Vivid Housing Limited (202312618)
REPORT
COMPLAINT 202312618
Vivid Housing Limited
30 September 2024
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 handling of the resident’s reports concerning:
- a neighbour committing benefit fraud.
- a neighbour running a business from their home.
- noise nuisance and antisocial behaviour (ASB).
- access to, and items left in a shared alleyway.
- The Ombudsman has also investigated the resident’s complaint.
Background
- The resident is an assured tenant under an agreement dated 15 December 2008. The property is a 3-bedroom mid-terraced house. The resident said she suffers from anxiety and her partner, who lives with her, has heart problems.
- The landlord’s records show that there has been a longstanding dispute between the resident and her neighbours dating back to 2014. The landlord tried mediation between the parties in 2016 and used good neighbour agreements to try and promote positive relationships. The records show that there are periods of time when the resident has not made reports.
- On 22 April 2023 the resident contacted the landlord to report that her neighbour was using power tools in the back garden for long periods of time and the noise was affecting her. She reported that she believed the neighbour was running a business from his home. She said that the neighbour was claiming benefits and selling wooden items which he had made. The landlord recommended that the resident report the noise to the council’s environmental health team and her suspicions the neighbour was working and claiming benefits to the local authority.
- On 7 July 2024 the resident complained to the landlord that she was unhappy because her landlord was not dealing with her reports that:
- her neighbour was running a business from home
- her neighbour was committing benefit fraud by selling items he had made
- the noise from her neighbour’s property, of power tools, a tropical bird and the neighbour’s grandchildren screaming and shouting, was affecting her
- the noise was causing her anxiety and migraines
- the resident had been assaulted
- the neighbour had installed a gate
- the neighbour had left items in the common alley way
- On 24 August 2023 following contact from the Ombudsman, the landlord logged the resident’s complaint. It sent its stage 1 response on 4 September 2023 in which it said:
- it had investigated the resident’s reports and its response had been in line with its policy and procedure
- environmental health had fully investigated the noise from power tools and the level of noise had not met the statutory threshold to be considered a nuisance. Therefore, environmental health could not take any action
- it had not received any evidence from the resident to show that the neighbour was running a business from home
- it had spoken to the neighbour about a locked gate to the rear alleyway. The neighbour explained that he had erected the gate to prevent unwelcome visitors from accessing the rear gardens
- it had agreed with the neighbour that the gate could remain, but it should have a latch fitted and must be unlocked at all times, in case access was required in an emergency
- the neighbour had agreed to remove the items he had left in the alleyway
- it had reviewed the video of the alleged assault on the resident and the evidence did not support the allegation enough to investigate further and it would call the resident to discuss
- it said it had learnt a lesson to make sure all customers were aware of the level of evidence needed to investigate ASB in the future
- On 13 September 2023 the resident emailed the landlord to inform it she was not happy with its response at stage 1. She said:
- the landlord had not fully investigated her complaints about noise from her neighbour’s property of power tools, a tropical bird and children shouting and screaming
- she had sent in recordings of the noise from power tools which she said the landlord had not considered
- she was unhappy that the neighbour was running a business from home
- as a resolution she said she would like the landlord to move her neighbours to another property
- The landlord sent its stage 2 response on 10 October 2023 in which it said:
- it reiterated what it had said at stage 1 about the noise from the neighbour’s property
- there was insufficient evidence to show the neighbour was running a business from his home
- it referred to what it said at stage 1 with regards to the gate and alleyway
- it said it would ask its neighbourhood manager to discuss the gate and alleyway with the neighbour
- In communication with this service the resident said she was frustrated that the issue around noise had been ongoing for years and the situation was causing her anxiety. She felt that her landlord was not taking the matter seriously. As a resolution she would like the landlord to move her neighbours and would like it to acknowledge the distress and inconvenience she had been caused.
Assessment and findings
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.
- Paragraph 42.j. of the Scheme says the Ombudsman will not investigate matters which, “in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”
- The resident has informed the landlord that a neighbour is committing benefit fraud by selling items he has made whilst he is claiming benefits. The Department for Work and Pensions, Fraud Prevention and Error Service were the lead agencies responsible for investigating reports of benefit fraud. It is not the landlord’s responsibility to investigate this. The Ombudsman has therefore not investigated this aspect of the resident’s complaint.
Scope of the investigation
- In the interest of fairness, the Ombudsman has limited the scope of this investigation to the issues raised during the resident’s complaint dated 7 July 2023, which completed the landlord’s internal complaint procedure on 10 October 2023. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions before the involvement of this service.
