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 landlord’s response to the resident’s reports of anti-social behaviour.
- The landlord’s complaint handling.
Background and summary of events
- The resident occupied her home with her adult son under a secure tenancy agreement which began on 6 September 2010. The resident has made complaints of anti-social behaviour (ASB) in relation to her upstairs neighbour.
Legislative and policy framework
- The resident’s tenancy agreement provided that the resident “must not make any noise that is loud enough or happens often enough to cause a nuisance or annoy your neighbours. You must make sure people who live with you and any visitors to your home do not make this type of noise. These could include but is not limited to loudly playing audio equipment… or using any noisy domestic appliances.”
- “The resident must not behave in a way that will cause or is likely to cause nuisance or annoyance or be abusive towards other tenants. You must not allow anyone who lives with you or any visitor to behave in these ways.”
- There is no evidence whether these terms apply to the resident’s neighbour, but it would be reasonable to conclude that tenancy agreements granted in or around a similar period have the same or similar terms.
- The landlord’s guidance on ASB stated that all customers, their household members and their visitors should show consideration to their neighbours by complying with the terms of their occupancy agreement and not to commit or allow their family or visitors to commit acts of ASB.
- ASB was defined as: “Conduct that has caused or is likely to cause harassment, alarm or distress to any person; conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises or conduct capable of causing housing related nuisance or annoyance to any person”.
- The policy further defined anti-social behaviour to be deliberate and intentional acts including the failure to address inconsiderate behaviour that may result in nuisance, harassment, alarm, and distress.
- The guidance specified that sounds of normal day-to-day living, such as opening and closing of doors, going up and down stairs, toilet flushes, and family disputes were not ASB. It stated that domestic noise was frequently and incorrectly reported as ASB.
- The landlord’s guidance expected residents to take responsibility for minor personal disputes with their neighbours and the landlord would offer advice on how to approach their neighbour in the first instance to resolve the dispute and would provide guidance in the form of publications to support residents.
- It stated that following individual assessment of each anti-social behaviour report, it would take appropriate action as a Registered Provider for all parties involved, including working jointly with other agencies.
- The policy promised to:-
- Assess (and periodically reassess) the seriousness of anti-social behaviours reported to us and act according to .. target times and service standards.
- Keep to specified target response times for acknowledging and responding to reports of ASB.
- Fully investigate the complaint.
- Continue to treat any reports or case received as ‘live’ until, in the opinion of the lead officer and the lead officer’s manager, the case can be closed.
- Notify the complainant when a case is closed.
- Explain its reasons, should it choose to take no further action on a report of ASB, and advice on self-help or other alternative courses of action whenever it is possible and appropriate to do so.
- On receipt of the complaint, all possible remedies would be explored including the use of mediation, injunctions, Criminal Behaviour Orders, possession proceedings, Acceptable Behaviour Contracts, and all other available legal remedies.
- The policy also stated that the landlord worked in conjunction with its local police constabulary and local authorities in relation to community remedies.
- The complaints procedure includes fully investigating all issues raised by the complaint and agree any steps to resolve them. The policy does not set out time scales for response.
- The resident stated that the complaints began in 2016 but while previous complaints are referred to, the evidence provided to the Housing Ombudsman does not start till June 2019.
- The resident completed diary sheets and made reports in June and July 2019, and most if not every day from January 2020 through to October 2020. The reports included music, hoovering, use of washing machine, dropping objects on the floor, thumping, shouting, the neighbour “going back and forth”, noise in the communal staircase, stamping, banging, TV, and music, with audible TV and music playing after midnight. The reports also included the neighbour staring at the resident through the window and at least three reports of intimidating behaviour, the neighbour or their visitor making threats, mostly unspecified, but on one occasion described as ‘watch your back’.
- On 28 July 2019, the resident reported that at about 9am, she rang her neighbour’s door three times to request the resident keep down the noise described as stamping and banging. The resident then reported that her neighbour’s “female visitor” banged on the glass of the resident’s flat door and started to “threaten” her.
