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Waverley Borough Council (202300070)

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REPORT

COMPLAINT 202300070

Waverley Borough Council

26 March 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 the landlord’s handling of:
    1. Reports of noise nuisance from a neighbouring property.
    2. The associated complaint.

Background

  1. The resident is a leaseholder of the property, and the landlord is the freeholder. The property is a flat within a block of flats.
  2. On 15 February 2021, the resident emailed the landlord and stated that yet again she had been woken by running and jumping in the bedroom. She stated that it was happening nearly every day.
  3. On 28 November 2021, the resident submitted a complaint to the landlord. She stated that the noise levels from her neighbour had gradually been increasing over time and had reported some of them to the landlord but had not received a reply. The resident also stated there was faeces on her path which she stated was likely from her neighbour’s partner.
  4. The landlord confirmed with the Ombudsman that it did not issue a stage one complaint response to the resident.
  5. On 18 March 2022, the resident escalated her complaint. She stated that she would like to complain about that as a leaseholder, she is not recognised as a victim of anti-social behaviour (ASB). She explained that she had been subject to ASB for far too long, and it had impacted her and her family, including her daughter, who had been self-harming herself. The resident also stated that over the last 6 years she had repeatedly asked the landlord to help her pay for sound proofing at her property. She explained that because the landlord did not help her with this, she had taken out a £7,500 loan for the installation of sound proofing.
  6. The landlord provided its stage 2 complaint response to the resident on 6 April 2022. It explained that dealing with anti-social behaviour can be very challenging, and its officers had been focused on working with her neighbour to resolve the issue. The landlord also stated that its recent community trigger enabled her problems to be considered in some detail and at a meeting on 10 March 2022 the panel agreed an action plan which was shared with the resident. It stated that it had issued a tenancy warning notice to the neighbour which included a noise management plan and would shortly be agreeing an acceptable behaviour contract with the tenant. The landlord also explained that it had nominated the resident to its community harm and risk management group and also asked its community safety officer to provide her with other sources of support including mind matters and occupational health. In addition, it explained the resident was aware that her neighbour had now been awarded the highest priority for a move to a more suitable property, and it anticipated that they would soon be successful in finding a new home. The landlord also stated that it was not under any legal obligation to install sound insulation in the properties it owns, and while in the past it has carried out such work in some of its properties, it no longer had the resources to do this.
  7. The resident remained dissatisfied with the landlord’s response and submitted her complaint to the Ombudsman. She stated that her desired outcome was to receive compensation for the distress and inconvenience caused and to receive a reimbursement for the sound proofing she paid to be installed at her property.

Assessment and findings

Reports of noise nuisance from a neighbouring property.

Scope of investigation

  1. The resident raised as part of her complaint, that she experienced noise nuisance from her neighbour for around 6 years. The Ombudsman acknowledges that this is a longstanding issue for the resident. However, there is no evidence of a formal complaint being raised until November 2021. In addition, the most recent report of noise nuisance prior to the resident submitting a complaint to the landlord was February 2021. In view of the time periods involved in this case and considering the availability and reliability of evidence, this report will consider specific events from around February 2021 onwards. This is in line with paragraph 42(c) of the Housing Ombudsman Scheme (available on our website), which sets out our service’s remit. The Scheme explains that this service may not investigate complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, normally within 6 months of the matters arising.

Policies and procedures

  1. The landlord’s anti-social behaviour (ASB) policy defines anti-social behaviour as:
    1. Conduct that has caused, or is likely to cause, harassment, alarm, or distress to any person.
    2. Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or
    3. Conduct capable of causing housing-related nuisance or annoyance to a person.
  2. The policy explains that domestic noise is everyday living noise within a household from normal activities. It states that examples of domestic noise which do not constitute ASB include but are not limited to:
    1. Household appliances
    2. Footfall
    3. Babies crying
    4. General talking
    5. Doors and cupboards
    6. Noise transference due to poor insulation
  3. The ASB policy also states that instances of noise from household appliances are generally excluded. However, where the noise is too loud or amplified, this may be considered ASB by environmental health. It states that this could be measured via a noise app or with noise measuring equipment provided by the environmental health team.
  4. The landlord’s ASB policy also includes information about the management of ASB. It states that it will not accept any nuisance or anti-social behaviour and the landlord will use whichever tool it considers reasonable and proportionate to the circumstances, which may include mediation, an acceptable behaviour order, a demotion order, injunctions, exclusion orders or a possession order.
  5. Finally, the policy also includes information about a community trigger. It explains that if a resident has been a victim of ASB and does not feel their concerns have been addressed by the agency they had reported them to, they can apply for a community trigger providing they meet certain criteria. It also states that community trigger is the request to start a review process that brings together a multi-agency group to examine what action has been taken and determine whether additional action should be taken.

