Midland Heart Limited (202202815)

REPORT

COMPLAINT 202202815

Midland Heart Limited

27 April 2023

Our approach

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

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

The complaint

The complaint is about:

the landlord’s handling of the resident’s reports of noise nuisance.
the landlords handling of the associated complaint.

Background and summary of events

Background

The resident is an assured tenant of the landlord, a housing association and the tenancy began on 1 April 2019. The resident lives in a one-bedroom flat located on the first floor. The landlord does not have any recorded vulnerabilities for the resident.
The resident has reported he has experienced noise nuisance from the flat below since July 2021 when additional people moved in with the existing tenant. The reports of noise nuisance were first raised by the resident in December 2021 and a formal complaint was opened by the landlord on 30 May 2022.
The landlord’s complaint policy states it will acknowledge a complaint within five working days. It has a two-stage process with the investigation stage to be responded to within 10 working days and the formal review stage to be responded to within 20 working days.
Section 4.13 of the tenancy agreement states not to allow the home to become statutorily overcrowded.
Section 4.23 of the tenancy agreement states that a resident or any person who lives with them, will not do anything which interferes with, or is likely to interfere with, the peace and comfort of, or cause offence to any other tenant or an adjoining occupier.
Section 3.4 of the landlords ASB policy states the landlord will apply a reasonable approach to all reports of suspected anti-social behaviour and will intervene only where it is in the best interests of the landlord and its residents to do so. Consideration will be given as to how regular or persistent the anti-social behaviour is. It will intervene when the behaviour poses a risk to a person’s tenancy and/ or there is a risk of harm.
Section 3.5 of the ASB policy gives examples of ASB to include persistent loud shouting and arguing and loud music or TV that can be heard outside. Examples of what is not ASB include Reasonable domestic living noises e.g. doors closing, washing machines and children playing.
Section 4.4.1 of the landlords ASB policy states that when ASB is reported an initial risk assessment will be undertaken by the customer hub or the officer allocated to manage the case, to determine its priority.
Section 4.4.4 of the ASB policy states the landlords first response will be to provide advice and assistance to residents to help them find a solution and resolve the anti-social behaviour without our direct intervention.
Section 4.9.1 of the landlords compensation policy states financial compensation is a final option for the landlord 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 as a result of the landlord or their contractor’s or agent’s actions.

