Magenta Living (202102090)

REPORT

COMPLAINT 202102090

Magenta Living

31 January 2022

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 noise nuisance.

Background and summary of events

Background

1. The resident is an assured tenant and lives in a block of flats managed by the landlord.

Summary of Events

2. The resident reported anti-social behaviour (ASB) to the landlord on 16 February 2021. He said a group of residents seated on a bench in the communal area directly beneath the open window of his flat were making excessive noise.
3. The resident made follow up phone calls on 17, 23 and 26 February 2021 urging contact from the landlord.
4. The landlord spoke to the resident on 10 and 23 March 2021 advising that the residents were not breaking their tenancy agreement by sitting on the bench and therefore could not be asked to stop congregating underneath the window of the resident’s flat. The resident was also advised that the landlord could not enforce social distancing and mask wearing during the pandemic. The landlord advised the resident that a sign had been put up asking residents to keep noise in communal areas to a minimum and it also asked if there was any possibility of the communal lounge re-opening.
5. The resident reported the matter again on 24 and 29 March 2021, as there was no reply to these calls, the resident rang this Service on 26 April 2021 to complain about the failure of the landlord to issue a formal response to his ASB report. The Ombudsman requested a response from the landlord within ten working days.
6. The landlord replied to this Service on 28 April 2021 and explained that all the resident’s ASB reports had been treated as a housing management issue and not an anti-social behaviour issue.
7. This Service contacted the landlord on 10 May 2021 and requested that the resident’s ASB concerns be treated as a formal complaint as this was the second time the landlord had been contacted about the issue. We asked the landlord to respond by 18 May 2021.
8. The landlord issued its stage one complaint response on 24 May 2021 stating “as Covid restrictions do not form part of the tenancy agreement this is not a breach of the tenancy agreement and therefore we are restricted in what action we can take on this matter” and “as the residents are meeting during the daytime, we would not be able to class this as noise nuisance or antisocial behaviour”.
9. This Service escalated the resident’s complaint with the landlord on 11 June 2021. The landlord noted that it had heard the noise during a phone conversation with the resident and believed that the problem needed managing. The landlord agreed to investigate the possibility of moving the bench or asking residents to gather in the communal gardens which would not cause a noise nuisance to the resident.
10. The landlord confirmed on 14 October 2021, that it would participate in mediation and consider moving the bench in order to resolve the resident’s ASB report and that a senior manager would visit the building and speak to the resident.
11. The landlord contacted this Service on 21 October 2021 to advise that any possible alternative location for the bench would risk either blocking fire exits or prevent ventilation of the communal lounge, contrary to COVID regulations and therefore it could not be moved. The resident was also informed of this decision.

Assessment and findings

Policies and procedures

12. The landlord’s ASB policy defines ASB as “(a) conduct that has caused or is likely to cause, harassment, alarm or distress to any person, (b) conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises, or (c) conduct capable of causing housing-related nuisance or annoyance to any person.
13. The landlord’s ASB policy states that it will take “a victim centred approach. The service will be tailored and adapted to meet customers perceived needs, understanding that each case is different”. It should also arrange an interview with the resident and with the alleged perpetrator if the resident agrees”. Depending on the outcome of the risk assessment the interview should take place no longer than three working days after the incident is reported. The landlord will also agree an action plan with the resident which provides for regular contact.
14. Additionally, the landlord undertakes to “take prompt action and endeavour to resolve incidents of ASB at first point of contact”.

The landlord’s handling of the resident’s reports of noise nuisance

15. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as constituting statutory noise nuisance, then both a landlord and the local authority’s Environmental Health Service may be able to warn and take formal action against the perpetrator. Therefore, when a report of noise nuisance is made to a landlord by a tenant, the landlord should take reasonable steps to investigate the report, in line with its ASB policy.
16. In this case, the landlord did not take such steps to investigate the resident’s noise reports, in accordance with its obligations. The resident reported this as an ASB issue and noise nuisance comes under the landlord’s definition of ASB as defined in its policy.  Therefore, the resident should have received a phone call from the landlord by the end of the next working day following the report made on 16 February 2021. However, the first recorded call from the landlord about this matter was not until 10 March 2021. There was also no evidence of a risk assessment being carried out nor an action plan being agreed.
17. The landlord advised that the noise report, as well as similar reports made on 24 and 29 March 2021, were treated as a housing management issue and not an ASB issue. If a landlord conducts an investigation into the reports of ASB/noise nuisance and determines that the behaviour does not constitute ASB then it can use a variety of other methods to help manage the situation. However, in this case, the landlord should have made this determination having followed the ASB procedure first, whereby it could have established an action plan moving forward and provided the resident with clear next steps and expectations about how the landlord would manage the situation. The landlord would have been required to conduct a thorough investigation into the resident’s ASB report. Instead, it concluded that this was not an ASB case without visiting the site, taking any noise measurements, or speaking to the alleged perpetrators.
18. Moreover, it concluded that the gathering of neighbours underneath the resident’s flat could not constitute noise nuisance as the meetings only took place in the daytime. However, there is nothing in the landlord’s definition of ASB that precludes daytime events as being classified as ASB and therefore the landlord should have investigated the resident’s reports in accordance with its ASB policy. In fact, the landlord later stated that there was a noise problem that needed to be managed.
19. Nonetheless, the landlord is correct in confirming that it is not its responsibility to enforce social distancing regulations, as this would be a police matter. The police have different powers from the landlord and are best placed to investigate allegations of criminal activity, including breaches of corona virus rules. It is also noted that the landlord did attempt to resolve the matter by considering the possibility of moving the bench, putting up a sign, and trying to encourage residents to use other communal areas instead, following the end of the COVID restrictions.
20. Following a further investigation, the landlord concluded that the bench could not be removed as there was no alternative location that would not either potentially block fire exits or restrict ventilation in the communal lounge when it re-opened. The landlord would not be expected to move the bench under these circumstances.
21. However, the landlord should have treated the noise reports as ASB, in line with is ASB policy. The landlord did attempt to resolve the matter as a housing management issue rather than an ASB case but if the landlord had investigated in accordance with its ASB policy, it would have been able to interview the resident and the alleged perpetrators.
22. In view of the service failures identified above, the landlord should pay £100 compensation to the resident. This in line with the Ombudsman’s remedies guidance (published on our website, which sets out the types of remedies the Ombudsman may consider where we have found service failure or maladministration by a landlord. The remedies guidance suggests awards of between £50 and £250 compensation in cases where the Ombudsman has found service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant. Examples include failure to meet service standards for actions and responses but where the failure had no significant impact on the outcome of the complaint. In this case the landlord’s failure to assess the noise reports as ASB would have caused inconvenience and distress to the resident, but it did not affect the overall outcome of the complaint as the landlord would not have been in a position to move the bench but did pursue other options for reducing the noise.

Determination (decision)

23. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in the landlord’s handling of the resident’s reports of noise nuisance.

Reasons

24. The landlord treated the resident’s ASB report as a housing management issue, and not an ASB issue. The resident was not advised of this. The landlord’s decision not to treat the report as an ASB issue resulted in lost opportunities to interview the resident and alleged perpetrators and the ability to gather clearer evidence to assist with resolving the resident’s concerns. The landlord should pay the resident £100 compensation for any distress and inconvenience caused by its errors.

Order

25. The landlord is ordered to pay the resident £100 compensation for any distress and inconvenience caused by errors in its handling of his ASB report.
26. The compensation is to be paid within four weeks of the date of this report.

Recommendations

27. It is recommended that the landlord should review staff training to enable staff to identify ASB reports at first contact and respond accordingly, in line with the landlord’s ASB policy.