Wandsworth Council (202114577)

REPORT

COMPLAINT 202114577

Wandsworth Council

28 October 2022

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:
1. The landlord’s handling of the resident’s reports of anti-social behaviour (ASB) and noise disturbance.
2. The landlord’s handling of counter allegations made against the resident.
3. The landlord’s handling of the resident’s request to be transferred.

Background and summary of events

The landlord’s Tenancy Agreement states:
1. “You must look after the communal areas such as stairways and passageways, keep them as clean and tidy as possible and clean them as reasonably requested by us”.
2. “We will take reasonable steps to investigate your complaints and will take action where appropriate. We will do all we can to help solve any problems with your neighbours and will take firm action against neighbours who cause a nuisance”.
The landlord’s ASB Policy states:
1. “When ASB is reported the Estate Manager/Senior Estate Manager (EM/SEM) will discuss the problem with the complainant and agree an appropriate plan of action. This could include:
  1. Talking to the perpetrator, if appropriate.
  2. Interviewing or writing to the perpetrator.
  3. Arranging a mediation interview.
  4. Progressing legal action to resolve an ASB incident.
  5. Involving and working with partner agencies”.
2. “ASB cases should be created in NPS within the Customer Services Module”.
3. “If nuisance diary sheets are returned:
  1. Consider the evidence and the type of behaviour complained about. Does it point towards a pattern of behaviour, other suspects?
  1. The EM/SEM may decide to interview (or write to) the alleged perpetrator to ascertain their ‘side of the story’.
  2. The EM/SEM may attempt to pursue informal mediation between the alleged perpetrator and complainant or formal mediation via Wandsworth Mediation Service”.
The Council’s information pamphlet for residents on ASB states:
1. “A housing officer will discuss the problem with you and agree an appropriate plan of action. This will include action that both you and the officer should take. It may include:
  1. talking to your neighbour, if you have not already done so.
  2. the housing officer interviewing or writing to your neighbour.
  3. the officer arranging a joint interview (the mediation approach).
  4. collecting further evidence through diaries and photographs or collaborating with other neighbours, the police or professional witnesses.
  5. taking legal action (see section on the types of enforcement and legal action available).
  6. involving other appropriate agencies”.
2. The pamphlet recognises that “Generally, for the council to take action there needs to be a reasonable number of ongoing incidents of significant nuisance. We cannot take action because neighbours do not get on.”
The landlord’s Management Transfer Procedure “sets out the steps that must be followed when Wandsworth Council tenants need to move from a situation of immediate risk where the applicant or a member of his / her household is being threatened or harassed or is subject to other exceptional circumstances (i.e. management transfer cases). The procedure states:
1. “The tenant(s) still want(s) to apply for a management transfer, advise them to fully complete the Housing Application Form (and, if necessary, Medical Assessment Form) and return the forms to you (along with the photographs and documents detailed on the form)”.

