Clarion Housing Association Limited (202017591)

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REPORT

COMPLAINT 202017591

Clarion Housing Association Limited

8 March 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

This complaint is about how the landlord handled:
1. The resident’s reports of noise nuisance, antisocial behaviour and tenancy breaches from her upstairs neighbour.
2. The resident’s concerns that the path outside her house and a corridor were being used inappropriately by third parties, including a dispute about whether the path and corridor were communal or part of her property.
This investigation has also considered:
1. The landlord’s handling of the associated complaints.
2. The landlord’s record keeping.

Background

The resident is an assured tenant of the landlord. The property is a ground-floor maisonette. The landlord told the Ombudsman it has no recorded vulnerabilities for the resident. However, the Ombudsman notes that the landlord is aware the resident is disabled.

Policies and procedures

The landlord’s antisocial behaviour policy says:
1. It will adopt a supportive approach when dealing with victims, witnesses, and alleged perpetrators, and will be flexible in its approach to managing incidents, working in partnership with both internal and external partners to tackle antisocial behaviour.
2. Neighbour disputes, disputes over property issues, actions which amount to people being unpleasant, or everyday living situations which are not intended to cause nuisance or annoyance will not be considered as antisocial behaviour under the policy.
3. It will consider a wide range of interventions to deter or prevent antisocial behaviour. It will log all reports and referrals to statutory bodies, and monitor the outcomes.
4. It will not conduct an investigation into every report, as some incidents are a one-off event. It will investigate reports only when certain thresholds are met.
5. It will explain to residents that they are responsible for resolving neighbour disputes. It may arrange mediation for neighbour disputes if it thinks it would help resolve the issue.
6. When noise issues are reported, it will initially advise residents to try to resolve the noise issues directly with the neighbour in question, and signpost to environmental health where noise is excessive. When the threshold for noise reports is met, it will investigate noise issues within 5 working days.
7. It will investigate antisocial behaviour within 5 working days of the relevant threshold for investigation being met.
The antisocial behaviour policy also outlines the ‘thresholds’ at which the landlord will take action. Reports classified as ‘noise’ and ‘other ASB’ must meet the following thresholds:
1. 3 separate incidents reported within 7 days by the same household.
2. 5 separate incidents reported in the past 28 days by the same household.
3. 2 separate incidents reported in the last 28 days by 2 different households.
4. There is no threshold if it considers the complainant to be particularly vulnerable, and it has a duty of care.
The landlord operates a 2-stage complaints process. It must issue a stage 1 response within 10 working days, and a stage 2 response within 20 working days of an escalation request.

Scope of the investigation

Paragraph 42(a) of the Housing Ombudsman Scheme says that the Ombudsman may not investigate complaints which have not completed the landlord’s internal complaints process. At the time the resident referred her complaints to the Ombudsman, she raised a number of issues which had not completed the landlord’s internal complaints process. As such, the following parts of the resident’s complaint to the Ombudsman cannot be considered as part of this investigation:
1. The landlord’s handling of repairs (that complaint had completed stage 1 but not stage 2 of the landlord’s complaints process at the time this complaint was referred to the Ombudsman).
2. The landlord’s assertion that the bin store is communal rather than allocated to her property.
3. The landlord not providing her with copies of planning permission.
4. The landlord’s actions related to her rent account.
5. Her allegation that the landlord was illegally evicting her by making her home intolerable to live in.
6. The landlord’s handling of her mutual exchange.
7. Her concerns about fire evacuation routes from the building.
As part of her complaint, the resident said that the landlord has discriminated against her by accommodating her neighbour’s needs above her own. It is not within the Ombudsman’s remit to determine whether or not the landlord has discriminated against the resident, as that would be a legal finding only a court could make. However, the Ombudsman can consider whether the landlord took the resident’s vulnerability into account when determining what action would be appropriate in the circumstances of this case.

