Birmingham City Council (201913028)

REPORT

COMPLAINT 201913028

Birmingham City Council

27 May 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s handling of the resident’s reports of anti-social behaviour (ASB).
2. The resident’s reports of discrimination by the landlord against him.
3. The resident’s reports of discrimination by the landlord in relation to the garden maintenance.
4. The landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside the Ombudsman’s jurisdiction.
1. The resident’s reports of discrimination by the landlord in relation to the garden maintenance.
This is because the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
The resident wrote to the service on 20 January 2020 requesting that he amend the complaint to include the landlord’s communications with the resident regarding the shared garden at the property. The role of the Ombudsman is to intervene only when the parties are not able to resolve the complaints between them. While the resident has raised those issues in correspondence with the landlord, the resident has not exhausted the landlord’s internal complaints procedure in relation to that complaint and therefore the landlord has not been given the opportunity to respond.

Background and summary of events

Background

The resident is the secure tenant of the landlord. The tenancy began on 4 April 2016. The resident occupies the ground floor flat in a house converted into two flats. The resident reported he was experiencing excessive and anti-social noise disturbance from the upstairs neighbour.
The resident has reported that he has had suffered mental health issues in the past and that the noise.

Legal and policy framework:

The tenancy agreement stated that the landlord’s residents have the same rights and responsibilities as each other. The landlord would give the resident help and advice if the resident is the victim of ASB and will investigate complaints of ASB. The tenant must not do anything which causes or is likely to cause nuisance to anyone in the local area, nor do anything which interferes with the peace, comfort or convenience of other people living in the local area. A further condition was that the resident must take reasonable steps to prevent noise transferring from their home to any adjoining properties. This may include laying carpets or fitting other floor insulation.
The tenancy agreement classified making loud noise/making noise nuisance because of the use of laminate or wooden flooring in flats above ground level as ASB, where the noise caused a nuisance. Serious ASB included ‘noisy neighbours’, while minor ASB included ‘everyday noises at an unreasonable hour’. In the landlord’s ASB policy, minor ASB included ‘domestic noise’. The tenancy agreement noted (but it is not a condition) that tenants should be considerate, and it would act quickly against tenants who ignored this. The landlord would offer mediation as a way of resolving conflicts. The agreement noted that the landlord may not be able to resolve all concerns but would work with other agencies.

The ASB procedure

Complaints about noise are categorised as ‘serious’, while domestic noise, fly tipping and neighbour dispute are categorised as minor.
The landlord would assess the vulnerability of the complainant. If the complaint is not ASB, advice should be given and if appropriate, signpost the complainant to the appropriate service.
The investigation would include investigating the backgrounds of all parties. The landlord would interview the complainant and agree an action plan which would be put in writing and reviewed if appropriate and would include a plan for frequency and method of contact. If the complainant agreed, the alleged perpetrator should be interviewed. All interviews should be recorded in writing and it is good practice to ask those interviewees to sign the notes as a true record. Noise–monitoring equipment could be used. If evidence were substantiated that ASB has taken place, a decision about what the appropriate action is to be taken. Any action taken should be to help change the perpetrator’s behaviour. The landlord could issue warnings or offer mediation. The procedure set out a range of tools, such as ABC/appropriate referrals/mediation/warnings and included offering support, including safeguarding. Each complaint would be monitored by keeping in regular contact with the complainant.
If a complaint investigation is concluded, contact will be made with the complainant and closure should be agreed. All closures should be confirmed in writing, including a summary of the actions taken to resolve the complaint.

The complaints procedure

The complaints procedure stated that the landlord will acknowledge and give a reference. A complaint about a specific officer would be dealt with by a manager. A response would be provided within 15 working days. The resident could request a review and the landlord would reply within 20 working days. If the resident were not “happy”, he could refer the matter to the Local Government & Social Care Ombudsman (LGSCO).

The Equality Act 2010

Section 35 of the Equality Act 2010 states that person (A) who manages premises must not discriminate against a person (B) who occupies the premises. (C) by subjecting B to any other detriment.
Section 20 of the same act imposes a duty to make reasonable adjustments as follows:
1. Where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to take to avoid the disadvantage.
2. Where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take, to provide the auxiliary aid.

