Notting Hill Genesis (NHG) (202322974)

REPORT

COMPLAINT 202322974

Notting Hill Genesis (NHG)

31 July 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

The complaint is about the landlord’s:
1. Actions regarding the previous resident’s health condition and the handling of the previous resident’s reports of repair issues.
2. Failure to clear the property for a home buyer’s survey prior to the resident moving in.
3. Response to the resident’s reports of rising damp.
4. Communication with the resident regarding its responsibility for repairs and maintenance.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all of the evidence, in accordance with paragraph 41 and 42 of the Scheme, the following aspects of the complaint are outside the Ombudsman’s jurisdiction.
1. Actions regarding the previous resident’s health condition and the handling of the previous resident’s reports of repair issues.
2. Failure to clear the property for a home buyer’s survey prior to the resident moving in.
3. The landlord’s response to the resident’s reports of rising damp.
The Ombudsman cannot consider the complaint about the landlord’s actions with the previous resident health condition and the previous resident’s reports of repairs under paragraph 41(a) of the Scheme. This is because the resident was not in a landlord/tenant relationship with the member at the time these actions happened.
Under paragraph 42(c) of the Scheme, the Ombudsman may not consider complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 12 months. As the issue of rising damp and the home buyer survey dates back to 2015, due to the length of time between this and raising a formal complaint, the Ombudsman considers this issue is outside of jurisdiction.
The complaint about the landlord’s communication is within the Ombudsman’s jurisdiction and is considered below.

Background

The resident is a shared ownership leaseholder of the landlord, owning 25% of the property. The resident purchased his share of the property in 2015 and lives with his partner and 2 children.
Shortly after moving in the resident contacted the landlord as he had concerns about a floor collapse and rising damp. On 2 June 2015 the landlord explained that the previous leaseholder had a supplemental deed which meant that it was responsible for repairs and maintenance during the previous leaseholder’s occupation of the property. However, once the property was sold, the supplemental lease ceased and because of this it was not responsible for any repair works under the lease held by the resident.
On 21 October 2022, the landlord contacted the resident to say that it would like to arrange an inspection of the resident’s property. The inspection was arranged for 19 December 2022.
A surveyor carried out an inspection on 19 December 2022 and recommended that the resident’s lounge, kitchen, hallway and all 3 bedrooms needed damp treatment and repair works. The surveyor also noted that some external work would be required and recommended that a full damp inspection was completed.
The resident emailed the landlord on 21 December 2022 and thanked the surveyor for completing the inspection. The resident explained that he had contacted various property managers since they moved in and that the problem with damp was significant.
On 16 January 2023 a full damp inspection was carried out by a contractor. The contractor provided its report to the landlord on 27 January 2023. The contractor recommended both internal and external works throughout the property. The contractor also advised that prior to the works being carried out the landlord would need to remove all plumbing, radiators, electrics, furniture and stored items from restricted areas of the property. The works were scheduled to take place over 6 weeks starting 24 July 2023.
Between 9 May and 4 June 2023, the landlord and resident were in communication about a decant from the property while the repair works took place.
On 5 June 2023 the landlord called the resident to explain that it had made a mistake and that it was not responsible for any repairs to the property. The resident emailed the landlord the same day to express his deflation and upset about the decision.
The landlord responded the following day with a letter to explain what had happened. It explained that the confusion arose as it had failed to update its system to remove the supplemental deed when the property was sold. This meant that when a review of its properties took place, the resident was incorrectly told that the landlord was responsible for repairs and maintenance. It said that it had passed the case to its Post Construction Team (PCT) for review. The landlord also apologised for the misunderstanding and offered:
1. £1,000 in compensation for the failure to update records, incorrect communication, inconvenience, distress and confusion caused.
2. A specialist contractor to complete a thorough mould wash of the property without charge to provide temporary mitigation while the resident considered what works were required to the property.
Between 9 and 20 June 2023 the resident asked for a timeframe for the PCT review and what the review would entail. The landlord explained that the PCT would review reports provided and explore options to determine if the property meets the criteria for a defect claim.
On 20 July 2023 the resident raised a formal complaint. The complaint covered several issues including the miscommunication from the landlord about whether they were responsible for the damp repairs or not.
The landlord emailed the resident on 26 July 2023 to explain that the PCT review had been completed, but that it was determined the case did not meet the criteria for a defect claim.
On 31 July 2023 the landlord provided its stage 1 complaint response. The response covered all issues of complaint and upheld the complaint about miscommunication. The landlord repeated its offer of £1,000 compensation and a mould wash.
The resident escalated his complaint on 10 August 2023. The landlord acknowledged the complaint on 29 August 2023 and emailed the resident on 11 September 2023 to say that a stage 2 response would be sent by 19 September 2023.
The stage 2 response issued on 19 September 2023 echoed the stage 1 response and stated that the offer of £1,000 and a mould wash remained the same and was its final response.

