Notting Hill Genesis (202002556)

REPORT

COMPLAINT 202002556

Notting Hill Genesis

2 June 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

The complaint is about the landlord’s response to the resident’s concerns and reports about the hot water provision affecting her property.

Background and summary of events

The resident has an Assured Shorthold tenancy with the landlord.

Policies, procedures, and agreements

Lease

The Head Lease between the freeholder of the block), the landlord, and the estate management company sets out the management company’s responsibilities:
1. ‘The Management Company covenants with the Tenant and with the Landlord that it will at all times during the Term carry out the following obligations in respect of the Estate:
2. Maintain repair and replace the boiler and Communal Heating and Power Plant serving the Estate’.

Responsive repairs policy:

This sets out the timeframes for dealing with emergency and routine repairs:
1. For an ‘emergency’ repair e.g. heating (during October to March only) or hot water failure, the aim is to attend within four hours and have all major services restored within 24 hours. All further work also completed within 24 hours within reason.
For ‘routine’ repairs, these should be completed within 20 working days from date of report.
In respect of the role of Managing Agents, it states that for properties for which the responsibility to carry out the repair does not lie with either the resident or the landlord, staff will always pass on the details of said repair to the relevant party and liaise to ensure its satisfactory completion.

Compensation policy:

This sets out that the landlord will consider financial compensation where it has failed to follow its published policies or there have been unreasonable delays against its service standards.
Where the resident experiences distress of inconvenience following a service failure, it can make a discretionary payment of up to £250. In some circumstances, such as where there have been multiple service failures, or exceptional hardship, it might be appropriate to offer higher levels of compensation than outlined above if agreed by a senior manager.
In addition to compensation for distress and inconvenience, the policy also sets out that if the landlord’s failure to carry out repairs results in the loss or severe limitation of use of rooms or services within the property for unreasonable periods, it may pay compensation based on the daily rent that is payable by the resident, and this is in addition to any other compensation payable. The policy sets out where there has been a loss of heating and/or hot water (during October to March) the landlord will pay compensation based upon 10% of the daily rent.

