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Midland Heart Limited (202228118)

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REPORT

COMPLAINT 202228118

Midland Heart Limited

31 October 2023

 

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about the landlord’s:
    1. Handling of the resident’s reports of antisocial behaviour (ASB) from her neighbour.
    2. Complaint handling.

Background

  1. The resident is an assured tenant of a 2 bedroom ground floor flat owned by the landlord. She lives there with her six children. The resident’s neighbour is also a tenant of the landlord and lives in the flat directly above the resident’s.
  2. On 15 June 2021, the resident reported an incident to the landlord. The resident said following a disagreement about parking, her neighbour had become aggressive and used racially aggravated language towards her in front of her children. The landlord recommended that the resident reported this to the police and that she recorded any further incidents if possible. It said that as this was the first incident, there wasn’t “really much [the landlord] can do”.
  3. The resident reported noise nuisance to the landlord on 27 January 2022. She stated that her neighbour and their visitors were regularly making noise overnight and waking her children up. The landlord opened an ASB case. It asked the resident to submit recordings of the noise as evidence. The landlord closed the ASB case on 9 March 2022 due to receiving no recordings from the resident.
  4. The resident reported a further altercation, which took place on 3 June 2022, to the landlord and the police. The resident stated she had challenged her neighbour for moving furniture around between 2.00am and 4.00am. The neighbour had responded aggressively and put their hands near the resident’s neck. The landlord opened ASB and noise cases and made an action plan to resolve the issues.
  5. On 13 January 2023, the landlord notified the resident that it had closed her ASB case as it had taken all appropriate action available to it and it did not have any evidence of ASB. The resident contacted the Ombudsman stating that she had complained to the landlord about its handling of her reports, but had not received a response. On 3 April 2023, this service requested that the landlord responded to the resident’s complaint.
  6. The landlord issued its stage 1 complaint response to the resident on 27 April 2023. It accepted that it had not opened a new ASB case, after it had committed to considering this, following an 8 week review of her most recent recordings. The landlord did not consider the recordings showed evidence of ASB. It apologised for not calling the resident back and agreed that she should not have had to contact the Ombudsman to progress her complaint. It stated that the resident’s circumstances did not meet its criteria for a management move but acknowledged that the resident was overcrowded and gave her housing advice. The landlord offered £340 compensation to recognise the inconvenience, impact, and delays that she had experienced.
  7. On 2 May 2023, the resident asked the landlord to escalate her complaint stating that she was unhappy with the handling of her case, including the landlord initially stating that it could not act on her first report. She also stated that while the landlord had advised her that noise recorded through the noise app was everyday living noise, it occurred at unsocial hours and disturbed her children.
  8. On 9 June 2023, the landlord issued its stage 2 complaint response. It stated that it had correctly advised the resident that the noise she had recorded was not excessive or inappropriate and felt it had acted in line with its policies. It had adjusted communal doors to reduce the noise they made, worked with the police, and attempted to arrange restorative justice. The landlord said it had been limited on the action it could take due to the police closing its case because of a lack of evidence and the neighbour being entitled to host guests at times of their choosing.
  9. However, the landlord upheld the resident’s complaint. It accepted that it could have done more to support the resident after closing her most recent case. It accepted it had failed to register a complaint and delayed in contacting her to discuss rehousing. It offered the resident support with installing carpet in her hallway to dampen noise transference. It said it would contact her that day to discuss her options for alleviating the overcrowding in her home. The landlord made a final offer of £440 compensation, comprised of:
    1. £170 to recognise the inconvenience and impact;
    2. £170 to recognise the delays to the landlord raising the resident’s complaint and its handling of her concerns;
    3. £100 to recognise the further delays that the resident had experienced.
  10. The resident asked the Ombudsman to investigate her complaint. She remains unhappy with how the landlord handled her reports of ASB from her neighbour and would like to be offered alternative accommodation.

