Housing Solutions (202015033)

REPORT

COMPLAINT 202015033

Housing Solutions

25 November 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

The complaint is about the landlord’s response to the resident’s reports regarding antisocial behaviour (‘ASB’) from her neighbour.

Background and summary of events

Background

At the time of the complaint, the resident was an assured tenant at the property of the landlord. The landlord is a registered provider of social housing.
The property is a ground floor one bedroom flat. The resident’s neighbour (‘the neighbour’) lived in the flat above the resident. The resident’s hot water tank is located in the loft space above the neighbour’s flat. Access to the loft space is possible via a loft hatch located in the neighbour’s flat.
The resident occupied the property with her adult daughter, who assisted her while she was affected with health issues.
It is the Ombudsman’s understanding that the neighbour has vulnerabilities and is affected by autism and Asperger’s.
At the time of the complaint, the landlord operated a three stage complaints policy, the final stage of which involved a panel hearing.
The landlord operates an ASB policy. The policy notes that examples of ASB include noise nuisance, verbal abuse, intimidating behaviour, and using a property for an unlawful purpose. The landlord may use evidence such as diary sheets, statements, and information from the police when investigating ASB. The landlord may develop an action plan to address ongoing ASB. Other remedies include verbal warnings, written warnings, mediation, acceptable behaviour agreements, referral to support agencies, or eviction. When carrying out investigations, the landlord will consider the risks to a resident, and whether a resident requires specific support.

