Orbit Group Limited (201902084)

REPORT

COMPLAINT 201902084

Orbit Group Limited

30 June 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 complaint is about:
1. The contents of a warning letter sent to the resident in March 2019.
2. The landlord’s response to the resident’s reports of noise nuisance.
3. The landlord’s complaint-handling.

Background and summary of events

The resident is an assured tenant of a two-bedroom flat (the property). She resides at the property with her son who raised a complaint on her behalf. The resident has a physical disability and mobility issues that the landlord is aware of.
There was a history of the resident or her son reporting noise from the flat above since at least 2017. This report will consider reports dated from early 2018 onwards, as this is a reasonable timeframe to consider prior to the formal complaint being raised with the landlord.
In January and February 2018, the resident or her son raised concerns about noise from the flat above including letting a child ride a bicycle in the flat. An allegation of threats by the neighbour was also made. The landlord spoke to both parties and the police were involved. This case was closed on 28 March 2018.
On 19 April 2018, the son contacted the landlord stating he was still experiencing noise issues. The landlord advised him to contact Environmental Health but he wanted to speak to the landlord’s staff about this. The landlord called him back and advised that he should contact the Council. The landlord said it had spoken to the neighbour and the police and his mother, all of whom had agreed for the matter to be closed. The landlord noted that it considered the issues to be day-to-day living noise.
On 2 January 2019, an incident was reported to the landlord and the police were involved as allegations of assault were made against the resident’s son. The son informed the landlord that there had been ongoing issues with these neighbours for four years and he had been provided with diary sheets by EH.
The landlord visited the property on 26 February 2019. He said the noise was usually from 8am onwards and referred to the noise of the neighbour “walking back and forth in shoes, dragging furniture across the floor. The son explained his version of events of the incident of 2 January 2019 and denied physically assaulting the neighbour, noting that rather than punching her as had been alleged, he had knocked her phone out of her hand which she had been using to film him. The case was due to be heard by the courts in May 2019.
The son also informed the landlord that a member of the neighbour’s household had made a derogatory comment towards him in relation to his sexuality the previous year. The landlord advised the son that it would likely issue a written warning and close the case but would consider any further tenancy action dependant on the outcome of the trial. It also advised him to keep liaising with EH in relation to the noise nuisance he and the resident were experiencing.
The son also informed the landlord that he had contacted EH in August and December 2018 and was issued with diary sheets which he had completed and returned.
On 15 March 2019, the landlord sent a written warning to the resident due to the incident reported in January 2019. The same day the landlord spoke to the son and advised him to continue to report noise to EH if it continued. The son asked why no action was being taken against the neighbour as he had reported in the meeting that police had been called about the neighbour being aggressive previously. The landlord said it had contacted the police about this but it would not change its decision to send a warning letter to the resident.
On 21 March 2019 the landlord wrote to the neighbour advising the ASB case had been closed following its investigation of the reports and the issuing of the warning letter to the resident. It noted that it would consider if further action was needed once the criminal case was completed in May 2019.
On 26 March 2019, the resident’s son made a formal complaint to the landlord. He referred to the 26 February 2019 meeting and said he was unhappy with the tone of a letter he had received with the written warning for noise nuisance and anti-social behaviour and accusing him of a hate crime which he denied. He also said that he had been reporting noise nuisance from the same flat above for over four years and the landlord not taken any action nor provided him with any support. He stated that this had caused the issue to escalate with him being arrested due to a false allegation of assault. He complained that he had not been convicted of any crime and he disagreed with the landlord’s use of the term hate crime. He said that he had informed the landlord during the visit that the neighbour had threatened him with “homophobic content” in February and August the previous year and the landlord said it would look into his. He also referred to showing the landlord multiple recordings of noise nuisance and said this had been passed to Environmental Health from August 2018.