- The resident reported to the police and her landlord on 29 July 2019 that her neighbour stared into the resident’s windows and “smirked” as if he were laughing at her. She was given a crime reference number. She stated that the landlord is “doing (its) utmost to help and she “can’t thank (it) enough for helping her.”
- On a date in August 2019, according to the resident, the police gave the neighbour a harassment warning following her report that her neighbour “stood outside her front room windows and began ..verbally abusing her with no provocation”. The Housing Ombudsman has not seen evidence of the harassment warning.
- On 18 November 2019, the landlord stated it would request disclosure from the police in relation to the harassment warning.
- On 29 November 2019, the resident made a formal complaint against the landlord for not taking action regarding harassment and antisocial behaviour by the neighbour. She explained that she was in ill-health having had serious surgery and was due to have further surgery in 2020. She said she was told by the police that a plan of action would be sent to her which she did not receive. The summary of her complaints about the neighbour were as follows:
- Staring into the resident’s front room windows, flat door glass.
- Looking into her bedroom windows.
- Incessant stamping, thumping, and banging from the flat above which could occur at any time of the day or night.
- Visitors arriving and staying days on end, generating more noise and disturbance.
- The landlord acknowledged the complaint on 29 November 2019, and provided a timescale for a response of 10 working days (or, alternatively, would explain why it needed more time to investigate). It explained that it was a two-stage complaint resolution process.
- The resident requested a call from the landlord following a report on 23 December 2019 where she called the police in relation to a threat made by the neighbour’s visitor on 21 December 2019.
- On 29 January 2020, the landlord said it would visit the neighbour, and another resident in the building who had also made reports in relation to the same neighbour.
- On 18 February 2020 and again on 14 July 2020, the resident reported to the Housing Ombudsman Service that she had not received a first stage response. The landlord informed the Ombudsman that a first stage response was sent to the resident on 10 December 2019. The copy of the letter provided was dated 18 February 2021 and was clearly misdated, it having been provided to the Housing Ombudsman Service on 20 July 2020.
- The first stage response letter stated it had commenced an investigation into her most recent allegations, however it had not kept her updated as frequently as it should have. Its conclusion to date was that the noise is due to day-to-day living and was therefore not ASB. In cases such as this, its recommendation would usually be to consider mediation. The landlord, however, found that it had not considered the history of the complaints and had not referred to closed cases, which may have led it to a different conclusion. The landlord would widen its investigation to include contact with the police, from whom it said it would request information, and it would contact other residents who have also complained about the same neighbour in the past. It would review the outcome of its findings in order to enable it to come to a decision. The landlord assured the resident that she would be kept updated going forward. The landlord invited the resident to let it know if it did not complete the resolution actions set out above, and the resident could request a review of the way her complaint has been handled.
- On 26 February 2020, the landlord emailed the resident and asked whether the resident had contacted the local authority in relation to noise recordings. The resident replied that because “it’s not loud music or TV”, the local authority would not assist.
- Following a report by the resident on 7 April 2020 that she called the police, the landlord replied on the same day, requesting details of the police contact details, and detail of the threats. It stated that it had been investigating the ASB and promised a discussion regarding any threats.
- The landlord wrote to the resident on 29 April 2020 that the neighbour claimed his partner/guest responded to the resident banging on her ceiling with a broom, or shouting up. Another neighbour had verified some of the noise, arguments, loud voices, including some lifestyle noise that the landlord stated was not ASB. The landlord stated he would like an agreement on the behaviour of all residents. It also stated that the neighbour had a fully carpeted living room, hallway and bedroom. It said there needed to be understanding of some noise transference, as the rooms were large, and had high ceilings. It offered to prepare an acceptable behaviour contract with agreed behaviours; with no noise after 11pm as an example. It explained the process has been slowed down by the lockdown.