Summary of events

Prior to 2019, the resident has advised this service that she had a friendly relationship with the neighbour.
Based on the neighbour’s reports, and the investigation reports from the landlord, the water pipes above the neighbour’s flat (in particular, the ones that serviced the resident’s hot water supply) made noise when in use, which the neighbour found distressing. Throughout 2019, the resident reported that the neighbour began to express their distress at the pipe noise by banging on the floor (the resident’s ceiling) and sending aggressive texts to the resident.
It is evident that following the reports, the landlord facilitated mediation between the resident and the neighbour in late 2019. In early 2020, however, the resident reported that the agreement with the neighbour that they would reduce noise had been broken and that the neighbour continued to make loud noises directed at the resident.
Throughout the period of the complaint, the resident has provided the landlord with a large number of reports about the neighbour’s behaviour. She has also provided the landlord with a large number of recordings of noise, and a large quantity of diary sheets detailing times that noise has occurred. The resident’s reports included that the neighbour frequently banged their floor when they perceived the resident was using hot water. The neighbour would often shout at the same time. The resident advised this left her feeling intimidated and afraid to use water in her property. The resident also reported that the neighbour frequently played loud music that caused vibrations in the resident’s property. This frequently occurred throughout the day and on occasions late at night. The resident also reported she could smell smoke coming from the neighbour’s property which she perceived to be related to illegal drug use.
The resident also frequently reiterated that the ASB was having a detrimental impact on both her mental health and her physical health.
The resident has frequently reported that the neighbour’s behaviour has been reported to the police on several occasions. The police subsequently spoke with the neighbour on a number of occasions, but it is not evident any further action was taken.
Following the resident’s reports that issues with noise and aggressive banging had returned in breach of the agreements reached in mediation, in April 2020 the landlord advised it would raise the issues with the neighbour. The landlord also signposted the resident to relevant support agencies in relation to her concerns about the impact on her mental health. The landlord further noted it was receiving a high volume of correspondence from the resident and that it would be unable to respond to each email individually. It advised that it was including her correspondence as part of its ongoing ASB investigation, but that it would only be able to respond once a week.
The landlord has provided this service with its correspondence with the neighbour from the period of the complaint. Throughout this period, the neighbour raised concerns about the noise from the pipes, and in or around June 2020, works were undertaken to relocate the resident’s water tank in the loft and to insulate the pipes. Based on the neighbour’s ongoing reports, these works were unsuccessful at solving the pipe noises. The neighbour also raised counter allegations about the resident. These often revolved around her use of hot water, which caused the pipes to make noise.
Around this time, the resident raised concerns that the neighbour had access to her water tank through the loft hatch in their property. The landlord advised the resident that works would be undertaken to lock the loft hatch so the neighbour could not access it. The resident has reported receiving texts from the neighbour indicating he still had access, and so the resident sought photographic evidence of the lock from the landlord. The landlord replied on 6 July 2020 that it could not provide photographic evidence, but that it “can confirm that I asked for it to be locked, and was assured by the trade supervisor that this had been done.”
On 28 July 2020, the landlord noted that the resident was seeking a move to a two bedroom property and that she was awaiting the outcome of an assessment for a medical priority. The landlord advised that if this was unsuccessful, it could also consider a management move, but measured her expectation that the requirements relating to risk to a resident had a high threshold. In August 2020, the resident was informed she had not received a medical priority and so the landlord raised a management move request. This was also unsuccessful as there was not sufficient evidence that there was an immediate risk of harm to the resident.
In or around October 2020, it is evident that the landlord discussed the possibility of seeking to evict the neighbour based on the ongoing ASB and other incidents with the landlord. Based on the communications between the neighbour and the landlord, and due to the restrictions on evictions during the COVID-19 pandemic, the landlord instead sought to work with the neighbour to manage their behaviour.
