Network Homes Limited (202001202)

REPORT

COMPLAINT 202001202

Network Homes Limited

16 March 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 handling of the resident’s reports of antisocial behaviour (ASB).

Background and summary of events

The resident lives in a ground floor flat situated in a Victorian building. In mid-July 2018 a new resident moved into the flat above hers. On 27 October 2018, the resident wrote to the landlord expressing concern that this neighbour was having late night/early morning visitors who were being noisy as they came and went and that they were leaving the communal door unlocked. She considered this to be ASB and wanted the landlord to take action to stop it.
On 11 January 2019, the landlord wrote to the resident with a summary of the situation and the action that had been taken since that letter. It had spoken to the neighbour by telephone, asking them to be more considerate and had written to the resident to confirm this and provide her with log sheets so that evidence could be gathered.
It acknowledged that completed sheets had then been submitted on 10 December 2018 which provided evidence of both the type of behaviour already reported and also some noise occurring during “social hours”. On 28 December 2018 and 3 January 2019, the resident provided further completed sheets, again reflecting the type of behaviour already reported and, in addition, that windows were being opened and closed in the early hours. The landlord confirmed that, as a result of the evidence supplied, it had now arranged for the neighbour to visit its offices to discuss the situation more formally. This was to take place on 15 January 2019. Prior to this it had also visited the neighbour, at their property, on 29 November 2018.
The landlord set out what action it had taken in accordance with its ASB protocol. It had: logged an ASB case; created an action plan; carried out a risk assessment; supplied the resident with log sheets; telephoned and visited the neighbour; responded to the resident’s correspondence and spoken to her by telephone; arranged to see the neighbour in its offices shortly; written to other households in the property to see if they were experiencing any problems; and carried out a visit to the building to carry out sound tests, observe sleeping arrangements, check for disrepair and so on.
At the forthcoming meeting, the landlord stated that it would make recommendations to the neighbour about what level of noise was acceptable. If this was not taken on board then it could consider: serving the neighbour with an Acceptable Behaviour Agreement with conditions; serving a notice seeking possession; trying to obtain an injunction; and/or applying for a court hearing for possession of the neighbour’s property. It concluded by asking the resident to continue completing the log sheets and advising that she could enlist the help of the local authority’s noise nuisance team (NNT), who could independently witness any noise and intervene if necessary.
On 14 January 2019 the landlord sent a letter to all residents of the building, raising the issue of noise and asking to hear from anyone who was experiencing problems. One such tenant sent the landlord an undated letter confirming that there was noise coming from the neighbour in question, caused by them and their friends banging doors, opening and closing windows and so on. The resident had also made a further report at this point.
On 30 January 2019 the resident telephoned the landlord. After the neighbour had been interviewed, the landlord had promised noise monitoring equipment would be installed but it had not arrived, so she asked for an update.
Also on that day, the resident wrote to a senior staff member of the landlord regarding the situation. She summarised what had happened to date and the type of behaviour which was continuing and reported that her resultant lack of sleep was adversely affecting her health. She had tried to reason with the neighbour, but this had resulted in them and their visitors making even more noise when they climbed the stairs and used the communal areas, which she suspected was deliberate and by way of retaliation. Having lived in her property peacefully for 18 years, she now felt she needed to be moved and she asked the landlord to look into her case “with compassion”.
The landlord considered whether to treat this letter as a complaint about its handling of the resident’s reports but concluded that, as there was no allegation of delay on its behalf, it did not represent a criticism of itself. On 5 February 2019 it advised the resident of this fact and stated that it would continue to deal with her reports under its ASB policy.
