Milton Keynes City Council (202223793)
REPORT
COMPLAINT 202223793
Milton Keynes City Council
28 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 noise and antisocial behaviour.
- Request for a managed move.
- Associated complaint.
Background
- The resident is a secure tenant of a 2-bedroom ground floor flat, owned by the landlord, where she resides with her 2 children.
- The resident raised a formal complaint to the landlord on 26 March 2023, relating to noise from her neighbour in the flat above. She said she had made reports in 2021 and, since September 2022, it had become more frequent. She had to sleep in another room with her baby due to the noise levels. The situation had impacted her mental health, and she no longer enjoyed her home. She had applied to be re-housed but was told there were no available 3-bedroom properties. She said she would accept a 2-bedroom property and asked the landlord to move her.
- The landlord responded at stage 1 of its complaints process on 26 April 2023. It had tasked its antisocial behaviour (ASB) officer to see how it could assist her and would maintain contact over the coming weeks. It was sorry that she felt she could no longer live at the property and offered housing advice. It could not offer a move on ASB grounds as the situation would not meet its threshold for an emergency move.
- The resident asked to escalate her complaint on 2 May 2023. She did not feel that the landlord had dealt with her issues. She repeated that the issue remained ongoing, however, it was now worse due to the impact on her mental health and was affecting her children.
- In its stage 2 complaint response on 7 August 2023, the landlord clarified the resident’s housing situation, property size, and banding on the housing register. It said that her reports of ASB had been considered when assessing her housing application but, at the time, did not meet the threshold for a move. It had no police incident, medical reports, or evidence to support a need to move. It said that if she had substantial new evidence, she should provide the information, and it would review her housing application.
- The resident remained dissatisfied with the landlord’s response and brought her complaint to this Service. She said that she wanted it to acknowledge that it had not addressed her reports for the previous 2 years.
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 complaint she asked the landlord to move her to alternative accommodation. The landlord’s allocation process does not fall within the remit of this Service and is a matter for consideration by the Local Government and Social Care Ombudsman (LGSCO). We have, therefore, not considered the resident’s banding or the landlord’s choice-based lettings (CBL)CBL process as part of this investigation. We have, however, considered how the landlord responded to the resident’s complaint and whether it was reasonable in the circumstances.
- Our position is in accordance with paragraph 42.j. of the Scheme which states that the Ombudsman may not investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
- In the resident’s correspondence she said that the noise and ASB had impacted her mental health and affected her children’s sleep and schoolwork. 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.
- The landlord provided an account and timeline of the actions it had taken regarding the resident’s complaint. However, it provided limited evidence to this service, with little supporting documentation. This has affected our ability to accurately assess the events. This investigation has, therefore, relied on the evidence provided by both parties to determine this case.
Reports of noise and antisocial behaviour
- The landlord has adopted the Crime and Policing Act 2014 definition of ASB, which is conduct which:
- Has caused, or is likely to cause, harassment, alarm or distress to any person.
- Is capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
- Is capable of causing housing-related nuisance or annoyance to any person.
- The landlord’s ASB policy recognises that some behaviours may be unwanted by the person experiencing them. It will not consider some reports as ASB, such as cooking smells, reasonable day–to–day living noise, or children playing. It recognises that persistent noise nuisance can have a detrimental impact on the quality of life of others, in such instances, reports of statutory nuisance should be referred to environmental health (EH) for investigation. It also includes that:
- It aims to tackle ASB through a wide range of preventative methods. It will adopt a ‘support first’ approach and try to influence behaviour change, first through informal action such as warnings and acceptable behaviour contracts (ABC), before resorting to formal action.
- Where it needs to take formal action, this may be via an injunction or possession proceedings.
- It will work with partner agencies to support victims and manage serious and persistent offenders of ASB.
- Prior to her complaint of March 2023, the evidence shows that the resident raised a complaint in December 2022. This related to noise caused by her upstairs neighbour and the neighbour’s dog urinating off the balcony onto hers. She had 2 children, 1 being a toddler, who could become ill due to the urine on her balcony. She had been speaking to EH about the noise but received no response since they collected the noise equipment. She wanted the landlord to deal with its tenants, she no longer wished to live there, and said that she had been diagnosed with anxiety and depression.
