Southwark Council (202232546)

REPORT

COMPLAINT 202232546

Southwark Council

29 August 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 response to the resident’s reports of noise nuisance and anti-social behaviour (ASB).
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident is the secure tenant of the property, which is a one-bedroom flat within a block. The landlord is a council. The resident has mental health conditions, and the landlord is aware of these.
As a desired outcome for this complaint the resident has said that he would like his neighbour (the neighbour) to be evicted. This Service is not able to make such an order as only a court can do this. In addition, the Ombudsman cannot order a remedy which would cause an adverse effect to another person.
Under the tenancy agreement conditions, in use from April 2014, residents must “keep noise, however caused, at a level which does not disturb other people.” Residents must also not commit ASB which it defines as causing nuisance, annoyance, distress, or alarm to other residents.
Under the landlord’s ASB policy it says it will adopt a risk-based approach and will exercise professional judgement when assessing how to respond to reports of ASB. It will categorise reports of ASB as either category 1 (high risk), 2 (medium risk) or 3 (low risk). It categorises noise nuisance as medium risk. It will write to, call, or visit the reporting resident within 3 working days and carry out a risk assessment. It will then encourage the use of diary sheets and keep the resident updated with progress. It will also work with partner agencies such as the police to gather evidence.
The landlord will consider appropriate remedies such as speaking to the alleged perpetrator, warning letters, an acceptable behaviour contract, engaging a professional witness, and referring to mediation. If appropriate and proportionate it can also consider taking legal action. Its policy points out that all its actions must be compliant with its legal obligations under the Equality Act 2010 to meet the public sector equality duty.
The Ombudsman’s Spotlight Report on Noise Complaints: Time to be heard, sets out recommendations for landlords on handling noise complaints.
Under its complaints policy, in use at the time, the landlord defined a complaint as “any expression of dissatisfaction about any of our services requiring a response.” It operates a 2 stage complaints process and will acknowledge complaints within 3 working days. It will respond to stage 1 complaints within 15 working days and stage 2 complaints within 25 working days.
The Housing Ombudsman’s Complaint Handling Code (the Code), in use at the time, sets out how a landlord should respond to complaints. A complaint should be defined, as per paragraph 1.2 of the Code, as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.” Under paragraph 5.1 a landlord should respond to a stage 1 complaint within 10 working days. If it needs a further 10 working days in exceptional circumstances, it must contact the resident to explain this. Any further delay beyond this must be agreed with the resident. It should escalate the complaint if asked to do so by the resident (paragraph 5.10) and should respond within 20 working days (paragraph 5.13).

