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Notting Hill Genesis (201911978)

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REPORT

COMPLAINT 201911978

Notting Hill Genesis

20 January 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 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 handling of the resident’s reports concerning:
  1. noise related ASB issues with the neighbours.
  2. the handling of her request to be transferred to another property.

Background and summary of events

Background

  1. The resident is an assured non-shorthold tenant of an housing association. The tenancy commenced in 1998. The resident lives in a ground floor flat in a converted Victorian property.

Tenancy Agreement

  1. The landlord’s Tenancy Agreement outlines a tenant’s obligations not to cause nuisance, harassment, noise between 23:00 and 07:30, or allow properties to become so overcrowded to be a criminal offence.

ASB Policy and Domestic Noise & Neighbourhood Disputes Policy

  1. When receiving ASB allegations, the landlord considers their nature, frequency, and impact to determine seriousness and proportionate action. Where not appropriate to handle under ASB policy, there is no breach of occupancy agreement and relates to experience of noise within a domestic residence, the landlord handles issues under its Domestic Noise & Neighbourhood Disputes Policy. This promotes tolerance and encourages tenants to discuss disputes and domestic noise with neighbours. The landlord seeks to stop problem behaviour early on and only consider legal action where there is sufficient evidence of tenancy breach, as a last resort and only if other tools have been exhausted.

 

 

Lettings Policy

  1. The landlord considers transfer requests from eligible tenants who are awarded a priority banding based on their circumstances. In exceptional cases the landlord considers like-for-like transfers to help resolve neighbour disputes.
  2. On its website the landlord details several ways to move home:
  1. Finding someone who wants to swap properties through ‘mutual exchange’, using websites such as Home Swapper. The landlord explains this is normally the quickest and easiest way to move.
  2. Using a choice-based lettings scheme used by councils and housing associations including the landlord, where priority is given to those with the highest bands registered the longest. The landlord explains it can take several years to move this way.
  3. Using the HomeFinder website to bid for properties including the landlord’s.

Complaints Policy & Procedure

  1. The landlord operates a 2 stage complaints procedure. At Stage 1, response is within 10 working days, and at Stage 2, response is within 20 working days. Causes of complaints must be within 12 months although more recent matters will be looked at.

Compensation Policy & Procedure

  1. The landlord awards compensation depending on the level of service not being met. This ranges from £50 for low impact; up to £100 for medium impact; up to £250 for serious failures; and over £250 for multiple service failures and significant time and delay for issues to be resolved.

