Peabody Trust (202100509)

REPORT

COMPLAINT 202100509

Peabody Trust

20 December 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

This complaint is about the landlord’s handling of:
1. the resident’s noise nuisance reports;
2. the resident’s request for it to install sound proofing;
3. the resident’s claim that it discriminated against him under the Equality Act (2010).

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Paragraph 39(i) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which ‘concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
The resident has raised concerns throughout the complaints process that the landlord discriminated against him under the Equality Act (2010) in relation to his noise nuisance complaints and in its interactions with him. This Service considers that it would be more effective for the resident to seek a remedy to this issue through the courts because the Ombudsman does not have the authority to make legally binding determinations about whether there have been breaches of the Equality Act 2010 in the way that a court might.
After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of the resident’s claim that it discriminated against him under the Equality Act (2010) is therefore out of jurisdiction and will not be assessed in this investigation.
However, the Ombudsman has considered the complaints about the landlord’s handling of the resident’s noise nuisance reports and his request for it to install sound proofing.

Background and summary of events

Background

The resident is an assured tenant whose tenancy began on 31 January 2000. The property is a one-bedroom basement flat.
During the period covered by this complaint, the resident provided the landlord with evidence that he has complex health needs (such as neurofibromatosis and anxiety with depression).
The landlord has a residents’ handbook that shows that:
1. it expects ‘all residents, and their families and visitors, to consider their neighbours and not cause a nuisance’
2. it will act to ‘get rid’ of harassment and anti-social behaviour (ASB) and will support victims.
The landlord has an ASB policy that sets out that ‘hate crime’ and ‘repeated prolonged high-level noise nuisance’ fall within its definition of ASB. It shows that it will:
1. assess residents for risk when they report ASB
2. respond to high risk ASB cases within one working day and lower risk ASB cases within five working days
3. refer all crime, including threats or acts of violence, to the police
4. use a range of preventative measures, early intervention and legal action to tackle ASB
5. only investigate noise nuisance when ‘the noise is frequently excessive in volume and duration or occurs at unreasonable hours’
6. close cases where it cannot take further action, there are no further reports for six weeks or it is successfully resolved and let the resident know when it closes a case.
The landlord’s website has a section about noise nuisance that shows that it considers factors such as the time it occurs, duration, frequency, intensity and whether it is deliberate when assessing if noise is ‘unreasonable’. It adds that it will not investigate everyday use of a property or instances where a property has poor sound insulation and defines general household noise as ‘people talking, walking about, doors and windows opening and closing, moving furniture around, washing machine, hoovering’, recommending that residents contact the local authority noise team if they feel this is excessive or at anti-social hours.
The landlord’s website has a section on aids and adaptations that sets out that any applications for major works must contain a referral from an occupational therapist and that it will advise a resident to call the local authority for an assessment in these circumstances.
The landlord has a complaints policy that shows it has a two-stage complaints process with responses required within 10 working days (at stage one) and 15 working days (at stage two). It adds that residents should make complaints within six months of the event that they wish to complain about.
The landlord has a compensation policy that allows it to award a payment to a resident where it delivers a service that does not meet its published standards. This includes amounts up to a maximum of £400 for time, trouble and inconvenience caused to a resident.