Assessment and findings

Policies and procedures

  1. As the resident is an assured tenant, the landlord has a legal and contractual responsibility to respond to her reports of ASB and take action as appropriate to resolve the issues. As landlord of the resident’s neighbour, it can consider action to enforce its tenancy conditions where appropriate to do so.
  2. The tenancy agreement sets out the responsibilities of residents as tenants. It states that residents are responsible for the behaviour of any person living in or visiting their home. It states that residents and their visitors should not do anything that causes, is likely to cause, or is capable of causing, a nuisance or annoyance to other tenants of neighbouring properties. It gives examples of such behaviour, such as having the television on high volume or carrying out DIY at unsociable hours. The tenancy agreement also states that residents and their visitors must not harass any person for any reason, including harassment based on protected characteristics such as race. They must also not do anything which interferes with the peace or comfort of other tenants or causes offence to them. The agreement also explicitly states that residents “must take reasonable steps to prevent noise transferring from the property to any adjoining properties”.
  3. The landlord’s antisocial behaviour policy states that it will “inform all parties whether or not the issue is considered to be antisocial behaviour”. It lists examples of what it does and does not consider to constitute ASB. “Persistent loud shouting and arguing” and “loud music or TV that can be heard from the outside” is considered to be ASB whilst “reasonable domestic living noises e.g. doors closing, washing machines, children playing” is considered not to be ASB”. It states that where behaviour is not regular or persistent, nor come with a risk of harm, the landlord would not have the powers to stop the behaviour, nor would it consider it reasonable to do so.
  4. The policy sets out a procedure for handling reports of ASB that it receives from residents. It states that the landlord will carry out an initial risk assessment to determine how to prioritise the case. It will also give the resident appropriate advice and assistance at that point. It aims to complete its initial response to reports of ASB in line with the timescales published in its customer service standards. The policy lists a variety of potential actions the landlord may take against those residents it considers to be behaving antisocially. These include advisory letters, acceptable behaviour contracts, and legal interventions.
  5. The landlord’s service standards give information about what residents can expect when contacting the landlord for various reasons. The standards state that the landlord will answer emails in 48 hours and answer calls within 30 minutes. It states that where there are valid reasons for not meeting these standards, it will regularly update residents on next steps. In addition, it sets out that it would address incidences of residents breaching their tenancy agreements, agree action plans for ASB and update residents at agreed timescales. It states it will only close cases when a long term solution has been found or it has done all it reasonably can.

The landlord’s handling of the resident’s reports of antisocial behaviour (ASB) from her neighbour