In or around December 2020, both the resident and the landlord corresponded with the local authority’s environmental health team (‘the EH team’) regarding installation of sound monitoring equipment to determine if the noise from the neighbour amounted to ‘statutory nuisance’. The EH team advised the landlord, however, that it would be unable to install this equipment during the COVID-19 lockdowns, and that even once these were lifted, it had a large backlog to get through first. It was therefore unable to give a timeframe as to when it could install the equipment. It also measured the landlord’s expectations that it was only able to assess whether the noise was at a certain decibel level, but that based on the resident’s reports, the issue was more the frequency of noise and the low level bass noises, which while frustrating, may not amount to statutory nuisance.
In December 2020, following further works to the pipes, the landlord’s repair operative advised the resident that there was no lock on the loft hatch, and that there never had been. The resident subsequently expressed to the landlord her distress at this information. The landlord later advised that its records indicated it had attempted to install the locks in 2019, but that the neighbour had refused access. It had now raised further works to add the locks.
Around this time, the landlord also sought to install pressure release valves in the resident’s property to address the pipe noise. Due to the ongoing COVID-19 and the health issues experienced by the resident, these works were deferred. These works were completed at a later date, however, based on the neighbour’s reports, the works were unsuccessful at solving the pipe noise.
Based on the ongoing issues experienced by the resident, and in light of the lack of a lock on the loft hatch, she raised a formal complaint. The landlord provided its stage one response on 28 January 2021, which included the following:
1. The landlord noted the steps it had taken in addressing the ASB, including considering a management move. It reiterated that there was a high threshold required for a management move, and that in the resident’s case, the police had advised they did not consider there to be a risk of harm to the resident. It was therefore unable to offer this. It confirmed that the resident could, however, bid on properties using its online lettings system.
2. It also noted there was the option to pursue sheltered accommodation, but that it would not be possible to move with her daughter due to the age requirements.
3. It further noted it had sought evidence in relation to the ongoing noise, including suggesting the resident use its ‘noise app’ to make recordings. Regarding professional sound monitoring equipment, it advised it was working the EH team, but this was delayed during the period of COVID-19 lockdown.
4. Regarding soundproofing, it advised the neighbour already had carpeting installed, which was usually the most it would consider. It advised it may consider further soundproofing depending on the outcome of the sound monitoring equipment.
5. It noted the difficulty in substantiating the resident’s reports of intermittent noise and advised it had not received any similar reports from other neighbours. It noted the resident had an expectation regarding eviction proceedings, but measured her expectations that this could only be ordered by a court, which required a very high evidential threshold, which it did not consider it could achieve. It was therefore working with the neighbour to improve their behaviour, and also exploring a possible move for the neighbour.
6. It disputed the resident’s position that it had not offered her support. It advised it had taken action such as interviewing her and the neighbour, arranging mediation, sent the neighbour warning letters, worked with external agencies such as the police and the EH team, and signposted the resident to relevant support agencies for her health concerns.
7. The landlord acknowledged its communications had been poor, for which it apologised. It attributed this to the impact COVID-19 had had on its services, and a high staff turnover. The landlord also apologised for the misinformation given about the lock on the loft hatch.
8. The landlord concluded by offering the resident further mediation.
The resident subsequently advised she did not believe her relationship with the neighbour could be repaired and so declined mediation. She also made it clear she did not want the neighbour to face eviction, but that she considered that the only solution to the ongoing issue was for one of the parties to be relocated.
Based on the landlord’s records, it attended the properties in or around February 2021 to investigate the noise. It attempted to replicate noise from the neighbour’s property by using the television at maximum volume and concluded this did not produce excessive noise levels in the resident’s property. It was able to detect bass vibrations, however, and gave further warnings to the neighbour to be mindful of this noise.
Based on the communications between the landlord and the neighbour, the landlord also explored the idea of the resident and the neighbour exchanging flats so that the neighbour was not exposed to the pipe noise. The neighbour declined to proceed with this possibility, however.
Around March 2021, the resident provided the landlord with further medical evidence relating to her ongoing health issues and the impact the ASB was having on her.
Around April 2021, the landlord requested that both the resident and the neighbour sign ‘acceptable behaviour contracts’. The acceptable behaviour contracts required each party to agree not to use foul language, play loud music, or bang doors. The resident declined to sign the acceptable behaviour contract and expressed dissatisfaction at its contents given that she disputed she had ever demonstrated the behaviours noted within. It is also not evident that the neighbour signed the acceptable behaviour contract.
