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Southern Housing Group Limited (202216168)

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REPORT

COMPLAINT 202216168

Optivo (now Southern Housing)

29 May 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 reports of antisocial behaviour (ASB) and noise nuisance.

Background

  1. The resident has lived in the property as an assured tenant since December 2002. The property is a 2-bedroom ground floor flat.
  2. A neighbour moved into the flat above the resident in December 2021. The resident said he first reported noise from his neighbour in February 2022. The landlord gave the resident access to a noise recording app in March 2022.
  3. On 1 April 2022, the landlord opened an ASB case against the resident because of allegations made by the neighbour.
  4. On 6 May 2022, the resident told the landlord the noise was getting worse. The landlord opened an ASB case against the neighbour on 10 May 2022. The landlord contacted the resident on 18 May 2022 to discuss his reports. It said it would put in place an action plan and give him regular updates.
  5. On 2 December 2022, the resident complained about the landlord’s handling of his reports. He said he was visited by an officer in March 2022, but did not hear from them again. He also complained the landlord had not given updates to his son while he was out of the country and an appointment on 23 November 2022 had been cancelled at short notice. He wanted the landlord to investigate how his case had been managed, a clear action plan, and for the officer allocated to his case to be replaced.
  6. In its response on 29 December 2022, the landlord apologised that the original officer had not made it clear that she was investigating his neighbour’s reports. It also said it had not communicated with his son because it did not have consent. It said the appointment on 23 November 2022 had been cancelled because of staff illness, and it had contacted him about this the day before. On his reports of noise nuisance, it said the recordings were everyday noise, but it would refer his case to an independent witness service.
  7. The resident escalated his complaint on 16 January 2023. He said the original officer had not given the impression she was assigned to his neighbour, and he had given consent for the landlord to contact his son. He said he was only told the appointment had been cancelled the evening before and he had to chase the landlord for updates. He said his recordings provided evidence of noise nuisance, and he wanted the case officer replaced.
  8. In its final response on 10 March 2023, the landlord said that due to the high level of contact from the resident, there may have been occasions when it failed to get back to him and it was sorry this happened. It apologised for the missed appointment but said this was due to unforeseen staff absence, and it had let him know. It said because the property was a Victorian conversion, there would be noise transference. However, it said most of the noise reports were everyday living and this had been confirmed by the independent witness. It said it had spoken to the neighbour about music and asked her to be mindful of noise transference. It said the case officer would continue to lead his case and it would keep it open for a further 28 days.
  9. The resident was dissatisfied with the landlord’s response and escalated his complaint to the Ombudsman. He said the landlord wanted to close his case even though the ASB was getting worse. He complained the landlord had refused to provide the independent witness reports.

