Southern Housing (202313792)

REPORT

COMPLAINT 202313792

Southern Housing

3 April 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

The complaint is about the landlord’s:
1. Response to the resident’s concerns of noise from a nearby private nursery, the nursey’s use of a nearby passageway and the landlord’s enforcement of a covenant concerning the passageway.
2. Response to the resident’s request for noise reducing works and the landlord’s associated communication.
3. Complaint handling.

Background

The resident has a shared ownership lease. The property is a 2 bedroom, first floor flat. There is a passageway adjacent to the block, which is owned by the landlord. This leads to a privately owned hall. This is used as a nursery and a venue for events. The resident made the landlord aware that he was awaiting a diagnosis of possible Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder.
There is a covenant within the tile register of the freehold land where the nursery is located. This states the owner is required “not to cause permit or suffer to be done in or upon the adjoining property any act or thing which may be or become a nuisance annoyance danger or detriment to any owner occupier for the time being of the property”.
The resident complained about noise from the nearby private nursery and its use of the passageway in September 2020. The Local Authority had also investigated the noise in November 2020. It concluded that the noise was not “unreasonable, excessive or unusual”.
The landlord advised the resident in February 2021 that its legal team had confirmed that there was a covenant. It said if nuisance was caused it could seek to apply the covenant, but the cost of this would be paid for by resident’s through the service charge. It said given the recent conclusion of the Local Authority investigation it was unlikely that legal action on the covenant would be successful.
Following the completion of the landlord’s internal complaints procedure, he referred his case to us. We sent our Investigation Report (reference 202005536) on 22 April 2021. We found that the landlord’s ability to address the noise had been limited as the alleged perpetrator was a private business. The landlord’s decision-making process in not enforcing a covenant was reasonable. However, it had delayed answering the resident’s questions about the covenant and use of the passageway and as such we determined this amounted to a service failure by the landlord.
The resident continued to report noise from the nursery to the landlord. He made a complaint on 30 September 2022 and said the landlord had not responded to his concerns. He asked what the landlord would do about the noise and the effect of it on his mental health.
The landlord advised it had previously responded to the noise complaint and would not do so again. The resident queried the landlord’s response was a formal stage 1 complaint response. He asked what steps the landlord had taken to try to resolve the issue.
The resident made another complaint on 25 October 2022 about similar issues. The landlord responded at stage 1 on 11 November 2022. It outlined the steps it had taken including the previous Ombudsman determination.
The resident escalated his complaint in February 2023. The landlord responded at stage 2 on 29 March 2023. At the resident’s request, it had replaced signs asking for noise to be minimised, although it had been delayed in doing so. It committed to speak to the nursey and confirm the covenant. It encouraged the resident to evidence the reports of noise and signposted him to the Local Authority. If offered a total of £225 compensation.
The resident referred his case to us on 10 August 2023. He said as follows:
1. The situation with the noise had not changed for around 6 years.
2. He had asked the landlord to tell all residents the decision taken during the review. It had not done so.
3. He had asked the landlord to provide a plan on how they intend to move forward and to share this with residents. It had not done so.
4. The compensation offered was not enough. It would not cover the cost of him installing triple-glazing.
5. The landlord could mitigate the noise by raising the height of the wall or planting trees.
Following the completion of the internal complaints procedure, the landlord told us as follows:
1. It had tried to mediate with the owner of the nursery. The matter was with its legal team.
2. It had carried out a consultation with other resident’s of the block.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, we must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42.l of the scheme says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion seek to raise again matters which the Housing Ombudsman has already decided upon.
As we have already considered the resident’s complaint about noise from the nursery and its use of the passageway, including an associated covenant, we are not able to investigate this complaint again. As such, the complaint about the landlord’s response to the resident’s concerns of noise from a nearby private nursery and its use of a passageway, including an associated covenant, is outside of our jurisdiction.