The landlord provided its stage two response on 28 April 2021, which included the following:
1. The landlord noted the further medical evidence provided by the resident and acknowledged that based on this, it should have presented it to its lettings team to reconsider if she qualified for a medical priority. It advised that an assessment was now underway and it apologised for its delay.
2. Regarding moving, it noted this was the resident’s preferred outcome and advised she had the option to bid on properties using its online bidding system. It measured her expectations about the speed in which a suitable property may become available and advised that in the past year, only 20 properties had become vacant with a waiting list of over 400 applicants.
3. It reiterated it was awaiting the EH team to install sound monitoring equipment, but measured her expectations that this would only measure sound levels rather than assessing how lower level sounds might impact the resident.
4. It also advised the steps it had taken to investigate the ASB including attending the properties and attempting to replicate the noises. It also advised that during its other visits, it considered that the noise observed was at a lower level than that noted in the resident’s reports. It also advised that it had not received reports from any other neighbours.
5. It noted it had also offered further mediation, including ‘shuttle mediation’ in which the parties did not need to meet face to face, but that the resident had declined.
Throughout this period, the resident continued to make regular reports about ongoing noise. She also advised she remained dissatisfied with the landlord’s response and requested an escalation to stage three. The landlord explained this involved arranging for a panel, and requested the resident prepare a written statement for the panel.
On 10 May 2021, the landlord provided a follow up to is stage two response. The landlord acknowledged the resident’s perspective regarding the noise and actions of the neighbour. However, the landlord advised that based on its investigations and the available evidence, it did not consider the noise reported to be excessive, nor the behaviour of the neighbour to be threatening or otherwise targeted at the resident. It noted that many of the resident’s reports of loud music had been during the day, which it did not necessarily consider to amount to ASB. It also advised the neighbour had now removed their bass speaker. It further noted one report from the resident had described loud construction noises from the neighbour, however, its investigation had concluded the neighbour was only cleaning their property, and that the noise levels described by the resident wouldn’t be possible. It concluded that “your perception of noise is particularly unique and that you may have a particular noise sensitivity which means you experience ordinary everyday noise as particularly loud whereas the vast majority of people would barely register the same noise levels.”
Regarding the neighbour’s behaviour, it advised it did not have any evidence that the neighbour’s behaviour was threatening and that the police had advised they did not consider the neighbour to be a threat. It confirmed that it would, however, continue to investigate the resident’s ongoing reports and take action where appropriate.
In or around June 2021, the landlord carried out a further inspection regarding the resident’s reports of smoke smells and noted it did not detect any smells during the visit. It subsequently signposted the resident to report the concerns about smells to the EH team, and also to the police.
Around the same time, the landlord’s records show it internally discussed what further soundproofing may be possible, but that its maintenance team concluded that based on the design of the building, further sound proofing would not be possible.
The landlord provided the outcome of its stage three panel hearing on 30 July 2021, which included the following:
1. It noted that it had discussed the possibility of sheltered accommodation, but that this could not also be offered to her daughter due to age requirements.
2. Regarding the resident’s reports of smoke, the landlord advised it had attended with the police but had not been able to detect anything.
3. It noted it had considered sound proofing options but that any steps were unlikely to have an effect. It reiterated it would pursue sound monitoring equipment when available which may provide further guidance on whether additional sound proofing may be affective.
4. It concluded its ASB investigation had been in line with its policies and that there was no evidence of direct threats against the resident. It would therefore continue to take action on any further reports and encouraged the resident to continue bidding on properties. It also recommended the resident reconsider mediation.
Following the landlord’s final response, the resident continued to report ongoing noise and issues with smoke. The landlord’s records indicate it continued to investigate these reports and attended the neighbour’s property to investigate, but that it was unable to detect any noise or smells.
The resident has advised this service that as of June 2022, she has moved to a new property.

