Wandsworth Council (202321915)

REPORT

COMPLAINT 202321915

Wandsworth Council

29 July 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 resident has complained about the landlord’s handling of reports of anti-social behaviour (ASB) from a neighbouring property, in particular noise from a dog.

Background and summary of events

The legal and policy context

The landlord’s ASB Policy states that:
1. “The Estate Manager/Senior Estate Manager (EM/SEM) will assess the case to determine the severity of the ASB reported, which will determine how the case is dealt with.”
2. “Following the initial report of ASB, the EM/SEM will contact the complainant and arrange an interview. During the interview they will discuss the problem with the complainant and agree the next steps. This could include:
  1. Gathering information and evidence to corroborate allegations.
  2. Talking to the perpetrator, if appropriate.
  3. Interviewing or writing to the perpetrator.
  4. Arranging a mediation interview.
  5. Progressing legal action to resolve an ASB incident.

vi. Involving and working with partner agencies.”

“If the initial investigations satisfy the EM that the alleged complaint is justified the alleged perpetrator(s) should be warned of the consequences of the behaviour that has been alleged.”
With regards to Muti-Agency Partnership Working and Involvement of other Council Departments /Services:
1. “Safer Neighbourhood Teams (SNT) can be contacted for basic discussion/support in dealing with perpetrators where appropriate.
2. Dog Control Unit / Animal Welfare Service (Housing and Regeneration) – Dog related queries, for example information around classifications of dangerous dogs.”

The landlord has a two-stage complaints procedure. For complaints that can be referred to this Service, it should send the stage 1 response within 10 working days. Complaints that are escalated to stage 2 should be responded to within 20 working days.