In the landlord’s letter of 15 February 2019, it referred to the resident’s letter of 30 January 2019 and to a visit it had made to the property on 6 February 2019, along with a police officer, to test the noise. It had also spoken to the neighbour and “made recommendations” about noise when they were walking up the communal stairs. It was continuing to monitor the situation but, in the meantime, it reiterated that the resident could enlist the help of the NNT who could independently witness noise and intervene if necessary.
On 16 March 2019 the resident wrote again to the landlord to update it on the situation. She stated that incidents continued, although not quite to the previous frequency, until recently, when there had been late night visitors and noise. She provided details and commented that she felt she was back to where she started. She noted that at the home visit the police officer had recommended CCTV and noise monitoring equipment, but these had not materialised. She reiterated that the situation was having an adverse effect on her health and asked the landlord for help with the problem.
The resident made a further report of the same behaviour on 4 May 2019. She stated she was aware the landlord’s legal department were now looking into the situation, but she had heard nothing further and reminded the landlord about the possibility of CCTV and also carpeting in the communal areas to try to dampen the sound. She gave the landlord a further update on 28 May 2019, supplying incident log sheets and asking for confirmation as to what action it was going to take.
On 4 June 2019, the resident telephoned the landlord confirming she had complained of noise again the night before and that she felt nothing was being done. She knew the landlord had recognised that the insulation between the properties was poor, but it had not done anything about it.
On 16 July 2019, the landlord wrote to the resident to confirm its view following its investigation. It had concluded that the noise was “general living noise” and this was being exacerbated by the age and lay out of the building itself. It confirmed that it was looking at carpeting the communal stairs and offered to arrange mediation stating it “will not treat this as ASB going forward”. In the resident’s response she disputed the landlord’s categorisation of the noise but agreed to mediation and supplied further incident log sheets.
The resident contacted her MP about the situation and, on 16 August 2019, the landlord explained to them that the main problem was that the neighbour was entering and leaving the property at times the resident considered to be anti-social. However, after an extensive investigation the landlord had concluded there were no grounds which would result in the neighbour being asked to leave their flat. A works order had been raised to fit thickly underlaid carpet to the communal hall and stairs and the resident was to be contacted shortly to arrange access to the building for those works. Mediation was in the process of being arranged.
On 16 September 2019 the resident wrote to the landlord to make “an official complaint” regarding the issue. She noted she had lived in the property for many years without a problem until the current upstairs tenant moved in, in July 2018. She stated that at first she had concluded the noise was as a result of the tenant moving in and that it would subside, but this had not been the case. She stated she had complained in October 2018 and was given diary sheets to complete. She agreed that the landlord had intervened and made contact with the neighbour, asking for quiet after 11pm. She agreed that initially this had had some positive impact but it was short lived. She commented that the neighbour’s lifestyle meant they kept very unsocial hours. She expressed concern about the toll the situation was having on her health. She confirmed the noise was typically in the early hours, with visitors, exercising and DIY and general thumping about. She asked the landlord to intervene on her behalf.
By the end of October 2019, the carpeting had been laid but the resident was reporting that the neighbour was still managing to make a noise. She considered this was a combination of poor insulation in the building itself and inconsiderate ASB by the neighbour. She stated that, whilst the landlord had initially been helpful, it was now ignoring her letters. She confirmed she had been in touch with the NNT.
On 9 December 2019, the landlord reported again to the resident’s MP, confirming that the behaviour had not been identified as ASB but rather domestic noise on entering and leaving the building. The carpet had been installed. The resident had since refused mediation and it had received allegations from the other neighbour of retaliatory noise being made by the resident and of her making reports to the police about them which were unfounded. The landlord stated that there was nothing further it could do.