He also complained that he had asked during the meeting why the tenants above were allowed wooden flooring and the landlord had responded that it cannot control what type of flooring people have, however he had since spoken to another landlord employee who said that wooden flooring was not allowed. He concluded that the noise had started again and he awaited the landlord’s response and that of EH.
On 8 April 2019, the landlord called the son and noted that he was very unhappy and was asking for noise monitoring equipment to be installed and that it take action against the neighbours. He said the noise was now daily and was impacting on his and his mother’s health. The landlord said it would speak to EH and chase up what was going on. The landlord also agreed to look into speaking to the neighbours about their flooring as the son said this was causing noise transference to the property. The landlord emailed the EH team the same day requesting an update in relation to the son’s noise reports.
On 12 and 18 April 2019, the resident or her son requested call backs from the landlord. On 24 April 2019, the landlord contacted the resident and informed him that it had contacted EH and the caseworker was away until 29 April but it would chase them for an update as it was for EH to assess the noise nuisance.
The landlord chased up a response for its request for an update from EH on 24 April 2019.
On 10 June 2019, the son called the landlord about the noise issue stating that he had spoken to EH who had advised that the landlord should deal with the issue. He said that the flat above has laminate flooring and they should not have this. He also reported that the child upstairs plays football and rides a bike and the father drops weights on the floor. He said he had a recording on his phone and completed diary sheets and was very distressed by the situation.
On 14 June 2019, the landlord called the EH team and then the son advising that it was for EH to investigate and they would call him to arrange a home visit.
On 22 July 2019, the EH team contacted the landlord confirming that it had visited the property and discussed the concerns about noise. It said that the noise from the flat above “allegedly arises from impact sounds including banging noises, dragging/dropping objects, ball bouncing, heavy footfall, wearing external footwear/high heels indoors, and door slamming) and was affecting their relaxation and sleep. The EH team said that while a proportion of this noise may be considered as “living” noise, some of it may be avoidable. The son asserted that the neighbours had installed laminate flooring contrary to the landlord’s policy which might be exacerbating the problems. The EH team had written to the neighbours requesting that they contact it to arrange a visit but they had not responded. It asked the landlord to confirm the type of flooring used in the flat above and whether this was a breach of tenancy agreement and asked if it would be agreeable to a joint visit to the flat and asked if the landlord could facilitate this.
The landlord responded to the EH team and attempts were made to arrange a joint visit, although there is no evidence that this went ahead.
On 26 July 2019, the son contacted the EH team stating he was unhappy that the neighbours had not responded to the letter from EH and asked if they were allowed to ignore this. He said that he did not feel noise equipment would work as there was a lot of noise coming from other people in the block. He said he had provided video evidence and diary sheets and said that some form of action needed to be taken. The EH team responded that the neighbours were not obliged to cooperate with the EH investigation and explained that it could only take enforcement action if it had evidence of a statutory nuisance. The EH team acknowledged that the use of noise monitoring equipment in flats could be problematic for the reason he had described but explained that it could not rely on his own recordings as they were unlikely to be admissible evidence in Court. It advised that he could consider taking his own private action under s82 of the Environmental Protection Act 1990.
On 29 July 2019, the son contacted the landlord’s customer relations team updating them in relation to the advice from EH and stating he had not heard from the landlord for over a month when it said it had contacted the property department about the flooring in the flat above and he had not heard back. He requested to have no further contact with the particular staff member who had been investigating as he considered that person was not impartial and was not resolving the issue that had been going on for five years.
On 9 September 2019, the landlord telephoned the son who advised that the noise nuisance was ongoing and was affecting his heath.
On 16 September 2019, the son’s MP contacted the landlord asking if the visit to the neighbours had taken place and what was the outcome. The MP also asked that the landlord provide an update as to the action taken in response to the complaint.
