Peabody Trust (202107980)

A picture containing logo Description automatically generated

REPORT

COMPLAINT 202107980

Peabody Trust

16 February 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 how the landlord handled the resident’s reports of antisocial behaviour (ASB) and counter allegations of ASB made against her.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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. After carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

Incidents in 2017

In her request to escalate the complaint to stage two, and when bringing her case to this Service to consider, the resident described her dissatisfaction at how her reports of noise nuisance made in 2017 were handled by the landlord and the conduct of the staff members who contacted her.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
This is in accordance with paragraph 39(e) of the Scheme, which states that we will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment will focus on the period from January 2021 onwards. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in July 2021.

Background and summary of events

Background

The resident is an assured tenant of the landlord, which is a housing association. The property is a flat in a communal building. Both the resident and her husband corresponded with the landlord during the period of the complaint. For reasons of clarity, the resident and her husband have been jointly referred as “the resident” within this report
The landlord’s ASB policy defines antisocial behaviour as:
1. Conduct that has caused, or is likely to cause harassment, alarm or distress to any person.
2. Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
3. Conduct capable of causing housing-related nuisance or annoyance to any person.
The ASB policy goes on to state that the landlord will respond to high risk ASB within one working day and to low risk ASB within five working days. In regard to how it will handle reports of noise nuisance, the policy states that it “will only investigate noise nuisance where the noise is frequently excessive in volume and duration or occurs at unreasonable hours”. The Environmental Protection Act 1990 and Noise Act 1996 give councils the power to act where there is excessive noise between the hours of 11pm and 7am in domestic premises. “Excessive” is not defined within either Act.
The ASB policy also states that the landlord will “refer all crime, including threats or acts of violence, to the police”.
The landlord operates a two-stage complaints process. When a complaint is received, the landlord will investigate the matter and provide a full complaint response at stage one. If the complainant is dissatisfied with the response, they can request an escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide a stage two response This will be the landlord’s final response to the complaint.
The policy also states that it would not normally investigate a complaint reported to it more than six months from when the incident occurred, but that it may use its discretion to consider a complaint outside of that timeframe in exceptional circumstances.
The complaints policy does not provide specific timescales for responding to complaints. In line with the Ombudsman’s Complaint Handling Code (published on our website), landlords are expected to respond at the first stage of its internal complaint process within ten to 20 working days of receiving the complaint, and to respond at the second stage of the complaint process within 20 working days of the resident asking for the complaint to be escalated.

