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Notting Hill Genesis (202332671)

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REPORT

COMPLAINT 202332671

Notting Hill Genesis (NHG)

29 January 2025


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 decision to issue the resident with a Notice of Seeking Possession (NoSP) and its administration of her rent account.

Background

  1. The resident is joint tenant of the landlord, which is a housing association. She holds an assured tenancy. She has resided in the 2-bedroom flat with her husband and young child since 2019. The landlord has no vulnerabilities recorded for the resident but she has informed it of the stress and anxiety she experienced around the issues raised in her complaint.
  2. The landlord issued the resident with a NoSP on 27 February 2023 for rent arrears. It said the arrears were £1,559.43 as of that day and she had failed to respond to recent letters about this. To prevent possession proceedings, she would need to clear the arrears and pay her rent weekly in advance. It offered her tenancy support services and said she should inform it if she was experiencing personal circumstances impacting her ability to pay.
  3. The resident received the NoSP on 1 March 2023 and complained to the landlord the same day. She said it was harassing and bullying her by threatening her with homelessness. She felt the NoSP had been issued on invalid grounds and contained lies and inaccuracies about the level of arrears and her engagement with it on the matter. She noted that the landlord was aware she was withholding the service charge element of her payment due to queries to which it had not responded. She asked that it retract the NoSP, answer her outstanding service charge queries, and apologise.
  4. The landlord responded at stage 1 of its complaints process on 21 March 2023. It apologised that the NoSP had caused her distress but said it had been right to issue it based on the arrears in line with the terms of tenancy. It acknowledged that she had made a payment on 24 February 2023 but explained that this was not reflected on her account when the NoSP was issued on 27 February 2023.
  5. The resident escalated the complaint the same day. She felt the landlord had ignored her points and said it was trying to evict her despite being aware of the damage the situation was doing to her mental health.
  6. The landlord responded at the final stage of its complaints process on 6 April 2023. It apologised that the situation had caused her distress and that it had not yet addressed her service charge queries. It explained that it operates within defined income collection policy and procedures and had issued the NoSP according to these. However, it acknowledged that it would be disproportionate to progress legal action where there was an unresolved dispute about service charges.
  7. The resident is unhappy that the landlord issued the NoSP as ‘an empty threat’ and refutes that it did so in line with its policy and procedures. She wants the landlord to redact the NoSP from her record. She also wants an apology and compensation for the stress and anxiety she has suffered because of the landlord’s handling of the matter.

Assessment and findings

Scope of investigation

  1. The resident has referred other complaints to the Ombudsman with regards the landlord’s handling of her queries about service charges. For clarity, this investigation is focussed solely on her complaint about its decision to issue her with a NoSP.

