Aster Group Limited (202305147)

REPORT

COMPLAINT 202305147

Aster Group Limited

26 November 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 handling of the resident’s reports of antisocial behaviour.

Background

At the time of the complaint the resident was an assured tenant of a 2-bedroom ground floor flat, owned by the landlord. She moved to alternative accommodation in May 2024.
The resident raised a formal complaint to the landlord on 31 January 2023. She said that for the past year she had experienced nightly drunken behaviour, caused by her upstairs neighbour’s partner, resulting in lack of sleep. She asked it why the incidents had not been seen as deliberate antisocial behaviour (ASB). She said she had at times felt unsafe, had contacted the police, and had a right to quiet enjoyment of her home.
In its stage 1 complaint response on 23 March 2023, the landlord explained the actions it had taken since opening the ASB case in October 2022. It said that some reports were not actionable, whilst others required investigation. It acknowledged that it should have acted on some of the reports sooner and that it should have re–opened the case in January 2023. It apologised for the distress this had caused and offered £150 compensation.
The resident asked the landlord to escalate her complaint on 21 April 2023. She said that there had been no change to the neighbour’s behaviour. She found the weekly calls unnecessary as she was constantly repeating herself. She had contacted environmental health and asked why it had not done this on her behalf or sent information to other agencies. She said that the situation was affecting her mental health.
In its stage 2 complaint response on 19 May 2023, the landlord said that following its telephone conversation with the resident, it agreed that its ASB officer would contact her neighbour regarding the noise. The resident would continue to log all incidents, report them to the officer, and to the police where there was excessive noise or parties. It required evidence of ongoing noise nuisance before it could take any action. It confirmed that it was her responsibility to contact environmental health, who had closed the case.
The resident remained dissatisfied with the landlord’s response and brought her complaint to this Service. She said that she wanted an apology and acknowledgement of its failure to address her reports of ASB.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances.

Scope of investigation

In the resident’s correspondence, and explanation to this Service, she said that the ASB had impacted her mental health. She continued to remain anxious, since leaving the property, and was seeking support from her GP. It is beyond the expertise of this Service to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Ultimately this would be a matter for the courts. This Service can, however, consider any inconvenience or distress that was likely caused, as a result of any service failure by the landlord.
Our position is in accordance with paragraph 42.f. of the Scheme which says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure. Should the resident wish to pursue matters of health further, she can consider this via the courts.

