Notting Hill Genesis (NHG) (202305137)

REPORT

COMPLAINT 202305137

Notting Hill Genesis (NHG)

27 March 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. This complaint is about the landlord’s handling of:
   1. The resident’s rehousing request.
   2. The resident’s reports of noise disturbance and related nuisance from neighbours.
   3. The resident’s rent arrears.

Background and summary of events

2. The resident is a tenant of the landlord. She lives in a 3 bedroom flat in a converted house with her two children, one adult and one minor. Her adult son has complex needs due to his autism, and the resident is his primary carer. At the time of the original complaint, the resident’s adult daughter and 2 grandchildren also resided at the property.
3. The resident’s son has a social worker. Based on the evidence provided by the landlord, the social worker corresponded extensively with the landlord from late September 2022 about the resident’s family situation and circumstances (copying the resident into his emails). He explained there was overcrowding in the flat, the flat was not suitable for a person with the son’s type and level of need, and that unavoidable noise created by the son as part of his condition was causing problems and complaints with tenants of neighbouring flats. He explained the seriousness of the situation and the direct impact on the son’s health and wellbeing, as well as on the resident herself.
4. In his emails in October and November 2022 the social worker emphasised the urgent need for the landlord to address the overcrowding, and help the resident move to a more appropriate home. He also explained the ongoing and increasing disputes with neighbours about noise caused by the resident’s son. He reported that a recent incident had needed police involvement, and said that “Again the neighbours do not understand the behaviours and difficulties that [the son] presents. [The resident and her family] are feeling harassed by the neighbours constant complaints about the noise.” In his emails the social worker asked the landlord what it was doing or planned to do about the family’s situation.
5. Only limited evidence has been provided by the landlord showing responses to the social worker’s emails, or it explaining what actions it was taking. In an email in October 2022 the landlord told the social worker it had met with the resident and her family, and clarified two main areas of issue were the neighbour disputes, and the resident’s need to move to a home better suited to her family’s needs. It did not give any information about its actions or intentions.
6. The social worker continued emailing the landlord with updates and requests for it to assist the resident until she made a complaint on 9 November 2022. She complained about what she said was a lack of support and assistance dealing with the neighbour disputes and with her attempts to move. She said she had provided medical information in support of a move, and had reported the neighbour problems repeatedly. She explained mediation had previously been tried unsuccessfully and she did not want to try again. She asked to meet to discuss her concerns.
7. The landlord met with the resident’s family and social worker following the complaint. Its notes of the meeting show they discussed the resident’s concerns, and the landlord explained the steps it had taken in response to the neighbour disputes. It also confirmed the resident’s current banding level for its choice based letting scheme, explained other move options she could explore, and how she could have her banding reassessed. It provided diary sheets and asked the resident to document when incidents occurred with the neighbours so that it could assess their frequency and nature. It also explained how to report noise nuisance to the local authority, and any incidences of intimidation or harassment by neighbours to the police and the landlord.
8. The landlord sent its complaint response on 17 November 2022. It was essentially the same information from its notes of the meeting.
9. The landlord visited the resident and her neighbours on 9 December 2022 to discuss the disputes and clarify the situation.
10. The resident provided the landlord with medical and health information to support a banding review, along with further information from the social worker. An external medical advice service assessed the son’s needs in January 2023. It concluded that he met the criteria for banding level C. The landlord’s banding panel considered the resident’s case and maintained her existing banding level B. It has separately explained that this higher level was due to other factors in the resident’s situation in addition to her son’s medical needs.
11. At some point in early 2023 the resident’s adult daughter and grandchildren moved out of the property.
12. The resident escalated her complaint in March 2023. She repeated her earlier concerns about the neighbour disputes and her need to move. She also complained about being told she was in rent arrears, and about receiving a different tenant’s rent account information.
13. The external medical advisers did a follow-up assessment for the resident’s son at the end of March 2023. They concluded that, while not ideal, the property was suitable for his needs.
14. The landlord sent its complaint response on 28 April 2023. It explained it had visited some of the resident’s neighbours to discuss their actions in response to noise from the resident’s family, how they could be considerate to the family’s circumstances, and the appropriate way to deal with any disturbance they experienced (report it to the landlord, rather than confront the resident). It said it believed it had acted appropriately, but urged the resident to complete diary sheets about any incidents so it could properly monitor the situation.
15. The landlord confirmed the resident was on the appropriate banding level for her housing applications based on the evidence it had, and that a management transfer (as the resident had requested) was not appropriate to her circumstances, as that option was intended for situations posing an immediate risk to health and safety. It again explained other relocation options and advised how to potentially increase her odds of success. It also managed her expectations about the availability of properties and the demand for them. The landlord addressed the resident’s data breach report, and explained why her rent account was in arrears. It concluded by acknowledging the ongoing distress and frustration the resident’s housing circumstances was causing her and her family, but felt that it had been handling her situation correctly. It apologised for its complaint response being several days late, offered her £100 compensation for that, and explained how she could bring her complaint to the Ombudsman if she remained dissatisfied.
16. In her complaint to the Ombudsman the resident explained her unresolved concerns about her need to move home to meet her son’s needs, and the impact of the neighbour disputes on her and her son’s wellbeing.

