Notting Hill Genesis (202008442)

REPORT

COMPLAINT 202008442

Notting Hill Genesis

12 March 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

1. The complaint is about the landlord’s handling of a complaint made about her by its Property Management Agent (PMA).

Background and summary of events

2. The resident has been a leaseholder of the landlord, at the property, from 19 January 2009.  The building within which the property resides, is managed by a PMA, which includes a concierge service.
3. The landlord’s ‘Abusive Customer Behaviour Policy’ states at paragraph 2.3 that it “…expects all customers to treat members of staff with respect. Our staff should feel safe and secure in their work environment, including when visiting customers at home”.
4. The same policy refers to actions it may take when unacceptable behaviour occurs, although it does not specify the investigative measures it will undertake.
5. The landlord has a two stage complaints procedure whereby it aims to investigate and provide a response at stage one within 10 working days and within 20 working days at stage two, where a complainant remains dissatisfied with the outcome at stage one and requests escalation of the matter.

Summary of events

6. On 3 November 2018 there was a power cut and water outage at the building and the resident approached the concierge to ask about the situation.
7. On the same day a complaint was made about the resident by the member of staff she had spoken to.  The member of staff described the resident as being “hostile, “confrontational” and “aggressive” towards them and accusing them of “not doing their job” and as being “useless”.  The individual said that they felt “stressed and scared” of seeing the resident again because of her behaviour.  They referred to another resident being present who witnessed the incident.
8. On 8 November 2018, landlord emailed the resident to advise that a complaint had been made about the conversation had on 3 November 2018 and asked her to provide her version of events by 16 November 2018, explaining that it was obliged to investigate the matter. The landlord did not provide the resident with any details of the complaint, however.
9. The resident responded the same day, stating that any complaint about her was “unjustified” and “extremely insulting”.  She requested disclosure of all of the information pertaining to it to enable her to respond.
10. On 13 November 2018 the landlord responded, acknowledging that the situation was upsetting for the resident and advising that it would provide the information she requested by 15 November 2018.
11. Correspondence continued and on 16 November 2018 the landlord apologised for the delay in providing the information requested, explaining that this was because it was waiting for its General Data Protection Regulation (GDPR) team to respond.  It again asked for the resident’s version of events.  The resident replied that she could not respond without having the information she had requested.
12. On 4 December 2018 the landlord provided her with details of the complaint, to which the resident responded, stating that she could only respond once she had a policy which “outlines clear lines of accountability and procedures regarding complaints like the one made against [the resident]”.
13. Correspondence continued between the landlord and resident about the issue, including the resident questioning the amount of the complaint detail that had been redacted by the landlord. 
14. On 6 December 2018 the landlord offered to meet with the resident to discuss the situation, which she declined, stating that as it was being dealt with as a formal complaint, she was not willing to have an informal conversation.
15. During February, March and April 2019, correspondence between the landlord and resident continued, which included the resident requesting policies and procedures that she believed to be relevant to the issue.  The landlord sent the resident its policies regarding complaint handling and harassment and on 9 April 2019, the resident said she would submit her response within one month, which was agreed by the landlord.
16. On 8 May 2019, the resident provided her version of events to the landlord. The landlord sought consent from the resident to share her comments with the PMA member of staff, who maintained the version of events it had provided in November 2018.
17. The resident provided an additional witness statement that same day, supporting her version of events.  The landlord sought to clarify the status of the individual concerned and whether they were a member of the same household as the resident or a neighbour. The resident queried why the landlord required this information, which it explained was in order for it to be properly considered in the investigation.
18. The resident ultimately provided a postcode for the individual which was at a different address, although the witness was believed to be her partner.  The landlord was therefore not satisfied of the independence of the witness.
19. Extensive email correspondence continued between the landlord and resident about the issue, with the resident feeling that the landlord had not treated her fairly or fully responded to many points she had raised over time, as well as the resident chasing for payment of an invoice for her time in responding to the complaint, which she had submitted.
20. On 16 July 2019 the resident made a formal complaint to the landlord about its handling of the complaint made about her, following the landlord’s advice to do so because of her continued dissatisfaction.  The resident felt “harassed” and “bullied” by the landlord’s handling of the matter and was disappointed that she had not received an outcome of the investigation it said it was undertaking, as well as being dissatisfied with the landlord’s response times to emails she had sent. The outcome the resident was seeking was to be compensated £391.67 for payment of her time in dealing with the issue.
21. On 30 July 2019 the landlord issued its stage one response to the complaint. The landlord did not accept that it had behaved in a bullying way towards the resident in asking her for her version of events following the complaint made.  It explained that it was obliged to investigate and ask her for her version of what happened.  It added that it had the same standards for staff as it did for residents. 
22. It expressed that it was sorry to hear of the detrimental impact the complaint had had on the resident (which she had described in her emails it) but could not find its correspondence to be intimidating in any way and found it to be courteous and professional. The landlord determined it would not be paying compensation in light of its findings.  It did uphold the aspect of the complaint concerning response times, however, finding that it had not always responded within its five working day target timeframe and it would look to improve this for the future.
23. On 10 September 2019, the landlord emailed the resident advising that it was in the process of reviewing the complaint, following her request for it to do so and that it would be in touch with a date within which she could expect to hear in due course.  It apologised that it was taking time.
24. Between 12 and 19 September 2019, arrangements were made to discuss matters on the phone, which took place on 19 September 2019, which the resident followed up with an email to the landlord setting out her concerns.
25. The landlord advised that a response should be expected by 28 October 2019 and also advised that it would provide the resident with the outcome of the investigation before its final complaint response.
26. The resident chased the landlord and on 27 November 2019 it provided its final response to the complaint in its stage two review.  The complaint was not upheld, although the landlord offered the resident £40 compensation as a gesture of goodwill, in recognition of the situation having had an impact on her. It explained that it was acting as the middle party and when a complaint was made, it was obliged to investigate; as the resident had not provided the additional information requested it had been unable to do this. 
27. It explained that there were conflicting accounts and although another member of the concierge had provided a verbal witness statement, this individual had since stated they did not want to be involved, which it had to respect. The landlord added that it had fed back to management to consider a bullying policy specifically in respect of leaseholders and PMAs.  It reiterated a previous offer to meet with the resident to discuss the situation.

