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Birmingham City Council (202221468)

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REPORT

COMPLAINT 202221468

Birmingham City Council

12 August 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:
    1. The landlord’s handling of reports of noise nuisance.
    2. The associated complaint handling.

Background

  1. The resident holds a secure tenancy which started in May 2010. The property is a 1-bedroom flat on the ground floor of a low-rise block of flats. The block is a scheme for residents aged over 55 years old. The resident has physical and mental health conditions, including depression and anxiety.
  2. The resident reported concerns with noise nuisance from the property above (flat A) multiple times over a number of years. He reported that flat A made excessive noise which included banging on his ceiling and ringing his doorbell. He said that this occurred mostly during the night and early hours of the morning which disrupted his sleep.
  3. The resident contacted this Service and asked for help in making a complaint to the landlord. On 4 January 2023, the Ombudsman wrote to the landlord and asked it to respond to the resident’s complaint about its handling of reports of noise nuisance from flat A.
  4. On 11 January 2023, the landlord provided its stage 1 complaint response. It said that it had investigated the noise nuisance from flat A, but the resident had refused to provide evidence of the noise through a noise app, and he had also refused mediation with flat A to try to resolve the ongoing nuisance dispute. It said that it could not evidence the resident’s reports, and that flat A made counter-allegations against the resident. It advised him to reconsider using the noise app as the evidence recorded would help move the case forward.
  5. The resident asked this Service to escalate his complaint to the landlord. On 24 March 2023, the Ombudsman wrote to the landlord and asked it to provide its final complaint response within 10 working days, by 7 April 2023.
  6. The landlord provided its stage 2 complaint response on 4 April 2023. It reiterated that the resident had declined to engage in mediation and the use of the noise app. It said that it had engaged with the police and found that he had refused mediation offered through the police’s restorative justice service. It explained its actions taken previously to explore rehousing and said that he remained actively bidding on the choice-based lettings waiting list. It offered a further meeting with the resident to discuss the concerns in more detail but explained that it could not take proportionate action without evidence of the noise nuisance.
  7. The resident escalated his complaint to this Service as he remained unhappy with the landlord’s response to his reports of noise nuisance and continued to experience the same issues with flat A. The complaint became one that the Ombudsman could investigate on 16 January 2024.

Assessment and findings

Scope of investigation

  1. The resident has said that the noise nuisance had been ongoing for a number of years. The Ombudsman cannot consider complaints which relate to historical events because the quality and availability of any evidence that may have existed at the time may not be present now. The focus of this investigation will therefore be from 12 months prior to when the resident raised his complaint. This is in accordance with paragraph 42(c) of the Housing Ombudsman Scheme.
  2. It is evident that the resident is currently experiencing issues which he did not raise within this complaint, such as with noise monitoring equipment, antisocial behaviour from other neighbours, and with the professionalism of the landlord’s staff members. The resident may wish to log a new complaint for the landlord to investigate his concerns and have the opportunity to put things right. He may then bring that complaint to the Ombudsman as a new case to investigate if needed. This is in accordance with paragraph 42(a) of the Scheme.
  3. The Ombudsman cannot consider or assess the actions and decisions made by the local authority’s Environmental Health team as this falls outside of the function of the landlord. The Local Government and Social Care Ombudsman (LGSCO) is more likely to consider these complaints. Before bringing a complaint to the LGSCO, the resident will likely need to have made a complaint to the local authority first. This is in accordance with paragraph 42(j) of the Scheme.
  4. The Ombudsman appreciates that the resident wants the landlord to rehouse him due to the ongoing noise nuisance concerns. However, it is beyond the remit of the Ombudsman to order the landlord to offer immediate rehousing to the resident, or to prioritise him over other applicants or tenants that need rehousing and who may be in a similar or greater need. The Ombudsman’s role is to determine whether the landlord acted in line with its legal obligations, policies and procedures, and best practice.
  5. The resident said that the landlord’s handling of his reports of noise nuisance affected his mental and physical health. While this Service does not doubt the resident’s comments about their health, it is outside our remit to draw conclusions on the causation of, or liability for, impacts on health and wellbeing.

