Notting Hill Genesis (NHG) (202215979)

REPORT

COMPLAINT 202215979

Notting Hill Genesis (NHG)

31 January 2024

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

1. The complaint is about the landlord’s handling of:
   1. the resident’s concerns regarding building works to neighbouring property which had an effect on their household.
   2. the associated formal complaint.

Background

2. The resident is an assured shorthold tenant of the landlord, a housing association. The landlord leases the property from a freeholder as temporary accommodation on behalf of the local authority. The landlord sublets the property to the resident. The resident said she occupied the property with two of her sons; one who has mobility issues and one who has mental health issues. The resident also reported having communication issues with the landlord because English is not her first language.
3. On 30 November 2021, the landlord carried out a pre-arranged visit to the property but it was unable to gain access. On 3 April 2022, the freeholder of the property emailed the landlord and reminded it of the freeholder’s intention to demolish the garage and construct a 2-storey home on the land next to the resident’s property. The construction work began around the end of April 2022.
4. The resident made a formal complaint to the landlord on 18 May 2022. In summary, she was unhappy that her garden had become a construction site and that no one had told her about these works. In addition, she said she was not provided with information about safety, boundaries, and the removal of the fence, which she felt was dangerous. In particular, she expressed concern that building structures were placed on top of her son’s mobility exercise equipment and he was unable to use it. Further, she said the builders had used her electricity and water. The resident stated that she was still paying for a property that she was no longer living in, including because there was domestic violence in her family. As a resolution, she wanted an apology and compensation.
5. A visit to the property by the landlord was arranged in advance for 23 May 2022, however the landlord was unable to gain access. In response, the resident said that the visit had not been pre-arranged with her. Around the end of May 2022 the landlord arranged for the fence to be repaired.
6. On 25 June 2022, the landlord emailed the resident and acknowledged it was treating the matter as a formal complaint. It noted its previous attempts to inspect the property on 7 April 2022 and 23 May 2022 were unsuccessful. It arranged a visit for 5 July 2022 but was unable to gain access. On 28 October 2022, following a text message from the resident, a housing officer said they would no longer need to come and see the resident and would send a written response. On 21 October 2022, she asked the Ombudsman to help her to get a complaint response.
7. The resident reported a break-in at the property in early November 2022 to both the police and the landlord. The landlord responded the next day and apologised that the resident suffered when the works were going on. It stated it was only in October 2022 that the resident informed the landlord that she had moved out and noted, as this was temporary housing, it would inform the local authority about her move. The Ombudsman also asked the landlord to respond to the resident’s complaint on 4 November 2022.
8. On 1 December 2022, the landlord issued a holding response. It apologised that the resident was unhappy with its service and said it attempted to carry out visits to observe the issues raised and said it would put the complaint on hold until it could do so. On 12 December 2022, it issued its stage 1 response. It apologised for the distress and upset caused in its communication and complaint handling issues. The landlord was made aware of the freeholder’s intention to carry out works to the adjacent property, but acknowledged that it had not informed the resident about this. It said it had tried to inspect her property but understood that she had since left and that her eldest, adult son remained in the property. The landlord acknowledged the inconvenience of the building works, however it stated that it could not take responsibility for these. It offered the resident compensation of £175, made up of £125 for failing to communicate about the works, and £50 for failing to respond to complaint.
9. On 15 December 2022, the resident asked to escalate her complaint. She said the landlord turned her garden into construction site and felt, given the nature of the works, it became dangerous to live there. The resident added that the compensation offered would not cover the cost of her utility bills. Additionally, she queried why the construction works were carried out in her garden and not in the neighbouring house, and she felt this was discrimination.
10. On 17 January 2023, the landlord issued its final response. It said the compensation offered at stage 1 was reasonable and remained in place. It tried to find out more information about the use of the resident’s utilities by the builders, but it had been unsuccessful in its visits. It asked the resident to provide it with her utility bills for it to consider reimbursing these. Regarding the reported break-in, it noted that the resident had contacted the police and it recommended she pursue a claim through her insurance to recover any losses. Moreover, it acknowledged that she no longer lived at the property and it would need to arrange an inspection. It apologised that she could not access her garden and added that it did not carry out the works, nor was it responsible for them. Additionally, it said it would feedback to the freeholder and request that they provide notice in writing to use the garden again.
11. In the resident’s complaint to the Service, she said she was unhappy that she was not informed about the building work. She felt that the landlord did not keep her safe, did not answer her questions nor treat her fairly. She also said that the landlord instructed her to return to the property and that this went against what the police advised her. As a resolution to her complaint, the resident wanted the landlord to apologise and to increase its compensation offer.

