Waverley Borough Council (202009012)

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REPORT

COMPLAINT 202009012

Waverley Borough Council

15 June 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 refers to:
    1. The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from her neighbour.
    2. The resident’s concerns about the landlord’s handling of her Freedom of Information request.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The resident’s concerns about the landlord’s handling of her Freedom of Information request.

  1. The resident has raised concerns regarding the landlord’s handling of her Freedom of Information (FOI) request. This aspect of the complaint is outside of the Ombudsman’s jurisdiction to consider. This is because complaints relating to data protection and freedom of information fall properly within the jurisdiction of the Information Commissioner’s Office (www.ico.org.uk). Therefore, this investigation report will not consider the landlord’s handling of the resident’s FOI request. The resident may be able to contact the ICO if she wishes to pursue this matter further.

Background and summary of events

  1. The resident is a secure tenant of the landlord, which is a local authority. The property is a flat. The resident’s neighbour lives in the flat above the resident’s property.
  2. The resident had historically raised several concerns about noise nuisance from her upstairs neighbour dating back to 2011. The landlord installed soundproofing in 2014 to reduce the noise experienced by the resident. The resident raised a complaint regarding delays to the soundproofing being fitted which was investigated by the Ombudsman in 2015. The landlord has noted that relations between the resident and her neighbour improved in 2018 but the resident began to report noise nuisance from her neighbour again in May 2020.
  3. On 26 May 2020, the landlord received a letter from the resident, who said that she was experiencing ASB from her neighbour and would be raising a complaint. She enclosed a letter she had received from her neighbour, which asked the resident to allow any guests in through the back gate rather than through the front garden of the property. The resident expressed concern that her neighbour was attempting to block her use of the communal pathway to the property. She also asked the landlord to establish whether her neighbour had been permitted to have a second dog in her property. The landlord asked the resident to provide diary sheets of any noise incidents so that these could be reviewed, and the next steps could be established.
  4. On 28 May 2020 the resident wrote to the landlord and explained the following:
    1. She noted that her neighbour now had an additional cat and dog in the property and asked the landlord to confirm whether permission had been given for these animals to be kept in the property. She explained that in December 2014 the neighbour had been given a warning about keeping additional pets in their property.
    2. She asked the landlord to confirm that the soundproofing previously installed was under the condition that the upstairs flat would remain carpeted. She said that the soundproofing had not worked and she was still experiencing significant noise disturbances from her upstairs neighbour. She said that this was especially apparent as the carpet on the stairs had been removed and her neighbour had laid laminate flooring throughout the upstairs flat.
    3. She explained that the situation had been ongoing for at least eight years and had a significant impact on the general and mental health of both herself and her daughter. She did not feel that mediation would be beneficial as this had not worked previously in 2015 and she felt that her neighbour reacted to any complaint on purpose to intimidate and antagonise her. She included diary sheets for noise experienced between 5 March 2020 and 27 May 2020. These entries included noise from the TV, music, and the sound of walking up and down the stairs.
    4. She asked the landlord to take proactive action but expressed concern that she did not want to make the situation worse or receive any backlash from her neighbour. She asked the landlord to provide a copy of her housing file under the Freedom of Information Act 2000.
  5. On 11 June 2020, the landlord responded to the resident and confirmed that it would be writing to her neighbour. It asked the resident to continue to complete diary sheets during this time. It confirmed that it could not tell the resident what permissions her neighbour had regarding pets and their tenancy. It stated that it was not a requirement to have carpet in an upstairs flat and that this would not have been a condition as part of the previous soundproofing works. It also provided further information about how the resident could request a copy of her housing file.
  6. The landlord wrote to the resident’s neighbour on 12 June 2020 to explain that it had received a complaint about noise from their property. It explained that it would monitor this for the next three months and may install noise monitoring equipment to assist its investigation. It asked the neighbour to confirm the number of pets in the property so that it could check if permission had been granted. The landlord also wrote to the resident to update her on the actions it had taken.
  7. On 27 June 2020 the resident contacted the landlord and asked for her complaint to be considered at stage two of the landlord’s complaints process for the following reasons:
    1. She believed that when soundproofing was installed in 2014, there were conditions in place regarding appropriate flooring in her neighbour’s property. The resident asked the landlord to provide proof of this in writing.
