Haringey Council (202115076)

REPORT

COMPLAINT 202115076

Haringey Council

13 May 2022

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 regarding:
   1. The landlord’s response to the resident’s reports of noise nuisance and antisocial behaviour (ASB).
   2. The landlord’s decision to decline the resident’s request for a management transfer.

Background

2. The resident is a secure tenant of the landlord, which is a local authority. The property is a flat in a communal building.
3. The resident has complained about issues relating to noise nuisance from the neighbour in the property below. He had also experienced ASB from the neighbour when he has spoken to them about the noise. The resident has reported these incidents to both the landlord and the police. He also believed that the neighbour had installed modifications in order to deliberately amplify the level of noise transference into his property.
4. In response to the complaint, the stated:
   1. What action it had taken to investigate the ASB reports since the stage one response was sent.
   2. That its inspections of the neighbour’s property had found no evidence of any equipment or flooring type that would amplify noise into the resident’s property.
   3. Although his request for a management transfer had been declined, there were several other property transfer options and schemes available to him. The landlord then provided information of these schemes to the resident.
   4. It was satisfied that it had properly responded to the complaint.
5. The outstanding issues for the resident are that the noise nuisance was still occurring, and the landlord had not properly investigated whether the neighbour was using unauthorised modifications in order to amplify noise into his property. As his desired outcome to the complaint, the resident requested that the landlord undertake a full investigation to identify what modifications the neighbour had made, remove them from the property and then take the appropriate tenancy enforcement action.

Assessment and findings

Relevant policies and procedures

6. The landlord’s ASB policy defines antisocial behaviour as:
   1. Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.
   2. Conduct capable of causing nuisance or annoyance to a person in relation to that person`s occupation of residential premises.
   3. Conduct capable of causing housing-related nuisance or annoyance to any person.
7. The policy states that the landlord will respond to urgent ASB reports within one working day and non-urgent reports within five working days. Urgent reports are defined as incidents “involving violence, the threat of violence, hate crime, abuse, intimidation or other ASB requiring immediate partnership approaches”. Non-urgent ASB is defines as incidents “involving noise nuisance, neighbour disputes, environmental issues and other less complex ASB”.
8. The policy goes on to state that before considering taking action against an alleged perpetrator it will look engage with the parties involved to attempt to reach an agreement by offering support, recommending mediation and agreeing a course of against with the victim, the alleged perpetrators and other witnesses. The policy also notes that it will pursue this method of resolution in cases where it has not been possible to gather evidence to enable it to take action against the alleged perpetrators.
9. The landlord’s housing decisions panel policy describes how it uses its discretionary powers to award additional priority and approve offers of housing in exceptional cases. In regard to management transfers, the policy states as follows:
   1. In exceptional circumstances, tenants may be provided with an emergency management transfer. This will occur when the Housing Decisions Panel has determined that a transfer to alternative social housing offers the most appropriate way of ensuring the personal safety of the tenant, members of their household and/or the local community.
   2. Although most of the transfer requests that are approved relate to extremely serious incidents involving domestic violence, intimidation and harassment, hate crime or threats to kill, the Panel will only approve a transfer where it is satisfied that all other ways of resolving the problem have been exhausted and that it would not be reasonable to expect the tenant to continue living in their home.
10. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide an acknowledgment within two working days and a response at stage one within ten working days. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response within 25 working days. This will be the landlord’s final response to the complaint.