Summary of events

The resident has stated they have experienced ongoing issues of ASB with a neighbour in the property. The neighbour has also reported incidents of ASB they had experienced from the resident and her family. The resident has made reports to the landlord since at least 2017 and the neighbour had made reports to the landlord since at least 2018.
The resident’s complaints to the landlord in 2021 refer to the reports they made to the local and head offices in 2017-2019. The later formal complaints about the landlord from the resident refer to these incidents, but they do not specify any specific reports in 2020 or the first half of 2021.
Neither party has provided correspondence which shows specific reports of ASB in January to July 2021 by the resident about the neighbour. The landlord has provided a copy of the ASB file, and this does include documents from that period. However, as these relate to another property they cannot be shared or detailed in this report.
The landlord’s later formal complaint responses highlighted how it had not received any noise reports from the resident since 2019, and the resident’s replies did not include any information to contradict this statement.
Therefore, from the information provided it does not appear that there were specific reports of ASB during January to July 2021 by the resident about the neighbour.
On 2 July 2021 the resident called this Service and expressed her dissatisfaction with how the landlord had handled her reports of ASB. This Service passed on the resident’s concerns to the landlord and described the elements of her complaint as:
1. There was a strong smell of urine around her front door.
2. The neighbour below banged on the ceiling in an aggressive manner.
As a resolution to the complaint, this Service informed the landlord that the resident had requested that it arrange for a surveyor to visit the property to identify the source of the smell.
The landlord opened a formal complaint on 6 July 2021. On 14 July 2021 it called the resident to discuss the complaint. The landlord’s notes of the call state that it was informed by the resident that she suspected that the communal vent opposite the front door was the source of the smell and that the neighbour below banged on the ceiling when her son moved around. The landlord’s notes also stated that it discussed using rugs to reduce noise transference.
A stage one complaint response was sent to the resident on 18 July 2021. The landlord informed the resident that it would arrange for a plumber to visit the property and inspect the communal vent. The landlord also informed the resident that it would speak to the neighbour about banging on the ceiling.
On 29 July 2021 the resident wrote to the landlord and requested to escalate the complaint. The resident noted that she had received a telephone call informing her that it had put a recording device in the neighbour’s property which had recorded noise nuisance from her property. The resident disputed this and explained that she felt that the neighbour was retaliating against her and her family in response to her own reports of noise nuisance.
The landlord wrote a warning letter to the resident on 31 July 2021 relating to the noise nuisance. The letter explained that it had recorded several instances of “extremely loud noises reaching up to 70 decibels” from her property. The landlord noted that antisocial noise is deemed to be a tenancy breach and asked the resident to reduce the noise to a more acceptable level. It also advised her to install rugs over her laminate flooring and refrain from using balls that would make loud thudding noises indoors.
The landlord replied to the resident’s 29 July 2021 email on 3 August 2021. It noted that it had not received any reports from the resident relating to noise nuisance since 2019. The landlord provided the resident with diary sheets to record noise nuisance and explained that once they had been completed, she would be placed on a waiting list to receive noise recording equipment.
The resident replied on 3 August 2021 to inform the landlord that she still wanted her complaint to be escalated. She noted that its previous email did not address the issue relating to smells, or the ASB reports she had made about abuse she had received from the neighbour since 2017.
The landlord wrote to the resident on 5 August 2021. It confirmed that a review of the complaint would be undertaken and advised the resident that due to a current backlog of cases that there may be a delay until it was assigned to a complaint-handler.
On 5 August 2021 the resident wrote to the landlord and provided a video of the neighbour outside her front door. The resident also enquired if the noise recording equipment caught the neighbour banging on the ceiling. The resident then explained that due to the national lockdown, her family was spending more time in the property and felt that this was being used against her.
The resident wrote again to the landlord on 11 August 2021 to report that the neighbour had been on the communal landing of her property laughing at her. The resident also informed the landlord that she was considering taking the matter further.
The landlord replied on 11 August 2021 and informed the resident that the reports she had made on 5 and 11 August 2021 has been passed on to its ASB team.
The landlord wrote to the resident on 18 August 2021 to confirm that the complaint had now been escalated and assigned to a complaint handler. It informed the resident that it aimed to provide a response by 10 September 2021.
The resident wrote to the landlord on 18 August 2021 and informed it that she had seen the neighbour outside her front door holding what she suspected was a bottle of urine. The resident wrote a further email giving an overview of the ASB she and her family had experienced. She informed the landlord that:
1. The neighbour banged the ceiling “violently and repeatedly”. The resident noted that due to the volume, other residents in the building may have also heard this.
2. She wanted to know why the neighbour did not receive a warning letter from the landlord in 2017 and that she was not made aware at the time that she could keep a noise diary and request to have noise recording equipment installed.
3. Her family had endured strong smells of urine and faeces since 2017. She believed that her family had been deliberately targeted and that the neighbour was responsible.
4. The neighbour smoked cigars in his property without proper ventilation, which came through the floorboards of her property. The landlord had previously warned the neighbour not to do this, but the behaviour had continued.
The landlord opened an ASB case on 18 August 2021 into the issues the resident had raised. It then wrote to her on 19 August 2021. It explained that it had attempted to call her to discuss the issues she had raised but had been unsuccessful. It then described the action plan it would follow to address the allegations, stating that it would:
1. Speak with the neighbour to discuss the noise reports from the resident.
2. Provide the resident with diary sheets to complete over a two-week period and also provide her with the contact details of the local authority’s noise team to discuss the issues further.
3. Monitor the ongoing situation and discuss the case with the local authority and/or the police if it escalates further.
On 8 September 2021 the resident informed the landlord that she had taken a video of the resident leaving dog faeces on their doorstep. She provided the video and photographs to the landlord. The landlord acknowledged the receipt of the evidence and informed the resident that it had been passed on to its ASB team.
The landlord called the resident and the neighbour on 9 September 2021 to discuss the allegations. The landlord’s notes of the call to the resident stated that it was informed by her that the video did not show the neighbour removing the faeces from the bag and she described the verbal harassment her family had experienced from the neighbour. The landlord’s notes of the call to the neighbour stated that they disputed the allegation and informed it that they had incorrectly placed shopping outside the wrong door and then moved it when they realised their mistake.
The landlord wrote to the resident on 10 September 2021 and informed her that it had not finished its investigation at stage two of the complaint and had extended its response time to 24 September 2021.
The landlord called the resident on 16 September 2021 to discuss the ASB case. The landlord’s notes of the call stated that the resident only wanted to talk about the warning letter sent to her on 31 July 2021 and refused to engage when it attempted to discuss the current open ASB case.
The landlord sent the stage two complaint response to the resident on 24 September 2021. It informed her that:
1. Following their telephone conversation on 14 July 2021, the landlord talked to the neighbour about the resident’s allegations of noise nuisance. The neighbour also made counter allegations of noise nuisance which, in line with its ASB policy, were also investigated.
2. Noise recordings were taken from the neighbour’s property, which recorded noise which was found to be “extremely intrusive or disturbing”. This resulted in the letter being sent to the resident on 31 July 2021 asking her to reduce the noise as antisocial noise was a tenancy breach.
3. In its stage one response, the resident was provided with diary sheets to complete. The landlord would then be able to make the decision as to whether to install noise recording equipment.
4. In her 18 August 2021 email, the resident raised issues relating to noise nuisance from the neighbour in 2017 and how this was investigated by the landlord. It explained that in line with its complaint policy, it would not investigate issues that occurred over six months from the complaint being raised, particularly in cases that were considerably outside the consideration period.
5. In relation to the events that occurred on 8 September 2021. Both the landlord and the police had spoken to the neighbour, who had denied that he left dog faeces outside the resident’s front door. The landlord had yet to receive any evidence to support the allegation.
6. It explained that for it to be able to take action against an alleged perpetrator it must have corroborating evidence, as it did before it wrote to the resident on 31 July 2021. In respect of the allegations of faeces being left at the door, neither the police or the landlord had been provided evidence that is both “substantial and effective” which would enable the landlord to take further action.
7. It noted that while it appreciated that the resident had used her CCTV camera to record incidents of ASB, under the tenancy rules it was not permitted to install and record other residents from CCTV equipment.
8. It was satisfied that it had correctly followed its ASB polices in investigating the resident’s reports and in sending the 31 July 2021 warning letter. It was also satisfied that it was appropriate that it had not taken any further action relating to faeces being left outside the resident’s front door as both the landlord and police had not as yet received any evidence that identified the perpetrator.
The landlord concluded the response by informing the resident that she had exhausted its internal complaints process and advised her on the steps to take to bring her case to this Service should she remain dissatisfied.
On 14 October 2021 the landlord wrote to the resident and informed her that it had closed the ASB Case. The landlord explained that it had provided diary sheets to the resident on 19 August 2021 but had not received any back and therefore it could not progress the case any further. The landlord provided additional diary sheets to the resident and stated that it would re-open the case if further incidents were reported.
During correspondence with this Service in October and November 2021, the resident described the outstanding issues to her complaint as she was dissatisfied with how her reports of ASB and reports of sewage smells outside the front door had been handled by the landlord. She also described her dissatisfaction with the conduct of the staff members who dealt with her ASB reports in 2017.
The landlord’s emails with the resident in November ask them whether anyone from the repair service had investigated the smell issue. It is not clear why the landlord did not have this information itself. The resident’s response stated that they were not aware of a plumber or surveyor investigating the smells (as the landlord had offered).
As a resolution to the case, the resident requested that the 31 July 2021 warning letter was removed from her casefile, an injunction was served on the neighbour, and for the landlord to rehouse her family in a suitable property.