Summary of Events

The landlord’s ASB records show that the resident made a report on 20 May 2019 that he had been reporting his upstairs neighbour for banging doors noisily on their way out, moving heavy equipment around in their property (causing noise problems through his ceiling) and leaving items in the communal hallway. He said that it was unfair that his disability had not been considered.
The landlord closed the ASB case file on 23 May 2019 on the basis that the neighbourhood manager would speak to the neighbour about noise and items in the communal hallway. It added that it had responded to the resident giving re-housing advice.
The landlord’s ASB records show that it opened a new case file on 12 November 2019, following a report from the resident of an incident on 28 October 2019 when the upstairs neighbour accused him of banging the communal door then swore at and threatened him.
The landlord noted contact from the Police on 13 November 2019 who said that they had been contacted by the resident about the neighbour talking loudly and banging doors. It was noted that the resident had retaliated by loudly banging doors and the Police was concerned that a member of the neighbour’s household had acted in an intimidating fashion.
The landlord acknowledged the resident’s report on 14 November 2019 and noted attempts to liaise with his support worker on 15 November 2019.
The landlord closed the ASB case file on 21 November 2019, recording that it had:
1. warned the neighbour that their tenancy was at risk due to the actions of the son who had intimidated the resident
2. interviewed the neighbour who had confirmed that they used their living room less due to the resident’s noise concerns, made counter allegations that the resident was banging doors or constantly ringing their doorbell if they walked in the living room and claimed that they felt harassed by the resident and landlord
3. updated the resident’s support worker
4. sent a case closure email to the resident, confirming a formal written warning had gone to the neighbour but advising that footsteps, doors closing and talking did not constitute ASB.
The resident wrote to his MP on 18 December 2019, reporting that the landlord had failed to take his disability into account when considering the need for sound proofing and the conduct of his neighbour’s son in October 2019. The MP raised the enquiry with the landlord on 14 January 2020.
The landlord responded to the resident’s MP on 29 January 2020, explaining that:
1. it had acted on the resident’s noise reports, the most recent incident being in November 2019 when it had received counter allegations about the resident
2. sound proofing would not be appropriate or cost effective and this had been explained to the resident
3. mediation had been offered to both parties
4. the resident’s noise sensitivity could not be allowed to overrule another tenant’s enjoyment of their home.
The resident wrote to the landlord on 16 February 2020. He acknowledged there had been a response to the MP enquiry but claimed that:
1. the landlord had ignored his disability throughout its handling of his noise complaints
2. it had ignored the ‘hate crime’ aspect of the incident with his neighbour in October 2019
3. he found it humiliating that he and the neighbour had been warned to keep away from each other rather than moving on and rebuilding the relationship
4. the landlord’s actions to ask the neighbour to put additional rugs down and use their living room less had caused resentment and the noise continued on a daily basis which had caused suicidal thoughts
5. the landlord had overlooked his disability when considering his sound proofing request.
The landlord replied to the resident on 17 February 2020, asking how the resident specifically believed it had breached the Equality Act and noted that the resident had asked it to take actions over many years about the noise, which was why it had addressed the matter with the neighbour.
The resident replied the same day – he explained that if the landlord had accommodated his reasonable adjustment request years ago for installation of sound proofing, the matter with the neighbour would not have escalated to the extent it did in October 2019.
The landlord replied on 20 February 2020. It advised that:
1. there had been no evidence yet to back up the resident’s allegations of discrimination
2. the neighbours had taken it upon themselves to reduce their use of the living room and lay rugs and it was not the cause of any difficult atmosphere between him and the neighbour
3. the noise the resident generally reported was domestic household noise so it would not be able to take enforcement action against the neighbour
4. no amount of sound proofing would prevent the resident hearing doors slamming
5. it would be happy to discuss re-housing options with him if he felt the property was unsuitable for him.
The resident and landlord exchanged emails on 24 February 2020 – the latter advised that it could assist residents with carpeting (although it could not divulge details about the neighbour to the resident) but this was different to sound proofing.
The resident submitted a complaint on 8 March 2020 on the grounds that:
1. it was unclear if there was carpet or a rug laid in the upstairs property to reduce noise impact on him
2. there was a failure to make reasonable adjustments in line with the Equality Act by the landlord refusing to install sound proofing
3. he had raised complaints of discrimination under the Equality Act but the concerns had not been logged as such.
The landlord issued a stage one complaint response on 18 March 2020. It stated that:
1. it had received a number of complaints about noise from the resident since 2000 in relation to his upstairs neighbour and these related to ‘everyday noise’
2. the latest complaint was received in November 2019 following an altercation between the resident and the upstairs neighbour’s son which led to it issuing warnings to both parties
3. it had received counter allegations of the resident banging on his ceiling, slamming doors and ringing the neighbour’s doorbell in retaliation for the noise he said he had experienced
4. the neighbourhood manager had visited the upstairs neighbour who had reported that they had installed extra rugs (to be placed on top of carpets) and were using their living room less to help reduce noise
5. the property was a period conversion which meant noise transfer was possible but it did not believe that sound proofing was appropriate or cost effective
