London Borough of Hackney (202002516)

REPORT

COMPLAINT 202002516

Hackney Council

25 May 2021

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 anti-social behaviour (ASB).
Response to the resident’s request for a property transfer.
Response to the resident’s reports of mould in the property.
Complaint handling.

Background and summary of events

Background

The resident is the tenant of the property (the property) which the complaint concerns. The landlord owns the property.
The property is a flat situated in a purpose-built block (the block).
The resident’s representative makes the complaint on his behalf. For ease of reference the representative’s actions will be referred to as the resident’s in this report.

Summary of events

On 23 January 2019 the resident wrote to the landlord regarding ASB, mould and mildew, and a property transfer. In summary the resident said:

He was granted a property transfer in approximately 2010 by a previous housing manager due to ASB, mould and mildew and a stalker. The resident stated that the move did not go ahead as the housing manager left and the paperwork was lost.
He would like a property transfer as he continued to experience ASB, mould and mildew and a stalker.
He had recently been awarded priority B for a housing transfer.
Due to the mould and mildew he had difficulty breathing and his personal belongings had been damaged.
The ASB was noise and abuse from the upstairs neighbour (the tenant). The resident stated that the tenant played music loudly during the day and night, dragged furniture, hammered continuously and left his burglar alarm sounding. The resident further stated that the tenant and his friends had threatened him and his dog, in addition to urinating on his doorstep.
Despite reporting the ASB to the landlord it had failed to respond or address the situation.
The landlord was biased in favour of the tenant as it had informed the tenant that he had raised concerns about their behaviour and when noise monitoring equipment would be installed in the property.
He had participated in mediation with the tenant however it had been unsuccessful as the tenant had not engaged.
The tenant had made some modifications to the property in response to his noise nuisance concerns. The resident noted that the tenant had undertaken the modifications at unsociable hours.
He was aware that other residents had made similar complaints about the tenant.
He had an “unknown hacker/stalker who bombarded [him] with threats, harassment, interference and random phone calls”. The resident said that he had informed the police who advised that the stalker must be from the estate on which the property was situated.
The ASB was impacting on his mental health and other health conditions.

On 29 January 2019 the resident submitted a formal complaint about the landlord’s response to his ASB concerns and mould and mildew in the property. The Ombudsman has not been provided with a copy of the complaint however the Ombudsman understands that the resident reiterated his correspondence dated 23 January 2019.
On 13 March 2019 the landlord provided its stage one response. In summary the landlord said:

Its records documented three historic ASB investigations into allegations of noise nuisance against the tenant.

There was a current ASB investigation which was opened on 25 May 2018 (case A).
As part of case A it had:
1. Visited the resident on 25 May 2018 to listen to his recordings of noise nuisance. The landlord explained that the recordings were “unclear” and that it was therefore difficult to make any conclusive judgement about the noise.
2. Visited the tenant on 6 June 2018 to discuss the allegations. The landlord noted that the tenant was “keen to consider options that would help resolve the matter”.
3. Spoken with the resident on 25 June 2018 who confirmed that the loud music from the tenant had “significantly decreased” however they dragged furniture.
4. Suggested independent mediation. The landlord confirmed that both parties agreed and a referral was made. The landlord confirmed that mediation was later withdrawn as no resolution was reached.
5. Visited the tenant on 14 December 2018 to discuss the allegations. The landlord confirmed that in response the tenant agreed to lay down suitable floor coverings to minimise noise transference.
It had been unable to identify any deliberate acts of noise nuisance perpetrated by the tenant.
The resident had also raised concerns about a “hacker/stalker” who was threatening and harassing him which included random phone calls, emails and text messages. The landlord confirmed that, as previously advised, this was a matter for the police as it would be unable to investigate the allegations.
Case A remained open and it would monitor the situation. The landlord confirmed that the resident should report any out of hours noise to the noise pollution team. The landlord advised that it would also look to install noise monitoring equipment in the “near future”.
The resident had “BSocial” banding for a property transfer meaning that “extra weight” was added to his bids.
It was not in a position to apply for any other properties for the resident as the resident did not meet the criteria for this.
The resident may wish to consider a mutual exchange through Homeswapper.
It had made an application to its letting team to consider the possibility of a reciprocal transfer with a neighbouring local authority.