  1. The resident first reported an incident of antisocial behaviour from her neighbour on 15 June 2021. The incident reported included concerning behaviours such as the neighbour’s use of racist language and intimidating behaviour. The landlord responded to the resident 3 days later to request further information and advised that if it was a one off incident “then it will not be taken further”. It also recommended that the resident contacted the police, which was appropriate in the circumstances. The landlord sent a more sympathetic response on 23 June 2021, but reiterated its likely inability to take action. The landlord attempted unsuccessfully to call the resident 5 days later. There is no evidence that it carried out a risk assessment, which it should have done as required by its ASB procedure.
  2. On 13 July 2021, the landlord wrote to the resident’s neighbour setting out the allegations and reminding the neighbour of their obligations under their tenancy agreement. While it was appropriate to write to the neighbour, the landlord was slow to respond. The resident had reported a significant incident with her neighbour. Given the aggravating factor of racist language being used, and it being a potential hate crime, the landlord should reasonably have responded with some urgency. The landlord should have responded to the resident’s email within 48 hours in line with its service standards. However, the evidence shows that it took nearly two weeks to attempt to call her to discuss the incident. In the absence of any explanation for the delay, the landlord took an inappropriate length of time to respond, especially considering the nature of the report.
  3. The landlord was entitled to manage the resident’s expectations about its ability to get involved in one off neighbour disputes. However, it would have been reasonable for it to explain its approach to ASB, as outlined in its policy, to the resident. It should have explained that it would have been necessary to gather evidence first before deciding whether it would be appropriate to take any action. Its initial communications caused the resident distress as she felt she or her children would “have to get hurt” before the landlord would take her concerns seriously. As it did take action almost a month later by sending the neighbour a warning letter, impacting on the resident in this way had been unnecessary.
  4. While the landlord could have responded sooner and more sympathetically to the resident’s report, it did take some appropriate action. It encouraged her to report the incident to the police and gave her advice. It reminded the neighbour of their responsibilities and asked them to park in a more considerate manner. The landlord was limited with what action it could take given the lack of supporting evidence and the one off nature of the incident. However, it failed to ensure it made meaningful contact with the resident within an appropriate timescale and ensure it had gathered the relevant facts before indicating that it may not take action on a report. It should also ensure it carries out risk assessments as appropriate, especially where the resident has suggested she is at risk of harm. Therefore, given the departures from the procedure, the landlord’s initial handling of the report was overall inappropriate.
  5. On 6 January 2022, the resident contacted the landlord asking to speak to someone about ASB. The landlord responded to the resident 6 working days later to request further information. The response was delayed, and not in line with the landlord’s published service standards. The resident provided further information by email on 27 January 2022, but it was nearly another month before the landlord contacted the resident to confirm it had opened a noise case and to give her information on collecting evidence by creating recordings on a noise app. There does not appear to have been a reason for the delayed response, and as such the landlord should reasonably have responded sooner.
  6. The landlord closed the case on 9 March 2022, which was a little over two weeks later. Its records indicate that it had not received any evidence from the resident. It was satisfied that the resident had previously used the noise app and therefore there were no concerns that she did not know how to use it. There is no evidence that the landlord contacted the resident at that point to discuss the issue, identify any problems with recording evidence, or to let her know the case was being closed, which was unreasonable and not in accordance with its ASB policy.
  7. The landlord is entitled under the ASB policy to close cases as appropriate where there is no evidence being provided of ASB. There is no evidence of any particular impact of this on the resident at the time. Regardless, this was inappropriate handling of the resident’s report of noise nuisance as it was unsatisfactory service and did not demonstrate any commitment from the landlord to resolving any issues. The landlord should ensure it responds to reports within an appropriate timescale and attempts to speak with residents before closing cases.
  8. A common assault was alleged during an incident between the resident and her neighbour on 2 June 2022. The incident was reported to the police at the time and the resident reported it to the landlord on 13 June 2022. The resident had challenged her neighbour over noise nuisance and stated she received verbal abuse, threats of violence, and her neighbour putting their hand near her neck. The landlord wrote to the resident on 21 June 2022 stating that it had been trying unsuccessfully to contact her. It had allocated a case for investigation and had also enclosed an action plan, which it wished to discuss with her during a call on 30 June 2022. This represented more appropriate handling by the landlord. The enclosed action plan gave advice, requested evidence, and suggested restorative justice. A noise case had also been opened on 27 June 2022.However, there is no evidence that the landlord carried out a risk assessment. In the circumstances, and given the nature of the reports made by the resident, it would have been appropriate for the landlord to have undertaken one at this point. That it failed to do so was a further departure from its policy.
