Notting Hill Genesis (202102541)

REPORT

COMPLAINT 202102541

Notting Hill Genesis

31 October 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 is about the landlord’s response to the resident’s reports of:
1. an external wall requiring repair following a roof leak.
2. faulty CCTV.
3. anti-social behaviour including drug dealing and prostitution.
4. damaged and dirty communal carpets.
5. a delay in providing information about her rent and service charge.
6. poor complaints handling

Background and Summary

The resident lives in a fifth floor flat with two bedrooms. The resident holds a shared ownership lease and has a 25% equity share in her property. The landlord itself leases the block from the freeholder of the wider local estate who has contracted out repairs and maintenance services for the estate to a managing agent separate from the landlord. The managing agent is broadly responsible for external issues such as roof repair while the landlord is directly responsible for internal issues such as cleaning of the communal areas. These responsibilities are detailed further in the assessment section below.
The first evidence seen by this service of the resident reporting a leaking roof is an email from December 2019 in which the resident says ‘it has been 2 years and 11 months that my wall has been leaking from outside, no repair work has been done’. The resident says she had breathing problems as a result and also reported damp and mould issues in her flat. There is insufficient evidence available prior to 2019 to assess how the reports of a leak were initially responded to collectively by the managing agent and the landlord and the focus of this investigation is therefore on events from 14 January 2021 after scaffolding was erected to fix the roof and damage done to the external wall by the roof defect.
The resident sent the landlord several emails in January and February 2021 requesting an update on changes to her rent and service charge. The resident said that the proposed 5% increase was not justified given the context of an unresolved roof leak and other unresolved issues. On 10 February 2021, the resident made a formal complaint and listed her concerns as follows:
1. The communal carpets are supposed to be changed after ten years and were twelve years old.
2. Request for update on rent and service charge
3. No repair to the external wall for five years, request for timescales for the works.
4. Prostitution and drug use in two of the other flats within the block.
5. CCTV camera broken in lift.
6. Intercom system not working.
The landlord responded to the email the same day but the email was treated as general correspondence rather than as a complaint. The landlord said
1. An update would be supplied ‘early next month’ on rent and service charges
2. The communal carpet was due to be replaced as part of a cyclical works program (the next year) but a deep clean was arranged.
3. The officer asked all ASB to be reported to her so that it the appropriate enforcement action could be taken. Allegations about drug dealing and prostitution were in the process of being investigated by police. The landlord said it would wait for the outcome of that before taking further action.
4. Engineers would be attending to repair the buzzer and intercom system.
The above responses were also detailed in a response to an MP enquiry dated 23 February 2021. On 24 February 2021, the resident again reported the buzzer not working. The landlord sent an email response the same day saying that an engineer would be sent to fix the system again.
On 1 March 2021, the landlord sent the resident and other residents in the block formal notification of an increase to rent and service charge.
On 22 March 2021, the resident again raised the same issues this time via the landlord’s online customer portal. The contact was registered as a formal complaint and on 6 April 2021, the landlord sent a stage one complaint response. The landlord said that:
1. The scaffolding needed to be adapted to enable works to be carried out and this was causing a delay to the works.
2. The works were awaiting further input from surveyors and therefore timescales and costs were uncertain at the time.
3. It would ‘continue to monitor developments regarding the repair works and update residents accordingly’.
4. The communal carpet was due to be replaced as part of cyclical works in 2022/3 but the officer would see if this could be brought forward.
5. Allegations of drug dealing and prostitution in the block were investigated although this was limited to Coronavirus restrictions. The police had been contacted by the landlord but the police said they were unable to gain entry and had refused two FOI requests made by the landlord about the issue.
6. The landlord advised the resident to report crimes directly to the police.
The resident disputes the level of police involvement and has said that the police were more actively involved and used plain clothes officers to investigate stolen cars and possible organised crime.
On 24 March 2021, the landlord contacted the resident and said that the ‘language and tone’ of the residents’ contact had breached their unreasonable behaviour policy. Direct quotations from the resident’s emails were used as evidence of this.
On 8 April 2021, the resident advised that not all her concerns had been addressed and said that the communal front door was not closing correctly and CCTV was not working. On 23 April 2021, the landlord sent a further response to clarify some additional points at stage one of the complaints process.
1. Regarding the front door, the landlord said that the faulty door had been reported and that contractors had attended on 30 March 2021 but parts were needed. The contractors returned with the parts on 21 April 2021 but an engineer would then need to reprogram the intercom on 30 April 2021 before the intercom system would be working properly.
2. The landlord said that it had contacted the managing agent on 20 April 2021 about the CCTV and it was confirmed that it was not working and their intention was to replace the CCTV in a number of other blocks in the area at the same time. No indication was given as to when this would occur.
3. The communal carpet was deep-cleaned on 20 April 2021 and if a replacement carpet would cost over £250 a Section 20 notice would be served as required.
On 29 April 2021, the landlord sent the resident a formal warning regarding her behaviour and said it would not tolerate the abusive language used in her communication. The resident’s emails to the landlord are characterised by consistent use of inappropriate swear words and insults demeaning to staff. The landlord has said that the abusive language has had a ‘negative impact on its ability to deliver services to customers.’
In May, the resident approached her local MP for assistance with the outstanding issues raised in her complaint. Following an enquiry from the MP, on 25 May 2021, the landlord acknowledged that the resident’s complaint had been escalated to stage two. On 7 June 2021, the landlord requested clarification from the resident about the outstanding issues of her complaint.
On 22 June 2021, the resident sent in clarification of the outstanding issues in her complaint. She requested the following:
1. A start date for the internal redecoration of her flat.
2. A date for when the communal carpets would be replaced.
3. A request for receipts and invoices for all things repaired in the block since March 2020.
4. A date for when the CCTV camera would be fixed.
The landlord responded at stage two on 14 July 2021. The landlord’s stage two process is a review by an ‘independent manager’ not previously involved with the case. The landlord answered the resident’s concerns as follows:
1. The wall repair had been completed but roof flashing work was still outstanding. Once this was done, the landlord would carry out internal redecoration to the residents flat. The landlord said it would ‘continue to work proactively with the management agent to bring the outstanding issue to a close.’
2. Replacement of the communal carpet was being brought forward and a section 20 process would need to be followed.
3. Receipts and invoices for maintenance would be provided upon a formal request under Section 22 of the Landlord and Tenant Act.
4. The lobby CCTV was broken and would be replaced but it was not yet known when this would happen.
Additionally, the landlord recognised and acknowledged that:
1. Some of the resident’s initial concerns were incorrectly responded to as correspondence (rather than as a complaint) and not within the landlord’s complaint timescales. It made an offer to the resident of £100 compensation.
2. There had been a failure of communication between itself and the managing agent regarding CCTV. The landlord acknowledged that it had not followed up regarding replacement of CCTV and offered the resident £50 compensation.
3. The landlord had not followed up on the reports of prostitution as thoroughly as it should have. No visits or phone calls were made which could have improved information gathering.
On 10 August 2021, the landlord served a Section 20 notice on all residents to inform them that the communal carpets were to be replaced earlier than planned due to the negative feedback from several residents. This upgrade was to be done separately to the cyclical works. The cost of the replacement carpet would be taken from the sinking fund and no additional charge was made.
On 25 August 2021, works to repair the roof were completed and the landlord attended to carry out internal redecoration to the resident’s flat. The resident confirmed that she was satisfied that the repainting was completed in contact with this service on 15 September 2021. The resident has also confirmed that the occupants of the flat where she had complained about prostitution had moved out.