Summary of Events

The resident’s property is a ground floor flat in building containing four units. The resident has reported noise from the flat above, mainly banging and slamming, footsteps, the movement of furniture and music.
After the resident requested soundproofing, on 12 March 2019 the landlord wrote to the upstairs neighbour asking her to limit the noise from her music and children and suggested that she lay rugs or carpet runners.
On 9 May 2019, in response to a query from the resident’s MP, the landlord advised that it had spoken to the neighbour about the resident’s reports of noise, and while it did not think that the neighbour was acting unreasonably it had asked her to control noise levels. It further advised the MP that it would visit the neighbour again but that it would not install sound insulation as it had no responsibility to.
On 21 and 23 September 2020 the resident wrote to the landlord stating that she was unhappy with the noise and the behaviour of the neighbour’s children. On 24 September 2020 the landlord responded to the resident noting that it had explored mediation, but the neighbour was not willing to enter at that time. It noted that the neighbour had complied with a request to lay rugs in high traffic areas. The landlord further explained to the resident that she may still experience noise from the flat above but unless the noise was made deliberately and at a level considered to be a statutory nuisance, it would consider it to be everyday living noise.
The landlord further advised that it would not be installing sound-proofing to either property; however, the resident could contact its out of hours, Environmental Control team to witness and report any noise that the resident considered be deliberate and unacceptable. The landlord also confirmed that it had spoken to the neighbour about a report from the resident of tomato ketchup splatters outside and writing with crayons on a wall. It noted that the neighbour denied responsibility and there were no witnesses to the matter.
Between December 2020 and February 2021, the resident, as well as reporting noise from the neighbour’s children running after 8.00pm and the activities of guests, made several reports to the Environmental Control team, including noise she believed was from dragging furniture and DIY. On 12 January 2021, the landlord sent the neighbour a warning letter as it witnessed noise from DIY works on 8 December 2020 that it considered to be a statutory nuisance. The landlord has provided evidence that it contacted the neighbour about the reports and obtained her version of events, which included counter-allegations about the resident’s behaviour.
On 18 January 2021 the resident acknowledged receipt of the noise patrol report of 8 December 2020. She also reported rubbish outside her garden entrance including a dirty nappy.
On 21 February 2021, the resident reported that she had called the police after the neighbour’s partner had responded aggressively to her tapping on the ceiling. The neighbour also reported the incident noting that the resident had banged when she had taken an item out a drawer. The landlord spoke to the neighbour about the resident’s allegations and confirmed that the neighbour wished to enter mediation.
On 11 March 2021 the resident emailed the landlord accepting mediation. She also reported a nappy in the communal area and items thrown in her garden contending that the neighbour was responsible. The landlord spoke the neighbour about these reports although it did not respond to the resident’s email and advise her of the action taken at the time.
Following another report of DIY, on 13 March 2021, the Environmental Control team visited and reported that it heard no noise heard at the time of the visit, 4pm.
On 15 and 22 March 2021 the resident made further reports of nuisance, suggesting that the neighbour should not socialise in her bedroom which was above the resident’s. The resident also stated a report from the neighbour that she was causing mice was untrue and suggested it was made in retaliation to her noise complaints..
On 2 April 2021 there was another visit by the Environmental Control team. Its report noted hammering sounds after arriving at 17:45 and it “tried to get the residents to meet @ a common ground”. The report notes that it approached the neighbour’s household who advised that they were not aware that they were causing nuisance. On 7 April 2021 the landlord wrote to the resident that it did not confirm the noise at the visit of 2 April 2021 therefore it would not take any further action.
On 6 and 9 April 2021 the resident submitted a formal complaint about the landlord’s handling of her reports of noise including noise from DIY, people walking about and furniture being moved, rubbish left in communal areas and the handling of her noise nuisance call on Friday 2 April 2021. She stated that the officer who attended the call, had laughed and joked with the neighbour, advised her that she was being too harsh on her neighbour given her neighbour was carrying out works in preparation for the birth of her baby and had made other statements which she considered to be unprofessional and offensive. The statements including a comment that she could buy her neighbour a carpet and that she should not record continued banging noises as he was talking. On 13 April 2021 the landlord acknowledged receipts of recordings provided by the resident.
On 11 May 2021 the landlord sent the Stage 1 response to the complaint. It noted that the resident had reported ASB from her neighbour include DIY noise; people walking about; furniture being moved during the evening and rubbish being left in the communal area. The landlord noted that warnings were issued, and mediation was offered to try and improve relations. However, there was insufficient corroborating evidence to show any persistent breach of tenancy and as a result, formal enforcement action was not considered appropriate. The landlord also noted that there were also counter complaints from the neighbour regarding the resident’s own alleged behaviour towards her and her family.