    2. She was concerned that noise monitoring equipment would not work as her neighbour would be made aware that this would happen and would be quiet during this period as they had in the past.
    3. She did not want either herself or her daughter to suffer mentally and physically due to the substantial nuisance and interference caused to their everyday lives by her neighbour. She said it was difficult to enjoy her home, especially due to the stressful impact of Covid-19.
    4. She believed that her neighbour had not sought permission to keep an additional cat and dog in the property and asked the landlord to confirm whether permission had been granted.
    5. She had not received any response regarding her Freedom of Information request and asked for this to be provided.
  8. The landlord issued a stage two complaint response to the resident on 21 July 2020 and explained the following:
    1. It confirmed that no condition related to the type of flooring was imposed when the soundproofing work was completed. It accepted that carpets could reduce noise transmission between properties but said that there was no requirement in the tenancy agreement which required tenants to keep their homes carpeted and it was unable to require the resident’s neighbour to change their floor covering.
    2. It explained that her neighbour had been told that the noise would be monitored for three months and assured the resident that her neighbour would not be pre-warned about the installation of noise-monitoring equipment. It hoped that the recordings would assist its staff to make an accurate assessment of the extent to which the noise could be regarded as a nuisance. It said it would be in touch to agree a date for the equipment to be installed. 
    3. It understood the impact this matter was having on the resident and her daughter and explained that it needed to carry out further investigations in line with its procedure. As part of this investigation, it would be discussing ways to reduce noise with the resident’s neighbour. It confirmed that it could not take any further action unless reliable evidence was obtained.
    4. It confirmed that the resident’s neighbour had been granted permission to keep pets in their home and explained that the resident’s Subject Access Request was currently being dealt with. It confirmed that this was the final stage of its complaints process and if she remained dissatisfied, she could escalate her complaint directly to this Service, or a designated person such as its tenants panel.
  9. The landlord’s records show that it had listened to the noise recordings provided by the resident on 24 July 2020. Both the landlord and its environmental health department believed the noise to be general living noise and not a statutory noise nuisance or ASB.
  10. The resident emailed the landlord on 27 July 2020 and said that the landlord’s decision to grant permission for her neighbour’s additional pets was a contradiction of the warning it issued in 2015 to the neighbour, which stated that keeping a second dog would be a breach of their tenancy. She asked for an explanation as to why this was no longer the case. She asked the landlord to confirm whether she should continue to use the noise app as well as completing diary sheets.
  11.  The landlord responded on 17 August 2020 and confirmed that the resident’s neighbour had been given permission to keep additional pets in their property. It confirmed that the neighbour was not in breach of their tenancy and said that this was a separate matter to the noise issues that she had reported. The landlord also sent a letter to the resident on the same day to confirm that it had listened to the noise recordings she had provided and found that there was insufficient evidence to pursue action for statutory noise nuisance. It recommended that the resident take part in support coaching, which could help her to tackle difficult situations, overcome uncertainty about what to do next, and improve her general wellbeing. It asked the resident to confirm whether this was something she would like to engage in.
  12. The resident responded on 23 August 2020 and said that she felt that the quality of the noise recordings on the app was not as accurate as the sound recording machine which had previously been used. She said that there were also recordings from May, June and August 2020 which had not been listened to. She asked whether she should continue to use the noise monitoring app. She agreed to take part in support coaching as long as this did not add any further unnecessary stress.
  13. On 7 September 2020 the landlord responded and explained that its Housing and Environmental Health offices now used a Noise app instead of a noise recording device to record noises. It had asked the resident’s housing officer to listen to the call recordings from May, June and August 2020 and let her know the findings. It confirmed that her neighbour had been given permission to keep an additional dog and cat in their home. It acknowledged that there was a different view on this in December 2013, but the landlord had since changed its opinion. It confirmed that it was only recently that the resident had again started to complain about noise levels from her neighbour and none of these complaints involved noise created by the dogs. The landlord also reviewed the further noise recordings in September 2020 and found no evidence which would constitute a statutory noise nuisance.

Assessment and findings

The landlord’s response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from her neighbour.

  1. The resident has reported ASB by her neighbour to the landlord sporadically since 2011 and has said in correspondence that the issues have been ongoing for several years. Whilst the historical incidents provide contextual background to the current complaint, this assessment focuses on events from May 2020 onward, which is when the resident reported noise nuisance from her neighbour following a period of quiet.
  2. It is evident that this situation has been distressing for the resident and this has been considered when looking at the complaint. However, it should be noted that the role of the Ombudsman is not to establish whether the ASB reported was occurring or not. Rather, our role is to establish whether the landlord’s response to the resident’s reports of ASB was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.
  3. In line with its ASB Policy the landlord has an obligation to investigate reports of ASB. The resident has accused her neighbour of noise nuisance, and actions she considered to be antisocial. These actions would fall under the heading of ASB, as set out in the landlord’s ASB policy. Therefore, the landlord would have been expected to investigate and take reasonable steps to resolve the ASB which had been reported. The landlord’s ASB Policy states that the landlord would take proportionate action in all cases of ASB. This would include warning letters, home visits, CCTV and noise gathering equipment, the offer of mediation services and other tenant support services as appropriate.
  4. For a landlord to take formal action in respect of ASB, such as forma warnings, injunctions etc, the landlord would require extensive evidence of the alleged behaviour to support formal action. A landlord should generally only consider taking formal action if informal attempts have been unsuccessful in resolving the issues. Landlords cannot reasonably be expected to take formal action against tenants for noise that is considered everyday household noise; however, if a noise is confirmed as constituting statutory noise nuisance, then both a landlord and Environmental Health service may be able to warn and take formal action against the perpetrator.
  5. In this case, the landlord took reasonable steps to investigate and seek evidence of the resident’s reports of ASB by asking the resident to complete diary sheets, writing to the resident’s neighbour and record the noise she experienced through its noise app. The landlord and Environmental Health then reviewed this evidence and found that the noise recordings, along with the diary sheets did not provide sufficient evidence to constitute a statutory noise nuisance. It was therefore reasonable that the landlord did not take formal action against the resident’s neighbour at this stage.
  6. The landlord also took appropriate steps to resolve the matter informally, by referring the resident to its support coaching service. It is noted that the landlord’s offer of mediation remained open to the resident and her neighbour should she feel that this would be useful. Mediation is voluntary and either party is entitled to decline; however, it was reasonable for the landlord to offer mediation as it can be helpful in resolving some neighbour disputes in some cases. It is noted that the resident completed three coaching sessions in November 2020 and reported that she found this helpful for coping with ASB issues.
  7. The Ombudsman has not seen any evidence to suggest that the neighbour was required to keep their flat carpeted as a condition of the previous soundproofing carried out at the property. The landlord has provided a reasonable explanation to the resident on this which resolved her concern satisfactorily. The landlord would not be obliged to inform the resident as to whether her neighbour had been granted permission to keep pets in the property or the reasons why due to data protection regulations. It would not be appropriate for The Ombudsman to comment on the reasons for the permission or ask the landlord for detailed information on this as it would involve us gathering personal information about other residents without their consent. It is noted that historically the resident had experienced noise issues related to her neighbour’s pets, however, in this instance, the resident’s reports of noise nuisance do not refer to noises made by animals, and therefore not relevant to the substantive issue. The landlord has shown evidence that it took appropriate steps to investigate the resident’s concerns on this matter.
  8. In summary, the landlord took proportionate and reasonable actions in response to the resident’s reports of ASB and noise nuisance from her neighbour. In the absence of clear evidence of noise nuisance, despite the landlord’s investigations into the matter, it was reasonable that the landlord did not take further action against the neighbour. There was no service failure by the landlord in responding to the resident’s reports of ASB. It is recommended that the landlord continues to investigate any new reports of noise nuisance or ASB in accordance with its ASB policy and procedure.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of antisocial behaviour (ASB) and noise nuisance from her neighbour.

Reasons

  1. The landlord’s responses to the resident’s reports of ASB were appropriate because they were in line with its ASB policy and procedures. It was reasonable that the landlord was unable to take further action without sufficient evidence to support the allegations of ASB or statutory noise nuisance.

Recommendations

  1. It is recommended that the landlord continues to investigate any new reports of noise nuisance or ASB in accordance with its policy and procedure.