Southern Housing Group Limited (202204941)

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REPORT

COMPLAINT 202204941

Southern Housing Group Limited

24 July 2023

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:
1. The resident’s reports of antisocial behaviour (ASB), including noise nuisance.
2. The associated complaint.

Background and summary of events

The resident is an assured tenant of the landlord; the property is a 2 bedroom first-floor flat within a purpose built block.
The resident has a number of physical health conditions which impact her mobility, cause chronic pain, and fatigue. She also has diagnosed mental health conditions including depression, anxiety and obsessive compulsive disorder.
In March 2020, a new household moved into the flat below the resident’s.
On 22 September 2020, the resident made a complaint to the landlord about the neighbours in the flat below. She stated that since they had moved in, she had been subjected to shouting, slamming of doors and windows, banging on walls and loud music on a daily basis. The landlord opened an ASB case.
On 20 October 2020, with the resident’s agreement, the landlord closed the ASB case. Although the resident stated she had experienced what she had interpreted as “retaliatory” banging noises from the neighbours (in response to noise inadvertently made by her), she conceded she was not certain this was the case. The landlord offered to write to the neighbours about the noise, but the resident declined.
On 5 December 2020, the resident sent the landlord an extensive log of noise she had experienced from the neighbours below since 22 September 2020. This listed multiple incidents occurring on the majority of days across this period, mainly comprised of banging, shouting, loud music and door slamming. She said she had been having to leave her flat to escape the noise and asked the landlord to write to the neighbours. She requested that the landlord only contact her in writing.
On 14 December 2020, the landlord wrote to the resident advising that it had discussed the noise complaints with the neighbours. It said that the neighbours had claimed they were away from the property on several of the dates that the resident had reported noise disturbance, and had provided evidence of this. The landlord said that the neighbours were mindful of the noise transference between properties, and concluded that the reported noise must be coming from elsewhere within the block.
On 15 January 2021, following further complaints of noise from the resident (who stated the noise could only be coming from the flat below due to the layout of the building and locations within her own flat where the noise was heard), the landlord wrote to her again. It said it had spoken to the neighbours again to remind them about noise transference and only using the property for day to day activities. It asked the resident to continue reporting any incidents during unsociable hours or that could be deemed to be anti-social.
On 7 April 2021, following further complaints from the resident, the landlord supplied her with nuisance diary sheets and a device to record incidents of noise onto. On 22 April 2021, the landlord wrote to the resident, confirming receipt of the completed diary sheets and recordings. It said that only one of the recordings occurred at unsociable hours, and the noise complained of was “primarily daily living noise and not anti-social behaviour issues”; it offered to speak to the neighbours again about being mindful of noise.
On 26 May 2021, after she made a further report of noise by the neighbours, the landlord wrote to the resident. It advised that it had written to the neighbours, reminding them of the unreasonable noise clause in its tenancy agreement and asking them to be mindful of noise transference. It enclosed a leaflet signposting her to its new noise app through which she could record incidents.
On 17 June 2021, the landlord wrote to the resident to advise it had visited the neighbours, who had admitted to making some of the noises the resident had recorded. The landlord said it had given the neighbours words of advice regarding noise.
On 26 August 2021, the landlord wrote to the resident after she had provided further recordings of noise. It agreed that some of the recordings evidenced “unacceptable levels of noise disturbance”. It said it had played the recordings to the neighbours who had stated it was not them and provided evidence that they were away from the property on the dates of several of the recordings. The landlord said it had spoken to 2 other residents in the block who said they were not being affected by music or any other disturbances during unsocial hours. The landlord concluded that it could not identify the source of the noise and suggested the resident contact the Local Authority’s Environmental Health team who had powers and equipment that may enable it to do so.
On 19 October 2021, Environmental Health advised the landlord that it had been unable to find evidence of a statutory nuisance in recordings the resident had provided – these were predominantly “traffic and bird song with some minor background normal, daily living noise”. It also confirmed that it had received evidence that the neighbours had been away from the property on a number of occasions when noise had been reported.
On 26 October 2021, the landlord wrote to the resident advising of Environmental Health’s findings. It also acknowledged reports she had made about the neighbours parking in bays within the car park in a manner she believed was aiming to cause her distress and inconvenience, but stated that the bays were unallocated and first come first served. It proposed using mediation with the neighbours to resolve the situation and asked the resident for her consent to proceed.
