Lewisham Council (202128403)

REPORT

COMPLAINT 202128403

Lewisham Council

31 July 2023

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 handling of the resident’s reports of antisocial behaviour (ASB).

Background

The resident is a secure tenant of the landlord. The property is the ground floor flat of a semi-detached house that has been converted into 2 flats. The resident lives at the property with her partner who has significant medical needs.
The ASB, Crime and Policing Act (2014) 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 of residential premises; or conduct capable of causing housing-related nuisance or annoyance to any person.
The landlord’s ASB policy divides ASB into 2 categories, A and B. Category A includes hate crime, and behaviour causing physical harm. These cases will be responded to within 24 hours. Category B is a longer list of behaviours, which includes verbal abuse, harassment, intimidation or threatening behaviour, and noise nuisance. The landlord will respond to these reports within 3 days.
With specific reference to noise nuisance, the policy says noise, particularly between 11pm to 7am, may be considered ASB. Noise under the statutory limit will only be considered ASB if it is persistent, occurs regularly, and continues for long enough that makes it unreasonable. It is not enough for the noise to be annoying or disturbing. Noise will normally be initially investigated as nuisance.
The policy then defines nuisance as another person’s behaviour which may be annoying or disturbing, but does not reach the threshold of ASB. Behaviour considered as nuisance includes noise (that does not meet its ASB definition). In such instances, the landlord will take steps to try to resolve the situation, but states it is unlikely it will be able to take enforcement action against a tenancy or lease for such behaviour.
The landlord will respond to nuisance reports within 3 days. The landlord will consider contacting the neighbour to discuss the complaint; mediation; or asking the parties to sign a good neighbour agreement. The landlord will consider the vulnerabilities of both parties in its action plan. The landlord offers a noise app to all residents to gather evidence. It also uses an ‘on call’ professional witness service.
The landlord states that the causes and effects of ASB are wide ranging and varied, so the ways it tackles ASB will also vary. The tools used generally fall into 3 main types of activity: prevention, support, and enforcement, each with a variety of tools. The landlord may use a combination of prevention, support or enforcement on its own or in partnership with others, depending on the circumstances of the case.
The landlord’s complaint policy defines a complaint as any expression of dissatisfaction with its staff or the services it delivers. It provides examples of what would and would not be considered a complaint. For example, it will not consider a complaint about another resident as part of a neighbour dispute.
The landlord has 3 stages to the complaint process:
1. At stage 1, a service manager will respond within 10 workings days.
2. At stage 2, a corporate manager or head of service will respond within 20 working days.
3. At stage 3, an adjudicator will respond within 20 working days.