Reports of antisocial behaviour

The Crime and Policing Act 2014 states that ASB is conduct which:
1. Has caused, or is likely to cause, harassment, alarm or distress to any person.
2. Is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
3. Is capable of causing housing-related nuisance or annoyance to any person.
The landlord has an ASB policy (and separate procedure) that shows that it will “take a harm centred approach to managing ASB.” It states that ASB includes noisy parties, loud arguments, intimidating behaviour, and threats of violence. It will only become involved in matters where it is satisfied its intervention is appropriate and will resolve the issue. It will not deal with matters which, after investigation, it considers it to be a lifestyle difference, entrenched personal dispute, one off or low risk event, or reports that are not supported by evidence. It adds that it will:
1. Work in partnership with police, local authorities and other involved agencies.
2. Use a range of tools such as mediation, Noise App for evidence gathering, community ASB surveys, police evidence, and legal remedies (as a last resort).
In the resident’s complaint she stated that the landlord had misinterpreted her case. Her emails related to late night parties, and this was not a lifestyle difference. She gave details of incidents which occurred late evening and early morning, which had impacted her sleep. She had been experiencing the issues for a year with no resolution. She also stated that:
1. The incidents went beyond banging doors, housework, and noise from children. She believed that loud drunken parties were antisocial.
2. She wanted it to listen to her noise recordings and report back.
3. It had made her feel “insignificant and unreasonable” when she had the right to quiet enjoyment of her home.
4. The police had attended an incident, she had felt unsafe, yet there was still no recognition that any of it was ASB.
The evidence provided to this Service shows that the resident made 11 reports of noise between May and September 2022. It should be noted that she told this Service that she began making reports in February 2022, shortly after her neighbour moved into the flat above. The incidents included the neighbour’s partner being drunk, shouting and arguing, scooters preventing access to the building, lighting cigarettes in the communal corridor, loud music, and children making noise.
The landlord opened an ASB case on 6 October 2022. The evidence shows that the landlord completed a risk assessment in line with its ASB policy and procedure. However, it provided no evidence to demonstrate how it had considered or responded to the resident’s reports prior to this date.
The landlord visited the resident on 27 October 2022. Its records of the conversation with her show, that she reported the neighbours children playing in the communal garden and congregating near the front door. This impacted her ability to work and she felt they should be told not to do this. She believed her latest noise recording evidenced the all-night party and was therefore important. The police had attended the following day with regard to the incident. The male going outside to smoke made communal door noise more frequent. She had asked whether it was able to provide soundproofing.
The records of the visit show that the landlord had discussed differences in lifestyles with the resident and what constituted ASB. It was investigating whether it had received the resident’s latest noise recording as it had been unable to locate it. It explained that the noise recordings it had received had not demonstrated deliberate ASB and no other households had reported any noise. It had asked her what she wanted as a resolution to the issues, she said that the male should not be allowed to attend the property, or for it to move the family. It confirmed that it was unable to provide soundproofing. It agreed an action plan, that the resident would consider mediation, continue to keep noise recordings, it would visit the neighbour, and make two-weekly contact.
The landlord’s home visit was appropriate and demonstrated that it had agreed an action plan with the resident in line with its ASB procedures. It was also appropriate to explain what constituted ASB and discuss lifestyle differences. Problems due to different lifestyles or everyday living situations are not normally considered ASB. This can include babies crying, children playing, one-off parties, cooking smells and DIY during reasonable hours. Some incidents would not have been classed as ASB, such as noise from children playing, or the neighbour going outside to smoke.
Not every instance of annoyance reported to a landlord will be something it has the power to act on. In practice, the options available to a landlord to resolve a case often do not extend to the resident’s preferred outcome and it therefore becomes difficult to manage a resident’s expectations. In such instances, closely following its procedures ensures that the landlord can progress the case to a resolution, even if that resolution is not the outcome requested by the resident.
While some of the reported incidents would not be classed as ASB, the landlord should have considered how it could manage reports of noise and likely impact it was having on the resident.
The Ombudsman’s Spotlight on Noise Complaints published in October 2022, explains that where noise reports do not meet the statutory threshold, then landlords should adopt a proactive good neighbourhood management policy, distinct from its ASB policy, with clear options for maintaining good neighbour relationships. This will ensure that low level issues of neighbour friction are dealt with at the appropriate levels and not inappropriately handled as potential ASB. It also includes that landlords should:
1. Engage residents in the development of the good neighbourhood management policy, including residents who have recently raised a formal complaint with the landlord, to assure themselves that it reflects the expectations of residents and will be effective.
2. Have a triage methodology for identifying whether a noise report should be handled under the ASB policy or the good neighbourhood management policy. This should include a recognition that the time the noise occurred has a bearing on whether the noise is anti-social in nature.
3. Provide training on this triage methodology, including regular refresher training and whenever there is staff change.
It is not known whether the landlord has a good neighbourhood management policy, and this Service has, therefore, made a recommendation in relation to this.
A landlord has 2 main duties when it receives reports of ASB. The first is to undertake a proportionate investigation to establish the nature and extent of the ASB. The second is to weigh in balance the evidence, and the respective parties’ rights to enjoy their home and decide what action it should take. The Ombudsman’s role is to determine if the landlord carried out a proportionate investigation and whether the actions it took were within its powers.
The landlord provided an update to the resident on 25 November 2022, setting out the actions it had taken. It said that it had noticed an improvement with the communal door during a visit. The evidence demonstrated that it had carried out maintenance to the door to prevent it from banging against the wall. It had received no further reports since its visit to the neighbour in November 2022. It had experienced difficulties receiving recordings and asked her to confirm if it had missed anything. It did not feel that the recordings demonstrated any more than household noise, the neighbour had said she was mindful of noise transference and made efforts to minimise this. It proposed to monitor the case for a further 2 weeks. It was appropriate for the landlord to provide an update to the resident and continue to monitor the case at this stage.
Evidence from December 2022 shows that the resident felt the landlord had misinterpreted her case. She had mentioned noise from the children to give oversight of the bigger picture of what she was experiencing, however, her concerns related to the level of drunkenness and behaviour that came with it. This included late night parties, arguments and police visits. She had provided recordings which appeared to have been lost.
The landlord wrote to the resident in December 2022 stating it was closing the case. It repeated that since its visit to the neighbour it had received no further reports or evidence of deliberate ASB. It said that should she experience any further concerns to make contact, and it would consider opening a new case. In the resident’s response she said that while things had improved, she wanted the case to remain open, as there had been a further incident the previous night.
The resident made further reports in January 2023, stating that the situation had deteriorated, and she was being kept awake by parties and “hyper kids”. The landlord asked in its response if any noise had been recorded as it would require evidence. It said that she had made reference to disturbances but provided no detail of dates, times or duration of the incidents to enable it to investigate.
The landlord’s records of 23 January 2023 show that it investigated internally as to whether any new noise recordings had been received. It wrote to the resident on 30 January 2023 explaining that the recordings had not been automatically allocated and were awaiting processing. It also stated:
1. That it had since listened to the recordings and also asked a colleague to review them. It had been unable to identify what was captured in one recording, a further recording was of noise from the children and voices were audible from people in the communal corridor.
2. It appreciated that she felt the noise was deliberate and intolerable, however, it had previously explained that some noise was to be expected between flats. It acknowledged that the noise from children showed a lack of consideration but could not determine that 1 incident should result in re-opening the case. It suggested that she could approach environmental health if she felt the noise, was a statutory nuisance.
It is not known why the landlord had not signposted the resident to environmental health previously, given that she had been reporting noise disturbances for a year. This may have clarified whether there was a noise disturbance at an earlier stage, provided evidence to support the resident’s claims, or confirmed that it was day to day living noise. It would also have been reasonable for it to have apologised for the missed recordings due to its system not automatically allocating them. This would likely have added to the resident’s frustration and distress.
The resident continued to report incidents of noise between January and March 2023. These included loud music, raised voices and arguments, being woken up by the neighbour’s partner at 4.20am drunk, loud tv, and children screaming.
In its stage 1 complaint response the landlord acknowledged that, whilst it had opened a case in October 2022, the resident had been reporting issues to the neighbourhood officer prior to this. Its response included as follows:
1. It set out the actions it had taken since opening the case which included:
  1. Completing a risk assessment to establish the impact this was having on her.
  2. Creating an action plan to begin work in gathering information and establishing intervention plans on how to best resolve the issues.
  3. Providing advice about moving.