Assessment and findings

A landlord has two main duties when ASB is reported. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to weigh in balance the evidence, and the respective parties’ rights to enjoy their home and decide what action it should take. The Ombudsman’s role is not to determine whether ASB occured, but to determine if the landlord carried out a proportionate investigation and whether the actions it took were within its policies.
Additionally, matters where there is a history of ASB over an extended period, such as this, are often the most challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may not extend to the resident’s preferred outcome and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following the ASB policy ensures that a landlord is acting fairly, its responses are proportionate to the issues being raised, and that its approach is consistent, even if it does not lead to the outcome requested by the resident.
It is not disputed that the behaviours reported by the resident would be considered ASB in accordance with the landlord’s ASB policy. Following the resident’s initial reports, it is evident that the landlord raised the resident’s concerns with the neighbour, and subsequently arranged mediation, in line with the approaches noted in its ASB policy. The Ombudsman considers mediation to be an appropriate option in these circumstances, allowing the parties to be made aware of each other’s concerns and be more amenable to altering patterns of behaviour.
Throughout the period of the complaint, the landlord has reiterated the option to undertake further mediation, including shuttle mediation. The resident replied that she did not consider her relationship with the neighbour could be repaired and so understandably declined these offers. It was nevertheless appropriate for the landlord to continue to reiterate this offer to give the resident the option to change her mind if she wished.
Throughout the period of the complaint, the resident has expressed dissatisfaction at the level of communication she perceived the landlord had with the neighbour. This service has been able to view all the correspondence the landlord has had with the neighbour and can confirm it took reasonable steps to continually raise the resident’s concerns with them, remind them of their responsibilities under their tenancy agreement, and reiterate that certain behaviours were unacceptable. In its communications with the resident, the landlord has advised it was unable to disclose the full details of its discussions with the neighbour due to its data protection obligations. The Ombudsman understands this would be frustrating for the resident, but that this was nevertheless a reasonable approach for the landlord to take.
The landlord’s ASB policy also notes it will ensure that residents have the necessary support. In this case, the landlord signposted the resident to relevant support agencies and has also been kept aware by the resident that she is receiving support in relation to her health conditions. The landlord has also offered the neighbour appropriate support in an attempt to alleviate the issues affecting them.
The Ombudsman understands that a landlord has finite resources and it may not be able to respond to every report in instances of frequent or daily reports. It was therefore reasonable for the landlord to inform the resident that while it would include all her reports in its ASB investigation, it would not be able to respond to each of them, and so would only do so once a week.
It is evident that a major factor in the neighbour’s behaviour was noise from the pipes. The landlord has provided evidence to this service that it took reasonable steps to address the noise, by relocating the water tank, insulating the pipes, and installing pressure valves. While these steps proved to be unsuccessful, they represent a desire from the landlord to rectify the issues.
The landlord’s ASB policy notes it will work with external parties where appropriate. Throughout the period of the complaint, the landlord has liaised with the police regarding the resident’s reports that the neighbour had behaved aggressively. The landlord is not in a position to determine whether criminal behaviour had taken place, and so it was reasonable for it to rely on the police’s investigations. Given that the police did not take action against the neighbour in relation to their behaviour, or in relation to the resident’s reports of smoke, it was reasonable for the landlord to have been unable to find evidence of criminal behaviour by the neighbour.
In addition to the police, the landlord also appropriately worked with the local authority’s EH team to assist in gathering evidence about noise. Given that the EH team was unable to install the sound monitoring equipment, it would have been helpful for the landlord to have given its position on seeking sound monitoring equipment from another source such as a private provider. Given, however, that the EH team’s advice was that the sound monitoring equipment was unlikely to have been of significant evidential value (given that it was only able to detect noises at a high decibel level, and not the lower vibrating noises about which the resident had reported), the landlord’s decision not to consider other sources for the equipment would not amount to service failure in this instance.
Throughout the period of the complaint, the resident has advised she considered the best resolution to the issue to have been for one of the parties to be relocated. It is evident the landlord considered eviction proceedings against the neighbour. It is this service’s understanding, however, that only a court can order an eviction. A breach of a term in a tenancy agreement is not sufficient for a court to order an eviction, and a very high threshold of evidence is required, especially where the tenant in question has vulnerabilities. The landlord in this case appropriately managed the resident’s expectations in regards to the likelihood of an eviction, and based on the evidence available, it was reasonable for it to consider other methods to resolve the ongoing issues.
It is also evident that the landlord discussed options for the neighbour to be voluntarily relocated, including the novel suggestion of an exchange with the resident. While this was not pursued, it demonstrated the landlord’s ongoing efforts to resolve the issue.
The landlord also provided ongoing advice to the resident about her options regarding relocation. Throughout its correspondence, it encouraged the resident to consider seeking a mutual exchange, and to continue to bid on suitable properties using its online letting system. The landlord also appropriately used its discretion to consider a management move given the resident had been unsuccessful with her medical priority. The landlord appropriately measured her expectations regarding a management move, which given the requirement for a serious risk of harm was not present in this case, was unsuccessful.