Chronology

The resident submitted diary logs to the landlord from February 2019 onwards in relation to a neighbour next door, and both the current and previous neighbours upstairs. The resident’s reports had been ongoing for a significant period. The resident’s complaint which is the subject of this investigation, only related to the neighbour upstairs.
The upstairs neighbour moved in to the flat above the resident on 24 June 2019.
On 21 July 2019, the resident made a report about the neighbour upstairs which related to noise during the early hours of the morning. The resident continued to submit diary complaints in relation to the neighbour upstairs, which became less frequent in August 2019 and September 2019.
Following seven reports of noise over a weekend, including banging doors, stomping/conversations till 3am, on 29 July 2019, the landlord tried to contact the resident and offered him an appointment for the 30 July 2019. The landlord duly attended the property on 30 July 2019, but the resident did not provide access because, the resident later explained later, he was tired due to his sleep having been disturbed by the noise from upstairs.
The landlord attended the resident on 7 August 2019. According to the landlord’s note of the meeting, the landlord suggested that the resident kept a record by way of a diary of his reports, rather than email the landlord. The landlord said that it would contact the neighbour in relation to the noise reports. The resident considered the neighbour was being noisy deliberately. The resident stated that the noise was affecting his mental health and that he suffered with severe depression. The landlord suggested that the resident contacted his GP for support. On the same day, the resident contacted his MP to complain that the landlord “has made it clear they’re not going to operate or step in any fashion to deal with these complaints”.
The resident wrote to the landlord on 8 August 2019 suggesting that foam underlay be installed upstairs. The landlord replied, confirming the action plan which was that the landlord would speak to the neighbour, and the resident would contact his GP regarding his mental health.
According to the landlord’s records, on 9 August 2019, it had arranged to visit the neighbour on 14 August 2019 to discuss the noise.
The landlord wrote to the neighbour on 28 August 2019, as it had cancelled the appointment on 14 August 2019 and offered to rearrange the appointment for 5 September 2019.
On 9 September 2019, the landlord carried out a case review and noted that the landlord arranged to visit the resident, but he cancelled the appointment. The complaints had “gone quiet”. The landlord would nevertheless visit the neighbour on 11 September 2019 and if he was not in, the landlord would send the neighbour a warning letter.
The landlord’s records show that it attended the neighbour on 14 September 2019 and that the neighbour admitted “unwittingly” disturbing the resident, and the resident had knocked on the neighbour’s door to ask him to keep the noise down.
The landlord sought to contact the neighbour again on 24 September 2019. On the same day, the landlord wrote to the resident to inform him that the neighbour had admitted to two incidents of noise, and the landlord was still investigating the matter. The landlord offered to visit the resident, in order to review the incidents. A visit was arranged for the following day when the landlord told the resident to request another book when the logbooks were full.
On 26 September 2019, the landlord made enquiries with an adjacent neighbour who stated that there was noise from both properties, but the noise was not a disturbance or excessively loud.
The resident wrote to the landlord on 30 September 2019 stating he would provide the completed logbook that afternoon. He asked the landlord not to state that he, the resident, required medication. His position was that there is a ‘disparity; between depression and imagining noise or imagining noise is louder and to so suggest this is “discriminatory and insensitive”. The resident did not want contact with the housing officer of the landlord at that time except to collect the logbooks and provide him with new logbooks. He stated that the landlord was not investigating further and was blaming the resident’s mental health instead.
On 30 September 2019, the landlord made the decision to arrange noise monitoring equipment and on the same day contacted its environmental health officer (EHO) in order to make the necessary enquiries.
The landlord wrote to the neighbour on 2 October 2019 to inform him that it may be installing noise equipment in order to determine whether the noise is in breach of the tenancy or was normal domestic noise. The landlord also wrote to the EHO in order to arrange noise–monitoring equipment to be installed.
The landlord wrote to the resident on 3 October 2019 to confirm that the noise monitoring equipment had been requested and it had requested a repair to a loose floorboard that may be the cause of the problem. The resident disagreed this would be helpful, as he said this did not account for the “stomping and crashes” and ‘deliberate anti-social behaviour’.
The landlord chased the EHO on 14 October 2019 for a response to its request for noise monitoring equipment. On 15 October 2019, the EHO confirmed acceptance of the request.
The landlord updated the resident on 13 November 2019 that it was still waiting to hear from the EHO in relation to installation of the noise–monitoring equipment. The following day, the resident wrote to the landlord to say the neighbour had been ‘good’ and did not need monitoring, though there have been two further incidents. The landlord replied on the same day, to say that in those circumstances, it would consider closing the case. He did not consider that the two incidents reported by the resident constituted nuisance. The resident accepted this proposal, though he stated he still wanted to pursue his complaint regarding discrimination.
On 18 November 2019, the landlord collected further logbooks of complaints from the resident. The landlord wrote to the resident on 20 November 2019 to state that the case was closed. It had spoken to the neighbour, and repairs had been requested to any loose floorboards. It had reviewed the further complaints and had concluded there was nothing significant in the reports.
On 13 December 2019, the resident reported further incidents of ASB from the neighbour. The landlord advised him to either call “the hub” or raise a new complaint online. A fresh case was raised on the same day.
