Torus62 Limited (202013222)

REPORT

COMPLAINT 202013222

Torus62 Limited

25 February 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 concerns:
1. The landlord’s handling of a boundary dispute.
2. The landlord’s response to the resident’s reports of parking issues.
3. The landlord’s handling of ASB reports.

Background and summary of events

Background

The resident is an assured tenant and the tenancy started in 2002; at the time the council was his landlord. In 2008 the property transferred to the landlord known as Liverpool Mutual Homes (LMH) at that time.
The property is a three bedroom end of terrace house. The property is situated in a cul-de-sac.
The complaints include issues with neighbours each side of the property; neighbours A and B who are both private occupiers. Apart from the property, the landlord owns two other properties in the street.
The resident has mental health conditions which are noted on the landlord’s system.
In 2011 neighbour A built a front boundary wall. The resident made a complaint to the landlord about it encroaching on his boundary. The landlord investigated and agreed there had been some encroachment of the shared boundary. However, no further action was taken by the landlord. According to the landlord after further discussions, the resident subsequently withdrew his complaint and did not want any further action taken.
There is no evidence of the resident raising a formal complaint, about the boundary dispute, that has exhausted the landlord’s complaints process until December 2020. Therefore, this investigation will not investigate what happened in 2011 but will consider events from 2020 as this constitutes a reasonable timeframe prior to his formal complaint.