The landlord’s handling of reports of noise nuisance

  1. The landlord has a responsibility to respond to reports of antisocial behaviour (ASB), including noise nuisance, made by its residents within a reasonable timescale. The landlord’s ASB procedure states that following a report of ASB, it will categorise the risk and respond to the report accordingly.
  2. On 24 June 2022, the resident reported banging and noises from flat A. The landlord completed a risk assessment and considered this as a category C report, which is for minor reports of domestic noise. The procedure states that it will make contact with the resident within 10 working days of the report, which it did on 29 June 2022.
  3. The landlord discussed the noise nuisance with the resident on 5 July 2022. He said he had spoken to the local authority’s Environmental Health (EH) team who gave him diary sheets to record incidents of noise nuisance. It was therefore reasonable that the landlord did not ask him to complete a further set of diary sheets as he already had the means to do this through another agency. The resident also reported incidents of noise nuisance, such as loud noises, banging, and the ringing of his doorbell, through emails to the landlord, which it logged on the ASB case it had opened.
  4. After the resident said he engaged with the local authority’s EH team, the landlord contacted the EH team to discuss any steps it planned to take. While the Ombudsman cannot consider the actions of the EH team, it was appropriate for the landlord to engage with other agencies to try to resolve the concerns experienced by the resident. It is evident it remained in contact with the EH team for the duration of the ASB case.
  5. The landlord interviewed the alleged perpetrator regarding the reported noise nuisance on 6 July 2022. It provided regular updates to the resident regarding its steps to investigate and try to resolve the concerns he experienced. Although the landlord did not produce a formal action plan in writing, it regularly contacted the resident with steps it planned to take, as well as steps it asked the resident to take.
  6. Following the interview with the alleged perpetrator of flat A, who denied the allegations, the landlord asked the resident to record reports of noise nuisance. It asked him to use a noise app to record incidents when they occurred, but the resident refused to use the app as he said that he had purchased his own recording device previously which did not capture the noise.
  7. It is noted that the resident made a subject access request to the landlord and saw an internal email where it said that the noise app may not fully record the issue. This was a shortcoming in the landlord’s wording and would have understandably caused some frustration to the resident.
  8. The landlord had previously asked the resident to consider mediation with flat A, but he refused this. The landlord advised him that without evidence of the noise, it could not action the ASB case further and it advised that it would likely close the ASB case. It was appropriate for the landlord to manage the resident’s expectations regarding the limited actions it could take without evidence of the reported issue.
  9. On 1 September 2022, the landlord received information that the resident had contacted the police about the noise nuisance concerns. The landlord engaged with the police and asked them for any evidence regarding the noise issues, but the police could not provide any such evidence. The police advised that they had offered mediation to the resident and flat A which the resident refused. Following this, on 7 September 2022, the landlord spoke to the resident and advised him that he needed to provide evidence within 14 days, or it would have to close the ASB case. It was sympathetic to the situation but effectively managed his expectations on the limits of its possible actions without evidence.
  10. The ASB case was closed by the landlord on 21 October 2022 following a lack of evidence provided, as it had previously advised it would. The landlord’s ASB procedure states that it would send a case closure letter to the resident to confirm the closure in writing. The Ombudsman has not seen evidence of such a letter, however, given that the resident was aware of the planned closure if he could not evidence the reported noise nuisance, there is no significant detriment caused to the resident by this.
  11. The resident contacted the landlord frequently after the ASB case was closed, but he failed to provide evidence of the reported noise nuisance. While the Ombudsman appreciates that the resident was frustrated about the landlord’s lack of action, the landlord can only take action against an alleged perpetrator if it has evidence of the reported ASB. Without this, there are limited actions that the landlord could take, especially given that it had received counter-allegations regarding the resident.
  12. The landlord’s complaint responses reflected the steps it had taken, the support offered to the resident, and its commitment to resolving the reported noise nuisance concerns should the resident engage by providing evidence of this going forward. Within the final complaint response, the landlord explained that it had supported him with his request for rehousing by providing advice about his existing choice-based lettings application and it also signposted him on the option of mutual exchanges. This was reasonable in the circumstances.
  13. This Service empathises with the resident who faces difficult circumstances. The Ombudsman does not underestimate the distress this situation would have caused the resident. Nevertheless, based on the evidence available to this Service, the landlord acted appropriately and in line with its procedures to try to help the resident evidence the noise experienced.

The associated complaint handling

  1. The resident contacted this Service and asked for support in making a complaint to the landlord. The Ombudsman wrote to the landlord on 4 January 2023 and asked it to respond to the complaint within 5 working days, which it did on 11 January 2023. The Ombudsman has not seen evidence of a complaint made by the resident to the landlord prior to this, and therefore the Ombudsman finds no failing in the landlord’s handling of the initial complaint.
  2. The resident then contacted the Ombudsman again to ask for support in escalating his complaint to stage 2 of the landlord’s complaints process. This Service has seen evidence of 2 emails that the resident sent to the landlord following the initial complaint response – on 28 February 2023 and 2 March 2023. In one of the emails, the resident asked for a third party to examine how the landlord managed the noise nuisance reports. This should have prompted the landlord to have escalated his complaint to stage 2 in order for the resident to be able to take his complaint to the Ombudsman.
  3. As the landlord failed to escalate his complaint, the resident experienced some time and trouble in contacting this Service to help escalate his complaint. The Ombudsman contacted the landlord in late March 2023 and asked it to respond within 10 working days. The landlord then responded to the complaint appropriately, in line with the timeframe set by the Ombudsman. Within the final complaint response, the landlord apologised for the delay in its response. This was appropriate in response to the minor failure in its complaint handling.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of reports of noise nuisance.
  2. In accordance with paragraph 53b of the Scheme, there was reasonable redress offered by the landlord for the failing in the associated complaint handling.

Recommendations

  1. The landlord is recommended to keep the resident updated on any actions it may currently be taking in response to the noise nuisance reports.