Notting Hill Genesis (202104974)

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REPORT

COMPLAINT 202104974

Notting Hill Genesis

29 November 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 the landlord’s:
1. response to the resident’s complaint about the level of and an increase to their service charges.
2. handling of queries regarding the rent account.
3. request for a breakdown of the service charge.
4. complaint handling.

Jurisdiction

On 9 December 2021, the resident asked the landlord why her rent payment breakdown showed an additional £10 payment from the previous year, she said she had never been in arrears with her rent.
On 14 December 2021, the landlord explained the additional £10 was from the PYB (previous year balance) for 1 April 2019 – 31 March 2020. It said residents had underpaid the service charge (SC) for last financial year as it was estimated and this figure was carried over into the next financial year as one lump sum. It said this amount was nothing to do with her account being in arrears.
On 19 February 2021, the landlord wrote to the resident advising of the change in her rent for 2021/22 effective from 5 April 2021. It advised her new total weekly rent would be £243.85 which comprised of a £86.35 fixed SC.
In her 15 and 29 March 2021 communications, the resident complained to the landlord about the increase in the SC for 2021/22 (£80.39 to £86.35) and also about the increase in SCs from when she moved into the property in 2012. She said at that time she was paying a £20.11 SC and this had now gone up “ridiculously”. The resident was also unhappy with the explanation provided regarding why the £10 PYB had been imposed on her.
On 3 May 2021, the resident advised the landlord that she had made an appeal to a tribunal about the level of rent and she was only paying the undisputed amount. In its response of 5 May 2021 the landlord confirmed the resident had a right of appeal, referring to the First Tier Tribunal (FTT).
What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42(e) of the Scheme states that this service will not investigate complaints that concern the level of rent or SCs. After carefully considering all the evidence, in accordance with paragraph 42(e) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. the landlord’s response to the resident’s complaint about an increase in their service charges.
It is not the role of the Ombudsman to consider complaints about the level of the rent or SC including any yearly increases or PYBs. These disputes are matters for a more appropriate body to consider such as the FTT, as it is within their remit to consider some disputes about rent and SC increases. For this reason, this aspect of the resident’s complaint is outside of the Ombudsman’s jurisdiction.

