Notting Hill Genesis (202007671)

REPORT

COMPLAINT 202007671

Notting Hill Genesis

29 October 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 level of compensation offered by the landlord for its acknowledged service failures:
1. In response to the resident’s reports about repairs to his kitchen.
2. The complaint handling.

Background and summary of events

The resident is an assured tenant of the landlord and the tenancy commenced in December 2006. The property is a two bedroom flat. The resident has said that he is vulnerable.
As per the landlord’s repair and complaint policies:
1. Emergency repairs are expected to be completed within 24 hours (within reason) and routine repairs are to be completed within 20 working days from the date of the report.
2. The landlord is responsible for repairs to the kitchen units, walls and floors. The resident is responsible for internal decorations, repairs to small cracks in plasterwork, furniture or floor coverings.
3. Complaints related to an ongoing legal matter will not be dealt with under the complaint process.
4. Complaint timescales are 10 working days (stage one) or 20 working days (stage two). The landlord is expected to communicate with the resident if there are any delays (as per good practice).
5. The landlord may offer compensation payment as a gesture of goodwill (maximum £50) and on a discretionary basis in recognition of a service delivery failure (maximum £250).
6. The landlord’s calculation of compensation for the loss of a kitchen due to a repair is 30% of the weekly rent. The policy sets out the exclusions for compensation.

Kitchen reports and initial response

The resident reported repairs to the landlord about the kitchen on 28 August 2020. An operative visited the property and discussed the repairs and kitchen replacement. There was a disagreement between the resident and operative. The resident asked the operative not to send any reports to the landlord, instead, the resident emailed the landlord himself on 2 September 2020 and explained his concern about the kitchen.
There were further inspections of the resident’s kitchen from 8 – 21 September 2020 following the resident’s report. It was established by the landlord that the kitchen was “in a very bad state” and that this would be forwarded to the kitchen renewal team, for which there was a waiting list. The landlord considered if there was anything it could do in the meantime due to the potential health and safety hazard.

Formal complaint

The resident contacted the landlord on 21 September 2020 to make a formal complaint. The resident complained that:
1. The kitchen was not fit for purpose due to age and deterioration. Two contractors visited already, and the resident also provided pictures of this to the landlord.
2. One of the contractors said that he needed a new kitchen, this would take four weeks and he would send a report to the landlord. The resident explained that he felt uncomfortable with the contractor so the resident closed the job and escalated it to the housing officer.
3. The resident said that the landlord had said that it could not replace the kitchen due to the budget.
4. No works had been carried out to repair or make good the kitchen; the first contractor said that some of the units were beyond repair.
5. The resident explained that his work surface had come loose and fallen on the floor, the sink was leaking due to the broken unit and one cupboard was dangerous and hanging off.
6. The resident required the kitchen to be put in a good state of repair so it could be used and then said this required replacement. He also required storage for food.

Temporary repair dispute

The operative attended on 22 September 2020 and reported that the kitchen was in a poor condition and all of the doors had been thrown away. He recommended a new kitchen and said that in the meantime he could do the repair with some new units and a worktop as a temporary measure, until the new kitchen came into the scheme. He asked the landlord to confirm if it wanted to go ahead with the temporary fix so that he could arrange this (23 September 2020). He also said that the resident was unsure of whether to proceed as he wanted to ‘go legal’. The complex work team asked the housing officer to confirm with the resident so that it could book in the work.
On 22 September 2020, the resident contacted the landlord. The resident offered his own view on the operative’s proposal. He explained that the kitchen was in urgent need of replacement and it did not have adequate space and layout. The resident also said that he was a vulnerable tenant and in receipt of a war disabled pension and the landlord failed to take this into account.
On 24 September 2020 the landlord considered the resident’s points and concluded that the kitchen should not be left in the state it was in, due to the risk to the resident. It recommended to its team that it temporarily fix it.

