Notting Hill Genesis (202014861)

REPORT

COMPLAINT 202014861

Notting Hill Genesis

23 July 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

This complaint is about the landlord’s handling of:
1. the resident’s concerns about the condition of a communal lobby;
2. the related complaint.

Background and summary of events

Background

The resident is a leaseholder and the lease began on 11 December 2015. The landlord has described the property as a one bedroom first floor flat within a block. The resident does not live at the property, instead renting it out to tenants.
The lease plan shows that there is a communal lobby area outside the property which is accessed through a communal door. The lobby area is shared by four flats, including the resident’s.
The lease agreement obliges the landlord to:
1. maintain and redecorate all parts of the building that are not the responsibility of the leaseholder
2. keep the common parts of the building ‘adequately cleaned’.
The lease agreement says that the service charge provision is calculated by estimating the charges incurred by the landlord in ‘connection with the repair, management, maintenance and provision of services for the building’.
The landlord has an estate management policy that says it monitors contractors to ensure that cleaning of all common parts is completed. It adds that ‘we carry out inspections on a regular basis to ensure cleaning and grounds maintenance standards’.
The landlord’s website shows that it undertakes communal decorations on a ‘regular basis’ and that when ‘non-urgent repairs arise, we may decide to wait and include them in future planned or cyclical maintenance programmes’.
The landlord has a complaints policy that sets out a two-stage process where it is required to respond to the resident within 10 working days (at stage one) and 20 working days (at stage two).
The landlord has a compensation policy that allows for it to make a financial offer to recognise distress or inconvenience caused as a result of a service failure. This sets out the following:
1. the landlord can make payments of up to £250 to recognise distress or inconvenience or an increased amount where there has been ‘multiple service failures, or exceptional hardship’
2. the landlord does ‘not pay compensation for loss of communal services or facilities’ and instead reflects any loss of services within year end accounts.
The landlord’s separate compensation procedure outlines that it will not award compensation for loss of earnings and will regard ‘persistent failure over a prolonged period of time’ as a high impact issue that will attract compensation of up to £250.

