Wandsworth Council (202206989)

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REPORT

COMPLAINT 202206989

Wandsworth Council

28 March 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

  1. The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB) and noise disturbance from neighbouring properties.

Background

  1. The resident is a secure tenant of the landlord, the tenancy started on 24 September 2012. The resident lives in the property with her adult daughter. The property is a 2 bed ground floor maisonette. The landlord has noted the resident’s adult daughter is vulnerable but full details are not recorded. The resident’s adult daughter acted as her representative in bringing the complaint to the Ombudsman and noted that both her and her mother had health issues and were vulnerable. Any contact from the resident’s daughter will be referred to as being from the “the resident” in this report.
  2. The resident complained about noise disturbance from the flat above and the flat next door, these will be referred to as neighbour A and neighbour B throughout this report. Neighbour A is a leaseholder and neighbour B is another tenant of the landlord. Evidence has been seen to show the reports of noise from neighbour A started in 2018, with reports of stomping, hammering and dragging noises as early as 4am up to 11pm. The reports of noise from neighbour B started in January 2019, these reports started as the neighbour being drunk, banging and shouting to himself at 4am. The reports then became about loud music being “blasted” all day and night. Although between 2018 and 2021 the reports are not frequent, from 2022 the reports of noise, especially from neighbour B became more frequent. The landlord advised the resident to contact its emergency control team, which was available 24 hours a day for an officer to attend and witness the noise.
  3. The resident made a complaint on 23 March 2022 as she had written numerous times about the noise for years but felt this had been ignored. She felt the new estate manager had believed neighbour A when they visited and advised as thick carpet and underlay was in situ there was not much more the landlord could do. The resident stated the noise had increased since the visit. The resident also described neighbour B as “intentionally” blasting “techno and heavy metal music” whenever they felt like it, when reported the noise would stop when a noise control vehicle arrived. The resident said she felt “suicidal with stress and hopelessness”, wanted help with the noise complaints and to not be ignored or the landlord to take the side of the other neighbours.
  4. The landlord responded to the residents complaint at stage 1 of its procedure on 14 April 2022. The landlord detailed its actions in response to each of the reports of noise from the resident and did not uphold her complaint. It advised no noise reports were recorded prior to October 2021 and from the evidence of its actions it was clear the resident had not been “ignored”.
  5. The resident escalated her complaint via email on 19 April 2022 following receipt of the landlord’s response and stated key points had been missed. She stated that she had raised noise issues in 2018 and 2019 and explained the neighbours stop the noise as soon as anyone arrived at the door. She found it “strange” that the counter allegations made from neighbour A had been believed but she wanted to mediate or find a solution to the issue.
  6. The landlord provided its stage 2 response on 10 May 2022, within this response it confirmed historical emails dating back to 2018 had been found and apologised for the oversight in its stage 1 investigation. It did not uphold the residents complaint as it had found these earlier reports to have been acted on appropriately also and reiterated the conclusion of its stage 1 response.
  7. The resident contacted the Ombudsman on 4 July 2022, she stated she had not been helped with the situation and continued to live with the ongoing noise.

Assessment and findings

Scope of the investigation

  1. It is important to note the Housing Ombudsman investigates complaints about the actions of local authorities and councils, in connection with their housing activities in so far as they relate to the provision or management of housing. Paragraph 42 (j) of the Housing Ombudsman Scheme states that the Ombudsman may not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. The landlords emergency control and estate service officers, is a service it provides in its capacity as a local authority to deal with statutory noise nuisance. The Local Government and Social Care Ombudsman (LGSCO) considers complaints about local authorities. Therefore, if the resident remains dissatisfied with the actions of the emergency control or estate officers, she may wish to seek further assistance from the LGSCO.
  2. Whilst it is not disputed by either party that this has been a longstanding issue spanning many years, under paragraph 42(c) of the Housing Ombudsman Scheme, the Ombudsman may only consider complaints brought to the attention of the landlord as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising. For this reason, the scope of this investigation will be limited to matters since November 2021. That means the Ombudsman has not investigated noise reports between 2018 and November 2021. However, previous reports have been considered insofar as they provide context to the resident’s complaint.
  3. It is clear from the resident’s submission that she has been distressed by the reported noise disturbances and she believes that the landlord has not taken appropriate action in response to her reports of the noise disturbance. The resident’s feelings are understood and it is not disputed that dealing with such situations is stressful.
  4. Having considered the information supplied to this investigation, it is important to note that it is not the Ombudsman’s role to determine whether ASB or noise disturbance occurred or, if it did, who was responsible. What the Ombudsman can assess is how a landlord has dealt with the reports it had received and whether it had followed proper procedure, followed good practice, and behaved reasonably, taking account all of the circumstances of the case.