The resident wrote to the landlord on 16 December 2019 with reports of noise from the above property. He again stated that the landlord had made accusations about his mental health, and that it had suggested the resident was imagining the incidents. He also complained that the noise monitoring had been cancelled and the case closed. He complained he was not offered new logbooks. While he agreed to noise monitoring, the resident’s view was that the landlord should first speak to the neighbour to ensure he is not anti-social, to install “noise isolation” and take legal action against the neighbour.
On 17 December 2019, the landlord’s records showed that it would consider the resident’s request for another housing officer.
On the same day (17 December 2019), the resident made a formal complaint as follows:
1. The resident had made a previous complaint against his housing officer in relation to discrimination. The complaint was that the housing officer stated that the resident imagined or exaggerated the noise, given the resident had suffered depression in the past.
2. The landlord failed to investigate the reported ASB properly until he had involved his MP.
3. The failure to investigate was discriminatory.
4. The landlord did not obtain a witness statement from another neighbour where the noise was audible.
5. The landlord ought to have predicted the noise would recommence and the landlord closed the case prematurely in November 2019.
6. The landlord insisted on discussing an action plan before taking further action.
7. The landlord had stated that because the neighbour is a refugee, and this was his first home it was “ok” to be antisocial and that the landlord’s position that the noise was due to a “squeaky” floorboard was an excuse.
8. The noise monitoring equipment was never arranged.
9. The resident’s mental health was suffering.
The landlord’s first response to the complaint dated 24 December 2019 was as follows: –
1. The landlord followed safeguarding procedures and acted professionally. As the reported ASB was impacting on the resident’s mental health, it was the landlord’s duty to safeguard the resident’s well-being. In the circumstances, the housing officer enquired whether the resident had any support in place and suggested the resident contact his GP for support/ assistance to help him sleep. The same housing officer would be allocated to the case.
2. Part of the procedure was to agree an action plan in order to investigate the resident’s reports, to manage the resident’s expectations, and to ensure outcomes are realistic, and achievable.
3. The landlord did contact another resident neighbour who stated that the noise from either property (the resident’s and the neighbour’s) was, in their view, not anti-social.
4. It arranged a visit with the neighbour who admitted two incidents, they were not deliberate, and the landlord also wrote to the neighbour.
5. Noise–monitoring equipment was agreed and arranged but the resident decided not to pursue it, and, with the resident’s agreement, the case was closed.
6. A new case was opened 13 December 2019 in response to new complaints.
7. A visit was offered on the same day to discuss a new action plan in order decide on a new approach. The resident had declined to engage with the landlord.
8. The landlord offered to re-arrange noise monitoring.
9. The resident could request a review and final review of the complaint response within 20 working days.
The resident response, which was not dated, was as follows:-
1. The second housing officer was outside the property during the meeting on 7 August 2019 and therefore could not have heard what his colleague said.
2. The landlord had referred to a telephone conversation, but none took place on 7 August 2019 as that was a face-to-face visit.
3. The resident asked the landlord’s housing officer to leave but he refused.
4. The landlord refused to investigate, and refused to speak to the neighbour.
5. The attendance on the “neighbour” referred to as 26 September 2019 took place 9 August 2019.
6. The resident was accused of being a serial complainer.
7. As the resident did not hear from EHO, he concluded that the noise monitoring was not arranged.
8. The resident stated the neighbour nuisance would begin again and that the investigation should have continued.
On 21 January 2020, the resident wrote to this service to state he wanted to amend his complaint details with regards to discrimination. He wished to include a) initial problems with the garden in 2017 b) when he made a complaint regarding antisocial behaviour, he received “some form of attack” from the landlord where it made allegations about other matters.
The landlord wrote to the resident with its final response on 23 January 2020 as follows: –.
1. It confirmed that its housing officer had acted in a professional and appropriate manner, and had followed the Health and Safety guidelines regarding the safeguarding of its customers. Its decision in that regard was upheld.
2. It apologised that it referred to a telephone call instead of to a conversation held on the doorstep. It confirmed that the other housing officer heard the resident’s conversation “fully”. It explained that the second housing officer stood some small distance away in order to put the resident “at ease”. It stated that its housing officer did not suggest that the resident was imagining hearing noises due to his mental health and repeated that its housing officer followed safeguarding procedures in suggesting the resident contact his GP.
3. Its housing officer was not asked to leave his property.
4. Its housing officer contacted “the neighbour” on 9 August 2019 and on 26 September 2019. The neighbour admitted to two incidents of high noise levels, but they were not deliberately targeted at the resident. The landlord wrote to the neighbour reminding them of their conditions of tenancy.
In accordance with paragraph 39(a) it is outside the jurisdiction of the Housing Ombudsman to investigate the resident’s complaint beyond the date of the landlord’s final response in its internal procedure, however it is noted that by 15 December 2020, the landlord had arranged for the EHO to install recording equipment in the resident’s property. The EHO reviewed 170 minutes of evidence recorded between 5th and 17th November 2020 and concluded that there were no high levels of noise that would cause concern. The landlord offered in accordance with the EHO’s suggestion a “subjective noise assessment” to analyse the cause of any noise, and resulting impact. The landlord offered mediation, which the neighbour had agreed to, but the resident declined to engage. There was also a Community Trigger review but the outcome was not part of the evidence in this case.

