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Kingston upon Thames Council (201915380)

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REPORT

COMPLAINT 201915380

Kingston upon Thames Council

26 January 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 Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s:
    1.  Response to the resident’s reports of noise nuisance;
    2. Complaints handling.

 

Background and Summary of events 

 

Background 

  1. The resident is a secure tenant. The property is a one-bedroom first floor flat. The resident’s tenancy started on 17 October 2016.
  2. The tenancy agreement states that the landlord tries to make sure that nuisance, harassment or anti-social behaviour (ASB) does not spoil its tenants’ quality of life (clause 7.3). It also states that it will investigate complaints of antisocial behaviour and takes whatever action it considers appropriate to resolve the problem (section 7.4).
  3. The landlord’s ASB policy states that it will not tolerate ASB and will work to prevent and address antisocial behaviour involving or affecting its tenants. It states it will investigate promptly and will use a variety of remedies to tackle ASB, including preventative and enforcement measures (section 1.0). Its policy defines ASB as acts including amongst other things, harassment of another person and regular disturbances such as playing loud music (section 3.1). Further, under section 4, it classifies regular disturbances such as noise as category 2 cases which have a response time of three working days. Further, low level noise nuisance is classified as category 3 cases which have a response time of five working day. Section 12 states that it will take enforcement action when appropriate however it lists non-legal remedies it may use to resolve ASB (under section 11) including personal resolution, mediation, meetings, warning letters, acceptable Behaviour Contracts and Working in partnership with other agencies and Directorates e.g., Community Mental Health Teams and the Police.
  4. The landlord’s Corporate Complaints, Comments and Compliments procedure states that for issues that have not been resolved during the initial contact, a stage one response will be provided within fifteen working days (unless there are exceptional circumstances) following a thorough investigation of the points raised). Further, its procedure states that for issues that have not been resolved at stage one, a definitive response will be provided within 15 working days unless there are exceptional circumstances, following a further investigation and review of the points raised (section 1.0). Under section 2.0, it describes a complaint as “An expression of dissatisfaction” about the standard of service, action or lack of action or decision taken by the landlord, or the way in which the landlord’s staff carry out their duties.

Summary of Events

  1. The landlord’s case files show that the resident first contacted it regarding noise nuisance from her neighbours on or around 17 September 2019. The landlord’s Resident Services Officer contacted the occupants of the flat the resident thought may be the source of a hammering noise (no.8) on the same day, but they denied making any noise. The landlord also made enquiries with social services (SS) regarding the occupants of no.14 who were also suspected of causing the noise, however, the landlord’s case file states that SS advised that no.14 was “very quiet at the moment”. 
  2. The resident reported further incidents of noise nuisance to the landlord (via email) on 20 September 2019 and 25 October 2019 and she was provided with log sheets to record the incidents. In October 2019, the landlord wrote general letters to all residents within the resident’s block reminding them not to cause noise nuisance. The landlord also contacted its Environmental Health Team (EHT) in November 2019 regarding the resident’s noise reports and was advised there were no on-going noise reports they were investigating at the block. Further, EHT informed the landlord there were no grounds to install noise monitoring equipment as they did not think a statutory nuisance was being caused.
  3. The resident continued to report noise nuisance to the landlord, following which it spoke to the occupants of the flat nos.11,12 and 14 who denied make noise nuisance. The landlord also responded to an email communication received from a Councillor on 25 November 2019, advising that it had investigated each of the resident’s reports of noise nuisance and provided details of steps taken but said it had not yet located the noise or anyone responsible for the noises.

 