- The Ombudsman is aware that the resident raised further complaints about staff conduct, the landlord’s handling of reports of loud music, the neighbours erecting banners on their property and the neighbour’s CCTV in February 2024 and July 2024. It is evident that some of these complaints have exhausted the landlord’s complaint procedure, but some have not. The Ombudsman has not considered the landlord’s response to these additional issues because the resident did not refer to these in her initial complaint dated 7 July 2023. The resident can refer any new complaints to her landlord. Or, if any of the additional issues have already exhausted the landlord’s complaint procedure, the resident can refer these to this service, if she wishes to.
The landlord’s handling of reports concerning a neighbour running a business from home
- The landlord’s website says that it will not unreasonably refuse permission for its customers to run a business from home, providing the customer obtain permission from the landlord. The website does says that if the landlord receives any complaints about a ‘home business’ it will look into the situation.
- The resident reported that she was unhappy that her neighbour was running a wood working business from home. The landlord asked the resident if she could provide any evidence of her allegation, but she could not. In this case, the resident had reported the noise caused by her neighbour’s use of power tools in his rear garden shed, which she said were as a result of her neighbour running a business from home, was causing her a disturbance
- The landlord spoke to the neighbour who told the landlord that the wood working was a hobby, not a business. The landlord was satisfied with the neighbour’s response. The landlord explained to the resident that it would not be taking any action against the neighbour for this and if her neighbours were to request permission to run a business from home, it would consider the application. This was appropriate and consistent with the landlord’s procedures.
- The landlord’s handling of the noise from an ASB perspective have been considered below in this report. However, there was no failure by the landlord on how it investigated the reports that the neighbour was running a busy which was causing a nuisance.
- In conclusion, there was no maladministration in the landlord’s handling of reports concerning a neighbour running a business from home.
The landlord’s handling of reports concerning noise nuisance and antisocial behaviour (ASB) from a neighbour
- The Ombudsman acknowledges that this situation has been distressing to the resident. However, it may help to firstly explain that the Ombudsman’s role is not to decide if the actions of the neighbours amounted to ASB, but rather, whether the landlord responded to the resident’s reports following its policies and procedures, and whether its actions were fair and reasonable in all the circumstances of the case.
- It is perhaps convenient to note here that not all noise will be something a landlord is able to act on. The definition of noise nuisance is an unreasonable use of one property, which affects the use and enjoyment of those occupying another property. Put simply, if the use of the neighbours’ home was normal and reasonable use, the landlord would not be able to take tenancy and enforcement action against them. Before making this decision, however, the Ombudsman would expect the landlord to investigate the reports made.
- When dealing with reports of noise and antisocial behaviour (ASB) the Ombudsman expects landlords to consider its obligations under the relevant legislation, statutory guidance, consumer standards and best practice. Regardless of whether the perpetrator was a third-party individual or a landlord tenant, the Ombudsman expects landlords to:
- maintain regular communication with the complainant
- carry out clear action planning where relevant
- maintain good record keeping
- evidence good partnership working
- On 22 April 2023 the resident reported that her neighbour was disturbing her by using commercial power tools in his back garden shed. The resident said her neighbour was running a business from home and the noise from him cutting wood was occurring for 8 hours a day. She said the noise was causing her stress and prevented her from sitting in her garden. The resident said that she had reported this to the landlord in the past and it had told her neighbours they could only use the power tools for 1 hour per day. The resident also reported that the noise from her neighbours’ tropical bird was affecting her.
- The landlord’s ASB policy outlines what it does and does not consider to be ASB. Some examples of what the landlord does not consider to be ASB are:
- noise from children playing
- personal disputes such as falling out with neighbours
- noise of a vacuum cleaner, washing machine or DIY
- clashes of lifestyle, including cultural differences
- In response to a report of noise, the landlord’s ASB policy states it will:
- contact the reporting person within 2 working days, if it considers the noise to be unreasonable
- talk to the reporting person
- speak to other neighbours to understand if the noise is affecting them
- talk to the person causing the noise
- Considering the resident had said the noise was occurring for prolonged periods of the day and it was affecting the quiet enjoyment of her home, the Ombudsman is of the opinion the landlord ought to have contacted the resident within 2 working days. It did not contact the resident until 3 May 2023, which was 7 working days later. This was not consistent with the landlord’s policy.
- There does not appear to be any reference to risk assessments in the landlord’s ASB policy. It is the Ombudsman’s opinion that in completing risk assessments and focusing upon the harm caused, landlords can ensure that they can put measures in place at the first opportunity and reduce the impact of the ASB. There is no evidence that the landlord considered completing a risk assessment when it received the resident’s initial report on 22 April 2023. Given the persistent nature of the noise and the impact the resident said it was having on her, it would have been reasonable of the landlord to assess the risk at this point. There is no evidence, however, that the risk assessment would have changed the outcome of what followed. Simply it was best practice for the landlord to have completed this.