The landlord also appropriately explored the possibility of sheltered accommodation, however, due to this having a minimum age requirement, this was not suitable for the resident given she wanted to move with her daughter, who did not meet this age requirement. While the options explored by the landlord were unsuccessful, they nevertheless demonstrated a reasonable ongoing effort to resolve the issue.
It is not disputed that the resident provided additional medical evidence in March 2021. In its stage two response, the landlord acknowledged that it should have used this information to reconsider if a medical priority applied. The landlord subsequently submitted the evidence to its lettings team who ultimately determined it did not change the resident’s medical priority. The landlord appropriately apologised for its delay, however, while the delay did not change the outcome, it did unreasonably delay the resident’s ability to know her position and reconsider her options.
The resident has expressed her concern to this service that the landlord could have solved the issues earlier by using its discretion to offer a transfer, but instead the ASB issues continued for a number of years. While it is clearly the case that a transfer would have resolved the issue, it is not evident that this was an option available to the landlord throughout the period of the complaint. As noted by the landlord in its stage two response, during the period of COVID-19, there was a particularly low number of new properties becoming available, with a significant number of applicants for each property, each with their own varying priority statuses. The landlord also appropriately measured the resident’s expectations that even with an increased priority, there was likely to be a considerable delay before a suitable property became available.
When investigating reports of ASB noise, the Ombudsman would expect a landlord to carry out inspections where appropriate. In this case, it is evident that the landlord (and the police on some occasions) attended the properties of both parties and carried out investigations in relation to noise, which were reasonable in the circumstances.
The landlord also appropriately provided its position on sound proofing and noted that the neighbour already had carpeting installed. The landlord is not required to install additional sound proofing, which would be considered an improvement and not a repair. The landlord nevertheless used its discretion to consider if additional soundproofing would be affective, and also to consider any advice following the installation of sound monitoring equipment.
The landlord’s ASB policy notes that resident’s reporting ASB will be treated sympathetically and sensitively. While it was reasonable for the landlord to summarise the findings of its investigations in its correspondence in May 2021, the landlord at times made assumptions about the resident’s sensitivity to noise, rather than relying purely on the evidence and outcomes of its investigations. It is not evident that the resident has a proven oversensitivity to noise, and the landlord’s assertions that she did, rather than simply concluding it was unable to find evidence of excessive noise, would have caused the resident some distress.
In summary, it is evident that the landlord carried out many of the steps the Ombudsman would expect during an investigation into ASB of this nature, which were also the steps required by its policy. While it was not able to provide the resident’s preferred resolution to the ASB, it nevertheless made many attempts to resolve the issues, such as warnings to the neighbour, informing the parties about their options to move, attempting to repair the pipes, encouraging mediation, and carrying out reasonable investigations. The Ombudsman notes that the findings of the landlord’s investigations differed from the experiences of the resident, and the Ombudsman has not made a finding that the resident was incorrect or that her experiences did not happen. The landlord’s conclusions were, however, based on the available evidence and were reasonable in the circumstances.
The Ombudsman notes that the landlord’s advice throughout its formal responses was appropriate, and that it also appropriately continued to investigate the residents reports made after its final response, demonstrating an ongoing commitment to resolving the issue.
As noted above, however, the landlord misinformed the resident regarding there being a lock on the loft hatch, despite the resident expressing deep concern and seeking reassurance. The landlord should have been aware that access was refused by the neighbour, and for it to advise that its repair team confirmed the lock had been installed demonstrates an unreasonable breakdown in the landlord’s internal records and communication. The subsequent discovery that there had been no lock for a significant period would have been very distressing for the resident, and the landlord’s explanation and apology did not amount to a reasonable redress in the circumstances.
Additionally, the landlord has acknowledged that it failed to consider the resident’s additional medical evidence, and that there were delays to its services caused by staff turnover. While it was appropriate to acknowledge these issues and to apologise, given that the resident had made it clear throughout the complaint the impact the issues had had on her, the Ombudsman would expect the landlord to have robust measures in place to ensure that staff change overs did not cause unreasonable delays, and that any evidence submitted by the resident was considered in a timely fashion.
In the circumstances, the landlord’s apologies while appropriate did not reflect the impact caused to the resident, and the above failures by the landlord amounted to service failure. An amount of £200 compensation has been ordered, being £100 for the misinformation regarding the lock, £50 for its delays in considering the resident’s medical evidence, and £50 for its acknowledged delays to its investigations throughout the period of the complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaints regarding its response to the resident’s reports regarding ASB from her neighbour.

Reasons

While the landlord provided appropriate advice and carried out reasonable investigations throughout the course of the complaint, as well as taking actions in line with its ASB policy, its instances of misinformation and several delays would have negatively impacted the resident and amounted to service failure in the circumstances.

Orders

The Ombudsman orders the landlord to pay compensation of £200 for any distress and inconvenience caused to the resident by its misinformation and delays to its ASB investigation.
This amount must be paid within four weeks of the date of this determination.