The landlord concluded by confirming that it had been unable to substantiate the resident’s noise nuisance allegations and the correct level of priority had been awarded to the resident in respect of his request for a property transfer.
On 14 March 2019 the resident responded to the landlord’s stage one response stating that he was dissatisfied. In summary the resident said:

He felt that the landlord had disregarded his ASB concerns about the tenant.

The ASB by the tenant had been ongoing for more than 10 years. The resident stated that during this time the noise had become more “irritating, invasive, intrusive, abusive and unbearable”.
While case A was open no progress seemed to be made to resolve the ASB by the tenant. The resident suggested that the landlord did not want to deal with all his concerns, such as abuse by the tenant, or listen to his account of the situation.
The landlord’s ASB investigations were biased in favour of the tenant as it would relay information to them about its investigations.
The tenant did not engage with mediation despite agreeing to participate.
Noise nuisance by the tenant intensified during December 2018 through to early January 2019 however the landlord was not responsive. The resident noted that the landlord eventually informed him that the noise was due to the tenant modifying the flooring in their flat. The resident said that the flooring was completed in early March 2019.
The tenant had threatened to harm his dog which he had reported to the police.
The tenant was using a humidifier during the night which was disturbing him.
The tenant was engaging in other ASB such as pouring water out of their window and hosting gatherings.

On 15 March 2019 the landlord acknowledged the resident’s escalation request.
On 15 April 2019 the resident asked the landlord for an update on a reciprocal transfer as no updates had been provided since its stage one response.
An internal email by the landlord dated 18 April 2019 noted that it had spoken with the resident to provide a “full update on their housing situation”. The Ombudsman has not been provided with further details.
On 7 May 2019 the landlord provided an internal update in relation to the resident’s service complaint. The landlord said that it had recently informed the resident that noise monitoring equipment would be installed when it became available and that he should continue to record and report all ASB incidents.
The landlord’s internal records in May 2019 indicate that it wished to postpone the complaint review until the outcome of the noise monitoring exercise as this would inform its response. The landlord’s record suggest that this was discussed with the resident however he did not agree this approach.
An internal record by the landlord dated 4 June 2019 set out that it had attended the property to install noise monitoring equipment however the resident had declined. The landlord noted that the resident declined as the tenant was not currently staying in their flat.
On 6 June 2019 noise monitoring equipment was installed in the property as the resident contacted the landlord on 5 June 2019 confirming that the tenant had returned to their flat.
On 11 June 2019 the landlord provided its final response. In summary the landlord said:

In respect of damp and mould:
1. It visited the property on 16 May 2019. The landlord confirmed that during the visit the resident highlighted “issues… relating to damp and mould”.
2. Following the visit it booked an inspection to take place on 23 May 2019. The landlord confirmed that the outcome of the inspection was that the property should be fully assessed by a surveyor.
3. The survey was scheduled for 13 June 2019. The landlord confirmed that any works identified would be undertaken in a timely manner.

