Notting Hill Genesis (NHG) (202302449)

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REPORT

COMPLAINT 202302449

Notting Hill Genesis (NHG)

29 May 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 reasonably and competently.

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 landlord’s management of a resident’s behaviour.
The Ombudsman has also looked at the landlord’s complaint handling.

Background

The resident has an assured tenancy agreement with the landlord, which commenced on 30 October 2006. The property is a 1-bedroom ground-floor flat. The property has a communal entrance with a communal hallway and stairs. The landlord said it did not have any vulnerabilities listed for the resident.
The resident lives below a neighbour with complex needs. Between May 2022 and July 2023, the resident made the following reports to her landlord about her neighbour:
1. he persistently flooded his bathroom which caused damage to her ceiling, walls, and flooring.
2. he persistently smeared faeces across the communal hallway area.
3. he had poor hygiene that was causing a noxious smell to come from the property above hers and he was dangerous because of his mental health issues.
4. he had left the main communal entrance open which left the property unsecure.
The landlord responded by arranging an appointment with its contractor to assess the damaged ceiling and floors and complete any required work which it said it had completed on 19 July 2022. It also told the resident it was working with her neighbour to offer him support to address the issues she had raised.
The resident raised a complaint on 19 November 2022 because she was dissatisfied with the way the landlord had handled her neighbour’s behaviour because it had failed to take any action. The landlord issued its stage 1 response on 10 May 2023. It said:
1. it had engaged with her neighbour to explain that his behaviour was unacceptable. The landlord said it had offered support to work with the neighbour to address the issues.
2. it did not intend to take action against her neighbour.
3. the resident had the option to move by transfer or mutual exchange and it would discuss this further at the resident’s request.
The resident escalated her complaint on the same day. She said:
1. the issues had been ongoing for 6 years and were having an impact on her mental health.
2. she wanted the landlord to move her neighbour to a place where he would not cause harm or problems.
3. the hallway, carpet, and front door needed to be cleaned regularly because the faeces were a health and safety issue.
On 10 July 2023, the landlord issued its stage 2 response. The landlord explained:
1. it had issued an action plan to the resident which stated:
  1. it would replace the communal carpets with lino.
  2. it would conduct a deep clean of the communal area.
  3. it would visit the neighbour every month to ensure it was aware of his needs.
2. it needed to balance responding to complaints and the support of its most vulnerable residents by giving clear objectives. The landlord also acknowledged that it needed to communicate more effectively about how it proposed to support the resident.
3. it had offered the resident £250 for the delay in issuing its complaint response.

Assessment and findings

Scope of investigation

The resident explained that her mental health had deteriorated as a result of her neighbour’s behaviour. She also said that she had experienced bacterial and skin infections because of her neighbour’s poor hygiene. When there is a dispute over whether a health condition has been made worse, the courts rely on expert evidence in the form of medico-legal reports. This will give an expert opinion of the cause of any injury or deterioration of a condition. This is a reason why complaints about illness and injury are better dealt with by the courts and a reason why it would be difficult for the Ombudsman to make any findings on this. If the resident wishes to pursue this matter, she should seek independent legal advice.

While it is concerning that the resident said she has experienced this issue at her property for several years, due to the extensive time that has elapsed, it would not be effective for the Ombudsman to consider historic events. As a general principle, the Ombudsman will consider complaints which have been raised within a reasonable time of the events occurring.
The scope of this investigation is limited to considering events between May 2022 and July 2023 when the complaint exhausted the landlord’s complaint procedure.

Policies and procedures

The landlord’s antisocial behaviour (‘ASB’) policy sets out its general approach to dealing with ASB. It states:
1. when it receives a report of ASB that does not have a serious or immediate risk of harm, it will offer the complainant a telephone interview within 5 working days. Its initial response is to investigate and monitor any risk.
2. where the alleged perpetrator is vulnerable, it will offer them support to meet their needs by referring them to external agencies for support.
3. where the initial report describes behaviour not considered to be ASB, assistance should still be offered, but its “neighbour disputes guidance” should be followed.
The landlord’s domestic noise and neighbourhood disputes policy sets out its approach to conflict between neighbours where there has been no breach of an occupancy agreement. It places weight on discussing the issues together with parties at an early stage. It also recognises behaviour can escalate into ASB and if a resident believes the issue should be dealt with under its ASB policy it will review this.
The landlord’s responsive repairs policy commits to attending emergency repairs within 24 hours and routine repairs within 20 working days of the report. It also states that it is responsible for repairing internal walls, floors, and ceilings.

The landlord’s record-keeping

The Ombudsman expects landlords to maintain a robust record of contacts and repairs. This is because clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise.
It is the Ombudsman’s opinion that the landlord has failed to maintain adequate records, which has significantly impacted this service’s ability to carry out a thorough investigation, as highlighted at various points throughout this report. This was a significant failure by the landlord.