6. its records showed that sound proofing was carried out by the previous freeholder during 1979-1981 and this demonstrated that it had a minimal impact on the type of noise the resident was reporting
7. mediation had been offered to both parties in the past and this remained an option
8. it had tried to assist the resident and liaised with various support agencies
9. the resident had claimed he had been discriminated against under the Equality Act but there was no evidence for this and the resident had not provided any specific instances for it to investigate.
The resident’s MP made an enquiry to the landlord on 29 June 2020 regarding the impact of the ongoing noise issue on his mental health. The landlord replied on 1 July 2020, explaining that it needed to balance the needs of two households and that the upstairs neighbour had made changes to accommodate the resident’s complaints. It added that they did not have carpet throughout the property but had bought rugs and that further action with them on this subject could constitute harassment. It finished by noting that the resident could consider whether a move may be beneficial to his mental health and look into ‘coping strategies’ with his support team.
The local authority passed on a report to the landlord on 8 August 2020 that the resident had reported an incident on 5 August 2020 of his neighbour talking loudly, smoking and eating in a communal area outside his window late into the evening the day before. The landlord confirmed on 10 August 2020 that it had opened a new ASB case file.
The landlord’s ASB case file records show that it wrote to the upstairs neighbour on 11 August 2020, regarding the alleged incident of 4 August 2020. It wrote to the resident on 12 August 2020 confirming that, although it was not a ‘serious breach of tenancy’, it had asked the neighbour to be mindful of neighbours when socialising outside the property and to keep noise to a minimum.
The resident wrote to the landlord on 25 November 2020. He provided letters from medical professionals dated April 2019, March 2020 and May 2020, advising that a resolution to the noise issue would assist the resident’s health and that he was particularly sensitive to, and unable to block out, ‘daily noise’. He asked to make a complaint because:
1. the landlord had failed to respond or make reasonable adjustments in line with a medical letter from May 2020 that explained to it the impact of noise on him
2. the landlord had a duty under the Equality Act to consider his disability and positive discrimination as part of the sound proofing request
3. it had failed to appropriately log his concerns in August 2020 about unannounced and intimidating visits by its pest control contractor on 20 and 26 August 2020
4. the neighbourhood manager had threatened him eviction on 4 September 2020 for what she had described as theft of pest control bait boxes.
The landlord issued a stage one complaint response on 16 December 2020. This primarily related to the pest control concerns but also concluded that:
1. it had not received a copy of the medical letter of May 2020 so asked where this had been sent
2. its records showed that sound proofing had been done at the property in the 1990s and a neighbour had confirmed this and it was unlikely that any additional work would add any benefit
3. it was ‘required to eliminate discrimination, harassment, victimisation, advance equality of opportunity and foster good relations between people’ but the resident had not provided details of the discrimination he alleged.
The resident wrote to the landlord on 23 December 2020, raising continued dissatisfaction that the landlord had refused his request for a reasonable adjustment by installation of soundproofing and asking to escalate his complaint.
The resident wrote to the landlord on 29 December 2020, asking to raise a secondary complaint on the grounds that:
1. there had been a missed pest control appointment on 18 August 2020 which he had been accused of not waiting in for
2. he had made a complaint to the neighbourhood manager about a pest control contractor harassing him to gain access to an unannounced visit on 20 August 2020 and 26 August 2020 but the complaint had not been accepted
3. he felt the landlord and its contractor had discriminated against him as a disabled tenant and he should have been protected by the landlord from the contractor attending unannounced visits
4. the neighbourhood manager wrote to him on 4 September 2020, accusing him of theft of bait boxes that the pest control contractor had been attending to collect – he advised that this caused his doctor to have to increase his medication due to his fear of being evicted
5. he was further victimised by the area manager as the landlord failed to investigate its actions in line with the Equality Act
6. he believed he had been treated unfairly because he had previously complained about the landlord’s failure to make reasonable adjustments in February 2020.
The landlord’s internal records show that it considered the complaint on 4 January 2021 and noted that the resident had previously claimed that sound proofing was needed to his property and that he believed that the landlord’s refusal to install it was a failure to make reasonable adjustments.
The landlord acknowledged the landlord’s escalated complaint on 6 January 2021 and advised that it would respond in full by 29 January 2021.
The landlord issued its final complaint response to the resident on 29 January 2021. This again referred to the pest control aspect of the complaint (for which compensation was awarded) but also considered the resident’s sound proofing concerns, concluding that:
1. it had managed two previous noise nuisance reports in 2019 through to completion but it could not investigate these in detail as they occurred more than six months previously so were outside of the complaints policy timescale
2. it had contacted the neighbour about the resident’s noise report to help alleviate noise transference albeit it was concluded to be ‘everyday household noise’ rather than ASB
3. its records indicated that there was sound proofing installed in the 1990s, it would be a challenge to put more into an older building and it was unlikely that this would eradicate noise transference into the resident’s property anyway
4. it had not found evidence of discrimination towards the resident by members of its staff.
The resident approached this Service in April 2021, advising that he was dissatisfied with the landlord’s handling of his noise nuisance reports and that he had demonstrated to it how the problem had impacted his health. He added that he was disabled and the landlord had discriminated against him.