  1. The case file shows the landlord’s Lead Officer phoned the resident on 27 January 2020 when the resident referred to incidents of “deliberate” loud hammering. The landlord told the resident it would be making further enquiries and will contact certain residents in the adjoining block. The landlord advised her case will be passed to its Senior ASB officer as the Resident’s Service Officer was off work poorly. The landlord also provided an update of its investigation to the Councillor, as at 28 January 2020.
  2. The case file shows the landlord reviewed the resident’s logs and listened to 14 audio sound recordings on 28 January 2020. The case file states that a radio could be heard on one recording however that the majority of recordings were inconclusive and would not be considered a noise statutory breach.
  3. Due to concerns about the resident’s wellbeing around this time, the landlord contacted SS and its Mental Health Team (MHT) to enquire if the resident was known to them and if she had a support worker (she did not). The Senior ASB Officer visited the resident on 18 February 2020.  The notes state the resident said the noise follows her around her flat and appears to know which room she is in and that the resident had said she was felling anxious and depressed. The landlord also commented in the case file that the resident agreed to a referral to the relevant professional support/care. The evidence shows the landlord made a safeguarding referral on 20 February 2020.
  4. The resident raised a complaint to the landlord via its online feedback form on 4 March 2020. Within her complaint, she said that neither the Housing Manager nor anyone else she had been in touch with at the Council had resolved the noise nuisance she first reported in September 2019, despite her filling out 26 log sheets and forwarding audio recording of the noises to it. The resident also said she had called the Housing Manager 22 times and that she only answered the phone twice. The resident advised the noise nuisance was coming from a second-floor flat which looks like it is adjacent to her bedroom wall on the other side of the block; this is the side where flat nos. 13-24 are. The resident requested that the landlord carry out the necessary action to stop this harassment and noise nuisance or alternatively help her with a transfer.
  5. The landlord’s Senior ASB Officer called at the resident’s property on 5 March 2020 but she was not at home but the landlord called at a number of flats within the block enquiring with residents about the reported noise nuisance. The landlord tried to call the resident later that day but was unable to speak with her. The landlord’s case notes stated that to date, it had conducted a proportional investigation based on the information provided by the resident and that the recorded noise she had supplied would be classed as “day to day living noise”. It stated that there is currently no evidence re statutory noise nuisance or any ASB therefore formal/legal action is not a justifiable option.
  6. The resident contacted this Service regarding the issue with noise nuisance from her neighbours in early March 2020 advising she had not received a response to her complaint. 
  7. The landlord’s Senior ASB Officer phoned the resident on 23 March 2020 in response to further communication from her suggesting the source of the noise nuisance may be coming from the occupants of no.23, supplying the occupants’ names. The landlord’s case file indicates it explained to the resident its position in regards to its investigations (as recorded in its case file for 5 March 2020) and then followed up the call with an email, advising it will now make the required enquiries in regards to the occupants at no. 23, however, it informed the resident that it would need to take into consideration the current climate in regards to non-urgent /essential doorstep visits (due to the Covid-19 pandemic). It said it would keep the resident informed. The action points recorded by the landlord included attending the resident’s block and making enquiries at flat nos.11 and 23, as well as taking steps to ensure the resident’s wellbeing.
  8. The case file indicates the landlord phoned the Councillor on 26 March 2020  and advised that despite investigations into the resident’s claims of noise nuisance by other residents, it had not been possible to establish any credible evidence to substantiate these reports, nor had it identified any possible perpetrator of any alleged noise.
  9. On 7 April 2020, the landlord sent a written response to the resident acknowledging the “many reports of unreasonable behaviour” it had received from her over the past few months. It acknowledged the great deal of concern and worry this matter has caused, which it said it very much regrets. The landlord advised that over the recent months its staff have carried out extensive enquiries into her noise reports. It said these enquiries include staff speaking with and in some cases visiting other local residents who she has suggested may be responsible for causing some of the noise she has heard or who may have at least heard the noises in question and able to tell it which other flat they think these are coming from. It said it has also spoken with the local police. Further, it stated that whilst it wished to provide her with appropriate advice and support wherever possible, given the findings set out above, there is no reasonable basis for it to continue making further enquiries at this current time into the noise nuisance she has reported.
