Midland Heart Limited (202008032)

REPORT

COMPLAINT 202008032

Midland Heart Limited

25 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 

1. The complaint is about the landlord’s handling of the resident’s:
   1. reports of noise nuisance;
   2. associated formal complaint.

Background and summary of events

2. The resident is an assured tenant of the landlord’s property. The tenancy began on 16 January 2017. The property is a one-bedroom flat. The resident’s flat is situated on the lowest level of a building containing three flats.
3. The resident’s main complaint is that she and /or her son have been awoken late at night or early in the morning by noise emanating from the property above. The resident suffers from an autoimmune disorder and an underactive thyroid. She says that owing to her health conditions it is important that she is able to rest. The symptoms of her conditions worsen if she is unable to do so.

The landlord’s ASB policy

4. The ASB policy adopts the definition of ‘antisocial behaviour’ in the Anti-Social Behaviour Crime and Policing Act 2014 and defines antisocial behaviour as:

a.     Conduct that has caused or is likely to cause harassment, alarm or distress to any person.

b.     Conduct that is capable of causing a nuisance or annoyance to a person in relation to that person’s occupation of residential premises.

c.      Conduct capable of causing housing-related nuisance or annoyance to any person.

5. The policy states that consideration will be given as to how regular or persistent the antisocial behaviour is, and that the landlord will intervene when the behaviour poses a risk to a person’s tenancy and/or there is a risk of harm.
6. In terms of classifying the behaviour, the policy states that the landlord will inform all parties whether the issue is considered to be antisocial behaviour. Specific examples of ASB given include verbally abusive, threatening or intimidating behaviour, persistent loud shouting and arguing, loud music or TV that can be heard outside. Examples of what is not ASB are stated to include: reasonable domestic living noises e.g., doors closing, washing machines, children playing.
7. The policy states that the landlord will investigate complaints of anti-social behaviour as efficiently as possible, in an impartial and professional manner; works with customers to change behaviour that is having a negative impact and/ or causing a risk of harm; prevents incidents and reoccurrence of anti-social behaviour by using effective and appropriate interventions and ensures reasonable and proportionate action is taken to mitigate the risk of harm.
8. The policy states that when a resident reports anti-social behaviour, an initial risk assessment will be undertaken by the Customer Hub or the officer allocated to manage the case, to determine its priority and that the risk of harm will be assessed and prioritised as being either Personal (highest level of priority), Nuisance (medium level of priority) or Environmental (lower level of priority. The landlord will aim to complete the initial response to reports of anti-social behaviour within the timescales published in Customer Service Standards. There appear to be no timescales specifically about the handling of ASB in the landlords published customer service standards.
9. The landlord’s first response is said to be to provide advice and assistance to customers to help them find a solution without direct intervention. The landlord states that it will record all cases of antisocial behaviour and agree clear actions with the customer on how the landlord will tackle the case and agree the frequency and method as to how to keep the customer updated. It is stated that customers are encouraged to make initial reports of anti-social behaviour to the Customer Hub but if for any reason this is not appropriate reports can be made to any member of staff.
10. The ASB policy adds that the landlord will take a problem-solving approach to reports of anti-social behaviour with four key activities: Prevention, Early Intervention, Enforcement and Support. The allocations process, terms within agreements and, detailed discussions about acceptable behaviour at interview and sign up are mentioned as examples of Prevention. Early Intervention actions include interviews with subjects of the complaint; advisory letters; formal warnings/ letters/ notices; acceptable behaviour contracts, immediate legal intervention (where appropriate); mediation services and restorative justice practices.
11. As to enforcement and tackling the behaviour, the ASB policy states the landlord will use injunctions as a quick and effective way of stopping antisocial behaviour and will take possession action only where other action has been unsuccessful or the behaviour is so serious, no other action is appropriate. It is said that any investigation will involve evidence gathering by the landlord and the complainant.