- There is, however, evidence that the landlord logged a case on its case management system and spoke to the neighbours about the resident’s reports. This was appropriate and consistent with the landlord’s policy.
- The landlord’s policy states that, after it has spoken to the person causing the noise, it may:
- ask the reporting person to complete diary sheets
- arrange mediation between the reporting person and the person causing the noise
- work with the environmental health team at the local council
- The landlord informed the resident on 3 May 2023 that it would need evidence of the noise to show that it was unreasonable. As the landlord did not have its own noise monitoring equipment, it asked the resident to report the noise to the environmental health team within the council. It informed the resident that if, after their investigation, the council found the noise was a statutory nuisance, the landlord would look at taking further action. This was appropriate as it was consistent with the landlord’s policy.
- The landlord’s ASB policy states it may ask a complainant to complete a diary sheet. Diary sheets provide a complainant with a structured way of recording incidents which affect them. They ensure a complainant is recording the type of information that a landlord needs. It is clear that the resident had completed diary sheets for previous reports, and she believed she had provided sufficient evidence to the landlord for it to take action against her neighbours.
- Whilst the Ombudsman understands it was frustrating for the resident that the landlord was asking her to provide further evidence. The Ombudsman concludes it was appropriate because the lanldord needed to know what was happening in April 2023. In this case the resident refused to complete diary sheets or keep a log of incidents which impacted upon the landlord’s investigation.
- On 22 August 2023 the resident reported that her neighbour was harassing her because she had complained to the landlord about the noise from their property. The resident sent a video to the landlord which she said contained evidence of an incident whereby the neighbour had approached the resident on the resident’s driveway and had been verbally abusive to her.
- In its stage 1 complaint response the landlord said it had viewed the video but there was insufficient evidence to show that the neighbour had engaged in the reported behaviour and it would not be taking the matter any further. The Ombudsman can not blame the landlord for this, it reviewed the footage and made a decision based on the available evidence.
- In consideration of all the evidence, the Ombudsman finds that there was maladministration in the landlord’s handling of the resident’s reports of noise nuisance and ASB in that it:
- delayed in responding to the resident’s report in April 2023
- did not make enquiries with other neighbours to find out if they were affected by the noise
- did not update the resident at various points throughout the ASB case
- It is likely that the landlord’s failures caused the resident some distress and inconvenience. For that reason, an award of compensation is made to recognise the frustration and upset caused.
- The Ombudsman’s remedies guidance states that an award of up to £600 would be appropriate where there is no permanent impact. There is no evidence the landlord caused any lasting or existing impact. It is alleged it was the neighbours and their noise. There is no evidence that had the landlord taken all the action it could have done, the resident would have been in any different circumstances as noise is part of everyday life. For this reason, an award of £400 is appropriate to recognise the distress caused by the landlord’s failures.
The landlord’s handling of reports concerning access to, and items left in a shared alleyway
- The resident can access the rear of her property via an alleyway which she shares with her neighbours.
- On 18 July 2023 the resident informed the landlord that her neighbour had installed a wooden gate to the path which the resident and other neighbours could only open from the inside. The resident was concerned that this was an access route and, although the neighbour had provided her with a key for the gate, she wanted the neighbour to leave the gate unlocked in case of emergency. The resident also reported that her neighbour was using the area to store items such as wood and ladders.
- The landlord’s housing management policy deals with estate inspections. The policy says the landlord will:
- inspect all roads, estates and blocks at periodic intervals, which are normally between 1 month and 1 year, depending on how frequently there are issues in the area
- remove items which pose a risk to health and safety
- have a zero tolerance about customers leaving items in communal areas
- undertake regular fire risk inspections and serve Tort notices on items left in communal areas and remove and dispose of items at the end of the notice period
- The landlord has informed this service that the location of the resident’s property is not on its cyclical list of estate inspections. It said that some roads are not listed due to the very small number of properties in them. However, as part of its investigation into the resident’s stage 1 complaint, the landlord conducted ad hoc inspections of this alleyway on 1 September 2023 and 15 February 2024.
- The landlord visited the neighbours on 1 September 2023 to discuss the resident’s reports. The neighbour informed the landlord that they had installed the gate to prevent unwanted visitors accessing the rear of the properties and they had provided the resident and other neighbours with a key to the gate. The landlord said that it would allow the gate to remain in place but asked the neighbour to keep the gate unlocked in future. The neighbour said they would install a latch to the gate to make access easier. The landlord also said it asked the neighbour to remove any items which they had stored in the shared alleyway. The landlord confirmed these agreed actions with the neighbour in an email of the same date. This was reasonable in the circumstances.
- The records show that the neighbour emailed the landlord on 4 September 2023 to inform it that they had fitted a latch to the gate and removed all of their items from the alleyway.
