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Notting Hill Genesis (NHG) (202127928)

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REPORT

COMPLAINT 202127928

Notting Hill Genesis (NHG)

14 February 2024

 

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:
    1. Reports of antisocial behaviour (ASB).
    2. Reports of poor staff conduct.
    3. The complaint.

Background

  1. The resident is a shared owner of a flat on the top floor of a 3-storey building.
  2. The resident has made complaints of ASB from the neighbours in the flat below. She has reported strong cooking smells and odours, which she believes are covering other toxic fumes. The resident has made allegations of drug use against her neighbours.
  3. On 1 November 2021, the landlord advised the resident that it had closed its ASB case and would no longer accept reports regarding the same type of incidents. It stated that further reports would be referred to management, and measures would be put in place to prevent further communication. The resident raised a complaint on 1 March 2022. She advised that the situation had been ongoing for 10 years and that the fumes coming into her flat were causing her to become unwell. She was also unhappy about a phone call she had with the landlord on 6 August 2021, as she felt the tone was inappropriate.
  4. The landlord responded to the complaint on 6 August 2022. It stated that it had found no evidence regarding the allegations made by the resident and had closed the ASB case. The landlord also responded that it did not record phone calls. It did not agree that the staff member would have behaved inappropriately. The complaint was not upheld.
  5. On 17 August 2022, the resident requested that her complaint be escalated and reviewed independently. The landlord issued its stage 2 response on 15 March 2023. It stated that it and the police had visited the neighbour and could not find evidence of substance abuse. It also advised it contacted other residents in the building, who did not have any complaint. It confirmed a surveyor had been out and had recommended a smoke test. The landlord later discovered this would not be appropriate, as it had discovered it would require both residents to leave their flats. It advised it had found an alternative test, which it would carry out despite it being a higher cost than it would usually pay.
  6. In relation to the way the resident had been treated, it advised that it could not find evidence that there was inappropriate behaviour on the phone call. It did however feel that the email advising the resident that the case was closed, used an inappropriate tone. It also acknowledged a failure to recognise the stage 1 complaint. It offered £100 compensation.
  7. The resident remains unhappy with the outcome of the complaint. She disagrees that the subsequent test was appropriate to investigate her concerns. She has been offered a further test by the landlord but should this come back negative the cost would be passed to her. She is unhappy with this, and feels a test is not necessary as she knows where the source of the issue is. She also remains unhappy as she feels the landlord did not deal with the issue seriously enough. She is concerned that the landlord does not consider complaints about how ASB is handled. She has requested the Ombudsman review the complaint.

Assessment and findings

Scope of investigation.

  1. Paragraph 42c of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matter arising. In its complaint responses, the landlord has considered a phone call between itself and the resident which happened more than 6 months before the complaint was raised. The Ombudsman has therefore decided to include the call in its investigation. However, it will not investigate matters prior to this phone call. Any evidence before this time will be used for context only.

The landlord’s handling of reports of ASB.

