Bristol City Council (202107993)

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REPORT

COMPLAINT 202107993

Bristol City Council

21 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

  1. The complaint is about the landlord’s response to the resident’s reports of anti-social behaviour (“ASB”) and noise nuisance from a neighbour.

Background and summary of events

Background

  1. The resident is a leaseholder of the landlord, a local authority – who is the freeholder of the block in which the flat is located. The property is a first floor flat in a three storey block.

Summary of events

  1. The resident recorded incidents of loud music, shouts, slamming doors and throwing objects from the flat above in diary sheets between 12 and 28 November 2020. The resident supplied the diary sheets to the landlord on 29 November 2020 and on 30 November 2020, the landlord’s enforcement team wrote to the resident’s neighbour about alleged noise nuisance in the form of loud music.
  2. The resident recorded incidents of loud music, ‘sawing,’ shouting, hitting the floor, slamming doors and banging from the flat above in diary sheets between 30 November and 9 December 2020. The landlord opened a noise complaint on 23 November 2020. The resident supplied the diary sheets to the landlord on 12 December 2020. The resident was given access to the Noise App (software which records noises) in December 2020. The resident wrote to the landlord on 31 January 2021 setting out further problems he was experiencing with the neighbour, referencing additional noise apps sent in January 2021. The resident set out further concerns regarding the neighbour’s behaviour in an email to the landlord on 14 February 2021.
  3. On 19 February 2021, the landlord issued a noise abatement notice to the resident’s neighbours stating that there had been a statutory nuisance on 14 and 15 February 2021. The resident advised the landlord on 24 February 2021 that the notice had not had an impact and the issues continued. On 25 February 2021, the landlord explained to the resident that it needed to witness the noise and the Noise App was now blocked for the resident. It advised the resident to contact it when there was noise so an officer could attend to witness it. It attended on 5 and 6 March 2021 but there was no noise when the officer attended. The resident wrote to the landlord on 7 March 2021 setting out further incidents. On 19 March 2021, the officer heard noise when they attended, but judged that it did not meet the threshold to be a statutory notice.
  4. On 17 April 2021, the resident made a formal complaint to the landlord. The resident set out that since November 2020 the neighbour had played loud music and engaged in ASB on a number of occasions.
  5. On 6 May 2021, the landlord provided a stage one response to the complaint. The landlord set out that a noise abatement notice had been issued to the neighbour and the next step was for an officer to witness a breach of the notice. It acknowledged the resident’s frustration but explained that due to covid restrictions there were limited resources for officers to attend the property. It provided details for the resident to contact when disturbed by noise.
  6. On 9 May 2021, the resident requested escalation of the complaint. He expressed his dissatisfaction that the steps taken by the landlord had not brought any results. He also set out further examples of ASB by the neighbour. He set out that he was not happy with the actions the landlord had taken so far.
  7. On 4 June 2021, an officer attended and found there to be loud music that was considered to be a “breach”.
  8. On 9 June 2021, the landlord’s enforcement team wrote to the resident’s neighbour about reports of loud music. They advised that the neighbour had breached the abatement notice, it was considering legal action, and asked the neighbour to comply with the requirements of the abatement notice to avoid further action.
  9. On 23 June 2021, the landlord responded to the resident’s email of 22 June 2021 setting out his dissatisfaction with the landlord’s approach. The landlord stated that since the notice was issued it had attended three times and not identified a breach. It identified a breach on 4 June 2021. It stated that to satisfy the test of a statutory nuisance it felt that a further breach would be necessary to demonstrate that there was frequency of the breach. The resident contacted the landlord on 29 June 2021 to state that he contacted the landlord but no one contacted him. He emphasised the significantly negative impact that the neighbour’s behaviour was having on him.
  10. Throughout July 2021 the resident reported loud music and ASB to the landlord on a number of occasions. On 5 July 2021, the landlord advised the resident that it would like one more breach of the noise abatement order before the matter proceeded to its legal department for legal action.
  11. On 14 July 2021, the landlord wrote to the resident’s neighbour about reports of pouring liquid over the balcony and swearing at the resident.
  12. The resident submitted a complaint to the landlord on 21 July 2021 about the neighbour’s activities. He complained that the landlord had failed to take sufficient steps to manage the situation.
  13. On 3 August 2021, the landlord wrote to the resident’s neighbour about reports of loud music, loud drunken behaviour and shouting of abuse. It advised the neighbour that they were investigating reports about them and that they must stop the anti-social behaviour immediately. It stated that the neighbour was in breach of their tenancy conditions.
  14. On the 12 August, following communications about the issue, the local police advised the resident that it could see there was an ongoing problem. The police advised that they had sent an email to the Housing Officer to make a time to discuss the best way forward.
  15. The resident wrote to the landlord on 18 August 2021 further complaining that the landlord has not taken adequate steps. He also set out further examples of ASB and explained that he and his wife were afraid of physical harm.
  16. The landlord wrote to the resident to apologise for a delay in a replying to his complaint. On 24 August 2021, the landlord provided a final response to the complaint. The landlord responded separately to the resident’s complaints about noise and about ASB. It set out the steps it had taken regarding the noise complaint and confirmed that it was satisfied that it had followed the correct procedures. It had not found enough evidence to take further action and did not uphold the resident’s complaint. Regarding the ASB, the landlord also set out the steps that it had taken regarding this. It noted that there had been no further reports for eight months after the case was first raised in November 2020. Once further reports were made the landlord issued two warning letters and the case remained open. It stated that it would consider appropriate steps in accordance with its procedures if further concerns were raised. It therefore did not uphold this aspect of the resident’s complaint either.
  17. On 15 November 2021, the resident advised this service that the neighbour moved out of the property on 14 November 2021.

