Aster Group Limited (202309418)

REPORT

COMPLAINT 202309418

Aster Group Limited

30 October 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

The complaint is about the landlord’s response to the resident’s reports of noise from his neighbour.

Background

The resident holds an assured, general needs tenancy with the landlord, which is a housing association. He is represented by a councillor in some correspondence, and both will be referred to as ‘the resident’ in this report.
On 7 January 2022, the resident made reports of noise from his neighbour which were “blows to the wall, pushes the doors hard, hits the floor and many other noises” to the council. The council referred this report to the landlord on 23 February 2022, which opened an ASB case on 14 March 2022. It recorded that, when it opened the case, it interviewed the resident and issued him with diary sheets.
The council installed noise monitoring equipment at the property on 8 September 2022 for 7 days. The analysis of the recordings noted that no noise was recorded to be above 30 decibels and there were some instances of footsteps and bangs from the neighbour. The analysis stated that “these brief instances would not be unreasonable” and concluded that there was no statutory noise nuisance.
Between 30 October 2022 and 2 December 2022, the resident corresponded with the landlord. He said that he was experiencing “loud noises at any time” which included “hit on walls, slamming doors, hit the floor, push the front door, drag something on the floor”. The landlord offered mediation to the resident. He expressed doubt this would be successful as he said there was friction between himself and the neighbour. The resident said that the ongoing noise was causing his health to deteriorate, and he wanted to be rehoused to escape the noise.
The resident raised a stage 1 complaint with the landlord on 6 December 2022. He said he had been experiencing the noise for 2 years which left him unable to sleep and had affected his mental and physical health. The resident was unhappy that the landlord had taken no action to resolve the noise and had not arranged mediation. He said he had resorted to sleeping away from his property to avoid the noise.
The resident continued to correspond with the landlord, saying that the noise from his neighbour was racially motivated. He said that there had been a disputed report of an assault between the parties. The landlord established that the resident had reported this to the police who had taken no further action.
The landlord issued its stage 1 response to the resident on 21 December 2022. It said that the noise recording had found no evidence of noise nuisance. The landlord said that it considered it had handled the resident’s reports of ASB correctly and suggested he take part in mediation.
The resident escalated his complaint on 23 December 2022. He said he was unhappy with the landlord’s response as the noise continued. The resident said the “harassment” from his neighbour was motivated by racial discrimination. He wanted to be moved to resolve his complaint.
The landlord issued its final response to the resident on 25 January 2023. It acknowledged the resident’s report of racially motivated harassment and referred him to the police to investigate this. It said that there were counter-reports from the neighbour and it did not have substantial evidence to take legal action. The landlord maintained it was handling to ASB case appropriately and said that due to the lack of evidence it did not agree to rehousing the resident. It asked the resident to provide supporting medical evidence of his health issues arising from the ASB “as it may help support the case”.
The resident provided a doctor’s letter to the landlord, dated 31 January 2023, which he said supported his rehousing. There was no evidence of a response from the landlord to this. The evidence showed that the resident continued to make reports of noise from his neighbour which remain unresolved.

Scope of investigation

The Ombudsman understands that the resident made a stage 1 complaint to the landlord in December 2020, which was not escalated to the final stage of its internal complaints procedure. It is noted that the landlord, in its recent final complaint response on 25 January 2023, offered £100 for its delay in responding to the historical complaint. As the historical complaint did not exhaust the landlord’s complaints procedure, this will not be considered in this investigation.
This is in accordance with paragraph 42(a) of the Scheme. This states that the Ombudsman may not consider complaints which did not exhaust the landlord’s complaints procedure. Nevertheless, the landlord will still be recommended to pay the compensation it offered.
The resident has said that his health deteriorated due to the ongoing ASB. The Ombudsman does not doubt the resident’s account, however it is outside of our remit to determine if there was a direct link between the landlord’s handling of the ASB and any subsequent effect on the resident’s health. We will, however, consider the overall distress and inconvenience he experienced, due to any failures by the landlord. If the resident feels that his health has been affected by the landlord’s actions or lack of action, he may wish to seek independent legal advice on making a personal injury claim.