The landlord’s Complaints Procedure

12. The landlord’s Complaints Procedure states that a complaint may be made where:

a.     There has been a failure of our published service standards, and where action has not been taken within agreed timescales.

b.     We have not acted in line with our policies and procedures to a customer request.

c.      There has been poor conduct by staff or landlord’s agents/contractors.

13. The policy states that quality standards have been set for how complaints are handled which are: that the landlord will acknowledge a complaint as soon as possible and that there is a clear escalation process for complaints. The escalation stages are first stage resolution, investigation and formal review.
14. First stage resolution is said to cover where an immediate solution can be agreed, and ownership to offer resolution comes from the department where the service failure occurred. If a customer is not happy with the first stage resolution, the landlord offers to investigate in the following circumstances:
    1. if any actions agreed as first stage have not been delivered or not in agreed timescales.
    2. if the landlord has not responded to all the issues highlighted in the original complaint.
    3. the complaints process has not been followed.
    4. in cases that are potentially serious, high risk or high profile.
15. Timescales for the final response are not fixed but said to be appropriate to the case and should be communicated to the resident. In the landlords published customer service standards, it is states that a formal outcome will be communicated within 10 working days. When sending the final response, the resident should be informed of the process for formal review and who to contact. 
16. The complaint will be escalated to formal review if there is evidence the complaints process has not been followed, or elements of the complaint have not been addressed. An appropriate Director or Head of Service will review how the complaint has been handled, assess if policy and procedure have been followed and the impact on the customer. If failures are found in the way the complaint was investigated and handled the appropriate Director or Head of Service will re investigate and give a final response. If a customer is still dissatisfied following the final response, they can seek an external review and will be advised of the appropriate bodies to contact.
17. The procedure states that compensation is a final option, and will only be paid in cases where the loss or suffering is considered to warrant such a payment; or where the customer has suffered significant inconvenience because of the landlord’s actions. It is stated that compensation will be limited and in accordance with the landlord’s compensation matrix as appropriate.