With regard to the visit of 2 April 2021, the landlord stated that the member of staff’s account of the events that took place were similar to the resident’s. It explained that staff who attended reports of noise would often to try to elicit co-operation from residents breaching their tenancy conditions by trying to de-escalate the situation. The member of staff strongly denied that he acted in a manner that would be deemed unprofessional or acted in a manner that would be offensive. The landlord further stated that these members of staff did not have the power to stop the nuisance when it was happening but would submit a report on their findings which took place in the resident’s case.
The landlord concluded by not upholding the complaint. It found that the resident’s report about the neighbours were properly investigated, and the actions taken by officers were reasonable, unbiased and in line with established procedures. The level of nuisance was not at the level that would warrant a high priority transfer. However, it would make a formal referral for mediation to its mediation service.
On 20 May 2021 the resident escalated her complaint citing several reasons.
1. She did not accept the report of the member of staff at the call out of 2 April 2021 and did not consider he had acted impartially. There continued to be noise after he left. She had provided a CAD number as requested but not received a response from the landlord.
2. There had been a dirty nappy in the communal area since 18 January 2021.
3. The landlord had focussed on the neighbour having children; however, children were not responsible for much of noise complained about like DIY and the dragging furniture late at night. She had only complained about the children when they were running around when visitors came.
4. She had explained why she did not wish to engage in mediation. She noted that the neighbour had refused to engage the previous year. With regards to counter-allegations, she accepted she had retaliated on occasion.
5. The neighbour’s report that she was causing mice in the communal area outside was untrue and was only made as she had made a noise complaint.
6. She believed her case merited as a move as she was required to provide nuisance evidence via the Environmental Control service which was difficult. She advised that her mental health had been affected. She felt too intimidated to use the back garden as her neighbours overlooked it and she wished to be transferred before a serious incident took place.
7. She had complied with a request to not contact her neighbour in person or by note. She had also kept a log of issues but did not understand why the landlord would not accept evidence from her phone.
On 2 June 2021 whilst visiting to inspect repair issues at the resident’s property the landlord removed a nappy and other bits of rubbish.. The landlord also visited the neighbour and noted that carpets had been laid. It asked the neighbour to be mindful of causing noise in the mornings who agreed to comply although noting that her children had to get ready for school.
Whilst awaiting the Stage 2 response the resident made further reports. On 3 June 2021 she reported a loud bang late at night. The landlord wrote and spoke to the neighbour about the report who advised she dropped a flask by mistake and confirmed her agreement to mediation. It informed the resident of the neighbour’s response who countered that the noise was continuous for over an hour and that she did not wish to enter mediation.
On 8 June 2021 the resident again reported an incident of banging late at night and that she played music to drown out stomping. The following day, the neighbour reported that the resident playing loud music in the bedroom and watching TV loudly after midnight which disturbed her baby’s sleeping patterns. The neighbour again confirmed her willingness to enter mediation, but the resident declined.
On 14 July 2021 the landlord sent the Stage 2 response to the complaint.
1. It had carried out an impartial investigation based on the evidence presented to it. It asked the resident to provide further information, including video footage and incident diaries, relating to recent incidents of nuisance.
2. It had responded to the resident’s concerns about the visit of 2 April 2021 in the Stage 1 response. Given that there were differing accounts it could not reach a definite conclusion on what happened.
3. It would arrange an inspection and sound test to take place to determine whether the floor coverings in the neighbour’s home were sufficient to reduce the transmission of noise between the two properties.
4. It asked the resident to consider mediation with the neighbour who had already agreed to engage.
5. It explained that management transfers were provided when there was a real threat to life or limb, and it normally relied on supporting evidence from the police. However, it asked the resident to provide medical evidence so it could consider further her request.
On 27 August 2021 the resident wrote to the landlord stating that there had been no improvement in the situation and that it had not carried out actions stated in Stage 2 response, including no visit to check noise levels.
On 23 September 2021 the resident referred the complaint to this Service stating that the landlord had not carried out the actions recommended in the Stage 2 response.
85 In December 2021, the landlord also corresponded with the neighbour about further reports of noise. The neighbour suggested that there may be noise from her baby who was now crawling on the floor. The resident disputed that the baby had caused noise stating that she heard banging noises. She advised that she had recordings which she wanted the landlord to see.
On 20 January 2022, two members of staff visited the resident to witness noise. They heard day to day noises which the resident stated did not bother her. The resident again refused mediation. The landlord agreed to speak to neighbour although it advised this Service as of 18 March 2022, when providing information to this Service for the investigation, it had contacted the neighbour but not yet been able to arrange a convenient appointment.
The landlord also when providing information to this Service advised that the resident had not submitted transfer request on the advice of her solicitor.

