Notting Hill Genesis (201915560)

REPORT

COMPLAINT 201915560

Notting Hill Genesis

24 August 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

The complaint is about the landlord’s:
1. provision of information about the defect period provided to the resident when purchasing the property.
2. provision of information about the location of the car parking space at the property provided to the resident when purchasing the property.
3. response to the resident’s repair reports concerning the heating and hot water system at the property.
4. complaints handling.

Background and summary of events

The resident is a shared ownership leaseholder of the property. The property is a second floor flat and the landlord is the freeholder of the building.
The landlord’s property sales website refers says, “… if there is a genuine defect in your property within the first year of the building being completed (the ‘defects period’), you can report it to us and we will have it repaired”. This information is in the Frequently Asked Questions section of buying a property from the landlord.
The landlord’s compensation and goodwill gestures policy says that if the landlord’s failure to carry out repairs results in the loss or severe limitation of use of rooms or services within the property for unreasonable periods it may pay compensation based on the rent that the resident pays. For the loss of use of a bathroom the compensation will be 30% of the daily rent and for loss of heating and/or hot water 10% of the daily rent. The policy also says that where a resident experiences inconvenience following a service failure the landlord can make a discretionary payment of up to £250.
The landlord’s complaints and compliments policy says that the landlord will send a written response to a complaint within 10 working days. If a resident is not satisfied with the landlord’s response to the complaint, he can ask for the complaint to be reviewed.
The resident purchased the new build property on 5 July 2019. Shortly after moving into the property in September 2019 the resident reported problems with the heating, hot water and LED lights at the property to the landlord. The landlord informed the resident that it was not responsible for the repairs as the property was outside the defect liability period.
The landlord’s sales team subsequently agreed to look at the issues and the issues with the LED lights were resolved. In an email to the resident dated 14 October 2019 the landlord said ‘As I understand you have recently moved into the property and the hot water has never worked. Sales have agreed to cover the cost of the works to the HIU [heat interference unit] to reinstate the hot water as the property should be fit for purpose on completion.’ The landlord visited the property at least four times between September 2019 and December 2019 to try and repair the HIU.
On 23 December 2019 the resident made a formal complaint to the landlord about its response to his reports of problems with the hot water and heating at the property, which he said was an ongoing issue. The resident also complained that he had been informed by the landlord during the sales process that the defect liability period would last two years from the date of purchase and that his allocated car parking space would be in the car park for the building however, his allocated car parking space was in the car park of another building.
The landlord continued to engage with the resident concerning issues with the HIU. On 26 March 2020 the landlord sent an email to the resident asking if his complaint was still unresolved. The resident replied the same day confirming that the complaint was unresolved. He confirmed that he was looking for the landlord to offer the following to resolve the complaint:
1. to waive his overdue rent and service charge payments,
2. to provide an additional parking space free of charge,
3. to provide a two–year warranty on defects at the property from the date of completion,
4. to provide compensation for the stress and inconvenience he had experienced,
5. if the landlord didn’t agree to these proposals, he wanted to be able to sell the property and have all rent, legal costs for the sale, exit fees for the mortgage and service charge covered by the landlord.
On 1 May 2020 the landlord informed the resident that there would be a further delay before it could issue the complaint response.
On 13 May 2020 the landlord sent the resident its response to his complaint. In its complaint response the landlord:
1. agreed that there had been a failure to address the heating and hot water issue in a timely manner and that this had caused the resident inconvenience. The landlord said that the evidence showed that the issue was an intermittent fault as it was repaired and broke down a number of times. The HIU had been serviced in March 2019 and the handover form stated that there were no issues at the time of completion,
2. offered the resident a goodwill gesture of £836 which it said was based around its goodwill and compensation policy for no heating/hot water which equated to 10% of the resident’s daily rent, and no use of a bathroom which is 30% a day. As there was a lack of evidence to suggest this was a constant issue and as the resident had had the showers repaired, the landlord said the bathrooms were not out of use for the full six months so it had based the goodwill gesture on 50% of the 6–month value,
3. apologised that the issue with the LED lights took longer to resolve than it should have and offered a goodwill payment of £50,
4. explained that its sales team said that it was made clear to the purchaser that the property was sold as seen on reservation. The landlord enclosed a copy of the reservation form dated 4 May 2019, signed by the resident which said that the property was sold as seen. The landlord also said that it was unable to find any evidence to suggest that the resident had been told that he would have a two–year defect liability period on completing the purchase of the property. The landlord explained that it ‘would be unfair for us to sell you a home with heating/hot water/failed Led lights, hence we have remedied these issues’ but this did ‘not imply there is any defect liability period.’
5. explained that its sales team said that they made it clear to the resident verbally that his allocated parking space was located in another building’s car park. The landlord also explained that the lease plan signed by the resident clearly showed that the resident’s allocated parking space was in another building’s car park and that by signing the lease and the plan the resident was accepting the terms of the lease, which includes where the parking space was. Whilst the resident said he was told the space would be in his building the landlord maintained that the purchase contract said, ‘only written representations provided by our solicitors throughout the conveyancing process, or by us (and by virtue our associates) prior to the contract being signed should be relied upon.’
6. Offered the resident a further goodwill payment of £50 for failure to comply with the timeframes set out in its complaints policy.
The resident responded to the landlord’s stage one complaint response by email on 13 May 2020. He accepted the compensation concerning the LED lights. However, he explained that he thought the goodwill payment relating to the heating and hot water should be increased, he repeated that he had been informed there would be a two–year defect period and that he had been shown a parking space in the car park of his building on handover of the property and told that it would be his. The resident also said that the plan attached to the lease showing the parking space was unclear.
The landlord replied to the resident on 22 May 2020 saying that it believed the goodwill payment was a fair resolution to the complaint and that there was no evidence that the resident had been promised a parking space in the building.
The resident asked for his complaint to be reviewed and the landlord sent its review response to him on 7 July 2020 saying that:
1. it considered the goodwill gesture of £836.00 in relation to the landlord’s response to the resident’s reports of issues with the heating and hot water a fair amount as the evidence suggested that it was not an ongoing issue throughout the six months but was multiple issues which were rectified each time,
2. as set out in the reservation form the property was sold as seen and there was no written evidence to suggest any promise of a two–year defect liability period being made by the landlord,
3. the signed parking plan with the lease showed the allocated parking space in another building and there was no paperwork or evidence which mentioned that the parking space would be in the resident’s building’s car park,
4. the timeframes and handling of the complaint was below the service standards required and the landlord increased the amount of the goodwill payment in relation to its complaints handling to £250. The total compensation offered to the resident was therefore £1136,
5. the landlord would not look to purchase back the resident’s share of the property; however, it was willing to waive its nominations right to sell the property allowing the resident to sell the property through an estate agent rather than through the landlord. The landlord explained that this meant that the resident could sell the property either as a shared ownership property or outright and then he and the landlord would receive their respective share.
The landlord’s letter dated 7 July 2020 was its final response to the complaint, confirming that the complaint had exhausted its internal complaints process.
When the resident approached the Ombudsman, he said that the landlord gave him a remote control which opened the gate to the car park and provided a photo of that.