  9. The landlord has provided little evidence of its actions from June 2022. In a letter to the resident dated 13 January 2022, it summarised the actions it had taken. The resident has not disputed the landlord’s version of events, so it is unclear if the landlord had not kept appropriate records of these interventions or if it not provided them to this service for the purpose of this investigation. The letter stated that the landlord had:
    1. interviewed the neighbour;
    2. spoken with police;
    3. reviewed noise recordings;
    4. carried out a noise check at the property;
    5. adjusted the communal fire doors in the block to reduce their noise;
    6. provided housing advice.
  10. An email sent by the resident dated 2 November 2022 suggested the landlord had visited the property the previous day to carry out a restorative justice meeting, but the neighbour had not attended. This attempted intervention, in conjunction with the listed actions, represented a comprehensive response from the landlord in response to the resident’s concerns. The landlord stated in its letter that it had carried out all appropriate actions, however none of the noise recordings submitted by the resident had provided evidence of excessive or inappropriate noise levels from the neighbour. It agreed to revisit the noise concerns in 8 weeks if the resident continued to make recordings. This was an appropriate response from the landlord. It was entitled to close the cases after 6-7 months in the absence of any clear and corroborating evidence against the neighbour. It demonstrated commitment to the resident by agreeing to revisit her noise complaint after a period of time if necessary. The landlord was limited in what action it could take to resolve the issues when had very little evidence against the alleged perpetrator. It had taken proportionate actions, however it should ensure it keeps appropriate records of those actions so that there is a clear and accurate audit trail of its actions which can inform further decision on the case and which can be referred to when responding to queries.
  11. The landlord had agreed to revisit the resident’s noise concerns after a further 8 weeks if she continued to submit recordings. In its stage 1 response, it accepted that it had not opened a new case after this period of time had elapsed. The landlord did not consider that it had received any recordings that suggested that the resident was experiencing a level of noise that would constitute ASB. This was a reasonable explanation from the landlord and it was appropriate that it also encouraged the resident to continue reporting the noise affecting her. The landlord should continue to monitor these recordings as they are submitted and take necessary action if it ever becomes appropriate to do so. The landlord should ensure it considers the time of day/night that any noise is occurring and take a robust approach to unacceptable noise levels at unsociable hours as this would be a tenancy breach. It would also be reasonable for it to consider other ways of mitigating the impact of excessive noise transference, including informal conversation with the neighbour, or mediation.
  12. The landlord and resident disagreed on the nature of the noise that she was experiencing from the neighbour. The resident stated that the landlord kept telling her that the noise was “everyday living noise”, which it would be unreasonable to require the neighbour to stop. The resident had described the neighbour moving furniture around in the early hours of the morning and loud social gatherings taking place until 2.30am on a weekly basis. This noise was causing the resident’s children to wake up during the night and a school had confirmed concerning levels of fatigue and a drop in performance from one of her children.
  13. In its stage 2 response, the landlord noted that the neighbour was entitled to have visitors at their property at any time they liked. The landlord was correct in this statement, however the tenancy agreement makes clear that residents need to “take reasonable steps to prevent noise transferring from the property to any adjoining properties”. It also states that residents are responsible for the behaviour of their visitors and they must not do anything that may interfere with the peace and comfort of other tenants. Moving furniture around between 2am and 4am when there are children sleeping in the property below is inappropriate and does not indicate the neighbour was taking reasonable steps to limit the noise coming from their property. Social gatherings that are audible to neighbours until 2.30am, on a persistent basis, are likely to interfere with the peace and comfort of neighbouring residents and the landlord failed to acknowledge the resident was reporting a potential breach of tenancy.
  14. The Ombudsman’s Spotlight Report on Noise Complaints, (“Time to be heard”, published online in October 2022) recommended actions landlords could reasonably consider taking in circumstances where a noise nuisance does not meet the statutory noise nuisance threshold. These included providing information leaflets on how to be a good neighbour and developing a proactive good neighbourhood management policy which could assist in ensuring issues of neighbour friction are dealt with appropriately.
  15. That the landlord did not give further consideration to the nature of the noise reports, and its focus on whether there was a statutory noise nuisance, was a failing in its handling of the matter. As a result, it missed an opportunity to see whether it could arrange for the residents to meet to discuss the issues, and to try to improve relations between them. The landlord should refer back to the Spotlight Report and consider how it can improve its approach in noise nuisance cases. The resident has stated that she continues to be affected by noise nuisance. The should consider what action it may be able to take to improve the situation.