Assessment and findings

Investigation scope

17. In her complaint to the Ombudsman the resident explained that she has been trying to resolve the problems she has been experiencing since 2015. There are time limits on what the Ombudsman can investigate. The rules governing this Service (the Scheme) set out that matters which were not raised as formal complaints with a landlord within a reasonable timeframe may not be able to be investigated. A reasonable timeframe is usually considered to be around 6 months from when the issues arose. In this case the resident made her formal complaint to the landlord in November 2022. Accordingly, this investigation focuses on the landlord’s actions and decisions in the months leading up to the formal complaint.
18. Some of the information provided for this investigation shows that the resident made reports to the landlord about repair issues, and further nuisance and disturbance from neighbours after the end of the complaints process in April 2023. She has also informed us that her housing situation remains the same. While some of these issues are clearly continuations of the ones considered here, they cannot be considered in this investigation. If the resident is dissatisfied with the landlord’s handling of her reports after April 2023 she should raise a new formal complaint with it. After the landlord has investigated she has the option to bring her new complaint to the Ombudsman, if she remains dissatisfied.
19. In her complaint to the landlord the resident said that it had shared another tenant’s personal information with her, and that she was concerned something similar could happen with her own data. The resident’s concern is an understandable one, and such data mistakes are the role of the Information Commissioner’s Office (ICO) to resolve. Information about the ICO can be found on its website, and the resident should contact it to raise any such concerns she has.

The resident’s rehousing request

20. The landlord’s housing allocations policy sets out the different banding levels it gives tenants when they want to move homes. The levels range from A (the highest need to move) to D. Level A is described as being in cases where there is a life threatening medical condition or an imminent personal risk. Band B is listed as being for tenants with a medical need which is adversely affected by the housing situation, overcrowding, or when an urgent need to move is agreed in liaison with social services.
21. The landlord lists its available properties online. All eligible tenants can bid for them using the banding priority the landlord provided.
22. The landlord has a management transfer policy which sets out the grounds on which it might directly offer a property to a tenant outside the usual bidding process. It states that this option is for exceptional cases involving the safety and wellbeing of a tenant or their family. The process involves giving the tenant a banding level of A or B (depending on the circumstances), and they will then be able to bid on properties for 6 months using the higher banding. In Band A the landlord will also look for a suitable property to make a direct offer to the tenant.
23. The resident complained to the landlord that despite the information she had provided about her son’s needs, and the impact on him of living in close proximity to neighbours, it had not moved her. The landlord explained that it had assessed the resident’s request and her supporting information, and that the banding it had given her was the right one in her family’s circumstances. The evidence seen in this investigation confirms that the external medical assessors had seen the supporting information the resident provided, as well as information from previous assessments, and the details provided by the social worker. The assessors confirmed that the resident’s home was appropriate for her son’s needs, and recommended banding C, lower than what the resident currently had. The landlord explained that its banding assessment panel had given a B rating because it was considering factors additional to the son’s medical assessment. The landlord’s explanations are supported by the evidence seen here, and by its policy and procedures. It is clear the landlord used its discretion to give a higher banding than had been medically recommended because it was aware of wider factors affecting the family. That was fair and reasonable.
24. The landlord explained why it could not give the resident a higher rating, or offer a management transfer. Its explanations here were also in line with its policy and the facts of the case. The one rating higher than what the resident had was for cases of emergency or immediate risk, and nothing in the evidence indicates the resident’s situation had reached that level. As it was, the level that had been granted was for ‘urgent need’, which is undeniably what the social worker had told the landlord was the resident’s situation.
25. The landlord’s management transfer process is aimed at increasing a tenant’s banding to A or B in order to give their home bids higher priority. The resident was already at B level. The higher A banding was intended for exceptional cases where there was an immediate and real risk. Because of that, a management transfer would not have affected the resident’s likelihood of finding a new home.
26. The landlord acknowledged that even with her higher banding the resident had not been successful in her home bids. It suggested at least two other options for her to explore, mutual exchange and registering with the local authority. It explained how she could do this, and provided advice on improving her chances of success. It is not apparent from the evidence if these options had already been considered by the resident, or were subsequently followed up. Nonetheless, it was relevant and appropriate advice, and demonstrated the landlord’s intention to assist the resident as far as it could.
27. In her complaints to the landlord and the Ombudsman the resident has explained how the effects of her current living situation have impacted on her and her family’s health and wellbeing. The evidence supports her explanations about the impact on her, and especially her son. However, the Ombudsman’s role is to assess whether a landlord has acted reasonably in the circumstances of the complaint, not to substitute our own decisions for the landlord’s. That means that one of the things we have considered is how the landlord addressed the medical information and other supporting details she provided for her banding appeal. It is clear that that information was considered by the landlord in reaching its decisions. In the absence of any evidence of maladministration in the landlord’s handling, the Ombudsman has no grounds to dispute its conclusions.