The landlord’s response to the resident’s concerns about her neighbour’s behaviour.

The resident said she felt the landlord failed to act in response to her concerns about her neighbour’s behaviour. The resident also said the landlord allowed her neighbour’s behaviour to continue. She explained this was causing her mental health to deteriorate. Between May 2022 and July 2023, the resident made at least 13 reports about her neighbour, including:
1. in May 2022, October 2022, and July 2023, he was persistently flooding his bathroom which caused damage to her ceiling, walls, and flooring.
2. in August 2022, October 2022, and January 2023, he had poor hygiene which was causing a noxious smell to come from the property above hers. The resident also said her neighbour was dangerous because of his mental health difficulties.
3. in October 2022 and January 2023, he persistently smeared faeces across the communal hallway area.
4. in December 2022, he had locked the resident out of the property.
5. in January 2022, he left the main communal entrance open which left the property unsecured.
The Ombudsman acknowledges that the resident said the incidents she reported caused her distress. However, it is important to note it is not the Ombudsman’s role to determine whether the incidents occurred or, if it did, who was responsible. What the Ombudsman can assess is how the landlord has dealt with the reports it has received and whether it had followed proper procedure and followed good practice, taking account of the circumstances of the case.
The Ombudsman recognises that this case has been challenging for the landlord to manage due to the vulnerability and support needs of the neighbour. The landlord was required to balance its obligations towards the resident so that she could live free from interference, with its obligations to support the neighbour with his vulnerabilities in line with the Equality Act 2010. As well as to uphold his right to live free from interference. The landlord is also legally obliged to protect the confidentiality of the neighbour’s data and information.
When a report is made to a landlord, it must decide if it falls within the definition of ASB. This is found in the Anti-Social Behaviour, Crime and Policing Act 2014 and is “behaviour by a person which causes, or is likely to cause, harassment, alarm or distress to persons not of the same household as the person.” The landlord’s ASB policy adopts this definition.
The landlord said in its stage 1 response that after reviewing the incidents reported by the resident, it did not intend to take further action against the neighbour. It also said there was insufficient evidence to suggest the behaviour was intentional, meaning it did not meet the threshold for ASB.
Whilst the landlord is entitled to assess and categorise the incidents as falling outside of its ASB policy, it did this 12 months after the resident’s initial reports. This was inappropriate because the landlord should have communicated its position at a much earlier stage in the process. This would have helped to manage the resident’s expectations. In addition, there is no evidence the landlord went on to consider its obligations under its neighbourhood dispute policy.
Although the landlord offered to discuss the prospect of a transfer to another property in May 2023, the resident declined this option. Given the frequency and pattern of the reports, it should have provided her with a detailed action plan that considered both the impact of the incidents on her and how it would try to mitigate this.
When the resident expressed concerns about the danger the neighbour posed, there was no evidence the landlord responded to her. The Ombudsman would have expected the landlord to have contacted the resident in line with its ASB policy, responded to her within 5 working days and offered her a telephone interview. It could have then taken notes from the meeting to share with other agencies. In addition, it would have been reasonable to have conducted a risk assessment to assess the harm to the resident and provided her with signposting for further support because she said her mental health was being affected.
Alternatively, if the landlord’s position was that there were no tangible incidents to respond to, it should have communicated its position to the resident. This would have helped to manage the resident’s expectations about how it was able to respond to her reports and the reasons behind why it had come to its decision not to take further action.
The landlord failed to demonstrate to the Ombudsman it responded in line with its ASB policy or its neighbour dispute policy. Although it is unlikely that discussing the matter between parties would have been of benefit to the resident, it remains the landlord had discretion to consider its ASB policy in this event. There is no evidence it did this.
Further, in completing risk assessments and focussing on the harm caused, landlords can ensure that they can put measures in place at the first opportunity and reduce the impact of the ASB. The landlord should have considered the impact on the resident as well as regular communication with the resident using their preferred method and at an agreed frequency.
The resident reported that her neighbour was wiping faeces over the communal area. The landlord did not provide any evidence of when it cleaned the communal area during the time of the reports. The Ombudsman considers this a significant failing because the Ombudsman cannot be satisfied the landlord responded reasonably on each occasion to the resident’s reports or in line with its repair obligations. The landlord should have demonstrated it was maintaining the health and safety of both residents by cleaning the communal area.