Summary of events

The resident contacted the landlord on 7 December 2021 to advise he was experiencing noise nuisances from the flat below. The landlord advised the resident that evidence would be needed and asked the resident to download a noise recording app to his mobile phone. The resident informed the landlord he did not have a mobile phone. There is no evidence any additional options were given to the resident.
On 10 January 2022 the resident contacted the landlord to inform the noise issue was still occurring and was told by the landlord to download the noise recording app. The resident informed the landlord again that he did not have a mobile phone.
The landlord wrote to the resident on 19 January 2022. The letter stated the landlord was aware the mobile app could not be used and had attached diary sheets for the resident to complete. The landlord informed the resident that the tenancy services team was assigned to the case and he would receive a call on 28 January 2022.
A further email was sent on 19 January 2022 to the resident stating he would be visited by a member of the tenancy services team on 26 January 2022.
Following the visit on 26 January 2022 from the tenancy services team, the landlord wrote to the resident on 28 January 2022. In its letter the landlord confirmed it had
1. Discussed the complaint with the resident.
2. Had discovered the flat causing the noise was overcrowded.
3. It would be sending a tenancy breach warning letter to the neighbour’s property.
The letter also stated the support that had been discussed with the resident to build evidence of excessive noise including the use of SafetyNet – its out of hours service who could independently witness such behaviours. The letter states the resident declined this option as he felt the noise disturbance was not that serious, on purpose or persistent. The resident was offered and agreed to take part in restorative justice to try and resolve the situation. The letter notes the neighbour had also agreed to participate in the restorative justice process.
An action plan was issued with the letter on 28 January 2022 which confirmed the landlord would complete a property inspection of the neighbour’s property, refer the resident and neighbour to restorative justice and for the resident to avoid any conflict, confrontations or physical altercations with any neighbours.
On 2 February 2022 the resident emailed the landlord to say the situation with the noise from the neighbour was becoming worse, the action plan was not working and he asked what could the landlord suggest.
The landlord visited the resident and issued him with passwords to activate the SafetyNet service on 9 February 2022.
On 16 February 2022, the landlord attempted to contact the resident by landline regarding restorative justice. The landlord emailed the resident on 16 February 2022 to advise him they had been unable to speak with him and could he provide a convenient time to be called. The resident responded the same day to advise that he was not interested in taking part in restorative justice.
The resident contacted the Environmental Health team at the Council on 26 February 2022. The Council informed the resident the noise would need to be considered a statutory nuisance for the council to be able to investigate. Diary sheets were sent to the resident to complete, and a letter issued to the neighbours to inform them a noise complaint had been made. The letter did not identify the resident as the complainant.
The Environment Health team contacted the landlord on 16 March 2022 by telephone to inform it the service had been contacted. It had received three days of diary sheets and had asked the resident to complete more diary sheets in order to determine if the noise was a statutory nuisance.
An internal case review by the landlord on 01 March 2022 determined the resident had not activated the SafetyNet patrol and was unable to use the noise app so it would need to consider other options including noise monitoring equipment. The landlord emailed the resident on 1 March 2022 to inform him that as restorative justice had been refused the resident would need to evidence the noise nuisance being complained about. The landlord noted the SafetyNet passwords previously issued to the resident had not yet been used. The landlord informed the resident it would visit him on 16 March 2022 to discuss the complaint.
The landlord visited the resident on 16 March 2022. It advised the resident the noise monitoring equipment would be installed for one week.
A letter and action plan was issued on 18 March 2022 to confirm the noise monitoring equipment would be installed by the landlord by 31 March 2022, the resident was asked to continue to complete diary sheets for the environmental health team and not to use abusive language in communications to the landlord.
The resident submitted a “report a problem” form on the landlord’s website on 30 March 2022. The resident stated he was having problems with the landlord’s tenancy officers promising to do things and not replying about a number of concerns especially anti-social behaviour.
The landlord responded to the resident on 6 April 2022 to ask for more information from the resident about his dissatisfaction and his expectations. The resident replied the same day to say he was reporting antisocial behaviour to his housing officer who said he would do something but hadn’t. The resident also said he was told sound monitoring equipment would be provided to him a month ago and he still had not received it. The landlord replied to the resident on 11 April 2022 and informed him the tenancy services team would respond as soon as they could. No specific timescales were provided to the resident.
The landlord provided sound monitoring equipment to the resident on 8 April 2022. Recordings were made using the equipment between 8 April 2022 and 15 April 2022. The noise monitoring equipment was collected on 19 April 2022 and the resident contacted the landlord by email asking what could be done about the noise while he was waiting for the review of the data from the sound monitoring equipment. The landlord advised it would review the recordings within three weeks.
The landlord responded on 22 April 2022 stating the resident’s frustrations would be passed onto the tenancy services team and explained that the review would take place within three weeks but would not necessarily take three weeks.
The Council remained in contact with the resident until 3 May 2022 when it wrote to the resident to inform him that from the evidence provided, the noise being complained about was not a statutory noise nuisance and is anti-social behaviour that would be the responsibility for the landlord to resolve
The resident contacted the landlord on 3 May 2022 asking when the landlord would be dealing with the noise as it was getting worse. He also informed the landlord that Council had confirmed the responsibility for the anti-social behaviour was the landlord’s.
The resident contacted this service regarding the noise complaint on 9 May 2022 and informed the landlord he had done so. He also asked about the outcome of the noise recordings review.
The landlord wrote to the resident on 10 May 2022 to explain it would need more time to review the recordings submitted and should have the outcome by 26 May 2022. The resident replied to the landlord the same day to say the noise issue was getting worse and no action was being taken by the police.
The resident reported to the landlord on 17 May 2022 that he did not feel safe with the neighbour and the landlord advised him to report it to the police. The resident did so and provided a police reference number to the landlord.
The resident informed this service on 23 May 2022 that the problem with the neighbour was getting worse, was out of control and the neighbour was threatening to attack him. The resident stated the landlord was not replying to him.
The landlord wrote to the resident on 26 May 2022 to provide the outcome of the noise monitoring recordings taken between 9 April 2022 and 15 April 2022. The landlord confirmed 263 recordings were submitted of which 98 recordings were more prominent including noise such as banging, stomping, thuds and voices. The landlord concluded some of the noise on the recordings were general living noise, but some recordings were concluded to be anti-social behaviour due to the frequency, time of the occurrence and the impact. The landlord informed the resident a final warning had been issued to the neighbour and it was unable to take any further action as it was giving the neighbour the opportunity to find alternative accommodation.
An action plan was issued with the noise recordings outcome letter on 26 May 2022 with an action for the resident to continue to complete diary sheets for a further month, and the landlord to liaise with the police regarding the reported incident from 17 May 2022.
On 27 May 2022 this service wrote to the landlord to confirm that the resident had complained to the landlord but had not had a response. On 30 May 2022 the landlord responded to this service to say a complaint was not open for the resident, but one would be raised that day.
The landlord wrote to the resident on 31 May 2022 to advise the complaint was opened, was being investigated and would be responded to within 10 working days. The email was sent to the resident’s correct email address but addressed the resident by the wrong surname. The resident replied the same day asking for diary sheets to be sent to him as he had not yet received any from a request made the previous week.
In internal communications sent between the landlord on 7 June 2022 the landlord stated it was aware of the overcrowding issue but needed the neighbour to take steps to resolve the situation through the Council and stated “There is very limited enforcement action I can take at this stage beyond the actions taken”
The resident emailed the landlord on 8 June 2022 to say he had not received the diary sheets. He also used abusive language regarding the landlord addressing him by the wrong surname in the email of 31 May 2022. The landlord responded the next day by email to apologise for the error by its officer and warned the resident about the use of abusive language.
A warning letter for unreasonable contact was issued to the resident on 9 Jun 2022 in response to the resident’s email of 8 June 2022.
The landlord issued its stage one response on 13 June 2022:
1. The landlord agreed it was incorrect that the resident was told to download a mobile noise monitor app when the resident had already informed the landlord on several occasions he did not have a mobile phone.
2. It should have offered alternatives to monitor the noise at an earlier stage.
3. That its records showed the resident had declined the use of Restorative Justice and had not activated the SafetyNet service.
4. The landlord apologised and offered compensation of £35 to the resident for the service failure.
5. It was continuing to work with the neighbour to address the residents’ concerns.
The resident informed the landlord he would like the complaint to be escalated to stage two on 17 June 2022. As part of the escalation request the resident said he did try and activate SafetyNet and that there was frequent noise between 10:30pm and 4am. The landlord acknowledged the escalation request and advised a response would be issued by 15 July 2022.
The police confirmed to the landlord on 21 June 2022 that the crime ref number provided by the resident had been closed with no further action. The landlord made an unannounced visit to the resident on 21 June 2022but there was no response from the resident.
On 26 June 2022 the resident informed the landlord diary sheets should have been collected on 23 June 2002 but had not been collected and emailed again on 28 June 2022 to say that he had not received the compensation offered in the stage one response. The landlord responded the same day to inform the resident the compensation would be paid by the following Friday and more diary sheets would be sent to him.
The landlord issued its stage two response on 11 Jul 2022. In the response the landlord:
1. Advised the right information was given in the stage one response to the resident regarding the noise nuisance he was experiencing.
2. It was unable to act upon noise deemed as day to day living.
3. Agreed with the stage one response regarding the mobile phone noise recording app and it should have offered to install noise recording equipment sooner. The landlord offered compensation of £75.
4. Ensured the SafetyNet service would be offered again to the resident and if further evidence was found, it would take necessary action.
The resident responded to the stage two letter:
1. He asked why he was not offered the sound monitoring equipment again
2. He stated he would like to complain about the service received between the review time and how the action plan had been followed up.
The resident emailed the landlord on 5 August 2022 to say he had not received the £75 compensation offered in the stage two response on 11 July 2022. The landlord responded on 8 August 2022 to apologise and offered an additional compensation of £35 in recognition of this. This made the total amount of compensation offered to the resident to be £105 at stage two and £35 at stage one.