Stage one response

The landlord issued a stage one response on 2 October 2020. It said that it understood that the resident did not want a temporary fix to make the kitchen safe and usable due to the risk of Covid-19 and time off work. It further said that:
1. A job was raised by the contact centre on 28 August 2020 to survey the kitchen. The contractor advised on repairs/replacement of units and provided measurements.
2. There was a disagreement between the resident and contractor; the resident texted the contractor to let him know that he thought he was rude and did not feel comfortable to allow him to do the works and not to send any quotes to the landlord.
3. Another job was raised for 8 September 2020; the contractor advised that the kitchen was in a state of disrepair but the resident declined to repair any of the units as he wanted a new kitchen.
4. The landlord visited the property on 11 September 2020 to take photographs of a leaking pipe under the kitchen sink and raised a job on the same day. It discussed the issues regarding the new kitchen and noted that the resident would be happy if he could use the kitchen and for the door to be replaced.
5. The landlord spoke to its asset team who advised that they were unable to fit the kitchen for the resident in the financial year as there was no budget available to make an addition to the programme.
6. The landlord updated the resident on 22 September 2020; the resident told the landlord he had suffered personal injury by a plate falling out of the broken wall unit.
7. The landlord asked the repair team to survey the property again in order to raise work to make it safe and usable, this included replacing the kitchen cupboard doors. The landlord noted that the resident disagreed with this decision.
8. The landlord noted that it did not have previous jobs raised for the kitchen but invited the resident to provide any emails regarding old jobs raised so that it could review this. The landlord also said that it had done its best to resolve the kitchen issues, offered to fix the repairable wall unit before it caused injury and offered to temporarily bring the kitchen to a safe and usable standard.
9. It said that it asked the temporary repairs team to repair the kitchen and that they would be in touch with the resident. While this was not what the resident wanted, the landlord said that it believed this to be the best course of action until a new kitchen was fitted.
The landlord’s correspondence states that work was instructed, however, this was not carried out. On 2 October 2020 the landlord’s complex work team advised the housing officer that the resident had cancelled the work and advised that he was told not to proceed via his solicitor.

Resident and solicitor escalation

On 6 October 2020 the resident emailed the landlord as part of the ongoing exchange of correspondence about the matter. The resident said that he did not refuse any works. Furthermore, the landlord had not made the kitchen safe or dealt with the outstanding disrepair.
On 19 October 2020 the resident contacted the landlord to escalate the complaint. In his letter, the resident explained that it was confirmed that his property was on a list to receive a new kitchen and until then it would carry out temporary repairs. The resident said he did not refuse works needed to make the kitchen safe. The resident disputed several points:
1. He disputed a comment made stating that he declined repairs, he said that he had recordings and he also sent a message to the contractors saying he did not refuse works.
2. He disputed that he told the operative that he was not sure he wanted works to proceed as he wanted to ‘go legal’. He said that he had been waiting and no works or progress had been made to his kitchen.
3. He wanted the replacement kitchen to be carried out and to certain specifications (“adequate space and layout as per decent homes standard”).
On 20 October 2020 the resident’s solicitor contacted the landlord and confirmed that it was instructed to pursue a personal injury and housing disrepair claim.

Landlord and resident discussion after the stage one complaint and the pre-action protocol letter

On 22 October 2020 the landlord and resident discussed the matter. The landlord said that it would not be dealing with the issue under the complaint process, due to the legal claim.
The resident said that some aspects of the complaint should be dealt with under the internal complaint procedure as they were separate issues. The landlord replied on the same day. It confirmed that it would not be able to co-ordinate a stage two review because of the resident’s personal injury and housing disrepair claim. The landlord considered that the resident’s other complaint points were not separate and did relate to the kitchen works. It explained that it would step back from the process and allow its legal team to communicate regarding the kitchen and associated queries.

Complaint escalation requests

The resident contacted the landlord on 23 October 2020: He disputed that his additional complaint concerns were related to the kitchen but instead were about “misrepresentation and deceit of (the landlord) staff towards me”. He agreed that the statements were about the kitchen work but the complaint was about the behaviour and conduct of staff.
The resident chased a response from the landlord in early November 2020. The Ombudsman also contacted the landlord on 6 November 2020. It encouraged the landlord to issue a stage two response. The landlord confirmed that it had escalated this with its housing team on 12 November 2020.
The landlord followed up on 25 November 2020 with the update that the matter had been passed to its legal team as it had been processed as a claim. The landlord said that it its housing team were to arrange the repairs needed, but they would not be responding to the complaint due to the personal injury claim. It cited its policy as part of its explanation that it would not investigate issues related to insurance or legal cases through the complaint process, while the matter was ongoing.
On 7 December 2020 the Ombudsman advised the landlord that it should accept a complaint unless there is a valid reason not to do so and it should offer an explanation to the resident to set out the reason why it is not suitable for the complaint process.
On 11 December 2020 the landlord updated the Ombudsman and confirmed that it would consider the options to either escalate the complaint unrelated to the claim or to not progress the matter through its complaint process. It explained its timescale of 20 working days.
On 14 December 2020 the landlord and Ombudsman discussed the progress of the case; the landlord explained that it was still considering the matter. The Ombudsman encouraged the landlord to make a decision and to write to the resident to let him know. The landlord updated the Ombudsman on 21 December and issued its response to the resident on the next day.