Background and summary of events

The resident is an assured tenant. The property is a 3 bedroom flat in a block. The tenancy agreement commenced on 30 April 2012.
On 9 December 2020, the resident contacted the landlord and asked why her online rent account showed two different accounts; a rent account and a sundry account. She asked what was she paying into each account for. She said she was very confused.
The landlord replied on 10 December 2020 advising it would contact its rents team regarding her query as they could provide clarity on rental breakdowns. The resident sent a further email to the landlord asking what “full balance” and “weekly balance” meant.
On 14 December 2020, the landlord stated that:
1. Her full balance referred to the current balance on her rent account, which to date was £78.88. Her weekly rent was £245.56. If £78.88 is deducted from £245.56, £166.68 was left, which is what could be viewed in her account portal. The £166.68 referred to the current weekly breakdown (minus the outstanding £78.88).
2. It said there were not two different accounts, she only paid her weekly rent amount of £245.56. The sundry account was managed by the SC team and used to track one-off costs billed to the tenant that are not rent or SC -related usually repairs that the tenant is responsible for, or replacement of lost keys or key-fobs etc.
On 14 December 2020, the resident asked where the balances of £78.88 and £93.70 had come from.
On 17 December 2020, the landlord advised it had received a response from its compliance team in relation to her SC queries which confirmed:
1. The full balance was the tenant’s current total arrears (or credit if a negative figure) and the weekly charge is what it debited the tenant’s account on a weekly basis for rent and SC.
2. It could not see where the £93.70 on the sundry account originated from but it looked like “it was from a long time ago”.
The landlord attached the Notification of Rent letter which it said she would have received in April 2020. In regards to her enquiry as to why she was paying more SCs than other residents, page 7 of the Notification of Rent letter explained that rent was set depending on the type of tenancy/lease and the legislation or regulations that were in effect when it started. It said the SC estimated costs for 2020/21 were on page 9 and gave a break down for each service provided.
In a response sent to the landlord on the same date the resident asked for further clarification about the rent account. She also asked for a breakdown of the SC and asked to speak to someone from compliance team directly.
On 5 March 2021, the resident emailed her HO referring to her previous communication regarding queries and issues with the clarity of the rent and SC account. She said these had still not been resolved.
On 15 March 2021, the landlord’s HO referenced her previous request for a breakdown of her SC and advised her to look at the email they had sent her as it gave “a clear breakdown of the SCs”.
In her 15 March 2021 response the resident advised that the letter only gave a breakdown of what her rent was – she queried what each account was for and what charges were showing. She was also unhappy with the SC breakdown as it did not show exactly where costs were incurring. She was unhappy about the level of service provided. The resident referenced her previous request to speak to someone in the compliance team directly and said if its compliance team would not liaise with her directly, please inform her so she could escalate the matter.
On 29 March 2021, the resident emailed her HO advising that she had not received any response to her last communication. She reiterated that she wanted to speak to someone in the compliance team directly and advised she had been making this request for some time.
The landlord’s HO replied on the same date advising the compliance team was not taking any calls from residents. It said that the email that they had sent her clearly provided detailed information on the full rental breakdown. It had also provided a breakdown of the SC.
In her subsequent reply, the resident reiterated her request to speak to the compliance team. She said she also queried what the different accounts on her rent account were. She was not satisfied with SC breakdown as it was a “general” breakdown.
On 31 March 2021 the resident asked to escalate matter “to the next stage”.
On 13 April 2021, the HO asked the resident to “pinpoint specifically” what exactly she sought further clarification on in terms of her rent and SC complaint. It reiterated the explanations given in its 17 December 2020 including regarding the two different accounts in her rent account and what is meant by full balance and weekly balance.
It also said the matter could not be escalated to stage two as it was outside of the timeframe to escalate it to a Stage 2 (within 20 days of the Stage 1).
On 16 April 2021, the resident said the balance on the sundry account could not be explained to her and so she asked for the compliance team to contact her directly so she could ask them but she did not hear back from them.
The resident also explained that the new SC notice (2021/22) gave an overall cost for each section however she would like a more specific breakdown of the expenditure for each category. She also queried why SCs varied for different tenants and disputed its previous response that this was due to differences in tenancies as this was the case for everyone.
On 16 April 2021, the landlord’s HO provided a further response reiterating that it was unable to provide a breakdown of the SC for her block as it was not privy to this information. As previously stated, it depended upon the type of agreement and the legislation that was in place at the time.
On 3 May 2021, the resident contacted the new HO advising she was waiting for a response to her complaint that she asked to be escalated to the complaint team.
On 7 and 30 May 2021, the resident contacted the HO chasing up a response to her complaint.
On 23 June 2021, the landlord provided a stage one response which acknowledged the resident’s complaint concerned her rent account – this showed multiple accounts and when she queried this the landlord’s rents team and housing officer had both failed to explain this. The delay was “holding her back” and “prolonging her anxiety and worries”.