Summary of events

The landlord said the resident had reported noise nuisance from her upstairs neighbour in November and December 2020. The landlord has not provided any evidence related to those reports, or any action taken in response.
On 5 February 2021, the resident told the landlord that there had been significant noise from her upstairs neighbour’s flat over the weekend. She said this was during both the day and night, and asked the landlord whether it had resolved anything with the neighbour. She also reported delivery drivers for her neighbour using the path outside her flat to urinate, which she said was affecting her daughter’s anxiety. She said she would place planters over the path, and asked the landlord if it could do anything more permanent to stop it.
On 8 February 2021, the resident chased the landlord for an update on her noise reports. She added that there had been banging and crashing in the early hours of that morning. On 15 February 2021, she reported further noise from her upstairs neighbour. She said it was happening both day and night.
On 21 March 2021, the resident asked the landlord for an update on her noise reports. She said the noise had been getting worse, and that she was losing out on work and had to drop out of a course as a result of the effect the noise was having on her. She noted that the neighbour had removed the carpeting in their flat, and that she had thought the noise would stop now they were aware doing so was a tenancy breach.
On 31 March 2021, the resident contacted the Ombudsman. She said she had reported noise from her upstairs neighbour, but the landlord had not investigated the noise, save for telling her the neighbour had no carpets. She said the landlord had never asked her for any diary sheets, and that as her neighbour had been told to replace the carpets 6 weeks before, there was a tenancy breach. She said she had made a complaint at stage 1 on 5 January 2021, and would escalate the complaint to stage 2.
On 30 April 2021, the landlord responded to an enquiry from the resident’s MP. It said a technical officer had visited on 29 April 2021 and found no noise issues, and no repair issues or defects which could contribute to the noise transference. It said it had asked the resident for a noise diary, would carry out a visit to the property above, and would be trying to arrange mediation between the resident and her upstairs neighbour. It has provided no evidence of a visit in April 2021.
On 30 July 2021, the landlord sent the neighbour a tenancy warning letter regarding noise and their flooring.
On 16 August 2021, the resident sent the landlord video evidence she said showed her neighbour swearing at her Ring doorbell camera. The landlord acknowledged the resident’s report on 18 August 2021, and on 1 September 2021 asked her to provide diary sheets, and told her it would try to speak to the neighbour in question over the phone. She returned the diary sheets, and reported multiple incidents between 17 August and 2 September 2021. She said she was being woken every night by the noise which included the washing machine running at midnight and loud lift announcements she had started hearing throughout her property. She said she wanted the issue dealt with as a complaint.
The landlord’s investigation notes say it had spoken to the neighbour in August 2021, and could confirm that the property was carpeted. It has provided no evidence to show whether it accepted that confirmation from the neighbour at face value or inspected the property, as it has offered no inspection notes, investigation notes or contact notes.
On 24 September 2021, the resident sent the landlord a video recording which she said showed the upstairs neighbour’s carers leaving rubbish outside of the front door.
On 28 September 2021, the landlord reviewed the information provided by the resident. Its notes said she had returned diary sheets, and that the noise included daily loud banging from 11pm until 1.30am, a loud television, and the use of the washing machine overnight. Its notes said she had reported that the issues had been ongoing for a year, and that her carer was unable to stay overnight as a result.
On 1 October 2021, the landlord wrote to the resident to acknowledge her reports. It said it could not investigate every incident, and would only look into the reports if there were several reports in a week, widespread nuisance, or the issue was reported by several residents over the period of a month. It asked her to make a note of any further incidents and to report them to it.
On 4 October 2021, the landlord told the resident that it had been unable to gain access to repair a faulty light fitting outside the front external door to the property. It said if she did not provide access, it would apply for an injunction.
On 7 October 2021, the resident wrote to the landlord. She said:
1. The incident she had reported was not a one-off incident, and she had been reporting the neighbour since October 2020.
2. The loud banging happened every night, and she had made a number of reports to the landlord. She had fibromyalgia, which was impacted by the noise, and the situation was leaving her depressed.
3. It had already been established that the upstairs neighbour had removed the floor covering without permission. She had requested noise recording equipment, and been told she was on the waiting list for it.
4. Her neighbour and the neighbour’s carers had been swearing at her through her Ring camera and telling other residents she should never have been given her flat, as they did not think she was disabled.
5. The neighbour’s carers kept using the front door for access, and she believed it was her front door rather than a communal door. This meant they could see into her flat, and she had previously come out of the bathroom to see them looking in. The neighbour had their own front door, so there was no need for the carers to use hers.
6. She had to give up her studies, and also lost income as she was so stressed and anxious.
7. She had supplied numerous diaries, including video diaries, but nothing had ever been done. She said there had not been any mediation, or technical inspection of the upstairs flat.
On 18 October 2021, the resident replied to the landlord’s letter about the light fitting repair. She said the light was outside, so was unclear why the contractor had been unable to access it. She said she had been asleep at the time, as the neighbour’s noise nuisance meant she often fell asleep during the day.
On 19 October 2021, the resident wrote to the landlord after receiving a card saying she had blocked access to a communal area. She said the area in question was part of her property, not a communal garden, and the landlord was aware she had put the planter there to stop delivery drivers using her path as a bathroom.
On 21 October 2021, the resident wrote to the landlord again, and said it was bullying her as a vulnerable tenant. She said it had told her in a call the previous day that the path around her property was a communal area, and she disputed that was the case. She said it had previously confirmed in February 2021 that the path was part of her property as it ended in a dead end. She also said she had been complaining about her neighbour’s carers leaving rubbish outside of her door for 2 months.
On 22 October 2021, the landlord responded to the resident. It said it apologised if she felt bullied, and that was not its intention. It said it was normal to start a tenancy breach process if it was unable to gain access for works, and there were internet cables running under the path which a contractor needed to access. It said it was a grey area whether or not the path was communal, as tenancy agreements do not have legally defined boundaries. It said it had stopped the tenancy breach action due to the uncertainty. It said it would check its systems to see whether the waste disposal had been logged and, if not, it would raise the matter as a tenancy breach for inappropriate disposal of waste.
On 24 October 2021, the resident asked the landlord what it was doing about the noise from her upstairs neighbour. She said the noise was continual, and sounded like the neighbour was dragging furniture all night. She said she believed the landlord was being discriminatory in putting the neighbour’s vulnerable status above hers. She said she was unable to study or work as a result of the noise, that other residents were now using the path outside of her property, and that she wanted the landlord to tell the neighbour’s carers to stop using the hallway to the lift, and to stop leaving rubbish outside of the front door.
On 26 October 2021, the resident reported that she felt harassed by her neighbour, who kept shouting and swearing at her via her Ring doorbell. She said this was unprovoked, and was causing her anxiety.
On 27 October 2021, the resident contacted the Ombudsman. She said the landlord had not replied to her complaint. On the same day, the Ombudsman contacted the landlord to ask it to respond to the complaint.
On 2 November 2021, the landlord received an email from the local authority regarding noise reports from the resident. It contacted the resident on the same day to discuss her complaint. She said it had told her neighbour to replace the carpets by January 2021, but the noise was ongoing. She said she had changed the living room to a bedroom as a result of the noise, that a surveyor had said nothing could be done regarding the ceiling as it was a listed building, that no mediation had ever been arranged, and that the neighbour’s carers had been dumping rubbish outside her door for 2 months.
