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Lewisham Council (202405801)

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REPORT

COMPLAINT 202405801

Lewisham Council

27 February 2025


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:
    1. reports of antisocial behaviour (ASB).
    2. reports that a neighbour sublet their property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident is a secure tenant of the landlord, a local authority. He occupies a 1-bedroom flat on the third floor of a block and his tenancy commenced in November 2022. The resident is a vulnerable adult with special support needs including Autism and Asperger’s Syndrome.
  2. On 28 December 2022 the resident reported ASB from the neighbour directly above him. He said since moving in he experienced noise nuisance including loud music, shouting and banging of doors and furniture. He also said that he politely asked the occupants to be mindful of the noise, but they were aggressive and pushed him which he reported to the police. On 4 January 2023 the landlord explained to the resident that it was willing to review noise recordings that he made using the noise app supplied to tenants. On 11 January 2023 the resident said that, although there had been no further confrontations, the noise was ongoing. He continued to report noise nuisance and also reported concerns that the neighbour may be subletting their property.
  3. On 30 April 2023, the resident made a formal complaint to the landlord about the ASB from the neighbour’s property. On 10 May 2023 the landlord carried out an occupancy check of the neighbour’s property. It was satisfied there was no breach of tenancy and fed this back to the resident where it explained it would take no further action regarding his concern about subletting. On 31 May 2023 the landlord closed the noise nuisance case as it was satisfied the noise reported amounted to normal household noise and added that mediation with the neighbour would not be appropriate in the circumstances.
  4. In early October 2023 the landlord visited the resident who confirmed noise nuisance continued. On 26 October 2023 the resident made a formal complaint about the landlord’s handling of his concerns about the neighbour subletting their property. He felt the neighbour needed prior written agreement from the landlord to sublet their property. As a resolution, he wanted the landlord to take action against the neighbour and the occupants. On the same day the landlord provided a comprehensive reply to the resident’s concerns about subletting.
  5. The landlord issued its stage 1 response on 24 November 2023. It advised it had carried out a robust tenancy audit of the neighbour to establish if the neighbour was in occupation and was satisfied there was no further action to take. It added it was unable to discuss in detail the outcome due to confidentiality. The landlord also set out its position on lodgers, part sublet and subletting of the whole property. 
  6. Between January and March 2024, the resident continued to report concerns about noise nuisance and subletting and felt the landlord had not done enough. On 20 March 2024 the landlord contacted the resident stating it was satisfied there was no breach of tenancy on the neighbour’s part. Dissatisfied with this and the landlord’s stage 1 response, the resident asked to escalate his complaint the same day. He felt unsafe because people he believed to be the neighbour’s lodgers remained in the building. He was also dissatisfied with the outcome of the tenancy audit and requested evidence of the permission given to the neighbour to take in lodgers.
  7. The landlord issued its stage 2 final response on 23 April 2024. It said that, following the resident’s reports, he was advised to record any noise concerns using the noise app and encouraged to contact police if he felt at risk. The landlord had spoken with the neighbour on 30 January 2023 who denied the allegations and were told not to approach the resident, and to be mindful of the level of noise. It added it had liaised with the police who subsequently confirmed their investigation was closed due to insufficient evidence. The landlord also explained it would be in a similar position because of a lack of evidence or independent witnesses. It had again spoken on 4 April 2024 with the neighbour who denied the allegations. It added it was satisfied the resident was at no risk in his home. Regarding the alleged subletting, it repeated its position in its stage 1 response, emphasising that the initial tenancy audit was robust and stating that there was no evidence it had discriminated against the resident considering his vulnerability. It noted it had carried out a second tenancy audit and was satisfied that no further action needed to be taken.
  8. The resident referred his complaint to the Ombudsman in May 2024. He remained unhappy as he said the noise from the neighbour’s property continued. He also believed the neighbour was subletting their property. As an outcome, he wanted the landlord to apologise and provide compensation in recognition of the poor support provided to him. He also wanted the landlord to evict the neighbour.