The landlord advised it was sorry to hear she was unhappy with the information that had been provided. It said SCs were mandatory charges which were paid for communal services provided. It said it had included an explanation that it received from its SC team which provided a clear breakdown on how her SC had been calculated. It said it was under the impression that the resident had either spoken to or received communications from a member of the SC team in regards to what SCs actually were.
It said residents’ charges vary as every building’s cost breakdown is different with the possibility of those resident’s rent being social rent whereas hers was affordable rent. It said it hoped this answered her questions about the SCs and the reasons why it charge them. She had requested to speak to someone from the SCs team to explain the charge more accurately. This request was sent to the SC team who had provided a clear and detailed explanation of the SCs.
It understood her frustration but it appeared it had covered “every possible explanation” in regard to the costs that she was paying. It would still see if a Manager to call her to give further information. This had concluded stage one of its complaint process.
On 3 July 2021, the resident wrote to the landlord thanking it for its stage one response after “withholding it for so long”. However, she said she was unhappy with the landlord’s stage one response as:
1. It had not adequately addressed her query about why her account showed multiple accounts with none showing what she was supposed to pay in rent. In its response, it had only provided her with another copy of the Rent letter (this she already had). There was no explanation which justified the multiple rent accounts.
2. She disputed its suggestion that she had spoken to someone in the SC team. She had been told they do not speak directly to resident. Regarding the comments that the SC team had provided a detailed explanation, she had not received this as “another copy” of the letter did not constitute an explanation.
3. In its response to her query about why different tenants pay different charges to herself, it had said she was on affordable rent whilst other tenants pay social rent. This was incorrect as she signed up to social rent at the start of the tenancy in 2012.
The resident asked the landlord to escalate her complaint to stage two of its complaints process.
A Manager called the resident on 5 August 2021 to discuss the complaint. This service has not been provided with any nots of the call.
On 12 August 2021, landlord’s Manager provided a stage two complaint response. They referred to the call with the resident 5 August 2021 during which it said she confirmed the reasons for her escalation request were:
1. For clarity on the amount of SCs she was paying and proof that these were correct.
2. For clarity on whether her rent was affordable or social rent.
3. Regarding the lack of communication and answers from its staff within the landlord.
Regarding SCs, it said during their call she had expressed concern around specific SC such as window cleaning charges and Managing agent fees and wanted to see proof that these costs were a true reflection on what she was paying each week. It said it was sorry this was not addressed at stage one. It had agreed during the call that it would investigate these charges and discuss her query with its rent and services team which it had done.
It advised that the rents and SC team had confirmed that these invoices could be provided by its Finance team and that they would have 30 days to provide this to her. It had also asked the Estates team to provide a timetable for when window cleaning and general cleaning is conducted in her building because she expressed concerns about the standard. It also invited her to join its next Estate Inspection conducted by her HO where the cleaning standards of the building were reviewed. It would ask her HO to send an invite, should she wish to join.
Regarding the issue of whether she paid ‘social’ or ‘affordable’ rent, it said it could confirm she was being charged social rent and it apologised for the stage one complaint stating she paid ‘affordable’ rent. It had discussed this with her HO and he now understood the difference between the two charges. Her rent type status was also listed in her annual rent and SCs letters and she had attached the latest copy to this complaint response for reference.
Regarding the standard of communications from staff, on a whole it agreed that there had been a lack of understanding regarding her complaint and she wanted to apologise again for not addressing these at stage one. Where it was unsure of queries or did not completely understand queries from residents, it said it must do better in its communication and utilise different communication methods available, such as emailing, calling and writing. In this instance, discussing the complaint with her over the phone helped it understand the nature of her concerns.
The action plan as a result of her complaint was:
1. To provide her with invoices relating to her SCs within 30 days of the date of this letter.
2. To provide her with the dates of when window cleaning and general cleaning on the building is being carried out.
3. Send her an invite for its next Estate Inspection.
4. Work harder to improve its communication and ensure it answered queries accurately by using different methods of communication such as calling, before submitting a complaint response.
In conclusion, the landlord stated that as an organisation it must work harder to ensure effective communication with its residents so it could understand queries and concerns quicker and better. It apologised for the distress this had caused her and it would provide feedback to its colleagues on how it could improve.
The resident contacted the Ombudsman on 18 September 2021 to advise that despite the landlord promising in its final response to provide her with invoices relating to her SCs, it had not done so. Additionally she had not had any communications from her HO to arrange any meetings. She also reiterated her query about why her rent account showed two different accounts and said the final response did not address this query.
In response to the Ombudsman’s further information request, the landlord advised us that the SC invoices for 2019/20 and 2020/21 were posted to the resident on 16 August 2022 and re-sent on 16 November 2022 after it was informed these were not received on this first occasion. Regarding inviting the resident to attend the next estate inspection and providing her with details of the window cleaning and general cleaning schedules, it provided us with details of the window cleaning schedule at her Estate.

