Notting Hill Genesis (NHG) (202224187)

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REPORT

COMPLAINT 202224187

Notting Hill Genesis (NHG)

15 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

This complaint is about the landlord’s handling of the resident’s emergency decant.
We have also considered the landlord’s complaint handling.

Background

The resident lives in a one-bedroom ground floor flat. They are an assured tenant of the landlord.
In July 2021 the resident’s flat was flooded. The resident was decanted on an emergency basis, initially to their mother’s home and then to a hotel organised by the landlord. When the floodwater receded, the landlord needed to complete repairs to the property to make it habitable again. As part of establishing what works were required a survey was done to identify if there was asbestos present in the property. This survey identified that asbestos was present in isolated areas. In October 2021 the landlord moved some of the resident’s belongings to storage. Any items which would not be affected by the repairs could remain.
Two separate contractors were handling the repairs and asbestos respectively. It appears there was an agreed schedule of works to allow both to work around each other. However, in late October 2021 there was an incident in which asbestos was disturbed and moved throughout the flat in an uncontrolled manner. This resulted in severe contamination of remaining belongings in the flat and many of the surfaces. The asbestos contractors had to seal the property completely as a result and destroy any contaminated items.
Additional works were then required to decontaminate the property before it could be repaired. The property was handed over to the repairs contractors in early January 2022. The initial works were only to repair damage caused by the flooding and not additional routine repairs or other damage. The initial works completed included:
1. Repairing of plaster and repainting throughout property.
2. Replacement of flooring.
3. Replacement of both the bathroom and kitchen suite.
4. Inspection and repair of utility supplies.
The property was handed back to routine repairs in May 2022. After the property was handed back, some additional work was needed. This included the replacement of the kitchen worktops and removal of rubbish from the property. The property was not suitable to move back into at this point as there were no furnishings as they had been destroyed due to the contamination.
The resident remained in a number of different hotels until August 2022. These were being arranged by the landlord’s insurer. However, on 5 August 2022 the resident returned to their hotel but were refused entry. This was because the hotel had not been paid the most recent invoice. The resident said they had to move in with family, although they were unable to retrieve their belongings from the hotel, including medication, clothing, and toiletries. The resident remained with family until the flat became inhabitable again.
The resident raised their complaint on 1 September 2022. They complained that:
1. They were unable to return to their flat over a year after being decanted.
2. Property had been removed from the flat but the landlord could not say where it was.
3. They had been kicked out of the hotel arranged for by the landlord.
4. A previous complaint had been marked as resolved but it was not.
The property was inspected in September 2022 and a number of minor works were required outside the property. The property was inspected again in October 2022 and additional works were found to be required which were more intrusive. These included:
1. Fixing a leak in the roof of the building.
2. Subsidence works in the front of the property.

Work on the leak was done shortly after this but on a visit to the property the resident noted additional staining suggesting further ingress. This required the landlord to inspect the flat above to see if the leak was originating from that flat.