Assessment and findings

The landlord’s handling of reports of antisocial behaviour (ASB)

  1. When assessing complaints about the landlord’s handling of reports of ASB, the Ombudsman’s role is to assess whether the landlord has adequately investigated the reported issues and taken appropriate and proportionate action. It is important to note that it is not the purpose of this report to investigate any of the reported ASB itself, to apportion blame or to assess the credibility of the reports made by the resident. Rather it is to assess the landlord’s response to the reports with reference to its own policies as well as our own assessment of what would have been fair and reasonable, given all the circumstances of the case.
  2. The landlord’s ASB policy divides ASB into 2 categories, A and B. Category A includes physical violence. These cases will be responded to within 24 hours. Category B is a longer list of behaviours, which includes noise nuisance. The landlord will respond to these reports within 3 working days. The landlord states it will agree an action plan for every ASB case and its ASB officer will manage these cases and will complete a risk assessment in all cases. In responding to reports of nuisance, the landlord will consider contacting the neighbour to discuss the complaint; mediation; or asking the parties to sign a good neighbour agreement. The landlord will consider the vulnerabilities of both parties in its action plan. The landlord offers a noise app to all residents to gather evidence and also uses an ‘on call’ professional witness service.
  3. With specific reference to noise nuisance, the policy says noise, particularly between 11pm and 7am, may be considered ASB. If noise reaches a certain level, it may be deemed a statutory nuisance. Noise under the statutory limit will only be considered ASB if it is persistent, occurs regularly and continues for a period of time that is unreasonable. If noise reaches a certain,  it may Noise will normally be initially investigated as nuisance. In such instances, the landlord will take steps to try to resolve the situation, but states it is unlikely it will be able to take enforcement action against a tenant for such behaviour.
  4. The resident made a number of reports about his neighbour behaving antisocially including noise nuisance by way of loud music, shouting and banging, and dragging furniture. The resident also reported an incident on 28 December 2022 where he alleged he was physically assaulted. The resident felt that his efforts to resolve the matters were unsuccessful and that the neighbour’s household’s behaviour continued despite them being made aware of the distress the matter was causing to him. The resident felt that the noise became deliberate and targeted and that this constituted ASB and felt the landlord did not support him nor take effective action against his neighbour.
  5. When the resident reported the alleged assault and noise nuisance on 28 December 2022, the landlord responded in good time, 4 working days later. While this was slightly outside its aim to respond to category A ASB reports in 24 hours and in 3 working days for noise nuisance, its response included encouraging him to continue to use the noise app and to contact the police and the landlord if there were further incidents. It also asked the resident to complete a 4-week time log/diary sheet noting any nuisance or disruptions. These actions were reasonable and showed the landlord took the resident’s concerns seriously from the outset. It also confirmed that it would review the noise recordings and would contact the neighbour and if appropriate open an ASB case on 5 January 2023. It continued to speak with the resident on 9 and 11 January 2023.
  6. Subsequently, the landlord acted fairly by speaking with the neighbour tenant on 30 January 2023 in order to make them aware of the impact of their behaviour. This demonstrated the landlord investigated the resident’s concerns seriously and in line with its policy of ‘raising awareness’. The landlord also advised the neighbour not to approach the resident and to let the landlord know if there was any information that may help. The landlord issued a letter to the neighbour that same day reminding them of the impact of noise and asking them to be mindful of it. It considered the response the neighbour provided in relation to the noise. These were reasonable and proportionate actions to take and demonstrated that the landlord was engaging with the reports whilst taking a balanced approach.
  7. The landlord acted fairly by visiting the resident on 6 February 2023; he said the noise above had improved. In late February 2023, the landlord’s internal emails noted that the police had informed the resident there was little they could do and that they would likely not take the matter forward. The landlord also showed due concern for his mental health as it continued to query if he might benefit from an advocate from the mental health services. Having spoken to the resident on 8 March 2023, it was agreed the resident would share details of his mental health professional.
  8. Also, in March 2023 the landlord’s safeguarding team exchanged emails internally to establish whether he had the necessary support, provided either by itself or by specialist support services. While the landlord did not appear to carry out a risk assessment in 2023, it is apparent from its actions that it adequately considered the vulnerabilities of the resident and the risk of the situation to him and took steps to ensure he had appropriate support. It reached out again to the resident on 17 April 2023 regarding his mental health and to identify if there was any risk to the resident that it could mitigate, and the resident confirmed he was coping. These actions by the landlord were appropriate, though it was a shortcoming that a risk assessment was not completed following the initial report. As such, a recommendation has been made.