- In its stage 1 response on 11 January 2023, the landlord said it was taking action to address the behaviour. It asked her to continue to keep a diary of incidents and directed her to its ASB page on its website.
- The landlord’s response was brief and did not explain to the resident what actions it was considering. It did not say whether there was an open ASB case, or if it had undertaken a risk assessment. There was also no discussion of an action plan. It failed to fully consider or respond to her reports. While we appreciate that landlords will often have a separate ASB case running alongside a complaint, it would have been helpful to have provided her with more information and explanations.
- Following contact from this Service, the landlord responded at stage 2 of its complaints process on 13 February 2023. It said that it had looked into the matter with its ASB officer, EH, and its housing officers. It reassured her that it took all instances of ASB and noise seriously. Its response included as follows:
- The investigation was still ongoing, and its team were there to support her.
- EH were required to investigate all instances of noise to see if it met the statutory noise threshold. It was aware that EH was still investigating the case which was opened on 19 February 2022. It was aware that she had been in contact with EH throughout 2022 and she was using its noise app to record instances of noise.
- It had sent warning letters about the noise to the neighbour and installed specialist noise equipment in May and November 2022. It had reviewed the most recent recordings, which were not statutory noise. It concluded that it was lifestyle noise. Noise between tenants would unfortunately easily travel in small blocks of flats due to their age and construction. It had sent additional warnings to the neighbour.
- The housing officer had advised her to keep an open dialogue with EH and keep sending evidence, which was the correct advice.
- It reassured her that it was working with EH and on 10 February 2023, its ASB officer and EH officer had again visited the neighbour. However, it had been unable to gain access to talk to them. It would continue to investigate and update her.
- The landlord’s response was thorough and explained that the noise was not statutory. This limited its ability to take further action, however, it had sent warning letters to the neighbour about the noise. There was an open case since February 2022, demonstrating that the matter had been ongoing for a year. In the landlord’s explanation to this Service, it said that it had opened an ASB case in February 2023. However, it provided no evidence to demonstrate whether it had undertaken a risk assessment or agreed an action plan with the resident.
- 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 the landlord determined that there was no statutory noise, it should have considered how it could manage the reports of noise and the 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:
- 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.
- 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.
- 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.
- The resident raised a further complaint in March 2023, again relating to noise from her neighbour, explaining the detriment this was having on her and her family.
- In the landlord’s timeline of events, it stated that it had spoken with the resident in March 2023 and updated her. It said that the complaints related to sporadic noise, and it had encouraged her to continue to use its noise app to evidence the music and loud parties. It had also asked her to complete diary sheets to align with the noise app recordings. There was nothing of note in relation to ASB. It had offered mediation and discussed homeswapper. It gave advice to the neighbour about the alleged noise and asked her to be considerate of her neighbour. The neighbour was due to have carpets fitted in April 2023, throughout the property, as the current flooring was solid tiles. It further stated that it completed an ASB matrix in April 2023, however, provided no evidence of this.
- While the landlord continued to encourage the resident to report noise, use the noise app and diary sheets, it failed to manage her expectations. It had stated that it was not statutory noise but failed to explain what actions, if any, it could take if she continued to report her concerns. This would likely have added to her frustration, given that she stated that she had been reporting her concerns since 2021.
- In its stage 1 response it said that it did not have oversight of the specific investigation into the noise complaint, however, it knew that its ASB officer was tasked to undertake enquiries to see what it could assist with. If she had substantive complaints of ASB to report, outside of non-statutory noise nuisance and domestic noise, this was something it could assist with.
- The landlord’s response lacked empathy and failed to acknowledge how long the matter had been ongoing. While we appreciate that it said it would continue investigating, and was something it could assist with, it had been doing so for a considerable period without resolution. It failed to state how it would manage her reports going forward, and whether it was able to address the matter further.
- In the resident’s escalation request she said that she was still in the same situation she had been in since 2021. It was now worse due to a “massive set back” in her mental health due to the constant stress, lack of sleep and her children suffering due to the situation. It was impacting her eldest child’s school life.
