Notting Hill Genesis (202006766)

REPORT

COMPLAINT 202006766

Notting Hill Genesis

4 November 2022

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 resident’s complaint is about:
1. The landlord’s response to the resident’s reports of:
  1. The resident’s intercom being intentionally switched off by staff.
  2. Concierge staff leaving bins in communal areas and blocking access.
  3. Emails from concierge staff to residents that the resident found threatening.
  4. An incident of a loss of electric lighting in a communal area.
  5. The resident’s request to remove staff from their post.
2. The landlord’s response to the resident’s report of bulky items being placed for disposal near his parking bay and the length of time taken for items to be collected.
3. The landlord’s response to the resident’s concerns that:
  1. CCTV was not used to identify the individual responsible for placing items near the resident’s parking bay.
  2. Staff not taking out refuse bins.
  3. Service charges being incurred but no service being received.
  4. Concierge staff having the use of an “en-suite bedroom”.
4. The landlord’s complaint handling.

Background and summary of events

The resident and his wife occupied a two-bedroom second-floor flat under an assured tenancy with the landlord, which tenancy began on 28 June 2010. Both the resident and his wife had suffered ill-health and had limited mobility. The resident was allocated a specific parking space in the building.
The landlord was a leaseholder of the freeholder of the building in which the resident’s flat was situated. The building was managed by a managing agent who was employed by the freeholder for the day-to-day management of the property, including the employment of a concierge service.
Under the tenancy agreement, the landlord agreed to provide services set out in an appendix. The appendix was not provided to this service. The resident was to pay a variable service charge for those services.
The landlord’s obligations included keeping the common parts in good repair, including taking reasonable care to keep the lighting of common parts and entryphone installations in working order.
The landlord has informed this service that residents were advised to notify the managing agent/concierge staff of any issues within the building in the first instance and to let the landlord know at the same time so that it could monitor to ensure issues were dealt with.
Under its repair policy, the landlord would attend to emergency repairs within four hours and have all major services restored within 24 hours. All further work would also be completed within 24 hours, within reason. Emergency repairs included issues which presented an “immediate” danger, or a major electrical fault. A routine repair was non-urgent work and was to be completed within 20 days. Communal repairs were carried out to items such as lighting and door entry systems. For properties for which the responsibility to carry out the repair did not lie with the landlord, the landlord would liaise with the relevant managing agent to ensure its satisfactory completion.
The landlord’s complaints procedure was a two-stage process, excluding an informal stage. The landlord was to respond to the resident within 10 days of their complaint. If the resident requested the complaint be escalated to the second and final stage, the timescale for a review the complaint would be within 20 days of the resident’s request.

