Birmingham City Council (202114358)

REPORT

COMPLAINT 202114358

Birmingham City Council

24 February 2023

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:
  1. Response to the resident’s reports of noise.
  2. Complaint Handling.

Background

The resident lives in a two bedroom house and holds an assured tenancy which started in 1998. The resident lives with her son who has Asperger’s syndrome. The resident has post-traumatic stress disorder.
The resident has repeatedly reported noise from neighbours over a period of many years to her landlord which is the Local Authority. The noise is described as ‘banging’ against walls, shouting and raised voices, dripping noise from next door, as well as children screaming and running around. The reports of noise have been about several different people and families living close to or next door to the resident. The resident has also complained about noise from local traffic.
The resident has informed the landlord that the noise is affecting her mental health. The resident has said on more than one occasion that she will commit suicide if the issue is not resolved. The resident says the noise is also affecting her son. The resident has said she would like to move elsewhere as a solution.
The landlord says both its Environmental Health (EH) service and Housing service have investigated reports of noise but not found evidence of ‘noise nuisance’ as defined in the Environmental Protection Act 1990.
A complaint about the landlord’s Environmental Health (EH) service was investigated by the Local Government and Social Care Ombudsman (LGSCO) which found evidence of fault and ordered compensation to be paid to the resident.
This investigation concerns a complaint about the landlord acting in its housing management role made by phone by the resident on 19 July 2021. The report will therefore focus on the actions of the landlord’s housing service rather than its EH service which has already been investigated by the LGSCO. Relevant events before and after the above complaint are given below.