In respect of the resident’s request to move due to ASB:
1. It submitted a reciprocal transfer requested on the resident’s behalf on 11 April 2019. The landlord confirmed that the requests were subject to accommodation being available.
2. In December 2018 the resident was awarded a “B medical priority” status to enable him to bid on properties via the local authority’s Choices Based Lettings Scheme. The landlord noted that the resident had made no bids.
3. The resident may wish to explore a mutual exchange via the Homeswapper website.
In respect of the resident’s ASB allegations:
1. It was aware that the resident had reported stalking to the police who had advised that should he make further reports it would result in his arrest.
2. It had undertaken three investigations into allegations of noise nuisance against the tenant. The landlord confirmed that all were closed due to lack of evidence or a breakdown in the mediation process.
3. Case A was currently open and was ongoing. The landlord confirmed that as part of the investigation it spoke with the tenant who took steps to address the resident’s concerns including laying down floor coverings and installing anti-vibration pads to their speakers.
4. Noise monitoring equipment had previously been used however no evidence of any deliberate acts of noise nuisance were identified.
5. In response to the resident’s service complaint it had requested a further noise monitoring exercise. The landlord confirmed that the equipment was due to be installed on 4 June 2019 however it was cancelled as the resident informed it that the tenant has moved out. The landlord set out that on 5 June 2019 the resident contacted it to report that the tenant had returned and was causing noise nuisance. The landlord confirmed that in response it installed the noise monitoring equipment in the property which was due to be removed shortly.
6. Once the noise monitoring exercise was complete it would write to the resident regarding the outcome.
In response to the resident’s allegations that it was informing the tenant when the noise monitoring equipment was installed:
1. Once it received an ASB report it would interview both parties as part of the investigation to gather evidence.
2. It disputed that it had informed the tenant when noise monitoring equipment was installed in the property.
3. Due to lack of evidence to corroborate the resident’s claim it was unable to investigate the matter further.

The landlord concluded by confirming that the resident could refer his complaint to the Ombudsman if he was not satisfied with its response.

Assessment and findings

The resident has suggested that as a result of his living conditions and the landlord’s inaction, his health conditions worsened. Whilst this may be the case, it is beyond the expertise of this Service to reasonably determine a causal link between the resident’s living conditions and the deterioration of his health. The Ombudsman has therefore made no comments in relation to this. Should the tenant wish to pursue this matter, legal advice will need to be sought.

The landlord’s response to the resident’s reports of ASB

It is noted that the resident reports that he has experienced ASB by the tenant for at least 10 years, however despite reporting it to the landlord it has taken no action. The Ombudsman cannot see that the resident made a complaint to the landlord at that time or referred his concerns to this Service for intervention.
Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within six months of the matters arising.
As the substantive issues become historic it is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the actions taken to address them. In view of the time periods involved in this case, taking into account the availability and reliability of evidence and the Ombudsman’s jurisdiction, this assessment will therefore look at the landlord’s response to the resident’s ASB allegations from summer 2018, which is approximately six months before the resident’s formal complaint to the landlord.
In cases of ASB the role of the Ombudsman is to investigate how a landlord has handled any reports of ASB it has received and to determine if it has acted in accordance with its policies and procedures, taking into consideration the issues being reported.
The landlord defines ASB as:

Conduct that has caused, or is likely to cause, harassment, alarm or distress to any person.

Conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.
Conduct capable of causing housing-related nuisance or annoyance to any person. The landlord’s website sets out that some types of noise may be anti-social.

The landlord’s ASB policy sets out that the following actions could be ASB – harassment, intimidation, verbal abuse and noise.
As the resident’s allegations could fall within the landlord’s definition of ASB it was therefore necessary for the landlord to respond to the allegations and to take action to resolve any issues it identified.
The evidence shows that the landlord did respond to the resident’s allegations that the tenant was committing ASB by causing a noise nuisance. This included discussing the allegations with the tenant, requesting that the tenant improve the flooring in their flat, issuing the tenant with a warning letter, installing noise monitoring equipment, liaising with the Enforcement Service (the ES) and arranging mediation between the parties. In the Ombudsman’s opinion the landlord’s actions were proportionate to determine if the tenant was causing noise nuisance and to see if intervention was needed. From the landlord’s records the Ombudsman cannot see that the landlord identified any evidence to substantiate the resident’s allegations that the tenant was committing ASB by causing a noise nuisance.
Following the end of the complaint procedure the resident requested a Community Trigger (the CT) to review the responses to his reports of ASB. The CT was held on 25 October 2019 and the outcome was issued on 20 November 2019. The Ombudsman notes that in relation to the landlord the CT observed that it had carried out investigations, which included intervention with the tenant and noise monitoring exercises, however no evidence of “deliberate acts of noises nuisances [had] been identified”.
The Ombudsman notes that the most recent noise monitoring exercise undertaken in early 2020 identified that there was “no statutory nuisance established” from the tenant’s flat.
While the Ombudsman can see that the landlord did investigate the resident’s reports of the tenant committing ASB by causing cause nuisance, the Ombudsman cannot see any evidence that the landlord considered or explored the resident’s other concerns that the tenant had directed threatening and abusive behaviour towards him as referred to within his correspondence dated 23 January 2019 and 24 March 2019. In the Ombudsman’s opinion this is unsatisfactory as, while it is clear that the noise allegations were the resident’s primary concern, the landlord should have considered all the information put to it.
The Ombudsman considers that the landlord’s advice that the resident report his unknown stalker to the police was appropriate. This is because the police have the tools to carry out an appropriate investigation into such allegations whereas the landlord does not.
In response to the residents’ concerns that the tenant was informed of the installation of noise monitoring equipment, this Service notes that in accordance with the Regulation of Investigatory Powers Act 2000 the occupant of a monitored premises must receive notice in writing that noise monitoring equipment may be installed in a neighbouring property and will take place within a period of three calendar months. Therefore, the Ombudsman considers that the landlord would be acting appropriately should it have notified the tenant that noise monitoring equipment may be used to detect noise from their flat.