Summary of events

On 29 January 2020, the landlord opened an ASB case file due to reports from neighbour B regarding verbal abuse and threatening behaviour from the resident. The landlord referred the complaint to its ASB team who then closed the case. Its ASB team opened a second case file at the end of March 2020 due to further reports received from neighbour B concerning verbal abuse and threatening behaviour from the resident.
On 13 July 2020, the landlord sent the resident a tenancy warning letter advising it had received reports from his neighbour regarding verbal abuse and threats. The landlord said it had written to him before regarding his unacceptable behaviour towards this neighbour and that this type of behaviour amounted to a serious breach of his tenancy agreement.
It referred to contact it had had with the police who had advised that there had been multiple recent incidents and that the resident had been charged with a number of offences. It said despite the police advising him not to approach neighbours, he had that day initiated verbal abuse towards them. The landlord advised it would take the “strongest possible legal action to eradicate this type of behaviour” and that his tenancy was at risk.
The resident’s partner and carer (representative) contacted the landlord following receipt of this letter however the Ombudsman has not seen evidence of this or any reply from the landlord at that time.
During contact with the landlord’s ASB Manager and Housing Officer sometime in early December 2020 the resident raised the matter of neighbour A having encroached the property boundary. The Housing Officer agreed to visit the property to review the boundary issue.
The representative emailed the landlord on 9 December 2020 advising they had not heard from the Housing Officer and when they tried calling, it went to voicemail. She attached photos of the neighbouring properties to illustrate the boundary issue and that the resident’s access being blocked due to parked vehicles on the public road at the end of the neighbouring driveway.
The representative then wrote to the landlord raising a formal complaint on the resident’s behalf. This letter is undated and it is unclear when the landlord received this, however, the landlord logged the complaint on 22 December 2020.
Within the formal complaint, the representative explained the history of the boundary dispute which arose after neighbour A had completed “massive renovations…taking down walls, fences, ripping up pathways and hedges” in 2011. This resulted in a fence being erected down the resident’s “side” of where the shared pathway had been at the front of the property. This meant neighbour A had gained the entire area which had previously been a shared path. This effectively blocked access to the pathway. This fence was soon replaced by a “bigger, wider, taller brick wall with railings fitted along the top”. The works carried out by neighbour A had also resulted in the boundary with neighbour B being encroached upon.
The representative said shortly afterwards neighbour A and their visitors began parking their cars at the end of the pathway which blocked the resident’s access to the property. She said this caused difficulties getting bins out and taking deliveries as well as having visitors. It is noted that the resident lives in a cul-de-sac with his property positioned in the top right hand corner. Due to the lay out of the road, it is clear that parking opportunities for him and neighbouring residents are limited.
However, the representative said the resident believed the parking of vehicles in this way was deliberate and said that Neighbour A “threatened him” not to pursue the boundary issue. The resident thought they were involved in criminality. The representative referred to an incident where neighbour A ran at the resident with a hammer which she said the resident reported to the police and the landlord.
The representative also gave a history of the resident’s relations with neighbour B which over a number of years had deteriorated. The representative explained the serious effect the dispute had on the resident’s mental health advising he had made more than one attempt to take his own life.
She said the resident was arrested in July 2020 for threatening behaviour against neighbour B. This was whilst he had been “medicating with alcohol”. This resulted in him having a criminal record. This led to his recent diagnosis of Complex PTSD. She referred to the letter received from the landlord dated 13 July 2020 stating the resident was in breach of his tenancy. The resident only received this in August 2020. It referred to him having been previously contacted however this was not the case. The representative said she immediately contacted the landlord on the resident’s behalf and explained the situation.
The representative said the resident was considering exercising his right to buy the property and wanted the boundary dispute resolved. She said he had been discriminated against on the grounds of his mental health for 20 years. He wanted the wall taken down.
On 17 December 2020, the representative emailed the landlord providing further details surrounding the resident’s complaint. She reiterated that despite letters and photos of the boundary and parking issues sent to the landlord, nothing had been done to resolve these matters.
On 13 January 2021, the landlord provided a stage one response to the resident. It advised:
Regarding the boundary dispute, the landlord advised it was confirmed when investigated in 2011 that a slight encroachment had taken place. It summarised the interactions it had with the resident in 2011 and said as it had not heard from him about this issue since agreeing to withdraw his complaint at that time, it did not intend to take any further action.
Regarding the parking issue, whilst there may be some parking issues, it had no jurisdiction over parking on the highway and either the police or the highways department of the local authority normally dealt with such complaints. It suggested he contact both organisations to highlight his concerns.
Regarding the anti-social behaviour reports, it had checked its records and there had been no complaints from him about any ASB in relation to his neighbours.
It had been investigating and monitoring complaints from neighbour B relating to the resident’s ASB since last year. It referred to the resident having admitted to being the perpetrator in his formal complaint and him stating that his actions were due to his health issues and that he was ‘self-medicated with alcohol’. The landlord said this in no way justified his behaviour. Its ASB Officer wrote to him on 13 July 2020 specifically about this and highlighted that potentially it could take action in relation to his breach of tenancy. Its officer had been liaising with the support services acting on the resident’s behalf who were concerned he may be in jeopardy of losing his tenancy. The landlord advised that this was not currently the case.
The landlord also advised that because the resident had referred to taking his own life and self-harm, it had made a referral to a council support service in order for them to consider his situation and provide the right care which as its housing provider, it could not as staff were not medically trained professionals.
On 24 January 2021, the resident asked that the landlord escalate his complaint as he said it had not addressed the issues raised. Its unwillingness to do anything about the boundary dispute that it had been aware of for many years had left him in a position whereby he would not be able to purchase the property. His situation had been caused by the landlord’s “dereliction of duty”.
On 17 February 2021, the landlord called the resident to discuss his complaint. On 25 February 2021, the landlord provided a stage two response to the resident. It thanked him for discussing the complaint issues during the telephone call. It acknowledged that the resident was unhappy that neighbours A and B had taken land from his garden. He believed that it had “pandered” to his neighbours and had given away land.
The landlord reiterated that it had previously found a slight encroachment by the front wall built by neighbour A but that the resident decided to “leave things as they were”. It also said that another issue was discussed at the time concerning the boundary wall with neighbour B which “juts across by a couple of inches” however the resident did not want this to be pursued as he got on with neighbour B at that time.
It said there was no evidence that it had pandered to his neighbours. The resident had advised during their telephone conversation that this boundary wall had now encroached a further ten inches. The landlord said it would arrange for his Housing Officer to inspect the boundary line and refer to the site plan provided by the land surveyor in 2011. They would contact him with the outcome of their findings and the most appropriate course of action.
Regarding parking it acknowledged that he continued to have problems with the visitors of neighbour A who restricted access to his gate with their vehicles. It reiterated that it had no jurisdiction over parking on the public highway, however, it would ask his Housing Officer to contact neighbour A and ask them to be conscious of this issue and request their visitors to park in a considerate manner that did not cause him difficulties with access.
Regarding ASB reports from the resident the landlord said that it had received no ASB reports from him since 2014.
In the representative’s letter to this Service dated 20 May 2021, she referred to neighbour B having made further “malicious and unfounded complaints” from April 2021. This element of the complaint has not been through the landlord’s internal complaint process. As such the Ombudsman will not consider the resident’s concerns about these ASB allegations in this investigation.
In response to the Ombudsman’s evidence request, on 8 October 2021 the landlord advised that it had not followed up on the actions agreed in its final response once Covid-19 restrictions were lifted for which it was sorry. It said that it was prepared to revisit the boundary issue and talk to residents about the parking issues raised by the resident although pointed out that it only had tenants in two properties in the resident’s street.
In regard to the resident’s mental health condition, the landlord said wherever possible, it would take these into consideration when deciding upon the necessary actions in response to reports of ASB by the resident’s neighbours.