Summary of Events

The resident completed a noise diary in July 2019 which was passed to the EH service by the Housing department at the end of August 2019.
In September 2019, the landlord’s EH service informed the resident in a letter that it would be providing noise monitoring equipment. According to investigations made by the LGSCO, the landlord acknowledged that due to an error it did not install noise monitoring equipment. The complaint at that time was closed with no further action taken.
The resident completed another noise diary starting in July 2020 and continued to record noise in a log until the end of the year. The log was not sent by the housing service to the landlord’s EH service. The resident’s noise case with the EH service was closed. The landlord’s EH service said in error that the necessary diary sheets had not been completed by the resident.
On 8 February 2021, the landlord sent a warning letter to the resident’s neighbour. The landlord said that based on the evidence available to it, the neighbour had breached their tenancy conditions. The letter quotes Section 6 of the landlord’s standard tenancy agreement which says tenants ‘must not do anything likely to cause a nuisance’ and ‘must not do anything that interferes with the peace, comfort or convenience of other people in the local area.’ The noise was described as ‘constant banging and thudding’ and shouting. The letter said that if the noise did not stop, the landlord ‘may take further action which could lead to the loss’ of the tenancy.
On 12 March 2021, the landlord sent the same neighbour a further warning letter which was a ‘final warning before action’ letter. The letter states that if the noise continued, the landlord would apply for a court injunction.
On 12 April 2021, the landlord received text messages from the resident reporting noise from the same neighbours. There is evidence that the landlord discussed the possibility of mediation with both the resident and her neighbours during April. By 20 April 2021, the landlord had carried out the following actions:
1. Sent two warning letters to the alleged perpetrators of the noise.
2. Discussed the allegations with the alleged perpetrators.
3. Referred the matter to mediation but said there was no engagement from either party.
4. Made a referral to mental health services due to concerns about the resident’s mental health and spoke to the resident’s GP.
5. Passed the case to management for consideration of noise monitoring equipment to be installed.
On 10 May 2021, the resident was given a warning about the number of text messages she was sending to staff. The landlord said a total of 49 messages had been received from the resident including one member of staff who had received 17 messages over the weekend from 7 May until 10 May 2021. In one of the messages, the resident had said she was going to slash her wrists.
On 13 May 2021, the landlord’s internal file notes indicate that the resident was called by the landlord’s housing service. The landlord explained it was attempting to get noise monitoring equipment to evidence whether or not there was noise nuisance. According to the file notes, the resident referred to a previous occasion when noise monitoring equipment was installed and said that she believed because of this, the landlord would say again that the noise she had reported was ‘daily living’ noise rather than ‘noise nuisance’. The resident said she did not want her neighbours to be threatened with eviction and wanted to move elsewhere instead.
On 18 May 2021, the LGSCO issued a decision regarding the resident’s reports of noise to the landlord’s EH service. The LGSCO found there had been fault due to a failure to install noise monitoring equipment in 2019 and poor communication between the Housing and EH services. The LGSCO found that “in each case (both 2019 and 2020) there seems no proper decision taken about the noise.”
On 7 June 2021, emergency services were in contact with the resident regarding her comments about suicide. The emergency services reported to the landlord that the resident said she ‘had no intention of harming her son’ but wanted to express that she felt that suicide was ‘the only way out’ of her living situation. The resident was referred to mental health services by police.
On 19 July 2021, the landlord recorded a formal complaint made by the resident about the way her noise reports had been handled and the lack of sympathy from staff that she spoke to.
Following the resident’s complaint, the landlord does not appear to have made contact until 2 September 2021. An acknowledgement of the complaint is on file saying the landlord would respond within 15 working days but it is unclear exactly when this was sent. File notes indicate however, that the landlord’s housing service made efforts during July to identify the resident’s social worker and made enquiries about her support needs and mental health.
Telephone notes from the 2 September 2021 indicate that the landlord agreed with the resident it would ‘investigate if her case met the threshold for sound recording equipment to be installed’. The landlord told the resident there was a waiting list for the equipment. The resident said she frequently heard her neighbour beeping their car horn between 8 and 9 am which she said was inconsiderate behaviour. The landlord said no further action would be taken about the traffic noise. The landlord also said that it would carry out a site visit on 16 September 2021 and asked the resident to keep a noise diary for the intervening two week period.
The landlord responded to the resident’s complaint at stage two of its process on 8 September 2021. The landlord’s first stage is immediate or on the spot resolution and hence why the complaint was handled at stage two directly. In it’s response, the landlord said that:
1. It apologised for the delay in the complaint response which was due to Coronavirus, an increase in complaints and staffing levels as well as the number of contacts made by the resident.
2. It could not ‘find sufficient evidence that would make it reasonable or proportionate to take action’ against the resident’s neighbour.
3. Many of the noises reported by the resident were normal household noise such as children playing in the garden.
4. The Landlord could only take action to stop this if it occurred at unreasonable hours.
5. Noise Monitoring equipment had been installed (no date was specified) but this did not pick up evidence of a statutory noise nuisance.
6. The landlord offered to reinstall the equipment but this was refused by the resident.
7. It would be closing both the resident’s complaint and her anti-social behaviour (ASB) case as neither could not remain open indefinitely.
8. The landlord’s housing allocations scheme did not provide for ASB points and only gave rehousing priority in special circumstances where police had made recommendations regarding the applicants’ safety.
9. The landlord warned the resident about the way she had been communicating with its staff which it said was inappropriate due to the large number of message and insults of staff.
The resident informed the landlord that she intended to escalate her complaint on 13 September 2021. The resident said that she was promised sound recording equipment by a previous housing officer and has now been told that it will not be provided and her case will be closed. The resident said the noise was getting worse and requested the equipment to be installed.
No case notes have been seen by this service regarding the outcome of the proposed visit to the resident on 16 September 2021.
The landlord responded at the final stage of its complaints procedure on 14 October 2021. The landlord’s position on the complaint remained unchanged but the landlord updated the resident saying that its EH service was arranging for noise monitoring equipment to be installed but there was a waiting list. The landlord said the EH service would inform the resident when the equipment was available.
The resident approached this service in November 2021 saying that she felt ignored by her landlord and wanted to move away from her neighbours who had made counter-allegations about the resident. The resident advises that the noise issue is ongoing and still causing her and her son distress. The resident has said she still would like to move and is not satisfied with her level of priority for a move.