The landlord tried to call the resident on 4 November 2021 to discuss her reports, and sent her a letter when she did not answer. The letter said that as it had been unable to contact her, it would not take her reports any further, and the case would be closed on 12 November 2021.
The resident replied on the same day. She noted that the landlord had tried to call her, despite her previous request for all contact to be in writing. She said her complaint was against the landlord, not a report of antisocial behaviour, and that the relevant information was in her complaint letter of 7 October 2021. She reiterated that the landlord should not try to call her, as she wanted all information to be in writing.
On 8 November 2021, the resident sent the landlord a noise complaint about her upstairs neighbour, which was from another resident in the building. She said the neighbour and their carers were becoming a big problem, including spreading lies about her to other residents, and she wanted a response to her complaint. The landlord’s records say it was due to visit the property on that day, but it has provided no evidence of doing so.
On 15 November 2021, the landlord attempted to call the resident to discuss her complaint. It then issued a stage 1 response. It said:
1. It had provided a response regarding the planter and the tenancy breach letter on 22 October 2021, and the position remained the same.
2. She had reported noise from November to December 2020, April 2021 to May 2021, and in July 2021. It had investigated, with a technical surveyor attending the property. It found no building defects which would contribute to the noise, so wrote to the neighbour in July 2021 to remind them to be more mindful. The resident had reported more noise of the same nature in August and September 2021, as well as harassment.
3. It had reviewed the video recording provided and would take no further action as it was unclear what the neighbour was saying.
4. The video doorbell covered a communal area and no permission had been given for it, so it would be starting the tenancy breach process against her.
5. It had contacted the neighbour again in August 2021. The property was carpeted throughout with the exception of the kitchen and bathroom, which had linoleum flooring.
6. It had investigated the noise, taken account of the vulnerabilities of the household, and would not take any further action as the noise was not deliberate or malicious.
7. It apologised the mediation was not arranged. It would speak to the neighbour to see if they were happy to proceed with mediation.
8. It would speak to the neighbour and the carers about waste disposal, and that conversation would be followed up with a letter.
9. The neighbour used the second entrance for wheelchair access, and carers used it for ease of access. It was a communal door and the resident had her own separate front door to her flat.
10. It found there were no failings in its handling of antisocial behaviour and noise reports. It found there was a failing in not arranging mediation when offered, so it awarded £200 compensation for that.
On 16 November 2021, the landlord started a tenancy breach process against the neighbour for inappropriate disposal of waste. On 17 November 2021, it invited the neighbour to take part in mediation.
Between 23 and 25 November 2021, the landlord tried to call the resident 3 times, and told her it would close the case opened on 26 October 2021 as it had not been able to get hold of her. It also emailed her twice during that time to offer mediation, and indicated that the issues may be a lifestyle difference.
On 26 November 2021, the resident escalated her complaint. She said:
1. She found the landlord’s letters dismissive and arrogant, and had previously had issues with bullying from the landlord’s employees. She said this was why she had stopped any phone contact with the landlord.
2. There was noise nuisance every night. She could not report it via the online form as it generated an error message, which the landlord was aware of.
3. She felt it was clear what was being said in the video she had submitted. She had caught 3 incidents, and thought there were more, but she did not have time to sit and watch the camera.
4. The door was not communal, and it had already been established that the pathway belonged to her property. A previous threat of legal action for lack of access showed it was her door.
5. She was legally allowed to have a Ring doorbell covering communal areas, but it was covering her property.
6. She only wanted the neighbour to use the lift, not their carers or visitors. She felt them using the corridor was a breach of her privacy and trespass on her property.
7. She disputed there was adequate carpeting upstairs, and asked if it had actually been inspected. She said if the carpet had been replaced, adequate insulation had not been used.
8. Her noise diaries had never been taken into consideration, and the landlord was discriminating against her by prioritising the neighbour’s needs over hers.
9. The carers had stopped putting rubbish in front of the door, but were now putting it in her bin store.
On 9 December 2021, the landlord issued a tenancy warning letter to the neighbour for leaving rubbish outside of the front door.
On 16 December 2021, the resident contacted the Ombudsman again. She said the landlord had not responded to her complaint by the relevant deadline.
On 4 January 2022, the resident’s MP wrote to the landlord. They said the resident did not accept that the stage 1 response was closed, and she did not agree that the £200 compensation should be paid to her rent account. On 12 January 2022, the Ombudsman told the landlord that if it did not respond to the complaint by 20 January 2022, we would issue a Complaint Handling Failure Order to the landlord.
On 13 January 2022, the resident contacted the landlord to chase a response to her complaint. She said the Ombudsman had told it to respond by 20 January 2022, and she expected a response by then. She said its failure to respond to her complaint demonstrated ‘total disregard for the mental health and wellbeing of a disabled, vulnerable tenant’.
On 27 January 2022, the landlord issued a stage 2 response to the resident’s complaint. It said:
1. It was unable to confirm in writing that the pathway formed part of the property. It was a grey area, and the fact there was internet cabling there for other properties indicated it was not part of the property. It remained happy for the resident to leave planters in place so long as access was provided when needed.
2. It had visited the neighbour and seen that there was carpeting in their flat. The noise the resident could hear was from essential disability equipment. The exception was the washing machine being used at night, and it could write to the neighbour to ask they stop using the machine at night.
3. It could explore a noise comparison test with 2 technical officers attending the 2 flats to independently assess the noise. It would also speak to social services to see if any adjustments could be made to the neighbour’s equipment. However, most of the noise was everyday living noise, and it was limited in the action it could take.
4. It disagreed that the video recordings showed antisocial behaviour or harassment.
5. The front door was a communal front door, and anyone requiring step free or wider access was entitled to use that door.
6. The letter regarding access to repair a light was an odd request as the light was in a communal area. It assumed it was sent as part of an automated process, and apologised for the confusion.
7. It was reviewing whether the resident would be able to keep her doorbell camera in the corridor.
8. Bins were not allocated to a specific residence, so as long as the carers were putting the waste in a bin, that was sufficient.
9. It considered the compensation offered at stage 1 was sufficient, and offered a further £50 for delays in the stage 2 response.
On 11 February 2022, the resident contacted the landlord again. She repeated her previous comments that the corridor and door were not communal.
On 23 February 2022, the landlord wrote to the resident. It said the low ceiling exacerbated the sound of movement upstairs, however an inspection of the flat had taken place and the property above was carpeted throughout. It said the noise was unavoidable due to the neighbour being housebound, and the physical structure of the property, but a surveyor could advise if there were any additional steps which could be taken to reduce the noise transference. An email from the resident on the same day refers to the landlord suspecting the floor coverings had been removed, and inviting the landlord to inspect the property upstairs again. The landlord has not provided the Ombudsman with any records or notes of that inspection.
On 4 April 2022, the resident referred her complaint to the Ombudsman. She said:
1. The landlord had failed to follow its antisocial behaviour procedures, to check whether the property above had been carpeted, or to properly look into the noise.
2. The landlord had misled her into thinking the reports would be investigated.
3. The landlord had broken the law by preventing the peaceful enjoyment of her home.
4. The landlord had not followed its policies regarding complaints and correspondence.
5. She wanted compensation for stress and anxiety, lost work, and an inability to look for alternative employment.