Assessment and findings

The landlord’s handling of the resident’s reports of anti-social behaviour and noise disturbance

It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here constituted ASB, as that was a judgement which fell to the landlord to determine. The landlord, however, has responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
It should also be noted that a resolution which suits all parties may not be possible in cases where there are lifestyle differences or personality clashes, resulting in neighbour disputes rather than ASB, for example.
Upon receiving reports of alleged ASB the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of ASB are appropriately and effectively responded to. The landlord’s policy and procedure for addressing ASB was comprehensive and appropriately structured. It allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
The landlord’s ASB procedure outlines preventative and informal measures to tackle reported ASB and nuisance behaviour such as by talking to, interviewing and writing to the alleged perpetrator. It is evident that the landlord has sought to resolve the resident’s reports in this way, raising the resident’s reports with the neighbour when received and asking her to be mindful of noise from her music and children. It was also appropriate that the landlord asked the neighbour to lay down rugs or carpets as whilst this is not a tenancy obligation, such floor coverings can dampen noise. Furthermore, there is evidence that the landlord checked the floor coverings in the neighbour’s property such as at the visit of 2 June 2021.
The landlord also took steps to manage the resident’s expectations making clear in its response of 20 September 2020 that she should expect to hear day to day living noise and that it could only reasonably take action against the neighbour if the noise was considered to be deliberately made or a confirmed statutory nuisance. Furthermore, the landlord provided appropriate guidance on how evidence of noise resulting from ASB could be obtained by referring the resident to the Environmental Control team. Where a statutory noise was witnessed, on 8 December 2020, the landlord took appropriate action by sending a warning letter.
The landlord in also discounting the installation of soundproofing managed the resident’s expectations as to whether it would take physical, preventative measures in response to her reports. Soundproofing works constitute an improvement outside of the landlord’s repair obligation and the Ombudsman accepts that landlords are not responsible for soundproofing homes above the standards applicable at the time of building. Moreover, landlords are entitled to take into account the consistency of the service it provides to residents reporting noise from neighbours. Nonetheless, the landlord may wish to consider whether actions taken to prevent and/or mitigate for the typical sources of noise nuisance will, in the long run, be more cost-efficient than handling the subsequent noise nuisance report. Landlords should also consider their net zero plans for insulation to ensure that the thermal insulation activity planned will also provide noise insulation and will not make any existing noise transference issues worse.
Mediation is an option specified in the landlord’s policy. The policy recognises that mediation is commonly used tool for resolving disputes between neighbours. It allows both parties to understand the experience of the other party, facilitated by a mediator, without attributing blame, and reach an agreement in an amicable way to resolve the disputed issue. Mediation is especially useful in cases where the landlord considers in unfeasible to pursue legal action. As such it was in accordance with its policy and reasonable that the landlord offered the parties mediation.
However, there were shortcomings in the landlord’s handling of the resident’s reports about her neighbours. At no point did the landlord ask the resident to complete diary sheets. Collated reports in the form of diary sheets allow landlords to ascertain the type, duration, frequency and impact of reported noise. This in turn can inform what, if any, further action the landlord can take next.
There is also no evidence that the landlord sought evidence of noise through use of a noise app or other recordings made by the resident. Whilst this Service appreciates the pressures on staff, listening to recordings provides for a robust investigation and a true understanding of the noise being reported. Recordings were particular pertinent in this case as the resident at times disputed the neighbour’s version of events relating to duration and type of noise, such as the noise reported on 3 June 2021. Compounding this, the landlord confirmed receipt of recordings sent by the resident on 13 April 2021; however, there is no evidence that the landlord considered them which contributed to the resident’s perception that it did not fully appreciate her circumstances.
From January 2021 the resident reported nappies and other items of rubbish being thrown and left in her garden area and communal areas, allegedly by the neighbour and her family. The landlord took action to address the allegation by raising it with the neighbour on 11 March 2021 and in the absence of evidence that the neighbour was responsible this action was reasonable. However, the resident indicated in her complaint of April 2021 that this was an ongoing issue. As such, it missed an opportunity to provide diary sheets the return of which would enable it to ascertain the details of disposed items and consider whether a pattern of behaviour could be established.
An aspect of the resident’s complaint was how the visit of 2 April 2021 was handled. It is evident from the landlord’s report that it took steps to resolve the immediate situation by speaking to the neighbour at the time. However, in responding to the resident’s complaint, it did not acknowledge or address her concerns about specific comments the member of staff had made to her which she found offensive. This shortcoming left it vulnerable to further allegations of bias.
The landlord in the Stage 2 response identified steps to allay the resident’s concerns about the handling of her case, in particular agreeing to consider footage she had provided and her nuisance diary. However, there is no evidence that it has since done so. The landlord also agreed to test the sound transmission between the properties so that it could assess the effectiveness of the neighbour’s floor coverings; however, whilst it visited to witness noise on 20 January 2022, it has not evident that it took a view on the neighbour’s floor covering. Therefore, whilst the landlord identified reasonable steps to take when responding to the resident’s formal complaint, it has failed to take those steps. As confirmed by her complaint to this Service, this failure has exacerbated her frustrations.