Summary of Events

The resident has advised this Service that she began to raise concerns about cleaning standards to the lobby area soon after purchasing the lease. The earliest evidence of this seen by this Service was correspondence from the resident to the landlord on 5 March 2016. The resident asked the landlord to check if it was cleaning the common areas around her property as the carpets were filthy and the walls were cracked and dirty.
The landlord and resident exchanged emails during August-October 2017 regarding the removal of items from communal spaces. These show that the landlord’s staff had difficulty accessing the lobby area due to a new lock that had been fitted to the communal door.
The resident raised concerns about the communal cleaning standards again in January 2018 and advised that a new lobby door key needed to be given to the four households who needed access.
The resident raised concerns in October 2018 that the landlord had advised it did not have keys to access the lobby area (despite her having advised that it changed the lock in February 2018) so could not check a potential fire hazard she had reported.
The landlord’s internal records from November 2018 show that:
1. it spoke to the resident and defined her concerns as being about the lack of maintenance to the lobby area, the potential fire hazard of items left in a cupboard in the communal area and the service charges she had paid for a service that had not been delivered
2. the cleaning contractor advised that it had been unable to consistently clean the lobby due to lack of access so it was only able to clean when operatives happened to find the lobby door open
3. the landlord made arrangements in December 2018 to cut a key for the lobby door lock so the cleaning contractor could attend.
The resident wrote to the landlord on 13 January 2019. She advised that the communal area had not been cleaned, vacuumed, painted or re-decorated in the past three years and that a leak meant that the carpet was damp and the walls damaged. She asked for a complete renovation of the area and provided photographs to the landlord on 16 January 2019, comparing the area outside her property to other lobby areas in the block.
The resident wrote to the landlord later in January 2019 to confirm she was satisfied that it had now cleaned the area and provided her with a key for the lobby door.
The landlord’s contractor issued a credit of £3146.78 on 27 February 2019 for missed lobby cleans. It said it had recently conducted lobby cleans using the key the landlord had provided in December 2018 and confirmed that operatives had always had difficulties in accessing lobby areas and could not identify which lobbies had received a service and when.
The landlord issued a stage one complaint response on 29 August 2019. This concluded that:
1. the lobby had been cleaned and the communal cupboard had been cleared and locked
2. the resident should see the cleaning credit amount on her subsequent service charge statement
3. block cyclical works had been planned for 2019/20 but this was subject to a validations survey and budget
4. compensation of £100 was offered for the delay in providing the formal complaint response.
The resident responded on 10 September 2019 and advised that:
1. the communal cupboard door was still unlocked and being used for drug taking
2. the lobby had not been re-decorated in five years and there appeared to be no plans to do so
3. she had not been credited with the service charge refund and could not accept the £100 compensation offer.
The resident confirmed on 12 September 2019 that she wished the complaint to be escalated.
The resident chased progress during September-November 2019. She provided photographs of what she described as a filthy carpet, damp patches to the wall and damaged woodwork.
The resident wrote to the landlord on 31 January 2020. She queried when she would receive the service charge refund, why the lobby was still ‘dirty and undecorated’ and for confirmation that the communal cupboard had been locked and cleaning was ongoing.
The landlord made enquiries with its contractor in February 2020 to check when the last deep clean was completed. The contractor responded with details of four deep cleans undertaken during 2019 and 2020 but confirmed that lock changes to lobby doors in the past had meant that cleaners had often failed to carry out the cleaning service.
The landlord issued a stage one complaint response to the resident on 13 February 2020. It advised the resident that:
1. the next deep clean of the lobby was due to occur the following week and the area was cleaned every Tuesday
2. a lock change had been completed in January 2020 so access through the lobby door should not be a problem
3. a refund of £2622.32 would be made to the block for previous failures to clean the lobby area
4. cyclical works to the block were due to occur during 2020/21.
The landlord has evidenced that its contractor took photographs of a lobby area during four weeks in May 2020 that showed the area was clear of items and there was carpeted flooring.
The resident submitted a complaint on 28 September 2020. She said that the landlord had not answered her concerns over the previous four and a half years regarding communal cleaning standards, items left in communal areas that could present a fire safety risk and drug use in the lobby area. She asked for the lobby area to be redecorated and added that her tenant had left and she had been unable to re-let the property because of the state of the lobby area.
The landlord issued another complaint response on 16 October 2020. It concluded that:
1. the credit for incomplete communal cleaning costs had been apportioned to the 2019/20 service charge accounts
2. the housing officer had spoken with neighbours the previous week about items being left in communal areas and this would be followed up in writing
3. a deep clean of the lobby would be undertaken given the distress and inconvenience caused to the resident by the issue
4. a scope for redecoration works was in process of being drawn up.
The landlord and its contractor exchanged emails during October 2020 that led to them planning to remove items from the lobby area and conduct a deep clean on 28 October 2020.
The resident asked to escalate her complaint on 3 November 2020. She said that the lobby key issue had only been resolved in August 2020 and raised the following continued points of dissatisfaction:
1. she queried why other leaseholders in the block had been given a service charge refund when it was only the lobby outside her property that was affected
2. she asked why there had been no cleaning to the lobby for five years
3. she had reported drug use in a communal space which the landlord had done nothing to resolve
4. she was unable to re-let her property due to the dilapidated state of the lobby.
The landlord recorded that it spoke to the resident on 6 November 2020 and agreed that it would visit the lobby, look to bring forward cyclical works and assess the case for compensation.
The landlord recorded on its complaint system that it had visited the lobby area on 13 November 2020 and agreed that it appeared to have been neglected. It wrote to the resident on 18 November 2020 to advise that it had sought quotes for redecoration works.
The landlord recorded that it spoke to the resident on 30 November 2020 and proposed a compensation award of £250 which the resident was dissatisfied by, particularly as she was unable to re-let the property whilst the lobby remained in the state it was in.
The resident advised the landlord on 16 December 2020 that a member of staff sent her a holding email on 9 December 2020.
The landlord issued a stage two complaint response to the resident on 16 December 2020. It concluded that:
1. there had been a poor level of service and communication over a lengthy period and £250 compensation would be awarded in recognition of this
2. all leaseholders in the block contribute to the service charge which pays for the cleaning contract so any failings in that service need to be recognised through a refund to all leaseholders’ accounts albeit the deficiency by the landlord and its contractor had a greater impact on the resident
3. the landlord had failed to manage the cleaning contract and ensure the contractor had access to the lobby outside the resident’s flat for which it believed an additional £250 compensation offer was appropriate
4. the lobby redecoration would be carried out as soon as possible (likely to be in January 2021) rather than being included in upcoming cyclical works
5. an apology was offered and it said it had introduced ‘monthly inspections of the building to monitor cleaning and to ensure the communal areas free from hazards and are maintained to an appropriate standard’.
The resident wrote to the landlord on 13 January 2021. She disputed the level of compensation offered given the number of times she raised the problem with the landlord and that it had failed to keep her and her tenants safe from drug addicts and fire hazards. She added that she had been unable to let her property due to the state of the lobby and alleged that it was still unclean when she visited on 10 January 2021.
The landlord and its contractor exchanged emails during January 2021 where they agreed that photographs would be taken after every weekly cleaning session for the following two weeks.
The landlord wrote to the resident on 14 January 2021. It confirmed that it intended to carry out communal redecoration works that month and that its cleaning contractor had reported no recent access issues to the lobby area.
The resident and the landlord exchanged emails during January 2021 that show that:
1. the resident again raised concerns about a lock change to the lobby door which meant she had to pay £36 to get new keys cut
2. the landlord agreed to reimburse the resident the £36 but advised it was unaware of any lock change to the lobby door.
The landlord has evidenced photographs being taken of the lobby area in February 2021 that showed it was in process of being decorated and provided photographs of completed works to the resident in March 2021.
The landlord wrote to the resident on 14 May 2021. It provided photographs of the cleaned lobby area and confirmed cleaning was being completed weekly and the property management officer added that she had resumed estate inspections and would continue to monitor the area.

