Westminster City Council (202102498)

REPORT

COMPLAINT 202102498

Westminster City Council

6 September 2022

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 antisocial behaviour (ASB) from his neighbour.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Paragraph 39(r) of the Housing Ombudsman Scheme notes as follows:

39. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

r) concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.

As discussed further below, the resident has previously referred a complaint to this service (case reference 202000319) which related to his concerns that his neighbour was committing benefit fraud. The determination in this previous case found that this element of the complaint was outside of the Ombudsman’s jurisdiction as it did not relate to the provision of social housing.
During the period of the current complaint, the resident has continued to raise his concerns with the landlord that his neighbour is committing benefit fraud. As with the previous case, this element of the complaint remains outside of the Ombudsman’s jurisdiction and will not be investigated in this report.

Background and summary of events

Background

The resident has been a secured tenant at the property of the landlord since 1 November 2004. The landlord is a local authority.
The landlord operates a two stage complaints policy.
The landlord’s conditions of tenancy include obligations on residents not to “do anything or threaten to do anything which causes or is likely to cause a nuisance or annoy someone else.” Examples include loud noises from a television, shouting, or slamming doors. The landlord is required to investigate reports of such behaviour and take appropriate action.
The landlord also operates an ASB policy. The policy notes that the landlord will investigate reports of ASB by interviewing the parties, using warning letters, offering mediation, and considering management transfers where appropriate. The landlord can also consider tenancy enforcement action such as seeking eviction.
The policy also notes that the landlord will signpost residents to relevant support agencies, and consider using independent resources such as professional witnesses as part of its investigation.
The landlord operates a management transfer policy. The policy notes that the landlord may offer a management transfer where a resident is at risk of harm and cannot safely stay in their property.
The Ombudsman notes that the resident has reported ASB for a number of years and has previously raised a formal complaint which was considered by this service. This investigation will not revisit the issues considered in that determination response, and will instead focus on the events that have occurred since then.