Assessment and findings

The landlord’s handling of the resident’s reports of ASB.

The role of the Housing Ombudsman is to investigate the landlord’s response to the resident’s reports of anti-social behaviour, whether the landlord has acted according to its polices and the law, whether it has acted reasonably and proportionately. It does not make findings of fact as to whether there anti-social behaviour has been perpetrated.
The landlord acted reasonably in responding promptly to the resident’s reports when it attended the property on 30 July 2019. The resident declined to answer the door when the landlord attended his property on 30 July 2019. Nevertheless, the landlord offered to re-attend on another occasion, which it did 7 August 2019.
The resident complained that the landlord did not take any steps in relation to his reports of ASB from the neighbour in the upstairs flat until the resident had contacted his MP. While there is evidence of the resident’s complaints regarding the previous upstairs neighbour and the neighbour at an adjacent property, there is no evidence of such complaints prior to that of 21 July 2019. The first opportunity the landlord had to meet with the resident was on the same day as the resident’s contact with his MP, (7 August 2019). It would not be reasonable to conclude, therefore, that the landlord only took action as a result of the resident raising the matter with his MP, given the landlord had responded promptly by a) attempting to attend on the resident on 30 July 2019, meeting with him on 7 August 2019, and by writing to the resident and his neighbour shortly thereafter.
The landlord’s proposal that a) the resident kept logs of incidents of ASB, and b) the landlord contacted the neighbour to discuss the issues was appropriate and in line with its policy “to interview the neighbour as a preliminary step in the landlord’s investigation”. The landlord would require as much information and detail a possible in order to consider the reports and take steps to address the ASB. It is good practice, and fair, to hear both sides of a complaint before taking action, and to potentially explore a resolution. It was also appropriate, as part of the landlord’s safeguarding obligations and policy, to suggest the resident contact the GP, given the resident had reported that the noise was impacting on his mental health.
It was appropriate the landlord then confirmed this “action plan” in writing to the resident on 8 August 2019. The landlord had acted in accordance with its policy to first “interview the complainant and agree an action plan which will be put in writing”.
It was reasonable of the landlord to follow up on its promise to visit the neighbour. Unfortunately, for reasons that are not fully explained, although the landlord first proposed a visit within a reasonable timescale (9 August 2019), the visit did not materialise until 14 September 2019. However, given the resident’s reports had subsided, and the landlord had not been able to contact the resident, it is unlikely that this short delay would have impacted the resident. It was reasonable that, despite the further lack of contact with the resident, the landlord pursued the appointment with the neighbour given at this point there was no evidence of the resident having confirmed he wanted no further action taken.
The outcome of that visit was that the neighbour acknowledged he became aware of two instances when he disturbed the resident “unknowingly” when the resident knocked on the neighbour’s door. There is no evidence that the neighbour caused noise deliberately, as the resident had alleged.
It was reasonable of the landlord to make enquiries of an adjacent neighbour on 26 September 2019 as part of its investigation, and as the resident requested the landlord to do so. This would provide any further evidence of noise disturbance. The outcome of those enquiries was that the adjacent neighbour reported that noise could be heard outside both properties, but that neither was disturbing or excessively loud. Part of the resident’s complaint of 16 December 2019 was that the landlord did not take a statement from the adjacent neighbour. The policy required the landlord to ensure any witness sign its note of the interview, as part of substantiating the complaint. There is no evidence that the landlord arranged for the witness to sign a note of the interview. It was, however, reasonable of the landlord not to have done so, given such a statement would not have assisted or supported the resident’s reports.
It was appropriate and reasonable for the landlord to arrange noise–monitoring equipment in order to investigate the complaint thoroughly. The resident was placed on a waiting list for the equipment, and it was reasonable of the landlord to chase the EHO after two weeks and update the resident. By the time the equipment became available, the resident had clearly stated he did not require the noise monitoring as matters had improved. The resident took the view that it had not been arranged. The request for noise monitoring from the landlord’s environmental health officer (EHO) is evidenced by email correspondence between the landlord and the environmental health team of the local authority.
