Torus62 Limited (202202495)

REPORT

COMPLAINT 202202495

Torus62 Limited

25 May 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

The complaint is about the landlord’s handling of the resident’s reports of anti-social behaviour (ASB).

Background

The resident holds an assured tenancy with the landlord of a two-bedroomed semi-detached house.
In making her complaint, the resident has been supported and represented by her son who does not reside with her. All references to ‘the resident’ in this report will also include the representative, where the landlord or this Service have liaised with him.
The landlord’s complaints policy defines a complaint as an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, affecting an individual resident or group of residents. A complaint at stage one of the process will be responded to within ten days. If this timescale is not possible, the landlord will extend this period in agreement with the complainant. The extension must not exceed another ten days without good reason. If a complainant escalates a complaint, the landlord will respond within 20 working days. The final stage response brings the complaint to a close for the landlord, although a complainant still has an opportunity to escalate the complaint to the Ombudsman.
The landlord’s discretionary compensation policy states compensation may be considered where there has been avoidable inconvenience, distress, detriment, or other unfair impact of a service failure. Factors taken into consideration include the landlord’s policies and service standards, and the duration of distress or inconvenience to the resident.
The landlord has a responsibility to respond to reports of ASB made by its tenants. The Housing Act 1996 requires housing associations to prepare a policy and procedure on ASB and gives housing associations powers to evict residents for ASB.
The ASB policy states the landlord will pay particular attention to protect those most vulnerable from the effects of anti-social behaviour and proactively tackle anti-social behaviour ‘hotspots’. It will also communicate effectively with partners by sharing intelligence and, where appropriate, use ‘joint working’ to tackle anti-social behaviour.
The ASB policy also aims to manage those who cause anti-social behaviour, using appropriate and proportionate intervention, rehabilitation, support and/or enforcement depending on the facts of the case. The aim is to prevent ASB, promote community protection, and deter and rehabilitate perpetrators. It also states it will help individuals and groups to reach a common understanding about what does and does not constitute ASB. This includes how minor lifestyle differences or everyday living noise may not constitute ASB.
The ASB policy provides examples of ASB. These include noise nuisance (for example loud parties, shouting, noise from TVs and music equipment); intimidation and harassment; and aggressive and threatening language and behaviour. It also provides information on what would not constitute ASB.
The website provides residents with its service standards in relation to ASB. This includes regular contact with a complainant at least every two weeks. A case will be closed in agreement with the complainant if no further incidents are reported or if no contact with the complainant can be made.
The landlord offers practical support to complainants and witnesses of ASB. This will include an action plan, ‘in house’ support and referrals to support agencies.
The landlord’s safeguarding adults policy defines safeguarding as protecting an adult’s right to live safely, free from abuse and neglect. It is about people and organisations working together to prevent and stop both the risks and experience of abuse or neglect, whilst at the same time making sure the adult’s wellbeing is promoted, including where appropriate having regard to their views, wishes and feelings and beliefs. It states all members of staff have responsibility for adherence to the policy and associated procedures. All staff are responsible for recognising and responding to allegations of abuse by ensuring that they discuss their concerns with their line manager, refer their concerns or assist in the referral and complete an incident report in accordance with policy.
The landlord’s exceptional lets policy states there are some circumstances where, through urgent or significant need, the landlord should consider an exceptional let. In the interests of fairness to all applicants, these circumstances are kept to a minimum, with each application for an exceptional let considered on its merits. It provides examples of the circumstances where an exceptional let will be considered. These include exceptional circumstances as authorised by the head of customer services or equivalent senior officer. An exceptional let enables a resident to move to an identified property/area which meets the resident’s needs set out in the application. Only one offer of accommodation is normally made.