Summary of events

Following the outcome of the resident’s previous ASB complaint, the landlord agreed to open a new ASB case to investigate the resident’s most recent reports.
Throughout the course of this complaint period, the resident provided the landlord with regular diary reports detailing the ASB he was experiencing and his perspective on the motivations behind it. This report will not detail every communication, but the Ombudsman notes that the resident kept the landlord well informed throughout.
The resident’s reports included noises from his neighbour’s property such as banging, scraping, DIY noise, shouting, excessive coughing, and other similar noises. These occurred at all hours of the day and night. The resident has noted that there were extended periods where his neighbour was occupying their property, but these noises were not occurring. The resident therefore considered that the noises were intentional and calculated to cause him distress.
It is evident that following the resident’s previous complaint, the landlord committed to arrange for a professional witness to attend the resident’s property and witness the noise he was reporting. The landlord updated the resident in or around October 2020 about its arrangements in this regard and advised that it had contacted a third party company to supply the professional witness. It also advised, however, that due to COVID-19 restrictions, this would not immediately be possible, but that it would keep him updated. It is evident that while this element of its investigation was pending, the landlord discussed the complaints with the neighbour and reminded them of their responsibilities regarding noise.
The resident requested that once arranged, the professional witness should attempt to arrive without the neighbour realising as he was concerned the neighbour was intentionally quiet when being observed. The landlord agreed to this request.
Throughout November 2020, the resident requested updates regarding the professional witness, to which the landlord replied in December 2020 that they were still waiting on the third party professional witness company to provide them with availability.
In or around January 2021, the landlord advised that the professional witness should be available in late February 2021 / early March 2021. The resident expressed concern that the issues he was experiencing were ongoing and so requested that the landlord consider using noise monitoring equipment as part of its investigation.
The resident also advised that he was regularly staying away from the property due to the distress the noise was causing, and so requested that the landlord consider offering him temporary accommodation while it carried out its investigation. The resident also provided the landlord with letters from his GP which noted that the resident reported that the ongoing noise was having a negative impact on his mental health.
The landlord has provided this service with its internal communications from this period which noted that based on the medical support letters provided by the resident, it presented a case to its management transfer panel to consider a permanent move for the resident.
The landlord provided the outcome of this request to the resident on 5 February 2021. It advised that given there was no conclusive evidence demonstrating ongoing ASB currently available, the resident did not meet its criteria for a management move at that time.
Regarding the resident’s request for noise monitoring equipment, the landlord advised it was arranging for this to be installed, but measured his expectations that given the equipment was unable to conclusively detect where in a building noise was coming from, its value as evidence in any future eviction proceedings against his neighbour was limited.
The noise monitoring equipment was installed in or around early March 2021 for two weeks. Throughout the course of its installation, the resident continued to provide reports of the noise he was experiencing in the hope the noise monitoring equipment could corroborate his reports. At the end of the installation period, the resident requested for the landlord to extend the installation period for a further eight weeks as he was concerned his neighbour had made less noise than usual. The landlord agreed to extend the installation period for a further seven days on the basis that the noise monitoring equipment’s evidential value was less than that of the professional witness, who it anticipated would be available shortly.
The professional witness attended on four occasions between 12 April 2021 and early May 2021. It is evident that the professional witness attempted to attend undetected, and remained at the property until around 2am.
On 4 May 2021, the landlord confirmed it had received reports from both the professional witness and in relation to the noise monitoring equipment. It advised it did not consider further visits were necessary, and that the next step in its investigation was to carry out an inspection of the neighbour’s property. It is evident the landlord carried out an inspection of the neighbour’s property in or around mid-May 2021.
On 17 May 2021, the resident requested an update on a formal complaint response from the landlord. He explained he had raised his concerns with this service, and that this service had requested the landlord open a new complaint. The landlord later acknowledged that the request from this service had been misfiled, and that it would subsequently open a complaint for the resident. It also advised it would provide a complaint response by 28 May 2021.
As part of its ongoing investigations, the landlord requested for it to visit the resident’s property itself to witness the noise. Following the visit, the resident again expressed concern that the neighbour was uncharacteristically quiet during the landlord’s visit, and so he requested a further visit, to which the landlord agreed.
The landlord provided its stage one response on 1 June 2021. It noted the action it had taken to investigate and address the ASB, such as issuing warnings to the neighbour, using noise monitoring equipment, and arranging for the professional witness. It noted its investigation was still ongoing, and that it would review all the evidence by the end of June 2021, at which point it would provide a further update. It also noted that the resident’s preferred outcome was for tenancy enforcement action against the neighbour, and so measured his expectations that this action would only be considered if there was an evidential basis for it.
It is evident that throughout June 2021, the parties attempted to arrange a date for further visits from the landlord, but that a suitable date was not immediately available.
The landlord provided its stage two response on 1 July 2021. The response reiterated that the investigation was ongoing and that it would provide an update once completed. The response noted that the landlord still anticipated it would do this by 30 June 2021 (despite this date having already passed). The landlord also acknowledged there had been delays in it opening a new complaint, and it offered £30 compensation to recognise this delay.
Around this time, the resident noted that he had previously reported concerns that his neighbour’s behaviour was in retaliation to another neighbour who lived above them. The resident expressed concern that the landlord had not provided updates about the dispute between the two neighbours. The landlord subsequently advised that it could not provide information about the dispute due to its data protection obligations.
It is evident that the landlord carried out a final visit in or around late July 2021 with the intention of witnessing the noise reported by the resident. The resident requested further visits, however, the landlord advised it had now carried out four visits, and that it would usually only offer three visits in such instances. It further advised it would provide the outcome of its investigations by September 2021.
The landlord provided the outcome of its ASB investigation on 20 September 2021, which included the following:
1. It reiterated the steps it had taken to investigate the resident’s reports, including interviewing the parties and issuing warnings to the neighbour.
2. It also inspected the neighbour’s flooring and found it to have adequate carpeting.
3. It spoke with other residents in the building and there were no other complaints about the neighbour.
4. Regarding the noise monitoring equipment, the landlord advised that the level of noise detected was not considered unreasonable.
5. Additionally, regarding the professional witness visits, the witness reported that the noise had not been unreasonable or excessive.
6. The landlord’s own visits had also found there was no excessive noise.
7. It reiterated that based on the lack of corroborative evidence for ASB, it was unable to offer a management transfer.
8. It also noted that it had previously provided information about support agencies, and offered mediation, which the resident had declined.
9. It concluded that the case was now closed, and that the options available were to consider mediation, seek a transfer, or take private action against his neighbour.