Assessment and findings

The landlord’s repair obligations are set out in the resident’s lease agreement. The landlord is itself a leaseholder, leasing the block from a freeholder which manages the large local estate. The freeholder has contracted out its management of the estate to a provider separate from the landlord.
The resident’s lease states that subject to payment of the appropriate service charge and rent, the landlord “shall maintain repair redecorate improve and renew or shall procure the maintenance repair redecoration improvement of:
1. All parts of the building which are not the responsibility of the superior landlord pursuant to the headlease.
2. Any pipes sewers drains wires cistern tanks and other gas electrical drainage ventilation or lift apparatus
3. The common parts
The headlease between the freeholder and the landlord defines the repair responsibilities as “repair and keep the demised premises and every part thereof and all landlord’s fixtures and fittings therein and all additions thereto in good and substantial repair order.”
The summary document of the lease agreement specifies which parts of the resident’s block the landlord has direct responsibility for. These are summarised as the internal parts, but specifically:
1. All tenancy management and lease issues
2. Repairs to the communal areas
3. Internal cleaning and inspections
4. Lift maintenance
The freeholder via its managing agent has responsibility for:
1. Roof works
2. CCTV (across the estate)
3. External lighting and fire safety
The Housing Ombudsman produced a spotlight report in March 2022 looking at relationships where landlords were working with private freeholders or managing agents. A number of recommendations were made in the report in order to avoid scenarios where a resident is left ‘stuck in the middle’ of these sometimes complex or unclear relationships. One of the key recommendations is for landlords to have clear service level agreements in place. Landlords should also consistently seek to improve and ensure action plans are put in place to improve service following complaints as well as ensuring good communication and record keeping.
Having reviewed the arrangements in this case, there is evidence that roles and responsibilities are clearly set out in the landlord’s contractual agreement. Generally, where the resident has raised concerns about matters where the managing agent is directly responsible (such as the roof repair), communication from the landlord has been of an acceptable standard.
However, due to the normal difficulty in tracing a roof leak and the technical knowledge required, there has been uncertainty about timescales for works which has negatively impacted the resident. The landlord has acknowledged that in the case of CCTV repair, it could have followed up more pro-actively and provided clearer information or a better outcome for the resident with a reduced waiting time.
The landlord has said it has learned from the complaint and sought to address these communication issues by creating ‘a single point of contact for any and all queries a resident may have’. These arrangements were in place after March 2020.

