Jigsaw Homes Group Limited (202007735)

REPORT

COMPLAINT 202007735

Jigsaw Homes Group Limited

19 March 2021

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 how the landlord responded to the resident’s reports of noise nuisance and antisocial behaviour (ASB).

Background and summary of events

The resident is an assured tenant of the landlord, which is a housing association. The property is a semi-detached house. The property is occupied by the resident and her two daughters. Both daughters have corresponded with the landlord and this Service, on their mother’s behalf, during the period of the complaint. For reasons of clarity, the resident and her daughters have been collectively referred to ‘the resident’ within this report.

Landlord’s ASB policy and procedure

The landlord’s ASB policy (the policy) defines ASB as:

“Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.

Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation or residential premises.

Conduct capable of causing ‘housing-related’ nuisance or annoyance to any person (housing related meaning directly or indirectly relating to our housing management functions).

In terms of tackling ASB, the policy states that the landlord will use a “wide range of tools” to deter customers from engaging in ASB, and to stop incidents escalating. The type of measures that may be used by the landlord include (but are not limited to): Diversionary activities, closed circuit television (CCTV), mediation, warnings/cautions, acceptable behaviour contracts and parenting contracts.
The landlord may take enforcement action – both legal and non-legal – to deal with ASB; however, the policy states that such action will be taken in circumstances where it would be proportionate, and it is supported by “sufficient evidence”. This includes action taken or being considered by other agencies i.e. the police, the local authority.
With regards to investigating reports of ASB, the policy provides as follows:

“We will investigate ASB complaints as fully as possible, without pre-conceptions as to the outcome. Where necessary we will seek ways of independently corroborating or refuting allegations by interviewing other witnesses/local neighbours, using sound recording equipment/applications; requesting information from other agencies etc.

Where ever possible, we will contact the complaint subject to discuss complaints while maintaining the confidentiality of the complainant. It is important that those who are the subject of complaints are given the opportunity to explain their actions and improve/rectify their behaviour.”
Paragraph 73 of the landlord’s ASB policy describes the timescales its aims to meet in responding to reports. It states that it aims to respond to telephone, website and email reports within two working days, that it aims to respond to letters within five working days, and that it aims to meet visitors to its offices within 15 minutes of arrival.
In relation to what the landlord does and does not consider acceptable behaviour, paragraphs 15 and 16 of the ASB policy states as follows:
“Sometimes customers wish to report behaviour they believe is unacceptable, but the behaviour is not anti-social in accordance with our definition. [The landlord] expects customers to be tolerant of other people’s lifestyles and will not accept reports of behaviour that most people accept as a reasonable part of everyday life. For example:

• A one-off party

• Children playing outside i.e. playing ball games

• Children arguing or fighting with one another

• Actions that are considered to be normal everyday activities or household noise

• Reports of people staring

• Actions which amount to people being generally unpleasant to one another

• name-calling or disputes via social media such as Facebook, unless it amounts to harassment

Staff will exercise their professional judgement when assessing whether or not a report of anti-social behaviour meets our definition or not. Where the behaviour reported is not anti-social, we will provide customers with self-help options where appropriate.”
Paragraph 14 of the ASB policy describes hate incidents as “actions of hostility or prejudice against anyone because of their actual or perceived identity, whether that be their race, religion, disability, sexual orientation, transgender identity or alternative sub-culture (this is known as a hate incident or hate crime)”
Paragraphs 17-20 of the ASB policy describes how the landlord handles reports of hate incidents and hate crimes and in part states:
“Hate incidents only become hate crimes when a criminal offence has been committed. [The landlord] will investigate all hate incidents and hate crimes. We take the view that if an incident of anti-social behaviour is perceived by a customer to be motivated by hate then it will be treated as such. The apparent lack of motivation as to the cause of a crime or an incident is not relevant, as it is the perception of the person affected that matters.”