Assessment

  1. The resident reported noise nuisance to the landlord on 15 February 2021 and initially submitted a complaint to the landlord about the noise nuisance on 28 November 2021. However, the Ombudsman has noted from the landlord’s records for contextual reasons that the resident has previously reported issues with noise nuisance from her neighbour for around 6 years. In response to the historical reports, the landlord asked the resident to complete diary sheets to log the noise and offered the resident and her neighbour mediation. In addition, the resident also downloaded a noise application and sent recordings of the noise to the landlord. The landlord also passed the details of the noise reports to its environmental health team to assess.
  2. Following, the resident’s noise report in February 2021. The landlord reviewed further noise recordings which the resident recorded on the noise application between April and May 2021. From reviewing the records, the landlord stated that it believed the noise was too frequent and too loud to be acceptable. However, it stated it needed to discuss the circumstances. The landlord also considered whether it should install noise recording equipment at the resident’s property but concluded that this would not add any further value as the noise equipment would record the same noise as the noise application was recording. The landlord acted reasonably by reviewing and listening to multiple noise recordings provided by the resident to analyse the level of the noise. In addition, it’s decision not to install noise recording equipment at the property was appropriate as it had already gathered a sufficient number of recordings from the noise application recordings.
  3. On 13 October 2021, the landlord’s housing officer visited the resident’s neighbour to discuss the ongoing noise nuisance. The landlord visiting the resident’s neighbour was an appropriate step to help manage the reported ASB, in line with the ASB policy.
  4. In addition, following the resident’s complaint submission on 28 November 2021, the landlord called the resident’s neighbour and spoke to them in December 2021 regarding the allegations regarding the faeces on the path. This was also a reasonable step to take to investigate the issue and gather further information about the incident.

 