Chronology

On 16 September 2020, the resident wrote to the landlord as follows:
1. He reported there was a “blackout” in the corridor outside his flat. The concierge had replied that the lighting would come back on within two hours. He considered that the concierge staff member chose not to attend to reset the light, given the delay in the concierge resetting the system.
2. He considered that the “en-suite bedroom” where the staff member was located should be closed.
3. He wanted the landlord to sack the concierge staff.
4. He asked the landlord to log this as a first stage complaint.
The resident wrote mid-morning on 20 September 2020 that the intercom was not working. He reported that although the concierge staff could see his visitor by means of CCTV, they did not open the door for his visitor. He considered his intercom had been deliberately switched off.
The landlord wrote on 21 September 2020 to advise it did not employ the concierge service. It, itself, was a leaseholder along with other leaseholders and therefore had no influence over the recruitment of the management service. It had not received other complaints. Once a repair was reported, the managing agent relied on contractors to carry out the repair, and if there is any delay due to parts or complications this was dealt with accordingly and this would be seen as reasonable. It would request an update about the intercom.
The landlord wrote, according to the landlord, at mid-morning on the same day, that the intercom was working again. In response, the resident requested the engineer’s report. The landlord replied on the same day that it would arrange to obtain the report, if there was one, and provide a copy of it to the resident. It wrote further on 22 September 2022 to explain that an engineer had not been required. The concierge reset the system in the communications room. It was not possible to turn off an individual’s intercom. If the buzzers were turned off in the communication room, the entire block would have had the same issue.
The resident wrote on 23 September 2020 asking the landlord to log his complaint regarding the intercom failure.
1. He asked why the concierge had not reset the intercom sooner. He did not believe the landlord’s explanation and considered that switching it off was deliberate. He added that a particular member of the concierge staff did no work.
2. A member of the concierge staff placed communal bins in the driveway which blocked a path.
3. He objected to emails from the concierge staff to residents which he had found bullying, threatening and harassing. He provided a number of examples, including one of 3 September 2020 as follows:
  1. “Dear Residents, We have had complaints this week regarding noise in the courtyard, although we want you to enjoy the space of the courtyard please be mindful that noise can travel throughout and currently we still have people working from home. Please remember children must be supervised while in the courtyard and noise kept to a minimum. Thank you for your cooperation and understanding.”
On 6 October 2020, the landlord wrote to the resident with its Stage One response in relation to the resident’s complaint regarding the intercom. It confirmed that the concierge staff was not able to turn off the buzzers to individual flats. The managing agent offered to meet with the resident together with the landlord to explain their procedures. The resident could bring any other person, as the resident wished.
The resident wrote to the landlord on the same day, asking it to escalate the complaint. He considered that the complaint response was the same as the landlord’s email of 22 September 2020.
On 18 October 2020, the resident reported that items including a washing machine and microwave had been left in his reserved disability car bay. The concierge staff did not move the items even though he considered they had seen them on CCTV. The resident asked the landlord to remove the CCTV as it intruded on his privacy. He wanted the landlord to sell the “en-suite bedroom”, where the concierge staff sat in order to generate funds and save money. He asked the landlord to add this to his second and final stage complaint regarding the driveway being blocked by communal bins.
The landlord replied on 19 October 2020 stating it would look into the report of a washing machine next to his parking bay. It would not add the report to his previous complaint, as it had not been investigated at Stage One, even if the issues were similar.
The resident contacted this service on 22 October 2020 and asked for his complaint to be logged regarding the items in his parking bay; the concierge staff not taking action despite the CCTV being situated on his bay. He was unhappy that the landlord had asked him to find out who had left the washing machine in his parking bay. He objected to paying for the concierge services. The washing machine was in situ from 18 to 22 October 2020. The resident provided this service with photographs showing a washing machine, microwave and a television stand.
He cited the following extract from a letter from the landlord:
1. It set out the refuse collection days and that staff put them out the day before collection. The resident had provided a historical photograph. It asked for further clarification of the complaint. The freeholders were entitled to use the flat/room as they choose and this was not for the landlord to comment on, unless some sort of nuisance was being caused.
On 2 November 2020, the landlord sent its final response to the complaint as follows:
1. It apologised for the inconvenience when the door entry bell stopped working. While there had been a similar incident in April 2020, it was unable to conclude that the intercom had failed at both times for the same reasons. The managing agent had informed the landlord that the system was reset from the communications room on this occasion and therefore there was no need to call out an engineer. The managing agent was unable to disable an individual buzzer as this would affect the whole block. The landlord had no cause for concern in the managing agent’s management of the development and it had not received complaints from other tenants. It was unable to conclude that there was an intentional act to deceive and turn off the entry bell. It added that the managing agent was obligated to work according to the RICS (Royal Institution of Chartered Surveyors) code of conduct in terms of their operational practices. It repeated its offer for the resident to meet with the managing agent.
2. It had asked the managing agent to ensure that the bins were not blocking access, exits, causing any hazards or breaching Health and Safety regulations. The arrangements were up to the managing agent and the agreements in place.
3. It had considered the messages sent by the managing agent. It deemed that they were sent in response to reports from other tenants. It considered that that the tone of the letter was well–mannered, courteous and empathetic. It could not identify any threatening or controlling content. It had, however, relayed the resident’s comment to the managing agent.
4. It apologised for the incident on 16 September 2020 when the corridor was dark. The resident’s email showed correspondence sent to the residents advising that emergency lighting was being tested and the test would take two hours. According to the resident’s emails, the lights were off approximately 15 minutes in excess of the planned two hours. It was satisfied that the residents were informed of the emergency lighting test and that the time the test took was reasonable and not far outside of the original estimate.
5. Regarding removing staff from the managing agent, it had not received other complaints. It had explained that the concierge service was not employed by (the landlord). It repeated the invitation for the resident to meet with it and the managing agent.
On 6 November 2020, the landlord asked the resident to clarify his reasons for wishing to escalate his complaint to Stage Two.
The resident replied on the same day that he found the question “childish”. The landlord replied and explained its enquiry was “to assist…in coming to a good resolution”. The resident reported that the intercom screen was out of order and was difficult to hear.
The landlord wrote on 12 November 2020 with its Stage Two and final response to the resident’s following complaints:
1. The landlord apologised for the inconvenience caused when a washing machine was placed close to his parking bay. It had discussed this with the managing agent who reported that a resident had arranged a bulk collection and was asked to put it outside the waste room. Any obstruction to his vehicle and his safe entry and exit to it should be avoided. Unfortunately, the local authority did not collect it until 12 November 2020. The managing agent moved the washing machine to ensure it was no longer an obstruction. It also had emailed all residents with instructions to follow for bulky waste collection, which it set out. It apologised for the inconvenience this matter had caused the resident.
2. The managing agent had identified the resident involved. It apologised that the housing officer had suggested that if he knew who it was he could let them know. It agreed it was not his responsibility. The CCTV was installed for the security and safety of the residents.
3. It set out the days for waste collection. The concierge service did not move the bins themselves as they were extremely heavy but another staff member was trained and equipped for this. It had asked the managing agent to monitor where the bins were placed so that there was no health and safety issues.
4. In relation to the question about the level of service, it stated that feedback and its experience showed that the managing agent was quick in responding to issues and took ownership when things went wrong. It would continue to work with the managing agent to rectify any issues.
5. It confirmed it was unable to get involved in how the “ensuite bedroom” facility was used as it was not its building, It was a matter for the freeholder. It had made enquiries and learnt that there was no “en-suite bedroom”. There was a bathroom and a kitchen/office. It offered £50 compensation regarding the washing machine being left near his parking bay.