Assessment and findings

The landlord’s handling of a boundary dispute.

In instances of disputes regarding the position of the boundary or where it is thought there has been a breach of the boundary by a (private occupier) neighbour, the landlord’s main option would be to negotiate directly with the neighbour to achieve the desired outcome, which in this case may be removal/repositioning of the wall. A further option may be for it to explore any legal options that may be available.
A decade after his neighbour had erected a boundary wall between their properties the resident raised the issue again in early December 2020. His housing officer agreed to visit the property to review the boundary issue but this visit did not take place. In its stage one response dated 13 January 2021, the landlord advised that currently it did not intend to revisit the matter referencing that the resident had not raised it since 2011 when he agreed for the landlord not to take any further action. Whilst this response was after the housing officer promised to visit, it’s not clear why the landlord changed its position after raising the resident’s expectations that it would review the boundary wall matter.
The resident explained in his escalation request that the boundary wall had been encroached upon further and that its unwillingness to assist in resolving this matter may affect his ability to buy the property via exercising his right to buy. As the resident had made clear the importance of getting the boundary issues resolved and also the effect it had had on him over the years, on balance it was reasonable to expect the landlord to revaluate the boundary issue.
In its final response, the landlord acknowledged that the resident’s Housing Officer had agreed to visit the property to review the boundary issue during their contact with him in December 2020. It explained that they had been unable to follow up this due to being absent from work because of sickness. The landlord apologised for this which was reasonable. It also agreed to inspect the boundary lines again and said that it would consider the most appropriate course of action.
The landlord’s response was appropriate and proportionate to the situation at that time. Based on this undertaking, it was reasonable to expect the landlord to have reinspected the property to reassess the boundary issue and also explain what action it did or did not intend to take. The landlord did not follow through with its promise. It has since told this Service it was prepared to revisit the boundary issue.

Parking issues

The resident lives in a cul-de-sac where due to the lay out of the road means parking opportunities for him and neighbouring residents are limited. Moreover, it is clear the complaint relates to parking of vehicles by neighbours on the public highway over which the landlord has no powers of enforcement.
The landlord in its stage one response advised that it had no jurisdiction over parking on the public highway. It said such would be a matter for either the police or the highways department of the local council. This was an appropriate response. Additionally, the resident’s neighbours are not tenants of the landlord meaning the landlord does not have any direct influence over them such as it may have over a tenant via the terms of the tenancy agreement – it is clear the resident is aware of this.
In its final response, the landlord reiterated its position however it did agree that the resident’s Housing Officer would contact neighbour A and ask them to be conscious of this issue and request their visitors park in a considerate manner so that did not cause the resident difficulties with access. This undertaking was reasonable in the circumstances and having agreed to take this action, it is reasonable to expect the landlord to have carried out this action.
The landlord has since confirmed to the Ombudsman that it had not followed up on this action once Covid-19 restrictions were lifted for which it was sorry. It advised it was prepared to work with local residents to try to diffuse tensions.
Therefore, the landlord’s failure to do what it said it would do in its final complaint response within a reasonable timeframe is evidence of a failure in the service provided. An appropriate order to address this has been included below.