Summary of Events

The resident is a leaseholder of the landlord, the lease having been transferred on 18 June 2010. Her property is a flat in a block. The resident has mental health issues and is under the care of a psychiatric hospital. The resident has a representative and carer who sometimes stays with her.
On 3 July 2023 a new neighbour moved into a neighbouring flat. The neighbour is a tenant of the landlord and has a small dog.
On 5 July 2023 the resident contacted the landlord’s Joint Control Centre (JCC) to report noise nuisance from the dog barking. An Estate Service Officer (ESO) was sent out and witnessed the nuisance. On 11 July 2023 the landlord sent a letter to the neighbour warning that it may send an Abatement Notice under section 80 of the Environmental Protection Act 1990 if there were further reports. On 11 July 2023 the landlord (an EM) wrote to the resident to advise her of the action taken and stated should there be further evidence it may serve a Notice under section 80 of the Environmental Protection Act 1990.
Following contact from the representative, on 12 July 2023 the landlord emailed the Safeguarding Adults and Mental Health team in Social Services asking for a welfare check, as it was concerned that the resident had threatened to commit suicide due to the dog barking.
On 14 July 2023 the resident’s representative wrote to the landlord stating that since the neighbour had moved in, the resident had to be admitted to hospital twice. She attached a letter dated 11 July 2023 from the NHS mental health team stating that the resident had been distressed by noise from her neighbour’s pet dog since 3 July 2023 as she was “overly sensitive”. She was having suicidal thoughts and not being compliant with treatment. She had been admitted to hospital on 9 July 2023 and would be discharged on 11 July 2023.
Following a report of noise on 15 July 2023 an ESO visited. The landlord wrote to the resident advising that it heard noise at this visit but that it was mitigated when requested so did not take further action. The landlord sent another letter dated 20 July 2023 noting that at a visit on 16 July 2023 it was not able to confirm any noise.
On 18 July 2023 the representative wrote again stating that the neighbour had shouted a homophobic slur at her and the resident after she asked him to turn his music down.
On 19 July 2023 the landlord sought advice from the Animal Welfare Service on whether the dog was registered and what further action it could take. On 20 July 2023 the Animal Welfare Service advised the landlord that it first contacted the neighbour about his dog on 6 July 2023. It had monitored the neighbour’s dog at different times as the resident had reported noise was an ongoing issue; however, it did not witness noise nuisance, nor had it received reports from other residents. The Animal Welfare Service stated “In summary I would suggest that the dog is currently getting used to a new property and that the owner is working hard to achieve this but it is not a quick solution. They should reasonably be given time to achieve this. …I will continue to monitor at different times as I have not yet witnessed an ‘ongoing continual noise nuisance’ and as such would say that at present do not see any valid reason for permission to be withdrawn for keeping the dog at the property.”
On 20 July 2023 the landlord asked the Mental Health team if the resident was known to it. In response the Mental Health team advised the landlord that if it was concerned about suicidal ideation, it should alert the resident’s hospital and/or the GP.
Following reports of noise on 20 and 22 July 2023 the landlord visited then wrote to the resident on 25 and 26 July 2023 respectively. It stated that was not able to confirm the noise at the visits.
On 24 July 2023 the landlord spoke to the neighbour who made counter-allegations about the behaviour of the resident and/or her friends/family towards him and his dog.
The representative sent a further email on 28 July 2023 in which she stated that she had reported 12 noise complaints, not all of which had been responded to. As the landlord had not previously authorised the representative on 1 August 2023 it asked the resident if she permitted it providing information to her representative.
On 3 August 2023 the resident reported noise from her neighbours flat. On 8 August 2023 the landlord advised that the noise was not loud enough to constitute a statutory nuisance therefore it would not take further action.
On 7 August 2023 the landlord interviewed the neighbour. Its interview notes show that it discussed ways to reduce the dog barking and transference of noise although for reasons of confidentiality details cannot be disclosed. The neighbour made counter-allegations about the resident’s and her representative’s behaviour included actions to get his dog to bark. The neighbour denied making a homophobic slur. The landlord warned the neighbour that it may revoke permission for his dog.
On 14 August 2020 the landlord wrote to the representative having received appropriate authorisation. It confirmed a safeguarding referral had been made, it did not supply recording equipment, it was continuing to investigate the case and the resident should report noise to the JCC. The landlord further advised that the resident could complete diary sheets and provided a link to the sheets.
The resident reported noise from the dog barking on 18 August 2023 but on attending the landlord witnessed no noise. The resident made another report on 20 August 2023. The landlord visited and noted that the barking was not loud enough to warrant a noise complaint. However, after reconsidering the incident the landlord decided to serve a Section 80 Notice under the Environmental Protection Act due to the dog barking and did so on 30 August 2023.
On 30 August 2023 the Mental Health team advised the landlord that it had not been successful in speaking to the resident.
With regards to a report of noise on 16 September 2023 the landlord wrote to the resident on 27 September 2023 to advise that when attending the noise did not constitute a statutory nuisance therefore it would take no further action.