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.
The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

Communal lobby

The resident reported concerns about the state of the lobby outside her property at least as early as March 2016 and the landlord was aware of a potential access problem to the lobby at least as early as August-October 2017. However, there is no evidence that the landlord successfully followed up on these issues until late 2018. This was unreasonable and meant there was an unnecessary delay in the landlord resolving the access problem.
It is not disputed that the cleaning to the lobby area was inconsistent at best between the start of the resident’s lease and December 2018. This was apparently due to cleaning contractors only being able to access the lobby when the communal door happened to be unlocked. It is of concern that the landlord failed to carry out inspections in line with its estate management policy. This was inappropriate and its failure to inspect meant that the cleaning standards did not improve over a three-year period – this was in breach of the landlord’s lease agreement obligations.
The cleaning contractors managed to access the lobby in January 2019 and it was successfully cleaned. Evidence seen by this Service indicates that concerns over communal cleaning reduced from January 2019 and that there were post-inspections of cleaning work in May 2020 and January 2021. This demonstrates that there was a general improvement in cleaning service delivery after January 2019.
However, the resident did continue to raise concerns about the condition of the lobby during 2019 and late 2020 – these were largely related to a need for redecorations. The landlord was only obliged to complete communal redecorations as part of its cyclical programme of works but there is no evidence to demonstrate that it visited the lobby to check the resident’s concerns until November 2020. It decided that decoration works should be brought forward and these were completed in early 2021. Whilst the landlord demonstrated it was resolution-focused by using its discretion to bring forward redecoration work, its failure to visit the lobby before November 2020 was unreasonable and led to an unnecessary delay in the resolution being delivered.
Similarly, the resident raised a concern about the security of a communal cupboard in late 2018 that she linked to drug use and said represented a potential fire hazard. It is unclear when this issue was resolved but the resident reported it again as recently as September 2019 so it is clear that this also became a long-standing concern. Again, the landlord’s failure to visit the lobby, assess the problem and resolve it was unreasonable.
Overall, there was service failure by the landlord as it delayed unreasonably in:
1. resolving the resident’s cleaning concerns from 2016 to 2018
2. investigating and resolving the lobby access difficulties from 2017 to 2018
3. inspecting the lobby to consider the state of communal decorations from 2019 to 2020
4. ensuring the communal cupboard was secure from 2018 to 2020.
As part of its remedy, the landlord arranged for 35% of communal cleaning charges to be credited for the period to December 2018. This was a reasonable percentage to credit given there was no indication that other areas of the block had not been cleaned and there were apparently occasions when the lobby had been attended to. The credit was passed on to leaseholders at the block through the 2019/20 service charge accounts. This was in line with the lease agreement as leaseholders pay for the services delivered to the building rather than only their floor or lobby. This was therefore an appropriate remedy for the failure of the landlord to carry out its cleaning obligations up to December 2018.
The landlord also awarded £500 compensation to the resident for the impact of the lack of cleaning on her and for its communication failures. This level of compensation was in line with ‘high impact’ service failure as set out in its compensation policy and is also within the range that the Ombudsman recommends for ‘failure over a considerable period of time to act in accordance with policy’. This was therefore an appropriate level of compensation for the landlord to award in recognition of its delays in responding to, and acting upon, the resident’s concerns about cleaning standards, decorations and communal cupboard security.
In addition to the service charge credit and compensation award, the landlord also outlined steps it had taken to improve service delivery. It advised the resident at the end of the complaints process that there was a dedicated officer now responsible for monthly inspections of the building to check cleaning standards and the landlord has demonstrated that it is managing the cleaning contract more closely – for example, by requesting photographs of completed work from the contractor during January and May 2021.
In summary, the combination of the landlord’s apologies offered, service improvements, service charge credit offset and compensation award represented appropriate redress for the service failures identified in the way it handled the resident’s concerns about the condition of the communal lobby. In accordance with the Ombudsman’s Dispute Resolution Principles, it was fair in its assessment of the service failure, took steps to put things right and demonstrated it had addressed potential learning points.