Summary of events

18. The Ombudsman notes that the resident began to complain about noise nuisance some time prior to early 2019. On 23 March 2019, the resident emailed the landlord to say she would like to make another complaint about her neighbour above. She said that she had previously reported him banging on the floor and walking very loudly, and the situation had improved for a while after the landlord visited the neighbour. However, she reported that now, if her son, who was learning to walk, fell over and cried the upstairs neighbour would react by stomping his feet.
19. The landlord responded on 28 March 2019, and asked the resident to collect recordings via its noise app. It was explained that when submitting recordings, the resident should give information about the context of the situation. This included detailing what she believed provoked the banging, and the effect the noise was having on her. This was so the landlord could form a clear picture of the situation when carrying out a review after an initial two-week period.
20. It is unclear from the records whether a review did take place after two weeks; but the resident called the landlord’s hub on 17 April 2019 to report harassment and intimidation. A duty appointment was booked in for 24 April 2019. The landlord then determined that there was not enough evidence ‘to take action’ and offered to facilitate a meeting through its Restorative Justice Service.
21. A meeting took place between the resident and the neighbour on 21 June 2019. It was reported that the meeting went well – with both parties leaving with some understanding of the how the other party was affected, and a conference agreement made. It was noted that “A lot of the issue that they have is down to the structure of the building which they both accept”.
22. As part of the agreement, the neighbour agreed to move into a different bedroom, both parties agreed to speak to each other politely and respectfully on the following day if an issue arose. Both parties agreed to be mindful of the noise especially, early morning and late night and when walking up the stairs and closing doors. The case was closed on 27 June 2019 and a closure letter sent to the resident.
23. Later in 2019, the issue resurfaced and the resident contacted the hub on 16 October 2019. She submitted recordings covering the period 16 to 18 October 2019, said to be capturing banging on the floor after 10pm and before 6am. The landlord advised that the behaviour complained of did not constitute noise nuisance if it was an isolated occurrence. However, she was advised to continue recording, as necessary.
24. On 17 October 2019, the resident telephoned the landlord’s hub to advise that she had called the police. She said that she had tried to speak with the neighbour about noise, and he had responded by shouting and swearing in front of her child. The police reported the issue to the landlord who opened an ASB case.
25. Receipt of a further recording was acknowledged by the landlord on 31 October 2019, and the resident was told that the case would be assigned to a People Case Officer who would further review the recordings. It was reiterated that, if new recordings were sent in, the resident should explain how the situation was making her and her son feel.
26. The resident responded to explain that her son and nephew, who was staying with her, were frightened by the banging and that she was not getting enough sleep as the noise was waking her up. She explained that this was problematic as she had two children to look after in the day and suffered with an autoimmune disease and underactive thyroid so needed to get rest or she became ill.
27. The resident added that the neighbour had not adhered to what had been agreed at the mediation meeting. For example, he had agreed to not wear shoes in his home as he had laminate flooring, but he was wearing shoes or flip flops and making noise at all hours. Further it had been agreed that they write notes about noise, but he had ripped up a note she had written, left it outside and been verbally abusive towards her which resulted in calling the police, as detailed above.
28. The landlord visited the address on 5 November 2019 and spoke to the resident about the case. It was unable to speak with her neighbour as he was not in. However, the landlord informed the resident that it would review the case in ten days. Meanwhile the resident submitted recordings for three further incidents.
29. On 21 November 2019 one of the landlord’s People Case Officers emailed the resident to thank her for the recordings. Following this, a conversation took place during which the resident advised that things were a lot better and that, though she still heard slamming doors, she did not think noises were made on purpose. She was advised that she would have to accept ‘daily living noise’. It was agreed that the resident would monitor the situation for a further two weeks – after which time the case would be closed.  On 4 December 2019, the resident advised that the situation was much better, and the case was closed that day.
30. On 30 December 2019, the resident notified the landlord that the noise had started again. She asked if she could be called to discuss matter further. There is no record the call was returned. From 30 December 2019 to 5 February 2020 the resident did not submit any recordings or report any noise. However, further recordings were submitted covering the following dates and times: 5 February 2020 at 7:23am and 7:38am; 11 Feb 2020 at 10:32pm, 12 February at 01:04 and 02:31; and 23 Feb at 11:53.