Assessment and findings

The role of the Ombudsman is not to definitively determine whether ASB was or is occurring. Instead, the Ombudsman will determine whether the landlord discharged its obligations by carrying out a reasonable investigation of reports of ASB, and subsequently whether it took any necessary action.
The landlord’s conditions of tenancy notes that residents must not do anything that causes nuisance such as shouting or slamming doors. Given that these were the kinds of noises, among others, that the resident was reporting, it was appropriate for the landlord to carry out an ASB investigation in relation to them.
The landlord’s ASB policy notes that in order to investigate ASB, it will interview the alleged perpetrator and may issue warnings. This service has been provided with evidence that the landlord discussed the resident’s concerns with the neighbour on a number of occasions, and also issued formal warnings reminding the neighbour of their tenancy obligations. These actions were appropriate and in line with landlord’s policy.
The Ombudsman notes that throughout the period of the complaint, the resident has expressed his desire to remain anonymous. Based on the evidence provided to this service, the landlord did not disclose the resident’s identity in any of its communications with the neighbour. The landlord did, however, appropriately measure the resident’s expectations that should it seek legal action against the neighbour, his identity may need to be disclosed at this time. This has not yet occurred, however.
As part of a reasonable investigation of ASB reports relating to noise transference, the Ombudsman would expect a landlord to carry out an inspection of the properties. It is evident that the landlord carried out a number of visits to the neighbour’s property and observed that there was adequate carpeting and underlay in the property.
There has been no evidence to suggest that the building does not conform to the building regulations for a building of its age. There is also no evidence that the landlord would be obligated to install any soundproofing. Given that the reports of noise related to sound transference, it would have been helpful had the landlord clearly articulated its position on sound proofing so the resident was fully informed, however, this would not constitute service failure.
Following on from the previous complaint investigated by this service, the landlord committed to arranging for an independent witness to investigate the reports of noise. This is also noted as an appropriate step in the landlord’s ASB policy. The Ombudsman notes that this was during a period affected by COVID-19 lockdowns and that the availability of the professional witness was delayed as a result. While this delay was undoubtably inconvenient for the resident, it was beyond the landlord’s control and it kept the resident appropriately updated throughout.
Given the delay, the resident requested noise monitoring equipment be used as well. The building in which the resident’s and neighbour’s properties are located includes a number of other properties. The landlord appropriately used its discretion to include noise monitoring equipment as part of its investigation, and it also appropriately measured the resident’s expectations about the value of any evidence in relation to any future legal proceedings. Given that the resident also expressed concern that his neighbour had been uncharacteristically quiet during the period of installation, the landlord also appropriately agreed to an additional week of installation.
Once the professional witness was available, it is evident that they attended during hours throughout the night, which corresponded to the times that the resident had reported noise was occurring. It is also evident from the professional witness’s report that they took reasonable steps to ensure their visits were as discreet as possible. In addition to the third party professional witness, the landlord also attended itself on four occasions to witness any noise. These steps are in line with the landlord’s ASB policy and what the Ombudsman would consider best practice as part of an investigation into ASB noise.
Throughout the course of the complaint, the resident requested he be moved into temporary accommodation. The landlord identified that the resident would benefit from a permanent move, and on the basis of the medical letters provided by the resident, submitted a request to its management transfer panel. This demonstrated a genuine concern for the resident and an appropriate attempt to provide additional help. The landlord’s management transfer policy required evidence of a genuine risk to the resident from remaining at the property. While the resident is of the opinion the issues he was experiencing were causing him harm, the landlord did not have clear evidence of ASB at this time. It was therefore reasonable that the panel declined the request based on the available evidence.
The landlord appropriately informed the resident of the outcome, and reiterated this finding in its investigation report. Given, however, that the resident had also requested a temporary relocation, it would have been helpful for the landlord to have articulated its position on this request, which it did not do.
Following the visits by the landlord and the professional witness, the landlord advised that it would provide a conclusion to its investigation by the end of June 2021. It is evident that it did not keep to this timeframe, and also caused confusion in its stage two response by stating it still intended to keep to this timeframe, despite it having already passed. While the landlord carried out a further visit to the property, it is not evident why its final report was not provided until 20 September 2021, given that it had previously endeavoured to review the reports by the end of June 2021, and had only its final visit to consider. Throughout this period, the resident requested frequent updates and clearly indicated his distress at the ongoing situation. While the final outcome would not have changed the resident’s situation had it come any earlier, given that the landlord had raised his expectations, this delay without reasonable explanation amounts to service failure.
