Peabody Trust (201901683)

REPORT

COMPLAINT 201901683

Peabody Trust

31 January 2022

Our approach

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

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

The complaint

The complaint is about the landlord’s response to the resident about his reports of anti-social behaviour (‘ASB’).

Background and summary of events

Background

The resident is an assured tenant of the landlord, a housing association. The property is a ground floor flat in a block. The resident occupies the property with his wife.
The Anti-social Behaviour, Crime and Policing Act 2014 definition of ASB includes “conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises” and “conduct capable of causing housing-related nuisance or annoyance to any person,” which tenants must refrain from under the tenancy agreement.
The landlord’s ASB policy advises that the types of behaviour that it considers to be antisocial include “repeated prolonged high-level noise nuisance.” Its approach to ASB aims to prevent incidents occurring; to treat all residents fairly; to work in partnership with local organisations (such as local authorities, which can consider if noise is prejudicial to health or a statutory nuisance under the Environmental Protection Act 1990); to use available tools; and to take appropriate action to stop ASB, including more formal action, where there is sufficient evidence. The landlord only investigates noise nuisance where the noise is “frequently excessive in volume and duration or occurs at unreasonable hours;” and expects tenants to collect evidence, liaise with other agencies and participate in mediation.
The landlord’s website adds that it has to decide whether noise is unreasonable, based on whether it occurs outside a reasonable time (7am to 11pm) and if it is an ongoing problem. It does not investigate one-off events; everyday use of a property such as people talking and low level TV; where properties have poor sound insulation; and shouting unless it is persistent or excessive. It works with the local authority and police who have powers to issue legal notices in the most serious cases.
The landlord aims to respond to reports within defined timeframes, agree action plans with complainants, and keep them informed. The landlord closes ASB cases if it has investigated, appropriate action is taken and it is resolved; if there are no further reports for six weeks; if agreed with the complainant; or if no further action can be taken.
The landlord operates a two stage complaints procedure that requires complaints to be made within six months of the issue complained about. The landlord may award compensation where it has failed to deliver service. It may award up to £100 for complaint handling failures. It may also award up to £400 for time, trouble and inconvenience in relation to service failures.
The Ombudsman’s remit in relation to complaints is limited by its Scheme. Paragraph 39(e) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.”
This investigation therefore mainly focuses on events from around December 2019, six months before the resident made a formal complaint around May 2020, up until the landlord’s final response on 24 November 2020. Separate issues, and events that pre and post-date the complaints procedure, have not been investigated here and are referenced for contextual purposes only.