Assessment and findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

Complaint about the landlord’s provision of information about the defect period provided to the resident when purchasing the property

A leaseholder purchases a lease subject to the condition of the property at the time. The resident signed the reservation form dated 4 May 2019 which clearly said that the property was sold as seen. Having considered this reservation agreement form, it seems that the “sold as seen” wording refers to the specification of the flat. The Ombudsman’s understanding of the specification is that it refers to the products and materials used within the property such as the kitchen units, bathroom units and flooring, not the property as a whole.
The landlord’s website appears to confirm that there was a one-year defect period (paragraph 3). Therefore, the landlord’s information given to the resident that there was no defect period was not correct. This was a service failure.
However, the landlord took steps to resolve the repair issues in the property during the defect period and covered the cost of the repairs that arose in the defect period. This meant the resident has suffered no financial loss in respect of the repairs. This matter has evidently caused the resident inconvenience and frustration. The Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In this case, this Service considers that the sum of £100 would be proportionate redress for the impact on the resident by the provision of incorrect information.

Complaint about the landlord’s provision of information about the location of the car parking space at the property provided to the resident when purchasing the property

Whilst the resident signed the plan attached to the lease showing the location of his car parking space the resident maintains that the landlord told him that he would be allocated a car parking space in his building.
However, there is no evidence of any conversations between the landlord and the resident as to the location of the car parking space. In the absence of any evidence the landlord’s response that the lease showed the position of the space and that by signing the lease and the plan the resident was accepting the terms of the lease, was a reasonable one.
In respect of the photo provide by the resident, that in itself is not evidence of which gate the remote control opens. I have made a recommendation, below, that the landlord looks into why you were given this remote control and writes to the resident with clarification.

Complaint about the landlord’s response to the resident’s repair reports concerning the heating and hot water system at the property

The landlord has admitted in its response to the resident’s complaint that there had been a failure to address the heating and hot water issue in a timely manner and that this had caused the resident inconvenience.
The landlord explained that its compensation offer of £836 had been calculated based on 10% of the resident’s daily rent for no heating/hot water and 30% of the daily rent for no use of a bathroom. This was in accordance with the provisions of the landlord’s compensation and goodwill gestures policy (see paragraph 3). The landlord’s decision to pay 50% of the compensation was a reasonable one as there was a lack of evidence to demonstrate that the problems had been constant throughout the six months, and there was evidence that the resident had had the bathroom showers repaired.
The amount of £836 is within the range of awards set out in the Ombudsman’s guidance on remedies for cases of maladministration that has had a severe long-term impact on the resident.
The £836 goodwill payment offered by the landlord, was therefore proportionate to the impact of the landlord’s failings in addressing the hot water and heating issues on the resident and in line with the provisions of the landlord’s compensation and goodwill gestures policy and the Ombudsman’s guidance on remedies.

Complaint about the landlord’s complaint handling

The landlord admitted that its handling of the resident’s formal complaint was below the service standards required and offered a goodwill payment of £250.
The resident made his formal complaint on 23 December 2019 and the landlord sent its response on 13 May 2020, some 112 working days later and 102 working days after the 10–working day timescale set out in the landlord’s complaints and compliments policy (see paragraph 4 above).
The amount of £250 was the maximum discretionary payment permitted under the provisions of the landlord’s compensation and goodwill gestures policy (see paragraph 3 above). The amount of £250 is also within the range of awards set out in the Ombudsman’s guidance on remedies where there has been considerable service failure, but there may be no permanent impact on the resident; examples could include significant failures to follow complaint procedure.
The £250 goodwill payment offered by the landlord, was therefore proportionate to the impact of the landlord’s failings in handling the complaint on the resident and in line with the provisions of the landlord’s compensation and goodwill gestures policy and the Ombudsman’s guidance on remedies.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its provision of information about the defect period provided to the resident when purchasing the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints about its provision of information about the location of the car parking space at the property provided to the resident when purchasing the property.
In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of reasonable redress to the resident which satisfactorily resolves the complaints about:
1. its response to the resident’s repair reports concerning the heating and hot water system at the property.
2. its complaint handling.

Reasons

There is evidence that there was a defects period for the property and the “sold as seen” referred only to the specification of the property.
There is no evidence of the landlord informing the resident that his car parking space was in the car park for the resident’s building and the resident signed the plan attached to the lease showing the location of the parking space.
The landlord offered a goodwill compensation payment that was proportionate to the impact of the landlord’s failings in addressing the hot water and heating issues on the resident and in line with the provisions of its compensation and goodwill gestures policy and the Ombudsman’s guidance on remedies.
The landlord offered a goodwill payment that was proportionate to the impact of its failings in complaints handling on the resident and in line with the provisions of its compensation and goodwill gestures policy and the Ombudsman’s guidance on remedies.

Recommendations

It is recommended that within four weeks of this report the landlord takes the following action:
1. Pays the resident the £1,136 goodwill payment if it has not already done so.
2. Writes to the resident to explain why he was given a key fob that may give access to the parking area.