Summary of events

The resident had reported issues of ASB and noise nuisance from a neighbour to the landlord. This had been an ongoing issue for several years. The landlord’s records show that in response to these reports, seven ASB cases had been opened since July 2017. The type of reports it had received from the resident were described by the landlord as:
1. Noise nuisance (loud music, the banging of doors, shouting and swearing from the neighbour’s property).
2. A threat made to the resident from a friend of the neighbour.
3. Food thrown into the resident’s rear garden from the neighbour’s property.
4. Racist language used by the neighbour.
On 4 April 2020 the resident wrote to the landlord and requested to raise a complaint into how her reports of ASB had been handled. She described the elements of her complaint as:
1. She had provided numerous audio recordings of noise nuisance which had not been properly acted on by the landlord.
1. Whenever a new ASB case had been opened by the landlord, evidence gathered from previous cases had not been considered.
2. She felt that the landlord had been biased in its investigations towards the neighbour and against her and her family.
3. She felt that she had been “coerced” into accepting mediation.
The landlord acknowledged the complaint on 17 April 2020. The landlord and resident corresponded between 18 April 2020 and 1 May 2020 discussing elements of the complaint, and on 8 May 2020 a stage one complaint response was sent.
The landlord first explained that under its complaint procedure it would normally only consider issues that had occurred in the six months prior to a complaint being made. However, in this case it had investigated issues from the previous 12 months. The landlord then summarised the three ASB cases opened in the previous 12 months, stating that:
1. The case opened on 24 April 2019 related to the playing of loud music and an allegation of racial abuse. The landlord suggested mediation which was declined. The landlord spoke to the neighbour who admitted playing loud music on 21 April 2019 and was informed not to play music at an excessive level. The landlord sent a written warning letter to the neighbour on 17 June 2019 and noise recording equipment was installed in the resident’s property on 18 June 2019.
1. The resident reported racial abuse from her neighbour on 31 May 2019. This was denied by the neighbour. The allegation was investigated, and no further action was taken. The noise recording equipment was collected on 2 July 2019 where it was established that no noise related incidents had been recorded. This case was closed on 10 July 2019.
2. The case opened on 21 October 2019 related to noise nuisance from loud music and high television volume. The landlord visited the neighbour on 7 November 2019, who admitted to the playing of loud music on 19 October 2019. The landlord reminded the neighbour of the terms of her tenancy agreement during the visit and the implications of further noise nuisance. This case was closed on 6 December 2019 after no further reported incidents.
3. The (at the time of the complaint response) current open ASB case related to recordings made by the resident via a noise app and alleged drug dealing activity on the neighbour’s property. The noise app recordings were reviewed by the ASB investigating officer, who informed the resident that they had not met the required standard that would warrant enforcement action. As part of the complaint investigation, the ASB investigating officer had stated that the majority of the reported incidents had not met the threshold for taking further action and that in his opinion mediation could potentially help.
4. In relation to the allegations of drug dealing, the landlord had advised the resident to report any incidents to the police as a potential criminal offence; and if a criminal conviction was secured by the police, this would allow the landlord to take action against the neighbour.