On 24 November 2021, the landlord received the resident’s signed consent and made a referral to its external mediation service. The mediator first made contact with the resident on 17 December 2021. On 6 January 2022, the landlord wrote to the resident asking her to direct all future correspondence on the noise issue to the mediator to enable them to have a full and clear picture of events.
On 7 January 2022, the resident sent the landlord a letter from her GP. The letter supported the resident’s request to be rehoused in ground floor accommodation based on her mobility issues. It advised that she required a 2 bedroom property so that a carer could stay overnight when required. The landlord wrote to the resident on 8 January 2022, providing her with an application form for the Local Authority’s housing register and advising her to submit the GP’s letter as part of her application. It also signposted her to a mutual exchange website.
On 7 March 2022, the mediator informed the landlord that they had carried out mediation between the parties but were still receiving daily reports of noise from the resident. They offered to provide a “professional witness” service to try and evidence the noise, which the landlord approved on 14 March 2022.
On 19 April 2022, the mediator provided a report to the landlord. They stated that they had carried out professional witness visits on a Friday afternoon and Monday morning (which the resident had advised were the peak times for noise) and not heard any noise. They said they had made themselves available ‘on call’ to the resident over the entirety of that weekend and she had called only called on the Sunday night, and then cancelled 30 minutes later (prior to them arriving) as the noise had stopped.
On 10 May 2022, the landlord was in contact with social services who advised that they had assessed the resident and referred her for support in accessing the Local Authority housing register. Social services stated that whilst the resident preferred to have a second bedroom, to enable a family member which supported her to stay over, this was not essential for her care needs.
On 13 May 2022, the landlord received a further GP letter dated 8 March 2022, expressing concern over the effects of the noise on the resident’s mental health and urging it to consider her application for a move. On 20 May 2022, the landlord wrote to the resident offering to submit a priority move application to its panel of managers for her to downsize to a one-bedroom property.
On 25 May 2022, the landlord wrote to the resident, saying that:
1. It noted her comments that she declined its offer of a priority move as she said she required a second bedroom for a carer, and was unable to assist her further in this respect.
2. It had written to her on 14 January 2022, advising her to make an application to the local authority to be rehoused in a 2-bedroom ground floor property.
3. It had dealt with the case in accordance with its policy and procedure, culminating in mediation and professional witness visits.
4. The mediator had concluded that no excessive noise was witnessed during the visit.
5. It would be closing the ASB case as it did not have sufficient evidence to support that the noise was anti-social or malicious, or that taking any further action would be appropriate or proportionate.
On 11 June 2022, the resident made a formal complaint to the landlord about its handling of the ASB case. She detailed the history of events and the impact of this upon her daily living, physical and mental health. She claimed that the landlord’s offer of mediation had been inappropriate owing to the behaviour of the neighbours being malicious, and accused it of displaying bias towards the neighbours by taking their vulnerabilities into account but neglecting her own. She asked for the landlord to clarify next steps in providing a solution to the issues.
On 28 June 2022, the landlord provided its stage 1 complaint response. It said that:
1. It had been in regular contact with both the resident and the neighbours throughout the life of the case.
2. The neighbours had provided evidence of not being at the property on some dates that the resident had reported noise.
3. Environmental Health had also investigated and been unable to find evidence of noise nuisance.
4. It had appointed a mediator, who also provided a professional witness that could find no noise nuisance.
5. As it had been unable to find evidence of noise nuisance, it was therefore unable to act.
The resident responded on the same day, asking to escalate her complaint to stage 2 of the landlord’s complaints process. She disputed the evidence that the neighbours were away on the dates of some reported noise, claiming that the evidence could have been doctored and that she had seen a member of the neighbours’ household at the property during dates they had supposedly been away. She said she had provided numerous recordings of noise which the landlord had not properly considered, and some of these contained the same voices as previous recordings, which the neighbours had admitted to being theirs.
On 28 July 2022, the landlord emailed the resident, advising it had escalated her complaint. It apologised for the delay, advising that this was due to a backlog of complaints and it would offer compensation for this as part of its response.
On 12 September 2022, the landlord provided the stage 2 complaint response. It said that:
1. It had taken the resident’s complaints seriously and taken proportionate action in line with its procedure based on the evidence available.
2. It had listened to recordings provided by the resident, issued early warnings, worked with partner agencies and employed a mediator and professional witness.
3. It was therefore unable to uphold her complaint.