Summary of events

The neighbour referred to in the report lives above the resident with their partner and 3 children. They are a leaseholder for which the landlord is the freeholder. Information from the landlord states that in 2016, the neighbour removed the carpets in their property and from that point the resident experienced issues with noise. The landlord offered mediation, but the neighbour declined.
In June 2020, the resident contacted the landlord requesting help. She stated that the “unrelenting excessive noise” from the flat above was seriously affecting the physical and mental health of her family. The complaints made included noise from children jumping off furniture and playing ball games in the property; water ingress through the ceiling; rubbish in the garden; damage to plants from wheelie bins; and the sound of a washing machine in the early hours of the morning. The resident said she approached her neighbour directly, who she said stated she was only a council tenant and could ask the landlord for a transfer. Two weeks later, the resident contacted the landlord again as she had not had a response.
The resident started using the landlord’s noise app from 10 July 2020. Numerous recordings from the resident were made throughout July and August 2020.
The landlord sent the neighbour a letter on 7 August 2020 to advise them that the sounds emanating from their property were having a substantial impact on the resident. On the same day, the landlord made a referral to its mediation service for 1 party mediation for the resident.
The landlord then arranged for its independent witness to attend the property – the first visit occurred in September 2020. The independent witness reported noise and stated that as well as hearing “everyday living noise” such as children playing, they also heard some very loud stamps and bangs that appeared deliberate. The landlord sent the neighbour a warning letter on 30 September 2020. The independent witness attended the property again in October 2020 and noted that the noise was “excessive”, describing loud bangs, and said that this noise was having a significant detrimental impact on the resident.
The landlord took no further action at this point, but then said it would review the independent witness reports following an enquiry from the resident’s MP in November 2020.
On 22 December 2020, the landlord said that the noise was normal household noise and that it would not be able to investigate the case further. It said that it was not satisfied that the noise experienced was deliberate and therefore it would not be able to take any enforcement action against the neighbours.
On 5 January 2021, the landlord sent a letter to the resident to advise her that it had closed the ASB case. The landlord said it had sent a letter to the leaseholder and there had been no evidence of deliberate noise since. It said it would reopen the case if evidence of a statutory noise nuisance was received within 6 months.
The landlord received another enquiry from the resident’s MP in January 2021. After reviewing the recordings the resident submitted to the landlord’s noise app, the landlord maintained its position that the resident was experiencing normal household noise from the neighbour. However, the landlord did state it would continue to investigate the matter further due to the reports previously provided by the independent witness who deemed the noise to be “excessive and deliberate”. The resident responded, stating she had no faith in the noise app and agreed to the installation of noise recording equipment. It is not clear whether this equipment was ever installed by the landlord.
On 5 May 2021, the resident submitted a complaint about the landlord’s handling of the ASB case, stating that the landlord had not resolved the issue. The landlord provided its response on 21 May 2021. It agreed there had been a service failure. It said that going forward the case would be managed by an ASB officer (it was previously managed by the housing officer). The landlord said it would meet with the resident to form an action plan. The landlord later confirmed the noise nuisance was considered ASB, and it would consider applying for an injunction against the neighbour.
On 8 June 2021, the independent witness visited the property again. They witnessed the sounds of running and jumping and balls bouncing. At the end of June 2021, the landlord sent a final warning letter to the leaseholder, saying it may take legal action if things did not improve.
The leaseholder responded to the letter on 5 July 2021. They provided an explanation for the noises heard by the independent investigator at the times attended. They also stated that an officer of the landlord attended their property and was satisfied that they had carpeted “key areas”. The neighbour explained that the property was very old and “wafer thin”, and they could also hear noise from the resident’s property.
The resident continued to report incidents of excessive noise, as instructed. She received no response from the ASB team and escalated her complaint to stage 2 on 29 July 2021.
In its stage 2 response of 18 August 2021, the landlord said it was discussing the case with its legal team and considering what action it could take and would contact the resident to confirm. The landlord did not respond to the resident’s emails when she asked for the update she had been promised.
On 22 September 2021, the resident made a report of water ingress from the neighbour upstairs, stating this was the 8th leak she had experienced. The landlord spoke to the neighbour who said that a leak in the summer, caused by a pipe under the sink, had been fixed. They stated that the current leak was due to the fridge defrosting and this would be resolved as soon as possible.
The landlord provided its stage 2 response in relation to the leak on 3 December 2021. It confirmed that the leak had been fixed and the resident’s ceiling had been repaired on 15 November 2021. It confirmed the complaint about its handling of the ASB was at stage 3. It said the complaint would be determined by the independent adjudicator and the resident would receive a response from them directly. It said that the ASB officer would be reviewing the recent noise recordings, and the resident could expect an update on this by 13 December 2021.
The landlord was in contact with the police in December 2021. The police confirmed that they had checked their records for the previous 6 months. They stated that they had received no reports from the resident.
On 26 January 2022, the landlord sent its final stage complaint response. It confirmed that the resident had complained that it had failed to take adequate action to address leaks, noise nuisance, and ASB from the neighbour in the flat above. It stated that the leak into her kitchen was a matter being dealt with separately within the complaint procedure. The response upheld the resident’s complaint about the landlord’s ASB handling and said the following:
1. The landlord found that there was not sufficient evidence to apply for an injunction as the noise caused by the neighbour was not deliberate.
2. The landlord recognised that it could have done more. It should have investigated the case as ASB rather than noise nuisance initially, particularly because of the vulnerabilities of the resident’s household.
3. The landlord said that it can take time to gather sufficient evidence, or that formal action may not be possible.
4. The landlord acknowledged that the resident and her partner had suffered unnecessary uncertainty about whether (and when) matters would be resolved.
5. The resident had also experienced avoidable time and trouble in getting the landlord to listen to her concerns and take the matter seriously.
6. The landlord apologised to the resident and agreed to make a payment of £250 to acknowledge the uncertainty the handling of its ASB case had caused throughout the period.
7. The landlord said it would undertake up to 6 further independent witness visits, when the resident reported disturbance.
8. The landlord would review the evidence again in 8 weeks and would update the resident to advise her of what action it would be taking.