Stage two response of December 2020

The landlord issued its first stage two response to the resident on 22 December 2020:
1. It apologised for the time taken to confirm in writing the process it would be following in relation to its internal complaint process.
2. It responded at stage one (2 October 2020) with the jobs raised following the resident’s report of August 2020 and those raised after.
3. When the resident escalated the complaint to stage two it was assigned to a housing manager to investigate. Shortly after, the resident’s solicitor issued a letter about the resident’s personal injury and disrepair claim.
4. The landlord discussed its decision not to escalate the complaint with the resident on the same day, but it did not confirm this in writing, for which it offered compensation (£100) and an apology. It explained that it identified this as an area for future staff training. This was to ensure that discussions relating to a complaint were followed up in writing and in this case, it would discuss this with the member of staff involved.
5. It asked the resident to let it know about anything specific about the handling of his enquiry and said that it would look at this further.
6. It explained that its complaint policy advised that it would not deal with a complaint where it related to an ongoing legal matter or where there was a claim being dealt with by the insurer. It asked the resident to direct any questions about the personal injury or disrepair case via the appointed solicitors and they would update the resident.
7. It confirmed that this was the final response to the complaint and the resident could go to the Ombudsman.
The resident replied on 23 December 2020. The resident said that he understood that the disrepair and personal injury aspects were not being handled in the complaint procedure, but he wanted the landlord to consider his additional concerns. These were about the ‘misrepresentation’ of his comments and also about the staff’s handling of a data request. The resident’s concern about the data handling and the landlord’s response to this has not been included within the scope of this investigation.
The landlord sent a holding reply on 24 December 2020 and said that it would follow up with colleagues and return to the resident in January 2021.
On 11 January 2021 the landlord’s asset team contacted the resident to arrange a survey as part of the legal disrepair case. On 22-25 January 2021 the landlord and resident discussed the review option under its complaint process. On 18 January 2021 the surveyor attended the property and confirmed that the kitchen replacement was to take place.
The resident and landlord had a meeting in early February 2021 about the kitchen work and complaint.
On 12 February 2021 the resident emailed the landlord following the meeting. The resident acknowledged that the landlord confirmed that the contractor would be in touch to progress the kitchen work shortly and the landlord would also issue a stage two complaint response.

Stage two response of February 2021 (following the resident’s confirmation of outstanding dispute)

The landlord acknowledged the resident’s communication on 17 February 2021 and issued its second final response on the same day.
The landlord considered that the personal injury and disrepair claims were being dealt with by its legal representatives and it went on to investigate the resident’s separate outstanding concerns. The landlord’s investigation included the following:
1. It confirmed that the kitchen replacement would be arranged following the surveyor’s attendance in January 2021 and discussed the unit arrangements which the resident chose, in order to provide him with additional storage space.
2. It confirmed the resident’s acceptance of its offer of £100 and passed this to its finance team in January 2021 (this was originally offered on 22 December 2020 as an apology for not confirming its decision in writing following a discussion with the resident about the complaint).
3. The resident’s communication of 23 October 2020 was not replied to. It provided an apology and an explanation of why this happened (the landlord believed it had been clear that the involvement in the complaint had ended and this was passed onto the legal team). It said that it was rolling out complaint handling training to reaffirm the need for a case closure letter to be sent.
4. The landlord investigated the resident’s outstanding complaint:
  1. It reviewed the internal correspondence and statements which implied that the resident declined repairs to his kitchen. It listened to two recordings in which the contractors said that they could undertake temporary repairs but agreed that this would not resolve the problem.
  2. It apologised for the chain of communication from external contractors to repair colleagues to housing staff and it apologised that the resident’s comments were misinterpreted as refusal.
1. The landlord acknowledged the resident’s point of view over the temporary repairs. It responded with an explanation of its own position and said that its aim had been to undertake necessary repairs to ensure that the kitchen was “safe and usable” while it made further decisions around the kitchen replacement.
2. It identified that it should have pursued the temporary repairs whilst considering the wider complaint of disrepair. It also explained its learning from the complaint, in respect of its communication about its intention and long term proposal.
3. It explained the outstanding remedies to put things right: the kitchen replacement would be picked up through its internal disrepair process and the survey recommendations were passed to the resident’s solicitor. The survey had been carried out on 18 January 2021. This was being progressed through the contractor to provide a new kitchen.
1. The landlord made a further offer of compensation (£300) for the failure to follow up communication around the stage two complaint and in recognition of the delay in providing the response. The landlord explained that this was also for the inconvenience and distress caused by its delays and explained that this was above the maximum of its policy but felt that this was appropriate in this case.

Further correspondence regarding the outstanding dispute: the level of compensation

The resident and landlord discussed the matter further in March 2021. On 15 March 2021 the landlord offered the resident a supplementary response following its final response of February 2021. It revised its offer of compensation to include the loss of the kitchen and further distress and inconvenience. It made a further offer for the loss of the kitchen from 21 September 2020 for 26 weeks based on a 25% of the weekly rent, which it calculated as £32.28 x 26 = £839.28. In addition, it made a further offer of £250 plus £100 for the stress and inconvenience caused in light of the continued delays in finding a resolution to the issue.
The kitchen replacement works commenced in March 2021.