The landlord’s response to the resident’s request for a property transfer

It is noted that the resident reports that he was granted a property transfer in 2010 however it did not proceed as the landlord lost the paperwork. The Ombudsman cannot see that the resident made a complaint to the landlord at that time or referred his concerns to this Service for intervention. For the reasons given in paragraph 22 the Ombudsman will not consider if there was a service failure by the landlord in 2010 in arranging a management transfer for the resident.
As the landlord had no evidence to corroborate the resident’s ASB allegations it was reasonable for the landlord to decline to offer him alternative accommodation on the grounds of ASB. The Ombudsman notes that management transfers are generally only considered in exceptional circumstances, for example where there is an immediate threat of harm to a tenant, and which is supported by the police.
The evidence shows that while the landlord was unable to grant a management move, in response to the resident’s requests for alternative accommodation it provided information on alternative options to secure new accommodation, such as bidding on properties via the local authority’s choice-based lettings scheme and considering a mutual exchange. This was appropriate as the landlord understood that the resident was not happy in the property. The evidence also shows that the landlord submitted an application on behalf of the resident for a reciprocal transfer with a neighbouring local authority in March 2019.

The landlord’s response to the resident’s reports of mould in the property

The evidence shows that the resident complained of mould and mildew in the property within his correspondence dated 23 January 2019. The Ombudsman cannot see that the landlord took steps to investigate the issue until May 2019 when it arranged to visit and inspect the property. This was a period of approximately five months. In the Ombudsman’s opinion the time take to act upon the resident’s request was unsatisfactory, noting that there is no evidence to explain the delay.
After the survey on 13 June 2019 to inspect the property for damp and mould the evidence shows that the following work order was raised:

Bathroom – mould treatment to all walls and ceiling.

Living room – external wall damp. Mould treatment required. Query as to whether the existing thermal board in living room, particularly the ceiling should be enclosed.
Renew passive extractor fan in bedroom for a quieter more efficient model.
Seal gaps around the front entrance door
Erect scaffold to make good holes to brick wall near redundant pipe.

The evidence shows that by 1 August 2019 the work order was outstanding. An internal email by the landlord set out “unfortunately works which were identified on 13 June 2019 were not progressed”. It is not clear from the landlord’s records why the works were not progressed promptly after the survey in June 2019. In the Ombudsman’s opinion this was unsatisfactory including as it was an action which the landlord had identified as part of its complaint handling to put things right. The landlord’s email confirmed that the work order had “now been raised”.
The landlord’s records suggest that the works were attended to in October 2019 as repair appointments were made. However, from the evidence the Ombudsman is unable to determine if the works were completed in October 2019 or if they were completed to a satisfactory standard. This is because there are no records to support that this was the case. The Ombudsman notes an internal email by the landlord dated 12 January 2020 which sets out that the resident reported to it that the “mildew and dampness [was] getting worse” therefore suggesting that the problem is at least ongoing and has not been fully resolved.