Summary of events

  1. Between September 2017 and October 2018 the resident enquired about a transfer to a new housing development managed by another provider, an housing trust. The housing trust informed the resident it did not take direct applications and she required referral by a local authority or by specialist support agencies. For transfers from housing associations, the housing trust advised it was a member of Home Swapper. The resident’s landlord stated it was unable to nominate her and referred her to the local authority allocations team. In August 2018, the local authority contacted the landlord with enquiries that the landlord says it responded to in September 2018. Subsequently, according to the resident’s correspondence the application was unsuccessful after the local authority reviewed information.
  2. According to the resident, in 2019 there was another opportunity to bid for her preferred development, however after delays by the local authority and involving her landlord to write to the local authority, bidding was already over.
  3. In December 2019, the resident emailed the landlord about ongoing Airbnb short term rental at a leasehold property within her building. She explained the landing to the stairs was above her bedroom and she was being constantly disturbed, with some guests checking in near midnight. She raised concern the issue had gone on for three months and requested the landlord to ask the leaseholder to stop the disturbance. The landlord responded that it was liaising with the leaseholder and had confirmed the Airbnb would end in early January 2020. The landlord apologised this was a few weeks away but it trusted this would be a final solution to the matter.
  4. On 11 Dec 2019 the resident complained to this Service about her housing association landlord and the local authority:
  1. The landlord had refused to soundproof the building, after she raised concern about being affected by noise resulting from use of stairs over her flat and use of boilers.
  2. The landlord was allowing leaseholders to have couples in flats intended for single occupancy and allowing running of illegal Airbnbs.
  3. The landlord had not helped her move to the new development she noticed in 2017. It had provided delayed information to the local authority’s allocations team, as well as falsely informed the local authority that there was no proof of ASB.
  4. The resident also complained about the local authority’s response to ASB reports against its tenants in an adjacent property; its handling of her housing applications; and its housing department falsely informing their allocations team that there was no proof of ASB by its tenants.
  1. After initially contacting the local authority, this Service wrote to the resident’s landlord on 20 February 2020 and asked it to respond to the complaint.
  2. On 10 March 2020 the landlord issued its Stage 1 response:
  1. The landlord confirmed it visited the resident in January 2020, receiving follow up emails from the resident about noise, and also visited with a property manager of one of the leasehold properties in March 2020.
  2. The landlord explained the lease stipulated private residence in single household occupation, which in its “opinion” meant use by a single household and in its “interpretation” included a couple or a family.
  3. It sympathised the noise was frustrating, but stated as the property is a conversion, a level of sound transfer was to be expected.
  4. It suggested the resident contact the local authority’s noise team if she believed level of noise was higher than would be expected, or deliberate.
  5. It stated stipulating working patterns and when people can walk up and down stairs is unreasonable.
  6. The landlord however advised it was looking into potentially laying carpet underlay, which the resident would be updated about when commenced.
  7. The landlord confirmed a completed transfer application it received would be reviewed to agree a banding, and the resident would be provided login details to bid for properties. It noted the resident’s interest in a new development and explained this required the resident to apply to Home Swapper if she had not already.
  1. On 28 April 2020, the resident contacted the landlord at this Service’s recommendation, relaying dissatisfaction with the response. The landlord then confirmed it escalated the complaint and would respond by 20 May 2020. After further contacts from the resident in June and July 2020, this Service made enquiries with the landlord. It informed the resident it would respond the week commencing 6 July 2020, which changed to 31 July 2020 when that was not met.
  2. On 31 July 2020 the landlord issued its final response.
  1. The landlord explained the complaint had been independently reviewed by three managers and it hoped to provide detailed responses to the issues the resident remained dissatisfied with. The landlord responded to concern it was dismissive of the resident’s issues by explaining the visits and actions it took to look into and try and find solutions to the noise.
  2. The landlord confirmed following discussion with leaseholders it was confident Airbnb was not being run from the flats. It apologised for any misunderstanding by use of the word “opinion” in its previous response the resident was unhappy with, and confirmed a couple in a one bedroom property would not be considered a breach.
  3. The landlord responded to concern about the proposal to lay carpet, stating while restructuring stairs and building with concrete and steel was not possible, laying carpet will reduce the level of noise transmission. It explained there will always be some degree of sound transmission and law covering soundproofing did not apply to the property.
  4. The landlord explained due to Covid-19 the resident’s transfer application received in March 2020 was not actioned until May 2020. It apologised for this and previous occasions this happened. It confirmed it had advised the resident in May 2020 it would approve a like for like transfer enabling it to find a direct offer without history of noise issues. It confirmed it had acknowledged the resident preferred new build or soundproofed properties in the area, but had advised it did not have these and suggested areas where the landlord has new builds, which the resident advised they were not interested in.
  5. In response to the resident’s assertion she should have been granted a transfer to the new build, the landlord stated that from reviewing correspondence, direct applications were not accepted and she required referral by a local authority. The landlord confirmed it advised the resident in May 2020 it was unlikely referrals were taken from other housing providers, but had contacted the housing trust who had not responded.
  6. The landlord stated there was no evidence it acted unlawfully in 2017 and 2018, but acknowledged requests for information from the local authority’s allocations team were not responded to promptly and apologised for this.
  7. The landlord expressed sympathy the resident experienced noise and sensitivity to noise was exacerbating the issue, but some incidents complained about were not proportionate and using the boiler or getting food was not antisocial.
  8. The landlord explained it was still proceeding with laying carpet and also agreed a like-for like transfer and it would work to find the best possible property. It asked the resident to advise if she was willing to move to a different area or expand her preferred radius as that would greatly improve the chances of locating a property.
  9. The landlord apologised for delays in relation to the transfer application, recently and in 2018 and 2019, as well as in relation to the complaint response. It awarded £160 for poor communication, delays in completing transfer approval and lateness of the complaint response.
  1. Subsequently, the resident has contacted this Service relaying dissatisfaction, and complained about repairs, service charge, housing benefit, arrears and ASB issues occurring after the final response.

Assessment and findings

  1. This Service’s investigation is limited to assessing the resident’s complaint up to the landlord’s final response. For new issues and ASB occurring after the landlord’s final response, the resident is recommended to report or complain about these directly to her landlord, if she has not already done so.
  2. This Service’s investigation is limited to assessing the resident’s complaint about her landlord, and is unable to investigate complaints about a local authority if it is not the resident’s landlord. For these complaints, the resident can ask to exhaust the local authority’s complaints procedure and ask the Local Government and Social Care Ombudsman to investigate.
  3. It is also not within the Ombudsman’s authority or expertise to decide on matters such as breach and compensation claims in the same way as the courts, but it can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case.