Assessment and findings

  1. The resident’s complaint is about conduct by his neighbour over a period of several months. His description of the conduct would generally be considered to be ASB. One aspect of his complaint is about the noise levels from the neighbour, particularly loud music. Whilst clearly closely linked, the Ombudsman has considered the complaints of noise nuisance separately to the ASB complaints.

ASB 

  1. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
  2. This Service understands the resident’s situation and recognises that the concerns he has reported have affected and caused distress to him and his wife. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, nor does it decide on what correct courses of action were based on hindsight and later events. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
  3. The Ombudsman starts by noting that the resident has submitted that there has been extensive ASB by the neighbour, including threatening behaviour, on a number of occasions over a period of over a year. The resident’s submission is that this has had a substantially detrimental impact on the health and wellbeing of him and his wife. As well as first-hand accounts, the resident has provided the landlord with a number of recorded and written evidence of exchanges between him and the neighbour on several occasions. Whilst it is not for the Ombudsman to determine whether there has been ASB as a question of fact, the Ombudsman is satisfied that the resident has provided credible evidence of what is likely to be considered to be ASB. Given this, the Ombudsman starts from the position that they would expect the landlord to investigate and respond to the resident’s reports as a credible submission of potentially serious ASB.
  4. The landlord’s position is that it is satisfied that it has followed the correct procedures. In its final response letter sent in August 2021 it set out that it had opened a case when the resident first complained in November 2020. It states that it did not take any further steps until July 2021 as the resident had not made any further reports. It then sent a warning letter on 14 July 2021 and 3 August 2021. As of August 2021 the case was still open and it stated that it would consider an Acceptable Behaviour Contract if further problems were reported.
  5. The evidence provided to the Ombudsman indicates that the resident did advise the landlord of his concerns regarding ASB on a number of occasions between November 2020 and July 2021. For example, on 14 February 2021, 17 April and 6 May 2021 the resident set out examples of ASB by the neighbour in his communications with the landlord.
  6. The landlord closed the ASB case on 2 December 2020 “as action continuing through the noise team”, until it was reopened on 2 July 2021. It appears that the resident’s complaints about ASB became inappropriately subsumed within the noise complaint. The Ombudsman considers that as a result of this the landlord failed to take appropriate steps to investigate and respond to the resident’s complaints about ASB until July 2021. During this period the landlord’s efforts appear to have concentrated on noise nuisance, and in particular the playing of loud music.
  7. Even when it did take steps and send warning letters in July and August 2021, the Ombudsman considers that the landlord did not take adequate steps to respond to the matter. The resident was clearly experiencing significant distress over the matter and had been for several months. The evidence suggests that the landlord did not engage in meaningful communications with the resident to understand the impact on him and the full extent of the ASB he was complaining about. Further, it does not appear from the evidence provided, that the landlord engaged significantly with the neighbour beyond sending the warning letters and it did not communicate substantially with the neighbour. In the circumstances, the Ombudsman would expect to see evidence of substantial in person communications with the neighbour. Given the amount of time the likely ASB had been occurring, by July/August 2021 the option of an Acceptable Behaviour Contract should have been explored at an earlier stage in the matter.
  8. Ultimately the situation resolved itself when the neighbour moved from the property. The evidence that the Ombudsman has seen indicates that the neighbour’s move was not as a direct result of any intervention from the landlord.
  9. The Ombudsman finds that there has been maladministration by the landlord with respect to its handling of the resident’s reports of ASB.