Assessment and findings

The scope of this complaint is from August 2020 – February 2021. The landlord’s revised offer of redress dated 15 March 2021 has also been considered. The further exchanges between the resident and landlord and the time period during the kitchen work thereafter have not been investigated. The resident’s personal injury and data protection related complaint points are also outside the scope of this investigation.
The Ombudsman has considered whether the landlord has offered a reasonable level of redress for its acknowledged failings in its kitchen repair response and complaint handling.
It was not disputed that the kitchen was not in a good state and needed to be replaced. This was established in September 2020. The evidence seen shows that the landlord considered the options to carry out the work and decided to postpone it until the following year. In the meantime, it proposed to carry out temporary work, to make the kitchen safe and usable. This was reasonable.
Although the landlord could not immediately carry out the kitchen replacement, it proposed reasonable steps to fulfil its repair obligations. This is because it offered temporary repairs so that the kitchen was safe and usable, until it could fully replace the kitchen as required.
However, the landlord then failed to carry out the temporary works.
There was an initial delay in September 2020 and October 2020 when the resident had reportedly declined the temporary works. However, the resident clarified his position on 6 October 2020 and explained that he did not decline the temporary works. The landlord and resident then became involved in discussions about the legal case and the complaint process later in October 2020. The kitchen repairs remained outstanding.
The resident was left without a useable kitchen until the landlord commenced the repairs (replacement) in March 2021. There was an unreasonable delay in the landlord’s response to the kitchen repairs. Therefore, there was a service failure.
In the landlord’s complaint responses of December 2020, February 2021 and March 2021 it offered the resident redress for its acknowledged service failures. This included an apology, an explanation of the delays in its actions (including its communication and complaint handling) and compensation of £750 for the distress and inconvenience. This was largely resolution focused. The amount which it offered for distress and inconvenience was sufficient in remedying the impact of its failure and exceeded the maximum amount as set out in its policy. It was therefore reasonable.
The landlord also proposed compensation for the loss of the kitchen; an approach which was reasonable. This is because it demonstrated an understanding of the inconvenience of its failure to carry out the repair, in line with the dispute resolution principle of putting things right. However, when the landlord went on to calculate the compensation amount for the loss of the kitchen, it failed to do so in line with its policy. It calculated this as 25% of the weekly rent for 26 weeks from 21 September 2020 (£32.28 x 26 = £839.28). The landlord’s compensation and gesture of goodwill policy states that the compensation due for the loss of kitchen is 30% of the weekly rent. Therefore, it should have been 30% of the weekly rent for 26 weeks (38.73 x 26 = £1,006.98). The compensation that it offered for the loss of the kitchen was not in line with its policy, and therefore it was not reasonable. On this point, there is a service failure.
In respect of the complaint handling, the landlord acknowledged its failure to escalate the complaint, explained the reason for this, apologised, offered compensation (as set out in paragraph 40 above for distress and inconvenience) and went on to investigate the outstanding dispute. The landlord’s redress for the service failure in its complaint handling was reasonable.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the level of redress offered by the landlord for its acknowledged service failure in its response to the kitchen repairs.
In accordance with paragraph 55b of the Housing Ombudsman Scheme, the landlord offered reasonable redress for the complaint handling.

Reasons

The landlord has largely been resolution focused and offered a reasonable response to the resident’s complaint. It identified and assessed the impact of its service failure in the delay to carry out repairs to the kitchen. It offered details of its learning from the complaint, its apologies and financial redress in recognition of the distress and inconvenience that it caused to the resident that was above the maximum amount set out in its policy.
The landlord’s calculation of redress for the loss of the kitchen was not appropriate. This is because it was not in line with its policy. The landlord’s compensation and gesture of goodwill policy states that the compensation due for the loss of kitchen is 30% of the weekly rent. The landlord’s compensation in relation to the loss of the kitchen calculated 25% of the weekly rent.
The landlord offered reasonable redress for its acknowledged service failure in its complaint handling. The landlord took into account its lack of response to the resident’s escalation request and the delay in progressing the complaint to stage two. It then considered the resident’s outstanding concerns under the complaint process. It offered reasonable redress and provided details of its learning from this complaint.

Orders

Within four weeks of the date of this report the landlord is ordered to pay the resident a total of £1756.98 for its acknowledged service failure in the delay and inconvenience in response to the resident’s reports about repairs to the kitchen and complaint handling. This is comprised of the following and can be reduced by the amount which the landlord has already paid:
1. £750 of the original compensation for distress and inconvenience.
2. £1006.98 for the loss of the kitchen during the identified delay by the landlord in carrying out the repairs.