice and therefore we cannot comment on this matter further.
The evidence demonstrates that, where the resident has referred to the impact that the noise has had on his mental health and wellbeing, the landlord has offered to make a referral to its wellbeing team, in line with its mental health and wellbeing service procedure as well as checking that the resident had appropriate support available. For example, on 19 January 2021 the landlord spoke with the resident’s wellbeing worker, who advised that they had closed the resident’s case in November 2020 and the resident had been referred to different agencies. Furthermore, the evidence demonstrates that the landlord has considered the impact that the noise had on the resident’s health and wellbeing, when carrying out a risk assessment as part of its ASB investigation. Therefore, the landlord has responded appropriately to the resident’s concerns about his health.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to our investigation which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of the resident’s reports of noise nuisance by a neighbour.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request that it rehouse him or provide soundproofing.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in the level of support it offered in relation to the resident’s mental health and wellbeing.

Reasons

There were some failures in the landlord’s handling of the resident’s reports of noise nuisance. However, the landlord has taken reasonable steps to acknowledge these failures and provide appropriate redress, in line with this Service’s remedies guidance. The landlord has also provided a reasonable explanation concerning its refusal to install soundproofing or rehouse the resident, in line with its choice-based lettings policy. It provided appropriate advice on how the resident may apply to move to another property. The landlord has taken reasonable steps, in line with its mental health and wellbeing service procedure, to refer the resident for the appropriate support for his mental health and wellbeing.