On 30 May 2022, the resident reported that her property was being damaged by a leak when her neighbour would use his bathroom. The landlord responded by raising a repair for a contractor to assess the damage and complete any associated works. This included assessing any damage to the floor or ceiling which may have required re-plastering. The worksheet for this job noted this was a “constant occurrence.” The resident said this damaged her ceiling, walls, and flooring.
The landlord said it completed the works by 19 July 2022. The resident said the landlord had not re-plastered her property when she referred her complaint to the Ombudsman.
The evidence does not show a scope of works for the landlord to complete or which works were completed at this appointment. This is evidence of further poor record keeping. This was a failure because the Ombudsman was unable to determine which repairs the landlord intended to carry out and if they were completed in accordance with its repairs policy.
The resident reported a further leak due to the neighbour’s behaviour on 26 October 2022. The landlord did not provide any evidence of its response to this incident. Therefore, the Ombudsman was unable to determine if the landlord responded in accordance with its repair policy. This was a significant failing and evidence of poor record keeping.
The resident reported that she was locked out of the property on 19 November 2022, and said this has left her feeling stressed and anxious. The landlord wrote to the resident on 12 January 2023. It said it sent a warning letter to the neighbour explaining “the behaviour was ASB and not acceptable.” It also said it was working with other agencies to ensure the neighbour was safeguarded during this process and that it was unable to disclose further information.
Given the landlord’s stage 1 response said the behaviour was not ASB, its approach here was inconsistent. This caused uncertainty to the resident about the approach it was taking and its position on the report she had made.
The landlord did not provide evidence that it issued the resident’s neighbour with a warning letter or that it opened a case after categorising this incident as ASB. This was evidence of further poor record keeping meaning the Ombudsman has been unable to conclude the landlord acted in accordance with its ASB procedure.
Based on the ongoing nature of the resident’s reports and the resident repeatedly expressing the incidents were ASB, it is unclear why the landlord did not regularly assess the resident’s reports and use its discretion under its neighbourhood disputes policy to reconsider the case in line with its ASB policy.
Following the conclusion of the complaints procedure the landlord committed to the following action plan:
1. deep cleaning the communal area.
2. replacing the communal carpet with lino.
3. visiting the resident’s neighbour every month.
The Ombudsman considers the landlord’s action plan did not include an offer of support to the resident such as signposting to relevant agencies. This was inappropriate because the resident had explained the adverse impact of the incidents on her mental health each time she reported the incidents. The landlord should have demonstrated it had taken this into account and considered what support it could offer her.
The landlord said it carried out a deep clean of the communal area on:
1. 23 January 2024.
2. 1 February 2024.
3. 26 February 2024.
The landlord has produced no evidence to support it had carried out the deep cleans noted above, such as cleaning invoices or confirmation from its contractor. Therefore, it is not possible to determine if the landlord carried out the cleaning schedule it had committed to in its stage 2 response. This was a failure and a further example of poor record-keeping.
The landlord said in its cover letter to the Ombudsman that it had failed to remove the carpet in the communal area and replace it with lino to make it easier to clean. However, it was looking to do this urgently. At the time of writing this report, there is no evidence the landlord has completed this action.
This was inappropriate because the landlord failed to demonstrate it completed the works in accordance with its repairs policy and in a reasonable time. Given this action could have mitigated one of the main issues impacting the resident, the landlord should have completed this in a timely manner.
In addition, the landlord said in its cover letter to the Ombudsman that its housing officer had visited the neighbour several times following its final response. However, it said it did not have any records of this such as interview notes or case management records. This was poor record-keeping because the landlord should have been able to provide evidence of its actions.
Due to the lack of adequate records, it is not possible for the Ombudsman to determine:
1. if the landlord responded to all the resident’s reports between May 2022 and July 2023.
2. if the landlord had conducted a risk assessment to assess the impact of the neighbour’s behaviour on the resident.
3. what actions the landlord intended to take between May 2022 and July 2023 to mitigate the impact on the resident.
4. if the landlord had asked the resident to record incidents so that it could use these as part of a collaborative approach with external agencies.
5. whether the landlord’s overall response was appropriate and consistent with its policy.
6. whether it would have been appropriate for the landlord to have considered the discretion in its neighbourhood dispute policy to assess the incidents against its ASB policy due to their ongoing nature.