Summary of events

The available records show that on 19 September 2018 the resident reported that there was a problem with the hot water; it was not a constant flow, and it only lasted a few minutes before running cold. An engineer attended and a repair was carried out to the system that day and everything was left in working order.
On 24 September 2018 the resident reported a loss of heating and that the hot water was only running intermittently. The records show that an engineer attended and noted that parts were required, which were then ordered. An engineer attended again on 1 October 2018 and re-confirmed that parts were required to restore the system. An appointment was booked in for 12 October 2018, but the records show this was not completed due to ‘no access’ and another appointment was then booked in for 24 October 2018.
On 24 October 2018 an engineer attended and concluded that the new parts were not needed, and the fault was due to an air lock in the system which he was able to resolve, and he left the system in working order.
The landlord has said that on 8 November 2018 an engineer attended and it was noted that a new filling loop and pressure regulator was required and the engineer also recommended that the system needed a ‘powerflush’.
The records show that on 4 December 2018 an engineer attended and changed the pressure regulator and left the system working with a ‘good flow through HIU’ (heat interface unit). However, a week later, on 10 December 2018 the resident reported that the hot water was running intermittently again. An engineer attended the next day and the records show the strainer was cleaned and the system was left in working order.
On 14 January 2019 the resident reported a loss of heating and hot water again. An engineer attended on 16 January 2019 and reported that they were able to restore the heating and hot water but a new PRV would be required.
The resident raised a formal complaint on 16 January 2019. She was unhappy with the ongoing issue over the last five months with the hot water only running intermittently for a few minutes at a time. She said that she was told further repairs were required and the system for the building needed a ‘powerflush’. She wanted the issue fully resolved and she requested compensation for the inconvenience this had caused her.
The records show that an engineer attended on 21 January 2019 and took photos of the PRV that needed to be replaced and the new PRV was then ordered. The engineer re-attended on 5 March 2019 and the records show that the new PRV was fitted and the HIU was flushed through and he also cleaned the filter and left the hot water working.
A week later, on 12 March 2019 the resident reported that the hot water was running intermittently again. An engineer attended and the records show that he was of the opinion that a Commercial Engineer needed to attend ‘to check the plant room to see why we are not getting enough heat to this flat’.
The landlord has said that it then contacted the managing company that was responsible for maintaining the primary heating system for the block. It said that there was a delay in getting the managing company to investigate the matter and the managing company concluded that there was no issue with the plant room (primary system) and that the fault was occurring from the heating unit in the resident’s flat (which the landlord was responsible for maintaining).
Following the above, the records show that on 23 July 2019 an engineer attended and confirmed that a part was required but he was able to leave the heating and hot water working. The engineer re-attended on 25 July 2019 and fitted the new part and left the resident’s boiler working. It was noted that the strainer was blocked with sludge and the engineer recommended that the primary system should be powerflushed.
The records show that an engineer attended on 20 August 2019 due to a report about low flow rate and he was able to increase this and he recommended that the primary system needed a powerflush.
The landlord issued its Stage 1 complaint response on 3 September 2019:
1. It apologised for the delay in responding to the complaint and acknowledged that there were ongoing issues which were not resolved within a reasonable timeframe and that there were considerable delays when the engineers were required to visit again for follow on works.
2. It apologised for the inconvenience caused by the high number of visits and for any distress which may have been caused for the periods where the resident had been left with no access to heating and hot water.
3. It offered compensation based upon its compensation policy for 10% of the daily rent amount for each day the resident was without heating and hot water during October to March. It calculated the offer as follows:
  1. 1 Oct – 24 Oct (no heating and hot water) = £76.60
  2. 8 Nov – 4 Dec (no heating and hot water) = £87.05
  3. 12 Mar – 22 Jul (no hot water) =£247.22
  4. Total – £410.87
4. In addition to this, in recognition of the length of time taken to resolve the issues and for general inconvenience or distress, it also offered an additional £250 as a gesture of goodwill.
5. Also, in recognition of the delay in responding to the complaint, it offered an additional £100 compensation.
6. The total compensation offer was calculated as £760.87.
The available records do not show the resident’s response to this offer. The records do show that the resident continued to have problems with the hot water flow and there were further attendances by engineers in September and October 2019 in response to reports of intermittent hot water flow. On 22 October 2019 the records show that the engineer noted that ‘the issue is with the district supply, needs commercial cleaning’.
