Notting Hill Genesis (NHG) (202230789)

REPORT

COMPLAINT 202230789

Notting Hill Genesis

29 September 2023

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:
   1. the landlord’s response to maintenance and repair issues at the resident’s property.
   2. the communication with the resident over making an insurance claim following a sewage leak in August 2021.
   3. the associated complaint.

Jurisdiction

2. The Housing Ombudsman Scheme (‘the Scheme’) sets out what complaints the Ombudsman can and cannot investigate.
3. Paragraph 42(a) of the Scheme states:
4. “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable time scale;”
5. The resident has complained to this service of receiving poor quality service from its landlord and of ongoing problems with repairs and maintenance. This has included difficulty in communication with the landlord and a general lack of responsiveness to his concerns.
6. This service has not seen any evidence that these issues have either been brought to the attention of the landlord or have gone through the landlord’s internal complaints process. The Ombudsman is therefore unable to consider the landlord’s response to maintenance and repair work more generally. This investigation will therefore focus on the service and communication provided by the landlord in connection with the resident’s insurance claim.

Background

7. The resident is a leaseholder of a property. The lease started on 1 January 2002.
8. The resident experienced a leak affecting his property from a neighbouring property in August 2021. The leak was caused by a soil stack that was damaged by wet wipes attached to a defective patch liner.
9. The landlord responded to the disrepair promptly in the neighbouring property and arranged for the resident’s property to be cleaned on health and safety grounds and on a discretionary basis.
10. On 1 March 2022, the resident complained to his landlord about not having received a response to previous complaints and the damage caused to his flat and furniture.
11. On 23 March 2022, the landlord issued its response at stage 1 of its complaint process and stated:
    4. that the resident is responsible for the internal parts of his property as a leaseholder.
    5. it only agreed to clean his property as a goodwill gesture to make the property hygienically safe and habitable again following the sewage leak in August 2021.
    6. the resident was responsible for the contents within this property.
12. The resident was unhappy with the landlord’s response and claimed that there had been three floods affecting his property caused by the landlord’s poor maintenance. The resident asked how he could claim through insurance without home contents and why this would be relevant if the leaks were caused by his landlord’s alleged negligence. The resident requested a ‘deadlock’ letter stating it would not progress his complaint further.
13. The resident requested an escalation of his complaint on 28 March 2022. He further claimed on 12 April 2022 that his landlord promised him compensation based on the poor service he had received. The resident referred to there being a faulty manhole which led to his property being flooded several times by sewage.
14. The landlord responded at stage 2 of its complaint process and stated:
    7. it had no record that it offered the resident compensation for damage to his home.
    8. the resident was advised to claim for any damage on his insurance.
    9. it cleaned his property following the August 2021 sewage leak as a goodwill gesture.
    10. it had explained to him it could not accept liability as an insurance claim would need to be investigated and processed by the insurance company.
    11. it recognised that the information and guidance that it provided delayed the resident making an insurance claim. It accepted that it had failed to direct the resident to the building insurers to make a claim as it should.
    12. it denied that it refused to deal with his complaint, but it had requested he contact his home insurance to claim for the damages to his personal belongings.
    13. clause 6.2 of the resident’s lease explained that he was responsible for cleaning up his property following the sewage leak in August 2021. However, because he refused to do this and there was a health and safety risk it agreed to pay the cost of this clean as a gesture of goodwill.
    14. it directed the resident to make an insurance claim on 20 May 2022, but he refused as he did not think it was his responsibility. It accepted there was a delay in the resident being directed to make a building insurance claim and therefore partially upheld this part of the complaint.
    15. it had incorrectly followed its complaint process.
    16. it indicated that lessons would be learnt to include offering better training to help staff identify when to refer to the building’s insurance. It also committed itself to staff training to improve communication.
    17. it offered the resident £500 to acknowledge the failure in its communication and a further £50 for its delay in reviewing his complaint.
15. The resident accepted the landlord’s offer on 3 February 2023 but requested this service investigate his complaint. On 9 March 2023, the resident confirmed to his landlord that he was seeking to claim for damage caused to his property by the sewage leak.