Summary of events

Between April and November 2019, the resident reported that his upstairs neighbour caused a noise nuisance after 11pm until the early hours, which caused lack of sleep and migraines. The reports were mainly that the neighbour talked loudly while video gaming, although there were also reports of a loud TV; shooting and car driving noises; bangs; vibrations; and stamping.
On receipt of the resident’s reports, the landlord opened an ASB case, which it classified as low risk; visited him and his neighbour (who denied making excessive noise) on multiple occasions; asked the neighbour to control their voice and be mindful of others; provided diary sheets; reviewed evidence; updated the resident; encouraged him to contact the local authority’s mobile noise team to witness the noise; contacted the local authority to obtain details of visits; spoke to other residents, who did not corroborate the nuisance; suggested mediation, which he declined; placed the resident on a waiting list for a noise machine; and then liaised with him to install a noise app, which it assessed recordings from.
On 21 November 2019, the landlord sent the resident an ASB case closure. This said:
1. It had investigated the reports and listened to recordings made on the noise app, and had been unable to substantiate the allegations.
2. It expected residents to bear with a reasonable level of domestic noise. It noted the resident slept in the living room and that noise from his neighbour’s living room disturbed sleep. It explained that the property was laid out to mitigate noise transference, and noted he had been advised to move into the bedroom to sleep, but had chosen not to do so.
3. He should continue to make reports to the local authority’s noise team, and if the noise was witnessed and considered excessive, the local authority could take enforcement action.
4. It would close the case since it was not in a position to deal with the matter any further, but it would reopen the case if it received evidence of the noise or a report from the local authority that confirmed noise nuisance.
The resident made further reports at the end of December 2019, after which the landlord advised in January 2020 that it would arrange installation of noise monitoring equipment. This was installed on 16 March 2020, and the review of the results noted:
1. The neighbour was audible when they talked while they played video games, however this was not overly loud or purposefully unsociable and decibel levels were low.
2. There were some noises that were inconsiderate, however these were one incident over a week, not prolonged excessive noise that would be considered ASB.
3. The neighbour was not doing anything considered wrong or unreasonable and there were other factors to take into account, such as the lack of sound insulation in the building and the resident reportedly sleeping in his living room below the neighbour’s living room (meaning it was more likely noise from the neighbour’s living room would be heard).
The landlord sent the resident an ASB closure letter on 24 April 2020, which confirmed its conclusions and advised it was writing to the neighbour about the incidents it had concerns about. The landlord then discussed the letter with the resident on 30 April 2020 and suggested mediation as the best way to resolve the issue, which he reportedly agreed to. The following day, the resident was noted as wishing to make a complaint and in correspondence on 13 May 2020 he said:
1. His neighbour had breached tenancy conditions and the landlord had not taken effective action. They were still causing noise nuisance despite the landlord’s letters, and there had been recent excessive noise and shouting between 11.30pm and 4.30am (this investigation notes the resident made further reports of a similar nature between May and November 2020).
2. He was sleeping in different rooms depending on the level of disturbance, and was now sleeping on a sofa in the dining room as the living room and bedroom were unusable. He requested a rent refund for being unable to use all the rooms in his property.
3. He was considering taking legal action against his neighbour and requested a copy of the recordings from the noise monitoring.
The same day, the landlord wrote to the resident and his neighbour and invited them to participate in mediation, which it would arrange with an independent mediator if agreed. The landlord advises that the resident’s neighbour agreed to mediation.
The landlord reviewed matters internally and reached similar conclusions to before. It noted more work could be done to make the neighbour conscious of how sound travelled in the building at early hours, and suggested for mediation to be offered again.
The landlord subsequently informed the resident that it could not take the neighbour to court because this would be unsuccessful, as although the neighbour was asked to keep noise down, monitoring had not uncovered antisocial noise. It explained the building had poor sound insulation, which a report that noise could be heard in the dining room demonstrated. The landlord notes it discussed mediation with the resident on 19 May 2020 and he agreed to this, after initially expressing an intention to take court action.
On 26 June 2020, the landlord issued its stage one response:
1. It noted the resident reported he had experienced ASB for over a year; felt it had not done enough to resolve the issue; intended to take his own legal action about the issue; and requested up to 12 month’s rent refund.
2. It detailed actions following reports in April 2019, and it noted the local authority’s noise team visited ‘at least 17 times’ and it installed noise monitoring equipment in March 2020. It noted the outcome to these was that audible noise was not statutory nuisance and the majority of decibels were low, apart from two instances that it wrote to his neighbour about.
3. It explained the building’s poor sound insulation meant that general living noise was likely to be heard, which it could do nothing about as this was not a breach of tenancy and it did not sound insulate its buildings. It noted the resident was more likely to hear noise as he had started sleeping in his living room, directly below his neighbour’s living room, and it recommended to resume sleeping in the bedroom.
4. It was satisfied it had investigated the issue, established the vast majority of noise was general living noise and not ASB, and was limited in how much further it could investigate the noise reports. It noted that in April 2020 it had recommended mediation and written to him about this in May 2020. It restated that mediation was the best way to resolve the issues and encouraged him to play an active part in this.