Assessment and findings

Noise nuisance reports

The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
The resident and landlord have both advised that noise reports have been ongoing for several years; the events considered under this complaint began in May 2019 when the resident raised a concern about noise caused by his neighbour moving items and banging doors. Under the landlord’s ASB policy and website noise nuisance advice, these would have been classed as general household noise. Nevertheless, the landlord recorded that it opened an ASB case file, spoke to the neighbours and would update the resident accordingly – these actions were reasonable and demonstrated that the landlord was resolution-focused given the matter reported by the resident was not ASB.
There is no evidence of further ASB reports until an incident in October 2019 when the resident and neighbour’s son had an argument, during which the latter’s actions were intimidatory. In response, the landlord acknowledged the resident’s report within one working day, liaised with the Police, contacted the resident’s support worker, interviewed and sent a tenancy warning to the neighbour and updated the resident before closing the case file. These actions were all in line with the landlord’s obligations set out in its ASB policy for handling of high risk ASB incidents and were therefore appropriate given the serious allegations made by the resident.
When investigating the actions of the neighbour’s son in October 2019, the landlord also took the opportunity to raise the issue of noise transfer with the neighbour. The neighbour confirmed that they had changed their use of the property and installed more floor coverings to alleviate the impact of their household noise on the resident. This again demonstrated that the landlord was resolution-focused as it continued to be willing to address noise concerns with the neighbour despite it having already concluded that enforcement was not possible as the resident’s reports related to ‘everyday’ noise.
There is no evidence of any further incidents being reported until August 2020 when the resident alleged that his neighbour talked loudly and socialised in a communal area outside his flat late into the evening. Within three working days of receiving the report via the local authority, the landlord opened an ASB case file, wrote to the neighbour requesting that they avoid causing too much noise when in communal areas and wrote to the resident to confirm the actions it had taken before it closed the case. These actions were all in line with the landlord’s ASB policy that shows it should use early intervention methods and advise the complainant of its actions when dealing with ASB. The landlord’s response to the August 2020 report was therefore appropriate.
In summary, the landlord met its obligations to investigate and take actions in response to the resident’s ASB reports in May 2019, October 2019 and August 2020 even though the noise aspect of the reports did not meet its threshold of nuisance behaviour. It took appropriate steps in interviewing the alleged perpetrator on each occasion and issuing two warning letters.