Summary of events

The resident states that she has had problems of ASB from the neighbours for approximately four years. The main complaints are about alleged noise and harassment. A mediation agreement was made with the neighbour in February 2021. This Service has not seen a copy of the agreement. The resident made a report to the landlord on 18 August 2021, stating that the neighbour had breached the mediation agreement and she was suffering with bad anxiety.
The resident contacted the landlord again on 24 August 2021, requesting a call to discuss the recent incidents and to advise she was concerned about her safety. The landlord said the resident should contact the Police if she was concerned for her immediate safety.
The landlord contacted the resident on 13 September 2021 to advise it had been unable to contact the alleged perpetrator. The landlord said it had sent the neighbour a written reminder of the tenancy conditions.
A multi-agency meeting was held on 28 September 2021 with the landlord, police officers and the resident. The resident stated that in her opinion:
1. There had been failings by the landlord to protect her from the ASB she was experiencing.
2. The neighbour had a history of ASB that the landlord was aware of before allocating them the property next door.
3. She had been promised diaries and recording equipment but was never given access to these.
4. The landlord had sent a letter to the alleged perpetrator. The resident said she had previously told the landlord not to do this for fear of repercussions.
5. The ASB had resulted in the decline of her mental health and she was feeling suicidal.
6. She wanted to move out of the property but wanted compensation from the landlord for the trauma she had experienced and all the money she had spent on the property in the years she had been there.
At the meeting, the landlord said it followed its standard procedure and sent the neighbour a letter. The landlord said it was not aware that the resident had previously asked the landlord not to contact the neighbour. The landlord said a previous housing merger in 2019 had meant some records had been lost so it could not confirm what was known about the neighbour at the time of the allocation. The landlord agreed to support a move for the resident which would need to be approved by a director.
The resident contacted the landlord on 3 November 2021 to log incidents from the neighbour. She reported she could hear loud music and swearing emanating from the neighbour’s property between 8pm to 10pm on 31 October 2021. The resident also advised there was a large scratch on her car the following day and that she was concerned this was a reprisal attack from the neighbour. The resident requested the landlord logged this as evidence only and did not contact the neighbour.
The landlord’s director considered the case for the exceptional let on 30 November 2021 and requested the landlord’s handling of the ASB was logged as a complaint. The director stated that once investigations into the complaint were completed, the exceptional let would then be considered.
The landlord spoke to the resident on 17 December 2021 to advise that it was investigating the handling of ASB as a service complaint. The landlord explained that the exceptional let had not at that point been approved. The resident further explained the issues she had experienced over the last four years with the neighbours. The resident then went on to discuss an incident the previous Christmas when she said the noise was so bad that she left the house for the rest of the day. The resident reported that when she got out of her car she was subject to shouting and swearing. The resident said that mediation had gone well initially and had since broken down. She was under the impression the landlord would now take enforcement action against the neighbour. The resident explained that the Police had been involved.
Later that day, the landlord contacted the resident again to advise it had now agreed to offer her an exceptional let due to concerns she had raised about her deteriorating mental health. The landlord advised the resident she would receive one offer of accommodation, so it was important she clearly set out on a form if there were any areas she would not be willing to consider.
The landlord formally responded to the complaint on 23 December 2021. The landlord confirmed the outstanding concerns of the resident, and the outcomes sought including rehousing. The letter confirmed that the exceptional let had been agreed due to the ongoing issues and deterioration the resident reported in her mental health. It went on to explain that there would be one offer of accommodation. It asked the resident to report further incidents to the landlord and Police where necessary. Internal emails show the delay in responding to the formal complaint was due to the landlord awaiting confirmation on whether the exceptional let had been agreed.
The resident escalated her complaint on 6 January 2022. She was dissatisfied that a one-bedroom bungalow had been offered, when she was living in a two-bedroom house. The resident said that she had been promised a property on a ‘like for like’ basis and that she would receive compensation for moving under those circumstances. The resident wanted a guarantee from the landlord that it would seek powers to evict the neighbour.
The landlord spoke to the resident to discuss the exceptional let on 19 January 2022, and then sent its final complaint response on 8 February 2022. The landlord confirmed it had looked at the ASB the resident had reported from January 2020. It said that the resident reported noise nuisance, drug activity and verbal abuse. The landlord advised it had sent warning letters to the neighbour during this period. A referral to mediation was made, and then closed when issues quietened down. The landlord confirmed that it was working with the resident to gather evidence to investigate the ongoing issues. The landlord confirmed an offer of more suitable accommodation would be made to the resident.
During January and March 2022, there were several internal landlord emails about the exceptional let. It said that there had been discussions with the resident who had made it clear that she would not accept a one-bedroom property. The emails state the resident had then been offered a two-bedroom bungalow which she refused as the rent was much higher than her current property, it had a wet room rather than a bathroom and she did not need the extra support for which there was an additional charge. The landlord said in these emails that it would be difficult to find a two-bedroom house that matched the rent the resident was paying at her current property.