The landlord informed the resident that a senior staff member had reviewed a sample of the noise recordings made over the previous 12 months and he was satisfied with the conclusions reached by the ASB investigating officer: that the recordings received up to that point had not met the threshold for enforcement action.
The landlord concluded the response by advising the resident to continue to report incidents of noise nuisance, which would be assessed. It also asked the resident to re-consider her position on mediation as it felt that this could help address some of the issues raised over the previous 12 months.
On 2 June 2020 the resident wrote to the landlord and requested to escalate her complaint to stage two on the grounds that:
1. Apart from the case opened and closed in 2018, the resident had not been made aware by the landlord that any ASB cases had been closed.
1. Her neighbour had continued to generate noise nuisance after the landlord had sent a written warning to her on 17 June 2019 and after the visit to her property from the landlord on 7 November 2019.
2. Her neighbour was aware that sound recording equipment had been installed in her property and was not present at her property for several days while it was recording.
3. Her neighbour was also aware of the reports of ASB and noise nuisance that she had made to the landlord and that this was a breach of her confidentiality rights.
4. She had video evidence of the neighbour and her family dumping rubbish in her garden.
5. She had been informed by the landlord that the actions and activities that had disturbed her and her family had been due to different lifestyles. She requested further clarification of this comment.
6. She was informed by the ASB investigating officer that if she did not agree to mediation the case would be closed. She felt that this was inappropriate behaviour from the staff member and wanted his conduct investigated.
7. She felt that by only recommending mediation as a resolution to the issues, the landlord had put the onus of resolving the matter onto the resident and her family rather than itself.
8. A proposal she had made for soundproofing to be added to the property walls had been declined and requested more information on why this had not been considered as a resolution.
9. She felt bullied, vicitimised and discriminated against by both the neighbour and landlord staff members involved in the ASB cases.
The landlord sent a stage two response to the resident on 10 June 2020. It informed her that:
1. It had reviewed the case notes and did not find any suggestion that her neighbour had been informed by it of the source of the reports. The resident was not named in any of the correspondence sent to the neighbour; nor was she named by the investigating officer when he had met with the neighbour.
1. The ASB cases referred to in the stage one response were closed following a telephone conversation where the reasons for the closure were explained. A closure letter was then sent to the resident and in each case the landlord received a customer satisfaction survey.
2. In relation to her request for clarification of its comments regarding different lifestyles, it informed the resident that “mediation is considered as the most appropriate way of attempting to resolve disturbance from what appears to be a difference in lifestyles. Neighbours do not always appreciate how differences in lifestyle affects others and mediation is sometimes a good way to highlight this and reach a compromise.”
3. The case notes do not make any mention of soundproofing, nor do any of the case officers involved in the case recall soundproofing being raised by the resident. The landlord noted that the case would not currently meet the criteria for soundproofing and advised her to contact her investigating officer to discuss the matter further.
The landlord concluded the response by informing the resident that she had exhausted its internal complaint process and advised her on the steps to take to bring her complaint to this Service should she remain dissatisfied.

