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Leeds City Council (202110014)

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REPORT

COMPLAINT 202110014

Leeds City Council

19 March 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.

The complaint

  1. The complaint is about the landlord’s handling of the resident’s:
    1. Reports of noise nuisance and antisocial behaviour (ASB).
    2. Formal complaint.

Background and summary of events

Background

  1. The resident is the secure tenant of the property, which is a 3-bedroom terraced house, and she lives with her adult daughter. She has told the landlord that she suffers from anxiety, Post Traumatic Stress Disorder (PTSD), and has other physical health conditions.
  2. The landlord is a council, but management of the property is undertaken by a Tenant Management Organisation (TMO). The landlord retains responsibility for dealing with reports of ASB. At times the landlord has stated that the TMO is the landlord, but this is incorrect. The resident signed a tenancy agreement with the council as the landlord. At a date not known day-to-day tenancy management passed to the TMO, but this did not make it the landlord. The TMO also confirmed this in an email to the Ombudsman of 4 August 2022.
  3. This complaint involves allegations of ASB and noise nuisance coming from a neighbouring house, with which the property shares a wall, within a row of terraced houses. The alleged perpetrators are referred to as the neighbours in this report. The neighbours describe themselves as deaf or hard of hearing, and this information is known to both the landlord and the resident.
  4. Under the tenancy agreement residents must not carry out criminal or anti-social activities within their homes. This includes acts causing or likely to cause nuisance, annoyance, harassment, alarm, or distress, such as using threatening or abusive language, causing noise nuisance and drug use.
  5. The landlord’s ASB policy says that the TMO should try to resolve low level ASB, but if it cannot then the landlord’s ASB team will take the lead. The landlord will work with partner agencies including the police and Victim Support; it will report to or request information from the police and offer to refer to Victim Support when appropriate. The landlord will respond to urgent situations within one working day and all other reports of ASB within 5 working days. The landlord will open an ASB case where appropriate and contact the resident and alleged perpetrator.
  6. It may advise diary sheets are completed to gather evidence, or to submit audio or video recordings. The landlord may also install noise monitoring equipment. The policy sets out actions the landlord can take from warnings and cautions through to legal action when appropriate. This can include injunctions, possession proceedings or Environmental Protection Act 1990 proceedings for statutory nuisance as defined within the Act. The policy states that household noise such as loud voices and banging doors are unlikely to be a statutory nuisance. At all times the landlord will take into account any vulnerabilities of both the resident and alleged perpetrator and any enforcement action will be proportionate.
  7. A complaint is defined as “an expression of dissatisfaction about the standard of service we provide” under the landlord’s complaints policy. It operates a two-stage process. It will acknowledge stage 1 complaints within 5 working days and will respond within 15 working days. If the resident remains dissatisfied, they can escalate their complaint to stage 2, and the landlord will respond within 15 working days. If it cannot meet its response timeframes it will “provide regular updates every 2 weeks” until it responds.
  8. The Housing Ombudsman’s Complaint Handling Code (the Code) sets out how a landlord should respond to complaints. Under paragraph 5.1 a landlord should respond to a stage 1 complaint within 10 working days. If it needs a further 10 working days in exceptional circumstances, it must contact the resident to explain this. Any further delay beyond this must be agreed with the resident. It should escalate the complaint if asked to do so by the resident (paragraph 5.10) and should respond within 20 working days (paragraph 5.13).

Scope of investigation

  1. There is a long history of reports of noise nuisance and ASB having been made by the resident, and counter allegations having been made by the neighbours. The resident previously brought a complaint about these issues to the Ombudsman, which was determined under case ref. 201906434 on 28 April 2020. Therefore, the current investigation has not considered any matters which occurred before this date. Due to the nature of this case, there is a large volume of records, reports, calls, emails, messages, and alleged incidents of ASB. This report does not intend to give an exhaustive description of all the events or correspondence, but to provide an outline of the key issues as a background to the investigation’s findings.
  2. Additionally, throughout the whole period the resident had provided ASB diaries to the landlord, and the Ombudsman has reviewed these but has not detailed the individual incidents due to their number. The resident reported noise nuisance made up of banging, loud talking, screeching, laughing, and shouting. She said this would start in the evening and continue all night almost every night, which kept her, and her adult daughter, awake. She said this affected her mental health and her daughter’s employment. She also detailed whenever the neighbours had visitors to stay overnight, allegations of the neighbours using hand gestures/sign language to swear at and insult her and her family.

Summary of events

  1. On 1 May 2020 the resident’s councillor emailed the landlord for an update on her ASB case. The landlord called the resident multiple times between 5 May and 12 June 2020 and offered to install noise monitoring equipment to record evidence of noise nuisance, but the resident declined each time.
  2. The landlord sent the neighbours a Community Protection Notice (CPN) warning letter on 27 July 2020. It said it had received frequent reports of “impact noise, shouting and arguing”, and that if this continued it could serve a CPN. It also wrote to the resident to tell her it had sent the warning.
  3. On 21 September 2020 the landlord wrote to the resident to close the ASB case as she had declined its offer to install noise monitoring equipment. The resident called the landlord on 1 October 2020 and the landlord’s note of the call said she was upset about its decision. The landlord said she could still report noise and gather evidence and it would continue to assess it.
  4. Between 19 and 23 November 2020 there was a dispute about CCTV cameras and the direction they faced, which was reported to the police. The police records, supplied to the landlord, state that no crime had taken place.
  5. The resident agreed to the landlord installing noise monitoring equipment in the property and this was done on 2 December 2020, and uninstalled on 18 December 2020. The landlord produced a report based on the recordings and wrote to the resident on 19 January 2021. It said the noise was not at the level of a statutory nuisance, and not at a level likely to cause sleep disturbance, so it was not able to take any enforcement action. It also said the resident was able to make her own complaint to the Magistrates’ Court if she wished, at her own expense.
  6. On 20 January 2021 the police records show the resident reported that the neighbours had used hand gestures to swear at her and her family, and that she felt harassed. The police did not take any action.
  7. The landlord called the resident on 16 March 2021 and carried out a risk assessment. With the resident’s consent it made a referral for her to Victim Support. The following day it emailed an action plan to the resident, who was to continue keeping a noise diary, and it would speak to the neighbours and arrange noise monitoring equipment.
  8. Between 21 March and 17 April 2021, the resident and the neighbours both made reports to the police about various matters including swearing and garden nuisance. The police records say it gave words of advice.
  9. The landlord wrote to the neighbours on 23 March 2021 and asked to arrange a call to discuss the ASB allegations. The neighbours emailed the landlord on 31 March 2021, denying the allegations and making counter allegations about the resident. The resident emailed the landlord on 5 April 2021 to provide recordings made on her mobile phone to support her allegations of noise nuisance. The landlord requested noise monitoring equipment on 12 April 2021 and the resident was placed on the waiting list.
  10. On 20 April 2021 the resident emailed the landlord and said the police had visited her, as the neighbours had made a complaint about her taking photographs in her garden and for having a bonfire. She said she believed this was harassment by the neighbours. The resident and landlord exchanged emails about noise nuisance between 13 and 19 May 2021, and the landlord sent an internal email on 9 June 2021 in which it asked for the resident to be given priority on the waiting list for noise monitoring equipment.
  11. Between 12 and 22 June 2021 the police and the landlord exchanged emails about the neighbour dispute. The police said they had had dealings with the parties, but no offences were made out due to lack of evidence.
  12. The landlord wrote to the neighbours on 16 June 2021, saying it was still receiving complaints about noise and was also investigating their counter allegations. It asked if they had any support needs it could assist with. It held a meeting with the neighbours on 28 July 2021 to discuss the ASB and agreed an action plan with them, including to be mindful of noise during unsociable hours.
  13. On 29 July 2021 the resident wrote to the TMO to make a stage 1 complaint (the first complaint). From the opening line of the complaint, it appears she did this as the landlord had previously told her that the TMO was her landlord. Her complaint was about:
    1. The continuing ASB by the neighbours, and that the noise monitoring equipment had failed.
    2. The counter allegations made against her.
    3. Her daughter only getting a couple of hours sleep per night and having to take sleeping tablets.
    4. Having been asked by the landlord why she does not consider moving, when the property had been her home for 21 years and she had family nearby.
  14. The TMO emailed the landlord on 13 August 2021 and asked it to provide a reply for its complaint response. On 20 August 2021 the TMO provided its stage 1 response, in which it:
    1. Apologised for the delay in its response.
    2. Said the resident’s ASB complaints had been dealt with by the TMO and then escalated to the landlord’s ASB team.
    3. Included the landlord’s response which said:
      1. Warnings had been given to the neighbours when evidence of ASB was provided, but there was no evidence which would warrant taking legal action.
      2. It apologised for an issue with the noise monitoring equipment, which was a rare occurrence. It had since installed new equipment and collected the recordings. It had also interviewed the neighbours.
      3. It was impartial and so had to investigate any counter allegations made against the resident.
      4. It had referred the resident to Victim Support for help dealing with the matter.
    4. Explained how the complaint could be escalated if the resident remained dissatisfied.
  15. On 28 September 2021 in an internal email the landlord said it had listened to the recordings from the noise monitoring equipment, but said the noise was not unreasonable and “the level of noise is not at a level that we could take action. Voices could be heard faintly on some recordings…I would suggest this is probably due to the type of property.” It suggested a sound test was carried out.
  16. The landlord requested further support for the resident from Victim Support on 12 October 2021, and wrote to her and the neighbours on 26 October 2021 to provide an update in which it said it was trying to arrange a sound test. The same day the resident emailed the TMO to escalate her complaint.
  17. The landlord carried out the sound test on 10 November 2021. This involved one member of its staff attending the property and one attending the neighbours’ house, then to make different types of noise to find out what could be heard in the property. The landlord produced a report, which concluded “this noise test would suggest that noise is capable of causing disturbance to sleep for the residents. There is no indication that noise/activity is being conducted on purpose”. It said the neighbours may not be aware of the level of noise they cause due to them being deaf, and that noise transferred due to how the properties were built. It also said the banging noises were coming from the closing of kitchen cupboard doors so it fitted these with soft closers.
  18. The TMO replied to the resident on 5 January 2022 and said the complaint was being handled by the landlord. The landlord carried out a review on whether it should consider taking legal action on 12 January 2022. It said there was evidence of an issue and that shutting of the cupboards could cause a disturbance. However, the resident had said she wanted the neighbours evicted and that would not happen. The landlord would speak to the neighbours about it not being reasonable to have conversations in the early hours in bedrooms. However, legal action would not be proportionate. If the noise was caused by music or a loud television the position may have been different, but it could not be justified for household noise even if late at night.
  19. Between 24 and 31 January 2022 the landlord and the neighbours exchanged emails about the resident’s reports of noise. The neighbours continued to deny the allegations.
  20. In an internal email on 28 January 2022 the landlord said it had been trying to call the resident without success. It said the TMO had “replied to her stage 1 complaint and tried to pass [it] to stage 2. [It was] not in a position to reply to the stage 2 if [it] has not done the stage 1.” However, it also said it had provided a “comment” for the stage 1 response.
  21. On 15 February 2022 the landlord sent a written ASB warning to the neighbours. It said they failed to agree to a meeting with it and at their previous meeting the neighbours had said their noise was not anti-social but living noise. On 16 March 2022 the landlord installed noise monitoring equipment at the property again, however in an internal email on 6 April 2022 said the noise did not amount to a statutory nuisance.
  22. In an internal email on 21 March 2022 the landlord said the resident had asked what was happening with her complaint. It said that it did not know but would call her.
  23. On 10 May 2022 the landlord met with the neighbours and served a letter of caution for breach of tenancy. The neighbours made counter allegations about the resident and her family. Between 24 May and 29 June 2022, the landlord and the neighbours exchanged emails. The landlord put the resident’s allegations of noise to the neighbours who denied them and made further counter allegations. The landlord also tried to arrange a further visit.
  24. The landlord and the TMO discussed the case in emails on 21 June and 2 August 2022. They said they had considered soundproofing, but this was not possible due to the cost, complexity, and major disruption it would cause. They also felt it would not resolve the dispute between the resident and the neighbours.
  25. Between 27 June and 3 August 2022, the police emailed the landlord about reports made by the resident about the neighbour’s CCTV camera. There was a dispute about where it faced and whether it recorded sound, although she admitted that her own CCTV camera did record sound. It said it attended and gave words of advice. The landlord wrote to the neighbours on 22 September 2022 to arrange a further meeting to discuss ASB.
  26. The landlord wrote to the resident on 15 November 2022 and said it was closing her ASB case as there was no evidence of deliberate noise and it was not proportionate to take further action. The resident made a stage 1 complaint (the second complaint) on 19 December 2022 by email about her ASB case having been closed, the ongoing ASB and being asked why she had not considered moving. The landlord acknowledged the complaint the following day.
  27. On 11 January 2023 the landlord provided its stage 1 response to the second complaint. It said the resident’s ASB case could be reopened if she provided further evidence, and it would look to install the noise monitoring equipment again, without which it could not assess whether the noise constituted a nuisance. It disputed that it had asked the resident why she had not considered moving. It did not uphold the complaint but said how the resident could escalate it if she wished. At the date the current complaint was accepted for investigation by this Service the resident had not escalated the second complaint.
  28. The landlord provided a stage 2 complaint response to the first complaint on 18 January 2023, in which it:
    1. Said it was responding to the stage 2 complaint made to the TMO on 26 October 2021, as it had dealt with the resident’s ASB case, and not because it was the landlord.
    2. Set out the resident’s stage 2 complaint which was about nothing having been done about the ASB, that it was affecting her mental health, her daughter could not sleep but had to work long hours and her grandchildren did not want to stay anymore. She said she had done everything asked of her.
    3. Acknowledged the negative effects the ASB was having on the resident and her family, and that she had been continuingly reporting noise nuisance.
    4. Explained that it had installed noise monitoring equipment on multiple occasions, carried out a noise test and had fitted soft closers to kitchen cupboards, and had issued the neighbours with a housing caution warning.
    5. It had discussed the situation with her and said the only outcome she wanted was for the neighbours to be removed from their house, but it had explained this was not proportionate and there was not enough evidence to support this cause of action.
    6. Apologised for the delay in its response. It said it had spoken to this Service about whether it or the TMO should reply, and decided it was best placed to do this.
    7. Advised how to approach the Ombudsman if the resident remained dissatisfied.

Events after the end of the landlord’s complaints process

  1. On 15 March 2023 the landlord sent the neighbours an ASB warning letter as it said they had not been mindful about causing excessive noise. After this it met with the neighbours and emailed them on 23 March 2023 saying that it now knew that banging was a form of communication within the household due to their hearing disabilities.
  2. The landlord reviewed recordings made by the noise monitoring equipment installed between 25 and 26 March 2023, on 14 April 2023 and concluded “Overall, the recordings demonstrate a level of annoyance but due to the nature of the noise nuisance cannot be considered a statutory noise nuisance.”
  3. On 29 June 2023 the landlord wrote to the neighbours following a further meeting and asked them again to be mindful about the noise they cause.

Assessment and findings

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

  1. It is not the Ombudsman’s role to determine whether ASB took place, or the level or seriousness of any ASB. Instead, it is this Service’s role to consider the landlord’s response to the reports of ASB, whether it took appropriate action under its ASB policy, and whether its actions were fair in all the circumstances.
  2. This complaint is part of a long running dispute between the resident and the neighbours. The evidence shows their neighbourly relationship had completely broken down, and the allegations and counter allegations were being managed by the landlord’s specialist ASB team as per its ASB policy.
  3. Whenever the resident reported noise nuisance or ASB the landlord acknowledged the reports and encouraged continuing evidence collection. It did this through use of diary sheets and noise monitoring equipment, as well as reviewing sound and video recordings made by the resident, all of which was provided for under its policy. In addition, following its policy the landlord worked with the police, shared, and requested information, and used this as part of its investigation. It also made referrals to Victim Support to assist the resident again in line with its policy.
  4. The landlord kept in regular contact with the resident and the neighbours, through email, telephone, and regular visits to both parties. When it had evidence of noise nuisance it followed its policy in issuing warning letters to the neighbours, which covered breach of tenancy, CPN, and ASB warnings. It also carried out a noise test and tried to work with the neighbours to establish the cause of the noises the resident was hearing. While it installed soft closers to reduce the noise of closing kitchen cupboards, it also had to accept that the nature of the noise, impact noise, talking and laughing, was general household noise.
  5. After convincing the resident to agree to noise monitoring equipment being installed, the landlord did this on several occasions and analysed the recordings made. Each time it determined that the noise was not of a level that it was a statutory nuisance and so this meant it could not take legal action under the Environmental Protection Act 1990. However, its actions show that it did consider whether this option could be used, following its policy, even though its policy specifically states that household noise, banging and talking, are unlikely to be a statutory nuisance.
  6. The landlord also considered whether it could take legal action against the neighbours (such as applying for an injunction or possession) and correctly concluded that this would not have been proportionate. The landlord would have needed to have evidenced to the court that such action met the legal threshold to justify these types of orders. It also had to have due regard to its obligations under the Equality Act 2010 and the neighbours’ right to home, private and family life under Article 8 of the European Convention on Human Rights, following the Human Rights Act 1998. Due to the nature of the noise, its level as judged by the landlord, and the neighbours’ disabilities, the landlord’s decision was reasonable.
  7. Finally, the landlord also considered whether any structural changes could have been made to the property such as installing soundproofing. It concluded that this would be too complex, intrusive, and costly to complete. Considering the property and the neighbour’s house are connected terraces, this was a reasonable conclusion for the landlord to have made. In addition, its concerns that even if it did this the resident’s relationship with the neighbours was irretrievable was also a reasonable conclusion to reach in the circumstances.
  8. Different people have different lifestyles, and this can have a negative impact on their neighbours. This can be compounded where either or both also have disabilities as in this case. The landlord accepted, after investigation, that the neighbours were not causing noise intentionally to annoy the resident; it was a product of their disabilities and their lifestyle of being awake at unsocial hours. The landlord had consistently asked the neighbours to be mindful of the noise they make, but in the absence of malice or statutory nuisance, there was no further action the landlord could take. It had followed its ASB policy fully, and while the Ombudsman empathises with the resident’s situation, there was no maladministration.

The landlord’s handling of the resident’s formal complaint

  1. On 29 July 2021 the resident made her first stage 1 complaint addressed to the TMO, who she had been told and believed was her landlord. No evidence has been provided to this Service that the TMO acknowledged the complaint. It asked the landlord to provide a reply for its complaint response. When the TMO provided it stage 1 response, it included the landlord’s reply word for word. The TMO provided its reply on behalf of the landlord after 17 working days, which was in breach of the complaints policy and paragraph 5.1 of the Code, which was a failing.
  2. The resident asked to escalate her complaint on 26 October 2021, but the TMO acting on behalf of the landlord failed to acknowledge this until 5 January 2021, when it said the landlord was then handling the complaint. The landlord delayed in considering the stage 2 complaint until 28 January 2022, when it decided it could not respond as it had not produced the stage 1 response. This conclusion was nonsensical as the TMO had been acting on its behalf, and if it had looked at the stage 1 response, it should have realised that it was almost entirely made up of its response which was more than merely a “comment” as the landlord had described it.
  3. The landlord failed to take ownership or demonstrate the Ombudsman’s Dispute Resolution Principles to be fair and put things right. On 21 March 2022 it admitted that it did not know what was happening with the complaint, further showing it had disclaimed any responsibility for it, which was a further failing.
  4. Only after the resident made the second complaint, and the landlord provided its stage 1 response to this, did it then provide its stage 2 response to the first complaint. It provided this on 18 January 2023, 310 working days after the resident requested escalation, which was a totally unacceptable and inexcusable delay against a policy timeframe of 15 working days. While the landlord did apologise for the delay, it did not offer any compensation, explain how it would put things right or learn from outcomes which was a further significant failing.
  5. The landlord’s delays in complaint handling caused substantial distress, inconvenience, time and trouble to the resident, who had to chase the landlord and felt that she was being ignored. Its extreme delay also prevented the resident from bringing her complaint to this Service in a timely manner. The landlord failed to follow its complaints process, comply with the Code, or offer any redress. There was severe maladministration. To reflect the impact on the resident an order has been made that the landlord pay £1,000 compensation.

Determination (decision)

  1. In accordance with Paragraph 52 of the Scheme, there was severe maladministration in relation to the landlord’s handling of the resident’s formal complaint.
  2. In accordance with Paragraph 52 of the Scheme, there was no maladministration in relation to the landlord’s handling of the resident’s reports of noise nuisance and ASB.

Reasons

  1. There was severe maladministration as the landlord failed to respond to the resident’s complaints within its policy timeframe of those set out under the Code. It failed to take ownership of the complaint, demonstrate any of the Ombudsman’s Dispute Resolution Principles, or offer any redress for its failing which were substantial.
  2. There was no maladministration as the landlord followed it ASB policy. It followed its steps to investigate and gather evidence, considered this, and issued appropriate warnings. It kept the case under review and kept in contact with both parties. It also considered other practical and legal steps it could take, and its decisions were reasonable.

Orders

  1. Within 4 weeks of the date of this report the landlord is ordered to:
    1. Provide a written apology to the resident from the chief executive for its severe maladministration in complaints handling identified in this report.
    2. Pay directly to the resident compensation of £1,000 for the distress, inconvenience, time and trouble caused by its failings.
    3. Write to all its tenants whose properties are managed day-to-day by the TMO, to confirm that the landlord is their landlord and that any complaints are to be addressed to it and responded to by it following its complaints procedure.
    4. Communicate to the TMO (through email, briefing or any other appropriate method) that any complaints it receives are to be forwarded onto it to investigate and respond to.
    5. Arrange to carry out training to ensure that the landlord’s staff understand the complaints policy, and their responsibilities for responding to complaints within policy timeframe.