The landlord’s internal correspondence of 17 September 2019 states that a manager attended both properties that day. It noted that the flat above had carpet throughout other than the kitchen and bathroom, although it noted that “it looks like it has been in place for some time i.e. worn but unsure if any underlay has been fitted”. It established that there was no laminate within the neighbour’s property which it noted would be contributing to the noise issue. However, the purpose of the visit largely focused on investigating a leak into the tenant’s flat, and there is no evidence of a discussion being had about the noise issues with the neighbours above.
On 1 October 2019, the son chased the landlord in relation to arranging a joint visit with the Council.
On 3 October 2019, the landlord requested an update on the noise complaint from the EH team. In response, the EH team said it had been waiting for the landlord to confirm its availability for a joint visit stating it did not receive a response to dates proposed. It proposed 9 October 2019. The landlord responded that it had visited in September and noted that there was carpet in the property but it was not sure if there was underlay.
On 10 October 2019, the Ombudsman contact the landlord requesting an update in relation to the complaint. The Ombudsman chased the landlord for a response on 25 October 2019.
On 25 October 2019, the landlord contacted the son saying it had no further information to disclose. It said it had passed the issue to management in the team that handles ASB.
The landlord’s internal correspondence from October and November 2019 evidences that some members of staff were chasing information in an effort to provide the son with information but there was a lack of response from other members of staff. It appears to have taken the position that the noise issue was with EH but it did contact the son on 11 November 2019. The landlord’s records state that the son was very unhappy with the landlord but it had advised him that the case was currently sitting with EH, and in most other noise cases it would not be contacting the EH officer for updates. It had however chased for an update the previously week and had been informed EH would contact the son shortly.
On 26 November 2019, the landlord informed the Ombudsman that it had made contact with the son earlier that month and advised him that if he wished to escalate his complaint, he would need to contact EH.
On 21 January 2020, the landlord chased EH for an update and the EH team informed the landlord that noise monitoring was undertaken in the property “shortly before Christmas” for one week. It said that some noise was recorded including footsteps, noise from a child and hoovering, but nothing that would amount to a statutory nuisance. It noted that the son had said that the period of monitoring was not representative of the usual level of disturbance they were subjected to but said that “it would seem they mostly experience “living” noises and noise from a young child, which, in general, are not considered to be actional nuisances.” It said further that the son had reported that the child was allowed to ride a bicycle indoor was happens quite often and causes disturbance, which may be considered to be unreasonable but it did not have evidence of this.
On 8 June 2020, the son informed the landlord that the noise from the flat above was ongoing and he said it had not ever stopped. He said the constant noise had caused him to have constant headaches.
On 17 June 2020, the Ombudsman contacted the landlord again requesting it contact the son about the complaint. The Ombudsman contacted the landlord again on 6 July 2020.
On 23 July 2020, the landlord informed the Ombudsman that the issued raised by the son were ASB issues and so it had been passed to the team that deal with ASB.
On 14 August 2020, the Ombudsman made further contact with the landlord, noting that the son had clearly expressed dissatisfaction with how the landlord had handled his reports of ASB and therefore it expected the landlord to have raised a formal complaint and requested it do so now and within five working days. The Ombudsman advised that if the landlord did not confirm it had done so in this time, it would consider that the issue had exhausted the landlord’s complaints procedure and accept the case for formal investigation given that the service had requested the landlord engage its complaints procedure on multiple occasions previously.
On 25 August 2020, the Ombudsman informed the landlord that as it had not received a response to its previous correspondence, it was now accepting the complaint as having exhausted the landlord’s complaints procedure.
The son contacted his MP again in October 2020 about the ongoing noise. The MP contacted the landlord. The landlord’s internal correspondence evidences that it had taken the position that the case was referred to EH and there is no reference to it taking further action than that set out above by this time.
The landlord stated in its response to the Ombudsman’s evidence request noting that it had offered mediation to the resident’s son on 18 November 2020, however this was declined.