Post complaint

A new referral was made to Safety net on 27 July 2022 and additional diary sheets issued to the resident. Several activations to SafetyNet were made by the resident between 30 July 2022 and 26 August 2022 but on review of the visits by the SafetyNet patrol no evidence of antisocial behaviour noise could be found.
The landlord has reviewed further diary sheets and found the noise complained about is general living noise but is heightened by the fact the neighbour’s property is overcrowded. It arranged for more noise monitoring equipment to be installed at the resident’s property on 07 September 2022 until 20 September 2022. The review of these recordings on 12 October 2022 concluded the noise to be general living noise.
The resident contacted this service in November 2022 to say the issue was still ongoing and the landlord had advised him to contact the council to report a statutory noise complaint which the resident told the landlord he already had done in February 2022 and had informed the landlord of the council’s response.
The landlord contacted this service in March 2023 to say it had completed an audit of outstanding complaints that were with the Ombudsman and determined it missed three previous occasions to log the complaint as a formal complaint and has written to the resident to acknowledged this and apologise. The landlord offered £200 in compensation to the resident – £150 for not raising the complaint sooner and £50 for not identifying this in its initial complaint response.
The landlord has confirmed that the neighbour has approached the council to seek alternative housing in August 2022. The landlord closed the noise complaint in November 2022 as it determined the noise was general living noise and that no further action regarding the overcrowding could reasonably have been taken.