Events after the resident’s complaint

On 7 December 2022, the landlord issued a stage 1 complaint response to a further complaint from the resident. It said:
1. The corridor was communal as it contained communal items such as lighting and a communal entrance door. The neighbour’s guests could only use the area if accompanying him to the lift, and would be encouraged to use the stairwell instead. However, if guests continued to use the lift, it would be unlikely to take tenancy enforcement action, as it would not be reasonable or proportionate to do so.
2. It had offered mediation, but not all parties had agreed to it.
3. It had liaised with the council’s antisocial behaviour team to arrange for noise monitoring equipment to be installed, and was also planning to carry out its own additional noise test within the following few weeks.
On 13 February 2023, the resident provided a copy of a recent email from the landlord. The landlord said it had met with the neighbour and the carers, and noted that new carpet had been laid in the upstairs property. It said the carpet covered most of the floor space but fell short of fully covering it, and that it had advised the neighbour and the carers to fully cover the floor to reduce noise transference. It said based on its observations during the meetings, the loud banging noises were the direct result of the neighbour’s disability.

Assessment and findings

Scope of the investigation – antisocial behaviour and noise nuisance

It is evident that this situation has been distressing for the resident. It may help firstly to explain that it is not the Ombudsman’s role to determine whether or not noise reported by a resident amounts to antisocial behaviour or statutory noise nuisance. It is also not the Ombudsman’s role to determine whether any noise nuisance or antisocial behaviour reported took place as alleged, or at all. Rather, the Ombudsman’s role in these types of complaints is to consider the evidence available to determine whether the landlord acted reasonably in response to the reports made, taking into account all the circumstances of the case.
When receiving reports of antisocial behaviour or noise nuisance, the Ombudsman would expect the landlord to record the reports, and carry out an investigation. This may include speaking to both parties to gather their version of events, speaking to any witnesses, reviewing diary logs or noise recordings, and liaising with other agencies where appropriate. The Ombudsman would also expect a landlord to complete an initial risk assessment at any early stage to assess whether their resident was vulnerable.
After reviewing the evidence gathered, the landlord should then determine the most appropriate action to be taken on a case-by-case basis. In practice, the options available to a landlord to resolve a case of noise nuisance or antisocial behaviour can be extremely limited, and may not extend to the resident’s preferred outcome. It is therefore important to consider whether the landlord has acted in line with its policies and good industry practice.