Assessment and findings

Scope of investigation

12. The Ombudsman has seen evidence that the landlord issued the resident with a notice requiring possession in July and October 2019, as its lease was expiring. A further letter of January 2020 stated it was obliged to carry out an eviction. However in October 2020 it informed the resident that the eviction was cancelled and it had extended its lease.
13. In her complaint, the resident mentioned concerns about living out of a packed suitcase. While the Ombudsman does not underestimate the frustration this would have likely caused, under the Scheme, the Service may not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising. The resident made a formal complaint to the landlord in May 2022. Therefore this aspect of the complaint is not considered within this investigation. This report will instead focus on the landlord’s handling of the resident’s concerns about the building works from around April 2022 up until its final response of January 2023, and its handling of her formal complaint.
14. In the complaint, the resident asserted that the landlord discriminated against her by not assisting her based on her nationality. As per section 114 (1) of the Equality Act 2010, it is for a county court to decide if there has been ‘racism’, or other prohibited conduct. The Ombudsman cannot investigate discrimination as we cannot make a binding decision that this has occurred – this would be a matter for the courts. The Ombudsman has the jurisdiction to consider complaints about housing management. As such, the Service would not be able to decide if there was discrimination by the landlord towards the resident. We will, however, investigate whether the landlord treated the resident unfavourably and whether its actions were reasonable in the circumstances.
15. The resident has also advised that the handling of this matter by the landlord led to a deterioration in the health of the household. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is because we do not have the authority to do so, but consideration has been given to the general distress and inconvenience that may have been caused to the resident.

The landlord’s handling of the resident’s concerns regarding building works to neighbouring property which had an effect on their household

16. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes.
    2. Put things right.
    3. Learn from outcomes.
17. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the applicant. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
18. The resident’s property was an end of terrace house, leased and sublet by the landlord. The freeholder of the property was given planning permission to change the neighbouring garage to the property into a new house. The freeholder indicated the landlord was made aware of their intention to do so in 2020, however the Ombudsman has not seen any evidence to support this.
19. The landlord should have clearly communicated the freeholder’s intention to carry out work to the resident promptly, doing so in writing for her records, and it should have ensured that she understood this. This would have allowed her to plan in advance. This did not happen. While the Ombudsman has seen evidence that the landlord was informed about the work on 11 October 2021 and 3 April 2022, it failed to advise the resident of this. The resident was entitled to believe she had exclusive use her garden, and the landlord’s lack communication would have caused distress to the household. This would have been worsened by her communication difficulties, and by her sons’ disabilities.
20. The resident indicated that she was distressed that the neighbouring building works started without prior notice and she did not know how long they would take. The resident made a formal complaint about this on 18 May 2022. The same day, the landlord enquired with the freeholder about how long the resident’s garden would be affected. It acted promptly in this respect. In addition, the evidence showed it chased them for a reply. This was a fair approach and demonstrated that the landlord was trying to find out this information for the resident.
21. The resident felt she was residing on a construction site and added that the boundary fencing had been removed. Around May 2022, there was evidence that the landlord attended the property and arranged for the freeholder to raise a safety fence between her home and the neighbouring property. The landlord acted appropriately by taking these steps and it is clear that it considered the resident household’s safety in relation to the fence.
22. In the landlord’s formal complaint responses, it apologised for its lack of communication regarding the start of the building works. This was appropriate as the landlord should have previously informed the resident of the works. Furthermore, it was accurate for the landlord to explain that it was not in control of these works, as the landlord did not own the neighbouring property, and therefore it could not have prevented the works from happening. Overall, the landlord clearly explained its position and the Ombudsman considers that its response in this regard was satisfactory. Furthermore, the evidence showed that the landlord tried to meet with the resident at the property at least 3 times to discuss a way forward, however it was unable to as she did not attend. In any case, this was a reasonable approach that showed the landlord was taking the resident’s concerns seriously.
23. The resident discussed that there was a clause in the tenancy agreement that states the landlord guaranteed to keep her family safe from interruption by it, insured risks, disrepair, and damage. While the landlord aims to do this, it is not practical to expect the landlord to protect against risks beyond its control and it was not responsible for third parties’ actions, such as the freeholder’s building works. The landlord also cannot guarantee the resident’s safety from domestic violence and break-ins in the same way the police can. It was therefore appropriate for the landlord to ask for the resident’s police crime reference number, which it did not receive, and to advise her to contact the police had she not done so already.
24. The Ombudsman notes that the resident stated she moved out of the property in April 2022, which was prior to the break-in. Moreover, in its stage 2 response, the landlord advised the resident to claim on her home insurance to pursue her losses. This was appropriate advice because it was not responsible for the break-in. The Ombudsman recognises that, in the resident’s reply to the stage 2 response, she considered the landlord’s suggestion to take out contents insurance inappropriate, as this would not have helped the resident’s situation at the time.
25. The resident raised concerns that the builders used her property’s utilities and facilities without her permission. While there is no evidence that the resident was subsequently reimbursed for this, the landlord acted fairly, in its stage 2 response, by asking the resident to provide copies of utility bills for the relevant period for it to consider reimbursing her. This was a customer-focused approach to take as, although the landlord was not responsible for the reimbursement of costs incurred by third parties, it was taking reasonable steps to assist the resident with seeking these. Furthermore, it evidenced it considered its compensation policy, where it may cover reasonable additional expenses on case-by-case basis, and evidence may be requested such a receipt or energy bills. As it is unclear if the resident has provided the landlord with her utility bills, a recommendation has been below.
26. In the landlord’s stage 1 response, it offered £125 as compensation for its failure to communicate that the works were due to be carried out to a neighbouring property. Taking into account the circumstances that the works were not done or controlled by the landlord, and the fact that there is no evidence that the rooms inside the property were affected, this was in line with both its compensation policy and the Ombudsman’s remedies guidance. The latter suggests compensation from £100 for failures that adversely affected the resident. In view of this, the Ombudsman considers the landlord’s offer was satisfactory in putting things right for the resident.
27. While the landlord should have communicated effectively about the construction works that would affect the resident’s garden, it apologised for this and offered £125. The Ombudsman considers this was proportionate. In summary, the landlord did not arrange the work nor did it own the property, and it was the freeholder’s decision to carry out construction work. In addition, the resident moved out the property in April 2022. This was around the same time the construction works began, and therefore the adverse effect caused by the landlord’s failure to inform her of the work was reduced.
28. Overall, throughout the complaint, the landlord sought to assist the resident after it initially failed to tell her about the building works. It offered numerous meetings with her and promptly contacted the freeholder to find out information for her. It acknowledged its errors and apologised for these. Additionally, the landlord offered compensation which was in line with its compensation policy and the Ombudsman’s remedies guidance. Therefore a finding of reasonable redress has been made with respect to its handling of the resident’s concerns regarding building works to a privately owned neighbouring property.