  9. In mid-April 2023, the landlord spoke with the resident, again emphasizing that most sounds, although sometimes annoying, were classified as household noise and once it had reviewed his noise recordings, the landlord would decide what action, if any, it would take. This was an appropriate, balanced approach to dealing with the resident’s concerns. On 25 April 2023, the landlord appropriately managed expectations by advising that it cannot take enforcement action against someone speaking loudly on their balcony during the daytime.
  10. The resident made a formal complaint of ASB on 30 April 2023 and the landlord subsequently wrote to the resident on 31 May 2023 explaining it was satisfied the reported noise was not noise nuisance but normal household noise and apologised that he was affected. The Ombudsman notes the resident disputed that it was normal household noise. While the landlord had suggested mediation in April 2023 to which the resident agreed, the landlord said on 31 May 2023 that a meeting between the neighbour and the resident would not be appropriate. Given the landlord had assessed the evidence available and considered all the circumstances  of the case, the Ombudsman considers the landlord’s decision to not arrange a meeting between the resident and the neighbour was appropriate.
  11. On 2 October 2023, the landlord visited the resident who mentioned he was still experiencing noise which he perceived as a nuisance. On 5 October 2023, the resident emailed a member of the tenancy audit team as he was unhappy about the level of noise. Given the length of time that had passed since the landlord’s decision that the previous reports related to normal household noise, the landlord should have contacted the resident within 3 working days and considered arranging a new noise nuisance case. However, it did not email the resident stating it could open a new case until 31 October 2023, which was outside its policy timeframe. While the landlord managed expectations by clearly explaining that in order to take action it needed evidence by way of professional witness service and/or noise app showing significant noise occurring during non-social hours, this was a missed opportunity to provide support sooner and amounts to a shortcoming. The landlord’s delayed response likely led to frustration and uncertainty for the resident about what would happen next.
  12. On 11 January 2024, the resident provided the landlord with an audio recording of the day the alleged assault took place. The Ombudsman has seen that the landlord took this into consideration along with other information in order to make an informed decision. On 29 January 2024, the resident advised the landlord that he continued to experience noise. He said the police investigated, spoke to the alleged perpetrator, and provided words of advice to stay away from the resident and not speak to him. The resident advised no further confrontations had taken place, but he still felt scared and weary about his surroundings especially when leaving and entering his home. On 1 February 2024, the landlord visited the resident, demonstrating a willingness to assist him by investigating his concerns, and subsequently asked if he wanted to open a new noise nuisance case. In February and March 2024, the resident continued to report concerns that he did not feel safe in the building and wants the neighbour and his household moved, although he recognised that the housing officer had lately been proactive and had visited him twice.
  13. Following the escalation request of 20 March 2024, the landlord emailed the police in early April 2024 asking for the resident’s reports of the incident, reports of police conversations with the neighbour and any action taken by the police. This demonstrated partnership working in accordance with its policy whereby the landlord will work with other agencies and partners such as the police to share information and tackle ASB in a coordinated and efficient way. This appeared to be the landlord’s first direct engagement with the police, though this Service has seen that the resident forwarded emails received from the police to the landlord in January 2023. It is reasonable to conclude the landlord was aware the police were engaging with the resident about the alleged assault. As the resident had reported a physical assault, the appropriate party to deal with this was the police, and this aligns with the landlord’s ASB procedure which states that victims of criminal offences should be encouraged to report to the police. The Ombudsman has seen the landlord appropriately advised the resident of this several times since January 2023.
  14. In the landlord’s stage 2 final response, it advised that it had not received sufficient evidence to consider enforcement action against the neighbour. It noted the police confirmed receiving a report from the resident and that their investigation was closed without further action due to insufficient evidence and lack of independent witnesses, and that it would be in a similar position. It added there was no indication that the resident was at risk in his own home or from the neighbour. The landlord acted fairly by clearly communicating this to the resident.