- In the landlord’s timeline of events, it said that it had given further warnings to the neighbour in May 2023, despite the noise not meeting a statutory threshold. It then received a report about the dog urinating off the balcony in June 2023 and EH contacted the neighbour. It visited the neighbour in August 2023 and issued a warning. It had advised the neighbour that an ABC would be the next step, and she agreed to mediation.
- It should be noted that the resident complained of the dog urinating off the balcony in her complaint of December 2022. It is therefore not known why the landlord did not address this until June 2023.
- The landlord’s stage 2 response focussed on the resident’s request to move and failed to acknowledge her reports about her mental health. It said that she should provide any substantial new evidence. While it made its position clear, that it did not have evidence to support a move, it failed to address her noise and ASB concerns.
- Following the landlord’s final response, its timeline and explanations show the following:
- In August 2023 there were further reports of dog urine coming down from the neighbour’s balcony onto the resident’s balcony. Paint had been spilled over the balcony, splashing onto the resident’s. It had made attempts to speak with the neighbour about the issues and was due to visit again. It had suggested mediation and both parties had agreed.
- In September 2023, its mediation service confirmed that neither party had engaged.
- It had received no new reports between August 2023 and the end of November 2023.
- Its mediation service confirmed it would be happy to re-open the case in December 2023. It closed the case in January 2024.
- Between March 2023 and January 2024, it had spoken with the resident at least 2 to 3 times each month and provided updates.
- It is evident that the resident continued to experience noise from her neighbour. She provided copies of diary sheets for September and October 2024 which related to noise, drug dealing and cannabis smoking. These were issues which had not previously been reported in her complaints to the landlord.
- In the landlord’s explanation to this Service, it said that it had taken specialist advice from EH, who investigated the noise complaints reported by the resident, alongside its ASB team who investigated the behaviour of the resident to assess what was required. EH closed the case as there was no statutory noise nuisance identified. ASB closed the case after identifying that there was a standard risk, and no further involvement was required. The noise nuisance referred to the noise created by the occupants of the property moving within it.
- We appreciate that the situation would have been distressing for the resident and that she was likely frustrated by her perception that the landlord was not taking action. It is the Ombudsman’s understanding that there is a high threshold of evidence required to pursue legal action regarding ASB and at the time the evidence was insufficient. The landlord had no statutory evidence to enable it to consider pursuing legal action against the neighbour in relation to noise disturbances. However, it had made home visits, gave written and verbal warnings, and offered mediation. This was appropriate and in line with its ASB Policy.
- That said, there were failings in the landlord’s handling of the resident’s reports as outlined in this report. Its responses lacked empathy. By asking her to keep reporting the same noise issues, which it deemed not to be statutory, it failed to manage her expectations. It failed to set out what actions it may be able to take in relation to non-statutory noise. It initially failed to address her reports of the dog urinating off the balcony in December 2022 until June 2023. While it advised the neighbour that the next step would be an ABC, there was no evidence provided to show that this action was taken, given that the issues persisted.
- For the reasons above we find service failure in the landlord’s handling of the resident’s reports of noise and ASB.
Request for a managed move
- In the resident’s complaint she asked the landlord to move her to alternative accommodation. She said she could no longer live in the property due to it impacting her mental health. She said that while she had a 3-bed need, she would accept a 2-bed property.
- The landlord’s decant policy is silent on moves relating to ASB and is specific to moves where the property is in need of repair. No policies were provided in relation to emergency transfers other than its police–initiated managed move form. It is normal practice for landlords to offer emergency moves which are supported by police in circumstances where there is a risk to life or threat of violence.
- In the landlord’s stage 1 response it acknowledged the resident no longer wanting to reside in her home. It said that its allocations team may not be able to offer a 2-bedroom property, as she was a 3-bed need. This would put her in an overcrowding situation. If her circumstances had changed and she needed to downsize, she may be eligible for its downsize incentive scheme. If she was a 2-bed need and looking to downsize, outside of the scheme, this was usually a longer wait. It could not look for a move on ASB grounds as the situation did not meet the threshold for an emergency move. It encouraged her to review the downsizing scheme or consider creating a homeswapper account to look for a mutual exchange.