Policies and Procedures

The landlord’s ASB policy states that it defines ASB as:
1. “Conduct which has caused or which is capable of causing harassment, alarm, distress, or nuisance or annoyance to any person and directly or indirectly relates to, or affects the housing management functions of [the landlord]” Or;
2. “Conduct which consists of or involves using or threatening to use housing accommodation owned or managed by [the landlord] for an unlawful purpose”.
The policy also lists some issues which the landlord considers within the scope of its policy including noise deemed to be a statutory nuisance, assaults and threats of violence, and verbal abuse/harassment/intimidation.
The list of issues it considers do not fall within the scope of the policy include children playing, disputes between friends and family, general living noise (doors banging; footsteps etc) and lifestyle clashes. The policy also states that “We expect allegations to be made at the time of the incident occurring and we may refuse to accept an allegation if it has not been reported to us within 72 hours of the date of the incident”.
The policy states further that if an allegation is made and meets its definition, it will be categorised as “A” or “B”. The landlord will respond to category A cases within one working day of receiving the allegation, and category B cases within three working days.
The policy also states that the landlord will carry out a risk assessment and agree an action plan with each complainant, which will include how and when it will keep in contact, any support needs they may have and how these are to be delivered, managing expectations and our intentions as to how it intends to manage the case with their support.
The policy states that any action it may take will be proportionate to the type of allegation made and will be at its discretion. Any action taken will be one of, or a combination of the following: Preventative Measures, Other Interventions, Enforcement and Legal Action using the range of tools and powers available to it as a landlord under the Anti-Social Behaviour, Crime and Policing Act 2014, the Housing Act 1988 and other relevant legislation. Finally, before closing a case, it will make contact with complainants and witnesses and explain it is doing so.
In cases where the landlord is not the organisation with the responsibility or powers to deal with the allegation(s) made, it will adopt a partnership approach and work proactively with other professional organisations such as the Police or Local Authority and share information. It may refer complainants or witnesses to other organisations as appropriate whilst always being clear about its responsibilities and capabilities. Where it has an interest but another organisation is leading the investigation, it may decide not to act until the outcome of their investigation is known.
The landlord’s complaints policy defines a complaint as:
1. ‘a dissatisfaction about the actions, decisions or failure of our services after Orbit has had the opportunity to put things right.’
Its complaints policy states further that it has two stages:
1. At investigation stage the complaint will be investigated and responded to within ten working days of receiving it. If it cannot do so, it will inform the customer within ten working days as to when a response will be sent.
2. At review stage a senior manager will review the complaint. It will respond within ten working days of receiving the result, or if it cannot do so, it will inform the customer within ten working days as to when a response will be sent.

Assessment and findings

The contents of the March 2019 warning letter sent to the resident

Following the allegation of assault against the son by a neighbour in January 2019, the landlord met with the resident and her son to discuss this allegation. Following the landlord’s investigation into this allegation, it sent a warning letter to the resident. The son denied the allegation and a criminal trial was due to take place at a later date. The son subsequently complained to the landlord that he was unhappy with the tone of the letter; he disagreed with the landlord’s use of the term “hate crime”.
Given that a serious allegation of assault was made, which falls under category A of the landlord’s ASB policy, it was appropriate for the landlord to investigate this allegation and consider whether further action was appropriate. While a criminal prosecution had started but the trial had not taken place, sending a warning letter was a proportionate response and in accordance with its ASB policy. In terms of the wording of the letter, the landlord was entitled to draw attention to the terms of the resident’s tenancy agreement and the policies she and her son were obligated to adhere to. It also advised that the resident’s son had admitted to confronting the neighbour and described the language that he was alleged to have used. In this way it relied on the evidence available to it in determining a proportionate response to take, which was to draw attention to the resident’s responsibilities and how these had not been adhered to.
The letter also noted that the matter was being closed at the time, and that any further potential action would be considered on the basis of the outcome of the future court case. While this demonstrably cause distress to the resident and her son, it was reasonable that the landlord communicated this fact openly to them on the basis of the seriousness of the allegations. The content of the letter was not threatening, nor did it presuppose the truthfulness of the allegations levelled against the son, but rather relied on the agreed upon facts of the situation to inform the steps it took.

The landlord’s response to reports of noise nuisance

The son provided details of his reports regarding noise nuisance at the visit by the landlord on 26 February 2019. He referred to noise such as walking back and forth in shoes, dragging furniture across the floor, and the washing machine being very loud. He also said that a member of the household above had made a derogatory comment towards him in relation to his sexuality the previous year. The landlord advised the resident on multiple occasions to liaise with EH in relation to the noise nuisance.
The landlord’s initial response to the son (to continue to liaise with EH) was appropriate and in accordance with its ASB policy which refers to working in partnership with other organisations where appropriate. Given the fact that the ASB policy states that only statutory noise nuisance would be classed as ASB for the purpose of its policy, and it would be for the EH team to determine whether there was a statutory nuisance, it was reasonable for the landlord to request the noise be reported to the EH team to investigate. The landlord’s ASB policy only refers to statutory noise nuisance as being ASB, and that it states that children playing and general living noise is not ASB. The allegations of deliberate noise were not supported by the available evidence and reasonable steps were taken to establish this. Therefore the landlord’s position that it could not take further action against the neighbours without more evidence was justified by the facts and reference to its policy.
While the EH team had not confirmed that a statutory nuisance was present, the landlord could have engaged with the neighbours about the issue to see if anything could be done to minimise noise transference. Particularly, given that the son was alleging deliberate noise and that the EH team noted in July 2019 that while a proportion of the noise may be considered as “living” noise, some of it may be avoidable. However later communication with the EH team did clarify that the majority of the noise fell into the “living” noise category.
The landlord agreed to speak to the neighbouring tenants about the flooring on 8 April 2019, but there is no evidence of it doing so until 17 September 2019 when it checked the flooring in the flat above. There was therefore a delay in the landlord looking into this issue, however the flooring is not the landlord’s responsibility to address or repair and the inspection of it was only one element of a possible resolution to the reports of noise.
While there is no evidence of the landlord responding to the son’s allegation of an inappropriate comment by the neighbour the previous year, the landlord’s policy does state that it may refuse to investigate allegations which aren’t made at the time of the incident. It therefore was reasonable that the landlord did not proceed with an investigation into the historic allegations on this basis, although this could have been better communicated to the son. It informed the resident that it would contact the police about this and did so, which were appropriate steps to take.