The resident’s reports of noise disturbance and related nuisance from neighbours

28. The landlord has policies and guidance for neighbour disputes, and antisocial behaviour (ASB). The disputes policy states that the landlord will “look to provide help and advice to help residents resolve the issue themselves…The aim of any intervention is to help the parties in the dispute resolve the issue before it escalates to a tenancy breach and/or anti-social behaviour, and to prevent the dispute from re-occurring. If any of the parties have vulnerabilities…these should be considered when assessing which actions to take. If the vulnerable person has a support worker, carer or similar, then they should be involved as far as possible in resolving the dispute...Records should be kept of any reports of disputes, actions taken and the outcomes of these, in case the dispute should later escalate to anti-social behaviour.” The dispute guidance sets out various option to help resolve the problem. These include advising the parties to discuss the issue, mediation, reminding parties of their tenancy obligations, and referring the parties to external support. When receiving such reports, the policy says the landlord will advise the parties of these options.
29. No evidence has been provided showing the landlord received clear and specific reports of noise nuisance or ASB from the resident in the period leading up to her complaint. Reports by the resident after the end of the complaint process show that the disturbance she experienced from the downstairs neighbours mostly related to conversations heard through the floor, and cooking smells. More serious reports were received about other neighbours, including loud music late at night, and potential drug use, but the neighbours involved were not the landlord’s tenants, and it correctly signposted the resident to the police and local authority noise team.
30. The landlord explained in its first complaint response that it had visited the downstairs neighbours to discuss their concerns and explain the resident’s situation. No evidence of that visit has been provided for this investigation.
31. The evidence shows that the landlord visited the downstairs neighbours a second time, in December 2022, to discuss the situation between the two households. The landlord advised the neighbours to contact it when disturbances occurred, rather than confront the resident as they had been doing. That visit was reasonable in light of the fact that at that point it considered the issue to be a neighbour dispute rather than clear-cut ASB. The landlord was acting in line with its dispute guidance.
32. The social worker’s emails explain multiple times that disputes between the resident and neighbours were occurring, although they did not give specific details. The landlord has not provided for this investigation its responses to the social worker, which would have shown what actions it took, if any, in response to his reports.
33. The landlord has explained that it considered the reports it received to be neighbour disputes rather than ASB, primarily because the reports related to transference of everyday living noise. That view is broadly supported by the nature of the issues reported by the resident after the end of the complaint process. But no evidence of an assessment of the reports received prior to the resident’s complaint has been seen.
34. The landlord explained to the resident that for it to take action in regard to ASB it needed supporting evidence from her about the frequency, dates, and nature of specific incidents. It recommended she keep a log, or diary. That explanation accurately reflected the need for a landlord to have clear indications of ongoing disturbance on specific occasions for it to be able to robustly consider allegations of ASB.
35. In its complaint responses the landlord explained how, in addition to reporting to the landlord, the resident should report future concerns about noise disturbance and other nuisance to the local authority’s environmental health team, or to the police – depending on the severity and nature of the issue – and then provide any reference numbers she received to the landlord. That was appropriate and relevant advice, line with the landlord’s policies for disputes and ASB, especially as some of the alleged perpetrators are not the landlord’s tenants.
36. Overall, the landlord’s handling of matters prior to the resident’s complaint appears broadly reasonable and mostly in line with its policies and procedures. The one exception is in record keeping. The landlord’s guidance states that clear records should be kept of the landlord’s actions in relation to reports of neighbour disputes, in case the dispute escalates to ASB. In this case the landlord has not provided for this investigation its responses to the social worker’s reports about the ongoing disputes, any record of support or advice it gave the resident prior to her complaint, or records of its first visit and interview with the downstairs neighbour. It has still been possible to determine whether its actions were broadly reasonable from the other information provided, but a more robust finding may have been possible if the most relevant evidence had been seen. This omission is even more important in a case like this involving vulnerable family members, and where more care than usual should be taken by a landlord to ensure it does all it can to assist the parties involved. Nonetheless, there is no clear indication that the landlord’s apparent poor record keeping have impacted the resident’s situation.