The records show that an inspection was done with the managing company on 6 November 2019 and the landlord’s engineer provided evidence to show that the filter/strainer in the resident’s boiler was blocked with debris from the primary system. There is no information provided to show the outcome of these discussions with the managing company. The records show that an engineer attended again on 4 December 2019 to clear out the strainer on the resident’s boiler.
The resident has said that due to the ongoing problems with the intermittent flow of the hot water, she stopped paying her rent and contacted her MP for assistance. The resident wrote to her MP on 29 April 2020:
1. She explained that there was a problem with the boiler (HIU) in her property and despite several repair attempts, and cleaning of the filters every month, the pressure of the hot water flow entering the property remained intermittently low. She said that after the filters (strainer) had been cleaned it worked fine but this only lasted for a few days before getting blocked again and needing unblocking.
2. She said that she was not able to take baths and it was beginning to impact on her health and wellbeing. She confirmed that she did have a hot water supply but it was constantly too slow running and so she could never fill the bath with hot water.
3. She declined the landlord’s last compensation offer as she felt this was insufficient compensation for the trouble she has been put through. She said that the main system needed a full ‘industrial flush’.
The resident’s MP forwarded the email to the landlord on 19 May 2020. This was acknowledged by the landlord and it dealt with the email as an escalation to Stage 2 of the complaints process. On 4 June 2020 the landlord updated the resident and said that it needed more time to complete its investigation.
On 12 June 2020 a joint visit was arranged with representatives from the landlord, the managing company, the landlord’s heating contractor and an independent heating/hot water consultant. The report provided by the landlord showed that there was debris in the strainer and the flow rates recorded before and after the strainers were cleaned, and it was concluded that the debris from the communal primary system needed to be addressed.
The landlord’s internal emails on 15 June 2020 confirmed that all parties agreed that ‘the terminal pipework runs within [the block] need to be flushed (specifically on the resident’s floor). It was also agreed that the block would benefit from having an upgraded filtration unit installed in the plantroom, which would assist with maintaining the water quality in the block.
It was discussed that the debris was from the communal primary system and not from within the resident’s flat. The managing company challenged this on the basis that not all flats were affected in the same way as the resident’s. The correspondence shows that it was agreed that the root cause of the problem with the water flow could only be from the communal primary system and not from within the flats, and that the plantroom filtration would benefit the system as a whole and that individual pipework to the blocks and/or flats would also need to be flushed.
The landlord issued it Stage 2 complaint response on 16 Jun 2020:
1. It acknowledged the resident’s assertion that she had been experiencing intermittent hot water flow problems dating back almost two years, and its engineers had attended the property on numerous occasions.
2. As per the lease for the block the landlord was responsible for maintaining the HIU (heat interface unit – which transfers the heat from the communal plantroom and provides the flat with heating and hot water) and the secondary pipework within the flat. The managing company is responsible for maintaining the communal plantroom and the primary pipework leading up to the flat.
3. The reports from its engineers showed that the strainers within the HIU were regularly becoming blocked on the primary hot water system side. This considerably reduced the flow rate and resulted in no hot water to the outlets in the resident’s bathroom.
4. Following a recent inspection the strainers were again found to be blocked on the district side. This was cleaned and a full report was sent to the managing company. A joint inspection was then carried out and as a result of this visit, all parties agreed that the issue lies with the water quality coming from the primary pipework.
5. It agreed an action plan with the managing company, which included a full flush of the communal pipework within the block and the installation of an upgraded filtration system in the communal plantroom to further minimise debris clogging up in the strainer. It expected this work to be carried out in the next four weeks.
6. With regards to the issue of compensation, it explained that the compensation timeframe began in October 2018 as its compensation policy only allows for compensation for no longer than 12 months before the original complaint is lodged. In line with its compensation policy, it offered the following:
  1. 1 Oct – 24 Oct 2018 (no heating and hot water) = £76.60.
  2. 8 Nov – 4 Dec 2018 (no heating and hot water) = £87.05.
  3. 12 Mar – 22 July 2019 (no hot water) =£247.22.
  4. 16 – 20 Aug 2019 (no hot water in bathroom) = £16.70.
  5. 1 September – 25 September 2019 (no hot water in bathroom) = £83.25.
  6. 10 Oct – 16 Oct 2019 (no hot water in bathroom) = £19.98.
  7. November 2019 (no hot water in bathroom) = £99.90.
  8. 1 Dec – 11 Dec 2019 (no hot water in bathroom) = £36.63
  9. 1 – 27 May 2020 (no hot water in bathroom) = £89.91.
  10. Total compensation: £757.24
7. It explained that the delay in arranging a final repair was due to a reliance on the managing company agreeing to carry the remedial works. It acknowledged that the time taken to resolve this issue had taken significantly longer than it expected. Therefore, in addition to the £350 compensation offered at Stage 1, it would now offer a further £250 compensation for the length of time and the disruption. The total compensation amount was now £1357.24 (comprising of £757.24 for rent rebate plus £600.00 for delays and disruption caused).