  1. On 3 February 2022, the resident contacted the landlord for an update on the management of the reported ASB. The landlord explained that her neighbour had been accepted to move to a more suitable property, and it stated that the property near the resident’s would be let as a ‘sensitive let’ after the resident’s neighbour moves. It also explained that there had been no criminal reports, and the issues were mainly regarding noise. The landlord also agreed to call the resident once a week to update her on the management of the ASB. The landlord responded to the resident’s request for an update appropriately, and its agreement to update the resident weekly showed good practice by the landlord. In addition, the landlord arranging for the resident’s neighbour to move to another property was a reasonable solution to resolve the noise nuisance that the resident was experiencing.
  2. The landlord also submitted a referral for mediation on 3 February 2022 for both the resident and her neighbour. It is unclear whether the mediation took place between the resident and her neighbour. However, mediation is optional; therefore, it was entirely the resident and the neighbour’s decision whether they accepted the mediation offer. This service recognises that it was reasonable for the landlord to offer mediation to the resident as mediation can be an effective tool to resolve disputes between neighbours in some cases.
  3. On 10 February 2022, the resident submitted a community trigger application to the landlord. In the application she referred to the previous reported ASB incidents and stated that she had not slept for 6 days. The landlord handled the resident’s community trigger application in line with its ASB policy and assessed the application. It confirmed that the resident’s application met the threshold for a community trigger due to the level of incidents which had occurred 6 months previously to the resident submitting her community trigger application.
  4. The landlord and the panel held a meeting on 10 March 2022 to discuss the resident’s community trigger application and draw up an action plan to address the ASB issues. One of the key actions agreed in the meeting was to issue a tenancy warning letter to the resident’s neighbour. The landlord also wrote to the resident on 15 March 2022 about the outcome of the community trigger panel meeting and the actions it would be carrying out to support her. Some of these actions included:
    1. The landlord made the resident aware of her employer’s employee assistance programme, which included 6 free counselling sessions.
    2. The landlord informed the resident that it could look into a youth victim programme for her if her daughter was not already receiving support for the impact of the ASB on her. In addition, it also made the resident aware of mental health support, which was available locally.
    3. The landlord nominated the resident as a victim of ASB for its community harm and risk management meeting, (CHaRMM). It explained that it was a multi-agency group which would monitor the action that was being taken to address the ASB she was experiencing as well as ensuring her wellbeing was considered and protected. It also explained that the neighbour dispute element of her case would be nominated to its neighbour dispute action group (NDAG) which meets every 2 weeks to review all the reports and complaints made by all related parties.
  5. The landlord also confirmed that it would carry out a community panel review meeting 4-6 weeks after the 15 March 2022. The landlord acted correctly in accepting the resident’s community trigger application and creating an action plan to help manage the ASB and support the resident with the impact of the ASB. However, it is evident that some of the actions agreed at the community trigger meeting could have been identified and carried out sooner than they were. As the noise nuisance had been ongoing for a considerable amount of time, it would have been appropriate for the landlord to provide the resident with information about support agencies sooner than it did. In addition, it would have been reasonable for the landlord to consider issuing a tenancy warning to the resident’s neighbour prior to receiving the resident’s community trigger application. As the landlord had previously established from the noise application recordings from April and May 2021, the level and frequency of the noise was unacceptable.
  6. The landlord confirmed in its stage 2 complaint response sent to the resident on 6 April 2022 that it had issued a tenancy warning letter to her neighbour. It also explained that it would be shortly agreeing an acceptable behaviour contract with the tenant. Both of the measures are effective tools to help manage ASB and were also in line with the landlord’s ASB policy.
  7. On 20 April 2022, the landlord held the community trigger panel review meeting. As part of the meeting, the landlord reviewed the progress of the previous agreed actions. It also confirmed that the resident’s neighbour had moved to a new property and the community trigger had been resolved and would be closed. In addition, the landlord stated during the meeting that it would contact the resident in 6 months to see how she was coping with the new tenant moving into the property and ensure that she was not experiencing similar issues. The landlord also sent a letter to the resident on 22 April 2022 informing her that the community trigger had been closed.
  8. After the resident’s neighbour moved out of the property in April 2022. The landlord confirmed in its stage 2 complaint response that it would advertise the property as a ‘sensitive’ let and stated that while it would remain family accommodation it was hoped that any new tenants would have older children who did not have such challenging needs. The property was let to a new tenant with children older than the resident’s previous neighbour’s children. Therefore, the landlord acted reasonably in this instance as it showed it was taking into account the resident’s needs whilst also balancing this against its duty to provide family homes to prospective social housing tenants.
  9. The resident raised as part of her complaint that she had taken out a £7,500 loan to install sound proofing at her property and explained that she had repeatedly asked the landlord to help her pay for the sound proofing. The Ombudsman recognises that it must have been difficult for the resident to deal with the reported noise nuisance, and it is acknowledged that it had a considerable impact on her and her family. However, a landlord does not have a legal obligation to fit improved sound insulation or sound proofing at a resident’s property. The landlord explained this in its stage 2 complaint response and also confirmed that it did not have the resources available to pay for the installation of sound proofing at the resident’s property. Therefore, the Ombudsman believes that the landlord’s response was correct in this instance.
  10. Although the landlord previously confirmed that it did not have the resources to pay for the resident’s sound proofing. The landlord reviewed the resident’s complaint when it sent its file to the Ombudsman and acknowledged that the resident experienced a considerable amount of noise and other anti-social behaviour from her former neighbour. Therefore, it has offered to reimburse the £7500 that the resident paid for the sound proofing installation. It explained that the offer would be on the basis that the resident provides invoices for the sound proofing and its surveyor can inspect the sound proofing at her property to ensure that it meets the necessary standards. It is positive that the landlord has made this offer, but this is above its strict obligations. Therefore, this does not mean that its earlier position was unreasonable because its position has now changed.
  11. The landlord could have managed the reported ASB more effectively by carrying out certain actions sooner than it did, such as the referral to support agencies and the issuing of the tenancy warning to the resident’s neighbour. However, in the Ombudsman’s opinion, the compensation of £7,500 offered by the landlord is reasonable and more than the Ombudsman would have awarded in this case. The amount of compensation offered by the landlord is compliant with the Ombudsman’s Remedies Guidance (published on our website), which sets out the Ombudsman’s approach to compensation. The remedies guidance suggests awards of £1000 or more where there has been a serious failure by the landlord.
  12. The Ombudsman recognises that the landlord identified that the resident had experienced noise nuisance from her neighbour for a considerable amount of time and ultimately offered appropriate redress for this. However, the compensation of £7500 was only recently offered when the landlord sent its file for submission to the Ombudsman in February 2024. It is the Ombudsman’s role to consider the landlord’s handling of complaints through its internal complaints process and in assessing this we consider the reasonableness of any offers made during the complaints process. Where a landlord makes a reasonable offer of compensation after the end of its complaints process, the Ombudsman may make a finding of service failure or maladministration by the landlord as the offer should have been made during the complaints process. In this case, the resident’s neighbour moved to a new property, which resolved the reported ASB concerns. However, considering the offer of £7500 compensation was made to the resident after the complaints process ended and there was no offer of reasonable compensation during the complaints process, there has been a service failure in the landlord’s handling of the resident’s reports of noise nuisance from the above property.