- The resident sent the landlord a video of the reported incident of 21 December 2020 on 30 April 2020, and also sent voice recordings on 2 May 2020.
- On 13 May 2020, the landlord responded to say that it had listened to the recordings but its view was the noise was not “any greater than everyday lifestyle”, and there were some arguments “now and again”. It informed the resident that it had asked an “external professional” to look at the case. The external professional was a consultant in relation to ASB.
- The landlord wrote to the resident 21 May 2020 in response to a further complaint that communal spaces are not soundproofed, the stairs do not have any covering due to the fire risk and would be apt to “resonate, given its structure”.
- On 27 May 2020, the ASB consultant wrote to say the recordings were inconclusive as it was difficult to assess the volume. He suggested that two of the landlord’s officers attend the property and carry out a test or professional installation of equipment by the council. He could hear shouting and abusive language recorded on 21 December 2019 that he judged to be “unacceptable”. He said there was nothing from the August 2019 recording.
- The landlord wrote to the resident on the same day to say it would arrange a visit in order to put the consultant’s advice into effect, when it was safe to attend the property, given Government regulations and guidance regarding Covid-19.
- On 20 July 2020, the landlord wrote to the resident to say it would contact the neighbour in relation to the behaviour of his visitors and the impact on the resident’s household. The landlord was of the view that it did not think the case would reach the bar for legal action. It also suggested that the resident contact the safer neighbourhood team.(of the police), in order to obtain independent verification of the events.
- On 3 August 2020 ,the resident requested escalation of her complaint, and on 5 August 2020 the landlord requested that the resident provide further reasons for the escalation, and what resolution she was seeking.
- On the same day, the landlord informed the resident that it cannot hear the recordings and suggested she contact the local authority in relation to her complaints.
- In response to a further complaint on 14 August 2020 regarding snoring and stamping noises, the landlord replied on the same day to say this was “lifestyle noise”.
- In response to the Housing Ombudsman’s request, the landlord escalated the resident’s complaint.
- The landlord wrote to the neighbour to advise him to control his partner’s reactions to the neighbour’s snoring on 25 August 2020.
- In its second stage response dated 27 August 2020, the landlord:
- stated it had been unable to substantiate the allegations made and invited the resident to consider mediation, but understood that the resident did not wish to engage in mediation
- advised the resident to contact the local police (Safer Neighbourhood Team) when the alleged nuisance is taking place to verify the neighbour’s reports.
- promised to follow this matter up with the police and seek disclosure from the police.
- noted that the resident does not want any visitors due to her health
- reported that it had contacted the neighbour to request that he is more mindful of the noise coming from his home.
- Following the second stage of the complaint, the resident continued to make reports to the landlord, including sending 12 audio files on 29 August 2020 but it is noted that the landlord reported that many have no sound, and some record a single “bang”. The landlord remained of the view that this is “noise transference” and had written to the resident.
- The landlord spoke to the resident on 27 August 2020, who made further allegations including that the neighbour’s partner came to her door and kicked it. The landlord repeated the advice set out in the final response letter i.e. to make contact with the police or the environmental health team of the local authority when the noise nuisance is taking place. The most recent incident was 3 August 2020 when she was going for a walk during the evening and noticed that a vehicle pulled beside her and then drove off. The landlord explained that this is not in itself ASB, and nor was the incident in August 2019 (her neighbour looking through her window whilst taking the bin out). However, the landlord added that isolated incidents could be considered as a form of nuisance if considered all together. The landlord said it would contact the alleged perpetrator to discuss the matter further.
- On the same day, 27 August 2020, the landlord telephoned the neighbour who denied making noise nuisance, denied kicking the resident’s door and he accepted that noise from the flat above him is everyday living noise. He gave an alternative account where the resident was described as the aggressor (shouting and screaming). He said it was possible that he dropped the remote control to which the complainant responded by using a broom to hit his ceiling. He did not wish to engage in mediation.