On 29 December 2019 the resident wrote to the landlord reporting that she had called the police in the early hours due to noise emanating from the neighbour’s property which continued until 3 am. She asked that the landlord review its decision to close her case. The landlord took this to be a further report of ASB and, on 21 January 2020, it wrote to her, apologising for the delay in responding, stating that it was investigating the matter, and confirming that a full response would be provided by 31 January 2020.
In the landlord’s letter of 27 January 2020, it set out that an action plan had been made which included: write to all residents; send incident logs; visit affected properties to test the noise; interview neighbour; monitor; consider mediation, noise recording equipment, and improvement works; and consider legal action. It confirmed that the ‘All Residents’ letter had been sent. In addition, the resident’s incident logs had been reviewed but it had been determined there was no evidence of ASB. The resident’s reports consisted of concerns about the neighbour entering and exiting their property at different times of the night. The landlord commented that “We as a landlord are not able to dictate what times residents come and go from their properties”. Despite this, the landlord had spoken to the neighbour on a number of occasions, (including at its offices on 15 January 2019) asking them to be mindful of other people in the building.
It further confirmed that it had visited the resident’s property on 6 February 2019 accompanied by a police officer. It was agreed at the time that the neighbour’s footsteps could be heard in the resident’s flat and as such, noise recording equipment was not required to capture that fact. The landlord offered to look into installing underlay and carpets in the communal areas to alleviate the noise and suggested mediation might be a way forward.
The landlord went on to state that in July 2019, the question of mediation was explored further but the resident had failed to return a necessary form to progress this. Further, the landlord’s senior management and legal teams had considered the case and had liaised with the resident’s councillor, her MP’s office and the NNT. It asserted that it had provided written and oral updates and responded to the resident’s correspondence.
The landlord explained that it was unable to take any legal action against the neighbour as there was no evidence the noise was deliberate or targeted. Neither could it add any further improvements to the carpeting it had already installed. Under the circumstances, it concluded that there was nothing further it could do and the resident may want to consider alternative housing options. In the meantime, it offered to “monitor” the situation by reviewing any further incident log sheets the resident wished to submit.
In early February 2020, the resident responded via her MP’s office that she did not accept the landlord’s version of events but would be happy to attend mediation. The landlord gave its further views on the case to the MP shortly afterwards. It reiterated that the behaviour reported to it was not classed as ASB and no legal action could be taken as a result. It stated that on each occasion it notified the resident of this, she chose to ignore it and continued to write to its Chief Executive Officer. It summarised that the resident had the following options: tolerate general household noises; agree to mediation; seek independent legal advice; take independent legal action; apply for rehousing; and/or consider a mutual exchange.
Now that the resident had re-stated her interest in mediation, the landlord undertook to contact the neighbour to see if they were still willing to attend. The resident was unhappy with this stance and on 25 February 2020 asked for “a final response in a letter to me”. She contacted the landlord again on 23 March 2020, reporting further instances of noise late at night. The landlord’s internal records show that it spoke to her by telephone on 31 March 2020 and explained that it was closing the case as she had already been offered mediation.
Following the Ombudsman’s intervention in May 2020, a telephone call took place between the landlord and resident on 9 June 2020. The resident pointed out that whilst she had been living in the property for 20 years, the problems had only occurred with the current neighbour, the building being Victorian and so on, not being a problem before. She stated she had had to wait 7 months for the carpet to be put down. She repeated the type of behaviour that was taking place, guitar playing, music, constant late-night visitors, slamming of windows, singing etc. The police had attended and warned the neighbour, but he had denied making the noise.
The landlord wrote to the resident on 16 June 2020 to state that, following her contact with this Service, it was raising a stage one complaint and expected to provide a decision by 30 June 2020. The resident responded that her original complaint had been made in July 2018 and she was shocked to find she was still at stage one of the complaints process.