  15. Following the final response, the landlord continued to engage with the resident and provided an action plan on 16 May 2024 whereby it would contact the neighbour and issue a warning letter if he could provide appropriate evidence. It again acted fairly by reminding the resident that it would not be able to take legal action against the neighbour without evidence of the alleged assault and reminded him to use both the noise app and the professional witness service and to keep a diary of noise noting when it occurs and its duration. The landlord engaged with the neighbour in June, July and August 2024, which demonstrated the landlord’s continued desire to assist and support the resident.
  16. When considering whether the noise the resident was reporting was daily living noise or ASB, it was appropriate for the landlord to request evidence in the form of diaries and noise recordings by way of the noise app in order that it could establish the date, time, duration and frequency it was occurring as well as its volume. It could then consider whether the behaviour was causing significant nuisance and/or harm to others and had occurred over a prolonged of time, rather than being a one-off event, such as a historic issue which has since ceased. It was also reasonable that the landlord mentioned the possibility of a professional witness service; this would have been to establish whether what the resident was experiencing amounted to statutory noise nuisance. From the evidence provided, it is unclear if the resident has used the professional witness service to date. 
  17. The landlord, having reviewed the noise recordings and diary evidence the resident supplied, considered the noise reported constituted normal household noise and, in accordance with its policy, that this was not ASB. It is noted that the resident disputes this. Indeed, the resident queried why his situation which caused great annoyance to him was not considered a breach of tenancy by the neighbour, given that he felt they had gone against the tenancy conditions. The landlord appears to have looked into this and come to the conclusion that it did not have sufficient evidence to enforce tenancy action – such as issuing a tenancy warning or an acceptable behaviour agreement – against the neighbour.  While this was not the outcome the resident wanted, it was reasonable for the landlord to explain this.
  18. The landlord cannot reasonably be expected to take actions against tenants for noise that is considered everyday household noise such as talking. Indeed, the Ombudsman’s Spotlight Report on Noise Complaints outlines that it is unfair to both the complainant and person being complained about for the noise to be treated as something it is not, and harder for the landlord to make consistent and reasonable decisions if it does not have the right framework for all types of noise reports.
  19. In summary, the Ombudsman recognises that this was clearly a resident who wanted the noise nuisance to be resolved and made concerted efforts to resolve matters both informally and via the landlord’s complaints process. While not diminishing the impact the alleged assault and reported noise had on the resident, the Ombudsman’s view is that the landlord’s approach to handling his reports of ASB was satisfactory. During the period covered by this investigation, it took reasonable and proportionate steps to resolve the issues between both parties. It did this by visiting both the resident and neighbour, assessing the noise recordings and information provided, providing warning letters to the neighbour and encouraging the resident to continue to report concerns and contact the police if he felt at risk. It worked in partnership with the police and was provided with copies of correspondence between the resident and the police which suggested no further action would be taken due to insufficient evidence. The landlord appropriately attempted to build trust and reassure the resident that his concerns were being taken seriously, and to manage his expectations from the outset. Furthermore, it took the reasonable decision to conclude the ASB investigation on 31 May 2023, as there was no further action it could take given it considered the noise reported was household noise. It repeated this again in its final response of April 2024.
  20. While the landlord did not appear to create an action plan, it did, for the most part, keep the resident updated from the initial report in December 2022 and throughout its complaints process. The Ombudsman considers this was a reasonable approach. Moreover, there was no evidence that the resident was treated less favourably than others in the same situation, nor was there any evidence that the landlord acted unprofessionally towards the resident when responding to his reports.
  21. The resident advised this Service that he felt the CCTV in the building would show he was assaulted in December 2022. In December 2024, the resident was informed that an engineer would need to manually download the CCTV recording as the data was not feeding back to the control room. It added there was an ongoing review of its CCTV systems which may result in an upgrade, but there was no confirmed timeframe for this. In view of this, a recommendation is made that the landlord should update the resident about the building’s CCTV. The resident has informed this Service that no further confrontations have taken place to date.