- The resident informed this service on 10 December 2020 that the landlord offered to fit frosted-glass but the resident refused for various reasons including that she would not be able to see out and avoid the neighbour.
Assessment and findings
- The Housing Ombudsman does not make judgments on whether the reports consist of ASB, or on the evidence but is only commenting on the landlord’s response to the reports. Unfortunately, the records provided consisted of email correspondence, and did not include the landlord’s attendance notes (with one exception of the 27 August 2020). Retaining accurate records provides transparency to the decision-making process and an audit trail after the event, or when no further action can be taken.
- The resident kept diaries all of June and July 2019, and nearly every day, insofar as they have been provided, from January to November of 2020. Most of the diaries were provided to the landlord, often on a frequent and regular basis. The reports fall into two categories. The noise from the property above the resident, and the conduct complained of by the resident when the two households interacted.
- While the resident’s reports regarding her neighbour had been ongoing since 2016, according to the resident, the oldest evidence provided to this service dates from June 2019. It would appear from the landlord’s letter of 18 February 2020 that there have been previous, now closed, complaints, covering earlier periods. This investigation will therefore deal with the period from July 2019. As at July 2019, the resident stated she was satisfied with the landlord’s responses to her reports.
- Despite the resident providing the landlord with crime reference numbers and contact details, there is no evidence that the landlord contacted the police or took any steps in response to the resident’s initial reports until 18 November 2019. Given the resident had informed the landlord that the police had issued a harassment warning to the neighbour it would have been appropriate for the landlord to have sought disclosure, make its own assessment of the reports and to have taken any appropriate steps, given the landlord’s policy to liaise with the police, and investigate and assess reports of ASB.
- Despite a further report of threatening behaviour from the neighbour’s visitor on 21 December 2019, there is no evidence of any response from the landlord until the 6 January 2020, when it merely acknowledged receipt of 40 emails from the resident.
- While it was an appropriate response for the landlord to visit the neighbour, and make enquiries, as promised on 29 January 2020, there is no evidence when this occurred except that it was some time before 29 April 2020. This was an inappropriate delay. Early and appropriately-timed interventions could prevent escalation of the behaviours complained of, and the delay is likely to have caused the resident frustration, to the detriment of the landlord/resident relationship. The delay was inappropriate, given the landlord’s policy to assess the seriousness of anti-social behaviours reported to it, adhere to specified target response times and investigate the reports.
- There was a further inappropriate delay given that the next substantive response was not until 18 February 2020.
- It was appropriate of the landlord to enquire (on 26 February 2020) whether the resident had contacted the local authority. It was also appropriate for the landlord to request contact details of the police as it stated it would do 7 April 2020, however its next substantive response was not until 29 April 2020. This represented an inappropriate and unreasonable delay following the reports of July 2019, given the landlord’s policies to investigate and assess reports of ASB.
- The contents of the response 29 April 2020 were reasonable: The landlord, having made enquiries, was entitled to make a judgement whether the reports consisted of ASB or ‘day-to-day living’. Domestic, day-to-day living noises is specifically excluded from the definition of ASB in the landlord’s guidance. The resident’s reports, as outlined in the chronology above, in the main reflect this decision by the landlord, as the reports generally relate to issues the Ombudsman would consider examples of everyday noise.
- It was reasonable for the landlord to report what the neighbour had informed him, namely that he alleged that the resident banged her ceiling with a broom. It was reasonable the landlord made it clear it was not drawing any conclusions as it would not be able to. It was also reasonable for the landlord to conclude, having investigated, that ‘some’ of the noise did not constitute ASB, given that the policy excludes family arguments and domestic noise. It was also reasonable to have ascertained and to report that the neighbour’s property was carpeted. While the landlord still had not addressed the encounters between the parties, it was a reasonable suggestion that there be acceptable behaviour contracts (ABCs) between the parties, for example including no noise after 11pm. While the resident might not have felt happy entering into such an agreement herself, this is a reasonable and standard approach to neighbour disputes that all parties enter into agreements regardless of fault finding. It was also reasonable for the landlord to explain that there is bound to be some noise transference given the construction of the building.
