Rotherham Metropolitan Borough Council (202113082)

REPORT

COMPLAINT 202113082

Rotherham Metropolitan Borough Council

27 May 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

1. The complaint is about the landlord’s handling of the resident’s reports of noise nuisance from a neighbour.

Background

2. The resident is a secure tenant of the landlord. The property is a flat in a block of flats.
3. The resident initially made a report of noise nuisance on 19 April 2018, stating that his neighbour in the flat above was slamming doors and “stamping”. The landlord promptly opened an ASB (anti-social behaviour) case. The resident regularly made similar reports over several years and the landlord took steps to investigate but was unable to find evidence of statutory noise nuisance.
4. Following a number of investigations, the landlord signposted the resident to its complaint service on 19 October 2020, if he remained dissatisfied with its handling of his ASB reports. In his complaint, the resident stated that he wanted the landlord to take action to stop the noise. He also disputed the landlord’s conclusion that the noise was everyday living noise rather than noise nuisance.
5. In its final response to the complaint, the landlord outlined the actions it had taken, which included installing noise monitoring equipment and signposting the resident to its relevant services to report noise as it was happening. It had sent warning letters to the resident’s neighbour and they had confirmed they would try to minimise the noise. It had also liaised with the neighbour’s support services. It determined that the noise was general living noise so advised it was unable to take tenancy action against the neighbour. It concluded that it had acted in line with its ASB policies and the noise had been assessed by appropriately qualified staff members.
6. In the resident’s complaint to this Service, he said he remained dissatisfied that the reported noise nuisance was still ongoing. He added that the noise had impacted his sleep and as a result he had lost over £3000 in wages due to not being able to attend work because of illness caused by the noise. He also raised concerns regarding his neighbour’s mental health care.

Assessment and findings

7. Under paragraph 39 (e) of the Ombudsman Scheme, the Ombudsman cannot consider complaints that were not brought to the attention of the member (landlord) as a formal complaint within a reasonable period which would normally be within six months of the matters arising. Although historical incidents have been included to provide contextual background to the current complaint, this investigation will focus on the landlord’s actions in the most recent ASB case which was raised on 21 February 2020. We are also unable to consider the resident’s reports of loss of income, as there is no evidence to suggest that he raised this as part of his complaint to the landlord. Under paragraph 39 (a) of the Ombudsman scheme, we cannot consider complaints that have not completed the landlord’s internal complaint procedure. If the resident wishes to pursue this matter further, he can raise it as a new complaint to the landlord.
8. It is outside the Ombudsman’s remit to determine whether someone is guilty of ASB, including noise nuisance. Rather, the Ombudsman’s role is to consider the actions taken by the landlord to investigate and respond to the resident’s reports of noise from a neighbouring property. The Ombudsman considers whether the landlord has acted reasonably, proportionately and in line with its policies and procedures.
9. On 19 February 2020, the resident reported continuous banging of internal doors, slamming of the toilet seat and “stomping and marching” from the flat above. The landlord’s ASB policy states that excessive noise, including banging, consists of ASB, so as such it was appropriate for the landlord to investigate the resident’s reports. The landlord responded appropriately by promptly opening an ASB case on 21 February 2020.
10. In order to take formal action against a tenant for ASB, such as an injunction or eviction, the landlord must obtain extensive evidence of the reported behaviour, so it was appropriate that the landlord pursued multiple different methods of investigating the reports of noise nuisance and gathering evidence. It provided the resident with diary sheets to document the noise, signposted him to its “ring when happening” service and gave him access to its out of hours noise service. The resident initially declined the installation of noise monitoring equipment but it was later installed on 16 July 2020. In previous ASB cases, the landlord had attended the resident’s property in order to assess the noise, however at the time of the most recent ASB case, the landlord had explained to the resident it was not entering properties to witness noise, due to COVID-19 restrictions limiting contact between households. Despite this, it had advised if the resident reported noise, it would try and witness it from outside the property. Following the easing of restrictions, the landlord attended the property on two occasions to witness the noise for several hours, to obtain a reliable account of the noise.
11. In the landlord’s analysis of the noise from the monitoring equipment, it noted the noise was sporadic and deemed it to be typical household noise. While it did note numerous bangs from the flat above, it was not determined that the neighbour in the flat above was slamming the doors. When the resident disputed the findings, it was appropriate that the landlord explained to the resident the noise recorded by the monitoring equipment was assessed by professionals, in order to assure him that its investigation had followed the correct procedures. The landlord had taken reasonable steps to assess the resident’s noise reports, but ultimately, as it was unable to confirm that noise nuisance was evident, it was reasonable for it to close the ASB case. It was appropriate that upon closing the case, the landlord signposted the resident to its complaints process in order to proceed, particularly as the landlord had thoroughly investigated the resident’s reports on several occasions since it was initially reported in 2018 and was unable to identify any noise nuisance.
12. As the landlord did not have sufficient evidence of the noise, it was limited in the actions it could take. It explained to the resident that it was unable to pursue legal action as it had not obtained evidence of statutory noise nuisance. The landlord had fitted soft close doors and a soft close toilet seat in the neighbour’s property in order to try and mitigate some of the impact of the noise, as a result of the resident’s earlier reports. It had also previously written to the neighbour, visited them and advised them to be mindful of noise. Given that the noise reports had been ongoing for several years, it would not necessarily have been appropriate for the landlord to discuss the issue each time with the neighbour, if it was unable to establish further evidence of noise nuisance. The landlord had previously offered mediation to the resident; however, it was unable to take place so it offered one–one conflict coaching sessions as an alternative. Although the distress that the reported noise has caused the resident is acknowledged, the landlord has taken appropriate and proportionate actions to the noise reported and it has acted in line with its ASB policy. As the landlord was unable to take further action, it was reasonable that it explained how the resident could pursue his own private action.
13. The resident has raised concerns with his neighbour’s mental health. It would not have been appropriate for the landlord to provide information regarding this due to data protection. However, the landlord has provided evidence to this Service that it has taken appropriate steps to liaise with the neighbour’s support workers; this was also explained to the resident in the landlord’s stage one complaint response.
14. Overall, the landlord’s actions were proportionate to the reports made by the resident, based on the availability of evidence. It took reasonable steps to investigate the reports of noise, but ultimately as it was unable to find evidence of noise nuisance, it could not take further action.

Determination

15. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s reports of noise nuisance by a neighbour.