Assessment and findings

The resident’s intercom, access being blocked by bins, emails from the concierge staff, incident of loss of lighting in the resident’s corridor and the resident’s request for the landlord to sack the concierge agent staff.

The evidence showed that the entryphone was repaired within 24 hours. While not presenting an immediate danger, this timescale was within the landlord’s own service timescales for an emergency. While the building was managed by a managing agent employed by a third party, the Ombudsman would expect the landlord to make reasonable efforts to ensure that a service was provided, as set out in the landlord’s own policy. The landlord acted reasonably in liaising with the managing agent and ascertaining in a very short space of time what had occurred. It also responded promptly and addressed the resident’s query. It reasonably offered to obtain the engineer’s report, if one existed. Its explanation why there was no engineer’s report was reasonable.
There was no evidence that the concierge staff had turned off the resident’s intercom and, indeed, if anything, demonstrated that it was unable to. The landlord was entitled to accept the managing agent’s explanation that the concierge staff could not turn off an individual’s intercom. Its explanation that it had no control over the recruitment of the concierge staff was reasonable. All it could do, and it did, was to monitor reports. It considered whether there had been other complaints and there had not been any. Given the short time within which the intercom was not working, there was no other steps the landlord could have taken. It was reasonable of the landlord to offer to arrange and attend a meeting between the managing agent and the resident.
It is noted that the landlord’s responses regarding the intercom were repeated in its correspondence. However, this did not render the responses any less valid.
The landlord’s response regarding the bins was reasonable. There was no evidence that this was a recurring incident. The landlord did what it could by liaising with the managing agent.
The landlord was entitled to consider that the content of the emails from the concierge staff was reasonable. It was also reasonable that the landlord found the emails helpful, their aim benign, and indeed constructive, as the content was to promote considerate living. It is understandable that the resident would have particular concerns about safety and access, given his and his wife’s disabilities. However, there was no service failure by the landlord.
The landlord’s explanation for the “black-out” was reasonable. The managing agent had warned residents of the test. It was right to test the systems. The overrun of 15 minutes was within reasonable confines and, given its brevity, did not constitute a service failure.

The landlord’s response to the resident’s report of bulky items being placed for disposal near his parking bay and the length of time taken for items to be collected.

There was no dispute that items were placed near the resident’s disability car parking space. According to the resident, this was for a period of four days. As the items were placed by another resident and the local authority had delayed collection, no fault is attributed to the landlord in that regard. However, the Ombudsman would expect the landlord to make arrangements to move the items out of the resident’s way in the meantime, which it did. Its explanation of how it dealt with the matter was reasonable, although it may have taken longer than desirable.
The evidence showed that the landlord was proactive and liaised with the managing agent. It acknowledged the particular inconvenience to the resident, and made an offer of compensation that, in all of the circumstances, the Ombudsman considers to be reasonable. It demonstrated that it took the matter and its impact on the resident, given his disabilities, seriously. It apologised for asking the resident to have reported if he knew the identify of the resident who left the items. It was also reasonable that it addressed the issue by amending its advice on refuse items to be collected. In the circumstances, the Ombudsman considers that there was reasonable redress regarding the report of bulky items.

