London Borough of Barking and Dagenham (202205116)

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REPORT

COMPLAINT 202205116

London Borough of Barking and Dagenham

22 February 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

  1. The complaint is about:
    1. The landlord’s handling of the resident’s reports of alleged antisocial behaviour (ASB) and noise nuisance.
    2. The landlord’s complaint handling has also been investigated.

Background

  1. The resident has a secure tenancy with the landlord, a local authority for a one-bedroom first floor flat. There are neighbouring flats above and below the resident’s property. For the purpose of this report the above neighbour will be referred to as neighbour 1 and the downstairs neighbour as neighbour 2.
  2. Between 3 and 19 July 2022 the resident reported concerns to the landlord about neighbour 1 including audio recordings and diary logs. She stated she was being disturbed daily. She said neighbour 1 was turning on taps and pulling a light cord multiple times, dropping things on the floor and stomping. She said neighbour 1 was harassing her by making noise on purpose and believed he had done it to a previous tenant of her property. The landlord agreed to speak with neighbour 1 in this time period.
  3. The resident raised a formal complaint on 20 July 2022 made up of her reports between 3 and 19 July 2022. She said the landlord needed to take action. The landlord responded to her complaint on 3 August 2022. It told the resident the following:
    1. It had spoken to neighbour 1 and found him to be “professional and engaging”. It assured the resident neighbour 1 had carpets fitted but had agreed to install rugs to further dampen any sound.
    2. It stressed it would never be able to “completely eliminate noise”. It said some noises reported by the resident were “everyday living noises” and due to the building’s age, there was little it could do.
    3. If the resident believed there was excessive noise beyond everyday living noise, she should report this to the landlord’s noise team. It advised the noise team may decide to install noise monitoring equipment (NME).
    4. It provided details on how the resident could escalate her complaint. It explained if it was not appropriate to escalate the complaint it would explain why.
  4. Between 3 August and 3 October 2022, the resident raised further concerns with the landlord. These are detailed as follows:
    1. The resident continued to report neighbour 1 was stomping, dropping things, pulling a light cord, and turning on taps multiple times. She believed neighbour 1’s behaviour in making noise was harassment.
    2. The resident reported there was a loud whistling noise coming from neighbour 1’s property. She also reported noise from neighbour 2 pulling their light cord.
    3. On 10 August and 7 September 2022, she reported water passing by her living room window. She said she believed neighbour 1 was urinating from his balcony.
  5. In response to the resident’s concerns the landlord completed the following actions:
    1. It replaced a light pull cord at neighbour 1’s property between 25 August and 1 September 2022. It found neighbour 1’s smoke alarm was responsible for the whistling noise heard by the resident. It changed the batteries to the smoke alarm on an unknown date between 1 August and 3 October 2022.
    2. It installed noise measuring equipment at the resident’s property on 22 September 2022 and collected this on 3 October 2022. The landlord raised an order to replace neighbour 2’s light cord on 15 December 2022 and completed this on 24 April 2023.
    3. On 21 September 2022 it raised a safeguarding alert for the resident as she had spoken about suicide in an email to it on the same day.
    4. The landlord investigated the water passing by the resident’s window. On 10 August 2022 it found neighbour 1 would have had to have climbed off his balcony onto scaffolding to have urinated. It later found on 13 September 2022 sections of guttering were missing. It believed this to be responsible for the leaking water. It completed repairs to the guttering on 5 October 2022.
    5. The landlord raised an order to replace neighbour 2’s light cord on 15 December 2022 and completed this on 24 April 2023.
  6. On 4 October 2022 the resident contacted this Service as she had received no further complaint response from the landlord. A request was made for the landlord to reply to the resident in 10 working days. The landlord duly raised an escalation request on 4 October 2022. Following this the landlord completed further action in response to the resident’s reports:
    1. It investigated neighbour 1’s property and found the noise from the taps was “normal”. It also found it was unable to reduce the water pressure.
    2. It told the resident on 19 December 2022 it needed further time to analyse the findings of the noise monitoring equipment. It completed the analysis on 13 January 2023 and wrote to the resident with its findings. It told her the sporadic pattern of noise was low level and for a short duration. It said it was not a statutory noise nuisance.
  7. The landlord provided its stage two complaint response on 17 January 2023. It told the resident the following:
    1. It was unable to conclude it should have done more about the resident’s noise complaint. It said it had not departed from its policy or procedure in its response. It said it would respond to any further reports of noise from the resident that were enduring or late at night.
    2. It was not able to say if noise was deliberate and the sound recordings were not of sufficient intensity or duration to warrant further action. It said neighbour 1 had children so noise could be accidental. It said there is expected noise when people live near one another. It confirmed it had taken all steps to eliminate noise and there were no other steps it could take. It expected tenant consideration at night but had no power to impose how tenants use their home.
    3. It had referred the resident to safeguarding when she had referenced suicide. It had offered her therapy support, and she should contact it, if she wished to take this up.
    4. It apologised for the time it took to make its complaint decision. It also apologised for the uncertainty this caused to the resident.
  8. On 28 April 2023 the Ombudsman accepted the resident’s complaint against the landlord for investigation. In an email to the Ombudsman on 16 February 2024 the resident said that noise from neighbour 1 was ongoing and she was at her “wits end”.

Assessment and findings

Scoping of assessment.

  1. The purpose of this investigation is not to establish if ASB occurred, or which party in the neighbouring dispute was responsible. It is for the Ombudsman to determine whether, in response to reports of ASB, the landlord acted in accordance with its relevant policies and procedures and if its actions were fair and reasonable in all the circumstances of the case.

The landlord’s handling of the resident’s reports or alleged antisocial behaviour (ASB) and noise nuisance.

  1. The tenancy agreement asks all tenants “to consider their neighbours and help to create caring and happy communities and deal with any problems.” The landlord states it will act against tenants who ignore this tenancy agreement and will work with other agencies to do so. The tenancy agreement details two categories of ASB as follows:
    1. ASB which it states is a behaviour which can cause nuisance or annoyance. Its ASB Policy confirms it will respond to a complainant in 5 working days. It includes relevant examples such as:
      1. Harassing anyone for any reason.
      2. Throwing things off balconies or out of windows.
    2. Nuisance which it states is an action or event that affects another person’s enjoyment of their property, whether their action is intentional or not. Its ASB Policy confirms it will not treat noise nuisance under its ASB Policy. It includes relevant examples such as:
      1. Banging and slamming doors.
      2. Putting furniture or fittings such as laminate flooring in their home where the noise can cause problems for neighbours.
      3. Making a lot of noise during unsociable hours.
  2. The landlord’s Noise Complaints Policy on its website states it has the power to investigate and deal with defined statutory nuisances under section 79 of the Environmental Protection Act (EPA) 1990. For a statutory nuisance to exist it must occur regularly and continue for a period of time that makes it unreasonable. It states it is not enough for it to merely annoying or disturbing. It cannot take action where there is no evidence statutory nuisance is occurring within the terms of the EPA. This Service could find no evidence in the landlord’s policies to confirm its timescale for response to noise nuisance.
  3. On 10 July 2022 the resident reported noise from neighbour 1 as harassment to the landlord. She said neighbour 1 was purposefully dropping things on the floor, stomping, and turning on taps. The landlord took action and spoke with neighbour 1 informing the resident of the outcome in its stage one complaint response of 3 August 2022. It explained appropriately that it found neighbour 1 to be “reasonable” and he agreed to lay down rugs, which the landlord saw evidence of. It explained it believed the noises were “daily living noise” but the age of the building restricted what it could do. It explained how to report to its noise team any noises beyond “daily living noise” and repeated this to her on 3 August 2022.
  4. Between 7 August and 9 December 2022, the resident continued to report neighbour 1 was harassing her by making noises. The landlord was proactive through this period and responded to most of the resident’s emails within its 5 working days response timescale. However, it failed to respond to her email of 9 December 2022 until it provided its stage 2 complaint response on 17 January 2023.  The landlord should have responded to the resident. It had the opportunity to explain to her it was preparing its stage 2 complaint response. Its lack of response caused the resident to feel she was not being listened to.
  5. The resident reported to the landlord on 10 August 2022 that “urine from neighbour 1” has passed by her window or “so it seemed”. This is an example that fitted within the landlord’s examples of ASB. The landlord took reasonable steps following this in accordance with its policy, as follows:
    1. The landlord responded promptly to this and spoke with neighbour 1 on the same day.
    2. The landlord concluded it was improbable neighbour 1 had urinated over his balcony as he would have had to climb over his own balcony onto scaffolding. The landlord found there was no reports of anyone being seen by passersby urinating in the street from the scaffolding. It also found the “allegations did not fit neighbour 1’s character.”
    3. The landlord informed the resident of its findings on the same day, within its 5 working day response timescale.
  6. The resident reported “water splashing on her windows outside” from neighbour 1 again on 7 September 2022. The landlord acted quickly replying to her the same day. It told her it would find the source of the water and told her there was “no evidence neighbour 1 was responsible” and it could “not be treated as ASB”. The landlord attended the property on 14 September 2022 and found a “defect in the gutter”. It informed the resident the same day it would complete a repair and monitor it to completion. It completed all respective repairs to the guttering in a reasonable timeframe by 5 October 2022.
  7. The resident raised noise nuisance through the period 3 July 2022 to 15 December 2022. The landlord responded proactively to the resident throughout this period as it had done when she reported harassment. It explained to her on 11 August 2022 that sound and movement in neighbour 1’s home was not an example of statutory noise nuisance. It went on to explain to her on 30 August 2022 it was trying to reduce noise in her property but could not achieve a “noise free environment.”
  8. The landlord reviewed the resident’s recordings and notes of noise between 3 July and 30 August 2022. However, it told her on 30 August 2022 it was unable to use her audio recordings as evidence of statutory noise nuisance as it could not establish where or when she had obtained the recordings. This was an appropriate response, but the landlord could have advised the resident earlier to allow her to amend her approach. Its failure to do this caused her wasted time and inconvenience. From the 30 August 2022 it arranged for NME to be installed at the resident’s property as an alternative approach. This is assessed further, later in this report.
  9. Throughout the period 3 July to 15 December 2022 the landlord arranged the following in response to the reported noise nuisance (which are investigated in turn following this):
    1. Investigated and updated light pull cords in neighbouring properties.
    2. Investigated a whistling noise from neighbour 1’s property.
    3. Investigated the floor coverings in neighbour 1’s property.
    4. Investigated taps and pipework in the building.
    5. Installed and analysed data from NME.

Update to light cord pulls in neighbouring flats.

  1. The landlord’s records show on 3 August 2022 it requested an estimate from a contactor to replace neighbour 1’s light pull cord. On 23 August 2022 the landlord told the resident it would replace neighbour 1’s light pull cord within 20 working days. It is unclear when the work was completed, but on 25 August 2022 the landlord told the resident it would be that week. There were no further reports from the resident from 25 August 2022. It can therefore be assumed the issue was resolved within a week of 25 August 2022 to the resident’s satisfaction. The landlord completed this work within a reasonable timeframe and met its timescale of 20 working days.
  2. The resident reported noise nuisance from neighbour 2’s light pull cord on 9 and 20 September 2022. She said it was disturbing her when she was in bed. The resident was unhappy on 11 October 2022 the landlord contacted neighbour 2 about making changes to neighbour 2’s light pull cord. The landlord acted reasonably in explaining that it was required to contact neighbour 2 to rectify the issue.
  3. Following this the landlord was delayed in raising the work to update the light pull cord and did not do this until 15 December 2022. It was further delayed in completed the update and did not complete this until 24 April 2023. This was a total of 228 days from the date the resident reported the issue. This was an unreasonable amount of time and caused further detriment between the resident and neighbour 2 and the landlord and resident. It also caused the resident inconvenience and the feeling that the landlord was not taking her seriously.

Whistling noise from neighbour 1’s property

  1. On 9 September 2022 the resident reported a loud constant whistling noise from neighbour 1’s property. This Service has seen evidence the landlord investigated and found the issue was neighbour 1’s smoke alarm. The evidence confirms it replaced the batteries in the smoke alarm which rectified the issue. It is unclear from the evidence when the landlord’s investigation and remedial work took place. However, there were no further reports from the resident after 9 September 2022 which suggests the issue was resolved quickly.

Floor coverings in neighbour 1’s property

  1. In its stage 1 complaint response the landlord told the resident it had assurances from neighbour 1 his flat was carpeted throughout. There is no evidence it chose to inspect this for itself at this time. It should have done this as on 12 January 2023 it found neighbour 1 had concrete flooring in his hallway and vinyl flooring in his living room. Both areas could be determined as high traffic areas. It wrote to neighbour 1 on 7 February 2023 informing him he needed to install carpet in rooms that did not have it in accordance with his tenancy agreement. The resident had reported stomping from neighbour 1 from 3 July 2022 onward. Had the landlord investigated neighbour 1’s floor coverings in his flat sufficiently from 3 July 2022 it may have been able to limit the noise the resident heard.

Taps and pipework in the building.

  1. The landlord decided on 2 August 2022 it would review the taps and pipework at the property to see if any changes could be made. It reasoned it had been able to adjust the water pressure at the resident’s former property to suit her. It found on 23 August 2022 a plumber was required to check the pipework and determine if noise dampening equipment could be added. A plumber was delayed in attending until 15 November 2022. The plumber found nothing could be done to reduce the noise of the pipes, the water pressure could not be reduced further and the noise from neighbour 1’s taps was “normal”. The time taken from deciding to investigate (23 August 2022) to completing its investigation was equivalent to 106 days and an unreasonable amount of time to complete. The delay was responsible for causing inconvenience and uncertainty to the resident.

Noise monitoring equipment (NME).

  1. The landlord told the resident appropriately on 15 August 2022 it would install NME once it had replaced light cord pulls and investigated the pipework. It attempted to speak with her about installation of NME from 21 August 2022, eventually installing it on 22 September 2022. It is unclear from the evidence how long the NME was supposed to remain in place. However, on 29 September 2022 the resident asked the landlord why it had not collected it that day as it had promised. It responded the same day and advised her to keep it connected to the mains electricity. It later collected the NME on 3 October 2022.
  2. On 23 August and 7 September 2022, it told the resident it would take 4-6 weeks to review the NME data. Therefore, it should have completed its analysis by 14 November 2022 (6 weeks). The resident chased the findings on 10 November and 15 December 2022. The landlord did not reply until 19 December 2022 telling her it needed more time to complete its report. Its failure to keep the resident informed earlier about any delays caused inconvenience and distress to the resident.
  3. The landlord completed its analysis of the NME data on 11 January 2023. It found the noises recorded were low level and of short duration and unlikely to cause a statutory nuisance. As a result of the report, it suggested re-investigating neighbour 1’s floor coverings (as has previously been assessed). It explained its findings to the resident on 13 January 2023. It also used the findings as part of its stage 2 complaint response of 17 January 2023.

Complaint responses

  1. The landlord’s stage one complaint response showed it was attempting to find remedies to support the resident. It had spoken with neighbour 1 about the issues and agreed with him to install rugs in his home. It explained appropriately how to report noise beyond “daily living noise” to its noise team. It also explained it was limited on work it could take due to the age of the building.
  2. The landlord’s stage two complaint response was comprehensive and fully explained the outcome of its decisions. It explained it was unable to take any formal action as neighbour 1 had not exceeded the terms of his tenancy or breached any statutory noise nuisance guidance. It explained this was its final response on the matter but told the resident it would still respond to any reports that were late at night or enduring. This was in accordance with its definition of statutory noise nuisance. The complaint response was appropriate as it was able to manage the resident’s expectations in an understandable manner, whilst supporting her with any escalated issues. Although the stage 2 complaint response apologised for “delays” it did not specify these. It is unclear if it recognised failures highlighted in this report around delays in neighbour 2’s light pull cord, investigating the pipework, keeping the resident updated on its NME analysis and its failure to correctly investigate neighbour 1’s floor coverings.

Support

  1. The landlord’s website states it is “putting equality and diversity at the heart of everything (it) does”. It states it needs to go beyond the responsibilities set out in the Equality Act 2010. It’s website also states it can refer residents with mental health issues for community mental health services or for therapy and counselling.
  2. The resident referenced “suicide” in an email to the landlord on 21 September 2022. The landlord acted appropriately and quickly in referring her for safeguarding on the same day. Its safeguarding service determined on 29 September 2022 no further action was required as the threshold for safeguarding had not been met.
  3. The resident told the landlord on 6 October 2022 she was struggling with her mental health. She said the landlord did not seem to care and dismissed or belittled her claims of alleged ASB. There is no evidence that the landlord responded to her concerns around this time. This was not in keeping with putting equality and diversity at the heart of everything it does.
  4. The landlord did go on to offer “therapies or other mechanisms for coping with anxiety” in its stage 2 response of 17 January 2023. This was an appropriate step to take to support the resident, but it should have offered this much sooner.

Summary

  1. The landlord was attentive to the resident’s concerns from raising her complaint on 20 July 2022 to it providing its stage 2 response on 17 January 2023. It responded in accordance with its ASB Policy for all but one email, when harassment or ASB was reported. It acted appropriately in completing investigations and putting into place remedies to alleviate any issues in a quick a timeframe as possible. There were a number of occasions where the landlord should have acted differently such as:
    1. It should have changed neighbour 2’s light pulls sooner to limit the noise heard by the resident.
    2. It should have investigated neighbour 1’s floor covering itself instead of relying on evidence from neighbour 1. Installation of carpet in neighbour 1’s high traffic areas may have reduced the noise heard by the resident.
    3. It should have completed its investigation into the pipework and taps much sooner than it did. This would have shown the resident it was taking her seriously.
    4. It should have kept the resident updated sooner on its progress of analysis of NME data, as a reassurance this was being completed.
  2. Overall the landlord’s response was good, the issues reported largely presented as everyday noise, which it explained to the resident. Despite this it took a number of steps to consider how it could improve the resident’s everyday experience. It took her reports seriously throughout and treated her with respect.
  3. However there were failures identified and for this reason service failure is being determined. These failures may have led to quicker responses and less frustration for the resident. Compensation of £200 has been awarded. This in accordance with the Ombudsman’s guidance in relation to cases where service failure has occurred causing minimal detriment to the resident and the landlord not appropriately acknowledging all failures. An order will also be made to ensure neighbour 1 has carpeted his living room and hallway.

The landlord’s complaint handling has also been investigated.

  1. The landlord’s Complaints Policy defines a complaint as “an expression of dissatisfaction about an act, omission or decision of the landlord either verbal or in writing, and whether justified or not, which requires a response.”
  2. In its Complaints Policy the landlord states it aims to respond to complaints “promptly and efficiently, resolving complaints quickly whenever possible”. It says it uses comments through its complaints process to drive service improvements. It will acknowledge faults when they occur, take responsibility for putting things right and apologise where appropriate.
  3. The Complaint Policy confirms the landlord will acknowledge stage 1 complaints in 5 working days and respond in 10 working days. A complainant can request a stage 2 complaint within 28 working days from the landlord’s stage 1 response. It will acknowledge stage 2 complaints in 5 working days and respond within 30 working days. It will provide the complainant with a progress report if it is unable to meet its response timescale at stage 1 or stage 2.
  4. The resident raised her complaint on 20 July 2022 and the landlord acknowledged it within 5 working days. As the staff member responsible for responding was on leave it acted appropriately in informing the resident it had extended the deadline for response to 8 August 2022. The landlord replied on 3 August 2022 which was equivalent to 10 working days and within its timescale for response.
  5. There was an issue with the landlord’s stage 1 complaint response of 3 August 2022. It failed to respond to the resident’s request for it to discreetly listen from her flat to alleged noise from neighbour 1’s flat. This caused uncertainty and confusion to the resident.
  6. There is no evidence that the resident formally requested an escalation of her complaint. She did however continue to raise issues in reply to the landlord’s complaint response of 3 August 2022, from 3 August up to 29 September 2022. The landlord raised an escalation request when asked by this Service on 4 October 2022 but should have done this from 3 August 2022. This is because her further requests from this date met the landlord’s definition of a complaint in its policy.
  7. Despite raising the resident’s complaint escalation on 4 October 2022 there is no evidence the landlord took any further action around this time and did not update her. She chased a response from it on 15 December 2022, copying this Service in. The landlord did not provide its stage 2 complaint response until 17 January 2023. This was equivalent to 73 working days from when it raised the escalation (4 October 2022) and 116 working days from when the resident first raised her dissatisfaction (3 August 2022) with its response. The landlord exceeded its timescale for response of 30 working days in both instances. This delay caused frustration, inconvenience, and distress to the resident. It caused her to feel the landlord was not listening to her or taking her seriously.
  8. The landlord’s stage 2 complaint response was comprehensive and responded to all points raised by the resident. The landlord acted appropriately in acknowledging and apologising for the delay in its stage 2 complaint response. However it did not award any compensation as the Ombudsman would have expected in this scenario.
  9. A landlords complaint process enables them to learn from issues and identify trends so it can take preventative action and learn from this. The landlord failed to adhere to its own complaints policy in its stage two complaint response time and its communication with the resident. A determination of service failure has therefore been determined. To reflect the resident’s distress and inconvenience due to the landlord’s failures, £150 compensation has been ordered. This is in line with the Ombudsman’s guidance in relation to cases where service failure has occurred over a protracted period with some impact to the resident throughout that period.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s response to the resident’s reports of alleged ASB and noise nuisance.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in respect of the landlord’s complaint handling.

Orders and recommendations

  1. The landlord shall carry out the following orders and must provide evidence of compliance within 4 weeks of the date of this report:
    1. Pay the resident a total of £350 compensation. Compensation should be paid directly to the resident and not offset against any arrears. The compensation comprises of:
      1. £200 for the distress and inconvenience caused to the resident by the landlord’s inefficient response to her reports of alleged ASB and noise nuisance.
      2. £150 for the distress and inconvenience caused to the resident by the landlord’s delay in its complaint handling.
    2. The landlord must investigate and confirm also within 4 weeks that neighbour 1 has installed carpet in his living room and hallway. It must take appropriate action if this has not been completed by neighbour 1.