  16. The resident also reasonably expressed frustration with how the landlord had characterised this noise at unsociable hours as “everyday living noise”. It was not appropriate for the landlord to minimise the resident’s experiences, and those of her children, in this way. The landlord failed to appreciate that doing so may have discouraged the resident from making further reports and gathering further recordings of the noise if she did not expect it to treat the noise as antisocial. While this had not impacted on the outcome of the resident’s complaint, the landlord should apologise to the resident for unreasonably characterising the overnight noise she described as “everyday living noise”.
  17. One of the reasons the resident complained formally to the landlord was her frustration over its communication with her. In its stage 1 complaint response, the landlord apologised for not calling the resident back when agreed or escalating her concerns. This service has considered the available evidence and identified at least 9 separate occasions between 5 August 2022 and 13 January 2023 where the resident had called to ask for an update on her case from a manager. The resident also provided a letter from one of her children’s schools dated 22 November 2022 stating concerns that her child had started falling asleep in class and not completing homework. There is no evidence that the landlord called the resident back or acknowledged the school’s letter. The landlord emailed the resident on 25 November 2022 to apologise for failing to call her back and informed her that a manager had been asked to contact her. It sent her a similar email on 14 December 2022. The landlord did not provide the resident with any significant information about her case until it wrote to her on 13 January 2023, more than 5 months since she first requested communication, to confirm the actions it had taken and that it was closing her ASB case.
  18. This was poor communication from the landlord and it had failed significantly to act in accordance with its service standards. The landlord apologised to the resident for this in its stage 1 complaint response, which was appropriate. However, it will also be reasonable for the landlord to go further to remedy this specific failing, given the time and trouble spent by the resident pursuing a response and the distress and inconvenience caused to her from the landlord’s lack of response over 5 months, with an additional compensation payment.
  19. In its stage 2 response, the landlord offered the resident assistance with getting carpets laid in her hallway. The resident also referred to the landlord having suggested this in her request for the landlord to escalate her complaint. The landlord believed this would be an appropriate action to take to help with dampening noise from neighbouring flats. It is the case that carpeted floors can be effective in dampening the level of sound transferring between vertically stacked flats, as opposed to floors that are not carpeted. However, the resident’s flat is on the ground floor and the noise she was experiencing came from the neighbour’s flat directly above hers. It is unclear how the landlord expected that carpeting a ground floor hallway would reduce noise transference from the flat above. It was appropriate for the landlord to consider ways to limit the impact of the noise on the resident in the absence of sufficient evidence to stop the noise happening. However, carpeting the resident’s hallway would have been ineffective.
  20. The landlord offered the resident £170 compensation to recognise the inconvenience and impact of those times where it had not offered satisfactory service. The landlord’s compensation matrix suggests awards of £70 are appropriate where there has been a service failure, such as a delay or error, which has had a high impact on the resident. Therefore, the landlord’s compensation offers demonstrates that it took its delays in providing a service seriously. The compensation offer goes some way to remedy the landlord’s failings. However, this service is not bound by the landlord’s compensation policy and will consider what will adequately remedy service failures when taking all the circumstances into account.
  21. The Ombudsman’s Guidance on Remedies (published online) sets out the Ombudsman’s approach to putting things right for the resident where there has been a failing that has impacted on them. Taking this into account, it would be appropriate for the landlord to make an additional compensation payment to specifically recognise the significant delay the resident experienced in receiving a call back between August 2022 and January 2023. The evidence demonstrates that the resident went to an unreasonable level of time and trouble to chase the landlord for adequate communication. This could reasonably have been avoided if the landlord had acted appropriately. The landlord apologised for this in its stage 1 response but a compensation payment will be necessary to appropriately remedy this failure to meet service standards. The remedies guidance suggests an award of £200 in addition to the £170 offered will adequately remedy instances of service failure, including a repeated failure to return phone calls. It will be appropriate for the landlord to make this payment directly to the resident in addition to the amount it offered in its stage 2 response.
  22. Given her concerns about ASB and noise nuisance, the resident had requested that she be offered alternative accommodation. In considering the resident’s request, the landlord identified that she is currently overcrowded in her home, as she lives in a 2 bedroom flat with 6 children. There is evidence that the landlord provided the resident with relevant housing advice including information about her options to apply for available homes within its own stock, via the local council’s housing register, or as part of a mutual exchange. This was reasonable in the circumstances. However, the landlord should ensure it gives the resident any reasonable support she needs to move to suitable accommodation.
  23. The landlord offered the resident £100 compensation to recognise additional delays she had experienced with getting the promised assistance with her housing options, which was an appropriate remedy. It is recommended that the landlord take reasonable steps to actively support the resident’s application(s) for rehousing and ensure she has any support she needs to maintain housing applications and place regular bids for available properties.