How the landlord responded to the resident’s reports of noise nuisance and ASB

11. It is outside the Ombudsman’s role to establish whether the noise nuisance and ASB reported was occurring or not; rather the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.
12. The documents provided to this Service indicate that the resident’s local councillor contacted the landlord about his reports of poor soundproofing in the building and the noise nuisance in May 2020. There were several reports and communications between the parties on the issue from then to December 2020. On 22 January 2021, the resident wrote to the landlord to inform it that he had written to his neighbour to advise them that he would apply to the courts for a noise abatement order if the noise nuisance continued. He also informed the landlord of a visit he had made to the police station the previous evening.
13. As a result of this correspondence a formal complaint was opened, and a stage one complaint response was sent to the resident on 1 February 2021. The landlord informed him that it had opened an ASB case to investigate the allegations of harassment and intimidating behaviour reported by the resident. It had also arranged appointments for 25 February 2021 to visit both the neighbour and the resident and to ensure that no unauthorised works had been carried out to the neighbour’s property.
14. The Environmental Protection Act 1990 and Noise Act 1996 give landlords the power to act where there is “excessive” noise between the hours of 11pm and 7am in domestic premises. The term “excessive” is not defined within either Act.
15. During the time period considered in the complaint, no evidence of noise nuisance had been gathered that would have enabled the landlord to take action against the neighbour. The landlord wrote to the resident on 25 February 2021 summarising the meeting they had that day. It confirmed that his request for a management transfer would be considered by its housing decisions panel and advised him what information the panel would require to make the decision.
16. On 22 March 2021, the police wrote to the resident to inform him that they would not be taking any further action relating to the allegations of ASB he made against his neighbour.
17. A second unannounced visit to the neighbour’s property occurred on 9 April 2021. The operatives who attended informed the landlord that it had found no evidence of any items or any unauthorised work which would cause noise nuisance in the manner suggested by the resident.
18. To summarise its actions, the landlord has made announced and unannounced visits to the neighbour’s property to investigate the resident’s allegations that authorised modifications had been made to deliberately amplify noise into the resident’s property. The landlord also received recordings from the resident and advised the resident about its noise app and how to report incidents of noise nuisance to Environmental Health (EH). It also opened an ASB case and contacted both the resident and the neighbour to discuss the matter.
19. For the landlord to take formal action against an alleged perpetrator of ASB, it requires sufficient supporting evidence that the behaviour is causing significant nuisance and/or harm to others and has occurred over a prolonged of time. Furthermore, the landlord cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as being statutory noise nuisance, then both the landlord and EH may be able to take formal action against the perpetrator, such as by issuing a tenancy warning or an acceptable behaviour agreement.
20. In this case, the evidence gathered during the period of the complaint did not support this course of action. The evidence had not shown statutory noise nuisance that could be deemed excessive. The landlord’s actions in working with the resident to gather more evidence was the appropriate action to take in the circumstances. Therefore, there is no evidence of failure in how the landlord responded to the resident’s reports of ASB and noise nuisance.

The landlord’s decision to decline the resident’s request for a management transfer

21. During its visit to the resident’s property on 25 February 2021, the resident made a request to be rehoused via a management transfer. The landlord informed the resident what information it would require in order for it to consider the request. This was provided by the resident, and its housing decisions panel considered the request on 22 April 2021.
22. The request was refused on the grounds that “there is no evidence to substantiate the claims. Although the numerous complaints have caused some tension between parties, there is no evidence of risk to either party”. The landlord wrote a letter to the resident on 22 April 2021 informing him of the decision and also provided information on other rehousing options. This included information on internal transfers, mutual exchanges, home swapper, house exchange, and programmes that help social tenants rent or buy properties in the private sector.
23. Management transfers are not considered as part of a landlord’s normal transfer and/or allocations procedure. As management transfers are deemed to be initiated by the landlord, they are not covered by allocations rules in the Housing Act 1996. The decision to agree to the transfer and the type and location of property that is subsequently offered is made solely at the landlord’s discretion. This is independent from any banding and/or bidding scheme operated by the landlord itself, or on behalf of another party.
24. However, The Ombudsman can look at whether the landlord has used its discretion fairly, taking into account the individual circumstances in each case. In this case, there is no evidence to show that the landlord has treated the resident unfairly. It followed its housing decisions panel policy and explained why the resident’s request to did not meet its criteria for a management transfer. It also offered alternative rehousing options to the resident operated by itself and other parties. Therefore, there is no evidence of service failure in the landlord’s decision to decline the resident’s request for a management transfer

Determination

25. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of:
    1. Its response to the resident’s reports of noise nuisance and antisocial behaviour (ASB).
    2. Its decision to decline the resident’s request for a management transfer.