Assessment and findings

The role of the Ombudsman is not to establish whether the ASB and noise nuisance reported by the resident was occurring or not; 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.
The landlord has provided the Ombudsman with the case notes for the ASB cases considered in the complaint process. It should be noted that for reasons of confidentiality, some of the correspondence has been redacted by the landlord.
The Ombudsman has summarised the events relating to each ASB case below. These summaries are based on the contemporaneous evidence which has been provided to this Service. The contemporaneous evidence includes entries from the landlord’s system demonstrating the telephone calls that took place and correspondence that was sent by both the resident and the landlord. The Ombudsman has considered whether the landlord’s actions were proportionate taking into consideration the evidence provided by both the landlord and the resident.

First case

The landlord’s ASB case notes show that it received two recordings from the noise app from the resident on 21 and 25 April 2019. It then called the resident on 25 April 2019 and agreed to meet with her before discussing the matter with the neighbour.
The landlord’s notes of the meeting held on 29 April state that it offered mediation, which was declined as the resident felt that the situation was “too far gone”. The resident’s reasons for declining mediation have been noted. During the course of the meeting, the resident informed the landlord of comments made by the neighbour towards her and that it informed her that it would address the comments as well as the noise nuisance with the neighbour.
The evidence shows that the landlord wrote to the neighbour on 30 April and requested to meet with her so the allegations could be discussed further. This was appropriate and in line with the ASB policy as detailed above. The landlord’s notes of this meeting state that it informed her that the playing of loud music is not acceptable and a breach of the tenancy agreement. During the meeting, the neighbour informed the landlord that she would consider mediation.
The landlord and resident corresponded between 11 May and 15 May regarding noise nuisance and food being thrown into her garden. The landlord met again with the neighbour on 21 May and undertook a volume test. The neighbour agreed to lower the volume of music and use earphones. The landlord called the resident on 25 May who confirmed that she had not experienced any (then) recent noise nuisance. The landlord’s notes of the call state that it informed the resident that there was not enough evidence to apply for a noise injunction as the “disturbance caused by noise was not persistent enough”. The landlord’s actions in this regard were proportionate and in line with its policy.
On 30 and 31 May the resident wrote to the landlord and reports incidents of the neighbour being verbally abusive and making a racist comment. The landlord responded to the resident on 31 May and, following further correspondence, agreed for the resident to visit its office to discuss the matter. The landlord informed the resident on 4 June that it had recorded the incident of racial abuse she suffered as a hate crime on the government’s website. The resident and landlord met on 6 June. The landlord’s notes of the meeting state that it agreed to install noise recording equipment in order to capture more evidence. The resident informed it of recent noise nuisance from the neighbour (loud music and door slamming) and reported incidents of visitors to the neighbour looking into their windows. The landlord agreed to raise these issues when it met with the neighbour.
The landlord’s actions in response to these reports were appropriate. It took steps to ensure that the allegation of hate crime was recorded appropriately; and took action to see whether further evidence of the alleged behaviour in relation to noise nuisance could be obtained so that the resident’s reports could be independently corroborated.
On 17 June the landlord wrote to the neighbour. It warned her that further playing of loud music which caused disturbance could result in it taking legal action. It also requested to meet her on 25 June. The landlord’s notes of its meeting with the neighbour on 25 June state that she denied ever using racist language and that she accepted noise reduction pads from the landlord for her internal doors.
The landlord called the resident on 26 June and informed her that as it had no corroborating evidence of the neighbour using racist language, it was unable to take further action. It is acknowledged that the resident would have been disappointed by this response. However, the landlord did not have any other evidence to support the resident’s report. As such, it did not have any grounds to pursue the matter. Its actions in discussing the report with the neighbour were proportionate and in line with the guidance detailed above.
On 2 July, the landlord visited the resident to collect the noise recording equipment. The resident informed it that there had been no noise disturbances in the previous two weeks. The landlord said that it would keep the case open for an additional week and then close it if no further noise nuisance was reported. The evidence shows that following a telephone call with the resident on the 10 July, the case was closed. The evidence shows that the landlord had written to the neighbour to advise that the case was being closed as ‘there had been no further reports of noise disturbance’. However, it reminded the neighbour that if there were ‘further problems’ it may consider taking action against her.
The landlord’s action when handling this case were appropriate and in line with its policy. Whilst it is acknowledged that the resident had been experiencing noise nuisance before this case was opened, the landlord’s action in managing this case and investigating the resident’s reports were proportionate. The neighbour had been warned about her behaviour, and the landlord had taken steps to try to obtain further evidence so that the resident’s reports could be corroborated.

Second Case

On 21 October the resident wrote to the landlord and provided audio files of the resident playing loud music, shouting, and slamming doors. She noted that she felt that the level of noise had now risen to statutory noise nuisance.
An internal note by the landlord added to the case file on 21 October notes that no noise nuisance could be identified on the recordings provided by the resident and the audio was only static. The note also details that the landlord agreed to contact the resident to further discuss the report and how the case would be progressed. The landlord called the resident on 22 October. During the conversation, the resident described the recent noise nuisance she had experienced, and the landlord agreed to meet with both her and her neighbour.
The landlord wrote to the neighbour on 25 October and asked to meet on 7 November. The landlord’s notes of the meeting state that the neighbour admitted there was noise nuisance on 19 October due to loud music on her television. She apologised and informed the landlord that there would be no further issues.
The landlord called the resident on 8 November and left a voicemail message. On 29 November it wrote to the resident and informed her that if it did not hear back from her within the next seven days it would consider the noise nuisance resolved and close the case. No further contact was recorded by the landlord. It wrote again on 6 December and confirmed that the case was now closed.
The landlord’s actions were proportionate in the circumstances. However, given that the neighbour had been warned about noise nuisance previously; and the resident had made a number of historic reports, it would have been appropriate to provide some explanation as to why no further action was being taken. That the landlord did not provide the resident with such an explanation was a shortcoming.