  10. Following further email contact from the resident on 18 May 2020, the landlord issued a further response dated 19 May 2020 reiterating its position that it has undertaken detailed investigations into the noise problems she had reported over several months and there is no evidence of statutory noise nuisance.  It said it can only conclude that the noises she refers to are day to day living noises, such as those coming from pipes in the block, people watching television or listening to a radio and generally the noise of people coming in and out of the main entrance door. Therefore, given all of the above, it would not be appropriate for it to currently re-open enquiries on the basis of her recent email. It also acknowledged the resident’s request to be re-housed and advised that, unfortunately, it had hundreds of single people actively seeking to be re-housed from the landlord and priority is given to those without their own home in line with its Allocations policy.
  11. Following contact from the resident regarding “deliberate banging” and a switch clicking sound that she thought may be coming from no.23, this Service wrote to the landlord on 2 June 2020 advising the resident had been in touch in relation to her complaint about its response to reports of noise nuisance from a neighbouring property. The Ombudsman said that it was unclear if her complaint was being considered under the landlord’s Complaints procedure and asked it to treat this communication as a formal complaint if it has not already logged one.
  12. The landlord’s case file indicates that during June 2020, it replied to multiple enquiries made to it on the resident’s behalf by a (different than before) Councillor, the resident’s MP and the CAB regarding the resident’s on-going complaint. The evidence shows the landlord had also been liaising with the police and Victim Support who had both contacted it in regards to the resident’s reports of noise nuisance.
  13. The Ombudsman received further contact from the resident during June and July 2020 regarding her complaint about noise nuisance. Amongst other things, she said the hitting and banging noise may be coming from the flat above (no. 22). On 8 July 2020, the landlord advised the Ombudsman that it had treated the resident’s complaint within its complaint framework and said it had explained to the resident that it was unable to find any noise nuisance. However, as its escalation process was not made clear in its 7 April 2020 response and it was also unclear at which stage of its complaints process this response was issued under, on 14 July 2020 this Service requested the landlord to contact the resident within ten days to clarify how she can escalate the complaint.
  14. The landlord sent the resident a Stage two response on 3 August 2020.Within this response it confirmed it had reviewed all of the correspondence between her and its staff and its response provided under Stage one of the complaint process sent by email on 7 April 2020. It advised that it has no independent evidence of noise that is causing a nuisance to her or other people living in the resident’s block and that the sounds she describes are not classified as nuisance noise and that it is therefore unable to take action under the terms of the tenancies. The landlord stated it was unable to uphold her complaint that it has failed to respond to reports of noise nuisance as the Housing Team had responded to her reports of noise nuisance. The landlord stated however that it can consider taking proportionate action against other people living at the resident’s block once it has robust and independent evidence that noise is causing a nuisance or disturbance to her and other residents.
  15. The Ombudsman received further contact from the resident in September 2020 advising that over the past few months she has not heard the very strange knocking sounds at antisocial hours, however, there are still loud noises and switching /hissing noises which seem to be coming from upstairs at number 22 during the day most days.
  16. On 7 November 2020, this Service confirmed to the resident that her complaint will be investigated (backdated to 29 September 2020 which was the first date after expiry of the 8-week period set out in the Localism Act 2011).
  17. The evidence shows that the resident was in communication with the landlord’s contractors during November and December 2020 and that they visited her property and other flats trying to locate the source of hissing /switch noises she reported. The evidence suggests that “noisy” shower pumps at number 18 and 22 were replaced although it was not thought any noise from this could be heard at the property.  The dry room within the building was checked as well as the resident’s own boiler (the landlord serviced the boiler and replaced the flue in case this was the cause).