5. It advised that he was free to take his own legal action and would arrange for the sound monitoring report to be sent.
On 1 July 2020, the resident advised that issues had been missed from the response. He stated that he had previously advised that noise was equally loud in both the bedroom and living room. He stated that he had agreed to mediation but had not been contacted. On 14 July 2020, he then emailed a ‘stage two complaint letter’ to the landlord.
1. He queried lack of response to recent contact, enquired about when to expect noise machine recordings, and requested an update on the mediation.
2. He noted that two instances of unacceptable levels of noise had been recorded, and stated there had been similar incidents that had happened too quickly to record.
3. He made additional allegations about his neighbour, including that they had intentionally stamped on the floor and been aggressive after being asked to reduce the nuisance.
4. He explained that the issue affected him and his wife’s health and work; queried if anything could be done such as sound proofing; and advised that the landlord should be taking action against his neighbour for breach of the tenancy conditions.
Between July and August 2020, the resident again queried mediation and made further reports of noise nuisance, including short bursts in the early hours he was unable to record. He also made separate reports about his neighbour which involved the police. The landlord investigated and monitored this; obtained a statement from the neighbour, who made counter allegations; and established that the police would not press charges.
The resident emailed the landlord on 29 August 2020. He complained about his neighbour only having been sent a letter, despite evidence from the noise machine that there was noise nuisance. He complained about a lack of contact regarding mediation and lack of receipt of noise machine recordings. He asked the landlord to resolve the issue and move him or his neighbour.
In September 2020, staff were asked to contact the resident to discuss his continued dissatisfaction and escalate the complaint if a way forward could not be agreed. The landlord reviewed the complaint and ASB files and in correspondence, said:
1. Recordings were being obtained from a contractor and would be supplied to the resident as soon as possible.
2. It no longer believed mediation was advisable since a recent incident.
3. It was satisfied it had taken the right steps to gather evidence to determine if the noise was a breach of tenancy. It did not have evidence at that time to support further action against the neighbour and action taken so far was fair and proportionate.
4. It had to decide if reported behaviour would be considered unreasonable and if noise could be classified as a nuisance or breach of tenancy. The reports and recordings demonstrated the resident heard noise at times, but did not evidence this was deliberate or malicious in any way. It expected noise such as shouting to be controlled, but it could only take action for this if prolonged, excessive or late at night. It acknowledged some noise was not recorded and explained it could only act on evidence that was gathered.
5. The landlord noted a further report of shouting and banging and offered to install noise monitoring equipment again. The resident declined this as he felt the last installation had provided the necessary evidence of unacceptable levels of nuisance; and he asked the landlord to focus on moving him. The landlord explained that this limited what it could do for further noise complaints.
6. It noted a separate incident that involved police and advised that if it were to act, it would be inclined to take action against both the resident and his neighbour, which would not resolve the situation. It advised that if it was informed of further action against the neighbour it would follow this up with action of its own for breach of tenancy.
The complaint was escalated and acknowledged on 8 October 2020 after correspondence from this Service on 30 September 2020, although the resident requested this on two occasions in September 2020. The resident subsequently made a further report of his neighbour shouting while playing video games, discussed the complaint with the landlord on 30 October 2020, and was provided with the March 2020 noise recordings on 2 November 2020. The landlord then issued its final response on 24 November 2020.
1. It acknowledged the resident had reported noise nuisance over a long period and advised that action was taken on receipt of these in line with ASB policy. It noted the allegations were discussed with his neighbour, and he was informed there would be a degree of noise transference due to the age of the building, termed to be ‘general living noise.’ It explained that it was not possible to insulate older properties and insulation would not fully eradicate noise transference.
2. It noted that he had been invited to use a noise app; the local authority had confirmed they had visited and identified no statutory nuisance; and noise monitoring equipment had been installed. It advised that the majority of noise was not deemed to be ASB, although the neighbour was written to about two occasions where the noise was excessive.
3. It explained that, without seeking to question information provided, enforcement needed to be evidence led and action could only be taken where there were confirmed tenancy breaches. It explained that legal referrals were made based on collated information and lack of evidence meant enforcement action could not be progressed.
4. It acknowledged the resident’s concerns and frustration and that the matter had impacted living in his home. It assured him that it took ASB seriously and asked him to continue to make reports.
5. It acknowledged and apologised for a delay in escalating the complaint and providing a response, and awarded £50 for this.
On 3 December 2020, the landlord noted that the resident would be accepting the compensation and was informed he had to return a form.
The landlord sent the resident ASB case closure letters in January and November 2021. These restated that it had investigated allegations and taken actions under its ASB guidelines and breaches of tenancy conditions had not been confirmed through evidence gathered. Its later letter advised mediation was proposed in a meeting with police in October 2021 which the resident had not responded about.