Assessment and findings

The landlord’s handling of reports of ASB and noise nuisance

  1. The Ombudsman acknowledges that ASB cases involving allegations and counter allegations, sometimes with little or no corroborating evidence, can be the most difficult for a landlord to resolve.
  2. In addition, it is not the Ombudsman’s role to decide whether ASB took place. It is the Ombudsman’s role to determine whether the landlord followed its policy and acted reasonably in the circumstances. For example, when a report was received, did the landlord assess the report, did it offer support to the resident, and did it work with other agencies?
  3. The landlord has a responsibility to deal with reports of ASB in line with legislation and its policy and procedure. The landlord’s policy defines ASB as actions that cause, or are likely to cause, harassment, alarm, distress, or annoyance. The policy also sets out what the landlord does not consider to be ASB. Examples include babies crying, children’s play, noise transference due to poor sound insulation, and everyday behaviour occurring at unusual times.
  4. The landlord’s policy says it will strike a balance between protecting the quiet enjoyment of the community, and helping individuals sustain their tenancies.
  5. The policy sets out how the landlord will deal with reports of ASB. It says it will consider the harm the ASB causes. It will investigate reports, work with other agencies to protect the resident’s safety, and will provide the resident with support. It will tell the resident who will handle their case and agree an action plan with the resident. It will keep the resident informed of the actions it takes and will contact the resident before it closes a case and give reasons for this.
  6. The landlord’s policy says it will use a range of preventative measures, early intervention, and legal action to tackle ASB. The actions it takes will be proportionate to the seriousness, impact, and frequency of the reported ASB, the level of risk that it poses and the evidence available to support the case. It will not act when there is insufficient evidence.
  7. The resident told the Ombudsman that he first reported noise nuisance from his neighbour in February 2022, and the landlord gave him access to a noise app in March 2022. The landlord’s records show the neighbour also made allegations about the resident at this time.
  8. A case officer investigating the neighbour’s allegations met with the resident in April 2022, but did not make it clear they were assigned to the neighbour’s case. In its complaint response on 29 December 2022, the landlord accepted communication with the resident about who was dealing with his case was not clear and it apologised to him for this failure. The Ombudsman has found that the apology for unclear communication was reasonable in the circumstances.
  9. When the resident told the landlord on 6 May 2022, that the noise was getting worse, the landlord said it would develop an action plan, provide him with regular updates, and offered mediation. The Ombudsman has not seen a copy of the action plan.
  10. On 2 December 2022, the resident complained about a lack of updates from the landlord. The Ombudsman has been provided with evidence showing regular communication from the landlord to the resident from the date it opened the ASB case on 10 May until 7 July 2022. However, after 7 July until November 2022, it is unclear from the information provided by the landlord whether the updates continued to be regular. There is evidence of the resident asking the landlord for updates. For example, on 18 August 2022, the resident asked why the landlord was not acting. The Ombudsman has seen no evidence of a response to this communication.
  11. The Ombudsman has noted the landlord said in its final response that due to the level of contact from the resident, there may have been occasions when it failed to get back to him. The Ombudsman has not seen a record of all contact from the resident but accepts that if contact was excessive, it would not be reasonable to expect a landlord to respond to every email or phone call. The Ombudsman would expect the landlord to provide the resident with a point of contact, which records show it did, and would expect the landlord to give the resident regular updates, as it agreed in May 2022.
  12. In its final response on 10 March 2023, the landlord apologised for missed communications and said it would improve the way it communicated. It asked the resident to report incidents directly to his case officer. The Ombudsman has found that it was reasonable for the landlord to apologise and ask the resident to send his reports only to the case officer. However, the Ombudsman has found the records provided by the landlord do not show it provided regular updates as promised. This was a service failure by the landlord.
  13. The resident complained that he asked the landlord to provide updates to his son while he was out of the country, and the landlord did not do this. The landlord said it did not have consent to provide information to his son. The Ombudsman has not seen any records authorising consent. Because of this, the Ombudsman cannot determine whether consent was given but agrees that it would not be reasonable to provide updates to a third party without consent.
  14. The resident complained the case officer did not listen to his noise recordings. Records show the resident submitted a significant number of recordings through the noise app. The landlord’s case notes on 12 October 2022, show the case officer had reviewed recent recordings and noted they were everyday noise, and many were difficult to hear. The case officer recommended closing the case. On 18 October 2022, the manager reviewing the recommendation to close the case listened to the recordings and said the case could not be closed. The manager said the recordings included banging, loud music, children playing, and one “very distressing recording where a child is screaming”. They said the neighbour should be contacted about the noise. The landlord contacted the resident on 1 November 2022, and told him it would be contacting the neighbour about the noise and his case would be closed.
  15. It is not the Ombudsman’s role to determine whether there was noise nuisance. However, records provided by the landlord from October 2022 show a difference of opinion about the noise. The resident told the Ombudsman that he wanted the landlord to carry out a home visit, but this did not happen. The Ombudsman has seen no evidence that the landlord carried out a home visit during the summer and autumn of 2022. It is the Ombudsman’s view that a home visit would have enabled the landlord to listen more effectively to the reported noise. The failure to carry out a home visit at this time was a service failure by the landlord.
  16. The resident continued to report noise nuisance during November 2022, and because of this the landlord arranged a meeting at his home on 23 November 2022. However, the resident complained the meeting was cancelled and he was only told about the cancellation on the evening before. The landlord said in its complaint response on 29 December 2022, the meeting had been cancelled because of staff sickness. The Ombudsman has found that this was reasonable. However, the Ombudsman would expect the landlord to rearrange the appointment at the earliest opportunity and has noted that a few weeks went by before a meeting took place. By this stage the resident had made a complaint about the way his reports were being handled by the case officer, and because of this a meeting was arranged with a manager dealing with the complaint. The Ombudsman has found it was reasonable for the landlord to arrange a meeting with a manager to discuss the resident’s concerns.
  17. Because of the continued reports of noise by the resident, the landlord said in its complaint response on 29 December 2022 that it would arrange an independent witness. The independent witness carried out home visits in February 2023. Copies of the independent witness reports have been provided to the Ombudsman. These show loud bangs, TV noise, washing machine noise, an industrial rhythmic sound and vibration. Reports from the visits on 2 and 7 February 2023 conclude the noise was “not consistent excessive noise” and “noise was borderline excessive but as not continuous would not be classed as excessive”. The visit on 10 February 2023 concluded “the noise taken together would be classed as excessive as there was almost constant noise. Impact on the resident was extreme and would stop anyone from sleeping in the lounge area, which is a bedroom for (the) son”.
  18. In its final response on 10 March 2023, the landlord acknowledged that the resident’s flat was in a Victorian conversion and there was noise transference. However, it said most of the resident’s reports were everyday living noise and the independent witness statements described everyday living noise, which sounds loud due to the property’s construction. Because of this, it said the noise was not ASB.
  19. The Ombudsman has noted that the local authority environmental health department wrote to the landlord on 30 January 2023, and said the resident had been affected by noise for some time, but the only actionable noise was on 15 November 2022. It said, however, this was not the full picture, as it had frequently witnessed non-actionable noise caused by poor sound insulation. The local authority said it had heard conversations, everyday movement, and TV noise from the upstairs flat at “levels which would affect the average person and prevent them relaxing or enjoying their property”. It said as it could not take action to prevent the neighbour using their premises normally, the landlord should review the sound insulation in the property.
  20. Records show the landlord warned the neighbour about noise and asked her to be mindful of everyday living noises. Records also show the landlord was aware the property’s construction created noise transference, and it had considered soundproofing, but said little could be done to reduce noise transference as the neighbour had carpets. However, the Ombudsman has not seen evidence that the landlord took any action to assess whether there were other steps it could take. Because of this, the Ombudsman is ordering the landlord carry out an inspection of the property to assess whether there are proportionate and practical steps it can take to reduce noise transference.
  21. The Ombudsman has found that under the landlord’s ASB policy, the noise being reported to the landlord was mainly classed as everyday living. There were instances when the noise was classed as excessive, and records show the landlord contacted the neighbour about this. The landlord’s ASB policy says it will strike a balance between protecting the quiet enjoyment, and helping individuals sustain their tenancies. It also says the actions it takes will be proportionate to the seriousness of the reported ASB, and the evidence available to support the case. Taking everything into account, the Ombudsman has found that in the circumstances, the landlord acted proportionately when responding to the reports of noise.
  22. Overall, the Ombudsman has found the landlord dealt reasonably with the resident’s initial reports of noise. There were counter allegations, and the landlord was trying to manage the tenancies of the resident and neighbour. It has been noted that the property is a Victorian conversion, which made everyday noise transference a problem. Some noise was excessive, as confirmed by recordings, and records show the landlord warned the neighbour about this. The landlord also offered mediation.
  23. However, there were some minor failings by the landlord. In particular, the landlord failed to provide regular updates to the resident after 7 July 2022, and failed to carry out a home visit, through which it could have more effectively assessed whether the noise was ASB. Because of this, the resident was inconvenienced and had to ask the landlord for updates. There was also a potential delay in advising the neighbour about the effect noise was having on the resident. The Ombudsman has found this was a service failure by the landlord. In line with the Ombudsman’s remedies guidance, service failure is identified where the Ombudsman has found a minor failure. Because of this, the landlord is ordered to compensate the resident with £100 for the failure to provide regular updates and £100 for the failure to carry out a home visit.
  24. The Spotlight report on noise complaints published by the Ombudsman in October 2022, provides landlords with valuable recommendations for managing noise complaints. As the Ombudsman has recently issued a special investigation report on Southern Housing, which covers noise complaints, no further orders will be made.
  25. Following the landlord’s final response, the resident complained that the landlord would not provide him with the independent witness’s report. Records provided by the landlord show that on 8 February 2023, the landlord said it would share the report with him once all visits had been carried out. The landlord then changed its position and did not provide the report. Having said it would provide the report, it would be reasonable to do this as it would help with transparency and trust. Although commissioned by the landlord, the report was based on what the independent witness heard while present in the resident’s property. It is the Ombudsman’s view that there would be no breach of confidentiality in providing the report to the resident, and the Ombudsman recommends the report is provided.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of reports of ASB and noise nuisance.

Orders and recommendations

Orders

  1. The landlord is ordered to pay the resident £200 compensation in recognition of its failures in the handling of reports of ASB and noise nuisance. Compensation should be paid directly to the resident within 4 weeks, and not offset against any arrears.
  2. Within 6 weeks of the date of this report, the landlord is ordered to carry out an inspection of the property to assess whether there are proportionate and practical steps it can take to reduce noise transference. It should advise the resident and Ombudsman on the outcome of the inspection.

Recommendations

  1. The Ombudsman recommends the landlord provides the resident with a copy of the independent witness report.