  4. Sending out an ASB survey to see if other households were being impacted.
  5. Visiting her at home and discussed lifestyle differences with some reports not being actionable.
  6. Contacting the police prior to visiting the neighbour.
  7. Arranging for work to the communal door to prevent it banging.
2. The reports at the time seemed to have reduced and it was noted that this tied into the male at the property no longer being there.
3. It was closing the case, however, she had responded asking for the case to remain open. It had reviewed the case and acknowledged that her reports were not only about noise from children, which it was unable to act on, but also about loud music, shouting and disturbances at unsociable hours that it could have acted on sooner.
4. Her report on 4 January 2023 also indicated that the case needed to be re-opened, and this was not done. It apologised for the distress this may have caused and offered £150 as an apology.
The landlord’s response demonstrated that it had taken appropriate actions in line with its ASB policy and procedure. It was also appropriate in acknowledging its failings, that it had not re-opened the case and that the resident’s reports were not singularly about noise from children. Its compensation offer was in line with this Service’s remedies guidance in the range of £100 to £600 for maladministration. While it had provided an explanation of the actions it had taken, it would have been helpful to have given an indication of how it would manage the resident’s reports going forward.
The resident contacted the landlord on 28 March 2023 to report a further incident. She said that she had a conversation with the neighbour, which she believed was a step in the right direction, and both parties had reached an understanding. However, she still wanted it to proceed with reinforcing that it would not tolerate the situation. She also asked for something to be done about the regular drinking outside, particularly near her bedroom window and in the communal areas. She stated that there was a noticeable difference when the male was not there. There was no evidence provided to suggest that the landlord had discussed this with the neighbour, in relation to drinking outside or near the resident’s bedroom window.
This Service received evidence from the landlord, which is sensitive in relation to the neighbour’s circumstances and cannot therefore be disclosed due to confidentiality requirements. However, we are satisfied that the evidence demonstrates that the landlord had to consider both the resident’s reports and its obligations to the neighbour. This complicated the matter and would have been challenging for the landlord. The evidence demonstrates that it appropriately liaised with partner agencies, and that for a period of time there were sanctions in place with regard to the male visiting the property. It could, however, have considered whether it could have taken further actions, to prevent repeat incidents, once those sanctions were no longer in place. This could have included written warnings or an injunction.
The resident raised further concerns on 18 April 2023, stating that the past 2-weeks had been “horrific”. Her neighbour played music until 4pm, and the children had been pressing her door buzzer, which was preventing her from working. This was now into the second year, and she had seen no improvement.
In the resident’s escalation request she rejected the landlord’s apology as there had been no change. She had contacted environmental health and asked why it had not done this on her behalf. She said it had been over a year since her first report, wanted to know why it had allowed the matter to continue, and why it refused to acknowledge the situation. She repeated that she wanted a written warning given to the neighbour.
In a communication from environmental health on 11 May 2023, they advised the landlord that they had emailed the resident on 31 March 2023. They told her that she needed to return the diary sheets within 28 days. As they had not received these, they had closed the case. Its records of the same date show that the resident had been reluctant to allow them to approach the neighbour, reports were not being supported by evidence, and recordings were not picking up noise. This had limited its responses. The resident later agreed for the landlord to approach the neighbour, which it did on 16 May 2023, who refuted making any noise in the form of music, shouting, or having parties.
Following further reports of noise from the resident in May 2023, the landlord responded stating that it had considered an acceptable behaviour contract. This was a tool it could use when it had evidence of ASB. It had only just gained the resident’s permission to approach the neighbour, and it would need to gain evidence of the noise disturbance in order to progress the case. If it were to pursue legal action, a judge would expect it to produce evidence of ASB.
In the landlord’s stage 2 response it said, following its conversation with the resident, it had agreed that the ASB officer would contact the neighbour regarding the noise. She would continue to log all incidents and report them to the officer, and to the police where noise was excessive. Its response included as follows:
1. It required evidence of ongoing noise nuisance before it could consider any action. Evidence gathering required support from the police and other agencies.
2. She had explained that the noise recording did not work, and environmental health confirmed that they had closed the case as they had received no reports for some time. It confirmed that it was the resident’s responsibility to contact environmental health, and this was not something it could do on her behalf.