Noise nuisance

The landlord said the resident had reported noise nuisance in November and December 2020. The landlord has provided no details of the reports, or any evidence of any action being taken in response, either in terms of investigation, appropriate signposting, managing the resident’s expectations, or any risk assessment to consider whether the resident was vulnerable. The resident has referred to her neighbour having removed their carpeting in breach of their tenancy, and the landlord instructing them to replace the carpeting by January 2021. The landlord has produced no evidence in this regard.
The resident reported ongoing noise from the same neighbour throughout February and March 2021, and chased a response from the landlord. Again, the landlord has produced no evidence of taking any action in response. Without that evidence, the Ombudsman can only conclude that the landlord ignored multiple reports from a vulnerable resident. This was wholly inappropriate and unreasonable.
The landlord told the resident’s MP that it sent a technical officer to visit the property on 29 April 2021, and that the officer had identified no noise issues, and no repair issues or defects which would contribute to the noise transference. An inspection to identify building defects which could contribute towards noise nuisance is an important and reasonable step to take when excessive noise from everyday living is reported. However, the landlord has provided no evidence to show it had investigated the noise prior to that stage, or carried out sufficient investigations to conclude that the noise was everyday living noise. It has also provided no evidence of that inspection or its results.
The landlord told the resident’s MP that it had asked her for noise diaries, and would attempt to arrange mediation. Both would be reasonable steps the landlord could and should have taken earlier. However, it has provided no evidence of either asking the resident to complete noise diaries or attempting to arrange mediation at that stage. The landlord’s next action was to send the neighbour a tenancy warning letter regarding noise and their flooring 3 months later. While a tenancy warning letter can be a reasonable and useful step to take, the landlord has provided no explanation for why it was not issued sooner, or why it appears to have taken no action at all for 3 months after responding to the resident’s MP.
When the resident made further reports in August 2021, the landlord did take some action in response. It acknowledged her reports, provided diary sheets for her to complete, spoke to the neighbour, and reviewed the diary sheets she returned. Those were all reasonable steps to take. It is of concern, however, that the landlord still did not carry out a risk assessment, despite the resident reporting that her carer was unable to stay at the property as a result of the noise.
When the landlord wrote to the resident on 1 October 2021, it told her it would not investigate all reports, and would only look into the reports if the various thresholds in its policy were met. It did not specify whether the letter related to the noise, or to her more recent reports of antisocial behaviour and inappropriate disposal of rubbish. The resident’s vulnerability meant there was no threshold for investigation of her noise reports under the landlord’s policy and, in any event, the resident’s reports had already met the thresholds for investigation that would apply were she not vulnerable. The landlord had therefore failed to apply its own policy appropriately at that stage, and its suggestion that this was a one-off report which did not meet the relevant thresholds demonstrates that it had failed to properly assess the reports.
When making her complaint on 7 October 2021, the resident set out the nature of the reports and the effect it had on her disabilities and her daily life in detail. She then chased the landlord for a response to her noise reports throughout October 2021. The landlord has provided no evidence of taking any action regarding the noise until 15 November 2021, when it issued its stage 1 response to the complaint. At that stage, it told the resident it would not take any further action as the noise was neither deliberate nor malicious.
Given the ongoing issues with noise, and the impact the resident told the landlord the noise was having on her life and her disability, it was unreasonable for the landlord to tell the resident it would take no further action at that stage, as it had not exhausted the various options and investigations available. For example, it has produced no evidence of signposting the resident to environmental health or trying to liaise with the local authority to have noise-recording equipment installed sooner, or of assessing whether the new carpets put down by the neighbour had adequate soundproofing. It has also produced no evidence of considering or attempting any of the multiple further options it set out in its stage 2 response, and it is of concern that it took a stage 2 complaint for the landlord to consider any further possible options beyond mediation.
When issuing its stage 2 response, and shortly after the response, the landlord promised the resident a series of further steps it could take to reduce the impact of the noise. These included writing to the neighbour to ask them not to use the washing machine at night, arranging a noise comparison test, speaking to social services about any possible adjustments to the neighbour’s disability equipment, and arranging for a surveyor to identify any further steps to reduce noise transference. The landlord has not demonstrated that it took the various steps following its complaint response, so has also not demonstrated that it appropriately learned from the complaint.

The landlord’s handling of antisocial behaviour (other than noise)

The resident said her upstairs neighbour and the neighbour’s carers were harassing her. She said they were swearing at her through her Ring doorbell, and telling other residents that she should not have her flat as they did not think she was disabled. The landlord said it did not think there were any service failures in its handling of her reports.
Based on the evidence provided, the resident first reported potential antisocial behaviour on 16 August 2021, when she told the landlord that her neighbour had been swearing into her doorbell camera. This was reported alongside her noise reports. The landlord acknowledged the report, and provided diary sheets for the resident to complete. It also told her it would try to speak to her neighbour over the phone. This was a reasonable and appropriate step to take, as the landlord would need to gather evidence of any reported antisocial behaviour before determining whether any further action would be appropriate. However, it waited 2 weeks to provide the diary sheets, and has provided no evidence to show it carried out any risk assessment to determine whether the resident was vulnerable.
The resident reported further incidents on 7 and 26 October 2021. She told the landlord that she felt harassed, and that the neighbour kept swearing at her via the doorbell. It opened an antisocial behaviour case, and called the resident to discuss the reports on 4 November 2021. When she did not answer the call, it wrote to her to tell her it was closing the case. It was reasonable and appropriate for the landlord to contact the resident for further information about her reports. However, it was not appropriate for it to ignore her previous requests for all communication to be in writing, or to close the case after a single failed communication attempt.
When responding to the resident’s complaint, the landlord told her that it had reviewed her video footage, and that it did not intend to take any further action. It said it was unclear what the neighbour was saying in the footage. It then attempted to call the resident 3 times between 23 and 25 November 2021 to discuss the reports. This was despite the resident’s repeated requests for all contact to be in writing. It is unclear whether the landlord failed to record the resident’s communication needs, or chose to ignore them. Either would be inappropriate.
When issuing its final complaint response, the landlord explained that it had reviewed the footage, and disagreed that the footage showed harassment. While the Ombudsman appreciates that the resident disagrees with that interpretation, it is not the Ombudsman’s role to determine whether or not the reported behaviour amounted to antisocial behaviour or harassment, but to assess whether the landlord investigated appropriately.
Under its antisocial behaviour policy, the landlord is required to investigate reports within 5 working days when its threshold for antisocial behaviour has been met. When the resident made reports, the landlord was required to review the evidence provided and determine whether or not the actions of the neighbour amounted to antisocial behaviour under its policy. It would then either need to investigate and determine any appropriate action in line with its policy, or explain to her that the behaviour did not amount to antisocial behaviour under its policy. The landlord did neither until it issued its response to her complaint.
As the landlord assessed the evidence provided when looking into the complaint and concluded that it would not take any further action, the Ombudsman has not seen any evidence to suggest that the overall outcome would have be different had the landlord investigated the reports sooner. However, its delay and failure to carry out a risk assessment were both unreasonable, as was its decision to ignore the resident’s communication needs.