Sound proofing request

The resident and landlord have both made comments that indicate that he submitted requests to the landlord for it to install sound proofing prior to the period covered by this complaint. It is unclear how the landlord considered this request but no sound proofing work was done.
The resident has suggested that if the landlord had made sound proofing arrangements, then incidents such as the October 2019 interaction with the neighbour’s son would not have happened. However, there is no evidence that the resident made a sound proofing request in the run up to the incident and the landlord cannot be held responsible for the actions of the neighbour’s son.
The resident mentioned through his representations to his MP in December 2019 that the landlord should sound proof his property and take his disability into account. He subsequently advised in June 2020 of the impact that noise was having on his mental health and provided medical evidence from November 2020 that confirmed his health conditions made him more sensitive to noise. In response, the landlord took the following actions during 2020:
1. refused the sound proofing request on the grounds it would not be ‘appropriate’ or ‘cost effective’ and later because it would be a challenge to install it in an older building
2. discussed potential noise nuisance with the upstairs neighbour (and was told by them that they had taken steps to reduce their noise)
3. advised that it had investigated its records and found that sound proofing had been done in 1979-1981 and/or the 1990s
4. offered to discuss re-housing options with the resident.
There is no evidence of any investigations taken by the landlord that led it to the conclusion that sound proofing would not be ‘appropriate’ or ‘cost effective’. The landlord’s conclusions in this regard may have been correct but there is no record that it inspected the property, obtained quotes or explored any sound proofing options to reach this view – this was unreasonable, particularly given the impact that the resident advised the noise had on him due to his health condition.
The landlord’s website shows that it will signpost residents to the local authority occupational therapy team should a request be made for major adaptation works. Although the resident did not make a formal adaptation request, it was clear from his representations that he was seeking an adaptation due to his health condition. There is no evidence that the landlord considered whether, given the resident’s medical conditions, it may have been suitable to signpost him to the local authority to obtain an occupational therapist report and potential assistance towards the cost of works – it failed to demonstrate that it considered this option.
Although it was reasonable for the landlord to consider what its records showed about previous sound proofing at the property, it has provided contradictory advice to the resident about when this happened in its complaint responses of March and December 2020. This caused inevitably uncertainty as to whether the landlord’s records were accurate and what the actual sound proofing status of the property was.
It was reasonable for the landlord to discuss noise with the upstairs neighbour and consider the steps they had taken to reduce transfer of noise into the resident’s property. However, there is no evidence that it inspected the building to assess the impact of these steps and whether there were any other potential measures in either the neighbour’s or resident’s properties that could assist such as installation of slow door closers or acoustic foam panelling. The landlord’s failure to inspect the resident’s property to explore potential ways to reduce noise transfer and advise him of its findings was unreasonable.
In summary, the landlord failed to demonstrate that it investigated the resident’s request for sound proofing to be installed and provided contradictory information about sound proofing that it said was already present in the building. It decided to reject the resident’s request due to cost and likely success of works but there is no evidence as to how it reached this decision.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s noise nuisance reports.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s request for it to install sound proofing.

Reasons

The landlord responded to the resident’s noise nuisance reports in May 2019, October 2019 and August 2020 in line with its policies and procedures.
The landlord failed to inspect the building, consider potential options to minimise noise transfer or signpost the resident appropriately in response to his request for it to install sound proofing.

Orders

The landlord to write to the resident to apologise for the service failure identified in this report.
The landlord to pay the resident compensation of £250 in recognition of the inconvenience and time and trouble caused to him by the service failure in its handling of his request for it to install sound proofing.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

The landlord to:
1. help the resident within four weeks of the date of this report to get assistance from the local authority occupational therapist in regard to his request for a property adaptation due to his disability
2. inspect the building to identify whether sound proofing works would be possible, the likely cost of these and whether any alternative modification works may assist in reducing noise transfer; it should write to the resident within eight weeks of the date of this report to confirm the outcome of these investigations.