Summary of events

On 16 May 2018 the resident attended a meeting with the landlord to discuss ASB. During the meeting he attempted to take his life and an ambulance, and the police, were called. The following day the landlord made a safeguarding referral to the local NHS mental health team which confirmed it was providing support. It also sent internal emails stating that it had asked the police to carry out welfare checks and that it would discuss how to support him at its next multi-agency partnership meeting.
The landlord also emailed the resident to offer support. It sent him diary sheets and encouraged him to report noise nuisance to the council’s noise nuisance team, and ASB to the police. It also invited him to a further meeting, when he felt able, to discuss his reports and how best to gather evidence. He replied the same day and said he did not want to report this or meet it.
On 27 July 2018, in an internal email, the landlord said the resident had made reports of noise against the neighbour who lived 2 floors above, but they had not been proven. It also said other residents of the block had identified a different resident has having made noise. It also said it had held a multi-agency partnership meeting and not determined any risk.
The resident emailed the landlord on 10 September 2018 and said the neighbour had been buzzing his intercom in the early hours of the morning. He emailed it again the following day and sent a video which he said showed the neighbour making noise on her balcony and inside her flat late at night. It replied the following day and said it would speak to the neighbour. It emailed him again on 15 September 2018 and said the neighbour had denied the allegations.
On 18 July 2019 the resident called the council’s noise nuisance team to report noise. The records say he was advised to call back when the noise was happening. He called them again on 24 July 2019 and they offered to visit to see if the noise was a statutory nuisance. The records say he declined a visit, but they visited the block and spoke to the neighbour.
The resident emailed the landlord on 16 September 2020 and said that the neighbour had come to his front door and tried to hit him with a broom. It replied to ask if he had reported this to the police and said it would speak to the neighbour. It emailed the police who said they were investigating. It emailed him again on 22 October 2020 and said the neighbour said she had knocked on his door to discuss his dogs fouling on his balcony. It said it had advised her not to speak to him. It emailed him again on 10 November 2020 and said the police had closed the case due to insufficient evidence. It said it was unable to take any action due to this as it relied on the police for evidence.
On 16 February 2021 the landlord sent a warning letter to the neighbour. It said it had received reports of loud music and reminded her of her tenancy conditions.
The resident emailed the landlord on 17 June 2022 and said he had been approached by several neighbours about the noise nuisance. He said they felt, like he did, that there was no point in reporting as it did not do anything. He said it had told him when he moved in that it was going to evict the neighbour. The landlord replied on 20 June 2022 and asked if he had reported to the noise nuisance team as it had advised him to do. He replied and said he had not as he did not want them coming to the property due to his mental health conditions.
On 29 June 2022 the landlord emailed the resident and said he needed to report noise to the noise nuisance team, and they needed to visit him, to be able to assess the level of noise and gather evidence. It said the noise nuisance team could take action, but it could only give verbal warnings without evidence.
The resident emailed the landlord on 11 August 2022 to make a stage 1 complaint which was about:
1. Having been reporting noise nuisance for the past 6 to 7 years and been told the landlord was going to evict the neighbour but did not.
2. Having been told to report to the council’s noise nuisance team but was told they needed to come to the property, which he did not want due to his medical conditions.
3. The neighbour having attacked him, threatened him, threatened to kill him and his dog and having kicked his door.
4. A former resident had also reported noise nuisance.
The landlord emailed the resident the same day to acknowledge his complaint. It provided its response on 17 August 2022 in which it:
1. Said it had investigated ASB reports but could not find any evidence to support them. The neighbour had denied the allegations and made counter allegations about him.
2. Confirmed he had been advised to report noise to the council’s noise nuisance team, which had the power to act on statutory nuisance. It had also advised him to report other ASB to the police, who it would work with to tackle ASB where there was evidence.
3. Explained it had no record of having told him it was going to evict the neighbour and that it would need a court order to do this, but there was not sufficient evidence to apply for one. It also had not received reports of ASB from any other residents.
4. Said it could not discuss other resident’s information with him.
5. Did not uphold his complaint but said it would send him diary sheets and offered to arrange mediation.
6. Explained how he could escalate his complaint if he remained dissatisfied.
On 17 August 2022 the resident emailed the landlord and asked to escalate his complaint. He said he disagreed with the outcome and his housing officer having responded to his complaint.
The resident emailed the landlord on 6 October 2022 to report noise nuisance coming from the neighbour’s flat. It emailed him on 12 October 2022 to acknowledge his stage 2 complaint and again on 14 October 2022 to say it would investigate his noise report.
On 12 October 2022 the police emailed the landlord and said the resident had reported that the neighbour had assaulted him. They asked what action it was taking. It replied on 14 October 2022 and said it was not aware of the alleged incident. It had been sent a video of noise by the resident, but it did not show where the noise was coming from. It said there was a history of allegations and counter allegations being made, but without any corroborating evidence. The police replied and said they would warn the neighbour but did not have evidence to support arresting her.
The landlord and the council’s noise nuisance team exchanged emails between 18 and 19 October 2022. The landlord said other residents had confirmed there was noise coming from the neighbour’s flat on 6 October 2022. The noise nuisance team said they had received a call from the resident. They also said they had only had one other call, from a different resident, within the previous 3 months.
On 16 November 2022 the landlord provided its stage 2 response, in which it:
1. Set out its stage 1 response.
2. Confirmed the resident had recently reported noise and that it would send a warning letter to the neighbour. Only one other report of noise had been made in the previous 3 months.
3. Encouraged him to continue reporting noise and to complete diary sheets to gather evidence. It also encouraged mediation if both parties agreed.
4. Said it would request noise monitoring equipment if he would like this but advised there was a waiting list.
5. Did not uphold the complaint and advised how he could contact this Service if he remained dissatisfied.

Events after the end of the landlord’s complaints process

The landlord emailed the resident on 24 November 2022 and said it had investigated his recent noise report. It had sent a warning letter to the neighbour that day and requested for him to be added to the waiting list for noise monitoring equipment.
The resident has told this Service that he had been reporting noise nuisance for 8 to 9 years. The landlord has told the Ombudsman that it carried out a case review in March 2024 and concluded there was a personality clash between the resident and the neighbour. It said he had made 5 noise reports since the stage 2 response but had not let the council’s noise nuisance team in to assess the level of noise. It said no other residents in the block had reported noise and so it had not been able to take any action.

