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City of York Council (202205506)

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REPORT

COMPLAINT 202205506

York City Council

16 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:
    1. The landlord’s response to the resident’s reports about ongoing noise nuisance.
    2. The landlord’s decision to not allow the resident to move until they have lived in their property for 12 months.

Background

  1. The resident is a secure tenant of the landlord. The tenancy began on 12 January 2022. The landlord has no recorded vulnerability for the resident.
  2. On 22 February 2022 the resident first reported she was experiencing noise nuisance as her neighbour’s played music and musical instruments from around 7:30am to 11:30pm, every day. The resident continued to report noise nuisance throughout February, March, and April.
  3. The resident complained about how the landlord handled her reports of noise nuisance. As an outcome she wanted the landlord to take enforcement steps against her neighbour and to move.
  4. The landlord sent its final response on 5 July 2022. It explained that its policies did not support the resident moving within the first 12 months of her tenancy. It identified all the steps that it had taken to assess her noise complaint, and explained that despite its efforts, it had not witnessed any excessive noise.
  5. In her complaint to this Service, the resident explained she was unhappy with the lack of action by her landlord and would like to be allowed to move, and for the landlord to take enforcement steps against the neighbour. 

Assessment and findings

The landlord’s response to the resident’s reports about ongoing noise nuisance.

  1. The landlord’s Anti-Social Behaviour (ASB) policy states that it expects residents to tolerate a reasonable level of noise, as people go about their normal daily life. However, it explains that it will not tolerate noise nuisance. Applicable examples of noise nuisance include excessive noise from a television, radio, or hi-fi. The policy states that even if there is no statutory noise nuisance but there is ongoing noise that is causing a disturbance, tenancy action can still be considered.
  2. According to the landlord’s complaint investigation procedure, when the landlord receives a report of ongoing noise nuisance it should attempt to collect evidence. It can do so by either a visit or by installation of noise monitoring equipment. If a nuisance was not witnessed on one occasion, but the landlord believes that a nuisance might still occur, it can take further steps such as sending a warning letter to the alleged perpetrator or offer further visits to witness the nuisance. It can also install sound monitoring equipment in the resident’s property, or speak to the perpetrator in person. If no evidence is collected to establish a nuisance after three representative visits or three representative monitoring exercises the case should normally be closed.
  3. The landlord is obligated by the above policies to investigate reports of noise nuisance and gather evidence. It needs evidence of excessive noise to be able to take further action.
  4. After the resident first reported noise nuisance on 22 February 2022, the landlord encouraged the resident to talk with her neighbours. Following email exchanges with the resident the landlord sent a warning letter to the neighbour on 3 March 2022, requesting that they refrain from making excessive noise. It visited both parties on 9 March 2022 to discuss the issue. It also advised the resident to keep a diary of the noise, and stated its operatives could visit to witness the noise. It installed noise recording equipment on 26 March 2022, removing it a week later.
  5. After reviewing the recordings on 5 April 2022, the landlord was unable to identify any excessive noise. It informed the resident of this the same day. It again offered to visit to witness the noise and offered mediation between the parties. However, it stated that it could not currently take further action, as it needed to witness excessive noise to take enforcement steps against the neighbour. The resident continued to report the noise issues to the landlord, who continued to visit the property in an attempt to witness the noise.
  6. The landlord acted appropriately by investigating the resident’s reports extensively. It made multiple visits to the property (more than once in the early hours of the morning), sent a warning letter to the neighbours, discussed the issue with the neighbours in person and placed recording equipment into the home. Despite its efforts, it was unable to detect any excessive noise.
  7. The landlord behaved appropriately as it undertook its investigations for excessive noise, rather than limiting itself to investigating statutory noise. This was in line with the Housing Ombudsman’s Spotlight Report on noise complaints (“Time to be Heard”, published in October 2022) which explains that while a lack of statutory noise levels can limit landlords’ options, particularly with regards to potential enforcement action, it does not absolve them of the requirement to explore other suitable resolutions.
  8. In this case, the landlord considered other steps to provide a resolution. When it was not able to witness excessive noise, it still spoke to the resident’s neighbour, and offered mediation services. While experiencing noise issues may have been distressing for the resident, the landlord was unable to identify any excessive noise and therefore acted appropriately.

The landlord’s decision to not allow the resident to move until they have lived in their property for 12 months.

  1. The landlord’s allocations housing policy states that where an application is received from a resident within 12 months of a new tenancy they may not qualify unless there is a key change in circumstance which has been assessed, supported, and approved by the landlord.
  2. The landlord’s management transfers procedure guide states that a victim of harassment or other serious incident can be considered for an urgent transfer. The landlord will make one offer of the same size accommodation, out of the immediate area of concern. The resident will not receive a choice of area. There needs to be evidence that the harassment is serious (that there has been the threat of or actual violence, harassment based on race, sexuality, or disability). It also should have been persistent and targeted.
  3. The landlord’s home choice policy states that if the resident needs an urgent move but does not meet the criteria of a management transfer, they can be considered for a discretionary move. The resident will be placed away from the area in which they currently reside. If the resident refuses an offer that is deemed reasonable, priority will be withdrawn.
  4. The landlord applied the allocations housing policy stating that it was unable to allow the resident to bid for new properties within the first 12 months of her tenancy. However, it reconsidered this position, exercised its discretion, and waived the 12 month suspension on applying to the housing transfer list to enable the resident to bid for a new property. This was reasonable as it recognised the resident was upset, and although it was unable to establish noise of an excessive nature it used its discretion to allow the resident to seek another property. It also suggested that the resident seek a mutual exchange, and offered to help with that process. It is not clear whether the resident has now accepted the landlords offer of assistance in seeking a mutual exchange.
  5. The resident later applied for a more immediate move. The landlord was obligated to consider the resident’s application for a management /discretionary move. It behaved appropriately by assessing the resident’s needs concluding that the qualifying criteria of the policy were not fulfilled. Furthermore, such a move would not be suitable as the resident would not be given a choice of locality or property. The resident has very specific desires, namely a bungalow in a village.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports about ongoing noise nuisance.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its decision to not allow the resident to move until they have lived in their property for 12 months.

Recommendations

  1. The landlord to continue to offer its support to the resident in finding a suitable new property.