Notting Hill Genesis (NHG) (202125186)

REPORT

COMPLAINT 202125186

Notting Hill Genesis (NHG)

31 October 2023

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 concerns the following:
1. The landlord’s management of estate services.
2. The charges relating to the provision of services.
3. the landlord’s complaint handling.

Background and summary of events

The resident is an assured tenant of a 2-bedroom flat on the first floor. The resident pays a fixed service charge as part of the rent for the property. For the financial year 2022/23 the service charge element was £16.29 per week.

Estate Services

From April – October 2021 the resident made a number of requests via her housing officer relating to maintenance issues in both the block and the estate. These consisted of requests to cut back a tree that was overhanging the parking area, repairs to benches and the lack of provision of gardening services. Within the block, she also reported a leak and subsequent damage to electrics and to the decorations in the communal area. She requested that works were undertaken, and refunds provided for services that she had paid for that were not delivered (the gardening and window cleaning).
The resident was dissatisfied with the responses that she received and the difficulties she experienced whilst seeking an outcome. She contacted the Ombudsman who asked that the landlord respond to the resident’s complaint regarding staff conduct.
The landlord responded on 3 March 2022. It confirmed that the Housing Officer would be spoken to regarding the delays in responding and that it hoped that the relationship between the two could be rebuilt.
The resident continued to raise her concerns regarding the provision of services within her complaints about service charge as detailed below. The landlord’s final review of the complaint on 4 April 2023 explained that it undertook monthly inspections and flagged up any concerns regarding the quality of the service with the providers. No details of any inspection reports or findings for the period in question have been provided.

