Southwark Council (202311558)

REPORT

COMPLAINT 202311558

Southwark Council

22 January 2025

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 the landlord’s response to the resident’s request:
1. For noise monitoring equipment to be installed.
2. To be referred to a professional witness service.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident has a secure tenancy with the landlord which is a local authority. The tenancy commenced on 12 November 2012. The property is a 1 bedroom flat on the fourth floor. The landlord has not confirmed whether it holds details of any vulnerabilities for the resident on its records.
The Ombudsman made a previous determination (case reference 202102017) on the landlord’s response to the resident’s reports of antisocial behaviour (ASB) on 26 July 2022. The orders in the case included that the landlord should write to the resident to confirm whether it would carry out visits to his property to witness noise and/or install noise monitoring equipment.
On 11 August 2022 the landlord wrote to the resident saying it would consider installing noise recording equipment if the noise was ongoing. Due to the counter allegations in the case the option to refer to mediation was still available. Use of a professional witness service could also be explored should mediation fail.
On 18 August 2022 the resident wrote to the landlord to ask when noise equipment would be installed and to request further information on its professional witness service (witness service).
The landlord installed noise equipment. On 28 October 2022 it emailed the resident to advise that on 19 October it had listened to the recordings. It concluded there was no evidence of statutory nuisance. It said that on that basis, it would refer the case to its witness service.
The referral was completed on 24 November 2022. However, the witness service failed to contact the resident who chased the landlord for a response. The evidence shows that the service visited the location of the resident’s property on 31 March and 2 April 2023 however, there was no evidence of any ASB.
The resident made a stage 1 complaint on 31 January 2023. He said he had asked for a copy of the noise recordings but the landlord failed to provide them. He was also dissatisfied because the landlord had failed to provide him with contact details for the witness service and they had not contacted him.
On 21 February 2023 the landlord provided its stage 1 complaint response, as follows:
1. It apologised that the service provided to the resident in respect of the witness service did not meet its usual standards. It upheld that aspect of the complaint.
2. On 28 October 2022 the landlord offered to refer the case to its witness service. The resident agreed to be referred on 2 November 2022 however, on 21 November 2022 the resident advised he had not been contacted.
3. On 21 December 2022 the landlord advised the resident that it had spoken to the manager of the witness service who said they were dealing with a backlog and would contact him by the end of that week. It continued to experience issues with that provider and made arrangements with a new service. It said the case would be prioritised when the new contract started on 1 March 2023.
4. It was unable to uphold the second part of the complaint as it gave feedback following receipt of the recordings. On 11 November 2022 the resident was advised he could make a request to the noise team for evidence that the noise was assessed in full.
5. On 28 November 2022 it emailed the resident to advise on the outcome of the noise recordings.

The date that the resident requested to escalate his complaint and his reasons for doing so are unclear. However, on 22 February 2023 the landlord emailed the resident to acknowledge his request to escalate his complaint.
The landlord issued it stage 2 complaint response on 3 May 2023, the main points being:
1. It had attempted to contact the resident on 14 and 17 April to discuss the complaint.
2. It installed noise equipment in October 2022. It was satisfied it had complied with orders set out in the previous Ombudsman determination.
3. The noise recordings were assessed in the presence of its noise and nuisance team on 19 October 2022. There were no grounds to establish statutory nuisance. It advised the resident to make a freedom of information (FOI) request to obtain a copy of the recordings.
4. Its witness service had visited twice and no noise was witnessed on either occasion. It would consider further visits if required.
5. It partially upheld the complaint because although it was right not to provide a copy of the recordings it should have provided information on the FOI process.
The resident contacted this Service on 3 July 2023 to express his dissatisfaction that the landlord did not “properly” investigate his complaint and did not review the noise recordings he made. He also disputed that the visits by the witness service took place. The complaint became one we could investigate on 7 May 2024.

Assessment and findings

Landlord’s obligations, policies and procedures.

The resident’s tenancy agreement says: 10f) you must keep noise, however caused, at a level which does not disturb other people.
The landlord’s antisocial behaviour policy says:
1. Its witness service provides an independent operative to attend an address to listen for antisocial behaviour of any kind. The operative attends the address and remains there for a period of time sufficient to witness any ASB.
2. It can use warning letters to resolve issues at an early stage, including reports of noise.
Its complaints policy says it tries to resolve issues around resident’s dissatisfaction during its “early resolution” phase. If residents remain dissatisfied they can make a complaint through its complaints process. It will issue stage 1 complaint responses within 15 Working days and stage 2 complaint responses within 25 working days.
Its compensation policy says it will consider paying compensation for delay and distress.

