Peabody Trust (202015287)

REPORT

COMPLAINT 202015287

Peabody Trust

28 July 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 resident has complained about:
1. The landlord’s response to their reports of antisocial behaviour, including noise nuisance and bad odours.
2. The standard of service in the handling of their complaints.

Background and summary of events

There is an ongoing neighbour dispute between the resident and their downstairs neighbour. The resident reported anti-social behaviour (ASB) by the neighbour, including noise (from music and DIY) and smells they considered toxic. The resident has described how the ASB was of most concern from March 2020 onwards, with the start of the first ‘lockdown’ restrictions related to the Covid-19 pandemic.
The resident has also complained about the way the landlord’s Neighbourhood team handled the resident’s reports about their neighbour, and about the way the landlord handled the formal complaint. This includes the resident’s claims the landlord’s service has been biased in favour of its own staff and their neighbour.
The resident’s concerns and reports about the neighbour have continued after the landlord’s final response to the formal complaint. The final response was sent on 30 December 2020. The role of the Housing Ombudsman is to investigate whether the landlord’s response to a formal complaint was reasonable or not. This means we do not investigate the actual reports of anti-social behaviour. Instead we consider whether the landlord’s handling of those reports was reasonable and in accordance with its policies and procedures.
It also means that we can only investigate issues and incidents up to the date of the final response. Any concerns about the landlord’s actions after this dater have not been responded to under the landlord’s complaint procedure. As such this means there is no formal complaint response for the Housing Ombudsman to assess in turn. If the resident is dissatisfied with the landlord’s service after the 30 December 2020 this would first need to be raised directly with the landlord as a separate formal complaint.
The landlord responded to the resident’s reports of ASB in April 2020. The summary letter explained:
1. The neighbour was spoken to and sent a written warning about loud bass music. The landlord also asked the local authority’s Environmental Health Department to contact the neighbour. In response, the landlord also explained the neighbour had said they did not play music for over an hour, or before 0900 or after 1800.
2. The landlord offered to install sound monitoring equipment. It also highlighted that without incident reports and evidence any further action would be difficult.
3. That cooking smells do not constitute a breach of the neighbour’s tenancy. The landlord also reported the neighbour denied cooking in the middle of the night.
4. That the resident had sought permission to complete some improvement works. The landlord also noted it would normally have visited to investigate further following the resident’s complaint, but it could not due to the Covid-19 restrictions in place at that time. It confirmed it would visit again when allowed.
5. That the smell of paint was not a breach of the neighbour’s tenancy agreement.
6. That the landlord also needed to warn the resident about their behaviour. The landlord explained it had received reports about them shouting about ‘foreign’ food; that the staff helped their neighbour as they were from the same community; and the neighbour had been offered a tenancy as they were black. The landlord warned the resident that comments of this nature were unacceptable. The landlord did not take any action against the resident.
The resident’s email in August states:
1. The landlord had unfairly accused them of racist behaviour and included a warning.
2. They did not complain about the neighbour’s or their lodger’s ethnicity or of being foreign, as implied by the landlord’s warning. However they did still note one lodger’s ‘exotic’ cooking made them feel sick.
3. They believed the landlord’s management team was mostly from the same ethnicity, as was a new member of staff, as was the neighbour they had complained about. They also stated ‘tenants and staff from the same community understand, help or support each other.’ They explained they felt this was not a racist or unreasonable comment to make.
4. The resident also compared the landlord’s response to the ‘KGB and Stasi’.
The resident’s own response to the landlord’s warning about their behaviour and statements demonstrates that the landlord’s warning was reasonable. The resident was clearly frustrated that their understanding of the situation was not mirrored in the way the landlord responded to their reports of ASB. However it is entirely inappropriate to assume the motive of the landlord’s staff, and to base that motive on the ethnicity of the landlord’s staff, when there is no specific evidence that any action has been taken on the basis of anyone’s race (or other defining characteristic).
In addition to responding to the landlord’s warning, the resident also re-raised their complaint about the handling of their reports about their neighbour on 9, 10 and 20 August 2020. They complained:
1. The landlord should update its properties to meet recent building regulations for insulation.
2. The landlord allowed some residents to pursue ‘activities and lifestyles which cause a lot of stress and suffering to neighbours.’
3. That their emails were addressed to the Chief Executive Officer (CEO) and board, and they should respond, as opposed to front line staff and managers.
4. That they believed their neighbour had a ‘direct line’ to the landlord that meant their actions were overlooked. As such the resident was not satisfied with the landlord’s April response to the reports of ASB.
The landlord’s informal September response explained:
1. The resident continued to make the same reports about their neighbour and claims about the landlord’s staff. Therefore the only way forward seemed to be to escalate the complaint to stage 2.
2. That residents were allowed parties at their home and to play music. The key point was that the resident’s reports did not show regular or long periods of noise nuisance.
3. That the CEO will not respond directly to emails due to the volume of correspondence.
The resident re-raised their dissatisfaction on 20 November. They complained:
1. The resident had completed ‘serious refurbishment’ during the first ‘lockdown.’ This was not investigated with a visit due to the restrictions. They had now re-started on 9 November including ‘drilling hours at a time.’ They described the DIY could be heard throughout the building. They wanted to know what works the neighbour was completing and how long they would last.
2. That the works were too substantial for a tenant and they should be supervised by the landlord.
3. That the landlord no longer met the ideals that housing associations were established with.
The landlord acknowledged this email as the stage 2 complaint.
The resident also added to their complaint in December 2020. They summarised their 20 November email on 8 December. They explained on 12 December that their complaint was about the whole Neighbourhood management team. On 14 December they stated they were allergic to paint and asked to be re-housed temporarily during their neighbour’s DIY works. They noted the refurbishment type noises had ended and the neighbour would be decorating soon. They also provided doctor letters they felt supported their case.
The landlord explained to the resident on 14 December that DIY was not a breach of their tenancy and that the neighbour had permission for the works. The landlord clarified on 16 December that it asks all residents to keep their homes ‘well maintained,’ and that landlords cannot object to a request without good reason.
On 15 December the resident repeated their complaint that the landlord’s staff was biased and ignored some residents’ complaints and ignored the landlord’s policies. They also stated ‘tenants (often from their [the landlord’s staff’s] own community) are given support and preferential consideration.’
On 17 December the resident complained that the landlord’s permission for the neighbour to complete works was ‘irresponsible.’ They highlighted there had been no supervision of the work and believed the structure of the property had been damaged.
The landlord’s final response was sent 30 December 2020. It explained:
1. The landlord (and local authority) had discussed the loud music with the neighbour. The neighbour had replied they did not play music excessively loud or long.
2. The landlord was unable to visit the properties at the time of the reports due to the lockdown restrictions. The resident had not replied to the previous offer for noise monitoring equipment, however the offer was still available. The landlord also explained the additional role and powers held by the local authority.
3. The landlord had investigated the works completed by the resident in November 2020. These works were found to follow the permission the landlord had given.
4. The landlord does not normally install sound insulation. Furthermore, if it were to consider doing so for an exceptional case, it would need evidence to do so. As explained above however the landlord did not have independent evidence of excessive noise.
5. The landlord had discussed the smell of cooking with the neighbour. They had explained they cook after work in the evening, and not at night as reported. As with the noise, the landlord explained it can only take formal action about ASB where there are confirmed breaches of the tenancy. The landlord highlighted there was a lack of evidence and detailed reports to support action in this case.
6. How the resident could explore a transfer to move closer to their family.
7. It felt its Neighbourhood team had followed its procedures correctly when responding to the noise, neighbour dispute, DIY reports and complaints.
The ASB case has continued into 2021, however this assessment is limited to the period up to the landlord’s final response. As part of the discussion following the final response the landlord correctly explained any continued dissatisfaction would be for the Housing Ombudsman. However it also highlighted how it would investigate any new concerns about ASB under its ASB process and the resident should continue to report any such concerns.

