Lambeth Council (202224448)

REPORT

COMPLAINT 202224448

Lambeth Council

1 May 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example, whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

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

The complaint

The complaint is about the landlord’s:
1. Response to the resident’s reports of anti-social behaviour (ASB).
2. Complaint handling.

Background and summary of events

Background

The resident is a leaseholder of the landlord at the property, which is a ground floor flat in a converted Victorian/Edwardian house. The resident’s neighbour, who is also a leaseholder, lives in the flat above him. The landlord has no vulnerabilities recorded for the resident.
Prior to purchasing the property, the resident had been a resident of the landlord and had been on its highest band for an emergency transfer. Instead of a transfer the resident had purchased the property to become a leaseholder (the date of this is not clear).
The resident raised a previous complaint in 2020 in respect of ASB from the neighbour, which included noise transference due to them not having carpet. The landlord advised at stage 1 (28 October 2020) that the neighbour had been given until 27 November 2020 to install a carpet. Within its stage 2 response (1 February 2021) the landlord stated that it had sent a warning letter to the neighbour about the flooring but it had been unable to assess the flooring as access had not been provided. It stated it would seek an injunction through the Court to enforce this. The resident referred this complaint to the Housing Ombudsman on 16 March 2021.
On 24 November 2021 this Service determined the resident’s previous complaint (case reference 202006703). Service failure was found as, even though the landlord had intended to take legal action, it still had a responsibility to respond to the ASB reports in line with its policy. This Service concluded that by not seeking to manage the neighbour’s behaviour, the landlord did not make sufficient or timely efforts to assist in the prevention of possible recurrence of noise disturbance.
The landlord pursued legal action and on 14 December 2021 the Court issued an injunction which prohibited the neighbour from doing the following:
1. Banging, hammering, screaming, or making sounds which were audible outside of the property.
2. Fly-tipping and unreasonably blocking the path with rubbish bins.
3. Engaging in or threatening to engage in conduct capable of causing nuisance or annoyance to any persons visiting, residing in, occupying the accommodation.
The date(s) are not clear but the neighbour was alleged to have breached the injunction and the landlord issued committal proceedings. The matter was brought before the Court on 31 August 2022 for committal proceedings. The case could not proceed for reasons that could not be disclosed by law and the legal case was concluded.

Policies and procedures

The resident’s lease states:
1. “the tenant covenants to keep the council fully indemnified against all losses, costs, charges, fees and expenses including professional, legal and surveyors fees incurred in relation to any action or proceedings under this lease […] including all costs and professional fees […] to remedy any breach of lease”.
2. The landlord is responsible for the structural parts of the property including the roof space, joists and beams. The resident is responsible for the ceilings.
3. The leaseholder must keep the floors of the property substantially covered with suitable material to avoid the transmission of noise.
The landlord’s ASB policy provides for both tenants and leaseholders in its response to ASB. This policy states:
1. ASB can include, noise, harassment and hate related incidents or crimes.
2. It will have regard to the full range of civil and criminal powers that are available and where appropriate, it will use enforcement action. It will assess which powers will be the most effective, fair, proportionate, and reasonable to deal with the ASB.
3. It recognises the right to respect for the home and that individuals have the right not to be discriminated against. It will only opt for possession as a last resort, after escalating its response incrementally by using early intervention measures and low-level legal powers.
The landlord has a 2 stage complaints policy. At stage 1 it aims to respond within 20 working days. At stage 2 it aims to respond within 25 working days.

