Sandwell Metropolitan Borough Council (201906786)

REPORT

COMPLAINT 201906786

Sandwell Metropolitan Borough Council

24 March 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 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:
1. Response to the resident’s reports of antisocial behaviour (ASB).
2. Complaint handling.

Background and summary of events

Background

The resident is a leaseholder and the landlord is the freeholder. The landlord is also the local authority. The property is a ground-floor flat. The alleged perpetrator (the neighbour) resides in the property above the resident’s.
The landlord’s statement of policy on ASB aims to:
1. Act promptly and in line with its procedures when ASB is reported.
2. Ensure that the reporting process is clear and easy to access, and that residents are kept informed of progress on a case.
3. Carry out risk assessments on victims, underpinning the victim-centred approach, and make timely contact with victims and, where appropriate, with alleged perpetrators to determine the best outcome.
4. Take action against perpetrators where appropriate or attempt to change their behaviours.
This policy states that the landlord aims to make initial contact with the victim within five working days when the risk is not considered high, such as noise‑related issues. This also confirms that the landlord will not generally consider normal domestic everyday noise, occurring at reasonable times and not for long periods, as ASB.
All cases of ASB will be reviewed monthly, and complainants will be kept up to date on the progress of their case.
The landlord’s complaints procedure has a two-stage process and sets out its purpose as being to put things right what has gone wrong and then learn from it. At stage one, the landlord aims to provide a response within ten working days, which can be extended up to 20 working days where there is reason to do so. At stage two, the landlord aims to provide its response within ten working days, and this can be extended up to 20 working days for complex cases or where there is reason to extend.