- The landlord’s response was appropriate in terms of being unable to offer a managed move or emergency transfer. There was no evidence that the police had been involved or supported a need to move. It explained that the evidence it had did not meet its threshold. However, its response in relation to downsizing was not helpful or relevant to the resident’s circumstances. It was aware that she had 2 children and was in a 3-bed need. This appeared to be more general advice rather than specific to the resident’s circumstances.
- In its stage 2 response, it confirmed the resident’s need for of a 3-bed property. It repeated that her reports of ASB and noise did not support the need to move, and it had no evidence from police. She had not, therefore, met the threshold for an emergency move. It recommended that she continue to explore homeswapper and mutual exchanges. She could also explore if any housing associations had open waiting lists she could join.
- In the landlord’s explanation to this service, it said that applications for emergency rehousing were managed through its housing options and CBL service working in collaboration with its neighbourhoods team. The resident had not made a request for emergency rehousing. She had an opportunity to look for alternative properties through its CBL approach and could apply for a mutual exchange through homeswapper. She had not made an application on homeswapper to initiate this.
- The landlord’s response was reasonable and provided guidance and advice on housing options. We, therefore, find no maladministration in the landlord’s response to the resident’s request to be moved.
Associated complaint
- The landlord operates a 2-stage complaints process. Its policy, provided to this Service, dated 2023 to 2025, states that it will acknowledge complaints within 5 working days. It will respond to both stage 1 and 2 complaints within 20 working days. Where cases are complex it will add a further 10 working days at each stage.
- We note that the landlord’s complaint policy, available on its website, dated 2024 to 2026 also reflects the above, with complaints at both stages being responded to within 20 working days.
- The landlord’s complaints policy is not compliant with the Ombudsman’s Complaint Handling Code which became statutory on 1 April 2024. The Ombudsman has a duty to monitor compliance with the Code. We will assess landlords using our Compliance Framework and take action where there is evidence that the requirements set out in the Code are not being met. We have therefore referred this to our team responsible for monitoring compliance with the Code. Paragraph 6.3 of the Code states that landlords must issue a full response to stage 1 complaints within 10 working days of the complaint being acknowledged.
- The Code, applicable at the time of the resident’s complaint, states in paragraph 5.1, that landlords must respond to the complaint within 10 working days of the complaint being logged.
- The resident raised her complaint on 26 March 2023 and the landlord responded 21 working days later on 26 April 2023. This was 1 working day outside its complaints policy timescale and 11 working days later than the Code requires.
- The resident asked to escalate her complaint on 2 May 2023, and the landlord responded at stage 2 on 7 August 2023, 67 working days later, and 47 working days outside its complaint policy timescale.
- There is no evidence provided to suggest that the landlord had communicated that it required additional time to respond to the resident’s complaint or kept her informed. Paragraph 6.4 of the Code states that landlords must decide whether an extension to the timescale is needed when considering the complexity of the complaint and then inform the resident of the expected timescale for response. Any extension must be no more than 10 working days without good reason, and the reason(s) must be clearly explained to the resident.
- The landlord also failed to apologise for its late responses or demonstrate any learning. We, therefore, find service failure in the landlord’s handling of the resident’s associated complaint.
Determination
- In accordance with paragraph 52 of the Scheme there was service failure in the landlord’s handling of the resident’s:
- Reports of noise and ASB.
- Associated complaint.
- In accordance with paragraph 52 of the Scheme there was no maladministration in relation to the landlord’s handling of the resident’s request for a managed move.
Orders and recommendations
Orders
- The landlord is ordered to:
- Pay directly to the resident the sum of £200 broken down as follows:
- £100 for time and trouble, distress and inconvenience in relation to the failings identified in this report for its handling of the resident’s reports of noise and ASB.
- £100 for time and trouble, distress and inconvenience in relation to its complaint handling failures.
- Send a written apology to the resident for the failings identified in this report.
- Pay directly to the resident the sum of £200 broken down as follows:
- Within 4 weeks of this determination the landlord must provide evidence of its compliance with the above orders.
Recommendations
- The landlord should review its complaint handling policy to ensure it is brought in line with this Service’s Complaint Handling Code.
- The landlord should review this Service’s Spotlight Report on Noise from October 2022 and how this may be reflected in its policies.