Service charges

The landlord’s letter of 3 March 2022 noted that the resident had requested that a manager, rather than the housing officer, responded to her queries regarding the most recent rent increase letter. The landlord explained that rent levels and other charges were reviewed each year as set out in the tenancy agreement. Any increase was linked to the September Consumer Price Index plus 1%. As inflation was high, the increase to rents and service charges was likely to be more that it had been in recent years. The email confirmed that information on support agencies for residents was available via its website.
The resident responded on 18 March 2022. She complained about the service charge which had been increased from £7.16 to £16.29 per week. She requested that she be reimbursed for charges paid during 2020/21 when the gardening did not take place, and asked that the service charge be reviewed in light of the following concerns:
1. Gardening – the resident pointed out that attendance was sporadic, rather than monthly. The last three visits had been in August 2021, October 2021, and March 22, when the grass was cut but no other action taken. She explained that she had raised this issue previously with the Housing Officer on 8 October 2021 and requested that she be reimbursed for the missed months. No response had been received.
2. Overhanging tree – she had requested that a tree overhanging the carpark be cut back in April 2021 and had chased this on a number of occasions, but no action had been taken.
3. Electricity charges – the resident noted that unlike the previous breakdowns the current service charge breakdown included two charges for the electricity, (block and estate costs). She queried why this had occurred. Concerns were also raised regarding the efficiency of the lighting which was often on when not required in the daytime.
4. Cleaning – the current statement included costs were for both internal and external cleaning. The resident queried whether this was a double charge as the gardening charge also covered external maintenance and cleaning. She also raised concerns regarding the quality of the cleaning as the gas meter area was not cleaned and rubbish bags had been present there since December 2021. Concerns were also raised regarding the internal cleaning which no longer included windows or skirting boards.
5. Redecoration – the resident had requested that the internal redecoration was undertaken in January 2022 following a leak but had had no response.
The resident contacted the Ombudsman again as no response was provided by the landlord. On 20 June 2022 this Service requested that the landlord contact the resident by 4 July 2022 in regard to the complaint. The resident also emailed the landlord chasing for a response on 29 June 2022. A formal complaint response was sent on 7 July 2022.
The response confirmed that the two electricity charges covered separate areas. The block charge covered the costs of the electricity usage within the block as was apportioned between the flats, whilst the estate charge covered the estate usage such as the carpark and courtyard lighting. No explanation was given as to why the two separate charges had only occurred on the most recent breakdown; however, the letter did confirm that costs had increased due to the fuel increases.
The letter confirmed that there was a duplication of charges as the estate costs listed both “gardening” and “gardening and external cleaning”. This had been raised with the relevant team and a refund would be made if necessary.
The letter also pointed out that there had been changes to the fire provision with more frequent servicing scheduled in line with changes in legislation. This was reflected in the current increase.
The resident requested that the complaint be escalated on 25 July 2022. She resent her original complaint and pointed out that a number of the complaints raised within this had not been addressed in the response.
In regard to the electricity charges the resident did not accept the explanation given as she pointed out that there was no mention of the number of blocks or flats. She requested evidence of the original bills for both areas and for the neighbouring block. She also requested sight of the gardening bills.
The resident also asked for more information regarding the changes to the fire provision and the increased charge.
A stage two response was sent on 6 October 2022. This confirmed the stage one findings that some of the service charges added to the resident’s account were in error and that it would refund the amounts already paid relating these incorrect charges. The letter noted that this had not happened, and the charges had continued to be added to the rent. The landlord acknowledged that this was a service failure and offered compensation of £150.
The letter added that the apportionment between flats was not correct, and this had meant that some units on the Estate were not being charged enough whilst other units were charged too much. She was therefore being charged double the amount that should have been charged.
In relation to the fire protection element of the service charge the letter explained that following a change in government standards it was now required to complete inspections of fire equipment twice a year as opposed to annually. This was reflected in the service charge increase.
The landlord explained that it could not provide the original electricity bills due to the sensitivity of the information included in the bill. No mention was made in response to the resident’s request for sight of the gardening bills.
The resident responded and set out her dissatisfaction with the landlord’s findings and requested that it reviewed the service charge from the beginning of the tenancy to ascertain when she started to be charged twice for electricity and gardening provision.
The landlord wrote to resident on 25 October 2022 chasing payment of arrears on the rent account of £457. No mention was made of any pending refund.
Since the matter was accepted for investigation by the Ombudsman the landlord undertook a further review of the complaint. Its findings were sent to the resident on 4 April 2023. This considered the following five issues:
1. The failure to address incorrect service charge and delays in refunding overpayments – the landlord noted that despite its earlier promises it had not completed the re-apportionment or made the refund. It offered a further £150 compensation for this, bringing the total compensation for this element to £300. It confirmed that the refund would be made to the rent account within 10 working days.
2. Review of electricity costs – it confirmed that the original bills could not be shared. It explained the charges were based upon an estimate provided by the supplier. The landlord would obtain accurate meter readings and provide these to the supplier to ensure that the charges were accurate.
3. Review of service charges – the landlord committed to undertake a review of the service charge dating back to 2019 when the incorrect apportionment occurred.
4. Gardening charge 2020/21- the landlord confirmed that during this period it was still liable for a charge under the terms of the contract and therefore the cost would not be refunded. No detail of the overall cost or invoice was provided.
5. Compensation – the landlord offered £800 in total. This comprised the £300 for delays in correcting the apportionment and processing the refund, £150 for additional lighting problems that had occurred within the block and £350 for the stress and inconvenience caused to the resident.