8. In summary it accepted that there had been delays in carrying out appropriate maintenance to the communal hot water system. However, it said that this was due to its reliance on the managing company and their agents, who were ultimately responsible for carrying out these works.
The landlord’s internal correspondence confirms that on 17 June 2020 the managing company confirmed that it would carry out the agreed upgrade works.
On 30 June 2020 the resident contacted this Service as she was not happy with the landlord’s compensation offer. She was advised to wait eight weeks and then contact the Service again to progress her complaint.
On 4 September 2020 the resident’s HIU was serviced, and the certificate showed: ‘clean filters hot water nice temp and good flow rate through hiu checked heating components working correctly’.
On 9 September 2020 the resident contacted this Service again and she confirmed that the hot water situation was now sorted, but she was unhappy with the amount of compensation offered by the landlord.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case.
The key issue at the heart of this complaint is the resident’s dissatisfaction with the landlord’s response to her reports about the intermittent hot water flow affecting her property. In particular, the resident considers that the landlord has not done enough to address the underlying cause of the problem and has sought to pass its responsibilities on to a third party.
The landlord has demonstrated in its complaint responses that it has formally acknowledged and accepted its service failures with regards to its handling of this matter. It has acted appropriately by apologising for the service failures in relation to the delays in completing the repairs and by offering compensation in recognition of its failures. It is noted that the landlord has offered the resident a total compensation package of £1357.24, which is made up of £757.24 for rent rebate in line with its compensation policy plus £600.00 for the distress and inconvenience caused by the delays and disruption to the hot water provision. The resident has rejected this offer.
In considering whether or not the landlord’s offer of compensation is reasonable, the Ombudsman has taken into account the landlord’s compensation policy, and this services’ own Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our published Remedies Guidance. Some of the factors that the Ombudsman considers are whether the redress is proportionate to the severity of the service failure by the landlord and the impact on the resident.
Looking at the facts of this case, it is noted that the landlord’s obligations to the resident in respect of the hot water provision relate to the maintenance of the heat interface unit that serves the property (referred to as the secondary system). The landlord is also required to ensure that it responds to the resident’s reports of responsive repairs in accordance with its repair obligations and timeframes. However, the landlord is not responsible for any repairs or maintenance to the primary pipework and the communal system that serves the entire block (referred to as the primary system). The terms of the lease for the block, as detailed in paragraph 3 above, state that the managing company is responsible for the maintenance of the primary system.
With regards to the landlord’s obligations in respect of the secondary system and the responsive repair reports, the available evidence shows that the landlord did not always respond in an appropriate or timely manner. On some occasions the resident was left for several weeks with an intermittent hot water flow before a repair was carried out. For instance, the report on 24 September 2018 was not completed until 24 October 2018. The records show that this delay was due to an initial diagnosis that new parts were required, but when the engineer attended on 24 October to fit the new parts, he found that the parts did not need to be replaced and he diagnosed that the problem was with an air lock within the system. Similarly, the report logged on 8 November 2018 was not completed until 4 December 2018 and again it was noted that new parts were required.
The records show that the landlord’s engineers have replaced several parts on the heat interface unit over a period of more than 18 months, but on many occasions the engineers have also recommended that the primary system should be checked and a powerflush carried out. The records also show that there was a common problem with the strainer becoming blocked with debris every few months, again suggesting that there was an underlying issue that needed to be investigated further with the primary system.
Based on the evidence that is presently available, the landlord responded to several repair reports between September 2018 and March 2019 but it was not until the report logged on 12 March 2019 that the landlord contacted the managing company about checking the primary system. It is to be noted that the landlord acted appropriately by responding to its engineer’s findings that further investigations were required with the primary system. However, the landlord has not evidenced why it did not instigate this course of action sooner, especially given that its engineers had suggested this on previous attendances.
In addition, the landlord has also not evidenced why there was a delay of about four months for the investigations to be completed. The landlord has said that the delay was due to difficulties in liaising with the managing company, but there is no evidence to show what actually occurred within this period. There is also no evidence of what investigations were carried out and how it was concluded that the primary system was not the cause of the problem. The Ombudsman expects that, where a repair is potentially the responsibility of a third party, the landlord should ensure that it communicates promptly and regularly with the third party and keeps the resident informed of developments. There is no evidence that this happened in this case during the period from March to July 2019.