3. It empathised and encouraged her to report all incidents to the ASB team and/or the police as appropriate. It was unable to uphold her complaint as it had been unable to identify any service failure. It hoped she would continue to work with its ASB officer to reach a satisfactory outcome to the situation.
The landlord’s response was appropriate, as was its explanation in relation to requiring sufficient evidence in order to consider action. It is the Ombudsman’s understanding that there is a high threshold of evidence required to pursue legal action regarding ASB. Without sufficient evidence it would have been challenging for the landlord to pursue further action against the neighbour.
Following the landlord’s final response, the resident responded stating that she had agreed for it to speak with the neighbour on the basis that it would issue a warning. She stated that during a phone call it had mentioned that the neighbour was in breach of the tenancy agreement. It had also mentioned the use of an acceptable behaviour contract. She was confused by its stage 2 response, as it was not of the same tone as the telephone call, which insinuated that it would take action. It had not advised her that she had the option to contact environmental health previously, or she would have done so. Environmental health’s case was not closed as she was waiting for it to install noise monitoring equipment.
The resident raised further concerns in May 2023 regarding the welfare of her neighbour and her children. The landlord responded on 2 June 2023 providing appropriate advice and stating it would continue to liaise with partner agencies, visit her neighbour, and look at using appropriate warnings. It said it was difficult to take forward noise from children. It would consider the sanctions placed on the male from visiting the property. It had discussed a management move, which it would submit for consideration to the head of housing, based on the impact on her. It would also support her application to the local authority and reasons for wanting to move. It had also considered target hardening and arranged for additional locks to her home, along with a personal alarm.
Environmental health arranged the installation of noise monitoring equipment for 29 June 2023. On reviewing the recordings, it found no evidence of noise and closed the case.
In August 2023, the resident submitted further recordings of noise and footage from her ring doorbell. On reviewing the recordings, the landlord said that the recordings did not demonstrate ASB. It acknowledged that the neighbours had caused some noise. However, it did not appear to be intentional, and they were going about their own lives. It would only become involved in matters where it was satisfied its intervention was appropriate. It was happy to ask a surveyor to look at the communal door and see whether a door closure could be installed to help minimise any noise. It asked again if she would consider mediation.
The landlord opened a new ASB case in February 2024 and created a risk assessment as well as action plan. Police had confirmed that evidence had not met the threshold for a hate crime. It had a meeting at its offices with the resident on 29 February 2024 and explained it had reviewed further footage, some dating back to June 2023. It found that she had not met the criteria for a managed move. It concluded that there was no evidence of targeted harassment or intimidation towards her. It offered to support her application to move due to the impact the situation was having on her. It stated that it would again contact her neighbour and continue to liaise with partner agencies. It urged her to contact her GP for support, signposted her to victim support, and confirmed it was closing the case.
We empathise that the situation would have been distressing for the resident and that she was likely frustrated that she perceived the landlord to be taking no action in relation to her reports. However, the evidence demonstrates that it followed its procedures, liaised with partner agencies, offered mediation and took actions to try to resolve the matter. It had discussed the resident’s concerns with the neighbour who refuted her claims. Without sufficient evidence, it was limited in being able to take any action against the neighbour’s tenancy.
That said, there were some failings in the landlord’s response to the resident’s reports. This included failing to signpost her to environmental health at an earlier stage and to apologise for the missed noise recordings. Furthermore, it could have considered appropriate actions for preventing repeat incidents and preventing the male from attending the property. For this reason, we find service failure in the landlord’s handling of the resident’s reports of antisocial behaviour.

Determination

In accordance with paragraph 52 of the Scheme there was service failure in the landlord’s handling of the resident’s reports of antisocial behaviour.

Orders and recommendations

Orders

The landlord is ordered to pay to the resident £250 broken down as follows:
1. £150 offered in its stage 1 response if not already paid.
2. A further £100 for distress and inconvenience, time and trouble in relation to its failings.
The landlord is ordered to send a written apology to the resident for the failings identified in this report.
Within 4 weeks of this determination the landlord must provide evidence of its compliance with the above orders.

Recommendations

The landlord should ensure that it appropriately signposts residents to partner agencies, such as environmental health at an appropriate stage of its ASB process.
The landlord should review this Service’s Spotlight report on Noise from October 2022 and how this may be reflected in its policies.