Events following final complaint response

At some point in October 2022, the neighbours moved out of the flat below the resident.
On 26 March 2023, the resident emailed the landlord to complain about shouting, banging, and slamming of doors by the new neighbours who had since moved in.

Assessment and findings

Anti-social behaviour

The landlord’s ASB procedure says that it will “apply different types of evidence gathering processes or tools to further investigate some cases” and that “these can include noise monitoring equipment, CCTV, diary sheets, visiting the location, professional witnesses”.
The landlord appropriately used a range of these tools (as well as mediation) in response to the resident’s reports, to gather evidence and attempt to determine whether the noise was anti-social or malicious and where it was coming from.
Despite the resident’s concerns around its validity, it was reasonable for the landlord to accept evidence provided by the neighbours of them being away from the property on dates when noise had been reported. The fact that this same evidence was accepted by Environmental Health, when carrying out their own investigation, supports the landlord’s approach to this.
The resident provided a high volume of written reports and noise recordings to the landlord, and the landlord’s records indicate that each of these was received and appropriately considered (bar a few which it was unable to access due to technical issues). Although the landlord stated that some of the recordings did indicate “unacceptable levels of noise disturbance”, it found that the majority of these constituted normal daily living noise owing to noise transference between properties. This was an opinion which was shared by its mediator/professional witness.
The landlord stated in its stage 2 complaint response that it could have done more to get a comprehensive picture of events by speaking with witnesses the resident had cited and discussing issues with other residents in the block. Nevertheless, the landlord did make appropriate enquiries with other neighbours in August 2021, who advised that they had not experienced any of the issues the resident had reported and would have informed the landlord had they done.
The landlord did receive a complaint about noise from another resident in the block in March 2022, however they explicitly stated that the noise was not ASB by other residents and was daily living noise exacerbated by lack of soundproofing. This, along with the the resident’s further reports about the new neighbours, supported the landlord’s findings that the noise was not antisocial or malicious.
The resident made complaints on several occasions regarding the neighbours’ parking. These primarily focused on them parking either too close to her vehicle, or in bays that she regularly used in the unallocated car park – behaviour she interpreted as an attempt to cause her distress and inconvenience. The landlord’s ASB policy is clear that it does not consider parking disputes to constitute ASB. Correspondence between the landlord and resident makes mention of a permit system being in force in the car park, and the landlord would reasonably expect any inappropriate parking to be dealt with by the parking enforcement contractor appointed to manage this.
Whilst it is of some concern that the landlord’s offers of support to the resident throughout the life of the case were limited, this is mitigated by the resident’s insistence that it communicate with her only in writing – this likely made it more difficult to assess whether such support was appropriate and necessary. Correspondence between the landlord and resident also showed that she had a readily available support network of family members, and had also sought assistance from her GP.
Social services confirmed to the landlord that they had assessed the resident and found her needs were met by her family support and the only assistance they could offer was around applying for rehousing via the local authority – which the landlord had already advised the resident to pursue. There was therefore little further support which the landlord could have reasonably offered to improve the resident’s situation and so the detriment to the resident in failing to make such an offer was limited.
Whilst this Service recognises the extremely high levels of distress and inconvenience that the resident reported experiencing due to the disturbances, the landlord’s ASB procedure is clear that although its staff should recognise and appreciate the difficult situations some residents making reports of ASB find themselves in, they should not feel obliged to agree to take any action which is disproportionate or unjustified in the circumstances.
The landlord’s ASB policy says that it believes “customers have the right to enjoy their homes and are entitled to live their day to day lives without having concerns that complaints of ASB will be made against them”. To prolong the investigation of the neighbours after the professional witness failed to find evidence of noise nuisance could have been said to be infringing upon such a right and been seen as unreasonable.
Based on the evidence available to it, it was therefore reasonable for the landlord to conclude that it did not have sufficient grounds to take further action or actively make an impact on the situation using proportionate action. The landlord’s ASB procedure states that in such circumstances a case should be closed, and so it was reasonable for the landlord to do so.
The resident raised the issue of soundproofing in the property on several occasions, describing being able to clearly hear the neighbours carrying out everyday activities such as using the toilet or chopping vegetables. The landlord’s records show that it gave consideration to undertaking further investigation with a view to improving soundproofing of the property, but that ultimately the flats were “built to and signed off by the building regulations at the time”.
Whilst the Ombudsman’s spotlight report on noise nuisance encourages landlords to consider additional soundproofing, in order to prevent or mitigate typical sources of noise nuisance, it also notes that there is no obligation on them to do so above and beyond regulations in force at the time of the property’s construction. Additional soundproofing would therefore be classified as an improvement to the property, which the landlord had discretion to decline to carry out.
The landlord was also not obliged to rehouse the resident. When the resident provided the first letter from her GP in support of rehousing (on medical grounds unrelated to the noise), the landlord appropriately signposted her to the local authority and mutual exchange. Following the second GP letter, the landlord offered to consider the resident for a priority move on the basis that she would downsize to a one-bedroom property. This was a reasonable offer considering that providers of social housing have a responsibility to ensure their stock is being utilised as effectively as possible, and it had been advised by social services that the resident did not have the necessity for a second bedroom.