Summary of events

On 27 December 2022 the resident submitted a complaint and stated that the neighbour was in breach of their lease as they had wooden floorboards rather than a carpet. They were “constantly banging pacing stomping, scrapping” the floor for many hours which was impacting his enjoyment of the property. He also stated that the neighbour had been racially abusive to him. He stated that the noise had been ongoing for over 2 years and he had supplied over 600 audio recordings of the noise to the landlord.
The landlord responded on 9 January 2023 and stated as follows:
1. It had pursued legal action against the neighbour, however due to circumstances outside of its control, and for reasons it could not share, the Court had found that it was unable to proceed with the committal proceedings. It advised the resident to seek legal advice in respect of this.
2. It encouraged the resident to report any racial abuse to the police.
The resident responded the same day and stated as follows:
1. He was not satisfied with the response. The landlord had not taken action in respect of the neighbour breaching their lease conditions by having wooden floors.
2. He had reported the neighbour’s actions to the police “many times” and there was a criminal case pending against the neighbour in the Crown Court.
The landlord responded on 11 January 2023 and agreed that the neighbour’s behaviour amounted to a breach of her lease. It had tried to enforce the terms of the lease by obtaining an injunction against the neighbour. It had obtained this injunction and committal proceedings had been issued due to a breach of the injunction by the neighbour. The Court however had information which prevented it from finding the neighbour guilty of breaching the injunction. Due to this it was “forced” to re-consider its approach to the matter in relation to the options available to it, namely an injunction or forfeiture. It needed time to consult before taking further steps. If offered to meet with the resident to discuss the matter.
On 13 January 2023 the resident contacted this Service and stated that the landlord had not responded to his complaint. This Service asked the resident to provide copies of any responses received from the landlord.
On 30 January 2023 the resident asked the landlord why it had not arranged a meeting with him as per his request (this has not been seen by this Service). He also requested a “deadlock email”.
The landlord contacted the resident on 1 February 2023 and noted that its legal department had advised as follows:
1. All the relevant evidence and information had been presented to the Court.
2. There may be further action that it could take on the resident’s behalf in respect of enforcement of the neighbour’s lease conditions. This however would require the resident to agree to pay the legal costs incurred by the landlord in doing so.
3. It advised the resident to seek independent legal advice.
The resident responded that same day (1 February 2023) and stated as follows:
1. The landlord had lost the case and it should have appealed the Court’s decision.
2. The matters were taking a lot of his time and he was “physically and mentally destroyed”.
3. He had reported further matters to the police in January 2023, including racial abuse by the neighbour.
4. He felt as though he was “living under a gym, building site, factory and zoo” as the neighbour had a lot of cats. The noise was “deliberate and malicious”.
5. The neighbour had been required to fit a carpet and underlay in 2020 so he should not have to pay for the landlord to take such enforcement action.
On 3 February 2023 the landlord advised the resident as follows:
1. It had not lost the legal case. It had been granted an injunction which was the order it had sought. It had hoped findings would be made following a committal hearing which it could then use to try and utilise the forfeiture provision within the neighbour’s lease. However, there was information before the Court which prevented the Court from finding the neighbour guilty of breaching the injunction. Due to this the landlord had been “forced” to re-consider its approach.
2. The resident’s lease agreement stated that if a leaseholder was requiring the landlord to act on the resident’s behalf, the landlord was entitled to ask for money on account of any Court action (clauses 2.10 and 3.7).
3. The resident could pursue private legal proceedings against the neighbour.
4. It noted that, prior to purchasing the property, the resident had been on its highest band for an emergency transfer. Instead of a transfer the resident had purchased the property to become a leaseholder despite him having concerns of ASB and noise from the neighbour.
The resident responded the same day and stated he had been offered a transfer in 2017 but had declined this as the property offered had contained asbestos.
The landlord met with the resident on 9 February 2023 as part of its ASB case and noted internally as follows:
1. It had explained its position in regard to the injunction case. The resident was not in a financial position to proceed with further legal proceedings.
2. The resident had not informed his lawyer of the nuisance issues before he bought the property (it is not clear if the resident advised the landlord of this). It had advised him to seek legal advice.
3. It had listened to recordings and it appeared the neighbour did not have any carpets.
4. It would send him a case plan but this would not include further court proceedings.
On 14 February 2023 the landlord sent its action plan to the resident which stated as follows:
1. It would provide him with the new ASB app.
2. It would request disclosure from the police, particularly in regard to recent events.
3. It would contact other residents for any further information.
4. It would work closely with its partners, in particular to refer the neighbour to appropriate bodies. This was already underway.
5. It would schedule a further meeting with the resident.
On 21 March 2023 the landlord noted internally that it had spoken to the resident who had advised that the neighbour was due for trial in the Crown Court for a racially aggravated offence against him.
On 2 May 2023 this Service asked the resident if he had completed the landlord’s internal complaints process. The landlord subsequently advised the resident (on 16 May 2023) that it had upheld his complaint within its final response from 9 January 2023.
On 1 June 2023 the landlord wrote to the resident in respect of his complaint and stated as follows:
1. It reiterated the legal action it had taken in respect of the neighbour and that the resident would need to provide security for the costs of any further legal action.
2. The issue with the neighbour’s floor covering had been part of the Court case in support of the injunction.
3. It would await the verdict from the Crown Court. Should the neighbour be found guilty, it would regard this very seriously. It did not rule out further legal action in those circumstances.
On 2 June 2023 the landlord noted internally that it needed to provide a stage 2 response to the resident’s complaint. It enquired when the carpet would be fitted in the neighbour’s property.
On 13 June 2023 the landlord contacted the neighbour and stated that it was still receiving noise complaints regarding the flooring and that it had previously asked her to lay adequate flooring in October 2021. It stated it wanted to conduct a floor inspection on 15 June 2023. The neighbour responded that same day and stated the date was not convenient and that she wanted an advocate present during any inspection.
On 14 June 2023 the landlord sent a stage 2 response to the resident and stated as follows:
1. It had responded at stage 1 on 11 January 2023 and the resident had requested this be escalated to stage 2 on 17 May 2023 (This Service has not seen the correspondence from 17 May 2023).
2. It acknowledged that the neighbour had not complied with the injunction and that the injunction had proved to be unenforceable.
3. Although the injunction case had been concluded, its ASB team was continuing to try to gain access to the neighbour’s property to confirm the flooring situation. The neighbour had been requested to provide access but had refused and had instructed the landlord to contact her solicitors. As such its legal representatives were in contact with the neighbour’s solicitors with a view to inspect the property.
4. It acknowledged that the resident had experienced a “good deal of distress caused by the nuisance noise” and it apologised that it was continuing. It was actively pursuing a resolution.
5. It signposted the resident to this Service.
On 16 June 2023 a representative for the neighbour advised the landlord that they had not fitted carpets due to having a dust allergy.
The resident referred his complaint to this Service on 22 June 2023 and stated as follows:
1. The neighbour was a “hoarder” which caused a fire risk.
2. The neighbour had no carpet or underlay. As such when they walked around, the resident’s property vibrated. He could hear noise from the neighbour including the toilet flushing, their passing wind, them making “nasty” comments and an item that banged every 30 seconds. They deliberately banged and stomped at all times of day and night.
3. The neighbour was breeding and selling cats (contrary to lease conditions). The noise of cats running around was unbearable.
4. The neighbour had been told to lay carpet and underlay in 2020 but this had not been done.

