Waltham Forest Council (202008889)

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REPORT

COMPLAINT 202008889

Waltham Forest Council

21 April 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 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 concerns how the landlord handled the resident’s reports of antisocial behaviour (ASB) by a neighbour.

Background and summary of events

  1. The resident is a secure tenant of the landlord, which is a local authority. The property is a first-floor flat in a communal building.
  2. Prior to 6 May 2020, the resident wrote to the landlord and described incidents of noise nuisance and drug use she had experienced from the neighbour in the property below hers.
  3. The landlord wrote to her on 6 May 2020 and requested to meet with her to discuss the matter further. The housing officer also provided a form for the resident to complete to detail the type of noise nuisance she had experienced.
  4. On 29 June 2020 the resident wrote to her landlord and described the latest noise nuisance she had experienced. The resident also informed the landlord that she was verbally abused by an acquaintance of the neighbour when she complained about the noise
  5. The landlord called the resident on 30 June 2020 and again on 2 July 2020 to discuss the matter and opened an ASB case.
  6. On 13 July 2020 the resident wrote to the landlord and requested an update on the ASB case as she had yet to receive a response or an acknowledgement.
  7. The landlord replied on 15 July 2020 and informed the resident that the delay was due to the member of staff in charge of the ASB case, taking leave due to unforeseen circumstances. It wrote to her again on 16 July 2020 to confirm that an ASB case had been opened at that it would be interviewing her neighbour about her allegations in the next week.
  8. The landlord next wrote to the resident on 21 July 2020 to inform her that it would be meeting with her neighbour on 26 July 2020 and that it would then write back with an update. The landlord’s records state that a meeting was arranged for 4 August 2020 between the resident and landlord to discuss the ASB case.
  9. On 24 August 2020 the resident wrote to the landlord and informed it that while incidents of drug use had decreased, she was still experiencing noise nuisance, particularly the playing of loud music by the neighbour.
  10. The landlord visited the neighbour on 26 August 2020 and reported that there was no evidence of the smoking of cannabis in the neighbour’s property. The landlord undertook a door knocking exercise, but as a result of this, no other residents reported any issues relating to noise nuisance or drug use by the resident’s neighbour. The landlord informed the resident of this and it also forwarded her allegations of drug taking to the policy and a multi-agency panel. The panel declined to consider the case as it said it did not meet its threshold.
  11. On 2 September 2020 the landlord wrote to the resident to describe the 27 July 2020 meeting it had with her neighbour. It also proposed using a noise app in order to gather evidence of noise nuisance and explained that the app would be available for use from the 7 September 2020 onwards.
  12. The resident replied to the landlord and highlighted her concern that her mobile phone would be unable to download the noise app. The landlord wrote again on 9 September 2020 to confirm that the noise app was now available for download and if she did not have an appropriate device, it would be able to provide her with a tablet. The landlord also informed the resident that it would be liaising with the police in relation to the allegations of drug use by the neighbour and that her case had been put forward to be discussed at a multi-agency panel meeting.
  13. On 11 September 2020 the resident contacted the landlord and requested to raise a formal complaint into how it had handled her ASB case and that it had not provided her with noise recording equipment.
  14. The landlord wrote to the resident on 14 September 2020 to inform her of the result of its meeting with the neighbour. It stated that the neighbour had disputed that he had played loud music and explained that he had some work carried out in the property when he first moved in which would have caused noise such as drilling and banging. The landlord further informed the resident that her neighbour had agreed to mediation as a method to resolve the issues. The landlord sent a stage one complaint response to the resident on 5 October 2020. It explained that it had informed the resident via an email sent on 2 September 2020 that it no longer used noise recording machines, but that it was looking into providing the resident with a mobile device as the resident had previously informed it that her phone was unlikely to be able to download the noise app.
  15. The landlord then informed the resident that it was now in possession of a tablet, which it would provide her once a protective casing had been installed. It also informed the resident that it would provide training to her on how to use the tablet and the noise app.
  16. On 28 September 2020, the landlord wrote to the resident and advised her to call the police if she suspected drug use by her neighbour and if the police were able to establish the allegations, it would be in a better position to take action against the neighbour.
  17. The landlord’s records state that the tablet was sent to the resident on 5 October 2020. On 9 October 2020 the resident wrote to the landlord and disputed its response to her concerns. She described her unhappiness with how it had handled her ASB reports and noted that she had still not received a noise monitoring device.
  18. The landlord acknowledged the resident’s email on 9 October 2019 and on 16 October 2020 it wrote again to inform her that it had escalated the complaint to stage two of its internal complaints process and would investigate both issues raised by the resident relating to the ASB case and the provision of noise recording equipment.
  19. On 6 November 2020 the resident wrote to the landlord’s chief executive regarding how the ASB case had been handled. She noted that she used the tablet to record noise from her neighbour between 20 October 2020 and 3 November 2020 but had yet to receive any response from the landlord relating to the recordings she made. She also described the noise nuisance she had experienced since the tablet was collected by the landlord.
  20. The landlord replied to the resident on 6 November 2020 to acknowledge her complaint and on 16 November 2020 it sent its stage two complaint response. In relation to the issuing of noise recording equipment to the resident, the landlord informed her that:
    1. There is no statutory obligation for it to have noise recording devices and that recording devices are not automatically provided for every case of noise nuisance.
    2. The noise recording equipment previously used by the landlord was “outdated” and it therefore made the decision to replace them with a noise monitoring app. However, the last noise recording machine broke down before the use of the noise monitoring app commenced.
    3. The landlord purchased two tablets to issue to residents who do not own a suitable device to download the noise app. A tablet was issued to the resident on 20 October 2020.
  21. The landlord set out the actions it had taken in response to the reident’s reports of ASB and noise nuisance, including meeting with the resident and neighbour to discuss the allegations, liaising with the policy and providing a tablet so the resident could use a noise recording app. The landlord concluded the response by stating that is was satisfied with how its staff had handled the ASB case and that while it was “regrettable that the new Noise App and tablets were not available before the previous noise recording equipment went out of action”, it did not believe that this had a noticeable effect on the case as the use of recording devices were not obligatory and, based on the reports made by the resident, the installation of noise recording equipment would not have necessarily been considered a priority.

