Gateshead Metropolitan Borough Council (201910919)

REPORT

COMPLAINT 201910919

Gateshead Metropolitan Borough Council

30 April 2021

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 concerns the landlord’s handling of the resident’s reports of noise disturbances from his neighbour’s property.

Background and summary of events

2. The resident is a tenant of the landlord.
3. According to the landlord’s records, the resident first reported noise disturbances (use of the washing machine, cleaning and decorating) from his neighbour’s property during the night on 9 May 2019. The landlord then visited the neighbour on to make them aware of the resident’s concerns and then updated the resident accordingly.
4. Following the resident’s concerns that the noise was persisting, the landlord encouraged him to keep incident diaries. It carried out a noise comparison test on 22 July 2019 and concluded that “the exercise did not demonstrate any excessive noise”.
5. The landlord contacted other residents in the building throughout July, August, and October to ask if they were experiencing similar noise issues with the neighbour.
6. On 28 October 2019 a further noise comparison survey was conducted. This was undertaken whilst the neighbour carried out their “normal activities” (using the washing machine, sweeping and mopping the floors, and accessing wardrobes) as the resident had told the landlord he was dissatisfied that the neighbour was not doing these things during the previous test. The landlord did not detect “any audible noise” during this survey. Following the test, it told the resident it would close the anti social behaviour (ASB) case, as no noise had been detected.
7. The landlord confirmed with the resident on 12 November 2019, in writing, that it would be closing the ASB case as “it was deemed the noise was not classed as anti-social”.
8. On 19 November 2019 the resident telephoned this Service. He explained that his neighbour made noises during the night and that his landlord had advised him on 12 November that it had closed his ASB. We asked the landlord to raise the resident’s concerns as a formal complaint.
9. On 25 November 2019 the resident met with the landlord. He explained that he was dissatisfied that the investigation had been concluded, as the noise had persisted. The landlord agreed to install noise recording equipment in the resident’s property, and advised him to continue documenting the noise in incident diaries. It told the resident that it would not inform his neighbour of the installation dates of the equipment.
10. The landlord installed noise recording equipment in the resident’s property on 2 December 2019 for one week. The recordings were then analysed. The landlord concluded that “excessive noise from [his] neighbour had not been recorded”.
11. On 15 January 2020 two of the landlord’s officers attended the resident’s property from 10.30 pm until 11.45 pm in order to “independently witness any noise” which may have been occurring.
12. The landlord issued its stage one complaint response on 16 January 2020. It summarised the resident’s complaint as his dissatisfaction that his complaint about his neighbour “had not been investigated satisfactorily and the case was closed prematurely”. It explained that since November 2019, it had met with the resident on four occasions and also discussed his concerns with the alleged perpetrator. It said that despite the steps it had taken, it had been unable to gather enough evidence to support his complaint, and had therefore closed the case.
13. The landlord explained mediation, which it said could be offered if both parties accepted. It also confirmed that two of its officers would attend the resident’s property on 15 and 16 January 2020 to act as independent witnesses to detect any noise. It concluded by explaining how the resident could escalate his complaint if he remained dissatisfied. 
14. On 16 January 2020 two more of the landlord’s officers from the landlord visited the resident’s property from 10.40 pm until 11.50 pm.
15. The landlord advised the resident on 7 February 2020 via telephone and in a letter that it would conclude its investigation and close the ASB case. It said it had carried out “a number of investigations” but was unable to “obtain any evidence to suggest your neighbour has broken the terms of the tenancy agreement by deliberately causing noise nuisance”.
16. According to the landlord’s records, on 27 April 2020 the resident asked the landlord to review his complaint. He said that he was dissatisfied with it concluding its investigation without having considered enforcement action, even though his neighbour was in breach of their tenancy agreement.
17. On 11 May 2020 the landlord issued its stage two complaint response. It explained in detail what actions it had taken since the resident first reported a noise disturbance on 9 May 2019, and explained its findings. It confirmed that “all relevant investigations have been carried out” and that no further action could have been considered.
18. It concluded by explaining how the resident could refer his complaint to this Service if he remained dissatisfied with the outcome.

Assessment and findings

19. According to the landlord’s ASB policy, it will “attempt to evidence complaints” about noise-related reports. This may include the use of professional witnesses, carrying out “sit ins” at the resident’s property, and using noise recording equipment.  The policy also says that it will typically use noise recording equipment for a maximum of seven days when it has “been unable to substantiate the noise levels and where complaints continue to be received”. The landlord may also consider “informal approaches” to resolve noise complaints such as mediation.
20. In this case, it was evident that the landlord took reasonable steps to investigate and seek corroborative evidence in line with its obligations. For example, it encouraged the resident to keep incident diaries, installed noise recording equipment in his property, and carried out noise comparison surveys. Also, as the resident had explained that the disturbances occurred at night, the landlord organised for its officers to act as independent witnesses and attend during the night. This demonstrates that it attempted to gain an accurate insight into the noise that the resident was reporting, by making practical adjustments to its investigation process. Also, it did not advise the neighbour of when it would install noise recording equipment in the resident’s property, in order not to forewarn them. This further demonstrates how the landlord sought to obtain evidence to support what the resident had described.
21. Despite the landlord’s efforts and investigations, it could not find any evidence to substantiate the resident’s noise reports. Without evidence to support the landlord was limited in the actions it could take. The landlord’s policy says that its tests for noise nuisances are “objective and will therefore be determined by the opinion of officers who witness noise level or listen to recorded evidence”. Accordingly, in the absence of evidence supporting the resident’s reports, it was reasonable for the landlord to have closed the resident’s ASB case and not to have taken further action.
22. The landlord’s ASB policy stipulates that it may take legal action against perpetrators who are in breach of their tenancy agreements. However, this requires “a high level of supporting evidence” and before considering this, the landlord would have needed to have exhausted all other non-legal remedies (formal warnings, joint visits, mediation…), and would only consider such actions “when other remedies have failed or the case is so serious that enforcement action is appropriate”. While the resident was dissatisfied that the landlord had not considered enforcement action against his neighbour, the evidence provided for this investigation shows that the landlord’s decisions were reasonable and proportionate in the circumstances.

Determination (decision)

23. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s handling of the resident’s reports of noise disturbances from his neighbour’s property.

Reasons

24. The landlord took reasonable steps to investigate the resident’s reports of a noise nuisance using a variety of methods. There was no clear evidence of noise nuisance, despite the landlord’s investigations into the matter, and it was therefore reasonable that the landlord did not take further action and closed the ASB case.