Events following the landlord’s final complaint response

The complaint records from 13 April 2022 indicate that the resident had been offered a two-bedroom house, which she initially accepted, but she then decided to stay where she was. The resident said she wanted the landlord to take action against the neighbour.
The landlord met with the resident on 18 May 2022 and advised her that it did not have sufficient evidence to proceed with enforcement action against the neighbour. The landlord said it would put the resident on the list for sound recording equipment to be installed in her home. It also said it would visit the neighbour the following week, following the resident’s concerns the neighbour was not living there, and her reports about the condition of the property.
The landlord contacted the Police to get information on what had been reported to them, and whether any action was being pursued by them. The Police provided reports detailing five incidents reported to them between 24 December 2020 and 17 May 2022. The records do not indicate whether the Police took any further action.
The landlord visited the neighbour on 24 May 2022. The landlord spoke to the neighbour and arranged for a skip to be delivered, to enable the garden to be cleared. The landlord did not mention the noise reports to the neighbour, at the request of the resident. The landlord visited the neighbour again the following week, to find the garden cleared and skip collected.
The resident contacted this Service on 24 May 2022 as she remained dissatisfied with the landlord’s action in relation to the ASB reported. The resident stated:
1. The ASB was ongoing and continued to impact her health and wellbeing.
2. The final complaint response was incorrect in its summary of events, and failed to take into account the mistakes, mishandling and negligence by the landlord.
3. The landlord had not provided noise recording equipment or diary sheets.
4. The landlord had not offered mental health support or signposted her to other services, or considered safeguarding.
5. The landlord had not conducted ‘in person’ visits.
6. She was not satisfied with the landlord’s level of communication.
7. The landlord did not carry out tenancy checks on neighbours with a known history of ASB.
On 7 June 2022, the resident confirmed she was keeping a diary which the landlord said it would collect at her request. Later that month, the landlord contacted the resident to arrange the installation of sound equipment at her property. The resident refused to have the equipment installed, and later confirmed to this Service that it was not practical for her to use as she would have had to get up in the middle of the night to turn it on.

Assessment and findings

Scope of the Investigation

The resident has raised concerns about the allocation of the neighbouring property, stating the landlord knew the applicant had a history of ASB. In accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints that fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Complaints about allocations decisions made by local authorities are considered by the Local Government and Social Care Ombudsman (LGSCO).
In this case, the landlord covers several geographical areas. The landlord’s website states that properties are allocated in line with the allocations policy for the local authority in that specific area, and therefore this part of the complaint falls within the jurisdiction of the LGSCO.
The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues as soon as possible and whilst evidence is available to reach an informed conclusion on the events which occurred. As the substantive issues become historical it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken to address those issues.
Therefore, any reference to historical issues prior to August 2021 in this report provides contextual background only in relation to the current complaint. This report will focus on assessing the landlord’s handling of the resident’s reports of ASB by her neighbour from August 2021 onwards when she reported that her neighbour had broken the mediation contract made six months earlier.