The complaint is about the landlord’s response to the resident’s request for noise monitoring equipment to be installed.

On 11 August 2022 the landlord wrote to the resident to confirm it would consider installing noise equipment if the noise was ongoing. On 18 August the resident emailed the landlord to request further details on installing noise equipment.
The landlord emailed the resident on 2 September 2022 in which it appropriately apologised for the delay in its response. It confirmed it had submitted a request to the noise and nuisance team and was waiting for a response.
In an internal email dated 14 September 2022 the landlord confirmed it would let the resident know that he would not be able to make use of noise equipment and professional witness services at the same time. It did so in its email to the resident of 28 September.
On 21 October 2022 the resident emailed the landlord to enquire about the outcome of its assessment of the noise recordings. He believed they would prove statutory noise nuisance and asked the landlord to take appropriate action.
The landlord emailed the resident on 28 October 2022 to advise that it had listened to the recordings on 19 October in the presence of the noise and nuisance team. It concluded that there was no evidence of statutory noise nuisance and it would therefore not be serving a noise abatement notice on his neighbour.
Its communication with the resident failed to set out the details of its investigation including reference to dates and times of recordings. Nor has this investigation been provided with a file note setting out the details.
It failed to record its observations in relation to the recordings such as whether they provided evidence of noise of any type or level which was inappropriate. For example, had there been evidence of some noise that did not meet the threshold for statutory noise nuisance it might have been appropriate for the landlord to have considered taking action for breach of tenancy in line with its ASB policy. The landlord did not demonstrate that it had undertaken a thorough and detailed assessment which was inappropriate.
This caused distress to the resident which was set out in his email to the landlord on 7 December 2022. He asked for some kind of proof that it had listened to the recordings. In its email to the resident of 8 December the landlord failed to provide this. Instead, it reiterated the content of its email dated 28 October. Its response lacked transparency causing further distress to the resident and eroding his trust in the landlord.
On 2 November 2022 the resident emailed the landlord to request a copy of the recordings. It replied on 11 November to say it could not share the recordings with him and advised him to contact the noise and nuisance team.
The landlord’s stage 2 complaint response of 3 May 2023 advised the resident to submit a FOI request to obtain the recordings. It acknowledged that this advice should have been given to him when he first made his request. However, it did not consider the distress and inconvenience the error caused. Furthermore, it did not consider how it might put this right in line with its compensation policy which was inappropriate.
The landlord’s failure amounts to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £100 compensation in line with the Ombudsman’s remedies guidance.

The complaint is about the landlord’s response to the resident’s request to be referred to a professional witness service.