The landlord’s complaint handling

The landlord operates a two-stage complaint procedure. The landlord’s policy sets out that it will aim to respond to stage one complaints within 10 working days and stage two complaints within 20 working days. The landlord confirms that where a response will take longer it will notify the resident.
The evidence shows that the landlord failed to meet its service standards in responding to the resident’s complaint at either stage of the complaint process. This is unsatisfactory. The Ombudsman has not identified a reason for the delay at stage one however the Ombudsman understands that the delay at stage two was due to the landlord wanting to complete the noise monitoring exercise first. While the Ombudsman understands why the landlord wished to install the noise monitoring equipment prior to providing its final response, in the Ombudsman’s opinion when it became clear that the equipment would not be available for some time it would have been appropriate for it to have proceeded to issue its final response setting out its commitment to complete the exercise and to address his other concerns. This would have provided reassurances to the resident on a way forward.
As part of its stage one response the landlord did not address the resident’s concerns regarding mould and mildew in the property. This is unsatisfactory as it denied the resident a comprehensive response to his complaint and therefore all of the issues which he had raised. In the Ombudsman’s opinion it was also a missed opportunity by the landlord to take steps to address his concerns at an earlier time, including to instruct the survey and schedule any works required.

Determination (decision)

In accordance with paragraph 55 of the Housing Ombudsman Scheme there was:

Service failure by the landlord in respect of its response to the resident’s reports of ASB.

No maladministration by the landlord in respect of its response to the resident’s request for a property transfer.
Service failure by the landlord in respect of its response to the resident’s reports of mould in the property.
Service failure by the landlord in respect of its complaint handling.

Reasons

The landlord’s response to the resident’s reports of ASB

As the landlord has no evidence, following suitable enquiries, to substantiate noise nuisance by the tenant it was reasonable for the landlord to conclude that no action was required at that time.
While the landlord’s response to the resident’s noise nuisance concerns was appropriate there is no evidence to demonstrate that it considered his other ASB allegations of threats and abuse by the tenant. This was unsatisfactory as the landlord should have considered all the information put to it by the resident.

The landlord’s response to the resident’s request for a property transfer

As the landlord had no evidence to corroborate the resident’s ASB allegations it was reasonable for the landlord to decline to offer him alternative accommodation on the grounds of ASB.
While the landlord was unable to grant a management move, in response to the resident’s requests for alternative accommodation it provided information on alternative options to secure new accommodation, such as bidding on properties via the local authority’s choice-based lettings scheme and considering a mutual exchange. This was appropriate.

The landlord’s response to the resident’s reports of mould in the property

The time taken by the landlord to act upon the resident’s report of mould in the property was protracted following notification – approximately five months.
Following the survey in June 2019 the landlord did not promptly progress the works identified to address mould in the property. The Ombudsman has not been able to determine if the works were completed, or completed to a satisfactory standard, following the repair appointment in October 2019 to complete the works identified by the Survey.

The landlord’s complaint handling

The landlord failed to respond to the resident’s complaint in line with its service standards.
The landlord failed to respond to all aspects of the resident’s complaint at stage one of the complaints procedure, and therefore denied the resident a comprehensive response to all of the matters which he raised.

Orders and recommendations

Orders

The landlord should pay the resident the following compensation within four weeks of this determination:

£200 for not demonstrating that it had explored his reports of abuse and threats by the tenant as part of its ASB investigation.

£200 in respect of its response to and handling of works to address mould in the property.
£100 in respect of its complaint handling.

The landlord should write to the resident within four weeks of this determination setting out the steps it will take to investigate his ASB allegations that the tenant has directed threatening and abusive behaviour towards him.
The landlord should inspect the property within four weeks of this determination to determine if there are any repairs for which it is responsible for completing. Following the inspection, the landlord should write to the resident setting out what steps it will take to address any repair issues identified, including timescales.

Recommendations

The landlord should review the Ombudsman’s complaint handling code to ensure that it responds to complaints in accordance with best practice.