Torus62 Limited (202231139)

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REPORT

COMPLAINT 202231139

Torus62 Limited

31 July 2023

 

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 decision to allow the resident’s neighbour to run a business from their property.
  2. The resident has also raised concerns about the name of the business and associated signage used.

Background

  1. The landlord and resident have an assured tenancy agreement.
  2. The resident began reporting noise nuisance ASB to the landlord in March 2022. They reported that their neighbour’s dog had been “constantly barking”. The landlord responded to these reports by contacting the neighbour and advising that access to the garden should be restricted whenever the dog is barking. The resident told the landlord in April 2022 that the situation had improved.
  3. The landlord approved an application from the neighbour to start a dog grooming business from a shed in their garden in July 2022.
  4. In August 2022, the resident contacted the landlord again to say that their neighbour’s dogs had been barking in the garden since 7am that day. The landlord attempted to contact the resident to discuss the issue on a number of occasions.
  5. The resident complaint to the landlord in November 2022 about their concerns. The complaint referred to the following:
    1. The landlord’s decision to approve their neighbour’s application to start a dog grooming business and the fact it did not consult with the resident beforehand.
    2. The business resulted in dogs barking more frequently, although this was not constant.
    3. The neighbour’s choice of business name and signage was offensive.

To resolve the issue, the resident requested the landlord to admit it had not undertaken due considerations prior to approving the neighbour’s application. They also asked the landlord to take appropriate preventative action to minimise the level of disturbance caused by the dogs.

  1. The landlord issued a stage one complaint response in December 2022. It said it does not consult with residents when deciding whether to approve an application to run a business from one of its properties and would only refuse an application if it had just cause to do so. The landlord also advised the resident that it was unable to act upon the name of the neighbour’s business and that it had inspected the signage, which it determined was only visible when the shed door was open. It had requested the neighbour to have the door closed as often as possible.
  2. The resident remained dissatisfied and requested escalation of their complaint in December 2022. They explained their issues remained unresolved and that they felt intimidated following an “altercation” with the neighbour. The resident also outlined the impact the ongoing issues were having on their personal health.
  3. The landlord provided its stage two complaint response in January 2023. It referred to the initial report of ASB in March 2022 and the constant improvement from therein. It said it had spoken to the resident in April who, at the time, had been happy to close the case. The landlord assured the resident any additional reports of ASB would be investigated in line with the appropriate policy. The landlord also referred to the neighbour’s business application and said it would not have refused permission with the information it had. However, it did say it would revoke permission if evidence of ASB was provided and the resident was found to be in breach of their tenancy.
  4. The resident remained dissatisfied with the landlord’s decision and contacted the Ombudsman. They said the neighbour had been permitted to run their business from home 7 days a week and that the ongoing issue had meant they had no other option but to move property.