- It was reasonable for the landlord to explain that at that time (29 April 2020) it was focussing on ensuring that older and isolated residents were receiving food shopping and support due to the ongoing lockdown measures and the resulting impact upon landlord service delivery. It also sought to reassure the resident that her issues were still important. This does not explain, however, the overall lack of communication hitherto.
- There is no evidence that the proposed steps for the parties to enter into an ABC were put into action or a reasonable explanation provided why not.
- It was reasonable of the landlord to ask for the date of the video evidence the resident provided on 30 April 2020, and to promise to discuss the reports with the neighbour.
- The landlord’s explanation that noise in communal spaces was not ASB was a reasonable response. Going up and down stairs is excluded from ASB in the policy, and there is no evidence that the neighbour’s actions were deliberate.
- While the landlord had yet to consider whether the noise reported was so persistent or loud as to fall into the category of nuisance, or inconsiderate behaviour, it was commendable that very soon after, the landlord sought the advice of a consultant expert on ASB.
- It is of concern that the landlord’s account of 13 May 2020 that all he had heard on the recordings were ‘everyday noises’, differed to that of the consultant. However, the ASB consultant detected only one single incident (that of 21 December 2019), of abusive language which was “unacceptable”. The consultant recommended that the level of noise be measured either by a basic sound test or by the local authority.
- The landlord acted appropriately in promptly offering to carry out this exercise, but was unable to implement this advice due to not being able to visit the resident’s home as she was exercising additional precautions regarding her vulnerability, even though lockdown had ended at that stage, and that position appears to have remained.
- Given there was little else the landlord could do at that stage, pending arranging visits to the respective properties to assess the sound levels, it was reasonable for the landlord to continue to consider any further reports, and refer the resident to the neighbourhood team, the local authority and inform the resident the recordings she sent were not audible. It was also reasonable that the landlord considered whether the reported incident 3 August 2020 where the neighbour parked alongside the resident when she had stopped in the street to pet a cat was ASB or not.
- It was also reasonable for the landlord to have written to the neighbour on 25 August 2020 in order to address the reported arguments taking place in his property, despite its policy on ASB excluding “family arguments”, and, not for the first time, to suggest mediation. The neighbour’s tenancy agreement will include the same provisions as the residents, requiring them to refrain from actions that might cause nuisance or annoyance, as such the landlord’s decision to write to the neighbour was reasonable.
- Given how poor the sound proofing was, if the resident could hear the neighbour snoring, it would also be appropriate for the landlord to have considered if there were any steps it could have taken regarding sound proofing. This may not be a proportionate or a practical response, but the landlord should have considered this in any event. If it was unable to provide any further options on this issue, confirming this together with the reasons why it was unable to act would have provided clarity and transparency to the resident.
- While events post the completion of the landlord’s internal complaints procedure are outside the remit of this investigation, it is noted that since the final response letter, the landlord promised to speak to the neighbour regarding being more considerate, especially after 11pm. It expressed understanding that the resident found the ‘noise transference’ intrusive and it would ensure the neighbour is aware. The landlord also, in a reasonable exercise of its discretion, offered to instal frosted glass in the resident’s windows in order to afford her more privacy, which offer the resident declined.
- There was a considerable initial delay to the landlord’s response. There is no evidence that the landlord liaised with the police, as promised in November 2019, or on later occasions, and in accordance with its policy. It did not speak to the neighbour until on a date between January 2020 to April 2020. It did not address the incident 29 July 2019 or 23 December 2019 at all, even after receiving evidence of ‘unacceptable behaviour’ consisting of abusive language in May 2020. The landlord considered the parties entering into acceptable behaviour contracts, but there is no evidence that it followed this proposal up, or of any reason why it was not followed up.