  1. On 6 August 2021 the resident spoke with the landlord by telephone. The resident uploaded a note of what she stated happened during that call. She stated that the landlord had told her that it had contacted other residents, but that they had not experienced the same issues as the resident. The resident referenced an email sent to the police in 2013 regarding drugs use by the neighbour. She also advised she had been in contact with the police recently, but they found no evidence of substance abuse.
  2. The resident felt that the neighbours were hiding their drug use. The landlord had advised that it was not trained to deal with environmental health issues. The resident stated that she was surprised it had not been escalated to a manager if the housing officer was not trained to handle the situation. The landlord should have responded to the resident’s concerns.
  3. From what the resident has noted, it appears that the landlord had carried out some investigation and did not feel it could take further action. Although it does appear that the landlord responded appropriately to the resident, the landlord has failed to record this. In not recording this, it is unknown what the landlord advised the resident would happen moving forward. This was important, as the resident felt the situation was ongoing. The landlord should have communicated that it did not intend to take any further action at that time.
  4. The resident emailed the landlord on 26 October 2021. She stated that steam was coming through to her flat, due to the neighbour’s cooking methods. She advised this was making her ill. The landlord responded on 1 November 2021 that there was no evidence to support any drug use and that the case was closed. As there was no evidence to support the ASB, it was appropriate to close the case.
  5. Following escalation to stage 2 on 1 November 2022, a surveyor visited the flat. He was unable to identify any issues, however he suggested a smoke test. The landlord arranged a test for 20 February 2023. There is no evidence explaining why the smoke test took as long as it did. There was also no regular communication with the resident to advise of the progress of the case. The resident raised concerns about the type of test on 6 February 2023. The landlord subsequently agreed that the test that had been arranged was not appropriate, as this was a gas safety test. On 20 February 2023, it advised it had found a new company to complete a different test.
  6. An air permeability test was completed on 17 April 2023. From the notes, it appears this test was completed in the neighbours flat. The resident noted that no one visited her. Given that the resident was the complainant, it would have been appropriate to ensure that the resident’s property was also visited.
  7. The test found no substantial issues. It stated there was a faint smell when a fan was on in the communal entrance. It also identified a seal near the boiler and behind the washing machine that could be letting air through. It is unclear if this was in the neighbours flat, although this seems to be the most likely case. The landlord agreed to consider reasonable costs to block off any seals, including a soil vent. The resident stated that she did not need this, as all holes to her flat had been sealed, following a mice infestation. The landlord offered an appropriate action to the resident.
  8. The landlord wrote to the resident on 7 June 2023 to ask when it could visit the resident to discuss a resolution. It is unclear when the visit took place, however the landlord wrote to the resident on 25 June 2023, thanking the resident for allowing the visit to take place. It advised that it had not found evidence to support the resident’s concerns. It also explained that it had not completed the initially suggested smoke test and had chosen an alternative test. This was because a smoke test would result in both residents having to leave the flat, and a fume to be released. It felt this was inappropriate under the circumstances.
  9. When considering ASB complaints, it is right that the landlord should consider what is reasonable for all parties. As there had been no other evidence gathered which supported the allegations against the neighbour, the landlord was right to consider the appropriateness of a test which may impact the neighbour as well as the resident.
  10. The landlord offered to do a second test. However, it stated that if this came back negative, the costs would be passed to the resident. The landlord had already spent £954 on an air test, which did not discover any significant issues.  It was reasonable for the landlord to consider the costs of further investigations. Social landlords have limited budgets and are expected to allocate funding appropriately to provide the best service to all residents.
  11. The resident had repeatedly advised the landlord that the complaint was affecting her health. The Ombudsman recognises that the resident has been distressed by this situation, however the Ombudsman cannot comment on causation of any health concerns.
  12. The landlord can only respond to evidence or carry out reasonable investigations to identify an issue. It visited the property, sent a surveyor, and carried out an air test. Some minor areas of improvement were discovered, and the landlord offered to rectify these. The Ombudsman notes that the tests conducted by the landlord did take a significant amount of time to arrange. The Ombudsman cannot be sure if the delays were reasonable, and the landlord may wish to consider this for future cases. The Ombudsman has also identified that there were opportunities to communicate more regularly with the resident, while the tests remained outstanding. However, the landlord has taken sufficient action to investigate the resident’s concerns, and the delays do not appear to have caused detriment. The Ombudsman considers there to be no maladministration in the landlord’s handling or reports of ASB.

The landlord’s handling of reports of poor staff conduct.

  1. The resident stated that during the phone call on 6 August 2021, she was shouted at for 11 minutes. The landlord advised in its complaint responses that it did not record calls. The Ombudsman recognises that without recordings there was no evidence to substantiate the complaint. However, the landlord should have made notes in relation to the call and how it went. This is particularly important when the landlord does not record its calls. The Ombudsman has only seen the resident’s notes in relation to this call. It is however, noted that the resident did not initially note any concerns about tone or volume of the staff member. All concerns were in relation to the content of the call.
  2. The authors of both complaints responses stated that they had worked with the caller for a period of time and did not believe they would behave in this manner. The Ombudsman recognises that there were challenges in investigating the call, as there were no recordings and substantial time had lapsed. However, the landlord should consider its language when responding to complaints of this nature. Complaint responses should be impartial. It would have been more appropriate to advise the resident that it could not find any supporting evidence.
  3. The resident was unhappy about a letter she received in which she was told that further reports of ASB would be referred to a manager as unreasonable and persistent behaviour. The ASB policy states that action should be taken when accusations are unfounded or vexatious. However, it also states that it will be mindful of vulnerability. In its stage 2 response the landlord stated that it felt the tone of this letter was inappropriate. It offered £100 compensation in relation to this. The Ombudsman recognises good practice from the landlord, in reviewing the individual circumstances of the resident and revisiting its decision in this case.
  4. The landlord has identified an area in which it feels it could have provided better service and provided compensation. The Ombudsman has also identified areas in which the landlord could improve its record keeping. The Ombudsman has not seen any evidence to support that the landlord behaved inappropriately towards the resident. There was reasonable redress in the landlord’s handling of reports of staff conduct.