Complaint handling

Following contact from the Ombudsman the landlord responded to the resident on 3 March 2022. It does not appear that this was a formal complaint response although the letter did advise the resident that she could escalate the matter.
The resident emailed the landlord with further details of her complaint on 18 March 2022. This included the following issues:
1. Gardening – frequency and quality.
2. Overhanging tree.
3. Electricity charges – level and separation of charges.
4. Cleaning – duplication of charges and quality of service, including the lack of window cleaning.
5. Redecoration of the communal area.
The resident contacted the landlord again having failed to get a response. The Ombudsman wrote to the landlord and requested that it respond to the complaint on 20 June 2022. The landlord sent its response at stage one on 7 July 2022. It addressed the issues of the electricity charges and the duplication of the cleaning charge. It also noted that the resident had raised her concerns and requested an explanation from her housing officer previously and had not received a full response. It apologised to her for this and offered £100 for this failing. Other than this acknowledgement it did not address the issue of the overhanging tree, the quality of the gardening and cleaning services, or the redecoration of the communal area.
The resident requested that the complaint be escalated on 25 July 2022 and the landlord issued its response at stage two on 6 October 2022. This addressed the following issues:
1. The apportionment of charges and the failure to refund the resident as promised.
2. The electricity billing.
3. The fire servicing billing.
4. Delays in complaint handling – it acknowledged the delay in responding and offered the resident £150 compensation and an apology.
In total, the landlord offered £400 for the service failures listed at both stages of the complaint.
The landlord then undertook a further review of the complaint. This included the following elements of the complaint:
1. The apportionment of charges and delays in refunds.
2. Electricity billing.
3. Historic review of the service charges.
4. Gardening charges for 2020/21.
5. Level of compensation offered.
In relation to this review the Ombudsman has seen two letters, one dated 28 March and the other 4 April 2023. It is not clear which was sent to the resident. The first offered £900 compensation including £250 for a recent period when the communal lighting was not working. This final review of 4 April 2023 reduced this to £150. It indicated that there had been delays in the landlord undertaking the actions promised in its earlier complaint responses and offered a total of £800 compensation to the resident for these failings. The landlord committed to calling the resident on a weekly basis to ensure that all the issues were dealt with. It is not known whether these calls took place, nor whether the promised action has occurred.

Assessment and findings

Scope of investigation

The resident has requested that this Service review the service charges dating back to 2004.The Ombudsman will only consider complaints that were brought to the attention of the landlord within a reasonable time period which would normally be six months.
Our position is in accordance with paragraph 42(c) of the Housing Ombudsman Scheme (the Scheme) which provides that the Ombudsman will not consider complaints which were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be six months of the matter arising. This investigation will not include a review of the service charges from 2004 onwards as this did not form part of the complaint that was made to the landlord and was not raised within a reasonable time period.

Service provision

The resident’s complaint raised a number of concerns regarding the quality/frequency of the services provided in relation to cleaning, tree pruning, gardening, and decoration of the internal communal areas. None of the complaint responses from the landlord deal with these issues, other than to clarify that there was a charge for gardening during the covid lockdown period which was passed on to residents, and that estate inspections took place on a monthly basis. No detail of the findings of any inspections has been provided, nor has there been any response to the specific issues raised by the resident relating to the lack of window cleaning or the cleaning of the skirting boards.
The landlord’s failure to identify all the elements of the complaint means that it has not addressed the resident’s concerns. This was a failure in service and has not been recognised in the landlord’s complaint responses.