Correspondence following the referral to this Service

The resident advised this Service on 15 August 2023 as follows:
1. The landlord had not dealt with the harassment and ASB. It had not “forced” the neighbour to fit underlay and carpet.
2. The cat litter from the neighbour’s cats was weighing down the communal bin.
3. He had been complaining to the landlord about the neighbour since 2009.
On 12 January 2024 the resident advised this Service that the neighbour had pleaded guilty to harassment against him. Even though she was awaiting sentence (on 31 January 2024) the ASB had continued.

Assessment and findings

Scope of investigation

This Service is not able to consider matters which have previously been considered by a Court. In this case, the resident’s concerns about the neighbour not having carpeted flooring was considered by the Court as part of the injunction case. This resulted in an injunction being granted against the neighbour. This Service is also not able to comment on the landlord’s ability to enforce this injunction or the Court’s decision that the committal proceedings could not proceed. Any challenge to the Court’s decision would need to be pursued via a legal route.
It is noted that allegations of harassment in respect of the resident’s neighbour were considered as a criminal matter in the Crown Court. As this has been considered by a court, this Service is not able to look into these issues. Instead this investigation will focus on how the landlord responded to the resident’s concerns of noise raised within his complaint from December 2022.

Response to the resident’s reports of ASB

It is clear that the noise from the neighbour’s property has been impacting the resident for a considerable time and that the injunction was deemed necessary to prevent further ASB. It is noted that the landlord had hoped to be able to take action in respect of the neighbour having breached this injunction, however this option was determined by the Court as not being available to the landlord. This decision by the Court effectively brought an end to the landlord’s ability to pursue legal action for a breach of the injunction. The landlord explained this during its meeting with the resident and within its complaint responses. Although the landlord was not able to pursue a breach of the injunction the landlord still had a responsibility toward the resident in respect of the neighbour’s behaviour reported.
The Housing Ombudsman published a spotlight report on noise complaints in October 2022. It recognises that noise can cost residents their mental health and well-being and it can cost landlords in protracted and often futile interventions. It encourages landlord’s to consider a range of options available in such circumstances, ranging from mediation, soundproofing and legal action. The landlord advised the resident that it was working with an external agency to try to support the neighbour and that this would be ongoing. This was appropriate and demonstrated that the landlord was seeking to understand the reasons for the neighbour’s behaviour. It also set out an action plan in respect of the new reports of ASB. This included working with partner agencies such as the police. It advised that the resident could pursue his own legal action against the neighbour or that it could pursue further legal action but that the resident would be liable for the cost of this. This was appropriate and was in line with the conditions of the resident’s lease.
It is noted that the landlord tried to inspect the neighbour’s property in June 2023, however access was denied. It subsequently advised the resident that it was liaising with the neighbour’s solicitor in respect of this although it is not clear what the outcome of this was.
The landlord advised the resident that, should the neighbour be found guilty in the Crown Court of a racially aggravated offence against the resident, that it would take this seriously. This was appropriate as such a conviction would provide evidence of ASB. However, the landlord was not clear in setting out what further action it could or would take should the neighbour be convicted. It should have been clear in respect of this to manage the resident’s expectations.
Despite the matter being pursued legally, the landlord considered the resident’s reports and complaint through its ASB process. This was appropriate and demonstrated that the landlord had continued to try to investigate matters despite the legal route having not resolved the matters.
Whilst the landlord had taken appropriate action to continue to support the resident, it is not clear what action it was taking in response to the ongoing reports given that it had been unable to enforce the injunction. The lack of enforcement action in respect of the injunction meant that the landlord could not gain access to the neighbour’s property to inspect it and take appropriate action.
There is no evidence that the landlord was proactive in suggesting any improvements the resident could make to his property to try to reduce the noise transference. The landlord could have discussed the possibility of sound proofing being installed to the resident’s ceilings in order to try to reduce the noise. Such proactive discussions could have helped support the resident in light of the injunction not being able to be enforced.
It is clear that the landlord has taken the resident’s reports seriously and obtained an injunction against the neighbour. It is unfortunate that this could not be enforced, however this was outside of the landlord’s control. In light of this not being an available solution, the landlord could have been clearer as to what other options were available to the resident and could have advised him of practical solutions such as soundproofing. There was therefore maladministration in the landlord’s repose to reports of ASB. This Service has ordered £300 compensation to acknowledge and reflect the distress and inconvenience caused to the resident as a result of the landlord failings. This is in line with the Housing Ombudsman remedies guidance where a failure of the landlord adversely impacted the resident. The landlord has also been ordered to advise the resident as to the remaining options available to him in respect of the ASB and to confirm the current status of its response to addressing the neighbour’s behaviour.