The landlord’s handling of the resident’s reports of ASB

The landlord was not able to contact the neighbour on the phone about the noise complaint from the resident in August 2021. It said it had written to the neighbour instead albeit this Service has not been provided with a copy of the letter. However, the landlord states in its procedures that it will interview an alleged perpetrator and then write to them afterwards. This makes an alleged perpetrator aware that certain behaviours, including excessive noise, are not acceptable and affecting neighbours. It gives reasonable warning that repeated behaviour could lead to further action and can be used as documentary evidence for legal action where required.
In this case, the resident said that it previously told the landlord not to contact the neighbour. The officer was not aware of this at the time, stating this was not included in the records. The landlord did not contact the neighbour again about the noise and alleged harassment at the resident’s request. This meant the landlord was not able to make the neighbour aware that their noise and actions were continuing to have a detrimental impact on the resident, nor could it address the behaviour of the neighbour.
The landlord later made a visit to the neighbour (in May 2022) following the resident advising it that the neighbour was not living there, and that the property was in poor condition. The landlord spoke to the neighbour at the property when it visited and appeared to be satisfied that she was living at the property. It also arranged for a skip to be delivered to enable the neighbour to clear the garden. Records show a follow up visit was made and the garden had been cleared and the skip removed. Again, it did not mention the noise complaints at the request of the resident. These steps were reasonable and demonstrate the landlord addressed with the neighbour the concerns raised by the resident.
The resident downloaded and used the noise monitoring app provided by the landlord, but the landlord was not able to obtain sufficient evidence from it to determine whether the noise was unreasonable or not. As there was no other independent evidence of the noise, such as noise abatement notices served by the Council’s environmental health department or complaints from other neighbours, it was reasonable for the landlord to advise the resident that it did not have sufficient evidence to take legal action against the neighbour. The landlord then offered to install noise monitoring equipment in the property when it became available. However, the resident subsequently refused to have this installed, which limited the landlord’s ability to continue with its investigations into the noise reported.
The landlord advised the resident to contact the Police if she was concerned about her immediate safety following the ASB report made in August 2021, and to report further incidents to the landlord and police in its complaint response. This ensures the appropriate organisation responds to incidents which was reasonable.
The landlord contacted the Police to establish what had been reported to them and whether they were taking any action against the neighbour. The Police were also involved in the multi-agency meeting. This demonstrates the landlord was taking steps to gather evidence and work with partners to share intelligence and reduce ASB, in accordance with its ASB policy.
While the resident has advised this Service she is dissatisfied that the landlord did not offer support, the practical help it offered and communication it had with the resident throughout the ASB and complaint is indicative of its attempts to support her during the process. The evidence provided does not show it offered to make a referral for independent practical and emotional support throughout the ASB complaint or moving process, but the Ombudsman has seen no evidence that the resident indicated additional support was needed in her correspondence with the landlord.
The landlord states in its correspondence with this Service that the resident’s mental health was being managed by her GP. The resident was supported by her family in making the ASB complaint, and in communications with the landlord. The landlord previously referred the resident and her neighbour to an independent mediation service. The landlord also considered the concerns the resident raised about her mental health – indeed, it assessed this as being the main factor when agreeing to proceed with an exceptional let. These were reasonable steps from the landlord to provide the resident with practical solutions and support to improve her situation as the case progressed.
The landlord has stated in its correspondence with the Ombudsman that its officers are trained in safeguarding and it would have made a safeguarding referral if it felt this were warranted, but was not considered necessary in this case. Based on the evidence seen by the Ombudsman, including the details contained within the correspondence the resident had with the landlord and this Service and the landlord’s safeguarding policy, this was reasonable.
The landlord has provided the ASB complaint records to this Service. These records show the level of contact the landlord had with the resident regarding the ASB she reported. It shows the landlord’s failed attempts to contact the resident as well as contemporaneous notes of its conversations with the resident over the phone. It also indicates it was regularly reviewing the ASB case between contact with the resident at either fortnightly or monthly intervals and contacted the resident when it was able to provide an update on the case. This level of contact was reasonable and demonstrated that the landlord retained communications with the resident.
The resident has said the landlord did not conduct ‘in person’ visits. The landlord held two meetings with the resident and offered to collect diary sheets from the her. The landlord visited the neighbour following the resident’s complaint about the garden and concern the neighbour was not living there, then undertook a follow up visit. The landlord has confirmed it has not received complaints from other residents about the neighbour. The events the resident reported were sporadic and she asked the landlord not to raise her complaint with the neighbour. The landlord therefore took a proportionate approach in its communications with the resident and neighbour in the circumstances.