Assessment and findings

Handling of reports of anti-social behaviour

The Housing Ombudsman’s Dispute Resolution Principles as that landlord’s ‘be fair.’ A key part of a fair service is to base any decisions on appropriate evidence. This is particularly important when it relates to a dispute between two of the landlord’s residents. The landlord has an obligation to both the resident and the neighbour. This means before it takes any action in support of either of the two tenants it must have appropriate evidence to do so.
In the case of ASB a report by one tenant about another is not enough on its own to support any formal action. This applies to reports about noise, smells, or other behaviour. The landlord can use a resident’s report to estimate the severity and regularity of any alleged ASB. However it must corroborate any reports with independent evidence before it can take any action.
Therefore the landlord’s main responsibility after received a report of ASB is to identify if there is an independent supporting evidence. In this case the landlord:
1. Repeatedly offered noise monitoring equipment, but it was not accepted by the resident.
2. Explained it could not visit due to the Covid-19 ‘lockdown’ restrictions. It is of note that the correspondence provided after the final response (in2021) refers to visits to the properties. This suggests landlord did re-start visiting when the restrictions changed. At the time relevant to this case however it was reasonable to explain it could not visit to see if it could corroborate ASB reports in the way it might normally.
3. Did not receive any other reports from other neighbours.
4. Did not receive any supporting reports from other authorities, such as the police of the local authority.
5. Visited in November (when restrictions had been eased and new reports of ASB from renovations were submitted) to check the work completed by the neighbour.
Therefore on the basis of the information provided by both the resident and the landlord, the landlord had taken all the action it could in response to the reports of ASB. It had spoken to the neighbour, issued warnings and spoken to the local authority. Any further action would require supporting evidence that was not available.
It was reasonable for the landlord to explain the smell of paint and cooking was not a breach of tenancy. The doctor letters submitted by the resident repeated the information the resident had asked the doctor to rely. The landlord would need an independent assessment of the resident’s health and the impact their housing was having on it for it to take any action. This would normally be provided by an Occupational Therapist after they completed an assessment. No such report was sent to the landlord however.
It is at the landlord’s discretion whether it grants permission for improvements. It continues to have an obligation to maintain and repair all the properties and the wider building. It also continues to have an obligation to investigate any reports of nuisance from the building.
Therefore it was reasonable for the landlord to confirm to the resident that both the April and November works had been approved. It also visited the property following the resident’s concerns. As noted above, there was no corroborating evidence to support the reports of noise or other nuisance from the decorating works.
It was appropriate for the landlord to warn the resident about the statements they made about the neighbour and the landlord’s staff. The reference to people’s race as a reason as to why a service may be delivered differently without any evidence is entirely unacceptable. As explained above, and as explained at the time by the landlord, the resident’s reports about their neighbour were responded to in line with the landlord’s procedures. While the resident may disagree with the landlord’s decision, there is never any justification for then making assumptions and inferences as the resident did in some of their complaints.

Complaint handling

The landlord’s handling of the formal complaint was not clear. The stage 1 response combined both the complaint about ASB, and the complaint about the landlord’s services. For clarity these two issues should normally be kept separate so that the ASB investigation is not conflated with the complaint about the landlord.
The landlord then suggested in August that the resident’s continued dissatisfaction was best dealt with as an escalated complaint. This was helpful advice as by this time as the resident’s dissatisfaction was focused on the specific team, so an independent investigation by a previously uninvolved senior management could help provide an independent response.
However the landlord’s response was ambiguous as to whether it was a question whether the resident wanted to escalate their complaint; or if the landlord had already decided to handle the previous correspondence as an escalated complaint. In the end it required further communication from the resident (mostly repeating the existing complaints) for the landlord to then escalate the complaint
While the landlord’s complaint handling could have been clearer, it did not affect its handling of the substantive issues. The April response responded to all the issues the resident had raised. The landlord also continued to correspond with the resident from August to September when the landlord had raised the idea of an escalated complaint but not processed it as such. Furthermore, the volume and nature of the resident’s communication presented a challenge.
In cases where there is a challenging amount of correspondence repeating similar issues (as opposed to reporting new incidents) it is even more helpful to both parties for the landlord to follow a clear process. Therefore this issue has been included as a recommendation for the landlord to consider below.

Determination (decision)

I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service:
1. There was no maladministration in the landlord’s response to their reports of antisocial behaviour, including noise nuisance and bad odours.
2. There was no maladministration in the standard of service in the handling of the complaints.

Reasons

The landlord contacted the neighbour as required to raise the resident’s reports of ASB. It could not take any further action without appropriate evidence. Despite reasonable efforts the landlord was not able to secure any evidence to support the resident’s reports of ASB.
The landlord responded to the resident’s concerns about its services and explained why it had taken the approach it had. The resident’s complaint about the landlord’s handling of the complaint stems from their disagreement with how the reports of ASB were handled, and in turn their belief this is based on bias. However there is no evidence the landlord did not follow their procedures correctly.

Recommendations

I would like to recommend that the landlord consider:
1. Ensuring all formal complaint response include a clear explanation of the stage it is at and the next steps in the process.