Assessment and findings

Scope of investigation

Within his communication, the resident said the situation has impacted his mental health. The courts are the best place for disputes about personal injury and illness. This is because independent medical experts give evidence. They have a duty to the court to provide unbiased information on the diagnosis, prognosis and the cause of any illness or injury. When disputes arise over the cause of any such injury, this can be examined in court. Therefore, it is quicker, fairer, more reasonable and more effective to seek a remedy to this through the courts. While we cannot consider the effect of the landlord’s actions or inactions on health, if there is evidence of a landlord failing, consideration will be given to any general distress and inconvenience which the resident experienced as a result.
It is clear that the resident finds the hall being used as a nursery and the subsequent noise to be distressing. It is our role to assess the appropriateness of the landlord’s response to the resident’s concerns and the reasonableness of its complaint responses. This does not include establishing the extent of noise, whether the noise is unreasonable and making decisions on what the passageway can be used for or if any action can be taken against the hall owner, including the enforcement of the covenant. These are matters the resident may wish to seek legal advice on.

Noise reduction works and the landlord’s associated communication

The resident contacted the landlord on 31 August 2022 to report the sound of children from the nursery. The landlord advised him on 2 September 2022 that it would contact him to discuss this by 8 September 2022. It did not do so and the resident chased this up.
The landlord apologised for the delay on 20 September 2022. It said that the staff member dealing with the matter was on annual leave. As such, it had referred it to another member of staff. The resident chased the landlord again on 26 September 2022. He said that it had been 50 days since the landlord said it would contact him. We have not seen correspondence from the resident from 7 August 2022. However, this timeframe was not disputed by the landlord.
On 30 September 2022 the resident made a complaint and said as follows:
1. He had not heard back from the landlord about possible noise reduction options, such as increasing the height of fencing or planting trees.
2. He asked what the landlord would do about the mental health issues he was experiencing due to the nursery.
3. He said that the landlord had a duty of care to reduce the noise to a level similar to before the nursery extended it operating hours and started using the passageway.
4. His mother had been diagnosed with Alzheimer’s and dementia. He would like her to move in but this would not be possible if there was constant noise.
The landlord responded on 10 October 2022. It apologised for the delay. It said that as it had previously responded to the resident’s complaint about noise from the nursery. As such, it would not do so again. It signposted him to the Local Authority in respect of the noise.
The resident said he was unhappy that it had taken the landlord 64 days to respond. He asked the landlord to contact the hall owner and enforce the covenant. He also reiterated his request for the landlord to consider fencing and trees to reduce the noise.
The landlord confirmed on 18 October 2022 as follows:
1. The noise from the nursery and its use of the passageway had already been considered by the Housing Ombudsman. As such, it would not investigate this again.
2. It apologised that it had delayed in responding to the resident’s enquiries.
3. It reiterated that he should report noise nuisance to the Local Authority.
4. It had no agreement with the owner of the hall about them using the passageway.
The resident made another complaint on 25 October 2022 and said:
1. He was unhappy with how long it had taken the landlord to respond.
2. He felt his complaint about noise should be addressed.
3. The hall owner said they had the landlord’s permission to use the passageway.
The landlord acknowledged the complaint on 28 October 2022. It clarified as follows:
1. It could not enforce any covenant against the owners of the hall as there was no lease agreement between the landlord and the hall.
2. It had already considered the complaint about noise.
It sent a stage 1 complaint response on 11 November 2022. It said as follows:
1. It had previously investigated the reports of noise nuisance. This had been considered by the Housing Ombudsman. It could not re-investigate without new information and evidence.
2. It was important to evidence allegations of anti-social behaviour (ASB). It recommended the resident complete diary sheets and it offered to provide a noise app to record evidence. Once received, it would review any evidence to see if a noise nuisance case could be opened. It signposted him to the Local Authority noise team.
3. Its legal team had spoken to the hall owner’s legal representatives. It apologised if this had not improved the situation. It would contact the hall owner to discuss the matter. It would also speak to other resident’s to see if noise from the hall was impacting them.
4. It could not plant additional trees or install a higher fence due to the cost implications to residents. Other resident’s had previously said they had not experienced noise nuisance.
5. It had taken steps to replace signs in the passageway, which asked users to keep noise to a minimum.. It aimed to do this by 9 December 2022.
6. It apologised for the delay in responding to the resident’s queries. It had been short staffed, which had impacted its ability to respond. To acknowledge this it offered £50 compensation.