Complaint–handling

The resident raised a complaint with the landlord on 26 March 2019. The correspondence was stated to be a complaint and was clearly an expression of dissatisfaction about the actions, decision or failure of the landlord’s services. Following this, the Ombudsman contacted the landlord on five occasions between May 2019 and July 2020 in relation to the complaint, requesting that the landlord progress the complaint on multiple occasions. The resident raised dissatisfaction with the landlord himself on other occasions prior to this such as 29 July 2019, and the resident’s MP also wrote to the landlord on 16 September 2019 requesting an update in relation to the complaint.
Despite this, the landlord did not provide any response to the complaint at all. There is no evidence of it logging or acknowledging a complaint and instead it appeared to take the position that the resident should contact the Local Authority to escalate his complaint. While the resident may have wished to raise a separate complaint to the Local Authority in relation to how its EH team was handling the noise reports, the landlord’s position in relation to the complaint was unreasonable given the resident demonstrated a clear intention and attempt to gather a complaint response from the landlord specifically as a body. This is demonstrated by the content of the communications from the resident, the Ombudsman and the MP.
The landlord did not provide any explanation as to why it didn’t register a complaint. This was despite the fact that the resident was clearly trying to raise a complaint about how the landlord was responding to his reports of noise and therefore the landlord should have responded to in accordance with the procedure set out in its complaints process. In not doing so, the landlord delayed the resident from obtaining a final response and therefore being able to bring his complaint to the Ombudsman, damaged the resident’s trust in the landlord’s services and missed an opportunity to resolve the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the complaint about the contents of a warning letter sent to the resident in March 2019.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint about the landlord’s response to the resident’s reports of noise nuisance.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of the landlord’s complaint-handling.

Reasons

The landlord acted appropriately in considering the evidence available to it following the report made of the incident that led to the resident’s son facing a criminal charge. Following interviews with relevant parties, it took the proportionate step of sending a warning letter to the resident and her son on the basis of the seriousness of the allegation and the evidence it had that indicated the tenancy agreement and various policies had been breached. Though the letter caused distress to the resident and her son, it was a proportionate response in light of the available evidence and was appropriate in form and content.
The landlord responded appropriately to the residents’ reports of noise nuisance, directing the resident on how to report these to the EH team who would consider these under its policy. The evidence available was appropriately considered and deemed not to reach a threshold which would justify the landlord taking action against the neighbour under its policy, on the basis that it largely consisted of day-to-day living noise. Though there was a delay in the landlord carrying out an inspection of the neighbour’s flooring, this was a minor issue considering the lack of evidence in the case.
The resident made multiple requests for the landlord to raise complaints, as defined in its complaints policy, as did the Ombudsman and the resident’s MP. The landlord failed to provide acknowledgements or responses to the requests.

Orders

The landlord, within the next four weeks, to pay to the resident the sum of £300 for the delays and other failings in its complaint-handling process.
The landlord, within the next four weeks, to review its complaints procedure to ensure it aligns with the Housing Ombudsman Complaint Handling Code. This review process should focus on ensuring that its staff are aware of and correctly implementing the procedure, in particular regarding how to identify and log a formal complaint. Information about the Complaint Handling Code and the Code itself can be found at the following link:

https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/