31. On 9 March 2020, the landlord’s People Case Officer messaged the resident to thank her for the recordings; and to advise that it had written to the neighbour. It added that it had offered an appointment to see him on 30 March 2020. The resident was asked whether the nuisance was continuing, and she responded on the same day, to confirm that it was. The Ombudsman has not been provided with evidence of the letter that was sent to the neighbour, or any record of a visit taking place on 30 March 2019.
32. The resident emailed on 5 June 2020 to enquire whether the meeting proposed for 30 March 2020 had gone ahead. She indicated that she had just returned from isolating at her partners, but that the nuisance was continuing.
33. On 11 June 2020, the resident emailed the landlord’s complaints’ team stating that there was an ongoing issue with her neighbour and noise. She said:
    1. that she had been staying with a family member for two months as, “she could not be stuck in the house listening to the noise and banging whilst being isolated”.
    2. she had been told that a visit to the neighbour was planned for 30 March. She said that she wished to know if the meeting had gone ahead and what the outcome was.
    3. the neighbour had laminate flooring, but that she was told when moving in that laminate flooring was not allowed in her contract. 
    4. since she had returned, she had heard stomping feet above her bedroom until early hours of the morning.
    5. She had continued to use the noise app to record noises.
34. On 11 June 2020, a complaint was logged. The landlord’s complaint records indicate that, the correspondence between the resident and landlord’s officer via the noise app had not been correctly recorded on the landlord’s systems. It therefore believed the case had been closed. This resulted in the resident being told on 29 June 2020 that she should contact the customer hub for a new case to be raised.  A new case was opened on 1 July 2020.
35. Meanwhile on 12 June 2020, the landlord sent the upstairs resident a letter referencing noise nuisance and harassment. It explained that this, if proven correct, could constitute a breach of tenancy. It added that if there were additional complaints, it would investigate the matter further; and depending on the outcome could commence legal action. 
36. Recordings covering the period 16 to 29 June and 7 July 2020 were submitted by the resident. The landlord’s People Case Worker messaged the resident on 8 July 2019 via the app thanking the resident for the recordings and explaining that the case had been reassigned.
37. The new People Case Worker wrote to the resident on 10 July 2020 asking her to continue to record and complete diary sheets. It was added that a desk top review of all the evidence would be carried out on 22 July 2020. The resident continued to submit recordings from 12 to 22 July 2020.
38. The resident emailed on 22 July 2020, to ask what action would be taken as the nuisance had been going on for 10 months. The landlord’s caseworker responded that an advisory letter had been sent to the neighbour regarding noise and that any further action would depend on evidence. It was explained that the landlord’s review of the recordings the resident had submitted between the 22 June and 15 July 2020 had led it to conclude that the neighbour had wooden floorboard with nothing isolating floor layers to prevent sound disruption. It said that contact would be made with the neighbour to discuss the matter further. The landlord explained the legal process and the importance of the resident gaining evidence to corroborate her reports.
39. The resident indicated that she was not happy as the situation had been going on for years. She said that she wanted the historical issues taken into consideration and would submit a complaint. She agreed to continue submitting noise recordings through the app and diary sheets. The landlord’s caseworker explained that the landlord’s mobile patrol unit ‘Safety Net’ were patrolling to gather evidence until 7 August 2020. The resident advised that there had been no recent incidents of the neighbour being abusive towards her. However, a risk assessment was completed during the call and the score recorded as being high. An action plan was agreed, and a review date set for 12 August 2020.
40. The resident advised that she wished to continue with her complaint, as she was not satisfied that the previous one had been dealt with, and was unhappy with the handling of her ASB case. A formal complaint was logged on 23 July 2020.
41. On 27 July 2020, the resident emailed the landlord’s Senior Housing Management Team. She said:
    1. the first part of her complaint was that she had been placed in the flat with the landlord knowing that the neighbour had a history of committing ASB which had resulted in charges being made against him. She said that as a single woman she felt she had been put at risk.
    2. Since her son had been born, the neighbour had “had been targeting” his crying or normal behaviour of a child of his age. She said that this put both her and her son at risk.