The landlord has provided evidence that it made a request for information to the police for the resident and her neighbour. On 27 October 2023 the landlord noted that the police advised that it had spoken to both parties and wanted a joint visit as there were counter–allegations by both parties.
The resident contacted the Service about her case. On 24 October 2023 the Service asked the landlord to confirm the status of the case regarding noise from her neighbour and to raise a formal complaint if necessary. The landlord subsequently raised a stage 1 complaint and confirmed it would respond by 6 November 2023.
The resident’s GP wrote a letter “to whom it may concern” noting that while the noise from the dog had improved, there was now noise from computer games and movies, often after 10pm. It is not clear when the landlord received a copy of this letter.
On 6 November 2023, the landlord sent the stage 1 response, attaching a chronology. It stated:
1. Due to concerns about the resident’s wellbeing, it had made a referral to mental health care services to provide support.
2. An ESO was sent every time the resident reported noise to the JCC and provided reports. It had advised the resident of the outcome each time by letter.
3. Following reports by the resident, the Animal Welfare Service visited on 6 and 14 July 2023 and had monitored the welfare of the dog at different times. This had not shown the dog was barking and there were no complaints from other neighbours. It met the dog on 14 July 2023 and could see that it was well cared for. The Animal Welfare Service thought the dog was getting used to a new home and did not see any valid reason to withdraw permission for the dog.
4. It interviewed the neighbour on 7 August 2023 who made counter-allegations that the resident was trying to get the dog to bark. The police had not charged or cautioned the neighbour.
5. Given the resident’s ongoing concerns the EM would be carrying out a joint visit with the police to the resident and then the neighbour.
6. It had requested a safeguarding referral to colleagues in the health care service after the representative commented she was fearful that the resident would commit suicide and had taken an overdose.
7. The resident should continue to contact the JCC when experiencing noise nuisance and she could also fill in a noise nuisance diary.
8. In conclusion the landlord did not uphold the complaint as it had followed its procedure, sought to support the resident’s mental health, reviewed ESO reports and updated the resident. The Animal Welfare Service had also investigated. Further actions to be taken were:
  1. the joint visit with the police.
  2. further monitoring by the Animal Welfare Service.
  3. the resident to contact the JCC about any further nuisance.
  4. the resident to contact Social Service’s Mental Health team about her mental health.
On 10 November 2023 the resident escalated her complaint stating that she had experienced noise nuisance since her neighbour moved in and that the stage 1 response had not considered reports to the Council and Police from September 2023. She stated the dog had bitten the landlord’s staff at a visit. She believed the section 80 notice should have been served when she first complained and was unhappy with the recommended actions in the stage 1 response. The resident also stated that refuse sacks outside the neighbour’s property caused a smell and stained the pathway outside the property.
On 19 November 2023 the resident reported another incident of noise. On 24 November 2023 the landlord wrote to her stating that it had attended but could not confirm the noise.
On 8 December 2023 the landlord sent the stage two complaint response.
1. It had spoken to the Animal Welfare Service. The team reiterated that it had no concerns about the welfare of the neighbour’s dog and did not deem the dog to be dangerous to the public.
2. It noted that the noise had stopped since the neighbour’s partner had moved in and after the issuing of the Section 80 Notice under the Environmental Protection Act. The neighbour had previously tried other methods with “varying success”.
3. After a report about a smell from the neighbour’s flat, the police and the ESO attended on 1 October 2023, following which an EM spoke to the neighbour. The neighbour had apologised for leaving rubbish by the front door and removed it, and it had removed a stain on 30 November. However, it should have inspected the property at the time. It would now arrange an inspection of the neighbour’s flat. As this issue was not part of the stage 1 complaint, it would send a further separate response.
4. Nothing in the review suggested that the EM had acted below the standards expected. She disputed that she did not have regard to the resident’s disabilities and mental health. Therefore, she would attend the joint visit with the police.
5. It had not received reports about the neighbour playing loud audio noises. The resident could report incidents to the JCC so an ESO could attend.
6. It was concerned to note that the resident was sofa surfing to sleep. Although Adult Social Services and the Mental Health team could not provide alternative accommodation, it asked the resident to still consider the support of these services.
7. It did not uphold the complaint as it was satisfied that the officers dealing with the resident’s reports of dog nuisance had fully investigated her concerns and had taken the appropriate action to address them and abate the nuisance which the resident and her GP had confirmed had ceased. Further actions to be taken were:
  1. the joint visit by the EM and the police.
  2. monitoring by the Animal Welfare Service.
  3. the resident to contact the JCC if there was further nuisance who would arrange a visit by the ESO.
The landlord has provided evidence that it visited both the neighbour and the resident with the police on 11 December 2023.
On 18 December 2023 the resident’s representative advised the Service that the resident remained dissatisfied as the landlord had not addressed her health and living situation. She advised that the resident had attempted suicide twice in July 2023 due to the noise and has periods of disassociation.