It was appropriate and in accordance with its policy, that the landlord discussed and agreed the closure of the ASB case, which the resident accepted, although he wished to pursue a complaint in relation to the discrimination that he alleged. The landlord confirmed the closure in writing on 20 November 2019. The resident did not object. It was appropriate that the landlord wrote to the resident in order to have clarity in the process. It was also reasonable for the landlord to review the fresh reports logged to date, so as to ensure that the landlord was being thorough and taking the necessary and appropriate steps. It was appropriate for the landlord to explore the floor of the above flat and to offer to effect repairs to loose floorboards in the upstairs property which may have been contributing to the noise. There is no evidence however that by identifying the potential source of noise, the landlord was making excuses for the neighbour. It was simply seeking a resolution, and described this step in its report to this service as an attempt to reduce noise transference.
It was appropriate of the landlord to open a fresh ASB case promptly on receipt of fresh complaints in relation to the same neighbour on 13 December 2019. This evidenced a responsive service on behalf of the landlord. It was reasonable for the landlord to arrange that the same housing officer was allocated to the case as before, in order to provide continuity, and its prior knowledge of the case. Given the short time since the previous case had been closed, the landlord might have simply re-opened the original case however that would have made little difference. It was reasonable for the landlord to wish to discuss an action plan afresh, in particular given the resident had declined noise monitoring, and the original action plan dated from August 2019, since which the landlord had progressed the matter, therefore the action plan was out of date.
It was also reasonable that the landlord considered the resident’s request for another housing officer and provided reasons for declining that request. The reasons given were reasonable as the landlord would be limited by its resources and furthermore the existing housing officer already had knowledge of the case, having carried out investigations.
While events after the completion of the landlord’s internal complaints procedure is outside the Ombudsman’s jurisdiction and the remit of this investigation, it is reasonable to take into account that the landlord arranged noise monitoring and the EHO, having reviewed 170 minutes of evidence recorded over 12 days, had concluded that there were no high levels of noise that would cause concern. The EHO suggested a subjective noise assessment and mediation but the resident declined to engage. There was also a Community Trigger review. This demonstrated that the landlord acted reasonably and appropriately in response to the resident, and continued to seek to address the resident’s reports.
While the Housing Ombudsman would not consider normal domestic noise constitutes ASB, the procedure and tenancy agreement does not clearly distinguish between deliberate actions, accidental noise nuisance, or make it clear when domestic noise is not ASB. Moreover, the tenancy agreement set out that minor ASB included ‘domestic noise’. However, in its dealing with this case, the landlord made a distinction between normal domestic noise and a breach of tenancy. The landlord explained to the resident in its email of 2 October 2019 that the purpose of the noise monitoring was to identify whether the noise was at “acceptable levels” and wrote to the neighbour saying it would not take action in relation to “normal domestic noise”. The distinction itself is reasonable, however the landlord could consider amending its documentation and clarifying its position.
While the landlord had considered the condition of the floorboards of the upstairs flat, there is no evidence that the landlord considered the floor covering. It would have been appropriate to do so, given that the tenancy agreement provided that the resident must take reasonable steps to prevent noise transferring from (their) home to any adjoining properties and this could include laying carpets or fitting other floor insulation. The ASB policy included “making loud noise/making noise nuisance because of use of laminate or wooden flooring”. Moreover, this would have been appropriate, given that the resident raised this and suggested on 8 August 2019 that there should be foam underlay.
With the exception of there being no evidence the landlord had considered the floor covering in the context of its policy, the landlord responded appropriately to the resident’s reports of ASB, including providing a single named housing officer, responding to the resident each and every time promptly, providing and delivering log books, attending on the resident personally, persevering at times when the resident himself did not engage, contacting the neighbour, interviewing a nearby resident, raising the repair to the upstairs flat in order to reduce noise transference, and offering noise monitoring.
It was reasonable of the landlord to decline to act on the basis of two incidents where the neighbour acted ‘unknowingly’, but to investigate the noise reports, and to require the resident to discuss and agree an action plan in order, as the landlord itself explained, to manage the resident’s expectations to ensure the plan was realistic and achievable. However, the resident not engaging severely limited anything the landlord could do.