Post internal complaint process

The independent witness visited the resident’s property in July 2022, September 2022 and December 2022. Their statements show that the noise which was witnessed over 4 visits was excessive and they would class this as antisocial. They said the impact of this noise on the household below was extreme and at such a level and consistency that the resident was unable to enjoy their home or live a normal life.
The resident has been in contact with this Service on several occasions following the landlord’s final complaint response. She stated that the landlord had not followed its recommendations in the final response, and repeatedly failed to communicate with her. The resident said the case had been closed without any explanation. She said she had been left trying to cope without support from the landlord with the ongoing issues caused by the neighbour, which were seriously affecting her partner’s health.

Assessment and findings

It is not the role of the Ombudsman to establish whether ASB was caused or by whom, nor to tackle the ASB itself. The Ombudsman seeks to determine whether the landlord acted reasonably in response to the resident’s reports of ASB, and consider what is fair in all the circumstances of the case.
The regulatory standards for registered social housing providers include working in partnership with other agencies to prevent and tackle ASB in the neighbourhoods where they own homes. All residents should be able to easily report ASB and be kept informed about the status of their case where responsibility rests with the landlord, and appropriately signposted to other services where it does not. It should also provide support to victims and witnesses.
Although the landlord has provided copies of emails, letters, the independent witness statements, and the noise app recording entries from the resident, it has not provided a copy of the ASB case file. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail of events and aid any actions or investigations required.
When an initial report of ASB or nuisance against a neighbour is made, the landlord states it will respond within 3 days. Although there is reference to issues being initially raised in 2016, there is no indication that there was an open ASB case earlier than when the resident reported the issues in June 2020. The landlord subsequently took over 2 weeks to respond to the resident when she first reported the issues, and this was after she contacted it again. This was inappropriate and did not demonstrate that the landlord took the resident’s concerns seriously from the outset.
When a resident makes an initial complaint about a neighbour, it is considered good practice for a landlord to undertake a risk assessment to highlight vulnerabilities and consider the impact of the ASB or nuisance on the resident. It will then usually develop an action plan to include what support it can offer to the resident, how often it will review the case, and how it will update and contact the resident. There is no evidence provided to show the landlord carried out these actions in June 2020. Although the landlord is aware that the resident’s household has vulnerabilities, it did not acknowledge this in its correspondence until the final stage response 18 months later.
In her communications, the resident frequently said that she was concerned about the impact the ASB was having on the health of her and her partner. Following the 1 party mediation referral in November 2020, the landlord did not consider whether there were any other non-enforcement actions or support it could offer the resident either during the period of the ASB case, or as an alternative to the enforcement action it was considering. This was unreasonable considering the length of time the case was open for and the serious impact the resident had described.
The landlord did not update the resident at regular intervals as normally expected while an ASB case is open. Although the landlord initially treated the case as nuisance rather than ASB, it would still be expected to respond to the resident within reasonable timescales. There is evidence showing the resident often sent the landlord emails without receiving a response, which was unreasonable. The final complaint response identified that the communication from the landlord was not adequate and offered the resident £250 for her time and trouble and the uncertainty she experienced throughout the period. This failing covered a period from June 2020 to January 2022. Although the response identified the main failings in its ASB handling and provided some redress to the resident, it did not reflect the inconvenience and distress caused to her for its poor communication throughout what was a lengthy period.
Nevertheless, the landlord did undertake some of the actions this Service would usually expect to see in relation to an ASB case. It had previously offered mediation to both parties and made a 1 party referral for the resident in August 2020. There is also evidence that it contacted the police to find out whether any reports had been made or action taken. The landlord provided the resident with the facility of a noise nuisance app which she used, and it also made arrangements for an independent witness to attend on several occasions when the resident reported she was experiencing noise.
It is good practice for a landlord to contact an alleged perpetrator of ASB, so they are made aware of the issues and the impact this is having on the complainant. The landlord wrote to the neighbour when the resident initially reported the nuisance. Following the information provided by the independent witness, it then sent warning letters to advise them that further action could be taken. It considered the response the neighbour provided in relation to the noise, demonstrating it took a balanced approach.
Before a landlord considers legal action against its leaseholders, it requires a significant amount of evidence to show that the terms of the lease have been breached. Some leases include clauses related to nuisance, however in this instance the terms of the lease are not known so this aspect of the case cannot be addressed. There is some evidence to suggest that the landlord had explored amending the terms of the lease agreement to include a clause in relation to flooring. However, the neighbour had explained that an officer of the landlord had attended and was satisfied that they had laid carpet within some areas of the property.
Throughout the case, the evidence shows that the landlord explored whether a civil injunction against the neighbour was an appropriate course of action. The neighbour did provide an explanation for the noise heard by the resident. They explained that the property was an old, converted house, and therefore it was unlikely to have a good level of sound proofing. It is clear from the independent witness reports that the evidence gathered was at times when it could be expected that noise would be at a higher level than normally experienced. From the information provided to this Service, it was reasonable that the landlord advised the resident that it was unable to prove the noise nuisance experienced was deliberate.
What constitutes ASB or nuisance is often subjective. It is clear that the impact on the resident and her partner was significant and likely heightened due to the household’s vulnerabilities. What is not established is whether the noise nuisance or ASB was at such a level, was continuing for long enough, or was at such regular occasions, that a civil injunction was a proportionate course of action. It was reasonable that after carrying out appropriate investigations and reviewing the evidence provided, the landlord confirmed to the resident that it did not have sufficient evidence required for an injunction.
However, the landlord failed to keep to its promises in relation to its communications with the resident. In its stage 2 response, it said that it was discussing the case with its legal team and would be in contact with the resident. It then failed to update the resident afterwards even after she contacted the landlord again. The resident has expressed frustration that the landlord has not provided information on the status of the ASB case, and it was unreasonable that the landlord failed to do this.
Cases where there is a history of ASB reports over an extended period, such as this, can be challenging for a landlord to manage. In practice, the options available to a landlord to resolve a case may be limited and it therefore becomes difficult to manage expectations. In such instances, closing a case after following the ASB procedures and considering the options available is reasonable, even if the resolution is not the outcome desired by the resident. The landlord closed the ASB case in January 2021, following the findings of its investigations to that point, and informed the resident of this. However, it almost immediately reopened the case following an enquiry from the MP, stating it would continue to investigate the ASB. This suggests the landlord prematurely closed the case or was not confident that it had made the correct decision. Nevertheless, the detriment caused by this was limited given the ASB case was reopened so quickly.
In its final stage response, a year later, the landlord said it still did not have enough evidence to take any action but that it would continue to investigate the case. Further visits from its independent witness were carried out but according to the resident, the landlord subsequently closed the case again.
Although it was reasonable for the landlord to offer further witness visits in its final complaint response, it is of concern that there is no evidence as to how the landlord communicated with the resident to confirm the outcome of these investigations, and how it responded to the witness’ further feedback of the severe impact of noise on the resident’s living conditions. This indicates that the landlord failed to learn lessons from the outcome of the resident’s complaint in terms of its communications and support offer. This will inevitably have caused the resident additional uncertainty as to how the landlord intended to progress her concerns.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of ASB.