ASB reports

The landlord’s ASB policy states it recognises that if left unchallenged ASB can have a very significant effect the quality of life for individuals and can impact on the welfare of communities as a whole. Accordingly, it aims to tackle ASB using a range of tools including prevention, support and enforcement. Its policy further states where ASB is serious or where it continues notwithstanding its efforts to tackle it, it may be appropriate to use robust and swift enforcement action to meet its objectives of protecting communities and preventing anti-social behaviour.
In his formal complaint the resident refers to an incident involving his neighbour trying to hit him with a hammer which he said he reported to the landlord and the police. However, there is a lack of detail from the resident about when this happened. In response to this aspect of the complaint, in its complaint responses, the landlord said that it had checked its records and that there had been no complaints from the resident about any ASB in relation to his neighbours since 2014.
As there is no evidence of the resident having reported to the landlord any instances ASB from his neighbours recently or during the year prior to his formal complaint, the landlord’s complaint response was reasonable.
In regard to the ASB reported by neighbour B about the resident, the landlord has provided records showing this neighbour had made several reports to it in 2020 which concerned verbal abuse and threats from the resident. Its ASB team opened two casefiles in relation to these allegations, the first one being in January 2020 and the second being at the end of March 2020. In his formal complaint, the resident acknowledged that he had been verbally abusive towards neighbour B earlier that year however complained about the landlord’s warning letter of 13 July 2020.
In its letter to the resident dated 13 July 2020 the landlord said the police had informed it that the resident had been charged with a number of offences in connection with his behaviour toward neighbour B, in particular verbal abuse and threats. This is something the resident confirmed in his formal complaint when he also said this had resulted in him having a criminal record.
In its letter dated 13 July 2020, the landlord had advised that such behaviour amounted to a serious breach of the tenancy agreement and suggested he had initiated verbal abuse against neighbour B that morning despite being told by police not to approach the neighbours. The landlord advised it would take the “strongest possible legal action to eradicate this type of behaviour” and that his tenancy was “at risk”. The wording of the landlord’s warning letter was appropriate and proportionate to the behaviour being perpetrated by the resident at the time.
Regarding the resident’s comments that the letter had incorrectly stated it had written to him previously regarding his unacceptable behaviour, whilst the landlord’s records show it had opened ASB case files a few months earlier in January and March 2020 indicating it may have contacted the resident about the allegations, the Ombudsman has not seen evidence of this.
Whilst it is reasonable to expect landlords to take into account vulnerabilities of tenants who are perpetrators of ASB, it has to balance this with the effect it may have on victims and communities. On this basis, the tenancy breach warning letter provided to the resident in July 2020 regarding his behaviour was reasonable in the circumstances.
In its stage one response the landlord referred to the offences the resident had pleaded guilty to in the Magistrates court and advised it had been monitoring the situation. It said that its ASB officer had been liaising with the council support service on his behalf who were concerned about him being in jeopardy of losing his home. It advised whilst that was not currently the case, if it received further ASB complaints it would look at legal action which could put his tenancy at risk.
Again, in view of resident’s admitted ASB, it was appropriate for the landlord to highlight the risk posed to his tenancy by any further ASB on his part.
In response to the references to the resident taking his own life and self-harming, the landlord advised in its stage one response that it had made a referral to a council support service in order for them to consider his situation and provide the right care which as its housing provider, could not. The landlord has a duty to sign post residents to relevant support services where there is cause for concern as in the resident’s case and therefore it acted appropriately in this regard.
In the representative’s communications to the landlord she refers to the resident having been diagnosed with Complex PTSD in 2020. The landlord has told the Ombudsman that wherever possible, it would take the resident’s mental health condition into consideration when deciding upon the necessary actions in response to reports of ASB. This approach is in accordance with its ASB policy and is reasonable.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when handling the boundary dispute.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord when responding to the resident’s reports of parking issues.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when dealing with ASB reports.

Reasons

In its stage one response, the landlord declined to visit the property to reconsider a boundary issue despite having indicated it was willing to revisit the issue. It did then acknowledge and apologise for this in its final response and agreed to visit the property to re-evaluate a boundary issue once restrictions were lifted but failed to follow up on this.
The landlord made clear in its responses that it had no jurisdiction over parking on the public highway and signposted the resident to the relevant third party agencies to report this to. However, as it agreed to talk to his neighbour about this issue, it was reasonable to expect the landlord to act upon its promise within a reasonable timeframe. Its failure to do so was unreasonable.
The landlord’s letter to the resident advising him that his serious ASB towards his neighbour constituted a breach to his tenancy and warning him that it would take legal action in response to such behaviour was appropriate in the circumstances. It acknowledged the resident’s mental health condition in its stage one response confirming that his tenancy was not at risk at that time. Its reiteration of the potential consequences of further ASB on his part, was appropriate. In view his references to taking his own life and self-harm, the landlord’s referral to a support service was reasonable.

Orders and recommendations

The Ombudsman orders that the landlord:
1. Apologise to the resident for failing to follow up on the action it promised to take in its final response.
2. Pay the resident compensation £150 comprising of:
  1. £100 for not revisiting the boundary issue as agreed.
  2. £50 for not following up on its promise to talk to his neighbour about parking.
3. Arrange with the resident to visit the property to investigate the boundary line and follow this up with written advice to the resident regarding any action it intends to take.
The Ombudsman recommends that the landlord:
1. Seek legal advice regarding the boundary issue if appropriate.