On 11 August 2022 the landlord wrote to the resident to confirm it could refer him to its witness service should mediation prove unsuccessful. On 18 August the resident emailed the landlord to request further details about the witness service.
The landlord emailed the resident on 2 September 2022 in which it appropriately apologised for the delay in its response. It provided details, not seen by this investigation, of its witness service.
Its email to the resident of 28 September 2022 acknowledged that he was dissatisfied with the information it had provided because it did not contain contact details. It said the information provided was what the witness service had given it to issue to residents.
Contrary to the information set out in its email to the resident on 11 August 2022, the landlord emailed him on 28 October to confirm it would refer him to its witness service. This was because there was no evidence of statutory noise nuisance on the recordings he had submitted.
The resident emailed the landlord on 2 November 2022 to confirm that he agreed to the referral. On 4 November the landlord emailed the referral to the witness service. On 11 November the landlord emailed the resident to update him accordingly, it said he would hear from the service directly.
On 21 November 2022 the resident emailed the landlord to advise the witness service had not contacted him. An internal email dated 24 November revealed that the referral had not actually been sent across due to an “oversight” which was inappropriate. In its reply to the resident of 24 November the landlord confirmed there had been a delay and said he should be contacted “shortly.”
This was 20 days later, causing a delay in the overall process. Furthermore, it is concerning that had the resident not followed up with the landlord the error may not have been identified and the process further delayed.
The resident emailed the landlord on 7 December 2022 to advise he had still not been contacted. The landlord replied the following day and confirmed it had chased the witness service. On 21 December the landlord emailed the resident to apologise that he had not been contacted. It advised it had spoken to the manager of the service who confirmed there was a backlog and that someone would contact him “that week.”
On 23 January 2023 the resident emailed the landlord to say he had not heard anything. An internal email confirmed the landlord had chased and that further assistance was needed to progress the referral.
On 27 January 2023 the landlord emailed the resident to confirm that it had raised the ongoing delay with the manager of the witness service who was investigating the delay.
The landlord’s stage 1 complaint response of 21 February 2023 upheld the resident’s complaint and said it was making arrangements with a new provider. The Ombudsman’s dispute resolution principles are to be fair, learn from outcomes and put things right. The landlord appropriately apologised for the failure and demonstrated learning by sourcing a new provider. However, it failed to consider how it could put right the distress caused to the resident by the 3 month delay which was inappropriate.
The landlord’s evidence shows that the witness service attended on 31 March and 2 April 2023. It did not witness noise on either occasion. In both cases the witness parked close by, they did not attend the resident’s property.
The resident’s email to the landlord of 2 November 2022 confirmed that he wanted the witness to listen to the noise from inside his property. His stage 1 complaint of 31 January 2023 also referred to the witness service listening to the noise from his property. In an email to this Service on 18 May the resident was dissatisfied because no one had attended his property.
The evidence shows that the resident was expecting the witness to go inside his property to witness the noise. There is no evidence that the landlord said otherwise. Furthermore, its ASB policy says that the witness attends the address and remains there for a period of time sufficient to witness any ASB. It is therefore unclear why the witness did not do so. However, their failure to do so caused distress to the resident.
The landlord’s failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £125 in line with the Ombudsman’s remedies guidance where there was no permanent impact.

The ombudsman has also considered the landlord’s complaint handling.

The resident made a stage 1 complaint on 31 January 2023. The landlord acknowledged the complaint and said it would provide a response by 21 February. It responded appropriately, within its timescales.
The resident’s request to escalate his complaint was acknowledged by the landlord on 22 February 2023. It said that due to increased contact from its resident’s its stage 2 complaint investigations were delayed. It added that its investigator would be in touch in due course and would contact him to provide updates.
The complaint handler emailed the resident on 28 February 2023 to introduce themselves and said they would issue the response by 29 March. On 14 April the landlord emailed the resident to apologise for the delays in its complaint handling. It said it had been trying to call the resident to advise that there had been an increase in escalation requests and it was “working hard” to get through the backlog.
While it was positive that the landlord updated the resident this became an apology for not doing something rather than proactively managing the resident’s expectations.
The landlord provided its stage 2 complaint response on 3 May 2023 which was 48 working days after the resident made his complaint and 23 days out of time.
The stage 2 response failed to apologise for the delay and failed to set out what steps it was taking to address the problem. Furthermore, it failed to consider how it might put things right in line with its compensation policy.
The housing ombudsman’s complaint handling code (the Code) sets out that 2 stage complaint processes are ideal. It requires stage 1 responses to be issued within 10 working days and stage 2 responses within 20 working days. The landlord’s complaints policy in place at the time of the complaint did not comply with the Code. However, its new policy dated April 2024 no longer includes an early resolution phase and its timescales are in line with the Code. Therefore, it has not been necessary to make an order on this matter.
The landlord’s complaint handling failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £100 compensation.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s request for noise monitoring equipment to be installed.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s request to be referred to a professional witness service.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Write to the resident to apologise for the failures in the case.
2. Contact the resident to establish whether there is an ongoing need for the professional witness service to attend and if so, set out the arrangements and expectations. The outcome of the contact should be confirmed to the resident in writing.
3. Pay the resident £325 compensation comprised of:
  1. £100 for the distress caused by the failures in its response to the resident’s request for noise monitoring equipment to be installed.
  2. £125 for the distress and inconvenience caused by the failures in its response to the resident’s request to be referred to a professional witness service.
  3. £100 for the distress and inconvenience caused by its complaint handling failures.
4. Evidence of compliance with the orders should be provided to the Ombudsman, also within 4 weeks.