    3. the second part of her complaint she said related to the noise and ASB encountered “with no enforcement action being taken against the neighbour”. She summarised her complaints, the recordings submitted and contact to date. She specifically mentioned messaging via the app on 30 December 2019 and on 5 June 2020 but receiving no response which had led her to email on 11 June with her concerns only to be advised that she had to contact the main office. 
    4. She felt that the next step should have followed on from what had already been done. However, the action that the new caseworker had detailed was things that had been done previously.
42. A Tenancy Services Team Leader, responded to the complaint on 4 August 2020. She said:
    1. she had completed a review of the current case and allegations made in the past to ascertain whether the correct action had been taken. 
    2. she noted that the most recent case in 2019 had been closed as the resident had advised that the noise nuisance had improved.
    3. with regards to the current case, she reported that an advisory letter had been sent, a warning letter would be issued further to the recent recordings submitted
    4. the caseworker would keep trying to speak to the neighbour and when able (in line with Covid-19 restrictions), the landlord would carry out a full inspection of the neighbours address to ascertain if there was anything in the property contributing towards noise nuisance and if there could be any changes made to reduce the noise.
    5. Though historic issues would be considered, she explained that the landlord needed to warn the neighbour regarding the current issues and could not jump straight to legal action without evidence and showing they had tried to resolve the issue beforehand and been reasonable in approach.
    6. If the issues continued and there was evidence to support it, they could proceed to further action, by way of an Acceptable Behaviour Contract (ABC), then if this failed, they could consider legal action depending on evidence and the type of issues occurring.
    7. the resident should continue to record incidents and complete the diary sheets so that a full review could be carried out to ascertain if the incidents constituted ASB, and not just household noise.
    8. she was aware Safety Net were patrolling the block and their reports could be used as evidence.
    9. There had been no failing in process, but if the resident was unhappy with the response, she could escalate the matter further by contacting the complaints team clearly outlining the reasons for the dissatisfaction. 
43. On 4 August 2020, the upstairs neighbour was sent another warning letter explaining that the landlord had received noise app recordings to evidence that he and/or his visitors were causing a noise nuisance and annoyance to neighbours during the daytime, late in the evening and in the early hours of the morning and that there was evidence of banging or slamming of doors, hammering or banging, treading heavily and loud conversations.
44. The landlord informed the neighbour that it had attempted to make contact to discuss these issues and would call again on Wednesday 12 August 2020. An action plan was drawn up with the upstairs neighbour.
45. Landlord records indicate that a visit to the neighbour did take place. During this, it was confirmed that the neighbour did not have any floor covering or carpet – and an application was initiated to assist with purchase of the same. Meanwhile the patrols had not found evidence of nuisance, and these ended on 7 August 2020.
46. On 11 August 2020, the resident emailed requesting escalation of her complaint. She said:
    1. she did not feel her complaint had been answered fully, and expressed dissatisfaction that she had not received a response from the Senior Management Team.
    2. the case of noise and ASB had been ongoing from October 2019, and that the previous case worker had not made contact as promised for several months. As far as she was concerned the case was ongoing not closed so the current caseworker should not repeat actions previously completed.
    3. she and her son had been put at risk by the landlord as the neighbour “was known for such behaviour and even assault in the past and that these factors were not taken into consideration when she was placed at the address”.
    4. she wished to know if the landlord completed risk assessments for current and new tenants to see if they were suitable. In addition, she requested a copy of the ASB and noise nuisance policy.
47. On 15 August 2020, the resident emailed with evidence of footsteps with shoes over the period 26 July to 16 August. On 28 August 2020, a Tenancy Services Officer emailed to confirm receipt of diary sheets for dates in July and August. The Tenancy Services Officer said she had left a message on 26 August asking the resident to call when convenient. She added that she would make contact again on Tuesday 8 September 2020; and that she would send a separate email with an updated action plan.
48. Meanwhile on 21 August 2020, the landlord sent a formal complaint response. It said that:
    1. it had upheld the complaint, as it found that the recordings and messages on the noise app had not been responded to in a timely manner nor were any clear actions agreed.
    2. contact on the noise app was not correctly logged on internal services.
    3. the complaint had not been fully investigated; and issues the resident had highlighted not responded to.
49. An apology was offered and compensation of £70 awarded in respect of service failures broken down as follows:

a.     Delay in reviewing initial ASB: £10.00.

b.     Delays in responses during Noise App investigation: £20.00

c.      Failure to accurately record communication: £20.00.

d.     Failure to evidence visit to neighbour or letter being sent: £10.00.

e.     The investigation at Informal Stage of Complaint was not thorough: £10.00.

50. On 25 August 2020, the resident thanked the landlord for its response. She said that whilst she was grateful for the compensation offered, she wanted to know if accepting the compensation concluded the formal investigation stage of the internal complaints process. She asked for clarification as to next steps. A further response was sent by the resident on the same day. She said that it was not an acceptable outcome as the situation had been ongoing for two years. She said that she had not been notified that the case had been closed; and felt that issue should be investigated as a complaint. She also pointed out that she had not been notified about any measures put in place with the neighbour to reduce the noise.
51. On 28 August 2020, the landlord’s Customer Experience Officer confirmed that the response did conclude the complaints process. She said:
    1. if the resident was unhappy with the response or felt that the complaint had not been answered in full, she could request escalation to the next stage. This would involve a director reviewing the investigation, together with the reasons why the resident remained unhappy.
    2. a review could take up to 20 working days, and noted that the resident was unhappy that her case was assumed to be closed. In response to this, she said “I am unable to raise a complaint specifically for this point as it is covered in this complaint”. However, she offered to take the case closure as the reason for the escalation. The Customer Experience Officer asked the resident to confirm that she wished for her to do this, and asked if there were any other reasons why she wished to escalate the complaint.
    3. For the parts of the complaint upheld, the resident had been compensated in line with the compensation matrix.
    4. the People Case worker would continue to work with her neighbour to resolve the complaint, but that they could not discuss the measures put in place as it would be a breach of GDPR.
    5. She acknowledged that the resident had previously asked to be provided with a copy of the landlord’s ASB policy, and a link was provided accordingly.
52. On 1 September 2020, the resident thanked the complaints team for its response. The resident asked whether she could still continue with her complaint if she accepted the compensation.
53. On 3 September 2020, the landlord’s complaints team clarified that the resident could accept compensation for the parts she was happy with and continue to the next stage. It asked the resident to outline exactly what she was unhappy with and why so that the complaint could be escalated. On 19 September 2020, the landlord confirmed the compensation had been processed but the complaint had not yet been escalated as it was waiting to receive confirmation of the reasons why the resident remained unhappy.
54. On 6 October 2020, the resident confirmed that she wished to escalate her complaint as, although parts of it had been upheld, it was unclear what these were. Furthermore, it had not been explained which parts of the complaint were going to be further investigated, or not. The resident added that whilst she understood that procedures had to be followed, she wished to know how long she would be expected to complete diary sheets and obtain recordings. In addition, she wished to know how much evidence the landlord would need in order to take action as to date it had only issued the neighbour with letters – and it had already taken such action in the past. 
55. On 28 October, a letter was issued by the Director of Housing. He explained that:
    1. the formal investigation had upheld parts of the resident’s complaint where service failure had been identified. He apologised that these failures had occurred and explained that she had been compensated in recognition of the failures.
    2. regarding next steps, the department responsible for investigating the ASB case would continue to work with her to resolve it.
    3. he was aware that the Tenancy Services Officer had reviewed the case and found the noise reported to be ‘daily living noise’ so the ASB case had now been closed.
    4. despite the case closure, it was working with the neighbour to identify ways to reduce the effect the daily living noise was having on the resident. However, it was unable to disclose the actions being taken due to GDPR.
    5. the complaint response was thorough and accurate; and therefore it would not be escalating the complaint for a formal review.
    6. this letter concluded the internal process and if the resident was not satisfied, she could refer the matter to the Housing Ombudsman.
56. In response, the resident said that she had not been informed that the noise had been regarded as ‘daily living noise’, or that the case had been closed. She expressed her opinion that the noises could not be regarded as ordinary daily living noise, and would therefore be taking her complaint further.
57. A further response was sent by the resident on 3 November. Within this, she:
    1. referred to the definition of ASB in the landlord’s policy, and expressed the view that according to that definition, her neighbour’s behaviour did constitute ASB.
    2. said that she did not feel that noise before 6am and after 11pm could be ‘daily living noise.’
    3. pointed out that the landlord had said that noise was due to the layout of the building yet had not given any further information or what it intended to do to rectify it. She expressed her concern that if the building was faulty or not fit for purpose it should not have been rented out.
    4. reiterated that she had not been told about any noise complaints prior to moving in or that the neighbour had assaulted the previous tenant. She repeated that she felt the landlord had put her and now her son in a dangerous situation.
58. The landlord replied to reiterate that its consideration of the complaint was complete, and that the resident could refer the matter to the Ombudsman. The resident confirmed that she had taken such action.
59. The landlord’s records show that it continued to work on monitoring and resolving the situation. A patrol on 21 November 2020 found the block quiet and peaceful. An action plan was drawn up with the neighbour following a conversation on 26 November 2020, including facilitating purchase of rugs for the living room and hallway. On 8 December 2020, and application for floor coverings was approved; however, it is not clear whether this has been fitted and whether the noise has abated.