In the landlord’s stage one response of 29 June 2020, it summarised the complaint as being about its lack of response to two letters and diary sheets (from February and March 2020) and its review of the ASB case. Its findings on the first part of the complaint were that it had not received the resident’s letters because its offices were closed due to the pandemic lockdown. It apologised for the lack of response as a result. With regard to the ASB case it commented as follows:
1. A review of the diary logs provided by the resident revealed, in its opinion, instances which did not amount to statutory noise but instead were classed as general household domestic noise. It had, however, brought this to the attention of the neighbour who had agreed to attend mediation if that helped;
2. The neighbour had accepted that he had used the washing machine after 11pm and had been asked not to do this and to refrain from doing any late-night DIY. If that sort of noise persisted, it could serve a “pre-notice warning letter”;
3. The situation was being complicated by the nature of the building and the residents strained relations. Having initiated mediation, which both had agreed to, it unfortunately could not go ahead due to the lockdown;
4. Some of the noise reports related to the type of noise which was not continuous enough for it to be “captured” and investigated. However, this noise could be reported to the NNT who were willing to assist with such reports. Likewise reports of late-night music should be reported to the NNT as they had powers to confiscate the “offending equipment”;
5. Although it had categorised the noise reported as “domestic noise”, which was to be expected in the type of building the resident lived in, it had agreed to lay carpets in the communal areas to “drown out” noise from the wooden stairs;
6. It had declined to install CCTV and any installation arranged by the resident needed its prior permission;
7. In situations such as this, where the acoustics of the building were causing concern, they were happy to help if she wished to consider rehousing options.
The resident replied by letter dated 10 July 2020 maintaining that there was deliberate ASB and that the landlord was incorrect in categorising it as domestic noise. She gave some examples and stated that recommendations made by the police for noise monitoring equipment and CCTV had not been met by the landlord. She agreed that some carpeting of the communal areas had been laid but only after the intervention of her councillor.
She said the landlord had not taken the action available to it, and that she had been told this was because the courts did not enforce such cases with Victorian buildings and it would be expensive, sound proofing even more so. After twenty years in her property she did not see why she should have to move when, in her view, it was her neighbour’s behaviour which was in breach of his tenancy agreement and was the problem here. She requested her complaint to be escalated to the next stage of the complaint procedure. The landlord acknowledged this request on 16 July 2020 and stated that it would provide a response by 12 August.
In the landlord’s stage two response of 12 August 2020, it confirmed its position as follows:
1. It apologised that a stage one complaint had not been raised following the resident’s letters of 25 February and 23 March 2020. It accepted there had been some delay in handling the case and offered £115 compensation;
2. It had considered the diary sheets supplied by the resident and accepted that there were four incidents she had referred to which did constitute a noise nuisance under its ASB policy. If there were any further late-night incidents of the use of a washing machine, guitar playing, DIY or arguments these should be reported to the NNT who had the power to confiscate any offending equipment. Any further use of the washing machine or DIY activities at night should be reported to it so it could consider sending a pre-notice warning letter;
3. It apologised for any distress the resident had suffered in its suggestion that she consider a move. It explained that, because it had been unable to attribute any deliberate ASB to the situation, there was no reason to ask the neighbour to leave and, given the resident had reported the situation was intolerable, the option was given to her to consider whether she wished to leave;
4. The mediation referral was now to go ahead;
5. It had looked into the resident’s concerns thoroughly and appropriately. It apologised for the delay in raising the stage one complaint and hoped the mediation would be successful. It confirmed that the complaint had now concluded its complaints process.