Policies and Procedures

The landlord’s SC policy states it is committed to providing clear and accurate SC budgets for residents, with commentary where applicable. It will provide details on how the charges were calculated and what services they represent. If a resident requires SC documents or related information in an alternative format, this can be requested via their local officer.
Its policy also says that in accordance with the 1985 Act, it will send residents who pay a variable SCs a summary of accounts showing expenditure for the previous financial year (final/year-end account) reconciled with the estimated budget that shows where there is a surplus or deficit balance. It will be transparent in providing these details and addressing any queries about SCs.
The landlord operates a two stage complaint process and its complaints policy requires at stage one, that the landlord acknowledge a complaint within 2 working days and provide a formal written response within 10 working days. At stage two the landlord is required to provide a final response within 20 working days.

Assessment and findings

Landlord’s handling of queries about the rent account

The resident first raised a query with the landlord regarding why her online rent account showed “two different accounts – a rent and a sundry account”, on 9 December 2020. She followed this up the next day with a query about what “full balance” and “weekly balance” meant.
The landlord’s HO advised in their 14 December 2020 response that only the rent account was applicable to the resident as the sundry account was managed by its SC team and used to track one-off costs billed to the tenant. It also explained that the weekly balance was her weekly rent amount and the full balance showed the current balance on her rent account, including any arrears or credits.
The landlord’s explanations were sufficiently clear and appropriately addressed the resident’s queries. However, when the resident then asked about the origin of the credit balance shown in the sundry account (£93.70), the landlord advised the response received from its compliance team was that it not know but that it looked like it was from “a long time ago”. The resident advised the landlord on at least two occasions in March and April 2021 that she was unhappy with the lack of explanation provided in regards to this balance and requested to speak to someone from its compliance team about this issue. The landlord did not provide any further clarification around the credit balance and advised its compliance team were not available to talk to the resident.
Whilst the landlord may not have been able to fully explain the origin of the balance, it is reasonable to expect the landlord to have done more to show the resident that it was taking sufficient steps to resolve her query for example by allowing the resident to speak to a member of the team responsible for the managing this account or by confirming whether or not the credit balance was refundable to her.
Further, in response to her concern raised that residents in her block paid different SCs in its stage one response, the landlord incorrectly stated that the resident paid “affordable” rent as oppose to “social” rent when explaining that SCs differ depending on tenancy types. This would have caused confusion however after the resident disputed this point, in its stage two response, the landlord clarified she paid “social” rent and apologised for the error.
Therefore, the landlord provided reasonable responses to the majority of her queries about the different accounts and balances showing within her online rent account. It also acknowledged and apologised for not recognising she paid social rent. However, it could have taken further steps to explain the credit balance showing in the sundry account but, on balance, as this constitutes a minor failing, it is not sufficient to establish any failure in the service provided by the landlord. In the circumstances however, it is reasonable to include a recommendation below for the landlord to check with the resident if she still needs further clarification regarding the balances in the rent/sundry account and provide this if she does.