Tenancy breaches (waste disposal)

The resident told the landlord on 21 October 2021 that she had been reporting issues with her upstairs neighbour and their carers leaving rubbish outside of her front door for 2 months. The earliest report the Ombudsman has been provided evidence of was on 24 September 2021. In the absence of evidence of any reports prior to that date, the Ombudsman can only consider how the landlord handled reports from 24 September 2021 onwards.
The resident told the landlord on 24 September 2021 that her neighbour’s carers had been leaving rubbish outside of her door. The landlord acknowledged the report, told her that it would not investigate every incident, and asked her to report any further incidents. It was reasonable and in line with its policy to manage the resident’s expectations, and to explain that it would not investigate a one-off incident.
When the resident made further reports about the rubbish to the landlord, it told her it would start its tenancy breach process against the neighbour. It then issued a tenancy warning letter to the neighbour. Following that warning letter, the neighbour’s carers started putting the rubbish in bins. The steps taken by the landlord regarding the reports of rubbish being left outside the door were reasonable, proportionate, and appropriate. Having said that, they are steps which could and should have been taken sooner. For example, the landlord told the resident on 21 October 2021 that it would start the tenancy breach process, but did not write to the neighbour until 9 December 2021. It has provided no explanation for the delay, so the Ombudsman cannot reasonably conclude that it was unavoidable.

Summary – handling of noise nuisance, antisocial behaviour, and waste disposal

Good record keeping is an essential part of dealing with reports of antisocial behaviour and noise nuisance. As set out above, the records provided by the landlord are incomplete and wholly inadequate. The absence of appropriate records has impacted this Service’s investigation, as it has made it difficult to establish when reports were made, and what actions the landlord had taken in response. In the absence of clear evidence, the Ombudsman can only conclude that the landlord did not take appropriate action or take account of the resident’s vulnerability.
The limited evidence provided by the landlord shows that the resident had been reporting noise nuisance since at least November 2020. Other than an undocumented visit to the neighbour’s property, and an instruction to the neighbour to replace the carpet that had been removed, there is no evidence of the landlord responding to the resident’s reports of noise nuisance in any meaningful way. It has not shown that it attempted to gather evidence, investigate the reports, or take any other action for months after the resident began reporting noise nuisance.
The landlord has only shown that it took meaningful steps to investigate and resolve the issues after the resident made a complaint, and the steps taken were incomplete, as set out above. It is also concerning that the landlord has provided no evidence of ever carrying out a risk assessment to assess the resident’s vulnerability, especially when she has repeatedly referred to the impact of the noise on her disability, including that it prevented her carer being able to stay with her. It is also concerning that the landlord told the Ombudsman it has no recorded vulnerabilities for the resident when it is entirely aware of her vulnerability.
The landlord also failed to carry out any risk assessments when the resident reported antisocial behaviour, demonstrating a persistent failure to consider the vulnerability of its residents. While the landlord took steps to assess the reports of antisocial behaviour and tenancy breaches, those steps were unreasonably delayed.
In summary, the landlord has failed to show it responded appropriately to the resident’s noise reports at any stage, and its handling of the reports of antisocial behaviour and tenancy breaches was unreasonably delayed. It failed to recognise any service failures when investigating the complaint other than a failure to arrange mediation, and has not shown it has learned from the complaint. Its poor handling of the resident’s reports amounts to maladministration.
The Ombudsman has previously found maladministration following other investigations into the landlord’s handling of antisocial behaviour reports involving vulnerable residents, and its knowledge and information management surrounding reports of antisocial behaviour. As a result of this, a wider order has previously been issued to the landlord under paragraph 54(f) of the Housing Ombudsman Scheme. The landlord has been ordered to carry out a review of its practices in relation to its handling of antisocial behaviour, the presence of vulnerability in antisocial behaviour case management, and its knowledge and information management.
The issues identified in this case are similar to previous cases, and so the learning from this complaint should be incorporated into the wider review ordered as part of case 202214653. We have not made any orders or recommendations as part of this case which would duplicate those already made as part of the wider order. However, we have considered what the landlord needs to do to put things right in this case.
When a landlord has acted inappropriately or unreasonably, the Ombudsman determines the appropriate redress by considering what would put the resident in the position they would have been in had the landlord acted appropriately. It is also important to differentiate between detriment caused to the resident by the noise or the neighbour’s behaviour, and detriment caused by the landlord’s actions.
The landlord is not responsible for the neighbour’s reported actions, and no action which a landlord could take, with the possible exception of eviction, could be guaranteed to prevent someone from engaging in antisocial behaviour or creating noise nuisance. The Ombudsman would not therefore expect a landlord to compensate the resident for distress and inconvenience caused by the neighbour’s reported actions. It would only be expected to pay compensation for any distress and inconvenience caused by the way it handled the resident’s reports.
It is impossible to determine whether or not the outcome of the resident’s noise reports would have been different had the landlord investigated her reports reasonably, or appropriately considered her vulnerability. As explained above, the options available to a landlord to resolve noise nuisance can be extremely limited, and it is not for the Ombudsman to consider hypothetical outcomes. The Ombudsman can only consider actual and evidenced detriment to a resident as a result of a landlord’s failings.
The landlord offered the resident £200 compensation for its failure to arrange mediation. However, this compensation does not take account of the various other failings the landlord did not identify as part of its complaint investigation. The compensation offered is therefore insufficient.
Having considered all of the circumstances of the case carefully, the Ombudsman considers that the landlord should pay the resident £700 compensation for the distress and inconvenience caused by its maladministration in handling reports of antisocial behaviour and noise nuisance. This is in line with the Ombudsman’s published remedies guidance for failings which have a significant impact on the resident.
In addition to paying the above compensation, the landlord must issue a written apology to the resident for the failings identified in this report. It must also write to her to set out all of the steps it has taken and investigations it has undertaken to resolve the noise issues, what further steps (if any) it plans to take and when, and, if there are no further options available, what rehousing options it can offer her (if any) given the reported impact of the noise on her disability.