Assessment and findings

The landlords handling of the residents reports of noise nuisance

It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to his reports of ASB.
When the resident first reported the noise nuisance to the landlord section 4.4.1 and 4.4.2 of its ASB policy states a risk assessment will be carried to determine the risk of harm and prioritisation. There is no evidence provided to suggest this has been done by the landlord.
Upon receiving the resident’s report of noise from the neighbouring property the landlord advised the resident to download a noise recording app to his mobile phone. Once the resident informed the landlord he did not have a mobile phone the landlord should have offered another solution. Instead the resident was told on further occasions to download an app which he was unable to do with no evidence of alternative options being offered until diary sheets were issued to the resident by letter on 19 January 2022. It took until the 26 January 2022, 51 days after being first contacted for the landlord to visit the resident to discuss the situation. The landlord acknowledged this delay and failure to act in a timely manner, in its complaint response and offered compensation.
Following the conversation with the resident on 26 January 2022 the landlord visited both properties to discuss the issue with both neighbours with the aim of finding an acceptable solution and an action plan was created. This is an appropriate action to use at the early stages and is in line with the approach outlined in section 4.7.2 of its ASB policy.
It was reasonable for the landlord to offer restorative justice to the resident. Restorative justice is voluntary and the resident and his neighbour were not obliged to agree to take part, however, it can be a useful tool in managing neighbour disputes in some cases. It is noted that the resident initially agreed to take part in restorative justice, however following further incidents the resident chose to no longer to participate.
There were some failures in the landlord’s communication with the resident. There was failure to provide or collect diary sheets as agreed with the resident and installation of the noise monitoring equipment was completed nine days later than originally arranged with no evidence of the resident being informed about the delay or its reason.By stating that the landlord would respond as soon as it could, in an email sent to the resident on 11 April 2022, the landlord did not provide reasonable timescales for when it would be in touch.
The landlord’s records demonstrate that at this time, it was investigating the noise issues and had additional contact with the neighbour with regards to resolving the overcrowding. It contacted the neighbour via a phone call in March 2022 and there was a visit in April 2022, but there was a lack of updates being provided to the resident causing him to become frustrated and needing to make additional contact to the landlord.
It is reasonable to assume an overcrowded property may have an impact on the level of noise generated. The evidence shows the landlord issued a tenancy breach letter in January 2022, spoke to the neighbour by phone in March 2022, visited the neighbour in April 2022 and issued a final warning letter in May 2022. Following the final warning letter no further action was taken although it is acknowledged the landlord did speak with the neighbour in June 2022 and August 2022 regarding applying to the council for assistance in seeking alternative accommodation. The noise complaint was closed in November 2022 with no further action being taken by the landlord.
In its complaint responses the landlord recognised there had been failings in its handling of the resident’s antisocial behaviour reports. It apologised for this and awarded compensation in total of £110. This was a reasonable level of compensation given the failures were during the initial stages of the complaint and following this the landlord fulfilled its responsibility under its ASB policy.

The landlords handling of the associated complaint

The landlord was aware of the issues raised by the resident since December 2021 and the evidence shows the landlord referred to the issue as a complaint in internal correspondence in March 2022. It did not however follow its own complaint policy and open a complaint until intervention by this service in May 2022.
Once the complaint was logged by the landlord it did issue its stage one and stage two complaint responses in line with its complaints policy
In its stage one response the landlord acknowledged it should have offered more suitable options to the resident to investigate the noise once it was advised the resident did not have a mobile phone. It apologised and explained that it had learnt from this error. The landlord also explained what would continue to happen following the complaint response.
In its stage two response the landlord reiterated the explanations and findings in the response issued at the stage one and offered the additional referral to SafetyNet net and explained it would continue to take action if any further evidence was found.
However, when the landlord issued its complaint responses there was no acknowledgement by the landlord of its failure to raise the complaint earlier in the process or offer any redress or apologies to the resident for this failure.
The post complaint review conducted by the landlord in March 2023 identified it had missed three opportunities to register a complaint for the resident and offered £200 in compensation. Whilst this failing was not recognised during the initial stages of the complaints process the landlord has taken the opportunity to review its handling of the complaint and offered further compensation. This amount is considered reasonable redress for the delay in logging the initial complaints.

Determination (decision)

In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in respect of its handling of the reports of noise nuisance.
In accordance with paragraph 53(c) of the Housing Ombudsman Scheme, there was reasonable redress by the landlord in respect of its handling of the associated complaint.

Reasons

The landlord initially failed to handle the residents initial noise complaint correctly and there was some instances of delays in communication, however it did subsequently did take appropriate action in accordance with its ASB policy.
The landlord failed to identify and log the complaint until intervention by this service however once it had registered the complaint, the landlord responded in line with its complaints policy. In its subsequent review of the complaint it acknowledged its failures and offered appropriate compensation to the resident for the delays in the complaint handling.

Recommendations

Within four weeks of the date of this letter the landlord pays the total compensation of £200 offered to the resident on 3 April 2023 if it has not already done so.
The landlord is to review its complaint handling processes to ensure its staff are trained to identify, register and respond to a formal complaint in accordance with its complaint policy.