Roof Repair and scaffolding concerns

In its review of the final stage complaints response, the landlord acknowledged that “historically there have been roof issues which regrettably led to water ingress into (the resident’s) property.” There is a lack of evidence available to this service concerning how the roof leak was handled prior to January 2021 and this investigation is focussed on more recent events. Based on the information available, the roof leak was reported to the landlord and the roof was known to be defective since 2019 if not earlier. The evidence suggests that a temporary repair was made to prevent a continuous water leak but there was a substantial delay in carrying out repairs to an external wall that had been damaged adjacent to the resident’s flat. The landlord has acknowledged that water ingress did occur and that repainting of the resident’s wall was required. Photographic evidence provided by the landlord does not indicate a severe or continuous unresolved leak.
The managing agent erected scaffolding on 14 January 2021 to fix the roof defect and repair the damaged external wall. The landlord has acknowledged that the scaffolding remained in place for several months and a deliberate decision was taken by the managing agent to keep the scaffolding in place while surveyors attempted to identify the source of the defect and water ingress and organise the necessary schedule of works. The managing agent completed repairs to the external wall reported by the resident in June 2021, but did not complete roof works until 25 August 2021.
According to the landlord repairs policy, it aims to complete routine repairs within 20 working days from the date of the report with emergency defects and emergency repairs being done within 24 hours. The policy also states that ‘when the responsibility to carry out the repair does not lie with either the resident nor NHG, staff will always pass on the details of said repair to the relevant party and liaise to ensure its satisfactory completion.’
The resident has expressed concern about the cost of the scaffolding and the landlord has said that it will review the final cost of the works in the summer of 2022 when the accounts are issued by the contractor. This is reasonable and there is no evidence that removing the scaffolding and putting it back once a solution to the roof leak was found would have reduced the overall cost of the works.
The landlord is not directly responsible for the roof repair according to the terms of the lease agreements. However, the landlord also has a responsibility to communicate with the resident regarding the timing of works and answer any queries. Over the eight months from January until August 2021, the landlord responded to many enquiries from the resident, sometimes in difficult circumstances with the resident using inappropriate or abusive language. The use of clearly inappropriate language added to the communication challenges faced by the landlord.
Although the landlord’s responses did not provide specific timescales, this was due to technical uncertainty about the location of the leak and what work was needed, rather than a lack of engagement with the contractor. It was at times not possible for the landlord to provide clearer information to the resident for this reason.
With that said, the outcome for the resident was a prolonged period of frustration and inconvenience. Additionally, no evidence has been seen as to why the managing agent took years rather than months to resolve the roof defect and wall damage. It is reasonable for the landlord to take this in to consideration when deciding how best to try and put things right for the resident under the Ombudsman’s dispute resolution principles.
In light of the prolonged uncertainty from January to August 2021 regarding the timing of removing the scaffolding and performing the roof works, as well as delay, distress and inconvenience to the resident, a payment of £25 for each of the eight months would be appropriate being £200. A further £100 for the overall delay prior to 2011 in repairing the roof defect and external wall is also fair redress in the circumstances since as stated above, the residents complaint highlighted the prolonged period when scaffolding was in place and was about unresolved damage to an external wall and repainting rather than a continuous unresolved roof leak.

CCTV

The landlord is not directly responsible for the maintenance of CCTV. It has in place a maintenance agreement with the external contractor that monthly checks of the system are carried out and repairs done as needed.
Although the landlord has indicated to this service that repairs have been made as and when reported, the complaint responses do not evidence this. Both complaint responses confirm that the CCTV unit in the lobby of the block is or was defective and that it would be replaced along with a number of other CCTV units by the external contractor although no date was given for this.
The landlord has acknowledged in its final stage complaint response that it did not follow up as it should have done regarding CCTV and has offered the resident £50 compensation. Given the resident’s concerns about crime and ASB in the local area, the maintenance of CCTV should be given greater importance by the landlord. The amount of compensation for the landlord’s failure to communicate effectively on CCTV maintenance should therefore be doubled to £100.