Service charges

The resident has provided a photograph of her tenancy agreement which shows the service charge formed part of the total rent. This means that the service charge forms part of the overall rent level and is ‘fixed’ each year for a specific amount. As the service charge is fixed annually as part of the rent it does not meet the definition of a service charge under the Landlord and Tenant Act 1985 and the provisions under this legislation do not apply in this case.
The agreement stated that the service charge was used to provide the following: Cleaning, refuse collection, lighting, entry phone maintenance, caretaking costs, electricity, and a management fee. The tenancy states that the landlord may increase the total rent (including, if desired, the service and other charges) in accordance with the provisions in s13 Housing Act 1988, which relates to increases in rent for assured tenants.
The overall rent level, inclusive of the service charge, can only be increased in line with government policy and in accordance with Rent Standard set by the Regulator of Social Housing. This is very different from a variable service charge which is amended over the course of the year to reflect the actual cost of providing a service. Any deficit or credit will not therefore be paid by, or to, the resident, nor is there any obligation on the resident to contribute towards major works or sinking funds via the service charge.
The landlord’s rent increase letter details the services that are provided when calculating the service charge element of the rent. This level of detail is to give tenants the opportunity to view and understand what they are paying for. The resident raised a number of queries relating to the calculation and potential duplication of charges. As was appropriate the landlord considered the concerns raised and accepted that there was a potential issue relating to the apportionment of the charges. It agreed to rectify this and to refund any overpayment. This offer was first made in July 2022, but the promised action was still outstanding in April 2023. The landlord increased its offer of compensation from £150 to £300 for this failing. This was a reasonable offer given that the two annual charges for ‘Gardening’ and ‘Gardening and Estate Cleaning’ amounted to £191.52 for the year in question (2022/3). The compensation covered these costs and included an additional amount which provided redress for the inconvenience and distress caused. In addition, the landlord agreed to pay any refund into the resident’s rent account, which is addressed further in the orders below. The landlord has taken appropriate action by reviewing the apportionment and by offering compensation for both its original error and the delay in it taking action to put things right.
In relation to the electricity and fire maintenance charges, the landlord has provided a satisfactory explanation to the resident as to what was included within each element of the cost. These were reasonable and there is no evidence of any service failure. However, the landlord’s reasoning for not providing copies of the invoices is questionable. It is not clear how or why a bill for estate wide services would involve personal data. Even if this were to be the case, the landlord could share details of the total amount and how this was apportioned. Further, no response or explanation have been provided in relation to the residents request to see the gardening invoices. Whilst there was no legal obligation on the landlord to provide copies of the invoices, its lack of response, coupled with its reasoning for not providing a copy of the bills, will have added to the resident’s lack of confidence in the management of the service charge.

Complaint handling

There were significant failings within the landlord’s handling of the complaint. Its initial response did not formally engage the complaints procedure, elements of the complaints were missed from its responses, there were delays in completing the process, the resident had to contact this Service in order to obtain responses, promised outcomes were not delivered and a further review outside of the usual process was required.
The landlord has accepted that there were failings in its complaint handling and offered £350 to the resident to put things right. The landlord has not fully recognised the extent of its failings, which continued throughout its handling of the complaint. The total amount of compensation offered however, is not considered a reasonable remedy given the extent of the detriment experienced by the resident in relation to the landlord’s overall poor complaint handling. A further amount of compensation has been ordered to reflect the extensive failures identified with the landlord’s complaints handling below, in accordance with the Ombudsman’s consideration of cases involving significant maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in relation to the following complaints:
1. The landlord’s management of estate services.
2. the landlord’s complaint handling.
In accordance with paragraph 53b of the Housing Ombudsman Scheme the landlord has provided reasonable redress to the resident in relation its handling of the service charge.

Reasons

The landlord failed to address a number of elements of the complaint in relation to its estate services. This included tree pruning, redecoration of the internal communal areas, and the resident’s concerns regarding the quality and frequency of the gardening and cleaning services.
Throughout its response to this complaint the landlord has failed to act until prompted by this Service. It initially failed to deal with the matter under its formal process, delayed in providing responses once this was done, and failed to undertake action promised in its complaint responses. It has acknowledged some of these failings, which has prevented a finding of severe maladministration, but it has not fully recognised the extent of its failings and the impact of these on the resident.
The landlord’s offer of £450 compensation (£300 for the incorrect service charge element plus £150 for the delays to communal lighting) provided reasonable redress for its service failures in relation to its management of the service charge.

Orders and recommendations

The landlord pays compensation of £800 previously offered to the resident (unless already paid) as this recognised genuine element of service failure and the reasonable redress finding is made on that basis.
The landlord pays additional compensation of £500 in compensation to the resident for its failure to respond to the estate management complaints (£300) and the time and trouble caused to the resident by its poor complaint handling (£200).
That the landlord provide evidence to the resident and this service of the outcome of its review of the service charge.
That the landlord provide evidence that the actions it promised in relation to apportionment and refunding the rent account have taken place.
That the landlord provides the resident with details of the annual costs regarding the estate/block charges for electricity and gardening maintenance and how this charge is apportioned across households.
The landlord to provide evidence of its compliance with the orders in this case to this Service within four weeks of the date of this report.