Assessment and findings

Scope of the Investigation

The representative has advised that the resident’s mental health was affected by the noise from the neighbour’s dog, referring to two suicide attempts and hospitalisation in July 2023. She further advises that the resident now experiences anxiety attacks from noise. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim.
In her complaint escalation, the resident raised new issues, specifically a smell coming from the neighbour’s flat, the vetting of tenants and a window repair. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint at stage 1. This is because the landlord has a two stage complaints procedure and needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. The landlord advised in the stage 2 response that it would be sending a separate response to these issues. The resident may contact the Service again if she remains dissatisfied after these issues have completed the landlord’s complaint procedure or if she has difficulty progressing a new complaint about these issues.

Assessment

It is important to reiterate at the outset that it is not for this Service to determine if the behaviour evidenced here constituted ASB, as that was a judgement which fell to the landlord to determine. The landlord, however, has responsibility to ensure that it takes appropriate and proportionate action to address and seek to resolve reported ASB, and that it has adequate and effective procedures in place for doing so.
As reflected in the landlord’s ASB procedure, upon receiving reports of alleged ASB the landlord first needs to gather evidence to establish whether the behaviour is unreasonable and constitutes ASB. Its procedures must also ensure that it remains impartial and does not seek to apportion responsibility for behaviour until it has established the facts. It is therefore important that a landlord has in place procedures to ensure reports of ASB are appropriately and effectively responded to. The landlord’s ASB procedure allowed for the prioritisation of reports and provided a number of measures that could be taken either in isolation or in conjunction, depending on the severity and urgency of the reports. Embedded within the procedure was the need for engagement and liaison with partner agencies, including the police.
Landlords should risk assess and ensure that steps are taken as soon as possible to support and safeguard vulnerable residents. Landlords should consider whether a multi-agency response is needed. Following investigation, landlords should formulate an action plan and share this with the resident who has reported the ASB. An incremental approach to action should be taken, starting with providing advice and warnings. Mediation between neighbours (either formal or informal) should be considered at an early stage to stop matters escalating. The Ombudsman expects to see regular communication with the complainant and alleged perpetrator, monitoring of the situation, evolving risk assessments and action plans and good record-keeping. This Service must therefore consider whether the landlord followed its own procedure in response to the reported ASB.
In this case, the resident reported noise from her neighbour’s flat soon after he moved in, from his dog barking. She made several reports throughout July 2023. The landlord had a responsibility to investigate and obtain corroborative evidence and its procedure was to send a staff member on a responsive basis to witness the noise. The landlord’s internal records and letters to the resident confirm it took this action on receipt of reports received. The letters advised the resident of the outcome of the visits.
The landlord also liaised with the Animal Welfare Service which investigated the noise at an early stage, in July 2023. This was in line with the ASB Policy and good practice which promotes joint working with partner agencies. As the noise reported emanated from a dog, it was appropriate that the landlord approached the team as it could provide expert advice on managing the situation. The landlord could then take a view that balanced the needs of the resident, the neighbour and the dog.
The landlord also suggested that the resident complete diary sheets. This was appropriate as diary sheets can help a landlord ascertain the nature, duration, frequency and impact of noise. This in turn can inform further action.
The resident was vulnerable and the detriment to her from the noise was more substantial that a typical resident, insofar as it made her suicidal. Landlords should be aware of the vulnerabilities of their residents and provide services to support their well-being and living in their home. Furthermore, local authorities have an obligation to safeguard children and adults at risk of harm. The landlord showed regard to this obligation by making a referral to Social Services.
However, there were also some failings in the landlord’s handling of the resident’s case. It is not evident that it assessed the case to determine the severity as required by the ASB policy. Nor did the landlord carry out its own risk assessment. Related to this, it did not formalise an action plan with the resident. Without this it did not make clear to the resident how it intended to resolve the case, what timeframes applied and what actions it could and could not do. This contributed to her distress and uncertainty, which was extreme and commenced right at the start of the neighbour’s tenancy.