Third Case

On 25 and 30 December 2019 the resident sent noise recordings to the landlord. She described the noise nuisance as loud shouting and banging and the high volume of the neighbour’s television. The resident also expressed her frustration that no action had yet to be taken by the landlord against her neighbour.
The landlord acknowledged the resident’s emails on 2 January 2020 and informed her that it would examine the recordings and then get back in contact.
The landlord met with resident and discussed the ASB cases it had previously opened. The landlord’s notes state that it informed the resident that it would first require evidence before it could take action and up to that point most of the recordings had been general household noise. It agreed to have discussions with the neighbour in order to prevent potential further incidents.
The landlord wrote to the neighbour and asked to meet on 16 January. The landlord’s notes of this meeting state that the neighbour informed it that the noise now being made was general household noise and that she was not trying to cause any offence. The landlord warned her that if the recordings showed evidence of disturbance action could still be taken against her. Between 20 January and 14 February the landlord and resident corresponded regarding ongoing noise nuisance. The resident described incidents of slamming doors, children running, and high television volume.
On 19 February the landlord wrote to the resident and informed her that most of the recordings she had provided showed general household noise. Three recordings had loud shouting and low level music, but were not dated. The landlord requested the dates from the resident. The resident continued to provide noise recordings, which were acknowledged by the landlord. The landlord informed the resident that it would raise the issue with the neighbour during a meeting planned for 6 March.
On 17 March the landlord wrote to the resident and enquired on the current status of the noise. The resident replied on 18 March and informed it that her neighbour was now quiet most nights, but there was still an issue with the banging of doors.
The landlord replied on 19 March. It informed the resident that it had been in regular contact with her neighbour that it is looking to put things in place to help to continue the reduction in noise. It also informed the resident that it would like to meet to discuss the matter in more detail with the resident, but due to Covid-19 pandemic restrictions only essential visits were being authorised. The landlord also requested that the resident reconsider mediation as a possible option.
The resident wrote to the landlord on 21 March. She noted that the noise nuisance had recently increased and did not believe the landlord talking regularly with the neighbour had helped. The resident confirmed her position on mediation as she did not think it will help. The resident also informed the landlord that she was considering making a formal complaint as she was unhappy with the length of time the situation had gone on for without a resolution.
In response, the landlord advised that it had been hoping to meet with the resident to discuss the case further. However, owing to the then current Covid-19 restrictions it was unable to do this. The landlord asked if the resident would reconsider the option of mediation as the neighbour had been receptive to the idea. Over the next few days, the resident continued to report instances of noise nuisance. The resident expressed concern that the noise was being made at antisocial hours during the night and that this behaviour therefore could not just be regarding as everyday household noise. As detailed above, the resident then submitted a formal complaint a few days later on 4 April as they were dissatisfied with how the landlord had been handling the situation.
It is noted that the resident has continued to experience noise nuisance and ASB since the start of the formal complaint. The Ombudsman has seen that the resident continued to report instances of disturbance to the landlord – and this was corroborated by audio recordings. In August 2020, mediation took place between the parties and the following actions were agreed:
1. For music and noise to be “as low as possible” after 11pm at night
1. The neighbour was to remind her children not to slam doors within their home.
2. If there were “future issues” between the neighbours, they would write a “factual and polite note” outlining their concerns.
The resident continued to experience disturbance after the mediation; and in December 2020 a multiagency meeting was held. However the outcome of the meeting is not clear from the evidence that has been provided to the Ombudsman.