The landlord responded to the complaint with a stage 1 response on 7 October 2022. It said:
1. It was sorry for the delay in completing the works which had been complicated by the discovery of asbestos in the property.
2. It would attempt to retrieve the property from the hotel and update the resident within the next week.
3. It was not sure which items the resident was referring to.
4. During a final inspection additional works were identified which needed to be completed before the resident could move back into the property.
5. It offered £1,150 although it also agreed to offer additional compensation for any missing items.
The resident responded to the landlord’s stage 1 response on 18 October 2022. The resident:
1. Was unhappy that there was a number of unresolved issues, including when they may be able to return to the flat.
2. Highlighted they had not left the hotel voluntarily, although the landlord’s insurers suggested that the resident had refused accommodation.
3. Was able to retrieve their belongings from the hotel.
4. Provided a list of missing items.
5. Said that they were previously receiving support payments which had been stopped in September 2022.
The landlord acknowledged receipt of the escalation on 19 October 2022 and 14 November 2022. During this time it attempted to complete additional repair works on the property. It had difficulty contacting the tenant in the flat above the resident’s. This meant it was unable to complete the repairs although a scaffolding remained in place at the property.
The resident contacted this Service on 10 January 2023 as they had still not received a response from the landlord. We wrote to the landlord asking them to send the resident its final response. The landlord sent its stage 2 response to the resident on 27 January 2023. It accepted the complaint and apologised for its actions. The landlord:
1. Offered compensation of:
  1. £1000 for the delays in completing the repairs.
  2. £20 per day from the date the resident left the hotel.
  3. A refund of rent from the date the resident left the hotel until they return.
  4. £500 for the poor handling of temporary accommodation.
  5. £250 for the poor handling of the complaint.
2. Confirmed that it would fund the replacement of any items destroyed due to contamination.
3. Apologised for a lack of empathy and poor communication.
4. Offered to visit the resident before handing over the property to ensure it is fit to move back into and to discuss the replacement of white goods.
The landlord restarted repairs to the property including leak and the subsidence. The landlord completed these repairs in May 2023, with a projected handover date of 5 July 2023. A final inspection was scheduled prior to the handover. The resident and landlord attended and found further water ingress in the property. This was in the form of penetrating damp underneath the staircase. A further inspection was done by the landlord’s contractors on 19 July 2023. The repairs were completed and the resident moved back in on 7 November 2023.
The landlord issued a further response to the resident on 25 October 2023. This was a letter which outlined the final offer of compensation to the resident. The landlord offered:
1. £50 per day from the date the resident left the hotel – amounting to £24,900.
2. £1,000 for the delay in completing the repairs to the property.
3. £500 for the service failures in providing temporary accommodation.
4. £250 for the delay in responding to the complaint.
5. To pay for the resident’s replacement items on the production of receipts.
The resident has outlined their continued dissatisfaction with the response. In particular, the resident remains unhappy with a number of elements of the landlord’s response. Although the resident is equally happy the landlord has accepted many of the failings and made efforts to put them right. The resident has specifically said that they are unhappy with:
1. Their treatment while staying at a number of hotels as temporary accommodation.
2. The delay between moving back to the property and receiving payment.
  1. In particular, the resident was unhappy that they had to move in before they could purchase items for the flat. This resulted in them borrowing money for items.
3. Although there was an apology, there was no compensation for the loss of sentimental items.
4. The resident continued to pay utility bills while the landlord occupied the property.