Assessment and findings

The Ombudsman’s role is not to establish whether the reported noise nuisance occurred. The purpose of our investigation is to assess whether the landlord responded reasonably to the resident’s reports of the noise, and whether it acted in line with its obligations.
The landlord’s antisocial behaviour (ASB) procedure defines ASB as “Engaging in, or threatening to engage in, conduct causing, or likely to cause, a nuisance or annoyance to persons engaged in lawful activities.” The procedure states that, when dealing with reports of ASB, it will “adopt a risk based, harm reduction and problem solving approach to tackling ASB”. The procedure goes on to state that:
1. At the start “An impact assessment is completed with each new complainant in a case”, and “impact assessments will be reviewed 3 monthly and/or following any significant new evidence/incident”.
2. “Clear and honest conversations need to be had to ensure customer expectations are managed from the initial contact.” This should be carried out immediately.
3. During the initial interview with the resident, the landlord “will be mindful of any vulnerability, support needs and safeguarding”.
4. Throughout an investigation, the landlord should:
  1. “Do what has been agreed.”
  2. “Update on progress against the agreed actions.”
  3. “Keep in contact according to what has been agreed.”
  4. “If something cannot be done, the complainant or witness must be told.”
The landlord’s ASB policy states that it will address ASB using a range of options, which include:
1. mediation,
2. use of the Noise app,
3. community ASB surveys,
4. using professional witnesses or police evidence,
5. referrals to the council for noise monitoring equipment, and
6. tenancy support.
The landlord does not have a specific policy for noise complaints. However, its ASB procedure includes a specific risk assessment for noise complaints. Amongst other matters, this assessment seeks to establish whether the resident considers any noise to be targeted. This risk assessment also asks how the resident is affected by the noise and whether they have any physical or mental vulnerabilities.
As part of its response to the Ombudsman’s evidence request, the landlord confirmed that no risk assessments were undertaken. This was inappropriate and was a significant failure by the landlord. A risk assessment is vital to an ASB investigation. The assessment informs the landlord on the level and type of support it can provide the resident, and how it may effectively conduct the ASB investigation to take into account the resident’s circumstances. The absence of the assessment means that it did not satisfy itself of the suitability of its subsequent actions.
The noise reported by the resident broadly met the landlord’s definition of ASB, therefore it was appropriate for it to open an ASB investigation. However, there was an unexplained delay between the council referring the resident’s reports to the landlord on 23 February 2022 and it opening the ASB case on 14 March 2022. The landlord’s ASB procedure states that it should triage the ASB report once it receives contact from the complainant. It would have been reasonable for the landlord to contact the resident to do this on receipt of his reports from the council. However, there was no evidence that it did this.
There was limited evidence of the landlord’s investigation and intervention in response to the reports of noise. On 21 March 2022 the landlord asked the resident to complete diary sheets and it provided details of telephone support lines. The Ombudsman has not been provided with all the diary sheets the resident submitted, however it was not disputed that he regularly submitted these to the landlord. The landlord’s notes from a case review on 23 May 2023 recorded it “receive(s) approximately 40 plus completed diary sheets each month”. There followed no evidence of its investigation of the reported ASB for 6 months until 8 September 2022, when the council installed noise recording equipment at the property.
Neither the landlord’s stage 1 nor final complaint responses refer to any action it took between March and September 2022. When the landlord is unable to evidence its actions, the Ombudsman is unable to conclude that it took appropriate actions to investigate and manage the ASB case. Therefore, we are unable to conclude that, in line with its policy and procedure, it:
1. Contacted the neighbour about the reports of noise.
2. Agreed an action plan and schedule of contact with the resident.
3. Had a “clear and honest” conversation with the resident to manage his expectations of the ASB investigation.
4. Employed its tenancy support service to resolve the noise issue.
On 9 December 2022 the resident reported to the landlord that the neighbour had made remarks which he considered to be racially motivated. He added that the neighbour had made a threat of not allowing the resident to sleep. While it was reasonable that the landlord attempted to establish if there was evidence to support these reports, it was unreasonable that it did not contact the neighbour. It would have been reasonable for it to contact both parties to attempt to de-escalate tensions between them.
It was reasonable for the landlord to arrange for noise recording equipment to assess the level of noise in the resident’s property. However, it was unreasonable that the landlord’s approach to resolving the resident’s noise reports was only to consider if it could take action for statutory noise nuisance. The Ombudsman’s “Spotlight on: Noise Complaints – Time to be heard” report sets out that it is not always appropriate to address reports of noise as ASB. Our report said that “Landlords should have a proactive good neighbourhood management policy, distinct to the ASB policy, with a clear suite of options for maintaining good neighbourhood relationships and a matrix for assessing which option is the most appropriate.”
Since the noise reported was the sound of impacts on doors, floors, walls, and windows, it would have been reasonable for the landlord to inspect both the properties for possible practical measures to minimise noise transference. This would have been in line with its “problem solving approach to tackling ASB” stated in its procedure, and our spotlight report, above. However, it missed the opportunity to do this.