Reasons

Although the landlord did carry out some of the actions expected in relation to the ASB reported, with regard to its investigations and warning letters to the neighbour, there were some aspects of the case it did not manage well.
The case was open for a considerable period of time, over 18 months, while the landlord continued to investigate the nuisance. The main failing identified during this period was that it did not communicate consistently and effectively with the resident; there were occasions where the landlord did not follow promised actions to update her, particularly after the stage 2 complaint response. This led to her becoming frustrated and uncertain about what would happen next, with still no conclusion to the case after the final stage response.
The landlord also did not effectively consider the vulnerabilities of the household. There is no evidence to show it carried out a risk assessment so it could identify specific risks to the resident that it could mitigate, nor whether there was any support it could consider providing itself, or by referring the resident to specialist support services.
Although the landlord recognised its failings in its final complaint response, its compensation offer was insufficient given the circumstances of the case and there is no evidence that it learned lessons from the outcome of the complaint.

Orders

The Ombudsman orders the landlord to write to the resident to:
1. Apologise for the failures identified in this report.
2. Confirm the actions it has taken in relation to the ASB since the January 2022 final complaint response, in particular how it has assessed and responded to the independent witness reports conducted during 2022.
The Ombudsman orders the landlord to contact the resident to:
1. Review her current circumstances and offer appropriate support for her and her partner’s welfare.
2. Obtain an update from her on whether there is any ongoing ASB and, if so, provide an action plan as to how it will deal with this.
The Ombudsman orders the landlord to pay the resident a total of £500 compensation (£250 on top of the £250 already offered in its final stage response) for the distress or inconvenience caused to her by the failures in its handling of the ASB case.
The landlord should reply to this Service with evidence of compliance with the above orders within 4 weeks of this report.
The Ombudsman orders the landlord to review its handling of this case and provide this Service with an action plan within 8 weeks of this report, confirming how it will ensure that it offers appropriate support, and regular communications, to vulnerable households experiencing noise nuisance in future.
The Ombudsman orders the landlord to self-assess against the recommendations of the Ombudsman’s spotlight report on noise complaints (October 2022). It should provide a copy if its assessment to this Service within 8 weeks of this report.