 

Assessment and findings 

 

Landlord’s response to the resident’s reports of noise nuisance 

  1. The evidence shows that the landlord responded promptly to the resident’s (17 September 2019) report of noise nuisance by visiting and speaking to the occupants of the flat whom the resident believed may be responsible, on the same day. The case file shows that the landlord phoned the resident back and told her that no.8 had denied causing a noise nuisance who then suggested it may the occupants of no.14. The landlord then contacted the social worker involved with the occupants of this flat to enquire if there were any known issues (none at that time). This shows the landlord responded to the reports of noise nuisance in accordance with the landlord’s ASB policy requiring the landlord to investigate promptly (within three working days in instances of reported noise nuisance).
  2. As no one had been identified as the source of the reported noise nuisance, the landlord also sent letters to all of the resident within a few weeks, reminding them about their obligation not to cause noise nuisance. Due to the resident continuing to report noise nuisance (including screaming and door slamming) over the next few months, the landlord enquired with EHT regarding any reports of noise nuisance in the resident’s block (who responded there was no evidence of this), visited the resident at home and continued to speak to a number of different residents of neighbouring/adjacent flats (including nos.11,12 and 14). During this timeframe (September to December 2019), the landlord responded to an email communication from a Councillor on 25 November 2019, who had contacted it on behalf of the resident regarding the reported noise nuisance on 12 November 2019. In its response the landlord advised it had investigated each report of the resident’s reports of noise nuisance and provided details of steps taken but said it had not yet located the noise or anyone responsible for the noises.
  3. However, there is no evidence of the landlord providing written responses to the resident’s emails of 20 September 2019 or 25 October 2019 therefore, whilst this Service is satisfied the landlord’s investigations into the reports of noise nuisance at this stage were reasonable and proportionate, we would expect the landlord to have responded to the resident written communications and its failure to do so amounts to a service shortfall (this is further addressed in the complaint handling section below).
  4. The case file shows that the landlord was in regular contact with the resident by phone and email over the next few months. In her 24 January 2020 email, the resident complained about knocking noises and on 27 January 2020, the landlord’s Lead Officer phoned the resident who referred to “deliberate” loud hammering during the call. The landlord told the resident it would be making further enquiries in her reports and will contact certain residents in the adjoining block (which it did).  The landlord however was unable to identify any evidence of hammering noises or those which could be considered noise nuisance (including on the audio recordings submitted by the resident) and there were no reports from other residents to corroborate the noises reported by the resident (apart from one instance of a radio being heard but none of D.I.Y noises or those that would constitute a nuisance).
  5. When the landlord visited the resident on 18 February 2020, she said she felt anxious and depressed and due to the landlord becoming concerned about her welfare, it asked the resident if she would like to be referred for professional help (to which she agreed).  The case file shows the landlord made a safeguarding referral on 18 February 2020 and that a social worker then contacted the resident and also her GP. The landlord remained in contact with the social worker and also its MHT over the next few weeks. The landlord called at the resident’s flat on 5 March 2020 but she was not in. However, it visited occupants of other flats including no.23 whom the resident advised may be causing the noises. However, despite these further enquiries, the landlord could not locate evidence of any persistent or antisocial noise.

 

  1. As above, the resident raised a complaint on 5 March 2020 and in its response dated 7 April 2020, the landlord explained the steps it had taken to investigate her reports of noise nuisance including liaising with the police (who had not found evidence of antisocial noise). It advised that as it had not established any instances of noise nuisance, there is no reasonable basis for it to continue making further enquiries at this current time into the noise nuisance. Due to further contact from the resident on 18 May 2020, it reiterated this position in a subsequent response dated 19 May 2020 and confirmed it had found no evidence of antisocial noises and therefore there were no grounds to support any possible action for breach of tenancy against another resident living in the block.  It said it can only conclude that the noises she refers to are everyday living noises, such as those coming from pipes in the block, people watching television or listening to a radio and generally the noise of people coming in and out of the main entrance door. It also acknowledged the resident’s request to be re-housed and advised that unfortunately it had hundreds of single people actively seeking to be re-housed from the landlord and property is given to those without their own home in line with its Allocations policy.
  2. Therefore, on balance, this Service find that the landlord has demonstrated that its investigations into noise nuisance reported by the resident, were proportionate and that based on its findings, it was reasonable for it conclude there were no grounds for it to re-open enquiries into the resident’s reports of noise nuisance at this stage.
  3. The case file shows that the resident continued to report noise nuisance to the landlord and that other agencies including police, the CAB and Victim Support as well as a (different to before) local Councillor and MP, who had all contacted the landlord in regards to the resident’s reports of noise nuisance (including screaming and a noise that sounds like a metal bar hitting on her wall/radiator) that the landlord were in communication with from June 2020 onwards. The landlord also reviewed further audio recordings of noises forwarded from a Councillor but found no evidence of unreasonable noise. Further, it is evident that the landlord provided information to the Councillor to assist with the resident’s request to be re-housed and of it seeking further professional help for the resident during this period. The case file also records that an elderly widower lived at no.23 (not the couple suggested by the resident).
  4. Following further contact from the Ombudsman, the landlord issued a “final” response dated 3 August 2020 under stage two of its Complaints procedure. Within this response, it repeated its position regarding no evidence of unreasonable noise and also stated it was unable to uphold the resident’s  complaint that the landlord has failed to respond to reports of noise nuisance as it said the Housing Team had responded to her reports of noise nuisance. The landlord stated however that it can consider taking proportionate action against other people living at the resident’s block once it has robust and independent evidence, that noise is causing a nuisance or disturbance to her and other residents.
  5. It is evident that following further reports of noise nuisance, the landlord also visited and spoke to the occupants of no.22 who the resident thought may be responsible for noise nuisance (including a switch clicking sound and a hissing noise).
  6. Therefore, on balance the Ombudsman considers that overall, the landlord has responded appropriately to the resident’s noise complaints up to the final response dated 3 August 2020 and beyond this date (due to further reports of noise nuisance from the resident) over a period of 15 months in total. Due to it being unable to locate any unreasonable or antisocial noise despite extensive enquiries with other residents and various agencies, there was no basis for it pursue action against alleged perpetrators and it was reasonable for it to conclude the noise described was day to day living noise. Further, it was reasonable for it to inform the resident that it would not continue with any enquiries unless there was robust evidence of noise that would constitute a nuisance although it did later investigate and try to locate and put a stop to some low-level noises such as hissing and a switching sounds reported by the resident. The Ombudsman also finds that the landlord appropriately liaised with relevant third parties both in response to enquiries made on the resident’s behalf and surrounding her wellbeing and that it took reasonable steps to provide support to the resident due to her experiencing distress and anxiety.