The landlord’s engineers attended numerous times, as detailed above in the summary of events, and noted that the strainer/filter was regularly being blocked with debris which was affecting the water flow, and it was recommended that the primary system needed a powerflush. This recommendation was made on several occasions in November 2018, July 2019, August 2019, and October 2019. However, despite the various attendances by the landlord’s engineers all mentioning the need for the primary system to be investigated and/or powerflushed, it was not until the Stage 2 escalation in June 2020 that the landlord then arranged a joint meeting with the managing company and an independent heating/hot water expert.
There is no evidence to demonstrate why the landlord did not investigate the potential problem with the primary system earlier. It has not provided any evidence to show that it raised this with the managing company in a proactive way. The limited information it has provided shows that it raised this issue with the managing company sometime between March and July 2019 and it accepted the managing company’s conclusion that the problem was with the resident’s boiler and not with the primary system. However, there followed several more instances where the same problem with the water flow was repeatedly diagnosed by its engineers and the recommendation to powerflush the primary system was noted. The landlord has not shown that it acted in a reasonable manner in that it did not act proactively and it took a year before it eventually arranged a joint inspection with an independent expert.
The resident’s concerns about the hot water flow were acknowledged by the landlord but it has not sufficiently demonstrated that its response was reasonable. In situations where the landlord is not responsible for a repair and is reliant upon a third party (e.g. a managing company) to take action, the resident is very much reliant upon the landlord to pursue the third party to ensure that the said action is being taken. In this situation the Ombudsman expects the landlord to effectively pursue the third party on the resident’s behalf. It also expects landlords to ensure that there are effective communications between all parties.
In this case, there is little evidence to demonstrate that the landlord acted proactively to ensure that the problem was addressed in a timely manner as it has taken from September 2018 till June 2020, some 21 months, to agree an action plan with the managing company.
The Ombudsman is satisfied that the landlord has identified that there had been significant service failures in its handling of this matter overall. The Ombudsman also recognises that the landlord has sought to resolve the complaint by offering compensation. However, the Ombudsman considers that the compensation offered does not provide sufficient redress for the delays, and the distress and inconvenience experienced by the resident. As such, the landlord should increase its offer of compensation for distress and inconvenience by an additional £300. This recognises the service failures identified and takes into account the degree of inconvenience caused, and the impact on the resident over a period of 21 months of living with this intermittent problem. The level of compensation in this case is in line with the Ombudsman’s Remedies Guidance where maladministration has been identified which has resulted in significant and serious long-term effect on the complainant.
In conclusion, the landlord has acknowledged that there were significant delays, and it offered compensation as a way of recognising its failures in accordance with its compensation policy. However, where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In this instance, the landlord did not offer compensation that fully acknowledged the impact the failings had and therefore the offer should be increased by an additional £300.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s concerns and reports about the hot water provision affecting her property.

Reasons

The landlord has acknowledged the resident’s concerns and has accepted that there were service failures in its handling of this matter. It has apologised for the identified service failures in respect of delays in completing the repairs and it has accepted responsibility for this. However, in this particular case, having considered the available evidence, the Ombudsman is of the view that the compensation offered by the landlord was not reasonable and proportionate. The compensation amount offered did not resolve the complaint satisfactorily and therefore the offer should be increased to an amount that acknowledges the length of the delays and the distress and inconvenience caused, in line with this Service’s Remedies Guidance.

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident its original offer of £1357.24 if it has not already done so.
2. Pay the resident an additional sum of £300 compensation for distress and inconvenience caused by the service failures identified with its handling of the repairs.
Evidence of the payment of compensation to be provided to this Service within four weeks.

Recommendations

In this case there was some debate between the landlord and the managing agent regarding the responsibility for the maintenance of the primary and secondary pipework. It is acknowledged by the landlord that the lack of clarity on this crucial point hampered its efforts to try and resolve the issues complained about. Therefore, in order to avoid such problems in the future, the Ombudsman recommends that the landlord ensure that the respective responsibilities for maintaining the communal heating system and associated pipework is made clearer so that all parties are aware of the correct position going forward.