The use of the pathway, front door, and corridor

The resident is unhappy that the landlord has not taken steps to prevent her neighbour’s carers and visitors from using the external front door or hallway leading to the lift, or to prevent delivery drivers or other third parties using the path outside of the property. She says the path, external front door and hallway inside the external front door are part of her property. The landlord says that all of the relevant areas are communal, so do not form part of the resident’s property. However, it said there was a grey area over the external path, and has therefore revoked a tenancy warning it sent to the resident for blocking the path.
Tenancy agreements do not generally have clearly defined boundaries for properties in the way that registered leases do. As it is the landlord who grants the tenancy, it is for the landlord to determine, at the time of granting the tenancy, which parts of the building and surrounding areas form part of the property under the tenancy. It is not for the Ombudsman to dispute the landlord’s position on what is or is not included in the tenancy, unless the decision is clearly incorrect based on the evidence provided (for example if the landlord’s position is expressly contradicted by the tenancy agreement).
There is nothing in the tenancy agreement or the circumstances of the case which shows the landlord’s decision was demonstrably incorrect, and it is therefore not within the Ombudsman’s remit to determine whether or not the corridor, external front door and path are communal or part of the resident’s property. However, the Ombudsman will consider how the landlord communicated with the resident with regard to those areas.
The resident told the landlord in February 2021 that delivery drivers had been using the path outside of her flat as a bathroom, and that she would put planters in place to stop them doing so. At the same time, she asked the landlord if it could arrange a more permanent solution. The resident then received a card in October 2021 which said she had blocked access to a communal area by blocking the path. She told the landlord it was bullying a vulnerable tenant, and that the delivery drivers and contractors were breaching her right to privacy.
The landlord is not responsible for the actions of delivery drivers, and is not required to prevent delivery drivers using outdoor paths around the building. Given that the resident had told the landlord twice that she would be placing planters on the path and it did not respond, the Ombudsman would have expected it to contact her regarding the planters before starting tenancy enforcement action.
However, when the resident raised her concerns with the landlord, it told her that while it considered the path was communal, it accepted there was a grey area. It set out its reasoning, and confirmed it had stopped any tenancy breach action. It also acknowledged the resident’s concerns about delivery drivers, told the resident she could leave the planters in place as long as she provided access when requested, and offered to look into installing lighting in the area to deter delivery drivers from using the area as a bathroom. It also apologised for starting the tenancy breach process. This was a reasonable and appropriate approach in the circumstances, and its actions in response to the resident’s concerns were sufficient to put things right with regard to the planters and outdoor path.
In October 2021, the resident reported that her neighbour’s carers were using the external front door and corridor. She said there was no need for them to use that front door as there was a different entrance to her neighbour’s flat, and she wanted the landlord to tell them to stop. The landlord told the resident in its stage 1 and stage 2 responses that the front door and corridor were communal, and set out its reasoning. It would have been helpful had it replied with its reasoning sooner, rather than months later as part of its complaints process. However, given that it has consistently maintained that the door and corridor are communal, the Ombudsman has not seen any evidence of specific detriment the delay caused the resident.
Overall, the landlord had, at the time of the stage 2 response, largely acted reasonably with regard to the resident’s concerns about the external path, external front door, and corridor. It consistently maintained that the areas were communal, and where there was a grey area, it promptly revoked the tenancy warning and confirmed the resident could leave the planters in place. There was a service failure with regard to its communication, for the reasons set out above. In the absence of any evidence of a specific detriment to the resident as a result, the Ombudsman considers that an apology for delays in communication regarding the external door and corridor would be sufficient redress to put things right.
The Ombudsman notes that, following the complaint, the landlord wrote to the resident regarding the corridor again. While it maintained that the corridor was communal, it also referred to placing restrictions on use, and whether or not it was likely to start tenancy breach proceedings if the neighbour’s carers continued to use the corridor. That letter was sent after the internal complaints process, so cannot form part of this investigation. However, the Ombudsman has made a recommendation below with a view to avoiding any further confusion as to whether or not the areas are communal.

The landlord’s knowledge and information management, and record keeping

It is vital that landlords keep clear, accurate and easily accessible records of any reports of noise or antisocial behaviour. This is not just so that they can demonstrate to the Ombudsman that they have acted appropriately, but so that they can effectively investigate any ongoing reports and gather sufficient information to take enforcement action, if appropriate in the circumstances of the case. Good record keeping is also essential for ensuring that a landlord is aware of any vulnerabilities of its residents.
As part of this investigation, the landlord was asked to provide documents, correspondence, and any other evidence relevant to the resident’s reports of noise and antisocial behaviour. In response, the landlord only provided limited information, which did not include any evidence of cases being opened or action being taken for a number of the reports, or any action plans, risk assessments, case reviews, or details of any investigations into a number of the reports. It has also failed to provide notes of various actions it has referred to in its complaint responses, such as inspections of both the resident’s property and the upstairs neighbour’s property.
It is also of concern that the landlord told the Ombudsman, when providing its evidence, that it had no recorded vulnerabilities for the resident. This was despite the landlord being aware that the resident is disabled, with disabilities exacerbated by stress, her having reported living with anxiety when discussing the reported noise and antisocial behaviour to the landlord, and her having told the landlord that her carer was unable to stay at the property due to the noise. It has also failed to clearly record the resident’s communication needs, which led to multiple staff members trying to contact the resident by phone, despite her express and repeated request that all contact be in writing. This demonstrates that the landlord either does not have a system in place for recording vulnerabilities and communication needs, or does not make appropriate use of the system.
Good knowledge and information management goes hand in hand with dealing with antisocial behaviour and noise reports. It is unclear whether the landlord has not taken a number of essential steps, has taken the steps but retained no records of doing so, or has kept records in a way that the information cannot be located to be provided to the Ombudsman. In any event, the omissions from the landlord’s evidence indicate poor knowledge and information management by the landlord, which has hampered this investigation. Its poor knowledge and information management amounts to maladministration.