Complaint Handling

  1. The Ombudsman however considers that the landlord did not always follow its Complaints Procedure when handling the resident’s communications and reports of noise nuisance. On receipt of the resident’s stage one complaint dated 4 March 2020, the landlord issued a response to the complaint on 7 April 2020. However, the Ombudsman is mindful that by this date the resident had already been in correspondence with the landlord for around five months  since September 2019, regarding the disputed matter. Despite the resident having told the landlord during this timeframe that she was dissatisfied with the service it had provided (including in her email dated 20 September 2019), there is no evidence of it signposting the resident to its Complaints procedure or responding to the resident’s communications under its Complaint procedure, at this time. As this Service finds that it would have been appropriate to do so in the circumstances, this is evidence of landlord failing to follow its own Complaint’s procedure.

 

  1. Furthermore, the landlord did not make clear to the resident if its 7 April 2020 response was issued under stage one of its Complaint Process nor did it inform her of how to escalate her complaint to stage two if she was dissatisfied. It issued a further response on 19 May 2020 following the resident’s 18 May 2020 email but again it was unclear if this response had been issued under stage two of its Complaint Process and no details were provided about how to escalate the matter further if this was required.  This resulted in a prolonged and protracted complaints procedure with the resident not being properly informed regarding its Complaint process, causing her stress and inconvenience. Having identified the resident’s vulnerable status, there was an increased need for the landlord to treat her appropriately when handling her complaint and this shortfall would have compounded the issue.
  2. After intervention from the Ombudsman, it issued another response to the resident’s complaint on 3 August 2020 when it made clear that that it was the landlord’s final response under stage two of its Complaint’s procedure and advised the resident of her right to refer the matter to the Ombudsman.

Determination 

  1. After carefully considering all of the evidence, in accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of noise nuisance.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling the resident’s complaint.

 

Reasons 

  1. The landlord responded appropriately and reasonably to the resident’s reports of noise nuisance by contacting occupants in her block and the adjoining building attempting to establish the source of the noise and also by investigating the audio recordings supplied by the resident. Further, it enquired with, and liaised with various agencies throughout but as there was insufficient evidence of unreasonable or antisocial noise and no complaints from other residents, there were no grounds for it to take further action and it was reasonable for it to conclude the noise described by the resident was day to day living noise. The evidence also indicates the landlord tried to locate and resolve low-level noises reported by the resident. There is also evidence of the landlord taking appropriate steps in relation to concerns it identified in relation to the resident’s wellbeing.
  2. The landlord did not follow its Complaints procedure when responding to the resident’s complaint about noise nuisance. It failed to signpost the resident to its Complaints procedure at an appropriate stage and did not clearly inform the resident of how to escalate her complaint to the next stage in its complaint responses. Given the vulnerability it had identified in this case, it was essential that the resident’s complaint was handled in a clear and timely manner. Its failure to do so will have resulted in avoidable distress and inconvenience.

 

Orders and recommendations 

Orders

  1. The Ombudsman orders the landlord to pay the resident £75 for stress and inconvenience caused by its service failures identified with its complaints handling.
  2. The landlord to confirm compliance by 23 February 2021.