The evidence shows the landlord’s response was reasonable. It reiterated the limit of its ability to investigate complaints it had already considered. This was in line with its complaints policy. The involvement of its legal team was appropriate given the legal nature of the concerns raised in respect of the covenant. It showed it had considered the resident’s request for trees and higher fencing and explained why it would not take this further. It took the resident’s concerns about faded signs seriously and committed to replace them.
Between 6 and 13 February 2023 the resident told the landlord as follows:
1. He questioned why the opinion of his neighbours was relevant. He asked what data protection laws stopped the landlord sharing feedback from neighbours.
2. He asked what decibel of noise was considered reasonable.
3. He asked the landlord to respond to his queries about the covenant.
The landlord treated this as an escalation request. It responded at stage 2 on 29 March 2023. It said as follows:
1. It apologised that it had not replaced the faded signs by 9 December 2022. It did, however, replace the signs on 17 March 2023 and fitted an additional sign on 22 March 2023.
2. It would contact the nursey by 31 March 2023. It would ask for conversations by parents using the building made outside at drop off and pick times, to be done inside the hall. It would ask it to remove a buggy park in the vicinity.
3. It would let the resident know by 11 April 2023 if it could enforce the covenant. If legal action was the only way it could achieve the outcome the resident wanted, there may be costs associated with this for the resident.
4. It had explained the importance of having evidence of the noise. It encouraged the resident to complete diary sheets and use the noise app. It signposted him to the Local Authority noise team.
5. It was willing to explore the possibility of higher fence and trees. However, it would need to consider the initial and ongoing cost of these. It would only consider these if speaking to the nursey did not help.
6. Whether a noise was a nuisance would be dependent on a number of factors. It recommended that the resident seek legal or specialist advice in respect of this.
7. It clarified it would not disclose any information from other tenants which could be a breach of data protection requirements. It recommended that the resident seek legal or specialist advise if he wanted more information.
8. It offered a total of £200 compensation for the substantive issues (complaint handling has been addressed separately below). The compensation was made up as follows:
  1. £50 previously offered at stage 1 for the delayed responses.
  2. £50 for the delay in replacing the faded signs.
  3. £100 for not working with the resident in a more collaborative way sooner.
Review of the landlord’s response shows it demonstrated it was open to considering the options of taller fencing and planting trees as a way to reduce noise. It was reasonable for it to advise that the cost implications of these would be something that it would need to consider. Its decision to try to resolve the issue by seeking legal advice and speaking to the nursery first was reasonable given the financial impact of the other options.
It appropriately signposted the resident to seek specialist advice in respect of his concerns about data protection and the permitted level of noise.
It acknowledged that it had not replaced the faded signs by the date it had aimed to do so by. It had since installed these, as per the resident’s request.
In addition to those acknowledged by the landlord, we have identified the following additional failures:
1. By the time of the stage 2 response on 29 March 2023, the landlord had not spoken to the nursey. This was around 7 months after the resident had raised the issue in August 2022. The landlord did not explain why it had not spoken to the nursery sooner. As such, it could not show that it had done all it could do to try to resolve the issue at the time.
2. The landlord told the resident on 28 October 2022 that it could not enforce the covenant. It then provided contradictory advice in its stage 2 response to say that it would see if the covenant was enforceable. The resident had raised this query in October 2022. The landlord failed to show it had sought clarity on this within a reasonable timeframe.
When failures are identified, our role is to consider whether the redress offered by the landlord put things right and resolved the complaint satisfactorily. We take into account whether the landlord’s offer of redress was in line with our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our guidance on remedies.
The landlord offered £50 compensation to acknowledge the inconvenience of the delay in replacing the signs. This was in line with our remedies guidance where a failure has caused distress and inconvenience to a resident.
Its offer of £100 for not working with the resident in a more collaborative way sooner was in line with our guidance where a failure adversely affected a resident.
However, the landlord did not identify all of its failures. As such, the offer of compensation was not sufficient to acknowledge the overall effect of its failures on the resident. This amounts to maladministration.
To acknowledge the effect on the resident, we have ordered additional compensation of £250. This brings the total compensation for the substantive aspect of complaint to £450. This is in line with our remedies guidance where a landlord made some attempt to put things right but failed to address the detriment to the resident.