Assessment and findings

The decant

The landlord’s decant policy provides for three different kinds of decant. A permanent decant, which is not relevant here, and two others which are:
1. Emergency decant – which has the following attributes:
  1. Required when normal property uninhabitable.
  2. Normally only used for up to 10 working days, after which relocation to a void property is recommended.
  3. All reasonable expenses to be paid by the landlord.
  4. Where hotel accommodation is used, residents are paid £20 per day.
  5. Where a resident stays with friends or family, residents are paid £50 per day.
  6. Where a resident arranges their own alternative accommodation, their normal rent is set to zero.
  7. Where a hotel is used, the landlord will communicate with the resident every few days.
2. Planned decant – which has the following attributes:
  1. Arranged in advance with the tenant.
  2. Arranged by way of a license in a new property, whereas the old property is taken over by the landlord.
  3. No additional rent is paid, although the resident is responsible for any utility bills and council tax at the new property.
Clearly the emergency decant was unforeseeable and the result of extreme weather. The landlord followed its process as part of a wider flood response and we can find no reason to be concerned with its initial response. From our understanding the resident was offered £20 per day while they resided at the hotel to cover food. They were also offered £10 per week to cover laundry expenses. This was generally reasonable for a limited stay under the circumstances.
The landlord surveyed the damaged property (along with other damaged properties in the area) to establish how it would complete repairs. These surveys included surveys for asbestos. Again, we think this was reasonable. However, at this stage it was clear that the repair work would take some time. The floods happened in July 2021 and the surveys were completed by September 2021. This was 2 months after the emergency portion of the decant should have passed. While we cannot say whether the landlord had other available properties into which it could move the resident, there is no evidence that it made efforts to move the resident, or that it explained the situation to the resident.
The resident said that they were being moved between a number of hotels, organised and paid for by the landlord’s insurance company. The insurance company is normally there to ensure the landlord is protected financially in these circumstances. It is worth noting that the landlord at all times remained responsible for housing the resident, rather than the insurance company and we will review the complaint in that light. The resident said they were locked out of their hotel several times due to unpaid invoices from the hotel. In general, the resident would have to ring the landlord to encourage the insurance company to pay the bill. On the final occasion where the resident was locked out their hotel, they were unable to contact the landlord to make payment. The resident’s belongings were locked in the hotel, which the hotel refused to release without payment. This included:
1. Clothing.
2. Toiletries, eg toothbrush and personal hygiene products.
3. Medication.
The landlord accepted a failing in respect of its management of the hotel accommodation, which is welcome. However, we do not think that this acceptance went far enough or accounted for the totality of the situation the resident was left in. In brief, the landlord:
1. Failed to maintain regular communication during the hotel stay – it is likely that the payment issue would have been spotted earlier if it had.
2. Unreasonably delegated the organisation of temporary accommodation to its insurance company.
3. Did not consider that the extended hotel stay went far beyond the bounds of reasonableness in its own policy.
4. Did not fully consider the distress and inconvenience which would be caused by the sudden loss of a place to stay and access to personal items.
The landlord offered £500 for its failings in respect of the management of temporary accommodation. The failings identified fall into the severe category in our remedies guidance and we have awarded additional compensation for the reasons outlined.
The resident’s belongings remaining in the flat were damaged by the actions of the landlord or its contractors. There does not seem to be any dispute in this respect and the landlord has offered to fund the replacement of any items. We think this is good practice and are glad the landlord has accepted this. The resident’s primary concern is that the landlord asked the resident to purchase the items first and then provide receipts for reimbursement. In most situations of damaged property this would be acceptable practice.
However, in this situation, there was a large quantity of goods which needed to be replaced. The resident said they needed to borrow money from friends and family to buy goods to make the property comfortable. In the circumstances, we think it would have been more appropriate for the landlord to offer an initial sum to the resident before moving back to the property so they could buy items. If the landlord wished to do this in the form of vouchers or gift cards, this would be reasonable. However, forcing the resident to borrow money to fund items which the landlord would later reimburse is not good practice.
The resident is also unhappy that the landlord did not offer compensation for goods which could not be replaced. The resident’s son died some time ago and some of the belongings contaminated by asbestos were of significant sentimental value. The landlord apologised for this but did not offer a payment in recognition of the loss. We recognise that the impact of the landlord’s actions or inactions cannot simply be remedied by a financial payment where they involve items sentimental value. However, we do think it is important that a landlord acknowledges the impact of its actions and accounts for the stress, worry, frustration, anger, and disappointment. In our remedies guidance we refer to this as distress and inconvenience and set out that it is appropriate for a landlord to make a payment relative to the level of distress and inconvenience caused. In this case we believe a payment is due and have assessed this at the moderate level of our remedies guidance.
In respect of the utility bills, it does not appear the landlord has considered this at any stage of the decant or the complaint. The resident says they paid all utility bills throughout the period they could not access their flat. For clarity, when we refer to utility bills we mean:
1. Electricity.
2. Gas.
3. Council tax.
4. Water.
We have already explained that the landlord’s policy states that emergency decants would normally only happen for up to 10 working days. After this, we would consider that a planned, or temporary, decant is more appropriate. According to the landlord’s decant policy it would take over all utility and council tax bills during a temporary decant. We think it should have done the same on this occasion and therefore now needs to reimburse the resident for any expenses they have incurred in relation to these bills.
Taking all the above explanations into account we found that the landlord:
1. Failed to properly convert the initial emergency decant into a temporary decant for the purposes of its policy.
  1. This resulted in failing to take on the utility bills related to the flat.
2. Unreasonably delegated temporary accommodation to a third party resulting in poor communication and the resident becoming homeless.
3. Did not fully consider the distress and inconvenience of its actions in relation to the hotel accommodation.
4. Did not consider offering a payment in recognition of its actions resulting in the destruction of sentimental items.
5. Led to the resident needing to borrow money in order to receive payments due which the landlord had offered.
In mitigation, the landlord did respond very positively to many elements of its failings during the decant. It:
1. Accepted and apologised for some failings related to the destruction of the resident’s property and the decant as a whole.
2. Handled repairs in a reasonable manner, including repeatedly allowing the resident to inspect the property before moving back in.
3. Offered appropriate compensation for the delays in completing repairs and having to stay with friends and family.
4. Made significant efforts to repair the relationship with the resident.
Despite the positive elements of the landlord’s response, we do not find sufficient mitigation for the significant failings. As a result we have found severe maladministration in the landlord’s handling of the decant.