The landlord’s handling of the associated formal complaint

29. The landlord operates a 2-stage complaint process. The landlord’s complaints policy aims to provide a stage 1 response within 10 working days. If the resident is not satisfied with the stage 1 complaint, they may request an escalation. At stage 2, the landlord aims to provide a response within 20 working days following receipt of an escalation request. Its complaints policy states that, if more time is needed to complete the response fully, it will communicate this and agree a new timescale with the resident. The landlord is obliged to follow these complaint timescale and communication requirements by the Housing Ombudsman’s Complaint Handling Code (the Code).
30. The landlord did not dispute there were failings in its communication and complaint handling. The resident made a formal complaint on 18 May 2022, but did not receive a response within 10 working days. This led to the resident contacting the Ombudsman for assistance, and the landlord’s failure to engage with the complaint would have caused frustration and upset. Furthermore, the resident was entitled to believe that the landlord was addressing her concerns within its complaints process. This is particularly because it had acknowledged that it was treating the issue as a formal complaint on 25 June 2022. Although the Ombudsman notes this was significantly outside its 2 working days to acknowledge a formal complaint as per its policy.
31. It was not until the Ombudsman became involved in October 2022 that the landlord issued its stage 1 response on 12 December 2022, 144 working days after the resident’s initial complaint. This was a considerable delay, and the landlord failed to respond to the complaint within the timescales set out in its policy and the Code, or to follow their requirements for it to communicate with the resident about its delays. While it is noted that the landlord attempted to arrange visits to discuss the concerns with the resident, it should, nevertheless, have issued a formal response in writing as per its policy timescales. Moreover, the Ombudsman notes the time and trouble caused to the resident who repeatedly had to chase for updates.
32. The landlord issued a holding letter on 1 December 2022. While it is accepted that there may be occasions when a landlord needs longer to respond to a complaint, the Ombudsman has seen no evidence that the landlord kept the resident updated, which it should have done in line with its policy and the Code. In this holding letter, the landlord mentioned it offered to meet with the resident on 23 May and 5 July 2022. While the Ombudsman appreciates that the landlord was trying to gather further information, it should have, following these unsuccessful visits, provided the resident with a written response as soon as possible.
33. Moreover, the holding letter stated that, as part of its complaints process, the landlord would visit the property to find out about and observe the issues raised. This was inaccurate, as there is no evidence that this was part of the landlord’s complaints process. This may have caused confusion to the resident. A recommendation has been made in this regard.
34. In its stage 1 response, the landlord failed to provide an adequate explanation for the complaint handling delays. The Ombudsman considers that, while the landlord attempted to put things right with respect to its above complaint handling failures, it did not succeed in doing so. This is because its apology, suggested learning, and offer of £50 compensation for these did not adequately reflect the detriment caused to the resident, nor go far enough to put matters right. This is taking into account the length of time and trouble experienced by her, and her efforts in involving the Ombudsman to get a response, which our remedies guidance recommends is recognised with compensation from £100. Therefore, an order and recommendation have been made below for remedy.

Determination

35. In accordance with paragraph 53 (b) of the Scheme, the landlord has offered redress to the resident prior to investigation with respect to its handling of concerns regarding building works to neighbouring property which had an effect on their household which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
36. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the associated formal complaint.

Orders and recommendations

Orders

37. Within 28 calendar days, the landlord must:
    1. pay the resident a further £150 for the failings identified in its complaint handling.
    2. review the complaint handling in this case, with reference to the failings identified in this report, to determine what action has been/will be taken to prevent a recurrence of these. The landlord must write to the Ombudsman with the outcome of this review.
38. The landlord shall contact the Ombudsman within 28 calendar days to confirm that it has complied with the orders.

Recommendations

39. The landlord should:
    1. pay the resident £175 as offered in its stage 1 response, if it has not done so already.
    2. contact the resident to request evidence of her increased utility bills and review these to consider reimbursing her for them accordingly.