Complaint handling

The resident said she made a complaint about the landlord’s handling of her reports on 5 January 2021. However, the Ombudsman has not seen any evidence to show a complaint, rather than a report of noise nuisance or antisocial behaviour, was made at that time. Based on the evidence available, the resident expressed dissatisfaction with the landlord’s handling of her reports on 31 March 2021. She then made subsequent complaints on 16 August and 7 October 2021.
The landlord was required to issue a stage 1 response within 10 working days of the resident’s complaint. It did not do so. It issued a stage 1 complaint on 15 November 2021. This was significantly delayed, and was only issued following contact from the Ombudsman. The landlord has provided no explanation for this.
The resident asked to escalate her complaint on 26 November 2021. Under its complaints policy, the landlord had 20 working days to issue a response. It did not respond within that timeframe. It issued a stage 2 response on 27 January 2022, which was 41 working days after the escalation request. It issued that response following contact from the resident’s MP, and after the Ombudsman told the landlord it would issue a Complaint Handing Failure Order if the landlord did not respond to the complaint. This was an unreasonable delay, for which the landlord has provided no explanation.
The result of the landlord’s poor complaint handling was that a vulnerable resident had to repeatedly chase the landlord for a response and ask the Ombudsman for help in escalating her complaint, causing distress and inconvenience. The landlord offered £50 compensation for the delay in its stage 2 response. That compensation offer does not adequately address the level of distress and inconvenience caused by the landlord’s poor complaint handling. That poor complaint handling amounts to maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration with regard to the landlord’s handling of the resident’s reports of noise nuisance, antisocial behaviour and tenancy breaches.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been a service failure with regard to the landlord’s handling of the resident’s concerns about the external path, front door, and corridor.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration with regard to the landlord’s record keeping and knowledge and information management.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration with regard to the landlord’s handling of the associated complaint.

Reasons

The landlord failed to investigate and handle the resident’s reports of noise nuisance or antisocial behaviour in line with its policies or good industry practice, and repeatedly failed to consider the resident’s vulnerabilities in its response to the reports. When it did investigate, those investigations were unreasonably delayed and largely incomplete. The compensation offered by the landlord does not sufficiently address the detriment to the resident.
It is not within the Ombudsman’s remit to determine whether or not the external path, front door and corridor between the door and lift are communal areas or part of the resident’s property. However, there were failings in the landlord’s communication when responding to the resident’s concerns, and it has not done enough to put things right.
The landlord’s records are incomplete, with missing information related to reports, risk assessments, and action taken in response to noise and antisocial behaviour reports. It also failed to appropriately record the resident’s vulnerability or communication needs.
The landlord’s response to the resident’s complaint was unreasonably delayed at both stage 1 and stage 2. The £50 compensation offered is insufficient.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Issue a written apology to the resident for the failings identified in this report. The apology must come from a Director-level member of staff.
2. Pay the resident £900 compensation for the distress and inconvenience caused by the failings identified in this report (inclusive of the £250 compensation previously offered by the landlord). This is broken down as follows:
  1. £700 for its poor handling of the resident’s reports of noise nuisance, antisocial behaviour, and tenancy breaches by her upstairs neighbour.
  2. £200 for the distress and inconvenience caused by its poor complaint handling.
3. Write to the resident to set out the following with regard to her reports of noise:
  1. All steps it has taken to investigate the noise, and when each of those steps was taken.
  2. The results of its investigations, including the findings of any surveys or technical inspections.
  3. What options it has considered to reduce noise transference from the property above, including soundproofing. If any options were considered and not carried out, it must explain why it concluded those options were not feasible in this case.
  4. What further steps it intends to take to reduce the impact of the noise transference on the resident, and when it intends to take those steps. If it does not intend to take any further steps, it must explain why. The explanation must include details of how it has taken the resident’s vulnerability into account.
  5. Whether, if it is not possible for it to take any additional steps to resolve the noise, it is able to offer the resident any rehousing options given the significant effect she has reported the noise has on her as a result of her vulnerability.
The landlord is further ordered to incorporate learning from the failings identified within this determination into the wider review of its practices in relation to its handling of antisocial behaviour, the presence of vulnerability in antisocial behaviour case management and its management of knowledge and information in relation to its handling of antisocial behaviour reports ordered as part of case 202214653. It must do so within 10 weeks of the date of this report.
The landlord is to reply to this Service to provide evidence of compliance with these orders within the timescales set out above.

Recommendations

It is recommended that, within 4 weeks of the date of this report, the landlord seeks appropriate advice as to whether the external path, external front door and corridor between the front door and the lift are communal areas or form part of the resident’s property, as well as the extent of any rights of way (if any) over those areas. It should then write to the resident to set out its final position on the matter, together with its reasoning.
The landlord should write to the Ombudsman within 4 weeks of the date of this report to set out its intentions with regard to the above recommendation.