Assessment and findings

  1. It is outside the Ombudsman’s role to establish whether someone has committed ASB, but rather we will assess the landlord’s handling of the resident’s ASB reports. We will consider whether the landlord’s response was fair and reasonable in view of all the circumstances, taking into account its own internal policies, the law and industry best practice.
  2. The landlord’s ASB policy refers to what it considers to be ASB and the actions it will take following a report of ASB. The policy includes reference to “noise nuisance” and managing “those who cause anti-social behaviour using appropriate and proportionate intervention”.
  3. The resident’s reports of a dog barking from their neighbour’s property could reasonably be considered as ASB under the applicable policy. This meant the landlord was expected to take proportionate action to resolve the issue. The available evidence shows that, following the resident’s report, the landlord contacted the neighbour in an attempt to prevent further instances of ASB. As a result, the landlord spoke to the resident in April 2022 who agreed the situation had improved the ASB case could be closed. This demonstrated the landlord’s willingness to take appropriate action to improve the situation for the resident.
  4. Although the situation showed signs of improvement, the landlord’s decision to permit the neighbour to start a dog grooming business in their garden meant an increase in the number of dogs visiting the property. The resident stated this caused the issue to worsen and made further reports of ASB to the landlord.
  5. The landlord attempted to discuss the reports with the resident on a number of occasions, however, was unsuccessful. The evidence shows the landlord had recommended the resident use a noise recording application on their phone, to record instances of barking. Those actions showed the landlord had been willing to address any reports of ASB which were supported by evidence. Noise recording apps can be helpful as a means of gathering evidence of ASB. The landlord cannot take action against its tenants for ASB without evidence. It is unclear whether the resident made use of the application, as they suggested they were awaiting assistance from a family member. This Service acknowledges the landlord had been proactive, however it could have identified the resident had been unable to install the application and recommended they complete an ASB diary or install sound recording equipment instead as alternative means of gathering evidence. Overall, this service is satisfied the landlord took appropriate action to address the reports of ASB. It followed the applicable policy and demonstrated it was willing to act when was appropriate.
  6. While the dog barking aspect of the resident’s complaint was handled appropriately, this service acknowledges there were also concerns about the landlord’s decision to approve a business application, the associated name of the business and signage being used by the neighbour. At the point the application was made, the ASB issue had showed signs of improvement and the resident had been willing to close the case. This meant it was fair of the landlord to not have concerns about approving the business application at the time. It may have been reasonable to expect the landlord to consider the potential for further ASB relating to dogs barking, considering the nature of the neighbour’s business, but it would not necessarily have been enough as reasonable grounds to decline the application.
  7. In line with the tenancy agreement, residents are allowed to run a business from home, provided it does not cause a nuisance to other residents in the area. The landlord should not unreasonably decline applications to run a business. The landlord could only reasonably decline the neighbour’s application if there was clear evidence that the business would cause a nuisance, such as if the dog barking was an ongoing issue rather than something which appeared to be resolved.
  8. While the landlord may not have been able to advise the neighbour regarding the name of their business, it did have clear guidance about signage. It set out clear expectations of the neighbour and their business in a “business permission request” letter. This included the expectation that “no signage be displayed on or around the property”.
  9. The tenancy agreement also stated “[The resident] will not behave in a way that causes or is likely to cause nuisance, annoyance, alarm or distress to your neighbours, or any other person who is lawfully in or in the locality of your home (including our staff, agents and contractors). Examples of behaviour that will or is likely to cause nuisance or annoyance include (but is not limited to): Displaying offensive or obscene messages or posters.”
  10. The landlord attended the neighbour’s property on at least one occasion, for the purpose of investigating the signage which the resident had found to be offensive. As the resident had made the report, this Service would expect the landlord to make a decision regarding the signage within a reasonable timescale and communicate that decision to the resident, explaining the reasons for the outcome. It is unclear how the landlord came to the decision to allow the signage, especially given the expectations put in place for the neighbour and the clause set out in the tenancy agreement. The landlord explained that the signage was not visible “if the shed door remained closed”. This service found this to have been an inappropriate solution as it would have been unreasonable to expect the neighbour to keep the door closed for most of the time, particularly during the summer months.
  11. While the resident may not have agreed with the landlord’s final decision regarding the signage, an explanation would have allowed them to understand reasons it was allowed. Therefore, this service has found failure in the service provided by the landlord following decisions made relating to signage the resident found to be “offensive”.
  12. While this Service understands the resident has indicated their intentions to move property, the landlord should still review this case and provide one of the following:
    1. Arrange for the signage to be removed.
    2. If the signage is to remain in place, an explanation of why it has been allowed and why it does not breach the relevant tenancy clause.
  13. As service failure has been identified in the landlord’s handling of the signage issue, this Service has considered whether compensation is appropriate in view of this. The landlord’s compensation policy refers to redress as part of the complaint resolution, which could include “putting right what has gone wrong” and “improving practice and processes”.
  14. The Ombudsman’s approach to compensation is set out in our remedies guidance, published on our website. The remedies guidance suggests that awards of £50 to £100 may be appropriate for cases where there has been minor failure by the landlord in the service it provided, and the landlord did not appropriately acknowledge these. Given the service failure identified during this investigation, this service has found £100 to be an appropriate amount of compensation to put things right and acknowledge the impact the issue had on the resident.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s concerns, specifically regarding the associated signage.

Orders and recommendations

Orders

  1. The landlord is ordered to conduct a case review of this complaint to identify any failings and areas for improvement. Following the review, the landlord should communicate with the resident to explain the reasons for decisions it made relating to the associated signage. As referred to in the investigation, the landlord should:
    1. Arrange for the signage to be removed.
    2. If the landlord decides to allow the signage to remain, it should explain this and provide reasons for why it does not breach the applicable tenancy clause, relating to offensive messages/posters.
  2. The landlord is ordered to pay the resident £100 compensation for the failure to provide a reasonable explanation for allowing the signage to remain in place, while knowing the resident found it to be offensive.
  3. The landlord should confirm compliance with the above orders within four weeks of the date of this report.

Recommendations

  1. Following the findings made in this investigation relating to reported ASB, it is recommended the landlord takes a proactive approach to obtaining evidence of ASB in future cases. For example, the resident in this case demonstrated their need for assistance to install a noise recording application. The landlord could have considered installing noise recording equipment or requested completion of an ASB diary instead.