This service has been provided with copies of the reports from the noise monitoring equipment reviewer and the professional witness. The noise monitoring equipment report noted multiple instances of noise, which were given similar descriptions to those used by the resident, e.g. furniture scraping noise. The report concluded that no noise recorded reached a level that would be considered a statutory nuisance, and in the opinion of the professional reviewer “the noise intrusion recorded does not appear to be malicious, purposeful, contrived, or targeting [the resident]. The tenant above can be heard, and there are knocks overnight, but it seems to be mainly [their] lifestyle noise.” The professional witness’s report also concluded that there was “no excessive noise or deliberate ASB witnessed.”
The landlord’s notes from its visits similarly concluded that while noises such as the tap running in the neighbour’s property and other low level noises were audible, there were no noises considered to be ASB. The landlord’s notes also highlight the poor sound insulation between the properties as the source of the resident’s frustration.
Given that neither the sound monitoring equipment, the professional witness, or the landlord was able to detect noise that would amount to ASB, it was reasonable for the landlord to conclude in its final report that based on the evidence available, it was unable to take any action beyond the warnings provided to the neighbour.
The Ombudsman stresses that this finding is not stating that the resident is incorrect, or that there is no ASB noise occurring. Instead, the Ombudsman finds that the landlord discharged its obligations by completing a reasonable and proportionate investigation of the reports. It also appropriately used its discretion to carry out extra investigations such as additional visits and extended use of the noise monitoring equipment. Given that the resident maintains the issue is still occurring, the landlord also provided appropriate advice regarding what other steps were available to him, such as mediation, seeking a property transfer, or considering private action against his neighbour.
As noted above, there were extended delays to its final report, without reasonable explanation, and confusion caused in its stage two response about when the final report would be provided. Given the level of distress the resident was already experiencing, this would have added to his distress and caused him time and trouble in chasing up the report. The Ombudsman notes, however, that the final outcome would not have changed had it provided the report sooner. Nevertheless, the delay amounted to service failure, for which an amount of £100 compensation is appropriate to recognise the distress and inconvenience caused.
The Ombudsman notes that the resident requested a new complaint through this service, and that this service subsequently made a request to the landlord that a new complaint be opened. The landlord has acknowledged that that due to admin errors, it failed to open the new complaint, leading to a delay. It appropriately apologised for this delay and offered £30 compensation, which in the Ombudsman’s opinion, amounted to an appropriate remedy for this delay.
The Ombudsman additionally notes the resident raised concerns regarding the landlord not providing information about a dispute between the neighbour and another neighbour. The landlord appropriately responded to this concern and advised that it could not disclose information about other persons which he was not a party to. Given the data protection obligations of the landlord, this response was reasonable and in line with what the Ombudsman would expect.
The Ombudsman also notes that the resident considers the ongoing issues he has experience have impacted his mental health and wellbeing. While this may be the case, it is beyond the expertise of this service to reasonably determine a causal link between the landlord’s actions (or lack of) and the deterioration of the resident’s wellbeing. The Ombudsman has therefore made no comments in relation to this. Should the resident wish to pursue this matter, legal advice will need to be sought.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s reports of ASB from his neighbour.

Reasons

The landlord’s investigation of the resident’s reports of ASB noise was thorough and appropriately made use of multiple tools in order to gather evidence.
Based on the outcome of its investigation, it was reasonable for the landlord to report that it was unable to substantiate the resident’s reports of ASB.
The landlord raised the resident’s expectations that its investigation report would be provided by the end of June 2021, however, it failed to keep to this timeframe, and caused additional confusion by stating in its stage two response that it would somehow still keep to it.
It is not evident why the landlord’s report took until 20 September 2021, given that it only had one further visit to consider, and it did not provide any reasonable explanation for this delay. Given the distress this would have caused the resident, this amounted to service failure.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay compensation of £100 for any distress and inconvenience caused to the resident by its delay in providing its ASB investigation report.
This amount must be paid within four weeks of the date of this determination.

Recommendations

Within four weeks of the date of this determination, the landlord to:
1. reiterate its offer of £30 compensation for its delayed formal response (if this is yet to be accepted);
2. reiterate its advice regarding the resident’s options, namely to make an application for a transfer, undertake mediation, or consider private legal action.