The landlord’s complaint handling.

  1. The landlord did not initially accept the resident’s complaint, as it felt it was about ASB, which did not form part of its complaints policy. On 21 July 2022, the Ombudsman requested that the complaint be raised formally, and a stage 1 response provided. The landlord provided a stage 1 response 12 working days following the request. The landlord’s policy states that it will provide a stage 1 response within 10 working days. As such the stage 1 response was outside of the landlord’s stated timescales.
  2. In its stage 1 response the landlord stated that it had acted correctly in not accepting the resident’s initial complaint. This was not accurate as the landlord’s policy states that a complaint can be made about how ASB was handled. It was therefore not appropriate for the landlord to refuse to raise the complaint.
  3. The landlord reviewed its decision on 16 November 2022, and acknowledged that the complaint was about the handling of ASB. It apologised that it did not raise it formally in the initial instance. It offered £100 for failing to recognise the complaint, this offer was appropriate and proportionate. In its stage 2 response it reiterated that it should have recognised the stage 1 complaint when it was initially made. However, it did not reiterate the offer of compensation previously made. The landlord’s stage 2 response is an opportunity for the landlord to review the complaint in its entirety and reinforce its position. As such it should have made a formal offer of compensation at this stage.
  4. The landlord’s policy states it should have responded to the stage 2 complaint within 20 working days. The Ombudsman contacted the landlord on 26 September 2022 as the resident had not had a response to her escalation request. From the date the resident initially said she wanted her complaint to be independently reviewed, until the date the stage 2 was issued was 158 working days. The Ombudsman notes that the landlord did seek agreement from the resident on 16 November 2022 to extend the response time until the smoke test results were in. The resident agreed to this. However, as per 5.5 of the Housing Ombudsman Complaint Handling Code, a response should not be delayed until all actions are completed. It would have been appropriate for the landlord to respond to the stage 2 complaint, advising that as part of the resolution, it would carry out an air test.
  5. The landlord issued its stage 2 response before the air test was completed. This was due to the Ombudsman contacting it, following contact from the resident. There was insufficient communication from the landlord to the resident during the complaint. This has resulted in the resident needing to involve the Housing Ombudsman before the complaints process had been exhausted.
  6. There were failures from the landlord to recognise the complaint at stage 1. At both stage 1 and stage 2 the resident had to get the Ombudsman to contact the landlord, to get a response. The delays in the complaint handling were unreasonable. Compensation was offered, but it was not re-offered in the final response. There was maladministration in the landlord’s complaint handling.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman scheme there was:
    1. no maladministration in the landlord’s handling of reports of ASB.
    2. maladministration in the landlord’s complaint handling.
  2. In accordance with paragraph 53 of the Housing Ombudsman scheme there was reasonable redress in the landlord’s handling of reports of poor staff conduct.

Orders and recommendations

Orders

  1. The landlord is ordered to pay £150 in compensation to the resident for its poor complaint handling.
  2. If it has not recently, the landlord is ordered to conduct staff training on identifying complaints and responding in appropriate timeframes.
  3. Within 4 weeks of this report, the landlord should provide evidence of compliance to the Housing Ombudsman

Recommendations.

  1. It is recommended that the landlord re-offer the £100 compensation for the tone of the letter which advised the resident she could not make further ASB complaints.
  2. It is recommended that the landlord review the record keeping in this case, particularly around phone calls.
  3. It is recommended that the landlord contact the resident confirming the current status of the ASB case, how future ASB reports will be handled, and review whether it would be appropriate to signpost to any relevant support agencies.