- The resident contacted the landlord on 6 January 2024 to report that there were still items in the shared alleyway which were causing an obstruction. The landlord conducted a home visit to the resident on 15 February 2024 when it saw that there were wooden pallets, a water butt, patio slabs and a ladder in the rear shared alleyway. The landlord told the resident it would send a letter to all residents to request they do not store items in the shared alleyway. The landlord sent the letter on 16 February 2024. This was reasonable in the circumstances because the landlord could not be sure which neighbour owned the items. It was therefore reasonable of the landlord to write to all residents who had access to this area.
- On 29 February 2024 the landlord visited the neighbour to discuss the resident’s reports. The neighbour confirmed that they had received the landlord’s letter the previous week and had removed their belongings from the alleyway. The landlord informed the neighbours that the alleyway should be kept clear at all times for health and safety reasons and general estate tidiness. The neighbours said they would no longer store items in this area.
- The landlord noted that there were still some wooden pallets in the alleyway on this date, which belonged to another neighbour. The landlord sent a text to this neighbour asking them to remove these items and not to store anything in this space in the future. This was appropriate.
- The resident has informed this service that the neighbours had removed the water butt, ladders and wood from the alleyway. However, there were still some pieces of guttering and broken paving in the alleyway. The resident believed the guttering belonged to her neighbour but did not know who the paving belonged to.
- Taking everything into account, it is the Ombudsman’s opinion that the landlord’s response to the reports of items left in the shared alleyway was reasonable in the circumstances.
The landlord’s handling of the resident’s complaint
- The landlord operates a 2-stage complaint process. At stage 1, the landlord will acknowledge the complaint within 5 working days of being made and will provide its response within 10 working days of being acknowledged. At stage 2, the landlord will acknowledge escalation of the complaint within 5 working days and provide its response within 20 working days of being acknowledged.
- The resident emailed the landlord on 7 July 2023. Within this email the resident referred to her dissatisfaction with the landlord’s actions following her report in April 2023 and that she had contacted the Ombudsman service. Paragraph 1.4 of the Complaint Handling Code (the Code) (2022) states that landlords should recognise the difference between a service request and a complaint. In this case, the resident had reported noise of power tools coming from a neighbour’s property. The landlord had provided its response to the resident on 3 May 2023 and said that it would not be taking any further action at that time. It is the Ombudsman’s opinion that the landlord ought to have recognised that the resident’s communication on 7 July 2023 was a dissatisfaction with the response to her service request, as per the Code. The landlord did not do this in this case, which was a failure.
- Following contact from the Ombudsman, the landlord logged the resident’s complaint on 24 August 2023 and sent its response on 4 September 2023, which was 8 working days later. This was appropriate because it was consistent with the landlord’s policy and the Code.
- The resident escalated her complaint on 13 September 2023. The landlord sent its stage 2 response on 10 October 2023, which was 20 working days later. This was appropriate because it was consistent with the landlord’s policy and the Code.
- In conclusion, there was service failure in the landlord’s handling of the resident’s complaint. The Ombudsman has made this finding because the landlord failed to recognise and respond to the resident’s initial complaint in line with its complaint’s procedure. This meant the landlord missed an opportunity to address the resident’s concerns sooner and left the resident waiting for a resolution to her concerns. The landlord should have conducted a timely and appropriate investigation and response to the resident’s concerns. The Ombudsman has therefore ordered the landlord to pay compensation to the resident for the distress and inconvenience caused by the failures outlined above.
- The Ombudsman’s remedies guidance, which is available online, provides awards of compensation between £50 and £100 when there is evidence of a service failure by the landlord which may not have significantly affected the overall outcome for the resident. The Ombudsman has therefore made an order that the landlord pay the resident £100 compensation to reflect the distress and inconvenience caused in the landlord’s handling of the resident’s complaint.
Determination
- In accordance with paragraph 42.j. of the Housing Ombudsman Scheme, the resident’s complaint about a neighbour committing benefit fraud is not within the Ombudsman’s jurisdiction to investigate.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports a neighbour was running a business from home.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of noise and antisocial behaviour.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s reports of access to, and items left in the shared alleyway.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s complaint.
Orders and recommendations
- The landlord must, within 28 days of the date of this determination:
- pay the resident £500 compensation which his broken down as follows:
- £400 for the distress and inconvenience caused by the landlord’s handling of the resident’s reports about noise nuisance and antisocial behaviour (ASB)
- £100 for the failures identified in its handling of the resident’s complaint
- inspect the shared alleyway to the rear of the resident’s property and thereafter write to all residents requesting they remove any items belonging to them within a specified timeframe
- if the items are not removed within the timeframe provided by the landlord, the landlord should consider removing the items itself in line with its policy
- provide the Ombudsman with evidence of how it has complied with the above orders.
- pay the resident £500 compensation which his broken down as follows: