Optivo (202014937)

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REPORT

COMPLAINT 202014937

Optivo

30 November 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

  1. The complaint is about the landlord’s response to the resident’s reports that his vehicle was removed from outside his property.

Background and summary of events

Background

  1. The resident has occupied the property under an assured tenancy agreement with the landlord, since 2010. The property is a studio flat.
  2. In relation to parking, the resident’s lease states at clause 85 that:
    1. You must make sure that other members of your household or visitors only park vehicles in the parking areas. You must not park where vehicles could block emergency access or exit points, or where they could cause inconvenience, nuisance or potential danger.
  3. Under clause 88 of the lease the resident also agrees ‘not to leave any motor vehicle untaxed or in an unroadworthy condition in any area we own.’ If the resident does so, the lease states, ‘We may remove these vehicles and charge you the reasonable cost’.
  4. Under the landlord’s Abandoned Vehicles Procedure, an abandoned vehicle is defined as including a vehicle, ‘that is not taxed or has a SORN’, and/or ‘doesn’t have an MOT’, and/or ‘has been stationary for a significant amount of time’.
  5. The Abandoned Vehicles Procedure states that once a vehicle has been identified as appearing to be abandoned on its land, it ‘checks the vehicle is taxed and has a valid MOT’. The landlord may use its discretion to decide whether an abandoned vehicle poses a health and safety risk:
    1.  If the vehicle does not pose a health and safety risk, but the landlord wants it removed, it will attach a ‘No Parking Warning Notice’, requesting removal.
    2. If the landlord decides that the vehicle poses a health and safety risk, which includes attracting crime, being in a state of disrepair, or causing a hazard to others, it may issue a 14 day TORT notice. The vehicle will be removed on the expiration of the notice.
    3. If the owner of the vehicle is found to be a resident, the landlord will ‘check the occupancy agreement and take appropriate action based on the terms of the agreement’.

Summary of Events

  1. On 11 December 2019, the landlord issued a notice under section 12 of the Torts (Interference with Goods) Act 1977 (TORT notice) to the resident in respect of 2 vehicles parked outside his property. The TORT notices were left on the windshields of the vehicles, giving 28 days’ notice before removal. A contact telephone number was provided.
  2. The resident states that he telephoned the landlord on 12 December 2019 to discuss the notice and was advised to log into his account and raise a complaint, which he states he did. The resident noted that a TORT notice had been placed on the window of his vehicles, despite the vehicles being ‘parked correctly in a space’, not blocking other cars and not on his front garden or a kerb. The resident confirmed that the vehicle was untaxed but stated that it had been registered as off road (SORN) with the DVLA. The resident states that he then made several attempts to call the landlord again but he was unable to get through.
  3. On 27 December 2019, the resident submitted a query to the landlord, which the landlord acknowledged on 30 December 2019. The landlord confirmed that the query had been forwarded to its Estates Team, who would respond by 5pm on 7 January 2020.
  4. The landlord’s internal records from 30 December 2020 note that its enquiries showed that both vehicles were SORN but their MOTs had expired. It noted that as the notices were issued on 11 December 2019, there was adequate time for the resident to resolve the issue before the vehicles were removed.
  5. The landlord attempted to contact the resident by telephone on 30 December 2019 to discuss his query but the resident did not answer and no voicemail facility was available. The landlord then sent an email to the resident on 30 December 2019, requesting further details of the vehicles so that it could look into the resident’s query.
  6. The TORT notice expired on 8 January 2020 and the landlord sent a removal request to the relevant team on 9 January 2020, which it states was in line with its abandoned vehicles policy. Both vehicles were removed by the landlord’s contractor on 10 January 2020.
  7. The resident contacted the landlord by telephone on 13 January 2020, stating that he was unhappy that the vehicles had been removed. The landlord informed the resident that vehicles must be taxed and MOT’d to be parked on its land. The resident stated that he had not been made aware of this. The landlord advised that this would be a condition of his tenancy agreement.
  8. The resident made a formal complaint to the landlord on 14 January 2020, which was logged and acknowledged on 16 January 2020. He complained that the vehicles had been removed and asked that they be returned immediately, with all of their contents. He also stated that he wanted, ‘a full detailed investigation into what went wrong and who is responsible for this action or decision despite [his] efforts calls, email and complaint’. The resident stated that ‘despite following the recommendations and instructions which were given by [the landlord’s] staff [his] cars were still taken away’. The resident stated that he needed his vehicles because of problems with his legs and hips, which he had informed the landlord about in his communications.
  9. On 19 January 2020 the resident emailed the landlord requesting confirmation of its contractor’s details, as he had been asked to provide ID in relation to recovery of the vehicles. The landlord confirmed on 23 January 2020 that the contractor worked for its Housing Management team.
  10. A case conference took place on 22 January 2020 and a stage 1 response was sent to the resident on 29 January 2020. The response confirmed that the landlord had ‘followed the correct process in issuing TORT notices & allowing adequate time to update the tax & MOT on the vehicles’.
  11. The resident emailed the landlord on 29 January 2020, asking it to contact its contractor to ask them to return his vehicles.
  12. The resident requested the review of his complaint on 10 February 2020. The resident stated that he had made 2 ‘reasonable requests’ that the landlord not remove his vehicles, which it did not honour. The resident stated that he had not received any email or notification following his contact with the landlord and so he did not have the relevant information or time to act. He stated that there were other ways the landlord could have contacted him to avoid the situation. The resident asked the landlord to explain why the notices had been issued.
  13. The landlord provided a response on 27 February 2020, confirming that it would not be escalating the resident’s complaint to the review stage. The landlord confirmed it was unable to agree to the return of the resident’s vehicles, as it had followed its abandoned vehicles policy correctly. It explained that it did not allow SORN vehicles to be parked on its land and the TORT notices were issued in respect of the vehicles, as they had ‘no valid Tax & MOT’. The landlord repeated that it had made various attempts to contact the resident regarding the vehicles prior to removal and it had received no further correspondence from him. The complaint would now be closed.
  14. The landlord received an enquiry from the resident’s MP on 24 March 2020. It provided a response on 2 April 2020. The landlord attached a copy of its formal complaint response to the resident and confirmed that both vehicles were SORN and without a valid MOT. It stated that when the resident had contacted it following issue of the notices, he had been advised why they were issued and a call back had been scheduled with the Estates Team to discuss. The vehicles had been removed and would be disposed of in line with the TORT process and the landlord’s abandoned vehicle policy.
  15. A further enquiry was received from the resident’s MP on 11 September 2020 and a response was provided on 22 September 2020. The response confirmed that the notices had been placed on the resident’s vehicles in accordance with its policies. Following contact from the resident the landlord had sent an email on 30 December 2019 requesting additional information, however, it received no further communication from the resident until the vehicles had been removed. The landlord does not allow vehicles to be parked on its land with a SORN, expired tax, or expired MOT. The landlord highlighted that the parking area was shared, and it did not allow the parking of abandoned or untaxed vehicles, in accordance with its policy.
  16. The MP sent a further enquiry on 26 October 2020, as it had been unable to open the landlord’s response of 22 September 2020. This issue was then resolved.
  17. A further enquiry was raised by the resident’s MP on 1 December 2020, stating that the resident remained dissatisfied with how the matter was handled. The MP requested a final response so that the resident could raise his complaint with this Service. The landlord provided a response on 16 December 2020. It attached is previous response of 22 September 2020 and referred the resident to this Service.
  18. The resident then referred his complaint to this Service and confirmed that he remained dissatisfied with the landlord’s response because:
    1. He was not informed about the landlord’s abandoned cars policy and has not been provided with a copy of the policy throughout the complaints process.
    2. A reasonable request was made to the landlord not to remove the vehicles due to the resident’s medical condition. The resident states that the landlord’s actions have contributed to his disability.
    3. He alleges that he has a right to park on his driveway and removing the vehicles was illegal.
    4. He first made contact with the landlord on 12 December 2019 and sent letters to senior staff at the landlord requesting the return of his vehicles. He did not receive the email the landlord alleges it sent on 30 December 2019 requesting further information.
    5. He feels he has been bullied and treated unfairly by the landlord.

Assessment and findings

  1. The landlord has provided this Service with a copy of its Abandoned Vehicles Procedure and a copy of the resident’s tenancy agreement. The relevant sections of these documents are set out at paragraphs 5 to 8 above.
  2. By signing the tenancy agreement the resident agreed not to park ‘unroadworthy’ vehicles, which would include vehicles without a valid MOT, on any land owned by the landlord. The tenancy agreement also states that vehicles parked in breach of the terms of the tenancy agreement may be removed. The landlord’s decision to issue a TORT notice in relation to the resident’s vehicles was reasonable and in line with its policies and procedures, as its investigations had revealed that the MOTs for both vehicles had expired.
  3. The landlord’s policy states that where it believes a vehicle has been abandoned and it is found to present a health and safety issue, the landlord may issue a TORT notice requiring removal of the vehicle within 14 days. The policy gives the landlord wide discretion to determine whether a vehicle presents a risk, including where it is decided that it might attract crime. The Ombudsman would expect this assessment to be recorded on the landlord’s systems and it is noted that the landlord has not provided details of its assessment of whether the resident’s vehicles were a health and safety concern. The Ombudsman does not, however, consider that this amounts to service failure, due to the wide discretion held by the landlord under its policies to determine whether a vehicle should be removed, and as a result of the provisions of the tenancy agreement.
  4. It is not clear from the evidence why, in the circumstances, the landlord served a 28 day TORT notice, instead of the 14 day notice described in its policy. This did, however, allow the resident an extended period of time to obtain a valid MOT for the vehicles, or to provide evidence to the landlord to demonstrate that the vehicles should not be removed. According to the information provided to this Service, no evidence was submitted by the resident prior to the removal of the vehicles. It was therefore reasonable for the landlord to follow through with its processes and to arrange for the vehicles to be removed.
  5. Following contact from the resident in December 2019, the landlord spoke to him on 12 December 2019 and forwarded his concerns to the relevant team. It then attempted to contact him by phone on 30 December 2019 and emailed him to request further information about the vehicles to allow it to look into the matter. This is evidenced by its records. The landlord’s actions were reasonable and there is no evidence that the resident responded to this request.
  6. The resident states that the landlord could have made more effort to contact him and that it was unreasonable for it to remove the vehicles as he had made the landlord aware of a health condition affecting his legs and hips, which meant that he required use of the vehicles. There is an undated note on the landlord’s systems containing an enquiry from the resident prior to the vehicles’ removal, which states, ‘can you ensure nobody touch or moves my car I have got problem with my legs at the moment (legs and hip). Please don’t touch my car I am going through treatment’.
  7. The Ombudsman is sympathetic to the resident’s health issues, and it is acknowledged that there may be circumstances where it is reasonable for the landlord to agree an extension to allow time for the vehicle to be made roadworthy or removed to another location. However, this must be balanced with the need to ensure that action is taken in relation to abandoned vehicles within a reasonable amount of time. In the circumstances, the resident had adequate time to provide the landlord with evidence of his medical conditions. In the absence of this evidence, it was reasonable for the landlord to instruct its contractor to remove the vehicles, in accordance with its policies.
  8. In response to the resident’s complaint the landlord investigated his concerns, met to discuss the case, and provided prompt responses at both stages of its complaints process. It then sent 3 further responses to the resident’s MP, clarifying its position. The Ombudsman is satisfied that the landlord’s position, as set out its response to the resident’s MP of 22 September 2020, was reasonable. The Ombudsman can find no evidence of bullying or unfair treatment by the landlord and its records show that it followed its policies and procedures, both with regards to the removal of the vehicles and its response to the resident’s formal complaint.
  9. The Ombudsman does not have the authority to determine whether the vehicles were lawfully removed, as this would be a matter for the courts. Should the resident wish to pursue his claim that the landlord has acted unlawfully, he is advised to seek independent legal advice on the prospect of issuing legal proceedings.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports that his vehicle had been removed from outside his property.

Reasons

  1. The landlord’s has explained that a TORT notice was issued in respect of the resident’s vehicles, as they were parked in contravention of the terms of the lease, due to neither vehicle having a valid MOT. The vehicles were then removed following service of a TORT notice with an expiration date of 28 days, which, on the basis of the evidence provided, was reasonable in the circumstances. The resident had adequate opportunity to submit evidence to the landlord as to why the vehicles should not be removed during the 28 day period but he did not do so. The resident did not respond to the landlord’s email of 30 December 2019, inviting him to provide further details. The landlord then responded to the resident’s complaint in a timely manner, clearly setting out its position.

Recommendations

  1. It is recommended that the landlord review its abandoned vehicles policies and procedures and consider updating these to reflect circumstances in which a 28 day TORT notice will be served. It may also wish to make clear its policy with regard to SORN vehicles, and whether it will always remove vehicles that are parked in breach of a resident’s lease but that do not pose a health and safety risk.