Assessment and findings

Noise Report Handling

For an issue to be considered a statutory nuisance under the Environmental Protection Act 1990 it must either unreasonably and substantially interfere with the use or enjoyment of a home or other premises or injure health or be likely to injure health. Councils can also issue warning notices in response to complaints about noise above permitted levels from 11pm to 7am, even if that noise does not meet the threshold to be considered a statutory nuisance.
The LGSCO has already investigated the landlord’s response to historical noise complaints from 2019 and 2020 made by its regulatory services (EH service) and this report will focus on the landlord’s response from a housing management perspective.
In addition to its statutory responsibilities, under the Housing Health & Safety Rating System (HHSRS), the landlord has a responsibility to tackle and prevent noise. The HHSRS recognises noise as a psychological hazard – threats to mental or physical health from exposure to noise caused by a lack of sufficient sound insulation. It does not, however, cover unreasonable noisy behaviour of neighbours – domestic or commercial.
Noise reports have frequently been handled by landlord’s ASB teams as in this case. As part of the Neighbourhood and Community Standard – one of four consumer standards set by the regulator of social housing, landlords are required to ‘work in partnership with other agencies to prevent and tackle ASB in the local area’ and ‘take prompt, appropriate and decisive action to deal with ASB before it escalates.’
Similarly, a home which does not have adequate sound insulation could be a factor in determining that a home does not meet the Decent Homes Standard set by the regulator of social housing which says a decent home should have ‘adequate insulation against external noise.’
The landlord’s response to noise issues is guided by its ASB policy which says that in response to a report of ASB the landlord will:
1. Categorise the ASB in terms of high or low priority
2. Create an action plan and confirm it with the resident in writing
3. Carry out an interview with the complainant and the alleged perpetrator
4. Signpost, refer and advise the resident about relevant agencies and support services as appropriate
5. Issue tenancy warnings to perpetrators if needed
6. Consider an acceptable behaviour contract or neighbourhood agreement if appropriate
7. Consider legal actions for serious cases of ASB such as injunctions, protection notices or eviction.
The policy also states that “Noise monitoring equipment can be used to deal with complaints of noise. This equipment is installed through Regulatory Services but the evidence found can be used to support action by Housing staff or for direct action by Regulatory Services themselves.”
The first reports of noise by the resident goes back several years (prior to 2019) and due to the lack of evidence from this time it has not been possible for this service to assess the landlord’s initial response to the ASB reports. However, this service has seen no evidence of a risk assessment (or categorisation of the ASB) and no evidence of an action plan being created or shared with the resident. Although these actions may have been carried out historically by the landlord, the landlord should periodically update these documents and retain them on file if a case remains open for a considerable period. The lack of these documents on file is therefore indicative of poor record keeping.
The landlord issued two tenancy warning letters in February 2021 to the alleged perpetrator of the noise nuisance. This was a reasonable and proportionate response to the allegations made by the resident in the circumstances.
There is also evidence that the landlord has interviewed or spoken to the perpetrators about the allegations. The landlord has made appropriate enquiries with social services about the resident’s mental health support, and consulted with and referred the matter to their regulatory service (EH) on more than one occasion. There is therefore some evidence that the landlord has overall acted in accordance with its relevant ASB policies and procedures.
However, this investigation has seen insufficient evidence in support of the landlord’s final position that there is no statutory noise nuisance. In particular, there are numerous references to noise monitoring equipment being offered to the resident both historically and in the most recent complaint considered here but no case notes, reports or assessment of the findings of this equipment or the recordings made.
It is acknowledged that the equipment is administered by the landlord’s EH service but as per the landlord’s ASB policy above, its housing management service should make reference to its findings when considering its response to noise reports. The resident made a reasonable request for noise monitoring equipment in her complaint escalation request in September 2021 saying that the noise had worsened and the landlord agreed but had failed to provide this by the time of its final stage response in October 2021.
It is recognised that demand for such equipment is generally high and while a waiting period is not unreasonable, the evidence indicates that over the course of several years there have been problems and errors in providing this equipment. This was pointed out in the findings of the LGSCO from May 2021 which said that there had been “no proper decision” taken about the noise issue as a result.
The resident has made reference to noise monitoring equipment provided previously not picking up the banging and voices that she reports to the landlord and so it is not disputed that some form of assessment has historically taken place. However, there is no evidence of when this assessment took place and over time, circumstances do change and the landlord needs to reassess as appropriate as well as retain relevant information on file.
There is therefore a risk that the evidence the landlord used to close the resident’s ASB case and referred to in the final stage complaint response could be inaccurate or outdated.
It is not unreasonable to expect the landlord to carry out an up to date assessment of the noise and place this on record. The failure to provide this is a further indication of poor record keeping and an order regarding this has therefore been made below. There is also no confirmation on file of whether a home visit took place on 16 September 2021 and if so what the outcome of that visit was.
Due to the landlord’s failure to keep accurate records and evidence its findings on the noise issue there remains a risk that the wrong conclusions have been reached. This has caused the resident additional distress, uncertainty and inconvenience. In recognition of this a payment of £200 has been ordered below.
The spotlight report on noise produced by this service and available on our website encourages landlords to separate noise reports from ASB procedures where possible and think creatively and practically about how problems can be resolved. The landlord could have put this practical thinking to good use in this case with a more resolution focussed approach.
Both the resident and her son have health conditions which make them more vulnerable to the impact of noise. The impact of the noise on the resident and her son although perhaps ‘daily living’ noise could therefore be significant despite being at a low level. The landlord appears to have given this some consideration by placing the resident in band 2 via an ‘exceptional needs’ request. However, the landlord could have responded in a more practical way as suggested in the spotlight report.
For example, the resident has reported that she hears a car horn frequently between 8 and 9 in the morning which the resident considers inconsiderate behaviour by her neighbours. The landlord could have spoken to the residents neighbours about this particular issue and asked them if someone was beeping the horn to pick up children for the school run for example. This would have been a more pro-active approach. Similarly, the resident has reported dripping sounds from guttering next door. The landlord could have attended to carry out any necessary repairs and asked the neighbours to tidy their garden to prevent water dripping on to loud surfaces.
Overall therefore, while the landlord took some reasonable remedial measures on noise, it has not demonstrated adequate record keeping or a practical approach to mitigating the situation.