Assessment and findings

Reports of noise nuisance

60. The landlord broadly followed the procedure and approach set out in its ASB policy, as detailed above. After the resident reported noise nuisance, she was appropriately given advice centred around finding a solution without direct intervention from the landlord. This was in keeping with the measure detailed in the ASB policy. However, as this did not work, the landlord offered to facilitate a meeting through the restorative justice service. The case was closed by agreement at the end of June 2019 after a successful meeting between the parties.
61. Later in 2019, the resident was regularly reporting instances of noise nuisance. The evidence shows that in response the landlord appropriately explained the process of obtaining evidence and recording it through the noise app and diary sheets. The frequency and method of keeping the resident updated were agreed in line with policy. It is noted that a few agreed response times were missed, for example after agreeing to make contact within 10 days on 9 November, the next contact was made on 21 November 2019, 15 working days later. However, considering the case as a whole, this was a shortcoming in the service provided as opposed to service failure. Once the case was reviewed, it was closed with agreement on 4 December 2019.
62. However, there were failings in the landlord’s handling of the resident’s ASB reports from 30 December 2019. There is no record of the resident’s message of 30 December 2019 being returned. Whilst it is noted that the resident did not chase a response, and further recordings were not submitted until February 2020, the landlord did miss an opportunity to engage with the resident and provide assistance as necessary.
63. The landlord later informed the resident of the action that it would be taking; however, the resident was not provided with an update and had to chase the matter in June. The Ombudsman has not been provided with a copy of the letter which the landlord says it issued to the neighbour in March 2020. Furthermore, there is no evidence of the visit that the landlord said would be taking place on 30 March. Given the timing of these events, it may be the case that the landlord’s actions were impacted by the Coronavirus pandemic. However, the landlord should reasonably have explained this when corresponding with the resident, if that was the case.
64. There was also a departure from the landlord’s policy in June 2020 owing to correspondence not being recorded correctly via the noise app. This resulted in the resident being told on 29 June 2020 that she should contact the customer hub for a new case to be raised. The advice that a new case needed to be opened appears to have undermined the resident’s trust and confidence in the process, and she was understandably confused as to why the process had to start all over again. The landlord appropriately acknowledged this failing in its response to complaint, and it did record some learning points arising including to accurately record all contact during an ASB investigation. The complaint investigation records show that noise and ASB cases were opened and closed at different times which appears to have been confusing to staff and resident, and the distinction was not clearly explained to the resident early in the process.
65. The evidence provided to the Ombudsman shows that the management of the ASB case in October 2020 was not in line with the measures detailed in the ASB policy. For example, the resident was not informed that the case was going to be closed – on the basis that the noise was considered to be ‘daily living noise’ – until the final response letter was issued on 28 October. It would have been more appropriate for the landlord to deal with the ASB case in isolation from the formal complaint, and to provide a detailed explanation as to why the case was being closed – and what action the resident could take if she continued to be disturbed by noise.
66. The landlord’s conclusion that there were no grounds to take enforcement action were not inappropriate in the circumstances, based on the evidence that has been provided to the Ombudsman. However, the resident had raised concern about the time(s) of day that she was being affected by the noise – and the Ombudsman has seen no evidence that this was duly considered by the landlord. The Environmental Protection Act 1990 and Noise Act 1996 gives landlords the power to act where there is ‘excessive’ noise between the hours of 11pm and 7am in domestic premises. “Excessive” is not defined within either Act. The evidence shows that the resident had submit reports of noise during these hours; and the landlord should reasonably have given further consideration as to whether the time of day meant that the noise was noise nuisance, as opposed to just daily living noise. It may be the case that the neighbour’s lifestyle (for example, shift work), means that frequent activity at night-time is ‘ordinary’ for him; however, the Ombudsman has not seen that the landlord gave this proportionate consideration. This was a failing in the circumstances given that the resident had raised this specific concern with the landlord.
67. It is noted that since the complaint exhausted the formal complaints process, the landlord has tried to find a solution to the problem of noise transference through the provision of rugs for the neighbour’s hallway and living room. It is not clear if this has had a positive impact.