Drug dealing and prostitution

The landlord did write to neighbours regarding the allegations made about drug dealing and prostitution. However, it has acknowledged that no visits or phone calls were made after the resident’s repeated reports of prostitution. This is a recommended part of its procedure as part of information gathering in its Anti-Social Behaviour (ASB) Policy. The first report of ASB was contained in the resident’s initial complaint on 10 February 2021.
There is evidence that the landlord contacted the police and attempted to obtain information from them. The landlord says it made two Freedom of Information requests about the issue but both requests were refused. It is a cause of some concern that the landlord’s method of obtaining from police takes the form of an FOI request rather than a disclosure request or a pre-aarranged point of contact . As part of the learning from this complaint, it has therefore been recommended below that the landlord review how it communicates and works with the police. ASB teams often have disclosure agreements in place with local police and this would enable a more efficient way of sharing information to the benefit of resident safety.
In addition to working with the police, the landlord wrote to nearby residents and advised the resident to report any specific incidents of drug dealing or prostitution to the housing officer so that this could be investigated further. This was a reasonable request although the resident declined to make more specific allegations about a particular resident.
The landlord has not offered the resident any redress for its acknowledged failure to follow its ASB policy. A payment of £100 would be reasonable compensation given the impact on the resident who felt less safe and secure in her home as a result. The resident has advised that the issue has been resolved since the occupants of the flat allegedly being used for prostitution no longer reside at the block.

Communal Carpet

The landlord originally planned to replace the communal carpet as part of a cyclical works program in 2022/3. Following the feedback from more than one resident, a decision was taken to bring forward the replacement. This was an appropriate response to the feedback from the resident and others in her block and it is appropriate for the landlord to carry out the necessary Section 20 notices due to the cost involved. It is also noted that following the resident’s complaint, the landlord arranged a deep clean of the carpet which was a suitable temporary measure until the carpet can be replaced.

Service Charge Information

The resident made several requests for an update on service charges and her rent during January and February 2021. This began two or three months prior to the actual increases occurring. Although the landlord was not able to respond to the resident immediately, it was reasonable for the landlord to issue a summary of the increases when it did at the beginning of March. The resident’s repeated request for information prior to this time were made too early for the landlord to reasonably respond and were again characterised by inappropriate language from the resident. The landlord provided a full breakdown of service charges for 2021 to the resident on 25 March 2021.
However, with regard to the resident’s request for receipts and invoices for repairs, the landlord should have taken the view in its stage two complaint response that the resident was making a formal request under Section 22 of the Landlord and Tenant Act rather than effectively asking the resident to repeat the request for information. The resident had a legitimate right to request this information which the landlord did not fulfil.
It is not the role of the Housing ombudsman to make a judgement as to whether an increase in service charges was reasonable. This falls under the jurisdiction of the First Tier Tribunal and the resident may decide to pursue this matter separately. The evidence seen does suggest that the landlord has been transparent about service charges throughout the period of the complaint, responded to general queries and complied with its notice obligations.

Complaints Handling

It is not disputed by the landlord that it did not respond in a timely fashion to the residents complaint made in February 2021 and it was not recorded as a formal complaint initially. The £100 offered by the landlord in its final stage response is reasonable redress for this service failure which was approximately one month delay and is in line with Housing Ombudsman guidance on remedies.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration in responding to the resident’s reports of an external wall requiring repair following a roof leak.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was service failure in responding to the resident reports of faulty CCTV.
In accordance with paragraph 52 of the Housing Ombudsman scheme, there was maladministration in responding to the resident reports of ASB including drug dealing and prostitution.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was no maladministration in the landlords response to the resident reports of damaged and dirty communal carpets.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was service failure in the landlords response to the resident’s reports of delay providing service charge and rent information.
In accordance with paragraph 52 of the Housing Ombudsman scheme the landlord has provided reasonable redress for the distress and inconvenience caused by the acknowledged complaint handling failures.

Reasons

There was an eight month period of uncertainty and inconvenience for the resident from January until August 2021 while the roof was repaired.
The landlord did not follow up maintenance of the CCTV with the managing agent.
The landlord did not carry out thorough information gathering when responding to the reports of ASB.
The landlord made suitable arrangements to clean and upgrade the communal carpet.
The landlord provided updates to the resident when possible about her service charge and rent changes although it did not respond adequately to her request for repair receipts and invoices.
The landlord has offered reasonable redress for complaint handling failures within its internal complaints procedure.

Orders and recommendations

It is ordered that the landlord pay the resident a total of £500 compensation within four weeks. This is comprised of:
1. £300 in recognition of the distress and inconvenience caused by the delay in carrying out the roof repair, wall damage repair and redecoration work,
2. £100 for the distress and inconvenience caused by its failure to follow-up with the management agent on CCTV and
3. £100 for the distress and inconvenience caused by its failure to gather further information on the ASB allegations.
It is recommended that the landlord review its procedures and arrangements for partnership working with the police.
It is recommended that the landlord re-offer the resident £100 compensation for poor complaints handling as stated in its final stage complaint response.