Assessment of the landlord’s handling of the ASB cases

Overall, the landlord has followed its ASB policy and procedures with regards to some of the earlier reports. It met its timescales in responding to the resident’s emails and telephone calls. It recorded all the reports made by the resident, opened ASB cases raised the issues with the neighbour, and kept the resident updated on its progress.
When a hate incident was reported by the resident, the landlord recognised the seriousness of the matter. It acknowledged the report on the same day it was received, recorded the incident as a hate crime on the UK government’s website, and informed the neighbour that if it were to receive corroborating evidence of the allegation that it would look to initiate legal action.
The landlord listened to all the noise recordings provided by the resident. Where it found noise nuisance, it met with the neighbour and also wrote to advise her that continued noise nuisance would be a potential tenancy breach. Between the first and third ASB cases the evidence demonstrates that there was a reduction in noise nuisance, particularly the playing of loud music. However, the resident had continued to report loud banging of doors, shouting, and children running. She provided the landlord with further audio files of these incidents.
The explanation provided by the landlord that it cannot take formal action in instances where the noise is considered to be ‘everyday household noise’ was correct. However, the evidence provided to the Ombudsman shows that some of the noises which have been regarded as ‘everyday household noise’ have occurred at antisocial hours. Indeed, the landlord did highlight some recordings which had caused a disturbance, and the evidence shows that these were duly raised with the neighbour. However, it is noted that the resident has continued to report disturbances during the night.
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. “Excessive” is not defined within either Act. The evidence provided to the Ombudsman shows that the resident had provided noise recordings which the landlord had reviewed. The landlord’s notes when reviewing these recordings detail that noises could be heard, but the majority were regarded as being ‘every day noise’ or that the sound was ‘muffled’ on the recording, so the dialogue could not be made out or the reviewer struggled to make out what was happening.
It is not clear why the landlord has not regarded these instances as antisocial behaviour given that noise being created within the neighbour’s property could be detected outside the property between the hours of 11pm and 7am. There is no evidence to suggest that the neighbour’s lifestyle is such that frequent activity at nighttime should be considered ordinary – for example, shift work. Whilst it is noted that the neighbour has young children and therefore some activity at nighttime may be expected -for example calming and soothing a child following night waking, the reported activity appears to be in excess of this.
Furthermore, it is noted that the instances of noise disturbance – which have been corroborated by recordings – have continued over several years. Whilst they have been sporadic at times, the neighbour has been warned about her behaviour previously especially in regard to playing music at a loud volume, but has on occasion continued to behave in a way that is the cause of nuisance to the residents. The decision to participate in mediation by both parties was a step forward; however, evidence provided to the Ombudsman shows that the situation has worsened since. This demonstrates that the neighbour has not honoured that which was agreed following the mediation, and that it has therefore been unsuccessful in tackling the problem.
The landlord’s conclusion that there is insufficient evidence for enforcement action has been noted and is not disputed based on the evidence that has been provided to this Service. However, there are other options available to tackle such behaviour – such as asking the neighbour to sign an acceptable behaviour contract. This would appear to be a proportionate response given the length of time that the resident has been reporting ASB and noise disturbances, the number of warnings the resident has been issued with over the years, and that the warnings do not appear to have been sufficient to bring about a significant change in behaviour. The ASB policy, as detailed above, states that an acceptable behaviour contract is one of the measures at the landlord’s disposal. That it has not explored implementing such a measure is a departure from the policy, and a failing in the circumstances.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of how it handled the resident’s reports of noise nuisance and ASB.

Reasons

The evidence shows that the landlord initially acted in line with its policy and took proportionate steps when responding to the reports of ASB. However, based on the available evidence, once the neighbour’s behaviour persisted the landlord should reasonably have explored other options with a view to tackling the behaviour. That the landlord did not do so was a departure from its policy and a failing.

Order

Within the next four weeks, the landlord should:
1. Pay the resident £200 for the inconvenience caused by the failing identified by the Ombudsman.
2. Arrange a meeting, over the telephone given the current climate, with the resident to discuss any reports since the end of the complaints procedure and to gather any further evidence as necessary.

Once the landlord is in receipt of this evidence, it should review the case and the case history and determine what the most appropriate course of action should be given the failing identified by this investigation.

The landlord should update the Ombudsman with the outcome of this review.