Agreements, policies and procedures

Secure Tenancy Agreement

This Agreement sets out the legal relationship between the resident and the landlord. It contains a promise on the resident’s behalf “not to cause a nuisance or annoyance to neighbours. The tenant is also responsible for the conduct of his family and members of his household and others including visitors”.
The resident also promises not to play a radio, television, CD, musical instrument, or operate machinery so loudly that it causes a nuisance to neighbours or can be heard outside the property.

Complaints Policy

The landlord’s Complaints Policy sets out its approach to complaints. It states that the policy does not apply when “the complaint is about anti social behaviour (this is dealt with under our ASB Policy and Procedure). However, customers can complaint about delays in handling an ASB case”.
The policy sets out a two stage complaints process. The first stage is an initial investigation of the matter with the second stage being a review conducted by the landlord’s complaints team.
The landlord aims to respond to “the vast majority” of complaints at stage one, with an aimed response time of 10 working days. Should the matter proceed to stage two, the response time is extended to within 20 working days “of receipt”. In the event the landlord cannot meet this time commitment, the policy states it will let residents know and provide a new target date for a decision.
The investigation/review is not to be carried out by a staff member where they were involved in the issues complained of.

ASB Policy

It sets out that all tenants are bound by the terms of their tenancy agreements not to cause nuisance and/or annoyance to others.
In terms of taking action, the landlord states its officer will develop an action plan with the resident, “being clear and realistic about potential outcomes and timescales involved”.
It commits to preventing ASB in the following ways:
1. Clearly explaining to all new tenants the terms of their tenancy that relate to ASB and causing a nuisance so that expectations and consequences are clear.
2. By assessing what physical improvements can be made to properties to help reduce ASB.
The policy confirms the landlord’s approach of working with both “complainant and alleged perpetrator”, agreeing a course of action and setting timescales for its implementation. This might include: written and verbal warnings; mediation; and pre-notice letters. Further, the landlord might involve other agencies, such as the police, social services, and so on.
Where taking a proportionate and appropriate approach still raises the possibility of enforcement of the tenancy provisions regarding ASB, the landlord can take such legal action as is available to it under the law. This includes injunctions, possession proceedings and ultimately, eviction. However the policy makes it clear that possession action is a last resort, and all alternative remedies should be tried first.
The policy records the fact a resident can ask for a review by way of a Community Trigger via their local authority/police authority.
With regard to noise nuisance the policy sets out that the landlord’s tenants have differing lifestyles and that many activities can cause “domestic noise” due to normal household activities during the daytime. These include noisy household appliances; loud talking; banging of doors and windows; and television and music noise. If a report of noise which amounts to domestic noise is made, the landlord’s policy sets out its approach is to encourage customers to discuss it with their neighbours, if they feel able, to prevent a build up of the situation.

Compensation Policy

The landlord operates a Compensation Policy with the aim of putting a resident back in the position they would have been in, had the service offered by the landlord been to the required standard. If this is not possible, then financial compensation can be considered.
The amount of compensation is determined, according to the policy, by the particular facts of the case including the amount of time the resident has had to wait for a resolution. Cases are divided into three categories according to the impact of the service failure, namely low, medium and high. Compensation for delay is then awarded at £5 per week, £10 pw and £20 pw depending on that severity.
Similarly compensation can be provided for distress, inconvenience, frustration, anxiety and so on dependant upon whether it is low, medium or high impact at the rates of £5 per week, £10 pw and £20 pw respectively.
In addition, compensation can be provided for the resident’s time and trouble caused as a result of the landlord’s actions. Again this is divided into the same categories with the amounts being £1 per week, £3 pw and £5 pw respectively.