Assessment and findings

Communication regarding responsibility for repairs and maintenance

Both parties accept that the landlord incorrectly communicated that it was responsible for repairs and maintenance in October 2022, and that it failed to correct this miscommunication until June 2023.
The landlord held a supplemental deed with the previous resident. This supplemental deed at clause 1.4 said, “the leaseholder means the person named above and does not include any successors in title or assigns”. This meant that the supplemental deed was exclusive to the previous resident and could not be passed on through succession or passed to a new resident via an assignment if the share in the property was sold.
The miscommunication about its repair and maintenance responsibilities was a failure by the landlord in its record keeping. The landlord failed to update its own system to reflect that the supplemental deed agreed with the previous leaseholder, did not pass on to the resident when he purchased his share of the ownership.
The landlord’s failure to update its records gave the resident a false expectation that all repairs required at the property would be completed by the landlord. The impact to the resident occurred over a long period of time, as it took 8 months for the landlord to realise its error and tell the resident it would not be completing repairs.
The resident allowed the landlord to complete surveys and was in the process of agreeing a decant before he was told that he was responsible for repairs. This caused the resident significant inconvenience and distress. This impact was intensified as the resident lived with his partner and 2 young children, aged 9 and 5, and had prepared his family for a decant before he was told this would not happen.
While there were failings by the landlord, to its credit, the landlord quickly acknowledged what had gone wrong and made an offer to remedy the impact caused. This included a referral to its PCT about making a defect claim at the property.
On 26 July 2023 the landlord emailed the resident to explain that its PCT had determined the case did not meet the criteria for a defect claim. However, it did not go on to explain the reasons why a defect claim could not be made. Based on the evidence available it appears that the property was original bought as a ‘Do It Yourself Shared Ownership’. This meant that the house is not one that was built by the landlord and so did not meet the relevant criteria. The landlord’s communication about this could have been better and provided some clarity to the resident at what was an upsetting time.
When the resident raised the issue as a formal complaint, the landlord responded to the complaint in detail and in line with its complaint policy. It responded within 10 working days at stage 1. While there was a small delay in providing its stage 2 response, it contacted the resident to explain the delay and then responded by the new deadline it had agreed.
The offer made by the landlord was to provide a free mould wash and compensation of £1,000 broken down as:
1. £250 for failing to update its records.
2. £250 for communicating the incorrect information to the resident.
3. £250 for the distress and inconvenience caused.
4. £250 for the inconvenience caused in providing access to contractor’s and surveyors.
When looking at the landlord’s own compensation policy it sets out that where there has been a “serious failure in service delivery over a period of time which has caused a significant level of distress and inconvenience caused to the resident”, the landlord should offer compensation of up to £250. The offer made by the landlord was at the highest scale set out in its compensation policy and reflected the impact this had on the resident. As the landlord considered each failing individually and offered proportionate compensation the Ombudsman finds that there was reasonable redress in the landlord’s handling of its miscommunication about repair responsibilities.

Determination

As noted above the following complaints are outside of the Ombudsman’s jurisdiction:
1. Under paragraph 41(a), the complaint about the landlord’s actions regarding the previous resident and failure to clear the property for a home buyer’s survey.
2. Under paragraph 42(c) the complaint about the landlord’s response to the resident’s reports of rising damp.
In accordance with paragraph 53(b) of the Scheme, there was reasonable redress in relation to the landlord’s communication with the resident regarding its responsibility for repairs and maintenance.

Recommendations

The landlord is recommended to:
1. Review its offer of training for staff involved with the resale of shared ownership properties and consider whether it should provide refresher training on how to identify supplemental deeds and update its systems at the point of sale.
2. Pay the resident £1,000 compensation if it has not already done so.
3. Contact the resident and offer to arrange an appointment for a thorough mould wash of his property at a time of the resident’s own convenience.
4. Write to the resident to explain the reasons why his case did not meet the criteria for a defect claim.