Assessment and findings

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

It is not the Ombudsman’s role to determine whether noise nuisance, or ASB, took place. Instead, this Service’s task is to assess the landlord’s response to the resident’s reports, whether it followed its policies, and whether its actions were fair in all the circumstances.
The evidence shows that the landlord took decisive and appropriate action following the events of 16 May 2018. It made appropriate safeguarding referrals and checks, offered support and encouraged the resident to report noise nuisance to the council’s noise nuisance team and to complete diary sheets. It investigated 2 reports made in 2018.
When the resident reported an attempted assault in 2020 it promptly replied in line with its ASB policy. It contacted the police for information and evidence, as per its policy, and spoke to the neighbour. However, there is no evidence it completed a risk assessment which was a failing. When the police confirmed they had closed the case it also did so, due to lack of evidence, which was reasonable.
In 2022, after the resident contacted the landlord about his concerns, it appropriately asked and advised him to report noise to the council’s noise nuisance team. This was the correct approach as the noise nuisance team had powers under legislation to respond to noise nuisance which the landlord did not have. Further, the landlord would have been able to use any evidence gathered as part of its own case against a perpetrator. It managed expectations by being clear in the limitations of its own action without this evidence.
While the resident explained why he did not want to do this, due to not wanting to be visited, the landlord did not have control over this. The council’s noise nuisance team had its own policies and procedures which the landlord could not change. While it could have asked for a reasonable adjustment to have been made, this would likely have resulted in insufficient evidence having been collected to be able to use their powers regarding statutory nuisance. The noise nuisance team would not have been able to determine the level of noise inside the property without being inside.
Within its stage 1 response the landlord reiterated its advice that the resident report noise nuisance to the noise nuisance team and ASB to the police. It explained this would help gather evidence, and that it would work with these agencies in line with its policy. It again suggested using diary sheets to gather evidence, although there are no records that the resident did this at any point. It also offered mediation, in line with its policy, but appropriately explained that both he and the neighbour would need to consent to this. The landlord could have offered mediation earlier and not having done so was a failing. Within its stage 2 response it offered to add him to the list for noise monitoring equipment, something which it again could have done sooner.
The landlord acted when noise was reported on 6 October 2022 but did not contact the resident within its policy timeframe. It did carry out enquiries, established corroborating evidence, and appropriately issued a warning letter to the neighbour, however it took an unreasonable amount of time to do so.
When the police made the landlord aware of an alleged assault on 12 October 2022, it failed to contact the resident or complete a risk assessment. While it was reasonable for it to rely on the police to investigate the alleged crime, it could have been more proactive in supporting the resident.
Overall, there was service failure. While the landlord did act on reports made, and followed aspects of its policy, it failed to complete risk assessments or act promptly following the reports in October 2022. It also delayed in offering mediation and sound monitoring equipment, which offered much earlier, could have helped resolve the situation. This led to the resident chasing the landlord and feeling like his reports were not taken seriously enough. To reflect the distress caused an order has been made that the landlord pay £100 compensation.

The landlord’s complaint handling

The resident emailed the landlord on 17 June 2022 about his dissatisfaction with its handling of his reports of noise nuisance. This was a complaint under the definition in paragraph 1.2 of the Code, however it failed to treat it as such. Under paragraph 1.3 of the Code a resident does not have to use the word ‘complaint’.
The landlord did acknowledge the resident’s complaint made on 11 August 2022 within its policy timeframe. It provided its response well within its policy timeframe and in compliance with the Code. However, it failed to acknowledge his stage 2 complaint within its policy timeframe and there was an unreasonable delay. It provided its stage 2 response 64 working days after escalation, which was in breach of its policy and paragraph 5.13 of the Code. This was an unreasonable and unexplained delay, where it had also failed to request an extension of time.
There was maladministration which caused further time and trouble for the resident. To reflect this an order has been made that the landlord pay £150 compensation.

Determination (decision)

In accordance with Paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s complaint handling.
In accordance with Paragraph 52 of the Scheme, there was service failure in relation to the landlord’s response to the resident’s reports of noise nuisance and ASB.

Reasons

There was maladministration as the landlord failed to identify the resident’s first expression of dissatisfaction as a complaint. It also failed to acknowledge or respond to the stage 2 complaint within its policy timeframes or in compliance with the Code.
There was service failure as the landlord failed to complete risk assessments following reported ASB. It was also slow to offer mediation or noise monitoring equipment.

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Provide a written apology to the resident from a manager for its failings identified in this report.
2. Pay directly to the resident compensation of £250 made up of:
  1. £100 for the distress caused to the resident by its service failure.
  2. £150 for the time and trouble caused by its complaint handling failings.
3. Confirm compliance with these orders to this Service.

Recommendations

It is recommended that the landlord consider whether offering a move to an alternative property, to either the resident or the neighbour, might resolve the ongoing situation.

Wider Orders

The Ombudsman made a wider order under paragraph 54(f) of the Scheme regarding the landlord in case 202210574 in relation to complaint handling on 27 March 2024. This order included a review of its failings responding to complaints within timeframes. As that order was made after the events of the current complaint, no further orders have been made here.