- However, with the exception of the incident of 21 December 2019, given the description of unacceptable language, the landlord was entitled to conclude the noise complained of was household noise, especially in the light of the evidence from another neighbour. It said it would consider the noise in light of its policy that persistent noise can be deemed to be ASB. It acknowledged and explained that the noise was amplified due to poor sound insulation. It checked the neighbour’s flooring was property covered, it enlisted the assistance of an ASB consultant which advice it offered to implement, it referred the resident to the police and local authority. It asked the neighbour to be considerate, and to control the behaviour of his visitor. It considered legal action and it offered mediation. It also offered to instal frosted glass in the resident’s property. The landlord was unable to implement much of its advice due to government restrictions in relation to the Covid-19 pandemic and resident’s concerns.
The landlord’s complaint handling
- The landlord promptly acknowledged the resident’s complaint of 26 November 2019 and provided a timescale of response of 10 working days. If the first response had indeed been 10 December 2019, the response time would have been appropriate however unfortunately, due to the landlord’s poor record keeping in this regard, the true date of the response is not clear. The resident’s evidence is that she did not receive the response before the 14 July 2020, and given the first response letter was misdated, it would be reasonable to conclude the first stage response was not received by the resident until sometime between the 14 July 2020 and the date the resident requested escalation of the request. This would be an unreasonable delay, and further, it would appear that the landlord did not take the opportunity to send the first response letter after being contacted by this service 18 February 2020. However, while the resident was put to the trouble of chasing the first response letter, this did not have a significant impact on the resident.
- The first response was reasonable in content as the landlord acknowledged its failings, in particular its lack of communication. It set out what further steps it would take. It was appropriate that the landlord promised to consider the reports in the context of historical complaints, and to promise to widen its investigation including making enquiries with other neighbours and the police.
- Given it is not clear when the resident received the first stage response, it was reasonable of the landlord to have accepted the request for escalation, even though the request for escalation may have been several months after the first response. It was reasonable and appropriate that the landlord required the resident’s reasons for escalating the complaint and enquired what resolution she was seeking. The landlord provided its final response within a reasonable timescale.
- The second response was not appropriate in content, in that it missed the opportunity to provide a full and clear explanation for its actions. Its only explanation for not taking action was that the landlord had been unable to substantiate the allegations but the letter was not clear whether it was referring to the resident’s or the neighbour’s, or both. It failed to acknowledge there was evidence of some ASB (The recording of the incident of 21 December 2019). It also contradicted its own previous position which had acknowledged there was noise from the property upstairs, albeit due to poor sound insulation, and that the sound levels were yet to be investigated. While it may not have changed the outcome of the complaint, the letter did not consider in any detail its own actions to date, apart from the referral to other agencies.
- The landlord could have used the opportunity the complaints procedure provided to review its actions and to explain more fully the reasons for its actions in the context of its policies, in particular the guidance which includes deliberate and intentional acts, and failure to address inconsiderate behaviour as anti-social behaviour. Given some of the complaints refer to noise from the neighbour’s washing machine and vacuum cleaning, it should also have explained its position on the reports given its definition of ASB excluded domestic noise, while the tenancy agreement includes ‘noisy domestic appliances’. However, while it is suggested that the landlord be clearer and more transparent about its decisions, there was no overall significant impact on the resident given the steps offered by the landlord to resolve the substantive complaint.
- In accordance with paragraph 54 of the Scheme there was:
- No maladministration in relation the landlord’s response to the resident’s reports of anti-social behaviour.
- No maladministration regarding the landlord’s complaint handling.
- The landlord’s initial response to the resident’s reports was delayed, however the conclusion was that the noise was household noise overall, and the landlord took appropriate steps to deal with the resident’s reports, therefore the delays would not have significantly affected the overall outcome for the resident.
- While the landlord missed the opportunity to review its actions in its final response and there was delay in the resident receiving the first response, there was no evidence of a significant detrimental impact on the resident.