Complaints Handling

68. The complaints handling departed from the landlord’s policy and procedure. On being advised of the complaint on 23 July 2020, the team leader responded on 4 August 2020 – within the 10 days prescribed by the customer service standards. However, it appears that a complaint was first logged on 11 June 2020. There is no evidence that this complaint was acknowledged or progressed within the target timeframes. It also appears that there was some delay later in the process, in November 2020, with regards to confirming to the resident that she had exhausted the process and should seek external review.
69. Furthermore, the letter dated 28 October was misleading. The subject was ‘Formal Review’, and the landlord stated – “In conclusion, upon reviewing the events of your complaint I can see the response at the Formal Review stage was thorough and accurate. I am therefore declining your request to escalate a Formal Review”. While it is acknowledged that this may have been a typographical error, it was the cause of confusion to the resident as she had queried where her complaint stood in relation to the landlord’s process on a number of occasions.
70. More importantly some aspects of the complaint do not appear to have been addressed, for example the resident’s queries about the allocation process. She asked if the landlord completed risk assessments for current and new tenants to see if they were suitable and if anyone would be put at risk of harm and received no response. The abbreviation GDPR was mentioned in responses including at the final review stage, but not explained. Furthermore, the resident received no response to her query about, if the noise was due to layout, what the landlord intended to do to rectify it.
71. The landlord awarded £10 in respect of complaints handling failures. However, on the basis of the evidence that has been provided to the Ombudsman, this award was not proportionate in the circumstances.

Determination (decision)

72. In accordance with paragraph 54 of the Scheme, there was:

a.     service failure by the landlord in its response to the resident’s reports of noise nuisance;

b.     service failure by the landlord in its handling of the formal complaint.

Reasons

73. The landlord’s initial handling of the resident’s reports was appropriate and in line with its policy. However, subsequent reports were not handled in line with the policy. For example, the landlord failed to adhere to timescales, did not keep the resident updated – especially in relation to case closures; and did not record contact in accordance with its procedures.
74. The landlord’s decision not to take enforcement action was proportionate based on the evidence that is available. However, it does not appear that the landlord gave consideration to the time of day that the noise disturbance was occurring; and whether this should have resulted in further action being taken – for example, an acceptable behaviour contract being introduced.
75. The landlord’s handling of the complaint departed from its Complaints policy. Furthermore, the evidence shows that the responses did not address the resident’s concerns in full; and the landlord therefore missed an opportunity to try to resolve the complaint. In addition, some of the complaint correspondence was confusing; and as a result, it was not clear what stage of the process the complaint had been considered at.

Orders

76. Within four weeks of the date of this determination, the landlord should pay the resident a total of £300 compensation. This is comprised of:

a.     £200 in respect of service failures in the handling of reports of noise nuisance;

b.     £100 for complaint handling failures.

77. Within six weeks of the date of this determination, the landlord should undertake a review of the ASB reports to assess whether noise has been occurring at an antisocial hour. In doing so, the landlord should make contact with the resident to enquire whether there have been any recent disturbances. If the landlord determines that noise has been occurring frequently at antisocial hours, it should take steps in line with the ASB policy to tackle this behaviour.

Recommendations

78. Within eight weeks of the date of this report, the landlord should review its Complaints Policy, and take steps to bring it in line with the Ombudsman’s Complaints Handling Code. The landlord should update the Ombudsman with its action in relation to this.