Assessment and findings

  1. It is not part of the Ombudsman’s role to establish whether the ASB reported was occurring or not; the Ombudsman’s role is to establish whether the landlord’s response to the resident’s reports was in line with its legal and policy obligations and whether its response was fair in view of all the circumstances.
  2. Part 2.3.0 of the landlord’s ASB policy categorises ASB as harassment and nuisance. The policy goes on to define the categories as follows:

“Harassment: This is deliberate action designed to cause fear and distress. This includes physical or verbal abuse; abuse of power relationship. Harassment is often centred on one or more prejudices.

Harassment is specifically referred to in the [landlords] tenancy agreement Clause 1.49 – 1.49.6.

Nuisance: This is inconsiderate action, or lack of action, by an individual or group that prevents other residents from living in a safe and pleasant environment.

Acts of nuisance need to be viewed within a wider context with other substantiating evidence for example; while noise nuisance on its own does not constitute racial harassment, it may do so if accompanied by other factors such as racist name-calling.

Nuisance is referred to in the [landlord’s] tenancy under clauses 1.45 – 1.48”

  1. Part 1.1.4 of the policy explains that it classifies reports of ASB as high, medium and low risk. It goes on to state that harassment/threats and drug use are considered high risk, and that noise nuisance is considered medium risk.
  2. Part 1.6.0 of the policy describes the service standards it expects to meet when investigation reports of ASB and in part states:
  • “We aim to minimise the effect of nuisance and ASB on your quality of life, by taking legal action if necessary.
  • We will always offer you the option of a home visit when we are investigating the problem and planning how best we can help.
  • We will write to you within 5 working days of your first complaint to let you know what we plan to do.
  • We will contact you at agreed frequencies and as a minimum every four weeks, to keep you updated on your anti-social behaviour complaint and the action we are taking.
  • We can arrange for independent mediation to help end disputes between neighbours.
  • We will take appropriate action against those responsible, where we have evidence.
  • We will provide on-going support for as long as reasonably practical.”
  1. Part 1.10.0 of the policy describes evidence gathering and in part states:

“Staff should always ask complainants and witnesses to complete [landlord] sheets to ensure evidence, is clear, concise and legally acceptable. Where complainants are not able to complete diaries, the officer should consider giving the complainant a disposable camera and tape recorder. [Landlord] also can install Noise Nuisance Recording equipment in properties to record noise. This will depend on the availability of resources and suitability of these for the case.