The landlord’s handling of reports that a neighbour sublet their property

  1. On receiving reports of a sublet of the whole property, the landlord should consider the reports and carry out an audit to check whether the tenant is in occupation of the property. The landlord’s Tenancy Audit Team (TAT) receive referrals from different sources (internal and external) where fraud is alleged. They then carry out an audit and, depending on the outcome, referrals may be made for legal action or a support agency.
  2. On 22 January 2023, the resident reported that the neighbour may be subletting their property. On 8 March 2023, the landlord contacted the resident and confirmed its occupancy check team were investigating the neighbour. The resident continued to report subletting concerns in April 2023. The landlord acted fairly by updating the resident in April 2023 that it was awaiting an update from the TAT. Subsequently, on 10 May 2023, the landlord concluded that the neighbour, the legal tenant, was in occupation and there was no further action to take and closed its case. It reiterated that tenants may take in lodgers, and that provided the tenant was in occupation there was no cause for further action. The landlord acted fairly by conducting various checks and visits between February and May 2023 and further acted fairly by promptly communicating the findings of its investigation. It stressed that if there was a clear breach of tenancy by subletting, further action would have been taken.
  3. Dissatisfied with this response, the resident made a formal complaint on 26 October 2023 to the landlord about the neighbour’s possible subletting. The same day the landlord provided a comprehensive response to his concerns. It reminded the resident that it was unable to discuss his neighbour due to data protection requirements and assured him the audit conducted was robust. It noted the resident had not provided any new evidence apart from assumptions and beliefs about the neighbour. Additionally, the landlord said that while the neighbour should have notified it in writing that they were taking in lodgers, this matter could be easily remedied and it did not intend any enforcement action to be taken.
  4. On 15 November 2023, following receipt of further concerns from the resident, the landlord decided to conduct a further tenancy audit. This was not unreasonable and demonstrated that it was taking his concerns seriously, although the resident did query why another audit was necessary if it had already concluded there was no further action to take. The resident said he was not clear whether a tenant was allowed to have lodgers living with them permanently and maintained that a tenant needed prior written permission for lodgers from the landlord. In the landlord’s stage 1 response, it repeated its position, having carried out a tenancy audit earlier in 2023, that there was no action to take and it did not uphold the complaint. It provided a thorough level of detail differentiating between lodgers, part sublet and sublet, and it apologised for the misunderstanding regarding commencing a second tenancy audit, explaining that this was a mistake on the part of the landlord as it had reviewed an email from another team and erroneously considered it new information. It confirmed that a new tenancy audit was open in respect of the neighbour’s property.
  5. The landlord stated that it understood the resident’s complaint included his concern that the neighbour in question had not obtained the landlord’s permission to take in lodgers. It responded promptly to further queries and reiterated its stance that it was unable to go into details about the resident’s neighbour, but it confirmed in December 2023 that an audit was currently live. In early 2024, the resident continued to report concerns about subletting.
  6. The landlord has provided the Ombudsman with information that demonstrated its TAT carried out a robust investigation into the neighbour as regards occupancy checks. This included a number of recorded visits between February and May 2023. Regarding the second tenancy audit, the landlord carried out visits between November 2023 and January 2024. On 20 March 2024, the landlord was satisfied that the neighbour was not subletting and that there was no further action for it to take in relation to the neighbour taking in lodgers.
  7. In the landlord’s stage 2 response, it acted fairly by providing further information about how it goes about such an audit involving unannounced visits, background checks, review of bank statements and property inspections. Further, it clearly communicated that it was satisfied that the audits were carried out within its guidelines and that no further action could be taken, and that there was no evidence the resident’s complaint was treated differently to complaints of the same type made by others. Following further communication from the resident, it said in late July 2024 that both TAT and the neighbour corroborate the ‘lodger situation’, namely, the tenant resides in the property and a lodger lives in the tenant’s home but does not have exclusive right to any one part of it e.g. no rooms locked. The landlord confirmed the case was closed, whilst being mindful not to disclose any personal information about the neighbour or other occupants of that property.
  8. The landlord has indicated that it has no record of the neighbour notifying it that they intended to take in or had already taken in lodgers, but notes that this is not a requirement in the tenancy agreement but a request. It added that it can request the tenant to notify it in writing and concluded that it would not take tenancy action against someone who did not notify that they had taken in a lodger. This was fair and reasonable.

The landlord’s handling of the complaint

  1. The landlord’s complaints policy says it will acknowledge complaints within 5 working days, after which it aims to respond at stage 1 within a further 10 working days. Its policy states that, if more time is needed to complete the review fully, the time limit may be extended which will be communicated to, and agreed with, the resident.
  2. The resident made a formal complaint about the landlord’s handling of his reports of ASB on 30 April 2023. He felt that the landlord had not done enough and disagreed that the noise he was experiencing was household noise. However, the landlord failed to respond to these concerns through its complaints process. It only appeared to formally address these concerns in its final response of April 2024. This was a failing on the part of the landlord and the resident likely felt his concerns were being ignored.
  3. The resident made a further complaint on 26 October 2023 about a neighbour subletting. The landlord did not acknowledge this until 13 November 2023, outside its complaint policy timescales. This was a further failing on the landlord’s part. 
  4. Subsequently the resident asked to escalate his complaint on 20 March 2024. The landlord issued its stage 2 final response on 23 April 2024. This was 23 working days, slightly outside its policy timescale aim of 20 working days. This further delayed getting matter resolved.
  5. Although these were minor failings, the landlord failed to acknowledge or apologise for these in its formal responses. The landlord failed to take ownership of the complaint when it was raised which resulted in avoidable delays. An order has been made for the landlord to pay the resident compensation of £100. This is in accordance with the Ombudsman’s remedies guidance for a service failure which was minimal, of short duration and may not have affected the overall outcome for the resident.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of reports of antisocial behaviour (ASB).
  2. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of reports that a neighbour sublet their property.
  3. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the complaint.

Order and recommendations

Order

  1. Within 28 calendar days of the date of this report, the landlord must pay the resident £100 for the complaint handling failures identified in this report.
  2. The landlord must contact the Ombudsman within 28 calendar days to confirm that it has complied with this order.

Recommendations

  1. The landlord should:
    1. Visit the resident, if he agrees, to establish whether there is any further support it can offer following the incident with the intent of re-establishing trust and rebuilding the landlord tenant relationship, including providing an update about the CCTV within the building.
    2. Ensure that, upon receiving a report of ASB in future, it undertakes a risk assessment and shares a formal action plan promptly which takes into account the vulnerabilities of the household making the report and sets out the steps to be taken to resolve the reported concerns.