The resident’s reports of discrimination by the landlord against him.

The resident’s complaint was that the landlord displayed discriminatory conduct. He stated that, during his discussions with his housing officer, it had been suggested that he was imagining the noise and that the noise appeared louder than it was, due to his mental health. He said the landlord housing officer was “accusatory” in relation to his mental health. There is no evidence that was the case or that the officer proposed medication as a resolution to the resident’s complaints of noise complaints. There is evidence that the landlord housing officer signposted the resident for support to his GP, which was appropriate as this was in line with the landlord’s policy. The landlord’s explanation in its email 24 December 2019 that it was following safeguarding procedures was appropriate, in line with its ASB procedure and duties as a local authority under the Care Act 2014 to promote to promote an individual’s well-being. Furthermore, there is no evidence that the landlord did not follow up the resident’s complaints or take them seriously, indeed the contrary was the case, given the steps the landlord in fact took, as set out above, by investigating the matter, and offering noise–monitoring equipment at a cost to the landlord.
There was a dispute between the parties whether a second housing officer overheard the conversation of 7 August 2020 between the resident and the assigned housing officer. The landlord was entitled to rely on its second housing officer’s recollection of the meeting. The landlord’s explanation of why the second housing officer stood at a ‘small distance’ was reasonable. It is not the Housing Ombudsman’s role to weigh up the conflicting positions, but to consider whether the landlord responded reasonably to the issue raised by the resident in the formal complaint. In this case, the landlord acted reasonably in investigating the complaint by interviewing the housing officers.
The resident stated that the noise was having an impact on his mental health. It is not within the role or capabilities of the Housing Ombudsman role to determine whether or not the noise had an impact on his mental health. The role is for the Ombudsman to consider the landlord’s response to the resident’s reports.
The resident’s complaint was that given his poor mental health, and if that were a factor, then the landlord should have considered installing sound proofing in the building, as a modification in order to adapt to his disabilities. The landlord stated that it did not provide sound proofing as it did not wish to create an uneconomical and unaffordable precedent across its significant housing stock.
The landlord’s records indicated that it, as was reasonable, considered sound proofing the property. The explanation provided by the landlord to this service for not installing sound proofing was that installing sound proofing would create an unaffordable precedent. This explanation would have been, in ordinary circumstances, reasonable. The Housing Ombudsman recognises that a social landlord is required to have regard for its limited resources. However, in this case, it would also have been appropriate for the landlord to consider sound proofing in the context of any obligations under the Equality Act 2010.
In order to consider its duties, the landlord would have to consider whether the resident is under a disability within the meaning of the Equality Act 2010, whether as a result of that disability the resident was particularly susceptible to noise, and whether the landlord was required to take note of that extra-sensitivity and whether sound proofing was a reasonable adjustment that it could provide in the circumstances.
While schedule 4(8) of the Equality Act 2010 states that “It is never reasonable for A to have to take a step, which would involve the removal or alteration of a physical feature”, it was open to the landlord to consider whether sound proofing may have been deemed to be an auxiliary aid.
The resident’s complaint was that the noise was effecting his mental health. The outcome of the steps the landlord took post the completion of the landlord’s internal complaints policy demonstrated that there was no evidence the noise was in fact excessive, in particular as the resident declined to engage in the subjective noise test. In the circumstances, any failure not to consider sound proofing in the context of the Equality Act 2010 was minimal and in any event, it is not for the Housing Ombudsman to speculate what the outcome would have been if the landlord had so considered the issue. It is not for the Housing Ombudsman to consider whether a breach of the Equality Act 2010 has occurred, but only to consider the landlord’s response to the resident’s reports, including what it considered or did not consider.