Medical evidence viewed by the Ombudsman showed that the resident had pre-existing mental and physical health vulnerabilities prior to the ASB case. The landlord’s failure to carry out a risk assessment meant that it did not identify his vulnerabilities, and he may therefore may have been disproportionately affected by the noise issues he reported. The Housing Health and Safety Rating System (HHSRS), introduced in the Housing Act 2004, states that noise in a property can affect mental and physical health. It goes on to say that “intolerable” noise can be “loud, continuous or apparently unnecessary noises which seem to go on indefinitely” and “seemingly inconsiderate noises, especially at night”.
Despite the HHSRS guidance, there was no evidence that the landlord paid due consideration to the potential effect of the reported noise on the resident’s health. It focused on whether the noise constituted statutory noise nuisance without considering that the reported noise did not necessarily need to meet this threshold to have an adverse effect on the resident and require intervention.
The landlord first offered mediation to the resident on 7 November 2022. This was 8 months after it opened the ASB case which was an unreasonable interval. Mediation is an effective method of resolving ASB only when offered at the right time, typically early on in the process. When offered too late, neighbour disputes may become entrenched and engagement may be poor. This was illustrated by the resident’s email to the landlord on 7 November 2022. In this, he said that the neighbour had displayed hostility towards him, and he doubted the effectiveness of mediation. The landlord’s final complaint response confirmed that the neighbour had not agreed to mediation.
The landlord’s management transfer procedure says that “A Management Transfer can be requested based on individual exceptional circumstances.” The resident first requested a management transfer on 29 November 2022 to move away from his neighbour. It responded on 2 December 2022 to request evidence that his health was affected by his accommodation in order to consider his transfer request. In its stage 1 complaint response to the resident on 21 December 2022, it acknowledged his desired resolution was for a management transfer but did not provide a response on this.
The landlord’s final complaint response to the resident on 25 January 2023 acknowledged that he wanted to be moved to different accommodation. Its response to this was unclear. It said it did not move residents because of ASB but invited the resident to submit evidence of the health issues caused by the reported ASB which “may help support the case”. This was unclear and did not clarify whether evidence of health issues would support his ASB case or transfer case. The landlord failed to consistently communicate its management transfer procedure clearly to the resident.
The landlord told the Ombudsman, on 13 March 2024, that at the time of final complaint response, it followed a legacy allocations policy. This legacy policy prevented a resident from having a transfer if there was an open ASB case against them. This was unreasonable and the landlord should assess every request for a transfer on the individual circumstances of the case.
There was maladministration by the landlord in its response to the resident’s reports of noise. It did not evidence that it took timely and appropriate actions to resolve the noise reports. Nor did the landlord pay due regard to the resident’s circumstances in deciding whether to transfer him to another property. To recognise the distress and inconvenience experienced by the resident resulting from the landlord’s failings, it must pay him compensation of £500. This award is in line with our remedies guidance, available to view on our website. This provides for awards of compensation between £100 and £600 where there have been failings by the landlord over a significant period which it did not put right and had an adverse effect on the resident.
The landlord will also be ordered to inspect both the resident and his neighbour’s properties to identify what practical measures or repair work it can carry out to minimise noise transfer between the properties.
It is not within the Ombudsman’s power to order the landlord to rehouse the resident. This is because we do not have access to the list of the landlord’s available housing, nor knowledge of others who may be a higher priority for rehousing. However, the Ombudsman has seen evidence the resident submitted after the final response to show that medical professionals support his rehousing. The landlord will therefore be ordered to consider the resident’s request for a transfer. It must provide a written response to the resident and the Ombudsman which demonstrates its full consideration of the resident’s vulnerabilities and medical evidence and set out its position clearly.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of noise from his neighbour.

Orders and recommendations

Orders

Within 4 weeks, the landlord must provide evidence to the Ombudsman that it has complied with the following orders:
1. Pay the resident compensation of £500. This must be paid directly to the resident and not to his rent account or offset against any arrears.
2. Inspect the resident’s and his neighbour’s properties to identify what practical or repair work can be undertaken to minimise noise transference. Any repair work identified must be completed within 4 weeks of the inspection.
3. Write to the resident to apologise for the failings identified in this report. This must come from a senior member of staff and comply with our remedies guidance for apologies.
4. Write to the resident to confirm its position on a management transfer for him. This should pay due consideration to his medical evidence and vulnerabilities.

Recommendations

The landlord should pay the resident the £100 compensation it offered him in its final stage complaint response, unless it has done so already.