Assessment and findings

Communication over insurance claim

16. The resident believes the landlord was responsible for the damaged contents in his home. To this end, he had two options open to him. The first was that he could claim on his own contents policy for items damaged during the leak. If his insurer accepted a claim, then it (the insurer) in turn could seek recovery (subrogate) from the landlord for the costs and the resident’s excess. Alternatively, the resident could make a claim to the landlord’s liability insurer who would assess the landlord’s legal liability.
17. The landlord’s compensation and goodwill gesture procedure and complaints policy required the landlord to signpost the resident to its insurance team to make a claim. The evidence indicates that the landlord had not accepted liability for the damage caused by the sewage leak. Therefore, the landlord acted reasonably in referring the resident to his own content’s insurer and later its legal liability insurer.
18. It is the Ombudsman’s opinion that there is no evidence that the landlord was responsible for the leak, in that it knew it was likely to happen.
19. By 26 March 2022, the landlord was aware that the resident had no home contents insurance. It should have directed the resident to make a claim through its legal liability insurer and explained it could be considered a claim for damage to personal belongings. Despite this, the landlord had not correctly signposted the resident to the legal liability insurer by 20 May 2022.
20. The landlord accepted in its stage 2 review response it was unreasonable not to have directed the resident to its insurer to make a claim earlier. It apologised and offered the resident £500 compensation for this failure.
21. The landlord pointed out it had not offered to cover the damage to the resident’s contents and this investigation has seen no evidence that suggests otherwise. The landlord communicated to the resident that it arranged for his property to be cleaned without any admission of liability or obligation but because it needed doing for health and safety reasons and the resident refused to clean it.
22. This service expects landlords to always consider discretionary compensation for distress and inconvenience where its acts or omissions cause distress and inconvenience to residents. In this case, the landlord was right to recognise that its failure to refer the resident to its insurer caused the resident distress and inconvenience. It was therefore appropriate for the landlord to offer compensation to reflect this. The level of compensation was, however, much higher than this service would have awarded for the error.

Complaint handling

23. There were some failures in complaint handling. Despite the resident asserting on 1 March 2022 that he had made three previous complaints the landlord failed to address this point in its stage 1 response. This was because the landlord had no record of the resident making any complaints however it was a service failure not to explain this.
24. The landlord’s complaint policy requires it to respond to a complaint within 10 working days at stage 1 and to review a complaint within 20 working days of it accepting a review request. The landlord responded to the resident at stage 1 within 14 working days which was only a short delay. There is no evidence the resident was impacted by the extra 4 working days to respond.
25. There is no evidence that the landlord refused to progress the resident’s complaint but there is evidence of delays in complaint handling. The landlord explained in its stage 2 review response that insurance claims should not be progressed through its complaint procedures. It told the resident that it progressed his complaint because the resident insisted on having a response. The landlord’s policies clearly exclude insurance claims from the scope of complaints. Given the landlord had accepted a complaint on 3 March 2022, and the resident’s demand for a ‘deadlock’ letter, it was reasonable for it to progress the complaint.
26. The resident requested an escalation of his complaint on 28 March 2022 but did not receive a response until 8 June 2022, this was 28 working days later. This was a significant delay in addressing the complaint. The delay would have added to the resident’s feeling of being ignored and caused him distress and inconvenience.
27. The landlord’s complaints and goodwill gesture policy allow for a discretionary payment of up to £250 where there has been a serious failure over a period that has caused the resident a significant level of distress and inconvenience. The landlord apologised for its complaint failures in its review and offered £50 compensation.
28. The landlord’s offer of compensation, in the Ombudsman’s opinion, does not offer sufficient redress. This is because it does not reflect the level of distress and inconvenience caused to the resident in the delay in him making a claim due to the landlord’s actions.

Determination

29. In accordance with paragraph 53(b) of the Scheme, the landlord has offered redress to the resident prior to the investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily about its communication with the resident following the sewage leak in August 2021.
30. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the associated complaint.

Orders

31. The landlord is ordered within 28 days of the date of this determination to pay the resident the sum of £150 to acknowledge the distress and inconvenience caused to the resident by its poor complaint handling. This includes the £50 offered at the stage 2 review.