There was a delay of approximately two and a half months (September to December 2021) between the meeting where the officers of the landlord agreed to support an exceptional let and it being agreed. Although this was a delay, there was only one incident of noise reported by the resident during that period, indicating the ASB did not escalate significantly while the resident waited for a positive outcome to her request to move.
During this period, the landlord started a formal complaint investigation after it became clear the resident was dissatisfied with its handling of her reports of ASB. The landlord contacted the resident to advise it had started a complaint investigation and provided updates to the resident while it was investigating the complaint. During this time, it also contacted the resident about the outcome of the exceptional let request. It was appropriate that the landlord provided its stage one response once investigations into the ASB had been completed and following discussions internally and with the resident about the exceptional let.
The landlord has provided its policy on exceptional lets. It is reasonable that a landlord has an internal system in place to determine whether an exceptional let or managed move should be considered. In this case, an officer completed a report about the ongoing reports of ASB from the resident and passed this on to the director for consideration. It was fair that at that point the landlord looked at what actions it had taken in response to the ASB and whether there was anything else it could do to assist the resident before it considered whether an exceptional let was appropriate.
Further information was then provided about the case, including information about the resident’s welfare which was the main factor the landlord took into consideration when it made its decision. The application was considered on its own merits and considered exceptional by the director, which reflects the requirements set out in its policy. This considered and reasonable approach meant the landlord carefully balanced the needs of the resident against other households waiting for accommodation.
The resident was advised separately in a phone call from the landlord that she would receive one offer of accommodation only and this would be for a one-bedroom property. The resident was dissatisfied with this, insisting she had been advised by the landlord that she would be offered a property on a ’like for like’ basis. There are no records provided to this Service to indicate the landlord said this during its conversations or written communication with the resident. The policy states that an exceptional let will consider the applicant’s needs and will usually be for one offer of accommodation only. It would have been good practice for the landlord to provide further details of its exceptional let policy to better manage the expectations of the resident during the process.
Nevertheless, the landlord subsequently offered the resident a two-bedroom bungalow which she said was too expensive to rent, and then a two-bedroom house, which she initially accepted. These steps exceeded what the landlord states it would typically do under its policy. This demonstrates that the landlord was pro-active and used its discretion to find a suitable property that the resident might be satisfied with and to provide a long-term solution for the ongoing situation.
This Service has not seen any evidence to confirm that the landlord had said it would offer compensation to the resident due to the ASB experienced, or when the exceptional let was agreed. The compensation policy only applies where there has been a service failure by the landlord. The landlord does not state that it will offer compensation, where it considers an exceptional let is appropriate, in either its compensation or exceptional let policy.
Although this Service recognises the impact the situation had on the resident, the landlord took appropriate steps in response to the ASB and complaint. Therefore, it was not unreasonable that the landlord did not offer the resident compensation. A statutory home loss payment is made where a resident is permanently displaced from their home as the property requires major improvement, repair or demolition. It is therefore not applicable in this case.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been no maladministration by the landlord in its handling of the resident’s reports of ASB.

Reasons

The landlord investigated and used the tools available to try and reduce the ASB the resident said she was experiencing. The landlord previously arranged mediation, asked the resident to use the sound app, asked the resident to complete incident diaries and liaised with the Police to gather evidence. These actions were all reasonable, proportionate and appropriate steps to take in relation to the ASB reported.
The landlord did not raise the ongoing complaints with the alleged perpetrator at the request of the resident. The landlord explained to the resident that it did not have enough evidence to start possession proceedings against the neighbour. It then offered to install sound equipment to gather further evidence which the resident declined.
The landlord demonstrated that it took the resident’s welfare into consideration when it made arrangements for the resident a move to another property through an exceptional let. It also considered the suitability of the property offered to the resident.

Recommendations

The landlord should contact the resident to identify whether she would benefit from ‘in-house’ support to offer practical help for reporting ASB, or to make a referral to specialist support for her wellbeing.
The landlord should reply to this Service with its intentions in regard to this recommendation within four weeks of this report.