Post complaint

28. On 28 November 2019 the resident emailed the landlord stating her dissatisfaction with its response to the complaint; she was unhappy with the compensation amount, as well as being dissatisfied with not having received the outcome of the investigation before the review and said that there were factual inaccuracies in the landlord’s response, including her providing the postcode of her witness and explaining that he did not live in the building. 

Assessment and findings

29. Upon receipt of a complaint from the PMA about the resident, the landlord took appropriate action in asking for her recollection of events. Although there is not a specific policy and procedural guidance for this eventuality, for the landlord to take no action would have been wholly inappropriate.  The landlord’s ‘Abusive Customer Behaviour policy’ specifically states that both residents and staff are expected to behave in a manner as set out at the start of this investigation report. Having been notified of an allegation that the resident had not behaved in accordance with this, the landlord was entitled to take steps to investigate.
30. An allegation is just that; an allegation. It is not a statement of fact. The resident was understandably impacted by an allegation being made that she had behaved the way described, although the landlord was not accusing the resident of doing so or taking sides or action against her in any way. The documentation provided to this investigation evidences the landlord asking the resident for her version of events in a respectful and professional way. It was doing this in order to investigate the complaint made.
31. In cases of antisocial behaviour, where a complaint or allegation is made about a resident, the landlord is obliged to put the allegation to the alleged perpetrator in order to give them a chance to respond and where relevant, an opportunity to put things right. While the landlord did advise that a complaint had been made, it did not let her know what the complaint was which was inappropriate.  In the absence of knowledge of the details of the complaint, the resident could not be reasonably expected to respond.
32. Nonetheless, it did provide the information on 4 December 2018, with the resident having requested it and asked the resident to respond thereafter.  Although the resident was not comfortable with a complaint having been made and being asked about her version of events, it would be unreasonable to expect the landlord to ignore a complaint made. 
33. Where there are two differing versions of events and no independent supporting witnesses or evidence, there is little more a landlord can do in terms of investigation. The resident wanted all of the information gathered by the landlord and an “outcome” of the investigation provided to her, yet there was no finding insofar as there was a limited investigation by the very nature of the incident being an interaction between two people and both people providing conflicting accounts with no independent witnesses or evidence to verify either side.
34. The witness who gave a verbal account of what happened then declined to put this in writing or continue, was entitled to do so and it was appropriate that the landlord respected this. To seek to oblige the witness to go ahead would have been a disproportionately serious step in the circumstances.
35. The version of events provided by the resident was done so many months after the alleged incident occurred.  The passage of time ordinarily weakens the veracity of the evidence; statements should be made as contemporaneously and as close to an event as possible to help ensure accuracy and that things are not forgotten or misremembered.
36. Although the resident gave reasons for her delay – the landlord’s failure to provide her with a copy of the complaint; the amount of information redacted; stating that she could not respond until she had sight of policies and procedures; and latterly requiring a month to put her version of events together –  served only to prolong the situation and stress.  It was reasonable for the landlord, having provided the resident with a copy of the complaint made, to ask for her response within the time it did.
37. It was reasonable for the resident to request a copy of any relevant policies, however, she was specifically requesting policies and procedures regarding bullying of residents by staff, which did not exist and the landlord confirmed this.  It is unusual for such a bespoke policy to exist; complaints made about behaviour of staff or residents are ordinarily reasonably dealt with in accordance with antisocial behaviour or harassment policies or policies such as the one referred to in this case, with regards to behaviour.  Concerns raised about staff can also be dealt with within personnel and performance management procedures.
38. Regarding the supporting statement the resident submitted, while the resident initially wanted to know why the landlord was asking who wrote it, she later provided a postcode different to hers.  The landlord was aware of the individual having lived with the resident previously, however, and believed it to be he partner, which would undermine the independence of it.