Complaint handling

  1. The landlord’s complaints policy states that it will acknowledge formal complaints within 5 working days. It aims to issue stage 1 responses within 10 working days and formal reviews at stage 2 within 20 working days. It states that the landlord will communicate with the resident to agree any appropriate extensions where these timescales are not possible.
  2. This service contacted the landlord, on the resident’s behalf, on 3 April 2023 to request that it responded to the resident’s complaint. The landlord contacted the resident on 14 April 2023 and confirmed it would issue a response to her complaint by 20 April 2023. The stage 1 response was not issued until 27 April 2023. There is no evidence that the landlord agreed an extension with the resident. There were similar delays to the landlord issuing a response at the final stage of its procedure. The landlord should have issued a final response by 30 May 2023, but it was issued on 9 June 2023.
  3. The landlord offered the resident £170 compensation to recognise its delays in processing the resident’s complaint in accordance with its complaints policy and for its handling of her concerns. The landlord also acknowledged in its complaint responses that it was unacceptable that it had been necessary for the resident to contact the Ombudsman for assistance in getting a response to her complaint.
  4. While the delays in the landlord’s complaint handling were minor and did not impact the outcome of the resident’s complaint, it was appropriate and proportionate that the landlord offered compensation of £170 to recognise that it had not acted in accordance with its policy. While the landlord has taken steps to put things right with the resident, it is not clear that it has learnt from the complaint. As such, a recommendation has been made that the landlord reviews its complaints handling process to ensure that it is responding to complaints in a timely manner, and that it seeks to agree any required extensions with the resident in advance of the original deadline.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of antisocial behaviour (ASB) from her neighbour.
  2. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered reasonable redress in relation to its complaints handling.

Orders

  1. The landlord must pay the resident £200 compensation to recognise the time and trouble it was necessary for her to go to over a significant period of time to receive a call back from the landlord. This payment should be made in addition to the compensation offered in the landlord’s stage 2 complaint response, which should also be paid to the resident. The payment should be made directly to the resident within 28 days of the date of this determination.
  2. The landlord must apologise to the resident for the following:
    1. Its unsatisfactory handling of her first report of antisocial behaviour.
    2. Its characterisation of the resident’s reports of regular noise at unsociable hours as “everyday living noise”.

The apology must come from a senior figure in the organisation with responsibility for this area of housing management and acknowledge the impact these failings have had on the resident. The landlord must issue the apology to the resident, with a copy provided to the Ombudsman, within 28 days of the date of this determination.

  1. The landlord must review its performance for responding to resident contact against its published service standards. Where areas for improvement are identified, it must come up with an action plan to address those areas. The landlord should ensure that it gives the resident reasonable expectations of its response times and that it reasonably meets these expectations. This review should be carried out by a senior member of staff at the organisation and a copy of the review and action plan should be provided to the Ombudsman within 12 weeks of the date of this determination.

Recommendations

  1. The landlord should take reasonable steps to support the resident’s application(s) for rehousing, including liaising with the local authority to confirm her circumstances as appropriate.
  2. The landlord should review its complaint handling process to ensure that it is responding to complaints in a timely manner and that it seeks to agree any required extensions with the resident in advance of the original deadline.