Complaint handling

The landlord has provided its policies in respect of complaints and compensation. It has a 2-stage process known as stage 1 and review respectively. Generally, the process follows the Housing Ombudsman’s Complaint Handling Code.
The resident has noted that the landlord logged a previous complaint for them prior to the one being investigated here. The landlord has not provided any evidence of that complaint, however we do not think this is needed. The resident’s previous complaint was never resolved and this complaint followed on from the previous one. We think it is poor practice to log a new complaint where one already exists, and this was likely to cause some confusion to the resident. This complaint covers all the same issues and so there is unlikely to be significant distress or inconvenience as a result of the poor complaint handling.
The landlord offered £250 for a delay in complaint handling at its review stage. The evidence provided shows that the landlord acknowledged the escalation in good time and wrote to the resident on a number of occasions to say it was still investigating. The landlord took 3 months to respond to the escalated complaint. We acknowledge that this delay was caused by the complex situation relating to repairs in the property however we think the landlord could have done more to provide updates to the resident. Along with the general updates, the landlord should have explained exactly what was causing the delay and providing responses to any elements of the complaint it was able to in the interim. If it had done this, it is likely the resident would not have felt they needed to contact this service before receiving the response.
The landlord offered significant compensation in the final response when it did send one, along with a promise of future payment until the point at which the property became inhabitable again. We think this was good practice and shows the landlord actively considered the long-term nature of the problem and the fact that it was not fully resolved at the point the complaint was closed. We also think it was good practice to review the compensation following a challenge from the resident and work out which formulation would result in a higher payment. It also sent a final compensation calculation which was positive.
Although there were some failings in the complaint handling, the landlord’s offer of £250 is considered reasonable, relative to those failings.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme we have found severe maladministration in the landlord’s handling of the resident’s decant.
In accordance with paragraph 53 of the Housing Ombudsman Scheme we have found the landlord offered reasonable redress in relation to its complaint handling.

Orders

The landlord is hereby ordered to pay the resident £1,750. This is in addition to any other payments and is made up of:
1. £1,000 for the failings identified in respect of providing hotel accommodation.
2. £500 in recognition of the distress caused by the destruction of sentimental items.
3. £250 in respect of failing to offer payment in advance for items the resident had to replace.
The landlord is also ordered to identify the cost of, and reimburse the resident for, any utility bills related to the flat while it was in possession of the property. This may require the resident to produce bills and evidence of payment in respect of:
1. Gas and electricity.
2. Council tax.
3. Water.
The landlord should review its decants policies in light of the findings in this report. It should consider whether it is appropriate to update the policies in the following areas:
1. The transfer of a decant status from emergency to planned, or temporary.
2. Responsibility for organisation and payment of emergency accommodation.
3. Whether the resident should have a named contact in respect of a decant, especially while staying in a hotel or B&B.
The landlord must provide evidence of compliance with the above orders within 4 weeks of the date of this report. The landlord should also provide a final figure for payments made to the resident in respect of this complaint.
1. In respect of the review of its policies, the landlord must only confirm it has reviewed the policies and when it intends to update them.