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bpha Limited (202124310)

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REPORT

COMPLAINT 202124310

bpha Limited

27 February 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 the resident’s reports of noise nuisance.
  2. The landlord’s handling of the complaint has also been considered.

Background

  1. The resident is an assured tenant of the landlord, living in a flat.
  2. On 12 May 2021 the resident reported noise nuisance and said it was impacting her sleep and mental health. She subsequently reported the issue to Environmental Health (EH) and noise monitoring equipment was installed.
  3. The resident raised a complaint with the landlord on 7 October 2021 regarding the noise from her neighbour’s property, including thudding, jumping, shouting, and use of a football. She said it breached her right to quite enjoyment of the property and was impacting her sleep, mental, and physical health. She was unhappy with how EH had handled the reports and said a resolution had not been reached.
  4. The resident contacted the Service on 3 February 2022 and said she had made several reports about noise nuisance, but the landlord had not handled it as a complaint. The Service subsequently told the landlord to issue a complaint response.
  5. In the landlord’s stage 1 complaint response on 25 February 2022, it said it had taken the correct actions in response to the resident’s reports of noise nuisance. It had engaged with the resident’s neighbour and EH but was limited in the actions it could take based on the available evidence. It encouraged the resident to fully engage with the EH investigation, as she had previously refused noise monitoring equipment. If there were any changes, it would review whether further action was necessary.
  6. The resident requested for the complaint to be escalated on 18 March 2022 as she did not think the response had comprehensively considered all the events. She wanted the landlord to rehouse her or offer compensation to give up her tenancy so she could rent in the private sector. In a further email she asked the landlord for reimbursement of legal fees and compensation for pain and suffering. She also asked the landlord to respect and protect the tenancy agreement, provide a permanent solution to the noise, and cancel her rent arrears.
  7. The landlord issued its stage 2 response on 19 April 2022. It said:
    1. When it received the resident’s initial complaint on 12 May 2021, it advised her to continue reporting the matter to EH, in line with its policy.
    2. Noise recording equipment was installed by EH on 3 June 2021. It detected noise, but the source was unclear. Noise recording equipment was installed a second time, but it appeared her neighbour was away. It had not advised the neighbour that the equipment was in place. Noise monitoring equipment was offered a third time but refused by the resident so EH closed their case on 8 July 2021.
    3. EH spoke to her neighbour and she said her child had ADHD and agreed not to let them play at unsociable hours. Noise from a child would not typically be considered as nuisance.
    4. The resident sent a recording on 16 December 2021, and it was discussed with the council, but determined not to be ASB, although there was noise transference.
    5. It had put an action plan in place, which it could not share details of, and incidents of loud music and shouting had significantly reduced. It also worked with her neighbour to stop her child bouncing the ball. It anticipated a more permanent solution in the next few months.
    6. It should have been clearer that it was working in partnership with EH when the resident initially reported issues to the landlord and kept her better informed on the status of her case and the actions it was taking.
    7. It offered £300 compensation and said it would pay or make a reasonable contribution towards the resident’s legal fees. It was unable to clear her arrears.
    8. It advised the resident to register with the local authority waiting list or look for a mutual exchange if she wanted to move. 
  8. In the resident’s complaint to the Service, she said she remained dissatisfied that the landlord did not promptly or sufficiently handle her reports of noise nuisance. She said the issues impacted her family’s sleep and mental health. She said the noise nuisance stopped in February 2023 as her neighbour moved out. She wanted additional compensation for emotional stress and pain, the landlord to reimburse her solicitor costs, and to set out changes in its handling of ASB cases and explain what it had learned.

Assessment and findings

Scope of investigation

  1. It is recognised that there is a long history of noise nuisance reports by the resident dating back to August 2017. This investigation has primarily focussed on the landlord’s handling of the resident’s recent reports from May 2021 onwards that were considered during the landlord’s recent complaint responses. This is because residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred.
  2. The Ombudsman notes the resident’s assertion that the landlord’s handling of the reported noise nuisance negatively impacted her family’s health. While the Ombudsman is sorry to hear this, it is beyond the expertise of the Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
  3. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts are able to rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, she should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy / its legal obligations, and fairly in the circumstance.
  4. The resident also advised the Service she thought “race was a motive” for the landlord’s differing treatment of her and the neighbour. However, there is no evidence this was raised to the landlord in her complaint. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of the Service. Furthermore, while the reasonableness of the actions taken by the landlord will be considered, the Service is unable to make a legal finding of discrimination. This would be a matter for the courts to determine, where appropriate evidence could be assessed, and the relevant legislation applied to the circumstances. 
  5. The resident may wish to seek independent legal advice for further information on her options on this element of her complaint. This is in line with Paragraph 42 (f) of the Scheme, which states we may not consider complaints that “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”.

The landlord’s handling of the resident’s reports of noise nuisance

  1. The landlord’s antisocial behaviour (ASB) policy states it considers ASB to be “conduct that has caused, or is likely to cause, harassment, alarm or distress to any person and/or conduct capable of causing housing-related nuisance or annoyance to any person.” It states it will use appropriate and proportionate action and ensure it properly manages residents’ expectations. It can take actions such as dispute resolution, injunctions, introductory and demoted tenancies and eviction/possession and it will work with local agencies. As such when the resident reported noise nuisance, the landlord should have assessed whether it was considered ASB and taken steps in line with its policy if appropriate.
  2. The resident has sent numerous audio recordings of the reported noise to the Service. It is important to note that the Ombudsman’s role is to assess whether the landlord appropriately handled the resident’s reports, rather than establish whether the ASB reported was occurring or not. The Service is also limited in the extent to which it can rely on recordings as it is difficult to verify the location or cause of the noise, so we do not generally place significant reliance on such evidence in reaching our decisions. Nonetheless, in this case, the landlord was provided with the recordings so it would be expected to consider the evidence and take appropriate steps to resolve the noise.
  3. On 12 May 2021 the resident reported noise from her neighbour’s property, including loud music, that was impacting her sleep and mental health. The landlord’s ASB case states that it provided advice and signposted the resident to support services. Although not explicitly stated, it seems the resident was signposted to EH. It was appropriate for the landlord to advise the resident to engage with EH to establish whether the reported noise constituted a statutory nuisance. However, this should not have prevented the landlord from completing its own investigation to assess whether any form of nuisance was occurring (statutory or not), or if it could take steps to improve the situation.
  4. The landlord asked EH on 17 August 2021 whether the resident had reported the noise nuisance and what steps it had taken. As the landlord was relying on EH’s investigation, it was unreasonable that it did not contact them until 3 months after the resident’s report. There is no evidence that EH responded to this email, so the landlord should have chased an update or undertaken its own investigation into the resident’s reports. As it failed to do so, it did not meaningfully engage with the resident’s concerns or confirm for itself that appropriate steps were taken. However, there is no evidence that the resident pursued the issue with the landlord until 8 October 2021, when she reported jumping, throwing items, arguments, and bouncing a ball. The landlord therefore did not necessarily have the opportunity to identify its mistake at an earlier date. Following further reports from the resident, the landlord contacted EH again on 3 November 2021 to enquire about its findings.
  5. EH subsequently told the landlord it installed noise monitoring equipment in the resident’s property on 3 June 2021 but could not ascertain the source of the noise. It installed noise monitoring equipment a second time, but the neighbour appeared to be away. It is acknowledged that the resident thought the landlord informed the neighbour that noise monitoring equipment would be installed, but there is no evidence to suggest it did. EH spoke to the neighbour and she confirmed the noise was her child playing, which she was trying to control, and it subsequently advised the resident it would not take action against children playing. The resident made further reports, but she declined further noise monitoring equipment, so the EH case was closed.
  6. Landlords are expected to follow an evidenced-based approach to ASB, to ensure their services are fair and an efficient use of resources. Therefore, it was reasonable that the landlord confirmed for itself that EH had provided diary sheets and noise monitoring equipment to the resident. As there was no evidence of a statutory nuisance, it would not be proportionate for the landlord to have taken tenancy enforcement action against the neighbour. It was reasonable that the landlord managed the resident’s expectations regarding the threshold for statutory noise and the limitations on the actions it could take. Nonetheless, other intervention tools could be utilised to mitigate the impact on the resident. It was reasonable that the landlord visited the neighbour’s property in November 2021 and discussed ways to limit the noise transference, but this could have been done at an earlier date.
  7. In its final response, the landlord said EH determined there was no ASB, but it acknowledged there was noise transference between the flats. It had worked with the neighbour to reduce the bouncing ball noise and it anticipated a more permanent solution within a few months, but said it was unable to share further details due to the sensitivities of the case. It also said the incidents of loud music and shouting had significantly reduced.
  8. Following the complaint process, the landlord offered mediation, which the resident declined. This was a reasonable solution to enable the resident to understand the cause of the noise and any disability the neighbour’s child had which could explain the behaviour. It would also have provided an opportunity for the resident to explain the impact to her neighbour, which may have led to a reduce in the noise. However, it would have been appropriate for the landlord to have offered it at an earlier date. The neighbour has since moved and the resident has not reported further noise nuisance, so the issue has since been resolved.
  9. In view of the evidence, when the resident initially reported noise nuisance, the landlord relied too heavily on EH’s investigation, and it failed to take a holistic approach towards the noise complaint to reduce the impact on the resident. It also did not reasonably manage the resident’s expectations about the likely outcome at an early stage, as suggested in the Service’s spotlight report on noise complaints (available on our website). In light of EH’s findings, it was reasonable that the landlord did not take tenancy action against the neighbour. Nonetheless, it is evident the noise caused significant distress and inconvenience to the resident, so the landlord should have used alternative dispute resolution tools at an earlier date in attempt to reduce the noise transference.  
  10. It was reasonable that the landlord identified the lessons learned from the complaint within its stage 2 response. It said it should have made it clearer to the resident that it was working in partnership with EH, had clearer communication about the progress of the complaint, including when it was closed, and put an action plan in place earlier. It also acknowledged it missed opportunities to maintain the resident’s trust. However, it failed to recognise its relative period of inaction between May 2021 and November 2021, in which it failed to take ownership over the resident’s reports or demonstrate that it was actively engaging with the EH investigation. As such, there was a missed opportunity to resolve the issues at an earlier date. 
  11. The landlord offered £300 compensation as it failed to inform the resident of the progress of the case and respond to all her emails. The compensation was proportionate to the identified failings. However, as the landlord did not identify or redress all the failings identified in this report, an additional £100 compensation is warranted. This is in line with the Service’s remedies guidance.
  12. As a resolution, the resident has also requested for her rent arrears to be cleared. Although it is acknowledged that the reported noise issues impacted the resident’s enjoyment of the property, the resident is contractually obliged to pay rent in line with the tenancy agreement. As a result, the landlord would not be obliged to clear the rent arrears as compensation for its failings has been calculated separately.
  13. The resident also requested for reimbursement of legal fees, as she instructed a solicitor to contact the landlord in December 2021. In its stage 2 response, the landlord said it would make a reasonable contribution to the resident’s legal costs. It is unclear whether this has been fulfilled. If the matter remains outstanding, the resident should provide the landlord with evidence of her costs and the landlord should honour its proposal to make the relevant payment.

Complaint handling

  1. The landlord’s complaint handling policy states it will respond to stage 1 complaints within 10 working days. If the complaint is escalated an appeal hearing will be held within 20 working days and it will issue its stage 2 response within 10 working days of the appeal.
  2. The resident raised a complaint on 7 October 2021 and chased a response on 2 November 2021. However, the landlord did not acknowledge or respond to the complaint. The resident then contacted the Service on 3 February 2022 as the landlord had not responded to her complaint. The landlord subsequently issued its stage 1 response on 25 February 2022, over 4 months after the resident initially raised her complaint, which significantly exceeded its response timeframe. As the landlord failed to act in line with its complaints policy, there was a missed opportunity to resolve the complaint at an earlier date. The resident was also caused additional time and effort in pursuing the complaint.
  3. The landlord did not address its failing to correctly raise and respond to the complaint within its response. As such, the issue remains unresolved. In accordance with the Service’s remedies guidance, the landlord is ordered to pay the resident £150 compensation as it failed to acknowledge its failing or attempt to put things right.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the way the landlord handled the resident’s reports of noise nuisance.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord handled the complaint.

Orders and recommendations

Orders

  1. The landlord is ordered to pay the resident:
    1. £100 compensation, in addition to the £300 already offered in its final response, for its failings in handling the resident’s reports of noise nuisance.
    2. £150 compensation for its complaint handling failures.
  2. It should provide the Service with proof of the payment within 4 weeks of the date of this report.

Recommendations

  1. The landlord should pay the resident reasonable legal costs, upon receipt of the relevant evidence, as offered in its final response.
  2. It is recommended that the landlord assesses its handling of noise complaints. It should ensure it completes its own investigations and utilises all tools available to resolve such complaints where appropriate, rather than relying on EH to confirm whether there is statutory noise. It should provide additional staff training if necessary.