39. There is no definitive or further information pertaining to this but what is clear is that the resident responded to the landlord’s request for her version of events in November 2018 in an adversarial manner. Although there was an investigation into the complaint and in this way, there was a formality about it, it was a reasonable offer by the landlord to meet the resident to discuss the issue early on, which the resident declined; the landlord’s offer indicated its attempt to seek to resolve the matter quickly and bring closure to it.
40. In stressful situations such as this, where the power and water was out at the building, emotions can run high. People can say things they don’t mean or speak in a tone that is not intended or ordinarily used in other less stressful circumstances. Irrespective of what was said by whom and how, it is clear that this was a stressful event which left both the resident and the member of staff upset.  It is not the Ombudsman’s role to make a finding on what was or was not said by whom, but rather, to assess how the landlord responded to the complaint raised about the resident and her subsequent complaint.
41. Turning to payment of the resident’s time, the landlord was not obliged to compensate for this; there is a reasonable expectation on a resident to engage with a landlord in its enquiries or investigations.   Moreover, the landlord did not demand an unreasonable amount of time from the resident; it requested one document in November 2018, explaining her version of events which then led to months of emails and delay in bringing the matter to a close. The time and effort needed was as a direct result of the resident’s queries, concerns and obstructions of the process, which in actual fact, led to a disproportionately high demand on the landlord’s time, including in dealing with her correspondence, which led at times to her emails not being responded strictly with its Key Performance Indicators.
42. Where unreasonable demands and/or contact is made by a complainant, the landlord simply may not have the time or resources to always respond to every contact within its target timeframes and would not be expected to. It would, however, be expected to manage expectations and timeframes which it did not do particularly well in this case. The landlord did not seek to take ownership of the complaint and its management, instead leaving it to the resident to determine timeframes and expectations.
43. Finally, regarding management of the complaint, it was an appropriate suggestion by the landlord to the resident, for her to submit a formal complaint regarding the matter as she was clearly dissatisfied and the situation remained unresolved for many months. Having received the complaint, the landlord responded at stage one within its articulated timeframe of 10 working days.  Its stage two response to the complaint was delayed, however and although it notified the resident of some delay, it did not keep her sufficiently up to date as to when she could expect a response and the response took an unreasonably lengthy time to be provided.
44. The offer of £40 compensation, however, was reasonable.  It was reasonable because it used its discretion to do so; there was no obligation for it to do this.  The landlord recognized the upset that the complaint being made about her had caused and this gesture demonstrated its goodwill towards her and its wish to satisfactorily resolve the complaint. 
45. In the landlord advising that it would look at its policies for the future indicated a wish to identify any learning from the complaint and opportunities to do things differently in the future, which is in accordance with what the Ombudsman would expect of a member in responding to a complaint.
46. The landlord’s statement that the resident did not provide the information it requested was in regards to the relationship the resident had with the individual, which she had not disclosed and the landlord could have been more specific in this regard.

Determination

47. In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in respect of the complaint.

Reasons

48. There was no maladministration by the landlord insofar as it acted appropriately in having received a complaint about the resident’s behaviour in asking for her version of events of the incident in question.  Although it did not initially provide detail of the complaint, it did so within a reasonable period of time thereafter.

Recommendations

49. If not done so already, the landlord is recommended to pay the resident the £40 it offered in its response to the complaint.
50. If not already done so, the landlord is recommended to seek to underpin its abusive behaviour policy with a procedural guidance document.
51. The landlord is recommended to:
    1. Review its complaint handling in respect of timeframes, ensuring that measures are put in place to ensure complaints are responded to in good time and where this is not possible, regular updates and expected timeframes are communicated.
    2. Similarly, the landlord to also review its procedures with regards to expectation management and overall management of a complaint, in light of the findings in this report.