Noise nuisance

  1. The resident’s complaint referred to different types of noise nuisance – including a barking dog, noise from the floor and loud music. However, the loud music was the primary focus of the resident’s complaint and the landlord’s response.
  2. The evidence indicates that the landlord attended the property on several occasions following reports by the resident, however on most of these occasions no loud music was heard. It appears that the resident reported that the music was typically played in 15 minute bursts, which therefore by its very nature would make it difficult for the landlord to witness.
  3. The landlord wrote to the neighbour on 30 November 2020. It gave a noise abatement notice on 19 February 2021 which it followed up in writing on 9 June 2021.
  4. Whilst the landlord did take steps regarding the reported noise nuisance, the Ombudsman finds that it was a failing by the landlord that it took the position that to take significant steps to progress the matter it required that the noise nuisance be directly witnessed by an officer. It is not clear why the landlord took this position. The Ombudsman appreciates that it is necessary to collect appropriate evidence to support taking legal steps regarding a statutory noise nuisance. However, it is not a strict requirement that the noise be directly observed by the landlord. The landlord’s own Noise Nuisance Procedure sets out that there are a number of ways in which evidence can be gathered, including the NoiseApp, and service user evidence, eg, photographs/videos and planned visit(s). The Procedure further specifically sets out that at the stage of proceeding to take action the Noise App can be used to gather evidence. The landlord also had noise recording equipment itself which could be used as evidence in legal cases against noise nuisance. The Ombudsman has not been provided with a persuasive reason why the noise needed to be witnessed by an officer in this case. The evidence indicates that the resident had gathered a significant amount of NoiseApp evidence and the landlord did not indicate that this evidence was not sufficient. Rather, its position was that this evidence could not be used.
  5. The landlord’s position that an officer needed to witness the noise nuisance created practical problems as the evidence indicates that there was no, or limited, availability of officers to attend at the required time. Even if it were reasonable for the landlord to take the position that direct observation of the noise nuisance by one of its officers was necessary, the landlord failed to take reasonable steps to ensure that there was reasonable availability of an officer. The Ombudsman acknowledges that Covid restrictions would necessarily have some impact. However, it appears that there were occasions when the resident attempted to contact the landlord but was unable to get through It further seems that the times available were largely limited to during standard business hours – when the resident was not home and was not the usual time of the noise nuisance. It was therefore not a reasonable proposal to gather necessary evidence to assess whether the submitted noise nuisance met the required statutory threshold for legal action.
  6. The Ombudsman finds that there has been maladministration by the landlord with respect to its handling of the resident’s complaint of noise nuisance.

Compensation

  1. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
  2. In this case, the Ombudsman is persuaded by the resident’s evidence that the matter caused significant distress to him and his wife. The Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards between £250 and £750 may be appropriate where there has been “considerable” failings by the landlord but no permanent impact on the resident. Taking this into account, the Ombudsman considers that it is appropriate to require that the landlord pay the resident £500 compensation for the distress and inconvenience caused by its failings within four weeks of the date of this determination.
  3. The Ombudsman also requires that the landlord undertake a review of how it handles complaints which include elements of both ASB and noise nuisance to ensure that each aspect is treated in the appropriate manner. The Ombudsman requires that the landlord provide the results of its review to the Ombudsman within twelve weeks of the date of this determination. 

Determination (decision)

  1. In accordance with section 52 of the Housing Ombudsman Scheme, the Ombudsman finds that there has been maladministration by the landlord with respect to its handling of the resident’s reports of ASB and noise nuisance from a neighbour.

Reasons

  1. The resident advised the landlord of his concerns about ASB on a number of occasions after the initial complaint in November, however it appears that the resident’s complaints about ASB became inappropriately subsumed within the noise complaint. As a result, the landlord failed to take reasonable steps to investigate the ASB within a reasonable timeframe.
  2. Whilst the landlord did take steps regarding the reports of noise nuisance, the Ombudsman finds that it was a failing by the landlord that it took the position that to take significant steps to progress the matter it required that the noise nuisance be directly witnessed by an officer.

Orders

  1. The Ombudsman requires that the landlord pay the resident £500 compensation for the distress and inconvenience caused by its failings within four weeks of the date of this determination.
  2. The Ombudsman requires that the landlord undertake a review of how it handles complaints which include elements of both ASB and noise nuisance to ensure that each aspect is treated in the appropriate manner. The Ombudsman requires that the landlord provide the results of its review to the Ombudsman within twelve weeks of the date of this determination.