Complaint handling

The landlord’s complaints policy states that it has adopted this Service’s definition of a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action”. It clarifies that this includes complaints about “the standard or lack of service” in its management of ASB.
On 25 October 2021, the resident stated in an email to the landlord that she had “asked several times” if there was anywhere that she could leave a written review for it. The landlord responded on 18 November 2021, directing her to its website and enclosing a copy of its complaint policy. Considering the context within which the request of 25 October 2021 was made (an email expressing dissatisfaction at the landlord’s handling of the ASB and its lack of recent contact on the matter), it would have been appropriate for the landlord to have logged this as a complaint at this stage, rather than merely signposting.
After the resident made her complaint, on 11 June 2022, the landlord sent an acknowledgement on 14 June 2022 and provided its written response on 28 June 2022. This was in accordance with the timescales within its policy which states it will acknowledge complaints at stage 1 within 5 working days, and provide its response within a further 10.
The stage 1 complaint response adequately summarised the landlord’s actions and decision making in relation to the ASB case. However, it failed to address the resident’s concerns that it had shown bias against her and did not consider her vulnerabilities, and that mediation had been inappropriate for her case. It also failed to offer her any next steps towards a solution, which she had stated as a desired outcome of her complaint. In addition, the landlord introduced a second area of complaint (relating to disabled parking) which the resident felt had not been a part of her original complaint.
The resident stated in her escalation request that this led to her feeling that the landlord did not listen or “read their emails properly. They just seem to skim over their mail and see it but not understand a thing”.
Although the resident requested to escalate her complaint on 28 June 2022, the landlord did not acknowledge this until 15 July 2022 – this was well outside of the 5 working days allowed by its policy and after the resident made contact chasing an update. The landlord took until 28 July 2022 to accept the escalation request and, although it appropriately apologised for the delay, and explained this was due to a complaints backlog, it did not give the resident any indication as to when it would be able to issue its stage 2 response.
The landlord provided its stage 2 complaint response on 12 September 2022. This was 47 working days from when the escalation request had been accepted – well in excess of the 20 working days its policy allows. There is no evidence such a delay was agreed or communicated to the resident. Although the landlord’s correspondence of 28 July 2022 informed the resident that it would offer “redress for the delay in the form of compensation”, no such offer was made in the stage 2 complaint response. The resident was therefore left without reasonable redress for the long delays.
The Ombudsman’s Complaint Handling Code says that on receipt of the escalation request, landlords must set out their understanding of issues outstanding and the outcomes the resident is seeking. If any aspect of the complaint is unclear, the resident must be asked for clarification and the full definition agreed between both parties. In this case, the stage 2 complaint response repeated the summary of actions and decision making at stage 1 without offering any additional insight. It failed to appropriately address either the points raised by the resident in her escalation request or the same points that the stage 1 complaint response had failed to address from her original complaint.
The stage 2 complaint response also continued to address the disabled parking matter. When referring her complaint to this Service, the resident stated that she had repeatedly informed the landlord this did not form part of her complaint but that it had “refused to acknowledge this or change the way they were going to investigate my complaint”. The resident said this had undermined her confidence in the complaint process, stating a belief that “ the reason they had changed my complaint to reflect something I had not mentioned was to deflect and so they wouldn’t have to deal with my actual complaint”.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme, there was no maladministration by the landlord in its handling of the resident’s reports of ASB, including noise nuisance.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration by the landlord in its handling of the resident’s complaint.

Reasons

The landlord carried out an appropriate investigation of the resident’s reports and was unable to find sufficient evidence to support the resident’s claims that the noise was antisocial or malicious. The landlord appropriately used mediation to attempt to resolve the issues and was reasonable in closing the case when this failed and it felt it could not offer any further meaningful intervention.
The landlord failed to appropriately define the resident’s complaint and to address all of the relevant points raised at both stages, undermining her confidence in its complaints process. Stage 2 of the landlord’s complaints process was unreasonably delayed, and an offer of compensation was not made for this, despite previous assurances that it would be.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Pay the resident compensation of £250 for the maladministration in its handling of her complaint.
2. Apologise in writing for the failings identified by this report in its complaint handling.
The landlord should reply to this Service with evidence of compliance with these orders.

Recommendations

It is recommended that the landlord reminds relevant staff of the importance of carrying out risk assessments to identify and appropriately consider support needs for complainants of ASB (as is laid out in its procedure).
The landlord should advise this Service how it intends to follow this recommendation.