Great Yarmouth Borough Council (202006889)

REPORT

COMPLAINT 202006889

Great Yarmouth Borough Council

31 July 2023

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 reports of antisocial behaviour.
The landlord’s handling of the associated complaint.

Background and summary of events

Background

The resident lives in a two-bedroom flat. The flat is located on the second floor of the block. The tenancy is a secure tenancy and the resident succeeded to the tenancy on 10 May 1982. The landlord is a Council.
The neighbour who is the subject of the complaint lives in the flat below the resident.
The landlord states the resident has high blood pressure and no recorded vulnerabilities for the resident’s partner.
The landlord’s complaint policy states it operates a three stage complaints process. Stage one will be responded to by a team manager and will be within 10 working days. Stage two will be responded to within 20 working days by the head of service but if they are already involved in the complaint, it will be responded to by another head of service. Stage three will be responded to by a director of the Council within 20 working days. At all stages if there is to be a delay the resident will be informed of the delay as soon as possible and provided with a timescale to expect a full reply.
The landlord’s ASB policy states the landlord will:
1. Assess (and periodically reassess) the seriousness of anti-social behaviour reported to us.
2. Fully investigate the complaint.
3. Notify the complainant when a case is closed and the reasons for closure.
4. Respond promptly to complaints about our service and advise anyone not satisfied with the way in which their case was handled how to make a formal complaint.
5. Explain our reasons should we choose to take no further action on a report of ASB and advise on self-help or other alternative courses of action whenever it is possible and appropriate to do this.
The landlord’s ASB policy states the enforcement options available to it include:
1. Informal action examples including verbal warnings, acceptable behaviour contracts, mediation, restorative approaches, written warnings or face-to-face meeting with the alleged perpetrator.
2. Community Protection Warnings and Community Protection Notices.
3. Public Spaces Protection Orders.
4. Closure Power.
The tenancy handbook states examples of ASB include:
1. Noise nuisance, vandalism and graffiti, intimidation and harassment, using a property to sell or use illegal substances, violence, racial harassment and domestic abuse.
Examples of non ASB includes:
1. Children playing, DIY activities, smoking, lifestyle clashes, noise caused by normal living.
For ASB reported for noise the tenancy handbook states the resident:
1. To use the Noise App that can be downloaded from App stores for a phone/mobile device. The evidence collected will go straight to the Tenancy Services Team to investigate and where appropriate take reasonable actions to support change of behaviour by the perpetrator.

Scope of the investigation

The resident has said the incidents of ASB behaviour from the neighbour started in 2019 and has advised this service the issues are still ongoing. Whilst the resident may have been raising these issues with the landlord since 2019 there is no evidence that a formal complaint about the landlord’s response to those incidents completed the landlord’s complaint process at the time.
This service usually only investigates events that occurred within a reasonable time prior to the formal complaint being made to the landlord, normally within six months, and up to the final complaint response. This investigation will therefore focus on events from May 2020 to April 2022 which is the period the landlord has considered during its complaint responses.
The resident has provided evidence of ASB by multiple neighbours to this service. The landlord’s complaint process which concluded with its stage three response on 30 April 2022 was in response to a complaint about one particular neighbour and its handling of those reports which will be considered in this investigation.

Summary of Events

On 12 May 2020 the resident provided noise recordings regarding her neighbour. The landlord reviewed the recordings and determined it could not substantiate any noise that it considered to be anti-social behaviour. It asked the resident to continue to use the noise app.
The resident reported further noise on 17 May 2020 and the landlord responded the next day to say it would write to the neighbour regarding this.
The resident provided noise app recordings about music from the neighbour on 8 June 2020. The landlord responded the same day to say it had reviewed the recordings and would speak to the neighbour. The resident reported more noise from the neighbour the next day but was unable to capture a recording.
The landlord informed the resident on 11 June 2020 that it had spoken to the neighbour regarding the noise. It asked the resident to keep it updated if there were further issues. Further noise reports were made by the resident during June 2020 but were not all recorded using the noise app.
On 6 July 2020 the landlord wrote to the resident to say it had listened to the recordings provided but it was unable to substantiate any noise nuisance in the recordings.
On 7 July 2020 the landlord wrote to the resident to say it had spoken to the neighbour on multiple occasions and stated that to take any action against the neighbour it needed evidence from the noise app as she had provided previously about other neighbours. The landlord said the resident mentioned in an earlier email it was difficult to record the noise as it did not go on for a long period of time. The landlord was minded that to say that it was not, therefore, antisocial behaviour but encouraged the resident to use the noise app to gather any evidence. The resident made further noise reports during July 2020. These reports were mainly via email.
On 6 September 2020 the resident informed the landlord of noise from music at the neighbour’s property. The resident stated the noise was captured on the noise recording app. The resident stated it had been quiet for about four weeks prior as the resident stated the neighbour had not been at the property.
The landlord responded the next day and said it would look into the latest reports. It enquired if the resident was interested in moving to an alternative property. The resident responded the same day to say a move would be a big decision but would think about it. The resident responded on 11 September 2020 to inform the landlord they did not want to move to another property.
The resident report to the landlord on 4 October 2020 that for virtually every night during the past two weeks the resident had suffered from noise from the neighbour including banging and music. The resident stated it had completed an online form to the police. The landlord responded the next day and asked the resident to use the noise recording apps for it to review if any action was required.
The resident reported more noise from the neighbour on 6 October 2020. On 7 October 2020 the landlord responded to the resident to say a case had not been opened against the neighbour as it had not received noise recordings from the resident. It did say that it had contacted the neighbour to ask that the music is lowered so not to cause any neighbour disruption.
Noise recordings from the noise app were provided by the resident on 14 October 2020. The resident provided more noise recordings during November 2020. The landlord reviewed the recordings and concluded it could not hear any music in the recordings but could hear voices and doors shutting.
The landlord wrote to the resident on 26 November 2020 and asked if any support was required by the resident. The resident responded the same day to say they could not always use the noise app as was told to rest by their GP and not to stress. The landlord offered the resident the option of installing noise monitoring equipment at their property when it was next available. The resident declined the equipment as they felt it would offer the same facilities as the noise app.
The landlord wrote to the resident on 2 December 2020 to say it had reviewed noise recordings from 29 and 30 November 2020 and 1 December 2020. The landlord said it could not substantiate any noise that it would consider to be ASB.
The resident wrote to the landlord the same day and questioned why they could hear the noise but the officer reviewing the recording could not. The landlord responded the next day and acknowledged there had been a fault with the device at their end and having rectified the fault it could hear some noise/music from the neighbour. It stated it would speak to the neighbour.
On 2 December 2020 the landlord issued its stage one response to the resident. The response stated:
1. The allegations against the neighbour had been fully investigated.
2. Appropriate actions had been taken based on the evidence provided.
3. The resident had refused noise monitoring equipment and had recently used the noise recording app.
4. The noise recording app had been used by the resident in a previous case against a different neighbour with success.
5. It encouraged use of the app if they continued to experience further nuisance from the neighbour.
The resident reported noise from the neighbour on 9,12,14 December 2020. The landlord responded to the resident on 14 December 2020 and stated it will contact the neighbour again and look to consider action through community powers or a behaviour contract. It asked the resident to continue to use the app.
The landlord issued a community protection warning to the neighbour on 17 December 2020.
The resident reported more noise from the neighbour on 20 and 22 December 2020. On 22 December 2020 the landlord wrote to the resident and said it would speak to the neighbour but wanted the noise app recordings as if it was to escalate the community power in place the neighbour would have the right to review so wanted the recordings before taking action.
The landlord spoke to the neighbour the same day who denied the allegations and was adamant no noise nuisance was coming from their property.
The landlord informed the resident on 6 January 2021 that although it had received emails about noise from the neighbour it noted that since a community protection warning had been issued to the neighbour no further recordings had been received. The landlord stated it was limited in what action it could take without evidence to substantiate the issues being reported.
The resident provided more email reports to the landlord regarding noise and on 11 January 2021 the landlord informed the resident that it had not received any further recordings and stressed the importance of using the app. The landlord said it was difficult to ascertain whether the noises reported were considered a nuisance and was why it needed the noise app to be used to understand the impact.
The landlord issued a letter to the resident on 21 Jan 2021. The letter stated it had investigated the complaints of noise from the neighbour and on review of the evidence it was not in a position to take further action. The letter explained the actions it had taken and the reasons why. This included the resident not supplying noise app recording since 17 December 2020, the resident refusing to have noise monitoring equipment installed and the landlord speaking with the neighbour and other residents in the block. The letter stated the offer of a move to alternative accommodation remained open.
On 17 February 2021 the resident informed the landlord it had reported the neighbour for breach of covid lockdown and was hearing loud noise from the neighbour.
On 18 February 2021 the landlord wrote to the resident and stated it had investigated the complaints made about the neighbour and concluded there was no evidence available to be able to take any further action. The landlord said the complaints raised were very similar to previous complaints made about other households and as a landlord it would not be able to stop the behaviours reported as sound transference would be unavoidable. The landlord offered mediation to the resident.
The resident responded on 20 February 2021 disagreeing with the statements made by the landlord and pointed out that the noise was more during the evening and early hours of the day which she said the landlord had ignored.
The landlord wrote to the resident on 1 March 2021 stating it had received and reviewed recordings provided by the resident in February 2021 and concluded it did not substantiate anything it considered to be anti-social behaviour. It stated it had spoken to the neighbour. The neighbour was willing to consider mediation and would the resident reconsider the option. It stated where nuisance has been substantiated it would take action as it has done with another of their neighbours but in this case, it would not reopen the case. The landlord gave the resident details of how to make a formal complaint.
The resident provided more reports of noise to the landlord during March and April 2021. The landlord acknowledged a recording on 22 April 2021 did capture music being played and agreed to speak to the neighbour. It asked the resident to continue to use the noise app as this would provide evidence if it was a persistent issue.
The resident informed the landlord of further noise complaints in May, June, and July 2021 including how the situation was affecting their health through stress and needing to speak to a GP.
On 8 August 2021 the resident wrote to the landlord and stated they had been keeping this service up to date with what had been reported to the landlord and asked that the email be added as part of the complaint procedure.
On 31 August 2021 the landlord wrote to the resident and asked the resident to continue to use the noise app so it could review any evidence. It stated it had written, emailed and spoken with the neighbour and the community protection warning remained in place. The landlord stated it could not act without any further evidence substantiating further noise nuisance.
The neighbour was spoken to on 14 September 2021 after the landlord reviewed noise recordings provided by the resident on 12 September 2021. The landlord contacted the resident and offered mediation between the neighbour and resident. The resident stated she would decline the mediation as the music was played by the neighbour’s son when the neighbour was not at home, and they would not be aware of what was going on.
On 15 September 2021 the landlord issued letters to all occupants of the block. The letter stated there had been multiple complaints of noise nuisance in the block and was writing to all residents to see if anyone was being impacted by noise nuisance. It asked for anyone affected to contact the landlord.
The resident reported loud music to the landlord on 17 September 2021. The landlord responded the same day to say its officer was currently in its offices. The offices shared a wall with the neighbour’s flat and the officer could not hear any music. It noted it had visited the neighbour earlier that day and listened to the music at the volume the neighbour stated they were playing the music at. The landlord considered the level of music, on an occasional basis not to be anti-social. The resident responded on 19 September 2021 to say the levels shown to the landlord were not a true reflection of the noise and it was turned up after the landlord’s visit.
The landlord issued its stage two response on 20 September 2021 and stated:
1. As the complaint had been considered at stage one of its complaint process in December 2020 it investigated the email received on 8 August 2021 under stage two of its complaint procedure
2. What reports were made by the resident to the landlord and the actions the landlord took.
3. The complaint file showed the actions the landlord took and had responded to the resident’s complaints of noise and had been clear when action could and could not be taken and the reasons why.
4. The housing officer had requested the noise app be used to evidence the complaints as these where not always received when complaints were made. Where evidence was received the landlord took action including issuing of community warning on 15 December 2020. Informal actions including talking to the neighbour and offering mediation.
5. Other residents were spoken to who have not reported any noise issues from the neighbour.
6. It could only take formal action where there was clear evidence of noise constituting anti-social behaviour. It recognised the impact of noise on the resident. The evidence could be captured using the noise recording app and previously evidence supplied by the resident through the app was used to secure an injunction against another neighbour.
7. In relation to the neighbour being complained about there was not always evidence received and where noise recordings had been supplied, they had not provided sufficient evidence that there was anti-social behaviour. Samples of evidence supplied about a neighbour who received an injunction were compared to the evidence supplied about the neighbour and the sample for the injunction recorded significantly higher noise.
8. The noise from moving of furniture and banging does need to be evidenced. The property was constructed when noise consideration was not what it is currently so some noise transfer would be heard but did not constitute anti-social behaviour. It had no evidence from the resident that the level of noise or timing of the noise was anything other than everyday noise so could not take any action.
9. It recommended installing noise monitoring equipment to provide a way to record the noises being described by the resident.
10. It acknowledged there was an issue with the noise recording app in early December 2020 but was satisfied the issue with the app was temporary and was resolved.
11. It did not uphold the complaint as it considered it had investigated the complaints made and taken appropriate action where it was possible to do so based on the evidence available.
The resident provided more reports of noise from the neighbour to the landlord during October, November and December 2021. During this time the landlord asked for the noise app to be used by the resident.
On 15 December 2021 the resident asked the landlord to provide a copy of the final outcome of their complaint it received earlier in the year as they no longer had a copy. The landlord responded on 17 December 2021 and provided a copy of the response.
Further reports of noise was reported to the landlord in January 2022. The landlord wrote to the resident on 21 January 2022 and stated the case remained closed but to notify it if the resident had new information or evidence. The landlord stated that as the case remained closed it suggested continuing through the corporate complaints process if the resident was unhappy with the decision.
On 15 February 2022 the landlord wrote to the resident and stated:
1. The complaints of noise nuisance against the neighbour had been investigated and closed. It would not be reopened unless the issues substantially changed.
2. It had interviewed the neighbour, reviewed multiple noise app recordings, numerous officers had attended the property when noise was reported in office hours and had checked with other residents in the block where nobody shared the resident’s concerns.
3. It encouraged the resident to follow the landlord’s complaint process if they remained dissatisfied with the landlord’s decision.
4. As the block was 2–3-bedroom general needs flats it was reasonable to expect that noise would be heard from neighbours and it would never be able to prevent that.
5. Its officers had attended the block, offered noise monitoring equipment, mediation and assistance with a move if the resident wanted to consider that.
6. A copy of the landlord’s stage two response was attached and if the resident wished to they could escalate the complaint.
This service wrote to the landlord on 15 March 2022 stating the resident had said she had attempted to escalate the complaint but had been unable to do so. The letter asked the landlord to escalate the complaint and provide a response by 12 April 2022.
The landlord issued its stage three response on 30 April 2022. In the response the landlord stated:
1. It found the investigations at stage one and stage two were conducted thoroughly and upheld the findings of the previous stages at stage three.
2. It was satisfied it had taken the necessary action to support the resident.
3. It had offered the resident mediation, a noise monitor and a move to an alternative property but these were refused by the resident.
4. It did not doubt the resident heard noise from the neighbour but believed the noise was considered normal household noise.

Assessment and findings

It is evident that this situation has been distressing for the resident. There remains a dispute between the resident and the landlord regarding whether the landlord responded appropriately to the reports of ASB.
The landlord’s ASB policy states it will assess the seriousness of anti–social behaviour reported to it, fully investigate the complaint and notify the complainant when a case is closed and the reasons for closure. In this case, when notified of the noise complaint by the resident the landlord took steps to assess and investigate the complaint.
The landlord regularly requested that the resident use its noise recording app so it could assess the noise being reported and investigate if the noise was at an anti-social level. The landlord clearly explained why the evidence that could be collected by the app was important for any action it could take. There were multiple emails per month sent by the resident to the landlord detailing the noise being recorded and there was 33 recordings that were sent to the landlord during the period considered in this report.
From those recordings the landlord has evidenced it listened to the recordings and provided an assessment of what it had heard. It concluded that the recordings showed low level noise no louder than surrounding noises at the time and that the level of noise was not at an anti-social level.
In responding to the resident’s noise complaints and recordings provided, the landlord responded in a prompt manor, usually responding the same day or within a couple of days. The landlord was clear in explaining what would be considered to be noise nuisance and what would be everyday living noise and the importance of providing the requested evidence to confirm the type of noise.
The landlord has demonstrated it took the concerns of the resident seriously by visiting the block to speak to the neighbour and offered to visit the neighbour’s property when noise reports were made during office hours as the block was located next to its offices. It sent letters in September 2021 to all the residents of the block informing them of the noise complaints and asked for those affected to contact it.
The landlord took steps to try and resolve the issues between the neighbours. It offered mediation to both parties on at least nine occasions on 28 August 2020, 18 February 2020, 1 March 2021, 14 September 2021, 22 December 2021, 4 January 2022, 18 January 2022, 15 February 2022 and 21 March 2022. Although the landlord acknowledged the resident may not be in favour of leaving the property it did provide the resident with the opportunity to do so.
Where the landlord had evidence, it did follow its ASB policy by taking informal action to speak to the neighbour and issued warning letters. When this was not successful it took further action and issued a community protection warning letter to the neighbour in December 2020. There is no evidence provided that suggests the landlord could have taken any further steps in relation to the level of noise being reported.
When the landlord had fully investigated the complaint it wrote to the resident on 21 January 2021 and informed her the case was closed. The letter provided a detailed explanation of the steps it had taken and the reason for the closure.
The landlord has demonstrated it has followed and implemented its ASB policy in response to the resident reports of noise from their neighbour. The landlord’s actions taken during the complaint were consistent, appropriate and in line with its ASB policy.

Complaint handling

The landlord operates a three-stage process. The process appears to be applicable to the Council as a whole. This service has published a complaint handling code which recommends that a landlords complaint process does not exceed two stages. A recommendation has been made in this report that the landlord self-assess itself against this code and review its existing policy to implement changes to bring it in line with the code.
The period of time from the complaint being raised by the resident and the final stage three response was 361 working days. This is significantly above the landlord’s stated response times in its complaints policy.
It is clear though the delays were not down to the landlord failing to respond to an escalation request by the resident. This is because there is no evidence the resident formally made the request for the complaint to be escalated. The stage two response was issued in response to the resident informing the landlord she had contacted this service. At this point the landlord chose to escalate the complaint and issue a stage two response. The stage three response was issued after this Service requested the landlord complete the complaint process after receiving further contact from the resident. There is no evidence provided to indicate the resident formally requested to the landlord that the complaint be escalated to stage three.
What needs to be considered is if the landlord missed the opportunity to escalate the resident’s complaint. The landlord did make it clear to the resident the complaint could be escalated to stage three in emails sent to the resident in February 2022 and March 2022 but on both occasions there is no evidence the resident did so. Given the frequency of the reports being made by the resident and that the evidence shows the resident was made aware of her escalation rights by the landlord, it is considered the landlord acted reasonably in the actions it took.
The landlord, responded at stage one in line with its policy timescales and once the decision was made to escalate the complaint to stage two, the landlord issued the stage two response within its policy timescales. The stage three was issued 13 working days later than the 20 workings days stated in its complaints policy. The stage three letter also provided the details of the Local Government Ombudsman scheme rather than this Services details. Had the resident not already been in contact with this service, this could have resulted in confusion and delays for the resident in trying to progress her complaint for investigation. For the delay in the stage three response and incorrect escalation information provided in the response an award of £50 is considered a suitable award of compensation to the resident.

Determination (decision)

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 reports of anti-social behaviour by her neighbour.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s complaint.

Reasons

This Service is satisfied that the landlord acknowledged the resident’s concerns and it has demonstrated that it responded appropriately to the reports made by the resident and it acted in appropriate manner in line with its ASB policy. The actions taken by the landlord was reasonable and its decision not to take further action against the neighbour was appropriate.
There was a delay by the landlord in issuing the stage three response and no acknowledgement of the delay or apology given to the resident for the delay in responding.
The resident was provided with incorrect escalation rights in the stage three response.

Orders

Within four weeks of the date of this letter the landlord pays the resident £50 for its handling of the complaint.

Recommendations

The landlord should review its complaints policy to ensure that its complaint response timescales are compliant with this Services Complaint Handling Code.
Review its complaint response process to ensure that future complaint responses relating to housing have the escalation rights to the Housing Ombudsman clearly stated.