Assessment and findings

ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are also often the most challenging for a landlord as, in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
This Service understands the resident’s situation and recognises that the concerns he has reported have affected and caused distress to him and his wife. In cases relating to ASB, it is not the Ombudsman’s role to determine whether ASB occurred, who is responsible, or if a room or property is uninhabitable due to noise. It is also not within the Ombudsman’s authority or expertise to decide on matters such as tenancy breach in the same way as the courts, or whether a tenant should be moved. However, the Ombudsman can assess how a landlord has dealt with reports it has received in the timeframe of a complaint, and assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.
Following the resident’s reports, it was necessary for the landlord to respond to his concerns and to take action in accordance with its ASB policies, such as contact the resident; discuss the case with his neighbour and other agencies; and to deal with reports in a proportionate and appropriate manner, considering its obligation to all its customers to treat allegations in a consistent and evidence-led way.
The landlord appeared to take appropriate action in response to the resident’s initial reports in 2019, as it fulfilled obligations to consider and respond to his reports in a generally reasonable manner. It classified the issue as low risk; it discussed the issues with the resident, his neighbour and other residents; it encouraged collection of evidence and reports to the local authority; and it reviewed evidence and confirmed a reasonable position on matters with accompanying explanation.
The landlord took action to install a noise machine following the resident’s further reports in December 2020, which was an appropriate next step given the recent closure of an ASB case and the ongoing nature of the reports, and this allowed the noise that the resident reported to be directly assessed.
The landlord considered a range of factors such as the volume and nature of the noise and the building structure, and concluded that regular talking by the resident’s neighbour late at night was not unreasonable. This is in line with the landlord’s approach that talking is considered to be ‘everyday’ noise and that it does not investigate where properties have poor sound insulation. This reflects the law and relevant court judgments (notably London Borough of Southwark and Another v. Mills and Others (A.P.) Baxter (A.P.) v. Mayor etc. of the London Borough of Camden) that normal household noise is not generally considered a nuisance, and that a landlord is not generally liable for inadequate sound insulation in older buildings.
The landlord concluded that some noises that occurred at one point over the week were inconsiderate, and brought these to the resident’s neighbour’s attention. The landlord’s action to write to the resident’s neighbour rather than take enforcement action appears reasonable and proportionate, because it was concluded the evidenced unreasonable noise was an isolated occurrence in the course of a week, not prolonged excessive noise that the landlord considers to be ASB.
The resident later stated that the landlord should proceed to take enforcement action for further noise, and he declined its offer in September 2020 to re-install noise monitoring equipment. These both appear to be on the basis that unreasonable noise was evidenced in the March 2020 recording. While this investigation understands the resident’s view that the March 2020 recordings represented the noise he experienced ongoing, this does not reflect the evidence-based requirements of the ASB process, and the opinions of the landlord’s professional staff that it is entitled to rely on for such matters. In order for a landlord to take action against a tenant for acts of ASB, it has to be sure that it would be a proportionate and justified response to the allegations and the evidence available. This means that the landlord was reasonable to advise that its actions were limited if it was unable to install noise monitoring equipment again – to evidence that there was current noise that was actionable ASB. This was in the interests of the resident, as a landlord will only be successful in taking legal enforcement action if there is sufficient evidence of actionable noise, for which the bar is fairly high.
While this Service understands the resident’s noise reports and the distress these may cause, the evidence demonstrates that the landlord considered the noise reports in line with its obligations and in a fair and balanced manner – which is what this Service would expect to see. This investigation has seen no evidence that the landlord and the police considered that the noise warranted further enforcement action; that the local authority considered the noise to be prejudicial to health or be a statutory nuisance (for it to take its own action); or that the landlord would be obligated to refund any rent.
Whilst this is the case, there is concern about the landlord’s handling in respect to mediation. It is in line with the landlord’s policy and good ASB practice to exhaust available intervention tools such as mediation, and the resident’s refusal of this in 2019 and October 2021 will have limited the landlord’s ability to help. However, between May and August 2020, the resident agreed to mediation and on multiple occasions, requested updates about a lack of contact concerning this since May 2020.
There is no evidence of what steps the landlord took to meet its commitment to arrange an independent mediator if the resident and his neighbour agreed to mediation, which information provided advises they both did. There is also no evidence that the landlord responded to the resident’s requests for updates, until it advised after mid-September 2020 that mediation was no longer advisable due to an incident at the end of August 2020. This demonstrates that there were delays providing mediation; a lack of effective communication and management of the resident’s expectations; and potential missed opportunities to use intervention tools at a timely point when the parties involved were stated to be willing to engage with these.
In its responses, the landlord has set a reasonable explanation and position in respect to the substantive noise issues, which has highlighted the evidence-based approach that is required to satisfy both the landlord and courts that more serious enforcement action is reasonable. The landlord has also acknowledged a delay in escalating and responding to the complaint, which is appropriate given that the final response in November 2020 took over four months, and the compensation of £50 appears in line with the landlord’s policy for such a delay in complaint handling.
However, in both of its complaint responses, the landlord failed to consider and address the lack of progress in respect to mediation in 2020, which the resident included in his complaint correspondence. The first response in June 2020 could have addressed what had transpired after the resident agreed to mediation over a month prior, and when he could expect to be contacted if applicable. The final response in November 2020 should have assessed and addressed the delays and lack of updates the resident experienced over four months, and provided explanation about why this did not progress. The landlord should also have considered if time, trouble and inconvenience was experienced in relation to this and if any further compensation was applicable under its policy in respect of service failures. In the Ombudsman’s opinion, this was not reasonable.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident about his reports of anti-social behaviour.

Reasons

The landlord took reasonable and proportionate action in response to the resident’s noise complaint. When the reported noise nuisance continued, the landlord was unable to progress its investigation partly due to the resident declining its offer to install noise monitoring equipment, which would have enabled it to obtain evidence of further noise nuisance and limited the action it could take against the neighbour. The landlord subsequently acknowledged and remedied for delays responding to the complaint, however it has not addressed the lack of progress and updates that the resident experienced over four months in respect to mediation.

Orders and recommendations

Orders

The landlord to pay the resident £150 in recognition of the distress and inconvenience caused by its handling in respect to mediation.

Recommendations

The landlord to review its ASB and complaint handling, to ensure it progresses complaint escalations and ASB actions such as mediation in a timely manner, and communicates about these effectively.
The landlord to re-offer to install the noise monitoring equipment if appropriate.