The associated complaint

  1. The Ombudsman’s Complaint Handling Code (the Code) sets out the Ombudsman’s expectations for landlords’ complaint handling practices. The code states that a stage one response should be provided within 10 working days of the complaint. It also explains that a stage 2 response should be provided within 20 working days from the request to escalate the complaint. The landlord’s complaints policy includes the same timescale as the Code for stage one responses. However, it references a 15 working day timescale for providing stage 2 complaint responses.
  2. The Code also states that a landlord must accept a complaint unless there is a valid reason not to do so. In addition, it explains when a complaint is made, it must be acknowledged and logged at stage one of the landlord’s complaint procedure within 5 days of receipt.
  3. The landlord’s complaints policy explains that its complaints procedure has 2 levels, which includes level one and level 2. The code also states that a landlord must only escalate a complaint to stage 2 once it has completed stage one and this must be at the request of the resident.
  4. The Code defines a complaint as an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the organisation, its own staff, or actions on its behalf affecting a resident or group of residents. The landlord’s complaints policy references the same complaint definition as the Code.
  5. The resident emailed the landlord on 28 November 2021, expressing dissatisfaction with the landlord’s handling of reported noise nuisance. She stated that the noise levels from her neighbour had gradually been increasing over time and had reported some of them to the landlord but had not had a reply yet.
  6. The landlord failed to log the resident’s email formally as a complaint, this was unreasonable. The resident expressed dissatisfaction and provided valid complaint points for her email to be considered formally as a complaint. Therefore, the service would have expected the landlord to consider the resident’s email dated 28 November 2021 as a complaint and issue a stage one complaint response in this instance. The landlord did not comply with its own complaints policy and the Code when it failed to issue a stage one complaint response to the resident and delayed the resident from bringing her complaint to the Ombudsman.
  7. The landlord acknowledged and logged the resident’s correspondence dated 18 March 2022 as a complaint and issued a stage 2 complaint response. The Ombudsman would have expected the landlord to issue a stage one complaint response prior to issuing a stage 2 complaint. Its failure to do this has resulted in the landlord not complying with its own complaints policy or the Code. It also resulted in the resident not having the opportunity to challenge the landlord’s complaints decision and request a review.
  8. The Ombudsman recognises that the landlord failing to provide the resident with a stage one complaint response was unreasonable and compensation is due in view of this. As above the compensation offer of £7500 referenced above was only recently offered in the landlord’s file submission sent in February 2024. It is the Ombudsman’s role to consider the landlord’s handling of complaints through its internal complaints process rather than offers made after the complaints process ended. Therefore, there has been a service failure in the landlord’s handling of the associated complaint as it did not make a reasonable offer during the complaints process. However, the landlord’s offer of £7,500 is reasonable, taking into account its failings in complaint handling, in line with the Ombudsman’s remedies guidance. Therefore, the landlord is not required to pay additional compensation for this aspect of the complaint.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the resident’s reports of noise nuisance from the above property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s handling of the associated complaint.

 

 

Orders

  1. The landlord to pay the resident £7500 compensation it has offered in its correspondence sent to the Ombudsman in February 2024, for its handling of the resident’s reports of noise nuisance from the above property. The resident should provide the landlord with a copy of the invoice for the sound proofing and allow the landlord’s surveyor to inspect the sound proofing installation at her property.
  2. The landlord should comply with the above order within 4 weeks of the date of this report.