Complaint handling

The timeframes for complaint responses as set out in the landlord’s complaints policy are not in line with the Housing Ombudsman complaint handing code (the Code). The Code is clear that landlords should respond at stage 1 within 10 working days and within 20 working days at stage 2. An order to review this policy has been made below.
The resident submitted his complaint on 27 December 2022 and a response was provided by the landlord on 9 January 2023. This response however did not state that it was a stage 1 response, nor did it state if the complaint was upheld and it did not contain escalation information. The resident expressed his dissatisfaction with the response the same day and the landlord provided a further response to the complaint on 11 January 2023. This second response also lacked confirmation as to what stage of the complaints process it was for and confirmation as to whether the complaint was upheld. It also lacked any signposting to this Service. At this point, having had two responses to his complaint and remaining unsatisfied, the resident understandably referred the matter to this Service.
Due to the lack of clarity in the landlord’s responses, this Service asked the landlord for confirmation of the position of the complaint within its internal complaints procedure. The landlord determined that its second response (from 11 January 2023) had been a stage 1 response and that the resident had requested an escalation in June 2023. It is not clear how this conclusion was arrived at and it is noted that this contradicts the information the landlord relied on in its stage 2 response (14 June 2023) which stated that the resident had escalated the complaint on 17 May 2023. The landlord subsequently responded at stage 2 on 14 June 2023.
The landlord’s complaint responses were confusing as to the position of the complaints within the internal complaints procedure. This subsequently led to delays and impacted the resident’s ability to refer his case to this Service until June 2023. This unnecessary delay caused further distress to the resident who had already indicated how the situation was impacting him. In addition, the landlord did not recognise or acknowledge its complaint handling failures. This was not reasonable as the landlord should have acknowledged these and the impact they had on the resident. Following this it should have offered redress to acknowledge the distress caused.
The landlord’s complaint handling failures amount to maladministration. To acknowledge the impact this had on the resident, compensation of £150 has been ordered. This is in line with the Housing Ombudsman remedies guidance.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s response to reports of ASB.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s complaint handling.

Reasons

The landlord appropriately advised the resident of the steps it was taking in respect of the ongoing ASB including the option of him pursuing his own legal action or it taking further legal action. Despite being aware of the limitations of the injunction, the landlord was not proactive in suggesting practical solutions to the resident to reduce noise transference nor did it clarify what action it was taking in response to the ongoing reports given that it had been unable to enforce the injunction.
The landlord was not clear whether the responses to the resident’s complaints were part of its internal complaints procedure or what stage the resident’s complaint was being considered at. The responses did not provide any escalation or signposting information. The landlord did not acknowledge this failure or take steps to offer redress to acknowledge the impact this had on the resident.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to this Service:
1. Pay a total of £450 compensation, made up as follows:
  1. £300 to acknowledge and reflect the distress and inconvenience caused to the resident as a result of the landlord failings in responding to the reports of ASB.
  2. £150 compensation to acknowledge the impact to the resident of the complaint handling failures.
2. Provide clear guidance to the resident as to the remaining options available to him in respect of the ASB.
3. Confirm the current status of its response to addressing the neighbour’s behaviour.
4. Review its complaints policy in light of the Housing Ombudsman complaint handing code to ensure compliance.

Recommendations

It is recommended that the landlord explore options with the resident of possible soundproofing that could be undertaken in his property.