Summary of Events

On 5 March 2019 the resident reported an incident where he alleged that his neighbour in the property above his own had been verbally abusive to him after he had posted a letter to the neighbour about noise coming from her washing machine. The resident referenced a previous ASB case in which environmental health team had devised a compromise agreement, whereby rubber feet would be placed on the base of the washing machine and the washing machine should be used between 8am and 9pm.
The landlord interviewed the resident on 11 March 2019 and he asked it to investigate the alleged noise nuisance (slamming doors late at night and the use of the washing machine). The landlord carried out a risk assessment, which determined the overall risk to be medium.
The landlord conducted an interview with the neighbour on 13 March 2019 in which the neighbour denied all allegations of noise nuisance.
The landlord visited the neighbour’s property again on 15 March 2019 and determined that the washing machine did not seem loud, even during a spin cycle, and there was no excessive vibration. The landlord also assessed the doors and raised an order for these to be inspected. The landlord advised the resident to capture evidence relating to ASB via a noise app.
On 20 March 2019 the resident emailed the landlord to reiterate that the environmental health team had placed rubber feet on the washing machine following a previous ASB case in 2014 and an agreement was in place that the washing machine should not be used after 9pm. He said this was determined after witnessing the vibrations in his property. The resident asked the landlord if this agreement had been reiterated to the neighbour. He confirmed that there had been no further instances of washing machine use post-midnight, and that he would download the noise app.
A note on the landlord’s system, dated 1 April 2019, stated that a repair work order had been logged to inspect the neighbour’s doors, with remedial work to be undertaken.
After receiving further complaints of noise nuisance via the noise app on 8 May 2019, the landlord arranged a further meeting with the neighbour scheduled for 24 May 2019. However, she did not attend; the landlord made the resident aware of this non-attendance and of its intention to rearrange.
On 21 June 2019 the resident requested an improvement on the agreement made by the environmental health team, asserting that it was unfair to wake him before 9am on weekends.
In an email trail, dated 22 July 2019, the landlord apologised for the delay in providing an update to the resident and it confirmed that it had received his latest recordings, from which it noted that the “nuisance had continued”. The resident’s response was to question the landlord’s inaction over the past two months and request how to escalate his complaint.
On 29 July 2019 the landlord conducted an interview with the neighbour who denied the allegations of intentional noise nuisance. The neighbour also denied that an agreement was in place following the environmental health team’s involvement previously.
On 9 August 2019 the landlord arranged a meeting with the resident for 23 August 2019 to discuss the next steps following the neighbour’s denial of the intentional noise disturbance and the lack of evidence of an environmental health agreement. He responded by requesting action be taken in regard to the washing machine and the door slamming. The resident advised that the landlord’s delays and inaction had caused “untold stress”.
Later that day, the resident emailed the landlord and requested that a formal complaint be logged on the basis that he had asked for the reinstatement of the previous environmental health agreement yet it had failed to do so. He asserted that it was thereby discriminating against him, despite him providing “months of evidence”. The resident added that he had asked the landlord previously to address the neighbour’s door slamming but no action had been taken. He therefore asked if it had lost the environmental health report that had resulted from his previous complaint in 2014.
On 21 August 2019 the resident cancelled the meeting scheduled for 23 August 2019, because he stated that, at that stage, it would be unproductive as he had instead escalated the complaint and was also waiting to hear back from a councillor/MP.
On 22 August 2019 the landlord logged the complaint at stage one of its complaints procedure. In the resident’s email of the same date, he asked why the case had been “dragged out”, why there had been poor communication, and who had the power to put in place a more accountable system.
In a letter to the resident, dated 30 August 2019, the landlord confirmed that the complaint had been allocated for investigation and he would be contacted shortly to discuss the complaint in more detail.
On 11 September 2019 the landlord spoke with the resident as part of its investigation. At the time, the resident had reported that there had been an improvement in the noise nuisance, and it was agreed by both parties that no further action would be taken regarding mediation and further visits to his neighbour.
On 13 September 2019, having been provided with the landlord’s ASB policy on 11 September 2019, the resident emailed the landlord and said it had failed to act in accordance with its policy. He also provided it with a copy of a previous Ombudsman’s report from 2014, in which he highlighted mistakes it made that were evident in this current case. The resident said that he had provided over 200 recordings between March and September 2019 and there was still no resolution. The resident also asked the landlord to acknowledge that the use of the washing machine spin cycle after hours was likely to cause him disturbance.
In the landlord’s stage one complaint response of 19 September 2019, it concluded that the resident’s ASB case had been managed broadly in line with its procedures, confirming that it had carried out regular reviews of the case and had kept him up to date with any progress. It did, however, acknowledge that there were times when it had failed to meet the monthly target for updates. As such, the landlord partially upheld the complaint. It agreed that more frequent contact, on a monthly basis, would be implemented.
Furthermore, the landlord stated that:
1. In this case, the use of the washing machine did not constitute an actionable breach, explaining that there were no set times, in law, for the accepted use of household appliances.
2. The neighbour had been interviewed but was not willing to re-enter into an agreement with conditions which were stated to have been made several years ago. It said it was unable to insist on the reinstatement of a voluntary agreement; however, it said that this would be re-visited, along with mediation, should the problems reoccur.
3. It had taken action that was proportionate to the reports received and had done so in a timely manner.
Finally, regarding the resident’s request to expedite the resolution of his case, the landlord confirmed that, during its last conversation with him, he had advised that matters had improved and the washing machine had not been used late at night for the past month. The landlord said it had taken reasonable steps to resolve matters and had concluded that the neighbour’s behaviour was not intentional; nor did it find that its response amounted to acts of bullying or discrimination. That concluded the landlord’s stage one complaint response.
On 21 October 2019 the resident requested that his complaint be escalated to stage two of the complaints process, on the basis that he still did not know what the proper procedures were and how they would be improved, that the landlord had overturned the environmental team’s findings (that the heavy-duty spin-cycle did cause vibration in his property that was likely to interfere with sleep, reading etc,), and that he still felt “bullied” by the landlord.
In a letter to the resident dated 21 October 2019, the landlord proposed to have a meeting with him on 7 November 2019.
On 2 December 2019 a meeting between the resident and the landlord took place. The concerns raised by the resident were:
1. He was unsure of the procedure and it was not clear how frequently the landlord should keep him updated.
2. It was not clear from the noise app how frequently the recordings he had submitted were assessed and he was unclear of the process.
3. The stage one response did not make sense and made no reference to the previous Housing Ombudsman investigation. The resident felt that these findings had been ignored and therefore asked whether the Ombudsman’s report was available and whether the landlord had read the report.
4. The resident stated that the landlord had failed to accept the findings of the environmental health team and acknowledge that a heavy-duty spin cycle did cause vibration in the property, which was interfering with his sleep. The resident asked the landlord if the findings were available and if the landlord was aware of the recommendations.
In the landlord’s stage two complaint response of 24 January 2020, the landlord apologised for the initial delay in the allocation of the complaint. It went on to address the additional concerns raised by the resident, following the meeting on 2 December 2019:
1. The landlord explained that, in accordance with its ASB procedure, it should review all ongoing cases every month and update the complainant of the outcome of the review via letter within five working days. It acknowledged that it had failed to keep the resident updated as regularly as expected, and this element of the complaint was consequently upheld at stage one of the complaint process.
2. The landlord explained that the monitoring of noise-app recordings and the action taken was solely dependent on the investigating officer as no formal timescales were set. It confirmed that it had reviewed the 226 recordings the resident had submitted and discussed the recordings with the neighbour concerned. As she had provided a valid explanation of the noise, no breach of tenancy letters were issued as it did not feel it was proportionate to do so in the circumstances. Furthermore, the landlord advised that to understand the noise levels, it had visited the neighbour’s property and witnessed minimal vibration and noise. Therefore, it concluded that any noise was exacerbated by the design of the property which the neighbour had no control over. The landlord also noted that dampeners where in situ during the visit, which it said supported its findings of minimal vibration and noise during the spin cycle.
3. The landlord accepted that the previous Ombudsman report of 2014 provided an insight to the resident’s previous experience with it and the failings at the time.
4. The landlord concluded that, after listening to the spin cycle, the noise generated could be more significant than a lighter load, and that the level of sound could be capable of causing a disturbance such that it might disrupt any ‘quiet’ activities, such as reading, working, sleeping etc. However, it clarified that the normal use of a domestic property cannot result in statutory nuisance without there being some element of unreasonable behaviour of which there was none in this situation. What is more, there was no mention of an agreement between the resident and the neighbour in relation to acceptable hours to use a washing machine and this was clearly outlined in the stage one response. The landlord accepted that it did not have this information available but determined that the use of the washing machine did not amount to any actionable breach of tenancy.
In conclusion, the landlord said that it was evident that it had broadly followed its ASB processes; however, it accepted that it could have been clearer in its communication and ensured that any questions the resident had were answered. While it acknowledged that the Ombudsman report from 2014 and the findings of the environmental health team were not fully considered by it in this investigation, it was satisfied that the matter was investigated and actioned appropriately. The landlord agreed that it would have considered it good practice to seek out the findings and recommendations of previous reports to ensure that it had acted appropriately and gained valuable insight to the resident’s previous experiences.
On 9 March 2020 the resident contacted to the landlord to request an update on his stage two complaint response, as he said he had not received this.
On 24 June and 31 July 2020, following contact from the resident, this Service contacted the landlord to ask it to provide the resident with an update on his case.
On 23 September 2020 this Service provided the resident with a copy of the stage two complaint response, which the landlord had provided on 18 August 2020. The resident replied the same day to advise that he was not happy with the landlord’s response because:
1. He still did not know what the landlord’s ASB procedure was and thereby unable to assess whether the landlord had followed this. He was unsure of timeframes and how to report an issue, which he said had caused him additional stress and uncertainty concerning how to make reports and what to expect in future.
2. The landlord did not investigate how the noise had impacted him.
3. The landlord had not learnt from the previous findings from the Ombudsman report of 2014.
4. He had requested the stage two complaint response in March 2020, yet he had only just received it.

Assessment and findings

The role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Our role is to establish whether the landlord’s response to the resident’s reports of ASB were in line with its legal and policy obligations, and whether its response was fair in all the circumstances of the case.
In addition, it is noted that the resident has stated that he considers that the issue has exacerbated his medical conditions. However, it is beyond the expertise of this Service to make a determination on whether there was a direct link between the alleged noise nuisance and the resident’s medical condition. The resident therefore may wish to seek independent advice on making a personal injury claim if he considers that his health has been affected by any action or lack thereof by the landlord. Nevertheless, this investigation has taken into consideration the general distress and inconvenience which the situation has caused the resident.
This investigation will focus on the events from March 2019, when the resident re-started reporting ASB to the landlord. We note that there were reports in 2018 but that the case was closed at that time as noise monitoring equipment did not find evidence of ASB.

The landlord’s response to the resident’s reports of ASB

In this case, it is evident that the situation was distressing for the resident and there remained a dispute between the resident and the landlord regarding whether the landlord responded appropriately to his reports of ASB.
Following the resident’s initial report of ASB in March 2019, the landlord carried out a risk assessment with him and conducted an interview with the neighbour, as per its policy obligations (paragraph 3). Moreover, the landlord carried out an investigation which determined that the noise from the washing machine was not deemed to be intentional (paragraph 26). Mediation, too, was offered to both parties, but was not taken up (paragraph 22). The landlord also discussed introducing a voluntary contract with the neighbour (paragraph 25), it confirmed that the rubber feet were still in position on the washing machine (paragraph 30), and it undertook an inspection of the neighbour’s doors as well as remedial action (paragraphs 10 and 12).
Furthermore, the resident was provided the details for the noise app in March 2019 so he could support his position (paragraph 10), which, despite the numerous recordings submitted, did not establish that the noise was excessive and thereby was not considered as statutory noise nuisance (paragraph 30). This evidences that the landlord’s response was proportionate in the circumstances, and that it took appropriate action in line with its policy.
It was appropriate that the landlord did not issue formal tenancy warnings to the neighbour as the noise was classed as everyday household noise and there was no evidence that such noise was intentional.
Regarding the Ombudsman’s report of 2014 and the environmental health agreement, the landlord would not be expected to keep records dating back that far. Furthermore, it was a reasonable for the landlord to base its investigation of the reported noise on the current circumstances.
That said, the landlord acted appropriately by speaking with the neighbour, who denied the existence of any previous agreement, and contacting the environmental health team who also did not mention an agreement in relation to the acceptable hours during which to use the washing machine. Ultimately, the landlord would not have been able to enforce what was, essentially, a voluntary agreement.
It is apparent that there were failures identified by the landlord that demonstrated that it could have provided a better customer experience for the resident and potentially avoided the case escalating for as long as it did. The landlord acknowledged its failure to provide more regular updates to the resident, as stipulated in its ASB policy (paragraph 24) whereby the case should be reviewed monthly and the complainant kept updated on the progress of their complaint.
The resident was often pursuing a response from the landlord rather than the landlord proactively updating him, which, as well as being time consuming, was likely to have exacerbated the resident’s distress and inconvenience. This was particularly apparent in consideration of the volume of reports of noise recordings submitted via the noise app during the period between April and September 2019.
Where reports of this nature are provided on a consistent basis over a period of time and are accompanied with commentary about how this was affecting the resident’s health, it would have been reasonable for the landlord to provide more regular updates to the resident, even if it was only to inform him that the recordings did not constitute noise nuisance.
The landlord explained that the noise recordings were monitored solely by the investigating officer and no timescales were set (paragraph 30). That coupled with the landlord’s lack of regular updates to the resident meant he became more disillusioned with the landlord’s procedure regarding the noise app.
There were also delays by the landlord in taking action following receipt of the noise recording. Following the recordings submitted in May 2019, the landlord did not arrange a meeting with the neighbour until 29 July 2019 (paragraphs 13 to 16). This was not reasonable, while some delays could be attributed to the neighbour, for the most part, they were due to the landlord’s inaction.
The landlord’s communication with the resident about the noise was not always consistent. In its email to him dated 22 July 2019 (paragraph 15) it suggested there was noise nuisance and therefore implied that there was the potential for formal action to be taken. This was not appropriate and raised the resident’s expectations that some action would be taken against the neighbour.
In conclusion there was service failure by the landlord in the way it responded to the resident’s reports of noise nuisance.
When a landlord is at fault, it needs to put things right by acknowledging its mistakes, apologising for them, explaining why things went wrong, and what it will do to prevent the same mistake happening again. This is based on the Ombudsman’s Dispute Resolution Principles: to be fair, put things right and learn from outcomes. The Ombudsman’s role is to consider whether the redress offered by the landlord in respect of its acknowledged failings in handling the resident’s complaint put things right and resolved the resident’s complaint satisfactorily in the circumstances.
In this instance, the landlord has acknowledged its failings in communication and committed to making improvements with its communication moving forward, ensuring communication is timely and in accordance with its ASB policy (paragraph 24). However, in light of the delays in providing the resident with updates on his case, the overall poor communication, and the time and effort spent pursuing a response from the landlord, it would have been reasonable for the landlord to have considered compensation to put matters right for the resident. This Service considers that the sum of £150 would be appropriate redress. This sum has been calculated in accordance with the Ombudsman’s Remedies Guidance in which there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant.

Complaints handling

The landlord did not appropriately by not adhering to the prescribed timeframes set out in its complaint procedure (paragraph 6). The complaint responses at stages one and two took 28 and 66 working days respectively. Some, but not all of that delay, can be attributed to the landlord trying to meet with the resident to discuss matters at stage one (paragraphs 18 and 19) and then speaking with him at stage two (paragraph 29).
The landlord apologised for the delay in its stage two complaint response. However, the length of the delay, and the inconvenience caused should have warranted compensation to acknowledge its failings in this regard.
Furthermore, there was a further complaint handling failing whereby the resident did not receive the landlord’s final complaint response until September 2020.
To put matters right, the landlord should pay compensation of £100 for the aforementioned delays. This award takes into consideration the impact on the resident of the time and trouble pursuing a response, the overall delays, and the distress and inconvenience caused. This is also calculated in accordance with the Ombudsman’s Remedies Guidance where there has been service failure which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of:
1. Its response to the resident’s reports of ASB.
2. Its complaint handling.

Reasons

The landlord response to the reports of ASB was appropriate and in line with its policy obligations. However, there were failures in relation to its communication with the resident when investigating this matter.
The landlord’s complaint handling was not appropriate as it did not adhere to the timescales set out in its complaint procedures.

Orders and recommendations

Orders

The landlord shall, within four weeks of the date of this report, take the following action:
1. Pay the resident compensation of £150 for the inconvenience and distress caused by the failings identified in this report relating to its communication with him relating to ASB.
2. Pay the resident £100 in respect of the inconvenience caused to him by its complaint handling failings.

Recommendations

It is recommended that the landlord take the following action:
1. Conduct a review of this case and highlight any learning outcomes that would assist it in future cases of this nature.
2. Review its process of submitting noise recordings, providing a clear procedure on how these will be assessed and include timescales to provide a response.
3. Review its complaint handling procedures and carry out any necessary staff training to ensure that complaints are responded to within appropriate timescales.