The landlord’s complaint handling

While the resident’s MP stated on 8 August 2019 that the resident wished to make a complaint in relation to the handling of its case, and the resident referred to a prior complaint in his correspondence, there was no evidence that the resident made a complaint prior to 17 December 2019. While the procedure provided that a complaint could be made in a number of ways, it would not have been a reasonable expectation that the landlord treat the MP’s observation as a formal complaint.
During the complaint process, there was a dispute about whether the landlord visited ‘the neighbour’ on 9 August 2019 or on 26 September 2019. This may have partly been due to a miscommunication between the parties where they were referring to different neighbours. However, the evidence showed that the landlord wrote to the upstairs neighbour 9 August 2019 and attended the adjacent neighbour 26 September 2019. The landlord acknowledged there was a further error on the part of the landlord, when it confused a telephone conversation with an attendance. This may have frustrated the resident; however, the landlord acknowledged the error. These errors were of a minor significance.
The landlord responded fully and promptly to the resident’s complaint on 24 December 2019. The points the landlord made were evidenced by the landlord’s records as above, namely: –
1. Part of the procedure is to agree an action plan in order to investigate and to ensure outcomes are realistic, and achievable.
2. The landlord contacted adjacent neighbour who said noise was not excessive from either property.
3. It visited and subsequently wrote to the neighbour.
4. Noise monitoring was arranged. The resident decided not to pursue it and with the resident’s agreement the case was closed.
5. A new case was opened 13 December 2019 in response to fresh complaints.
6. A visit was offered on the same day to decide on a new approach, and the landlord offered to re-arrange noise monitoring.
The landlord could have taken the opportunity provided by its internal complaints process to consider the floor covering of the upstairs flat and consider the installation of sound proofing in the light of the Equality Act 2010. While the landlord’s final response was reasonable in that it reviewed and responded to all the points the resident had raised, it referred the resident to the incorrect Ombudsman service. The landlord’s policy also refers to the incorrect ombudsman in relation to housing complaints. This did not impact the resident; except he went to the trouble of forwarding one of his emails to the Local Government and Social Care Ombudsman. However, the landlord should take note and amend its policy and procedures in that regard.
The landlord took the opportunity to provide an explanation of its actions and processes. It did not merely state that it complied with its policies, but set out what steps it took and the reasons for them. It also took the opportunity at both stages of the complaints process to urge the resident to engage with its offers to assistance.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was:
1. No maladministration in relation to the handling of the resident’s reports of anti-social behaviour (ASB).
2. No maladministration in relation to the resident’s reports of discrimination by the landlord against him.
3. No maladministration in relation to the landlord’s complaint handling.

Reasons

The landlord responded appropriately and promptly in response to the resident’s reports of ASB, in accordance with its policy and pro-actively. While there was no evidence that the landlord considered the floor covering in the neighbour’s flat, there is no evidence this would have had any impact on the resident.
There is no evidence of a discriminatory attitude by the landlord, but there was strong evidence of the landlord taking the complaints seriously. While there was no evidence that the landlord considered whether the provisions of the Equality Act 2010 required the landlord to consider installing sound proofing, there was no evidence of any impact of the landlord not having done so or evidence of what the outcome would have been, if it had.
The landlord addressed the resident’s complaints thoroughly and promptly and used the process to explain its actions and to invite the resident to engage in its offers of assistance.