Furthermore, the landlord’s approach focused on witnessing noise which could be considered to be a statutory nuisance. However, alongside this the Service would expect to see steps take to prevent any noise occurring in the first instance. This includes interviewing the perpetrator as noted in ASB policy. In speaking with an alleged perpetrator about a matter reported, the landlord is not making a finding of fact but facilitating an open dialogue and a reminder of tenancy responsibilities, where relevant. This will enable the perpetrator to respond, and where appropriate, take steps to change their behaviour to put things right. In this case the landlord could have ascertained the neighbour’s arrangements and personal situation and explored steps to prevent the dog barking. It was not until 24 July 2024 that the landlord spoke to the neighbour and 7 August 2024 that it fully interviewed him to understand his circumstances. This was not adequately prompt and urgent given that it was aware of the vulnerability of the resident, and the fact that she was suicidal and felt she could not stay in her home.
There is also no evidence that the landlord considered mediation, face to face or shuttle. Mediation is often used in cases of neighbour disputes. It allows the parties to better understand the circumstances and the position of the other party and explore a mutually agreed solution to the dispute. Given the circumstances of both parties it was unreasonable that the landlord did not explore this.
Regarding the collection of evidence, it was unreasonable that the landlord did not provide recording equipment while also not encouraging the resident to provide her own recordings, for instance through the Noise App. The Service’s spotlight report on noise complaints “Time to be Heard” (October 2022) states “Landlords should assure themselves that it is clear to residents when and how to report noise nuisance to them, with a full range of accessible and inclusive options available for residents to report noise”. The report also states, “Noise recordings submitted by residents should always be listened to by the case handler to ensure robust investigations that are informed by a true understanding of the noise being reported.” This remains the case even if a landlord does not consider the recording admissible in the event of legal action against the perpetrator.
It is also not evident that the landlord considered practical steps to prevent or reduce barking from the dog. This included possibly relocating the dog’s location when sleeping or during the day or having a rug underneath its bed.
The parties have stated that the substantive issue of noise from the neighbour’s dog improved from September 2023 after the serving of a notice and this is reflected by the drop in reports. This was two months after the initial report. The landlord has shown a commitment to managing the ongoing relationship between the neighbour and the resident by confirming that it would investigate further reports and by partnership working with the police. However, there were also failings in the landlord’s handling of the case, in respect of the risk assessment of the case, the formulation of an action plan, the exploration of preventative measures and the collection of evidence. For this reason, the Service finds that there was service failure by the landlord.
We encourage landlords to self-assess against the Ombudsman’s Spotlight reports following publication. As stated, in October 2022 we published our Spotlight report on noise complaints. The evidence gathered during this investigation shows the landlord’s practice was not fully in line with that recommended in the Spotlight report. We encourage the landlord to consider the findings and recommendations of our Spotlight report unless the landlord can provide evidence it has self-assessed already.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the resident’s complaint about the landlord’s handling of reports of ASB from a neighbouring property, in particular noise from a dog.

Reasons

The landlord took action in response to the resident’s reports of noise, and the substantive issue of barking by a neighbour’s dog. Nonetheless, there were also failings in the landlord’s handling of the case, in respect of the risk assessment of the case, the formulation of an action plan, the exploration of preventative measures and the collection of evidence. It also did not whether there were practical measures that could have made a difference.

Orders and recommendations

The landlord is ordered to, within the next four weeks, to:
1. send an apology to the resident for the failings identified in this report. This should take into the Service’s guidance on apologies.
2. pay the resident compensation of £300 in respect of the distress and inconvenience caused by the particular failings identified in this investigation.
3. complete the Service’s Self-Assessment tool against the Noise Complaints Spotlight Report’s recommendations, if this has not been completed previously.
In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, within the next 12 weeks the landlord must carry out a review of its practice in relation to the handling of noise cases, taking into account the Spotlight Report as necessary. The outcome of the review should be provided to its Senior Management Team and this Service, The review should include as a minimum (but is not limited to):
1. The completion of risk assessments and action plans.
2. The collection of evidence, including the recording of noise.
3. The circumstances when mediation will be offered.
4. The practices for keeping the resident updated.
5. Consideration of any further staff training needs and whether any amendments are required to the ASB policy.