Complaint handling

The landlord’s complaints policy in place at the time stated:
1. At stage 1 it aims to acknowledge a complaint within 5 working days. It aims to respond within 10 working days of the acknowledgement.
2. At stage 2 it aims to acknowledge a complaint within 5 working days. It will carry out a review and following this, it will provide a response within 10 working days.
3. If additional time is needed at either stage it will let the resident know.
The resident made a complaint on 30 September 2022. The landlord contacted him on 10 October 2022 and responded to some of his concerns. However, it failed to clarify if this was a stage 1 response. As such, the resident queried this on 13 October 2022. The landlord confirmed on 18 October 2022 that it was not a stage 1 response. It said it could raise a stage 1 complaint but it would only consider the delay in its communication with the resident.
The landlord’s decision not to provide a stage 1 response to the complaint was not in line with its complaints policy and inappropriate. The resident had raised other issues in his complaint in addition to the noise. These included the landlord’s contact with the hall owner, the enforcement of the covenant and suggestions for noise reduction. By failing to follow its complaints policy and provide a stage 1 response, this caused confusion for the resident as to the nature of the landlord’s response.
The resident made another complaint on 25 October 2022 about related issues. The landlord acknowledged this within its complaints policy timeframe on 28 October 2022. It subsequently responded at stage 1 on 11 November 2022. This response incorporated both complaints. The stage 1 response was within the timeframe of its policy for the second complaint. However, it was 30 working days after the first complaint. This was 3 times the stated response timeframe. The landlord failed to acknowledge this delay.
In February 2023 the resident contacted the landlord to query the stage 1 response. He also said that the landlord’s team he had complained about was investigating his compliant. The landlord appropriately treated this as an escalation request. It responded at stage 2 on 29 March 2023. This was 37 working days after the escalation. This was outside the timeframe of its policy.
The landlord failed to address the resident’s concerns that the complaint investigation had been undertaken by the team he had complained about. This is something it is reasonable to expect it should have investigated and addressed within its formal response.
The landlord acknowledged its stage 2 response had been delayed. It offered £25 compensation for this. However, it did not acknowledge the earlier complaint handling failures. Its responses were delayed at both stages of its complaints procedure. In total, the landlord’s internal complaints procedure took 6 months. As such, this offer of compensation was not sufficient. This amounts to maladministration.
To acknowledge the effect of this on the resident, we have ordered an additional £200 compensation. This brings the total compensation for complaint handling to £225. This is in line with our remedies guidance for maladministration.

Determination (decision)

In accordance with paragraph 42.l. of the Housing Ombudsman Scheme, the landlord’s response to the resident’s concerns of noise from a nearby private nursery and its use of a passageway, including an associated covenant, is outside of our jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s request for noise reducing works and the landlord’s associated communication.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.

Orders

The landlord is ordered to take the following action within 4 weeks of this report and provide evidence of compliance to the Ombudsman:
1. Pay a total of £675 compensation to the resident. This includes the landlord’s previous offer of £225 compensation. This does not need to be paid again if it has already been paid. The compensation is made up as follows:
  1. £450 to acknowledge the effect on the resident of the landlord’s failures in its response to the request for noise reducing works and its communication.
  2. £225 to acknowledge the effect on the resident of the landlord’s complaint handling failures.
2. Provide an update to the resident about its consideration of installing higher fencing and/or trees in the area.
3. Provide an update to the resident on its position as to whether any action will or will not be taken in respect of the hall owner and any reasons for this.
4. Provide an update to the resident about the outcome of the consultation with other resident’s of the block.