Complainants should also be given other useful numbers such as the Police and Victim Support for additional support and counselling.”

  1. Overall, the landlord has followed its ASB policy and procedures in how it responded to the resident’s reports. When it first received a report of ASB from the resident, the landlord acknowledged the report and provided her with material to record the noise nuisance she was experiencing.
  2. When the resident made further reports of noise nuisance and alleged drug use by the neighbour, an ASB case was opened, and the landlord visited both the resident and the neighbour to discuss the allegations. The police also visited the neighbour, inspected their property and subsequently informed the landlord that it would not be taking any further action.  This is in accordance with stage 1 (early prevention) of the landlord’s ASB complaint process which recommends interviewing both the complaint and alleged perpetrator, as well as any other witnesses. Stage 1 also recommends carrying out a door knocking exercises and othering mediation to the involved parties. This was also undertaken by the landlord; however, the mediation offer was declined by the resident. Mediation is voluntary and the resident was entitled to decline to participate. However, it was reasonable for the landlord to offer mediation as an option because it can be helpful in resolving ASB in some cases.
  3. When the resident continued to report noise nuisance, the landlord advised her on the availability of its new noise app. This is in line with stage 2 (Intervention) and stage 3 (Enforcement) of its ASB complaint process, where the landlord will look to gather evidence and consider taking action against an alleged perpetrator if the accusations are supported by the evidence.
  4. The resident had stated her unhappiness with the delay in providing her noise recording equipment after her request for it to be installed. The landlord explained that it was in the process of changing from its old equipment to using an app. As the resident did not think her phone would be able to download the app, a tablet was provided to the resident to make recordings. It was reasonable for the landlord to assist the resident with gathering evidence to support her allegations of noise nuisance. The landlord was not obliged to provide noise recording equipment rather than a noise recording app, in line with its ASB policy. The landlord has given a reasonable explanation for not providing noise recording equipment.
  5. An internal email provided to this Service by the landlord sent on 10 November 2010 relates to the examination of the recordings and described the majority of the noise as “not loud” and that most of the noise was recorded during the day with “only a couple in the night-time period 23.00-.7.00”. The email noted that this evidence did not show statutory nuisance and the landlord would not be able to take any further action at this stage. The email also suggested gathering more recordings to determine if there had been a tenancy breach by the neighbour.
  6. For a landlord to take formal action against an alleged perpetrator of ASB it requires sufficient supporting evidence that the behaviour is causing significant nuisance and/or harm to others and has occurred over a prolonged of time.  Furthermore, landlords cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise. However, if a noise is confirmed as being statutory noise nuisance, then both a Landlord and the local authority’s Environmental Health Service may be able to take formal action against the perpetrator such as issuing a tenancy warning or acceptable behaviour agreement. In this case, the evidence gathered by the noise app did not support this course of action.
  7. In summary, it is evident that the landlord responded to the reports of ASB made by the resident in line with its obligations, acknowledging her reports and undertaking an investigation. The landlord liaised with the police, contacted the neighbour regarding the allegations, and raised the resident’s case with the Anti-Social Risk Assessment Conference). Given the lack of supporting evidence, it was reasonable that the landlord did not pursue formal action against the neighbour. Although no further action has yet to be taken by either the landlord or the police, the landlord contacted the resident to explain why and remained engaged with her, thereby taking steps to manage her expectations. The landlord also visited the neighbour on several occasions to discuss the allegations and to remind him of his obligations under the tenancy agreement.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its handling of the resident’s reports of ASB by her neighbour.

Reasons

  1. The landlord has taken appropriate action in line with its ASB Policy in investigating the resident’s reports about her neighbour and seeking to prevent further issues occurring. Ultimately, it was reasonable that the landlord had, as yet not taken further action against the neighbour given the lack of supporting evidence.