London Borough of Redbridge (202008791)

REPORT

COMPLAINT 202008791

London Borough of Redbridge

24 May 2021

Our approach

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

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

The complaint

The resident has complained about:
1. the local authority Environmental Health team’s decision not to take enforcement action against his neighbour for alleged statutory noise nuisance.
2. the landlord’s response to the resident’s reports of noise-related anti-social behaviour (‘ASB’) by his neighbour.
3. the landlord’s handling of the associated complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the following complaint is outside of the Ombudsman’s jurisdiction:
1. the Environmental Health team’s decision not to take enforcement action against the neighbour for alleged statutory noise nuisance.
Paragraph 39(m) of the Ombudsman’s Scheme states that:
1. “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (…) fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Ombudsman does not have the jurisdiction to investigate the local authority’s enforcement actions (or lack thereof) in regard to statutory noise complaints dealt with by its Environmental Health team. The Memorandum of Understanding between this Service and the Local Government & Social Care Ombudsman (‘LGSCO’) sets out the complaints that each Ombudsman is responsible for considering. This states that the LGSCO considers complaints about ‘reports of statutory noise and other nuisance to environmental health services’.
As such, the complaint about the lack of enforcement action taken by the Environmental Health team in relation to noise disturbances reported by the resident is outside the jurisdiction of this Service to consider in accordance with paragraph 39(m) of the Scheme because such complaints fall within the jurisdiction of the LGSCO.
This report will therefore only address the complaints about the landlord’s handling of the reports of noise disturbance and its handling of the associated complaint.

Background and summary of events

The resident has a secure tenancy with the landlord.

Policies, procedures, and agreements

ASB Policy and Procedure:

This sets out the types of ASB cases and how the landlord prioritises them:
1. Priority 1 – Severe e.g. threats of violence.
2. Priority 2 – Not Severe e.g. ‘Ongoing complaints of noise nuisance’.
3. Priority 3 – First report of lower level and environmental ASB e.g. ‘First complaints of noise nuisance’
For Priority 2 cases the investigating officer will contact the complainant within 3 working days and offer to meet with them and interview them within 5 working days of receipt of their first complaint.
For Priority 3 cases the landlord will write to the complainant acknowledging their complaint within 3 working days and also write to the person causing the alleged problem within 3 working days of receiving the initial complaint.
After the initial interview, arrangements should be put in place for the tenant to complete an ASB incident diary. The tenant should be kept updated on the case developments e.g. after the alleged perpetrator has been interviewed and at monthly intervals. As part of the case investigation the landlord should consider appropriate tools e.g. consider the use of sound recording equipment, CCTV, or professional witnesses. It also needs to consider the use of mediation where for example, ‘there is a need to improve communication and build understanding between neighbours’.
In respect of noise issues – when dealing with complaints of noise nuisance the landlord will work closely with the Council’s Community Protection Service and use evidence they have witnessed in any enforcement action it may be taking. This will often involve carrying out joint visits and interviews, and Community Protection Officers providing statements.
Cases will only be closed without the complainants consent where the behaviour complained about does not amount to a breach of tenancy or lease.

Complaints policy:

The landlord has a two-stage complaints process:
1. Stage 1 – a response needs to be issued within 10 working days.
2. Stage 2 – if the tenant is unhappy with the Stage 1 response they can request an escalation. The decision to accept a complaint as a Stage Two complaint will be made promptly and should take no more than 2 working days. A response needs to be issued within 20 working days from the date of receipt.

Summary of events

The resident has said that new tenants moved into the property above him on 10 January 2020 and since then he has experienced noise disturbances on an ongoing basis. The upstairs property is a leasehold property and is sub-let to tenants.
On 22 January 2020 the resident reported noise related ASB to the landlord’s ‘Home Ownership’ team. The resident chased this team on 29 and 31 January 2020 as he had not heard anything back about the noise reports.
The landlord’s records show that the resident’s report was passed to the correct ASB team to deal with on 3 February 2020. An investigating officer then visited the resident the next day to discuss the noise reports. The records show that the officer explained to the resident that she would communicate with the neighbour and consider what options are available to address the noise issues. The officer would also contact the leaseholder and it was suggested that mediation may be an option. An ASB report form was completed at this time.
On 9 February 2020 the resident emailed the landlord to say that the noise was still continuing especially early in the mornings (7am) when there was ‘stamping and running up and down’. The resident reported the same again the following day and said that he had been recording the noise on his phone.
The landlord met with the neighbour on 10 February 2020 and the records show that the neighbour had two young children and it was noted that the noise may well have been when they were playing together. However, the neighbour said that there was no deliberate stamping or jumping from the children. She also said that the situation had been stressful for her due to the resident’s complaints, which she felt was intimidating. The investigating officer noted that there was carpet in place but suggested that she should consider upgrading this to help reduce the noise impact. The neighbour confirmed to the landlord the next day that the carpet in the property had only recently been fitted when they moved in.
On 11 February 2020 a manager spoke with the resident about the noise reports. It was noted that that it was difficult to manage children in a flat and there was a level of noise to be expected. The resident wanted the landlord to take some action against the parents and it was confirmed that they had indeed been visited and asked to try and prevent their children from causing too much disturbance. It was agreed that the leaseholder had also been contacted about possibly installing additional underlay. The resident was asked to complete a diary for two weeks which would then be used to consider the next steps.
The resident continued to contact the landlord regularly to report further noise disturbances caused by the children jumping, running, and stamping around from room to room. The landlord wrote to the resident on 18 February 2020 to say that the leaseholder had agreed to lay some underlay beneath the carpet which should help minimise the noise, and it would update him further when this had been fitted. It said it had reviewed his recordings and it would visit the neighbour again and remind them about managing their children’s behaviour. It said it would continue to review the diary sheets over the next week and then decide on the best course of action.
The landlord’s records show that it attended the upstairs property on 19 February 2020 and met with the neighbour and the leaseholder and the fitting of underlay was again raised.
The resident sent in further diary sheets and noise recordings on 23 February 2020. The resident said that the noise disturbance he was experiencing was a statutory noise nuisance and the landlord should take action. The landlord acknowledged this and said it would be reviewing the matter again.
On 27 February 2020 the neighbour emailed the landlord to say that the resident’s wife had sworn at her and verbally threatened her, and the neighbour had reported this to the Police.
The resident reported further noise disturbances on 1 March 2020. The records show that the landlord reviewed the diary sheets and recordings on 2 March 2020 and concluded that the noise occurred sporadically each day between the hours of approximately 7:30am and 7:30pm, and each incident of noise lasted about one minute. It therefore considered this to be general living noise and it was unable to do anything further as the noise was caused by young children.
The landlord’s records show that it spoke to an Enforcement Officer in the local authority Community Protection Team to discuss the case and to check if there was anything else the landlord could do. The Enforcement Officer agreed that as the noise was sporadic and due to it being from young children, they could not take any further action. It was agreed that the landlord could ask the leaseholder about the floor covering but there was little else that could be done. The Enforcement Officer was of the view that this was not classed as statutory noise nuisance and as such it could not take legal action against the neighbour. It was agreed that the Enforcement Officer would liaise with the resident and carry out a visit and provide advice to the resident.
The landlord informed the resident on 4 March 2020 that it had reviewed the diary sheets and the recordings and it had spoken to the neighbour and asked them to be mindful of their children’s behaviour. The landlord had also asked the leaseholder to consider fitting underlay beneath the carpet to help alleviate some of the noise impact. It said that it had liaised with its Community Protection Team and it was satisfied that it had taken all relevant action to deal with the noise reports and it was not able to do anything more at this stage.
The landlord chased the leaseholder on 5 March 2020 about the underlay fitting and he said he was still considering it.
On 8 March 2020 the resident contacted the landlord and said that it should be treating the noise reports as statutory nuisance and it should take appropriate legal action to address the situation.
On 16 March 2020 the landlord spoke again with the Enforcement Officer and it was agreed that a joint visit would be carried out to consider the noise reports and to look at any practical measures that can be taken e.g. with the flooring. It was noted that the neighbour had raised counter allegations against the resident about his aggressive behaviour when complaining about the noise.
On 17 March 2020 the investigating officer and the Community Safety Officer visited the resident and the neighbour. The record of the visit stated that the noise being complained about related to the children in the flat above running around and stamping/jumping, and both officers deemed this to be general living noise. This was explained to the resident and he disagreed with this conclusion and it was explained that children running up and down did not constitute a statutory nuisance. It was agreed that a further inspection of the neighbour’s property would be carried out to establish if there were other measures that could assist in this case.
The records show that the officers then visited the neighbour and the carpet was inspected and it was concluded by the Community Safety Officer that it was adequate in the circumstances and the Enforcement Team would not expect the leaseholder to put down any additional floor covering. It was noted again that the neighbour raised her concerns about the resident’s behaviour and alleged intimidating manner when complaining about the noise.
The Enforcement Team emailed the landlord on 18 March 2020 and confirmed that it would not be taking any action against the neighbour as it was not satisfied that there was a statutory nuisance.
On 23 March 2020 the resident emailed the landlord to say that the continued noise disturbance was affecting his wife’s health and that this was a statutory nuisance and the landlord had a duty to act and take ‘severe action’ against the neighbour for what he believed to be deliberate stamping.
The landlord responded on 26 March 2020 and spoke to the resident and explained why it was not going to take any formal action against the neighbour. It also reminded the resident that if he continued to bang on the ceiling and shout up to the neighbour (as alleged by the neighbour) this could be construed as harassment.
On 5 April 2020 the council’s Enforcement Team wrote to the resident to confirm its decision not to take any action against the neighbour in response to the allegations of noise nuisance. The resident disagreed with this decision and it was reiterated on 14 April 2020 that children playing did not fall into the realm of a statutory nuisance.
The resident raised a formal complaint with the landlord on 15 April 2020. He said that he had reported numerous complaints regarding the persistent noise emanating from the upstairs flat since January 2020. The noise comprised of the children throwing themselves on the floor, running up and down and particularly the persistent loud stamping on the floor at any time of the day and night. He was unhappy with the ASB investigating officer and also the Council’s Enforcement Officer and felt that he had not been supported despite the overwhelming evidence he had provided. He wanted the noise to be dealt with as a statutory nuisance and he wanted the parents to be held responsible for the children’s behaviour.
The landlord issued its Stage 1 complaint response on 1 May 2020:
1. It set out the background to the complaint and the steps taken by the landlord including the visits to the neighbour to discuss the noise issues and asking the leaseholder to consider fitting underlay.
2. It had considered the diary sheets and recordings compiled by the resident.
3. The investigating officer had liaised with all parties and considered all the evidence and also spoke with the Council’s Enforcement Team and concluded that no enforcement action could be taken against the neighbour as the noise was during the day, for short periods and was caused by children.
4. The Community Protection Team had investigated the case with the Housing Team and the landlord was satisfied that the noise cannot be considered as a statutory offence and it would not be able to enforce or offer any intervention at this stage. The landlord offered the resident the possibility of mediation.
5. The complaint was not upheld as the landlord concluded it had taken reasonable and proportionate action to investigate the reported ASB.
The resident responded on 2 May 2020 and disagreed with the Stage 1 response and he requested that the complaint be escalated to Stage 2 of the landlord’s complaints process.
The resident chased the landlord on 2 June 2020 as he had not received any response to his escalation request. The landlord then acknowledged the escalation request.
On 22 June 2020 the landlord issued its Stage 2 final complaint response:
1. It acknowledged that the resident wanted the landlord to take action against the neighbour for noise disturbance.
2. It noted that the resident did not wish to pursue mediation.
3. It explained that the reports it had investigated were generally for noise that occurred between 8am and 8pm and it said that this did not constitute ASB.
4. As the resident had now said that the noise disturbance was occurring in the early hours of the morning, it would investigate this further. It asked the resident to report noise disturbances at anti-social hours to the council’s Enforcement Team so that they can attend and witness the noise.
5. It asked the resident to complete further diary sheets so that it can consider the recent reports of noise during anti-social hours.
6. It explained that the floor covering in the neighbour’s property has been checked and it was concluded it was satisfactory and that underlay did not need to be fitted.
7. In conclusion, it said that it had investigated the matter, considered the information available at the time and acted in accordance with its tenancy agreement and policy and procedures. However, as the nature of the complaint had now changed (because of the reports of noise at anti-social hours) it would investigate this further. Once these latest investigations had been conducted it would consider whether any further action was needed.
8. It apologised for any inconvenience this matter may have caused and for the delay in issuing the Stage 2 response. It confirmed that this was the final response.

Assessment and findings

The landlord’s handling of the ASB noise reports

The Ombudsman’s role includes an assessment of whether the landlord has followed its procedures and acted appropriately. It is important to note that it is not the purpose of this report to investigate the ASB allegations or to establish whether or not any party is to ‘blame’ for any of the alleged ASB or to assess the credibility of the reports made by the resident. Our role is to consider the landlord’s response to the reports it received and to the formal complaint and consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies and its obligations under the tenancy agreement and any relevant legislation.
As explained at the start of this report, the actions of the council’s Enforcement Team and the question of whether or not a statutory nuisance has been established is not for the Ombudsman to determine.
Both the landlord and the resident have provided documentation to enable this Service to investigate the complaint. These include copies of correspondence; the landlord’s ASB records; and copies of the landlord’s policies and procedures. It is noted that the resident has raised several issues about the landlord’s handling of the matter, and whilst the Ombudsman will not be addressing each and every specific issue, it has carefully considered all the available evidence and it will take a view on the landlord’s overall handling.
Looking now at the key issue, the main area of complaint is with regards to the reports of noise disturbance made by the resident against the neighbour who lives in the flat above. The landlord has evidenced that it responded promptly by meeting with both parties and listening to the noise recordings collated by the resident. It attempted to mediate a resolution informally be liaising with the neighbour and the leaseholder of the property to discuss how to minimise any noise disturbance e.g. being more mindful, and potentially fitting additional underlay to minimise noise transference.
In this particular case the evidence shows that the landlord responded in an appropriate manner to the reports made by the resident and it took steps to investigate these reports in line with its ASB procedure. It can be seen from the evidence that the landlord dealt with the reports in a timely manner and liaised, as required, with all parties involved, including the council’s Enforcement Team.
The available evidence shows that while there were numerous reports made by the resident to the landlord about the noise disturbance, the landlord was satisfied following its investigations that these allegations did not amount to ASB that required any formal action. The reported incidents were considered by the landlord (and the Enforcement Team) to be matters related to general household living noise. The recordings compiled by the resident were reviewed by the landlord in conjunction with the diary sheets, and it was reasonable of the landlord to conclude that the noise did not amount to ASB that would warrant any tenancy enforcement action. This decision was also supported by the evidence from the Enforcement Team, which too confirms that, in its view, the noise being complained about would not warrant any formal action against the neighbour.
In its final complaint response the landlord rightly acknowledged that, whilst it could not take any action at this stage, it would continue to monitor the situation and reconsider its decision pending any further evidence from the resident or the Enforcement Team – which was reasonable and appropriate.
The Ombudsman is satisfied that the landlord has appropriately evidenced that it has taken into account all the information and its subsequent decision, and the rationale for not taking any further action against the neighbour at that time, was reasonable in light of the available evidence.
The resident is unhappy with the landlord’s inaction and has said that he does not feel supported by the landlord. The resident’s concerns are duly noted however, the landlord is not being unreasonable when it says that it cannot take tenancy enforcement action against the neighbour unless it has sufficient evidence to do so. The evidence available up till the time of the final complaint response in June 2020 shows that the landlord’s handling of the reports was reasonable and the landlord had acted appropriately in its handling of this matter.

The landlord’s handling of the associated complaint

The landlord’s complaints policy sets out how it handles complaints and the timeframes for its responses. Looking at the facts of this case, it is noted that the landlord did not progress the complaint efficiently or in line with its complaints policy.
Looking at the evidence, it can be seen that the resident requested that the complaint be escalated on 2 May 2020. The landlord’s complaints policy says that the escalation request should be acknowledged within two days – this did not happen in this case. The escalation request was not acknowledged until approximately four weeks later, on 2 June 2020, which is in excess of the timeframes set out in its complaints policy.
The complaints policy states that the Stage 2 response should be issued within 20 working days of the request. In this case, it is noted that the Stage 2 response was not issued until 22 June 2020, some seven weeks after the escalation request. Again, this is not in accordance with its complaints policy and would be a service failure.
The landlord has rightly acknowledged in its final complaint response that there had been a delay in its complaint handling, for which it has apologised. However, given the length of the delay, the landlord did not consider if compensation was warranted for this service failure. The landlord has acted appropriately by recognising its delay and apologising for it, but it has failed to consider appropriate compensation. The Ombudsman considers that a delay of seven weeks is unreasonable and the landlord’s apology, on its own, was not proportionate redress for this service failure.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s concerns about noise-related anti-social behaviour from his neighbour in the property above.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

The Ombudsman is satisfied that the landlord duly acknowledged the resident’s concerns and it has demonstrated that it responded appropriately to the various reports and it acted in a reasonable manner and in line with its ASB procedure. Looking at the available evidence, the Ombudsman is satisfied that the landlord’s overall handling of the noise reports, was proportionate and appropriate.
With regards to the complaint handling, the landlord failed to act appropriately and in line with its complaints procedure. The Ombudsman is satisfied that the landlord failed to escalate the complaint in line with its complaint procedure and unnecessarily delayed the completion of its internal complaints process.

Orders and recommendations

The landlord should, within four weeks of the date of this report:
1. Pay the resident £50 compensation for any distress and inconvenience caused by the service failure identified with its handling of the complaint.
Evidence of the payment of compensation to be provided to this Service within four weeks.