The landlord’s handling of the resident’s reports of anti-social behaviour (ASB) and noise disturbance from neighbouring properties.

  1. The landlord’s tenancy agreement states it will take reasonable steps to investigate resident neighbour complaints and will take action where appropriate. It says it will do all it can to help solve any problems with neighbours and will take firm action against neighbours who cause a nuisance. Therefore, the landlord has a responsibility under the terms of the tenancy agreement to take appropriate action in response to any reports of noise disturbance or ASB that it receives.
  2. In this case the landlords response to the resident was to advise her to contact the emergency control line to report the noise disturbance she was experiencing when the noise was occurring for it to be witnessed. This was appropriate in the case of neighbour A, however neighbour B was also a tenant and therefore the landlord should have followed its ASB policy in addition to this advice.
  3. The landlord’s (ASB) policy defines ASB as conduct that has caused or is likely to cause harassment, alarm or distress to any person. It says it will contact the resident to discuss the problem and agree an action plan. In addition, it has a range of measures to deal with ASB, such as interviewing and writing to the perpetuator, arranging mediation, work with partner agencies and take legal action.
  4. Where a landlord investigates ASB, the Ombudsman would expect the landlord to make it very clear from the outset what actions it will take to investigate the reports. Equally as important, the landlord must also manage a residents expectation as to what action it can take, as the actions available to it may fall short of a resident’s preferred resolution. The landlord’s ASB policy echoes this approach and notes it will create an action plan for its investigation with the complainant. No evidence has been seen to show the landlord had agreed an action plan with the resident, it therefore failed to demonstrate it followed its own policy.
  5. The landlord’s ASB policy outlines preventative and informal measures to tackle reported ASB, including noise nuisance, 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. The landlord did take action to address the allegations of noise by raising it with neighbour B on 2 separate occasions, sending written warnings, in the period between the resident raising a complaint in March 2022 and its stage 2 response in May 2022. Following the noise reports continuing, a section 80 abatement notice was served on this neighbour, it is not clear however from the landlords notes if this was just in response to the 1 occasion the music was witnessed or the volume of reports made.
  6. It was also appropriate for the landlord to visit neighbour A to check for floor coverings and carry out a later sound test for noise transference. Although evidence has not been seen of the landlord advising the resident of the outcome of this test. The resident, in an email, detailed a visit where it was discussed however the landlord is expected to keep accurate records of its communication and actions with residents. The landlord is therefore unable to evidence it communicated to the resident the outcome of the sound test, which is not reasonable.
  7. Evidence has not been seen that the landlord took the necessary steps to manage the resident’s expectations making it clear that she should expect to hear day to day living noise and that it could only reasonably take action against neighbour A if the noise was considered to be deliberately made or a confirmed statutory nuisance. Its continuous message to contact the emergency control line would have raised her expectations it could take decisive action in her case with neighbour A even if the noise was deemed as household noise at an acceptable level, which it later was. This caused the resident growing distress and cannot but have exacerbated the situation for her.
  8. In the case concerning neighbour A, the landlord should have managed the resident’s expectations and advised what action it could consider, whether it would take physical, preventative measures in response to her reports should have been considered. 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. Nonetheless, the landlord may wish to consider whether actions taken to prevent and/or mitigate for the typical sources of noise will, in the long run, be more cost-efficient than handling the subsequent noise nuisance reports.
  9. Furthermore, the landlord has not provided evidence to demonstrate it gave appropriate guidance on how evidence of noise could be obtained other than by referring the resident to the emergency control team. At no point did the landlord ask the resident to complete diary sheets. The resident indicated in her complaint of March 2022 that this was an ongoing issue. As such, it missed an opportunity to provide diary sheets and establish is a pattern of behaviour could be witnessed. 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.
  10. There is also no evidence that the landlord sought evidence of noise through use of a noise app or other recording devices. In July 2022 the landlord stated even though it could not provide noise detection equipment and these devices would not document the source of the noise just the level. Whilst the Ombudsman appreciates the use of recording noise was not part of the landlords policy, listening to recordings provides for a robust investigation and a true understanding of the noise being reported. Recordings would have been pertinent in the case involving neighbour B, as the resident repeatedly reported noise but by the time an officer attended the noise had ceased or it had ceased for the short time the officer was present. Between 20 April 2022 and 6 May 2022, the period between its complaint responses the resident made 5 reports of noise to the emergency control line where the noise was recorded as not witnessed. Following the stage 2 response, a further 10 reports were made up to 18 July 2022 again with the majority being recorded as noise not witnessed. The resident spent time reporting the noise, as advised, but was offered no alternative to obtain evidence which contributed to the resident’s perception that the landlord did not fully appreciate her circumstances. 
  11. When investigating noise complaints it is common for landlords to consider making wider enquiries with neighbours, often through a door knocking exercise, to see if they are also being affected by noise. The landlord had asked neighbour A about the loud music from neighbour B, who confirmed it was loud. The resident referenced other neighbours being affected by neighbour B, therefore, it would have been reasonable for the landlord to have considered making further enquiries, evidence has not been seen that it did so.
  12. 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 it unfeasible to pursue effective legal action. As such it was in accordance with its policy and reasonable that the landlord offered mediation between the resident and neighbour B in its stage 2 response. Although the resident quickly advised she would not consider mediation as she had posted a note through neighbour B’s door requesting the music be turned down for it to be returned with “spit” inside. This was a clear escalation in the situation and should have prompted the landlord to investigate further under its ASB policy, however no evidence has been seen to show this was taken into consideration or addressed.
  13. No evidence has been seen to show a risk assessment was carried out to identify the effect the reported ASB was having on the resident, despite in her complaint form in March 2022 stating she felt “suicidal with stress and hopelessness”. There is no evidence that these risk factors were considered at all, even by way of a more informal file note following an internal review or discussion with the resident. This was a failing by the landlord. Had the landlord reviewed risk of harm it may have considered it appropriate to signpost the resident or make a safeguarding referral. A risk assessment should be the starting point of a case management approach to dealing with ASB. The welfare, safety and wellbeing of victims must be the main consideration at every stage of the process. In this case the landlord failed to demonstrate it had considered the impact the ASB was having on its resident, which was not appropriate.
  14. The landlord did not demonstrate it followed its ASB policy in this case. It took some action to try and resolve the situation, but it did not take into account the impact of the ASB on the resident and failed to manage her expectations around noise transference or its legal responsibilities in respect of any possession action. Over a period of 12 weeks the resident made 15 separate reports of noise, despite the resident making comments on how this was effecting her, no alternate methods of ascertaining the validity of the reports of the alleged noise nuisance were considered and the responsibility to prove her allegations was unreasonably placed upon the resident. No evidence has been seen of an action plan, a risk assessment or adequate support being offered. The landlord’s actions were not reasonable and proportionate in the circumstances of this case and therefore a finding of severe maladministration has been made.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was severe maladministration in relation to the landlords handling of the residents reports of anti-social behaviour (ASB) and noise disturbance from neighbouring properties.

Orders and recommendations

  1. Within 4 weeks of the date of this determination, the landlord is ordered to:
    1. Arrange for a senior member of staff to apologise in person for the failures identified in this report.
    2. Pay the resident in total £1000, for its failures in managing the residents reports of ASB.
  2. Within 12 weeks of this determination, the landlord must:
    1. Complete a management review of this case, identifying learning opportunities and produce an improvement plan that must be shared with the Ombudsman outlining at minimum its review findings in respect of:
      1. Its intention and a timescale to review its operational process in recording ASB and noise complaints to ensure timely communication and updates which are clearly recorded so that it is fully confident it can demonstrate its response to residents reports of ASB and all actions taken.
      2. Its consideration as to how it handles and records complex ASB or noise cases where there are multiple tenures involved.
      3. Its consideration where ASB or noise has been reported, the reporting party is provided with the appropriate advice on how to gather acceptable evidence and the actions that the landlord will / will not take in the circumstance. This should set out a method for the landlord to effectively manage residents expectations while also making it clear why a case may or may not be progressed.
  3. The landlord must provide the Ombudsman with evidence of compliance with these orders within the respective timescales.