Summary and conclusions

Both residents have the right to live peaceably in their homes. Where one resident affects another resident’s enjoyment of their home, social landlords are responsible for considering what evidence there is of a nuisance or annoyance that is being purposefully or recklessly caused. When a resident’s needs begin to affect those in proximity, landlords must weigh up the rights of both tenants. It must try to work with them and consider outside agencies in doing so. It must complete risk assessments to consider the likelihood and extent of any harm to the parties. It should then put in place an action plan of how to reduce or mitigate those risks.
Based on the evidence reviewed by the Ombudsman, there is no evidence of referrals to outside agencies, or regular attendance at the property by the housing officer or manager. There is no evidence that the landlord has completed risk assessments.
For these reasons, there is no evidence on which the Ombudsman could conclude the landlord’s response to the resident’s reports about her neighbour was appropriate. As a result, the Ombudsman considers there was maladministration by the landlord for the way it handled the resident’s reports. This is because of the cumulative impact of its poor record keeping, failing to demonstrate it had carried out the actions it had promised to do, and its failure to demonstrate it offered adequate support to the resident.

Complaint handling

The Complaint Handling Code (‘the Code’) states:
1. landlords should issue stage 1 responses within 10 working days of the complaint.
2. landlords should issue stage 2 responses within 20 working days of the escalation request.
The landlord’s complaint policy contains the same timeframes as the Code.
The resident raised her complaint on 19 November 2022. The landlord provided its stage 1 response on 10 May 2023, which was 116 working days later. This was not appropriate as it was not consistent with the landlord’s policy or the Code. This impacted the resident because she felt the landlord was not taking her seriously and failing to address her concerns.
There is evidence the Ombudsman had to intervene to ask the landlord to respond at the first stage of its complaint process. This should not have been necessary. The Ombudsman expects landlords to be able to manage complaints without the involvement of this service. This was a failure by the landlord.
When the resident escalated her complaint on 10 May 2023, the landlord issued its stage 2 response on 10 July 2023. This was 42 working days later. This was not appropriate as the landlord failed to adhere to the timeframes in the Code or its policy.
The Ombudsman notes in the landlord’s final response it accounted for its complaint handling delay and offered the resident £250 in recognition of this. This was an appropriate response because the landlord acknowledged its failure and tried to put things right.
The landlord’s stage 2 response detailed an action plan that contained an agreement to clean the communal area and replace the flooring. Although the flooring replacement would have made the communal area easier to clean, this did not address the need for it to be cleaned regularly due to the pattern of behaviour.
The Ombudsman would have expected the landlord to have committed to a remedy that acknowledged the issues were ongoing at the point of the final response. The remedies for the substantive issues were one-off cleaning jobs which did not address the continuing nature of the issue. Therefore, the Ombudsman does not consider the remedy offered by the landlord to be sufficient to address the issues raised.
The evidence shows the landlord attempted to put things right during the complaint process. However, the Ombudsman considers there was maladministration because the remedies provided did not address:
1. the length of time the situation had been ongoing.
2. the frequency of the resident’s reports which remained unaddressed.
3. the overall distress and inconvenience of the resident due to the failures identified in the landlord’s handling of the substantive complaint.

Determination

In accordance with paragraph 52 of the Scheme there was maladministration with the landlord’s response to the resident’s concerns about her neighbour’s behaviour.
In accordance with paragraph 52 of the Scheme there was maladministration with the landlord’s complaint handling.

Orders and recommendations

Within 28 days of the date of this determination, the Ombudsman orders the landlord to:
1. arrange for the CEO to call the resident to apologise for the failures identified in this report. This must be followed by a written apology.
2. pay the resident £1,100 compensation which is broken down as follows:
  1. £950 for the distress and inconvenience of its handling of the resident’s concerns. This includes the impact of the failures identified by the Ombudsman in respect of the handling of the reports about the neighbour, and the delay in completing the clean up and repairs.
  2. £150 for its complaint handling.

This is in addition to the compensation awarded to the resident during the complaint procedure. The compensation awarded during the complaints procedure must also be paid to the resident if it has not been already.

conduct a case review of this complaint and produce a report which identifies:
1. why there were delays in explaining to the resident why the incidents she had reported did not meet the threshold for ASB and how it can prevent this in future.
2. why it failed to demonstrate it had responded to all the resident’s reports and how it can prevent this in future.
3. how its action plans could include more support for residents in situations where it does not consider there to be ASB present.
4. if front-line staff require additional training concerning record-keeping for case management.
5. how it will ensure that actions it agrees to undertake during its complaint procedure are monitored and completed in a reasonable time.
6. whether it made any referrals to outside agencies such as social services, the council, mental health services or the environmental health department between May 2022 and July 2023? And if not, why not?
the findings of its case review must be shared with the Ombudsman. A summary may be shared with the resident subject to GDPR.
inspect the property to identify any outstanding works related to the resident’s reports of damage to her walls, floors, and ceilings associated with the neighbour’s behaviour.

Within 14 days of its inspection, the landlord must provide the resident with a schedule of works to be completed and use its best endeavours to complete the works in a period not exceeding 28 days.

Recommendations

The landlord may wish to self-assess against the recommendations in the ‘Knowledge and Information Management (KIM)’ Spotlight Report.
The landlord may wish to consider re-offering the resident or the neighbour a suitable alternative home.