The landlord’s handling of the resident’s reports concerning noise related ASB issues with the neighbours

  1. ASB case management is a crucial aspect of a landlord’s service delivery. Effective use of an ASB procedure enables the landlord to identify appropriate steps to resolve potential areas of conflict, improve landlord/tenant relationships and improve the experience of tenants residing in their homes. ASB cases are often the most challenging for a landlord as in practice, options available to a landlord or chosen by a landlord to resolve a case may not include a resident’s preferred outcome, and it can become difficult to manage expectations.
  2. In this case, it is evident the landlord took appropriate action in response to the resident’s reports, in that it discussed issues with the resident and other parties and visited the property. This was in accordance with the landlord’s obligations to consider allegations it receives.
  3. Having investigated the issue, the landlord clearly does not dispute the resident is affected by noise, but concludes it is domestic rather than antisocial in nature.This was reasonable based on the type of noise reported and it was therefore reasonable for it to handle the issues in line with its Domestic Noise & Neighbourhood Disputes Policy rather than its ASB Policy, which it is evident it has done.
  4. The landlord’s response to reports of Airbnb activity and contentions about overcrowding was also reasonable. It arranged for the Airbnb activity to cease and apologised for the delay. It is not disputed the activity ceased in January 2020 and it is evident the landlord considered no further action was appropriate, which is in accordance with its policies that legal action is a last resort. Its response to the resident concerning flat overcrowding demonstrates it considered her concerns and that no further action was appropriate, which was also reasonable.
  5. While the landlord’s conclusions and lack of legal requirement to soundproof the property means options are limited, the landlord has stated it intends to lay underlay and carpet. This demonstrates it is sympathetic that the resident is particularly affected by noise and is seeking to take steps to attempt to improve the noise situation for the resident.
  6. Considering all the circumstances of the case, the landlord demonstrates it has appropriately handled the resident’s reports concerning noise, and is taking reasonable steps in its power to try to improve the situation.

The landlord’s handling of the resident’s reports concerning the handling of her request to be transferred to another property

  1. The landlord has stated it does not believe it could directly transfer the resident to her preferred development, and has attempted to contact the housing trust that manages the development. The housing trust’s email in 2017 states that for transfers from housing associations, Home Swapper is applicable. This would involve the resident finding a tenant of the housing trust to swap properties through ‘mutual exchange.’ The landlord’s response to the resident’s complaint it did not transfer her to the development therefore appears reasonable, as there is no evidence it has been made sufficiently aware it could.
  2. The landlord does not dispute issues with its handling of other transfer issues, and acknowledges failings in relation to these and its response to the resident’s complaint. The landlord awarded compensation and it agreed to assist the resident with a direct like-for-like offer and find a property without history of noise. This demonstrates the landlord’s sympathy with the resident’s circumstances and its reasonable exercise of discretion afforded by its Lettings Policy.
  3. This further assessment considers if the landlord offers reasonable redress for its acknowledged failings.
  4. The landlord’s compensation policies set out the circumstances in which the landlord pays compensation including payments for service failures, inconvenience and distress. The policy sets out amounts of compensation that correspond to the level of the impact of a service failure. The landlord has awarded the resident compensation for low to medium impact failings in recognition of its poor communication, delays in completing transfer approval and complaint handling. As the landlord has clearly set out the reasoning for its compensation and shown this is in accordance with its policy, its offer of £160 is reasonable.
  5. The landlord’s complaints policies set out the circumstances in which it takes complaints and the timeframes in which it responds, detailing issues over 12 months old are usually dealt with outside the landlord’s complaints procedure. The landlord has exercised discretion in its response, acknowledgement and compensation offer concerning issues that occurred in 2017 and 2018, over 12 months before the complaint was made.
  6. This substantiates the landlord’s resolution focused attitude in addition to its apology for acknowledged service failings, monetary redress in line with its compensation policy, and explanation about discretionary steps it is taking, to try to improve the noise issues and to assist the resident with a discretionary direct like-for-like transfer.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports concerning noise related ASB issues with the neighbours.
  2. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has offered reasonable redress for the landlord’s handling of her request to be transferred to another property.

Reasons

  1. The landlord has taken reasonable action in line with its policies in regards to the resident’s reports concerning noise related ASB issues with the neighbours.
  2. The landlord has acknowledged failings in how it responded to the resident’s reports and complaint about her request to be transferred to another property. It has offered appropriate redress and taken reasonable action.

Orders and recommendations

Recommendations

The landlord to:

  1. Pay the resident the £160 compensation it offered in its final response, if it has not already paid this.
  2. Liaise with the resident to ensure she is in a position to bid, where this requires actions from the landlord.