Complaint Handling

The landlord’s complaints policy proscribes a three stage process with resolution ‘on the spot’ being the first stage. The landlord’s policy says it will respond within 15 working days at stage 2 and within 20 working days at stage 3. These response times are not in accordance with the Housing Ombudsman’s complaint handling code which supports a two stage process with a ten working day response time for each stage.
With reference to this service’s recent systemic failure investigation under paragraph 49 of the Housing Ombudsman Scheme, it is understood that the landlord is currently in the process of reviewing its complaints policy in order to respond more effectively and act more in accordance with Ombudsman dispute resolution principles of trying to ‘put things right’ with offers of compensation where appropriate.
The landlord has acknowledged that there were delays in providing its stage two response (which as per its policy at the time was its first formal response to the complaint). The delay beyond the landlord’s target timeframe of fifteen working days is five weeks from 19 July 2021 until the first week of September 2021 when the landlord contacted the resident and agreed its response.
The landlord blamed Covid and staff shortages for the delay but did not provide any financial redress to the resident. It would have been appropriate for the landlord to offer redress for the distress and inconvenience caused by the delay in responding to the resident’s complaint in this case and therefore an order of £100 additional compensation has been ordered below.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration in the landlord’s response to the resident’s reports of noise.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure in the landlord’s handling of the subsequent complaint.

Reasons

The landlord took some reasonable steps by issuing two tenancy breach warning letters to the alleged perpetrator of the noise. However, it has failed to demonstrate adequate record keeping with regard to its handling of the ASB case in particular with the outcome of recordings from noise monitoring equipment.
There was a five week delay in responding to the resident’s complaint.

Orders

It is ordered that the landlord pay the resident total compensation of £300 comprised of £200 for the distress and inconvenience caused to the resident by its failure to keep accurate ASB records and evidence its findings correctly, and £100 for the distress and inconvenience caused to the resident by its failure to respond to her complaint on time.
It is ordered that the landlord visit the resident, review her case and consider the Ombudsman’s spotlight report on noise. The landlord should then consider and implement any options it may have available to mitigate the impact of noise on the resident including her level of housing priority.
It is ordered that the landlord provide evidence of a noise assessment made by a suitably qualified professional since September 2021 to this service within four weeks and renew its offer to provide noise recording equipment to the resident if appropriate.

Recommendations

It is recommended the landlord review its record keeping procedures especially with regard to noise cases and cases with a long history.