The resident’s rent arrears

37. The resident complained to the landlord that it had not informed her that her rent payments and housing benefit were not sufficient to cover her rent. In response it explained the amount of the shortfall in the weekly payments, confirmed it had already contacted her to make arrangements, and explained that it had had contacted her multiple times about the arrears since 2020. The landlord has not provided evidence of these previous notices for this investigation.
38. After her complaint the landlord told the resident, and this Service, that some of her arrears are caused by the housing benefit payment cycle. That arises because housing benefits are paid in arrears, whereas rent payments are expected in advance. No tenant has control over this. Accordingly, many tenants will have a level of arrears each month which will be cleared by the benefit payment. The landlord also confirmed that its processes will always issue arrears letters to a tenant, even when the arrears are due to their benefit payment timing. While their tenancy agreements usually require it, tenants cannot always afford to pay a month of rent in advance in order to have their rent account continually in credit and avoid this situation.
39. It appears then that the resident had two types of arrears: a shortfall in benefit amounts which she needed to pay herself, and reoccurring benefit arrears each month which she could reasonably expect would automatically be corrected. Its process of issuing notices even for arrears outside a tenant’s direct control and which will automatically correct each month seems open to confusing the situation when there are arrears which actually do need attention and action by the resident. The landlord has not provided any evidence showing it made this distinction clear to the resident prior to her complaint. Without that its actions and response to the resident’s complaint on this issue do not appear reasonable.

Determination (decision)

40. In line with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s rehousing request.
41. In line with paragraph 52 of the Scheme there was service failure in the landlord’s handling of:
    1. The resident’s reports of noise disturbance and related nuisance from neighbours.
    2. The landlord’s handling of the resident’s rent arrears.

Reasons

42. The resident’s situation is clearly very difficult, and her and her family’s frustration and distress is wholly understandable. Nonetheless, the evidence shows the landlord handled her request to be rehoused reasonably, in line with both the evidence and information it had about her circumstances and its policies and procedures.
43. The landlord’s handling of the neighbour dispute reports it received from the resident and the social worker appear broadly proportionate to their scale and circumstances. However, some records of its actions that should have been available to the landlord was not provided for this investigation. That was counter to its policies and basic good practice.
44. There is no evidence of the landlord clearly explaining to the resident the cause and nature of her rent arrears.

Orders

45. In light of the limited records provided of its actions regarding the resident’s neighbour dispute and/or ASB reports prior to her complaint, and of its explanations to her about her rent arrears, the landlord is ordered to review the case, consider why only limited records were made, or provided, and identify how it can improve its processes to avoid such issues in future. The landlord must provide a copy of its review to the Ombudsman within 6 weeks of this report.
46. Given the clear frustration and distress caused to the resident by the lack of clarity about her rent arrears, the landlord is ordered to pay her compensation of £200. This payment must be made to the resident, not her rent account, and within 4 weeks. Evidence of the payment must be provided to this Service.

Recommendation

47. In the circumstance of automatic arrears letters, even in circumstances of known and predictable monthly rent arrears due to benefits cycles, the landlord is recommended to consider whether it has options to take to ensure its tenants do not receive continuous letters for situations which will resolve (temporarily at least) with the next benefit payment.