Assessment and findings

There is a distinction to be made between making reports of ASB to the landlord and making a complaint about the landlord’s handling of those reports. Until a report has been made, investigated and acted upon (or not), there is no ‘act or omission’ on the landlord’s part for the resident to complain about.
The ‘ASB’ “complained” of is actually a report to the landlord that one of its other tenants may not be acting in accordance with their tenancy agreement coupled with a request for help. The resident’s tenancy provides a promise on her behalf not to cause a nuisance or annoyance to her neighbours and it is reasonable to conclude her neighbour’s tenancy agreement with the landlord contains an equivalent provision. The landlord is not making the noise. The landlord’s role is to assist the resident in trying to resolve the issue and also in considering whether it needs to ‘enforce’ its agreement with the neighbouring tenant.
The landlord has an ASB policy setting out how it will approach such a situation and its provisions are summarised above. It is reasonable to expect the landlord to act in accordance with its own policy and with the provisions of its tenancy agreements.
The evidence shows that the resident understands her reports of noise to represent “a complaint” to the landlord. She considers that the landlord, therefore, should have categorised her contacts, going back to 2018, as official complaints. Indeed, she expressed surprise when the landlord stated in its acknowledgement of 16 June 2020, that it was only just treating her contact as a complaint under stage one of its complaints procedure.
At times the resident wrote directly to the landlord’s CEO, including on 31 January 2019, and she also referred, in her letter of 16 September 2019 to it, as making an “official complaint”. However, the content of those letters, and indeed her other contacts to the landlord concentrated on setting out the behaviour she was unhappy with. The landlord took them to be reports of ASB, rather than complaints about its handling of her case, and did consider this issue after the January 2019 letter. It noted, however, that its policy was that reports of ASB were not to be dealt with as complaints unless there was an allegation of delay on its behalf (it concluded there was none).
The treatment of these contacts as reports, rather than complaints, was a reasonable course to take based on the contents of the letters. It may not have been what the resident intended to convey, but it is more a case of misunderstanding rather than failing on the landlord’s part that prevented it from treating the resident as having made a complaint, in the strict sense of that word, as set out above.
The evidence shows that once the initial reports of ASB were made, it acted in accordance with its ASB policy. It gathered evidence (the log sheets); contacted the neighbour, by telephone and in person; conducted noise tests; involved other agencies, namely the police and the NNT; and offered mediation. It considered installing noise monitoring equipment but decided against this as it witnessed the noise for itself and did not need to take this action to capture how the noise came across in the resident’s property. This was a reasonable and logical decision to make.
Having reached this point, the only option left to the landlord was to consider taking legal action. It consulted its legal team and concluded that any legal action taken to enforce the terms of the neighbour’s tenancy agreement was unlikely to be successful. The landlord reasonably set out to the resident that taking court action was a last resort. Such action is risky and can have serious costs consequences for the losing party and the landlord has limited resources. Once it had concluded that the noise was not of a nature which could warrant formal action it could not reasonably justify doing so. The resident’s log sheets have been supplied but it is not for this Service to assess how the noise should be categorised and offer an expert legal opinion on its nature and consequences. The involvement of this Service is to consider whether the landlord acted reasonably in accordance with its own policies and procedures and its legal obligations.
Once the landlord had reached the view that the noise was domestic in nature and could not be challenged in court, it is fair to say the matter started to drift. Carpeting was introduced to try to curb any noise but any urgency to its installation had dissipated, the landlord concluding that it was going above what was required from it by taking this action anyway. There is evidence the resident was not receiving the same level of response as in the early days of her reports and she enlisted the assistance of her councillor and MP. The landlord took the view that it had made its stance clear and would only be repeating its position. It set out options for the resident to consider, in its response to her MP. It is not the case that the resident was unclear about the landlord’s position but rather that she disagreed with it. This does not, in itself, mean that the landlord failed in the way it handled her reports.
The situation was then exacerbated, once a complaint had been made, by the fact the letters were not received and the resident felt her only option was to contact this Service. The landlord accepted, in its final complaint response, that there had been some delays in dealing with the case and that ideally a stage one complaint might have been raised sooner. It offered £115 compensation, although it did not set out how it had calculated that figure and its Compensation Policy provides quite specific calculations dependent upon time. However, the delay is difficult to calculate in precise terms – it was more that momentum was lost once the landlord had exhausted its usual actions – and it cannot be directly assessed in terms of weeks lost.
It was reasonable, therefore, to take a broader approach to the question of compensation. The landlord’s accepted service failing would not have fallen within the most serious categories of its policy. As a result, it was appropriate to assess the level at £5/week for delay and distress/inconvenience and £1/week for time and trouble. On this basis the offer made reflected a number of weeks of delay, which was a reasonable and proportionate response.
Finally, it is noted that the resident was unhappy with the landlord raising the possibility of her moving “thus victimizing the victim”. However, although this option was not acceptable to the resident, it was an option open to her and the landlord acted reasonably in pointing that out to her. There is no evidence it insisted on this course of action or pressured her into taking it.
Since the complaint was made and dealt with, the resident has made further reports to the landlord. A recommendation is made below that the landlord provide the resident with information about the Community Trigger and assist her in contacting the local authority to look at instigating this – but only if she wishes to explore this option further.

Determination (decision)

In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident which, in the Ombudsman’s opinion, satisfactorily resolved the complaint.

Reasons

This Service cannot assess the nature of the noise nuisance faced by the resident and is unable to give an expert opinion on whether it could successfully form the basis of legal action against the neighbour. It is not for this Service to therefore order the landlord to take this action. The evidence shows that the landlord acted upon the resident’s reports in accordance with its policies and did consider formal action. Once it was apparent that it had done what it could, the matter drifted and the landlord has reasonably accepted that there was some delay on its part. This delay cannot be precisely calculated but the landlord has offered compensation which, based on a less severe service failing, equates to a number of weeks of delay and was therefore appropriate.

Recommendations

The Ombudsman recommends that the landlord should:
1. reoffer to the resident the £115 compensation offered previously, if this has not already been paid, as this recognised genuine elements of service failure, and the sufficient redress finding is made on that basis;
2. upon the resident requesting it to do so, the landlord to provide information about the Community Trigger and assist her to contact the local authority to instigate such a procedure.