Use of CCTV, refuse bins, provision of services, concierge staff’s use of an “en-suite bedroom”.

The landlord’s explanation why CCTV was not used to identify the person who had left the items in the garage was reasonable. It had already explained that it was aware of the identity of the resident who had placed the items near the resident’s parking space. The resident‘s complaint also addressed that he felt the CCTV was an intrusion of his privacy and he wanted the CCTV removed from the vicinity of his car. The landlord’s response to the concern that the CCTV was there for the security and protection of residents was reasonable. The resident himself wanted the concierge staff to have used it in order to identify the person who had left the items near his parking bay.
During the course of the complaint, the resident stated his objection to paying for the service provided by the concierge staff. His complaint essentially concerned the level of services. The landlord is required to ensure that service charges are reasonably incurred. The Ombudsman does not consider the level of service charges. They are better addressed by the First-Tier Tribunal (Property Chamber). However, the Ombudsman does consider the landlord’s response to a resident’s concerns. While it is open to the resident to raise queries about service charges and ultimately apply to the tribunal, the Ombudsman would expect the landlord to address queries in relation to service charges proportionately and reasonably. In the view of the Ombudsman, the landlord’s response was reasonable given that it had no cause for complaint or concern. The lack of reports and complaints from other residents, as well as its own relationship with the managing agent, was a reasonable basis upon which to consider that the charges for the concierge staff were reasonably incurred and there was no basis for further investigation. Furthermore, the landlord had suggested a meeting with the managing agent so the resident could clarify any points he may have had.
The landlord’s explanation that it was a matter for the freeholder and not the landlord as to what the freeholder did with its own property was reasonable and appropriate. It was reasonable of the landlord to investigate, and also clarify, that the “ensuite-bedroom” was in fact the concierge staff’s office, with the basic facilities one would expect in an office environment.

The landlord’s complaint handling

While the complaint procedure was clearly set out, and the landlord complied with its timescales, there were occasions when the landlord did not respond to the resident’s complaints in turn. For example, the resident raised his complaint about the “black-out” In the corridor and the “en-suite” bedroom in the same complaint on 16 September 2020 but the complaints were responded to separately.
It is recognised, however, that the resident made a number of complaints. The Ombudsman does not consider there was a significant impact on the resident in that regard but will make a recommendation.
Its request for clarify for the reasons for the resident’s request for an escalation of the complaint was reasonable. It reasonably explained its request. The landlord demonstrated that it considered the resident’s reports and complaints and provided a response to each. It also offered to resolve the resident’s concerns by meeting with the managing agent.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s reports of:
1. The resident’s intercom being intentionally switched by staff.
2. Concierge staff leaving bins in communal areas and blocking access.
3. Emails from concierge staff to residents that the resident found threatening.
4. An incident of a loss of electric lighting in a communal area.
5. The resident’s request to remove staff from their post.
In accordance with Paragraph 53(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress in relation to the landlord’s response to the resident’s report of bulky items being placed for disposal near his parking bay and the length of time taken for the items to be collected.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s concerns that:
1. CCTV was not used to identify the individual responsible for placing items near the resident’s parking bay.
2. Staff not taking out refuse bins.
3. Service charges being incurred but no service being received.
4. Concierge staff having the use of an “en-suite bedroom”.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s complaint handling.

Reasons

There was no evidence that the issue with the resident’s intercom was a result of an intentional act. The landlord’s response to the resident’s concerns and its explanations were reasonable.
The landlord liaised with the managing agent and it arranged to move the items left near his parking bay. It offered reasonable compensation and it changed its processes for collection of bulky items.
The landlord’s explanations regarding the CCTV, the bins and the service charges were reasonable. The landlord also explained there was no “en-suite” bedroom but an office.
The landlord responded to the resident’s complaints with explanations of its decisions and actions and within its policy timescales. It offered to arrange a meeting with the managing agent in order to address and resolve the resident’s dissatisfaction in a holistic manner.

Recommendations

The Ombudsman makes the following recommendations:
The landlord should ensure that it consistently responds to residents’ complaints systematically.