Landlord’s handling of request for breakdown of service charges

The resident initially requested a breakdown of the SCs on 17 December 2020 and reiterated this requested on multiple occasion between 5 March 2021 up to the date of the landlord’s final response. In response, the landlord repeatedly referred her to the ‘Notification of Rent letter’ sent annually which it said gave a clear breakdown of the (estimated) SCs. However, the resident advised the landlord from March 2021 that: she was unhappy with the breakdown provided in this letter as it was “too general”; that she wanted a specific breakdown for each category and; that she wanted to know exactly where costs were incurring. Further during a call with a Manager on 5 August 2021, the resident mentioned that in particular she was interested in costs incurred for window cleaning/cleaning and Managing agent fees.
Having reviewed the referenced ‘Notification of Rent’ letter sent to the resident, this gives a breakdown of the resident’s (estimated) monthly SC, enabling the resident to understand the cost of each service/category comprising the total monthly charge. As such, it was reasonable in the first instance for the landlord to refer the resident to its letter (the landlord sent her a further copy).
However, in accordance with its the policy, the landlord is expected to provide residents SC documents and information on how charges were calculated where requested. In its final response the landlord advised the resident that its Finance team would provide SC invoices of expenditure to her within 30 days. As this would allow the resident to inspect in more detail costs given in the summary of accounts (which show expenditure for the previous financial year), this action was appropriate. Nonetheless, as the resident had been requesting further details of expenditure since March 2021, it is reasonable to expect the landlord to have offered to provide this information earlier than it did as this was five months after her initial request.
Based on evidence of the parties’ communications post final response, it is acknowledged that the resident contacted the landlord 30 days after the date of the final response to advise she had not received the invoices which had been promised. She also said she had not been contacted by the landlord about attending the next Estate inspection or in relation to window cleaning and general cleaning, both of which were promised in the final response.
In response to the Ombudsman’s further information request, the landlord advised us that the SC invoices for 2019/20 and 2020/21 were posted to the resident on 16 August 2022 and re-sent on 16 November 2022 after it was informed these were not received on this first occasion. This indicates a delay of approximately 11 months after the date promised by the landlord in its final response. The landlord has not adequately explained the delay in providing the resident with the SC invoices.
Regarding the additional action promised in its final response for it to contact the resident about attending the next Estate inspection and provide details of when cleaning and window cleaning took place at her block, it is evident that the landlord did not follow through with these promises.
Therefore, the landlord’s delay in offering and then providing the SC invoices to the resident after it agreed to do so in the final response and its failure to do what it said it would do in relation to inviting her to the Estate inspection and providing the cleaning schedules for her block, constitutes evidence of a failure in the service provided by the landlord.
Furthermore, as mentioned above, the resident requested for someone from the relevant team to call her in order to discuss with them her queries about her rent account and the SCs, as oppose to with her HO. She asked this on a number of occasions including on 17 December 2020, 15 and 29 March 2021, 16 April 2021 and 7 May 2021, however, was told by her HO that this not possible. Whilst the landlord’s SC policy states that residents should raise SC queries with their local officer, as the resident was unhappy with their written responses provided in relation to her concerns, arranging for either the compliance or SC team to call her, as per her request, may have led to her queries being fully answered and also shown her it was serious about resolving her complaint. There is no evidence of anyone from the SC or compliance team calling the resident yet in the stage one response from the HO, they incorrectly suggested someone had called her.
As such, the landlord’s unwillingness to arrange for the resident to discuss her SC queries with its SC or compliance teams, indicates inadequate communication on its part when handling her SC queries. A Manager did then call the resident on 5 August 2021 however this was to discuss her complaint in general rather than to answer her points about the SCs.
In its final response the landlord acknowledged that communication had been poor and as part of its action plan it agreed to provide ‘better communication using different methods of communication such as calling’. Whilst this indicates learning on the part of the landlord, on balance, overall it did not offer sufficient redress to resolve this aspect of the complaint.
It is noted that the landlord’s SC policy requires it to send residents who pay variable SCs, a summary of accounts showing expenditure for the previous financial year. Whilst the resident in this case pays variable SCs, it is unclear from the available evidence if the landlord sent her the summary of final accounts either for 2019/20 or 2020/21. As such a recommendation has been included below for the landlord confirm to the resident if it has sent her a summary of account showing expenditure for 2019/20 and 2020/21 and to send her this if it has not already done so.

Complaint handling

When the resident advised the landlord in her communications between 29 and 31 March that she was dissatisfied with the service provided and requested to “escalate to the next stage”, the landlord advised she could not escalate her complaint to stage 2 as it was outside of the timeframe to escalate it to stage 2.
As there is no evidence to show that the landlord provided any stage one written complaint response to the resident’s communications either sent in December 2020 or from 5 March 2021 onwards, in accordance with its complaints policy, the landlord was required to log a complaint at this stage.
Its refusal to do so is evidence of it not following its complaints policy. It subsequently provided a stage one response nearly three months later on 23 June 2021 after the resident repeated her request for a response to her complaint on at least three further occasions. This is evidence of poor complaint handling by the landlord.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord when handling queries regarding the rent account.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord when handling the request for a breakdown of SC.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord when handling the related complaint.

Reasons

Overall the landlord provided sufficient explanation around the resident’s queries regarding the different accounts and balances showing within her online rent account.
It did not provide the resident with further information regarding SC expenditure when she asked for this after in accordance with its SC policy. After subsequently offering to send her SC invoices in its final response, it failed to do this within the timescale promised.
There was a significant delay by the landlord in logging the resident’s formal complaint after it initially refused her request without justification. This prolonged the complaints process.

Orders and recommendations

The Ombudsman orders that the landlord:
1. Pay the resident total compensation of £450 comprising:
  1. £250 for its failure to adequately handle her request for a breakdown of the SC.
  2. £200 for its failures when complaint handling.
2. Provide her with the cleaning schedules for her block and ensure her HO invites her to the next inspection, as promised in its final response.
3. Comply with the above orders within four weeks.
The Ombudsman recommends that the landlord:
1. Confirm to the resident if it has sent her a summary of account showing expenditure for 2019/20 and 2020/21 and to send this to her if it has not already done so.
2. Check with the resident if she still needs further clarification regarding the balances in the rent/sundry account and provide this if she does.