Assessment and findings

How the landlord handled the resident’s reports of ASB and counter allegations of ASB made against her

It is outside the role of the Ombudsman to establish whether someone has or has not committed ASB; rather the Ombudsman’s role is to establish whether the landlord’s response to the reports it received were in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
It is reasonable for landlords to base their service on the information it is receiving from residents. Therefore, it was reasonable there was no open ASB case prior to the formal complaint in July 2021, as there are no specific reports of ASB on file in the period before this. It was reasonable for the earlier reports from 2017-2019 to be considered historic context, as the resident could have raised a formal complaint at the time if they were dissatisfied with how they were handled.
The landlord did not immediately open and ASB case. Its policy states only excessive noise will be investigated as ASB. Therefore, it responded to the formal complaint and offered to speak to the resident about the reported banging on their ceiling / the resident’s floor. It also provided diary sheets so that the landlord could then consider whether the noise merited further action. This was in accordance with the landlord’s policy.
From when the ASB case was opened on 18 August 2021 to when it was closed on 14 October 2021, the resident did not submit any diary sheets. For the landlord to take formal action against an alleged perpetrator of noise nuisance, it requires sufficient supporting evidence that the behaviour is causing significant nuisance and/or harm to others and has occurred over a prolonged of time, as described in its ASB policy above. Furthermore, the landlord cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as being statutory noise nuisance, then both the landlord and the local authority’s environmental health department may be able to take formal action against the perpetrator, such as by issuing a tenancy warning or an acceptable behaviour agreement.
However, as the landlord had not received any evidence from the resident despite providing dairy sheets on several occasions, it was reasonable for it to take the decision to close the ASB case. It confirmed the case would be reopened if the resident made new reports.
When the resident informed the landlord on 8 September 2021 that she had video and photographs of the neighbour leaving dog faeces outside the front door, the landlord spoke to both the resident and the neighbour the next day and the police were informed of the incident. This is in line with the landlord’s ASB policy for incidents categorised as high risk.
The resident has stated her dissatisfaction that the landlord did not take any action against the neighbour in relation to the incident reported on 8 September 2021. Landlords can only take formal action against tenants for ASB such as if there is sufficient evidence to show that formal action is appropriate. In order to secure an injunction or eviction, the landlord would have to go to court, and it would be expected to show the court that the ASB was severe and persistent and (except in the most extreme cases) reasonable efforts had been made to resolve the issues informally (mediation, tenancy warnings, acceptable behaviour orders etc.) before the landlord pursued court action. In this context, it was reasonable for the landlord not to have taken action due to the lack of evidence.
Landlords are expected to be fair, according to the Ombudsman’s Dispute Resolution Principles. A fair service comes from an evidence-based approach. This is particularly the case when an incident involves two of its residents, as it has an obligation to both sets of residents to ensure any action is based on appropriate evidence. The police concluded there was insufficient evidence for it to take action. Given this, and given the resident stated the video did not show the neighbour remove faeces from the bag, it was reasonable for the landlord to explain it did not have sufficient independent corroborating evidence at that time.
The resident has requested that the warning letter sent on 31 July 2021 be removed from her casefile and disputed its contents. As part of its evidence to the Ombudsman, the landlord provided the noise assessment report that the letter was based on.
The report was based on recordings taken between 8 and 15 July 2021. The report found seven occasions on 12,13 and 14 July 2021 when noise from the resident’s property was deemed excessive and reached 70 decibels. The report described the noise as “extremely loud repeated thumping on the floor above, peaking at 70dB. Sounds like someone is bouncing a very heavy ball on the floor above, or thumping the floor with a heavy item, it is extremely intrusive and disturbing”.
Therefore, it was reasonable in the circumstances for the landlord to write to the resident on 31 July 2021 to request that she reduce the level of noise from the property and advise her on the possible consequences if the noise nuisance continued.
It is important to note that no further action was taken by the landlord. The landlord has an obligation to provide advice (including through a warning) to residents about their behaviour when there is appropriate evidence available.
In the stage one response, the landlord informed the resident that it would arrange a plumber to visit the property to investigate the sewage smells she had reported.
The landlord’s emails with the resident in November 2021 confirm that it was not aware whether its plumber had investigated the smell. There is no evidence of a visit or any update to the resident. The resident stated no one had attended.
The smell issue was overtaken by the ASB case in that the resident focused their reports on the fact they believe the neighbour is responsible. However, the failure to arrange the plumber’s visit as offered was a failure of the landlord’s repair service.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of how it handled the resident’s reports of ASB and counter allegations of ASB made against her.

Orders

As a result of the determination above, the landlord has been ordered to within 4 weeks:
1. Pay the resident £50 to acknowledge the inconvenience of the delayed plumber’s investigation.
2. Agree a date for a plumber to investigate the reported smells, if a visit has not already been completed. The landlord should then provide an update to the resident about the plumber’s conclusion.