The landlord’s handling of counter allegations made against the resident

The landlord received counter-allegations about the resident’s behaviour such as noise from her music. The landlord had an equal obligation to the neighbour under its ASB policy to investigate her obligations. It is appropriate that landlords raise reports about the behaviour of alleged perpetrators with them to enable them to respond and where appropriate, to take steps to change their behaviour and to put things right. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy obligations. As such, it was appropriate and in line with its policy that the landlord raised counter-allegations with the resident.
As noted above, it was in line with its ASB policy and appropriate that the landlord offered mediation. The fact that the neighbour had concerns about the resident’s behaviour further supported its pursuit of the parties finding a mutual resolution through mediation.

The landlord’s handling of the resident’s request to be transferred.

In responding to the resident’s complaint, the landlord addressed the resident’s request for a management transfer as resolution to her case. Whilst neighbour disputes can be extremely stressful and upsetting, however, the landlord is not required to move a resident due to ongoing neighbour disputes; ordinarily, it is the responsibility of residents themselves, with the landlord’s intervention if appropriate, to resolve the issues and/or to find a way to live together with minimal impact of any mutual dislike. Nor is the landlord obliged to transfer a party as a response to an ASB case.
Applicants for housing, including tenants who wish to be transferred such as the resident, should apply under the Council’s Housing Allocation Scheme. Under the Scheme the Council gives reasonable preference to applicants with certain indicators of housing need and determines priorities of applicants when allocating properties. Management transfers fall within Band A, the highest priority band. The landlord by explaining the high threshold needed for any applicant to obtain a high priority transfer took steps to manage her expectations of a transfer given the circumstances of her case. However, it recognised that the resident had stated that her health had been impacted by her housing situation. It was therefore appropriate that the landlord asked the resident to provide medical evidence as this would help it assess whether to award the resident medical priority for a transfer, and if so, what level of priority.
It is not clear from the information providing to this Service that the resident has returned the necessary transfer forms or provided supporting medical information. Regardless, in assessing this complaint, this investigation is limited to considering the advice provided to the resident by the landlord within the complaints procedure. This is because the Local Government Ombudsman will consider complaints that concern the handling of an allocation under Part 6 of the Housing Act 1996 including applications from a tenant for a transfer if they fall within one of the ‘reasonable preference’ categories.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect its handling of the resident’s reports of ASB and noise disturbance.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of counter allegations made against the resident.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of the resident’s request to be transferred.

Reasons

The landlord has taken action in line with its ASB policy to investigate and resolve the resident’s reports of ASB. In particular it has raised her reports with the neighbour, sent a written warning when an instance of statutory nuisance was witnessed, asked for rugs and carpets to be laid down and checked this, offered mediation. However, there has been shortcomings in its response insofar as at no point did it ask the resident to complete diary sheets for its consideration or sought evidence of noise through the use of a noise app or other recordings made by the resident. Compounding this, the landlord has not taken the further steps identified in the stage 2 response intended to resolve the resident’s case, in particular considering the footage she provided, consider her nuisance diaries and test the sound transmission between the properties.
The landlord also failed to adequately address the resident’s complaint about how the visit of 2 April 2022 was handled. In particular, it did not acknowledge or address her concerns about specific comments the member of staff attending had made to her which she found offensive.
It was appropriate and in line with its ASB policy that the landlord raised counter-allegations with the resident. The fact that the neighbour had concerns about the resident’s behaviour further supported its pursuit of the parties finding a resolution through mediation.
The landlord is not obliged to transfer the resident as a response to her ASB case. By explaining the high threshold needed for any applicant to obtain a high priority transfer, the landlord took steps to manage her expectations of a transfer given the circumstances of her case. However, it recognised that the resident had stated that her health had been impacted by her housing situation, therefore it was appropriate that it asked the resident to provide medical evidence which would allow it to establish her priority for a transfer.

Orders

The landlord is ordered to, within the next four weeks:
1. Pay the resident £200 compensation for the distress and inconvenience caused by its handling of her reports of ASB and noise disturbance.
2. Ask the resident to provide recordings and/or diary sheets of ASB and noise. It should then within two weeks of receipt confirm to the resident what further action, if any, it will take having considered this evidence.
3. Seek to carry an inspection and sound test, as offered in the Stage 2 response to determine the effectiveness of the floor coverings in the neighbour’s home in reducing the transmission of noise. (The resident is to note that this does not necessarily mean that the landlord can or should force the neighbour to install rugs / carpets / floor coverings / underlay).