Complaint handling

The landlord’s records indicate that it initially logged the resident’s concerns about the lobby as a complaint in late 2018 and its complaint staff were involved from then in attempting to resolve the matter. However, the landlord failed to issue a stage one complaint response until August 2019. This was well outside of its complaints policy obligation to respond to a complaint within 10 working days although there is evidence that the resident had requested that the landlord not respond until a resolution had been reached and it did offer to award compensation of £100 for this delay.
The resident asked to escalate the complaint in September 2019. However, there is no evidence that this happened despite the resident chasing the matter over the following two months. Instead, the landlord logged a new complaint in January 2020, despite it being clear that the resident’s concerns were a continuation of the same issues she had raised in late 2018. This was inappropriate as the landlord’s complaints policy sets out that residents have the right to escalate a complaint to stage two where they remain dissatisfied after the stage one response.
The landlord sent another stage one complaint response in February 2020. The resident again expressed continued dissatisfaction in September 2020 but the landlord issued a further complaint response from a manager in October 2020 rather than escalating the complaint to stage two. Although the landlord has advised this Service that it wished for a manager to review the case, it was inappropriate that it did not do so under the final stage of its complaints process (in line with its complaints policy) given it had been more than 12 months since the resident had originally asked for the landlord to escalate the case.
The landlord did escalate the complaint as a result of a further request from the resident on 3 November 2020. Although it failed to offer a response until 16 December 2020, which was outside of the 20-working day timescale for stage two responses, it has demonstrated that it spoke to the resident on two occasions and sent holding responses in the intervening period. It therefore acted reasonably and in accordance with its complaints policy by offering updates to the resident where it was unable to respond within its published timescale.
In summary, the landlord delayed unreasonably in progressing the resident’s complaint through its internal complaints process between September 2019 and November 2020, sending three responses before it eventually escalated the matter to the final stage of its complaints process.

Determination

In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress to the service failures identified in its handling of the resident’s concerns about the condition of a communal lobby.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the related complaint.

Reasons

The landlord delayed in resolving the resident’s concerns about the condition of a communal lobby but its apologies, lessons learned, service charge credit and compensation award were appropriate given the circumstances of the case.
The landlord did not escalate the resident’s complaint in line with its complaints policy.

Orders

The landlord to write to the resident to:
1. apologise for the service failure identified in this report
2. confirm how it will ensure it escalates complaints in line with its complaints policy in future.
The landlord to pay the resident compensation of £150 in recognition of the distress and inconvenience caused by its service failure in the handling of her complaint.
If it has not already done so, the landlord to pay the resident compensation of £500 that it offered in its final complaint response.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.