Decision to issue a NoSP

  1. The tenancy agreement sets out the resident’s responsibility for paying rent and all other charges for the property on a weekly basis in advance. It may agree a different payment frequency, such as monthly or quarterly. It states the landlord may apply to court to repossess the property if the resident does not pay rent and service charges.
  2. The landlord collects rent and service charge payments in line with its income collection policy and procedures. If rent arrears arise, housing officers should engage residents to establish the circumstances and secure payment or agree a repayment plan. It should identify any vulnerability and refer the resident to appropriate support services if applicable. If the landlord has repeatedly attempted contact with the resident and it has given them opportunities to address the arrears, it can issue a NoSP under section 8 of the Housing Act. The aim of serving the NoSP is to give the resident a clear warning that it intends to proceed to court.
  3. As of February 2023, the resident’s weekly rent and service charge bill was £166.09. On 20 February 2023 the landlord emailed the resident and informed her that her account was £728.98 in arrears and that she was underpaying each month. The resident had accrued arrears by withholding the service charge portion of the payment dating back months. She also paid her rent in arrears at the end of the month. She explained to this Service that she had underpaid an additional £246.95 on her rent due to a miscalculation.
  4. The resident responded the same day and informed the officer that she would make a monthly payment (minus the service charges) and pay an additional £100 towards the arrears on 24 February 2023. She said she intended to pay a further £146.95 across 2 payments in March and April 2023. This Service is not able to verify what portion of the debt constituted rent or service charges but the resident said this would clear the rent portion of the arrears due to her miscalculation. She explained that she would continue to withhold the service charge element until it responded to her queries about this in full.
  5. In issuing the NoSP, the landlord said the resident had failed to respond to its letters about the debt and it therefore had no choice but to start proceedings. This Service has not seen copies of these letters so it is not clear what it had previously communicated. However, it was not accurate of the landlord to say the resident had not responded. Her email of 20 February 2023 evidenced her engagement on the matter. The landlord did not acknowledge this inaccuracy in its complaint response which caused the resident frustration.
  6. The NoSP stated that the balance was £1559.43 in arrears as of 27 February 2023 when it was issued. The payment made by the resident brought the adjusted balance to £783.04 in arrears this same day. The resident had told the landlord she would make the payment on 24 February 2023, and it took 2-3 days for payments to reconcile to the account. It would have been prudent of the landlord to make enquiries before issuing the NoSP on the date the payment was expected, as per its policy and procedures. The balance quoted on the NoSP caused the resident alarm and confusion.
  7. However, there was still debt on the account so the landlord was within its right to issue the NoSP. It was issued on grounds 8, 10 and 11 of the Housing Act. The adjusted balance as of 27 February 2023 meant that the arrears were below the amount for mandatory possession on ground 8. (This is equivalent to 8 weeks’ worth of rent). However, grounds 10 and 11 of the Housing Act do not require a minimum amount of arrears. Ground 10 simply requires that there be rent arrears and ground 11 requires that there be persistent delays in paying rent. It does not specify what it considers to be ‘persistent’. Ultimately, it is for a court of law to determine whether the grounds for possession apply, but given the arrears there was a basis for the landlord to issue the NoSP.
  8. The NoSP highlighted that the resident should pay her rent on a weekly basis, every Monday in advance, and that to not do so was a breach of her tenancy. The resident felt this demonstrated ill intent towards her as she said she had agreed with it that she could pay monthly and had always done so. The resident provided an email from the landlord dating back to 2020 in which it acknowledged and accepted that she paid her rent at month end.
  9. The tenancy agreement allows for residents to make payments with alternative frequency upon agreement but requires that they are made in advance. It is understandable that the resident felt the landlord’s position was unfair given it had accepted monthly payments in arrears up to this point. Given there were arrears above the monthly reconciliation, there was a basis for it to issue the NoSP. However, it should have acknowledged the arrangement in place and communicated prior to issuing the NoSP if it no longer agreed to this.
  10. A portion of the arrears was due to the resident withholding service charge payments. In her correspondence with the landlord, she said the easiest way for it to achieve reconciliation of the account was to provide this clarity. In its stage 1 response the landlord noted this was not a basis for non-payment and that disputes should be resolved through the complaints process. Ultimately the landlord’s position was reasonable and in line with its policies and procedures which state that a resident cannot legally withhold rent in retaliation for any other tenancy complaint.
  11. The Ombudsman notes that the landlord has offered the resident £150 compensation in recognition of the outstanding service charges queries and advised her to take these to the First Tier Tribunal for adjudication. This offer was made as part of a mediation process following the resident’s referral of this complaint to the Ombudsman. As discussed, this Service is unable to investigate the resident’s concerns about service charges as part of this investigation but encourages the landlord to engage with the resident on this and make its offer of compensation available to her.
  12. The resident also noted that the landlord had not followed its procedure in issuing the NoSP, as it had only done so in her partner’s name. She felt this omission was intentional. As joint tenants, the landlord was required to issue the notice to both parties. A court could, on this basis, consider the notice invalid and dismiss proceedings. Conversely the landlord has provided this Service with a copy of the NoSP which names only the resident. It has provided 2 covering letters, addressed to each of them individually. Ultimately, the Ombudsman is unable to determine whether the landlord sent copies to both parties, but there is no evidence it deliberately omitted sending a copy to the resident.
  13. The resident said she had been clear with the landlord that the situation with regards her service charge payments was causing her stress, anxiety, and depression. In addition to challenging the grounds upon, and process by which, the landlord had issued the NoSP, she felt it was unreasonable that it had done so given her vulnerability. It is understandably distressing to receive a NoSP and a landlord should have due regard for the impact of this. In issuing the NoSP the landlord directed the resident to support services and invited her to provide details of any personal circumstances that it should consider. It acted appropriately and in accordance with its policy in doing so.
  14. The resident felt the landlord’s actions amounted to bullying and harassment and believes the income officer’s manager has a vendetta against her. She notes that she had a conversation with the income officer who told her their manager instructed them to send the NoSP. This Service appreciates the resident’s distress but has not seen any evidence of inappropriate conduct or that the landlord targeted the resident, so is unable to make a finding on this basis.
  15. According to the landlord’s policy and procedures, it will issue a NoSP as a clear warning that it intends to proceed to court. In its complaint response it acknowledged that it would be disproportionate of it to do so given there was a dispute about service charges. In its follow up communication with the resident, it said it should only issue one if it intends to take legal action and apologised for any unnecessary distress.
  16. The landlord’s intervention could be seen as hasty if it did not plan to take legal action immediately. There is no requirement within the NoSP that it progress legal action promptly. Under the terms of the NoSP the landlord can apply to court within a 12-month period. However, by its own admission it had caused unnecessary distress and could have used a less drastic intervention.
  17. The landlord’s policies and procedures also say that it should only serve a NOSP where it has ‘repeatedly attempted contact’ with a resident and it has given them the opportunity to clear the arrears. The landlord has not demonstrated that it repeatedly engaged the resident on the arrears and, as discussed, it did not respond to her email promising payment several days before it issued the notice.
  18. Ultimately, the landlord was within its right to issue the NoSP on the basis that there were arrears. It is not for this Service to dictate when a landlord can issue a warning. However, there were issues in its communication with the resident prior to issuing the NoSP. It caused unnecessary alarm by issuing the NoSP without waiting to check if the resident’s expected payment had adjusted the balance. For these reasons the Ombudsman finds service failure. The landlord should pay the resident £100 compensation in recognition of the stress and frustration she experienced. This is in line with this Service’s remedies guidance.
  19. The resident has asked the landlord to remove the NoSP from her record. A NoSP cannot be retracted but as of February 2024, the NoSP has expired and is invalid.
  20. In its final response the landlord said that it does not normally investigate complaints that are about its policies and procedures as these are excluded under its complaint policy. The landlord’s policy states that complaints which concern ‘information or an explanation’ of policies and procedures or that are about the ‘content’ of its policies and procedures will not be dealt with under its complaints policy. As the resident’s complaint related to the landlord’s application of its policy this was not relevant. No failing has been found as the landlord investigated the complaint but it should be mindful of this and ensure it investigates all valid complaints.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s decision to issue the resident with a NoSP and its administration of her rent account.

Orders and recommendations

Orders

  1. Within 4 weeks of the date of this determination the landlord is ordered to pay the resident £100 compensation for failings in its administration of the NoSP and rent account.

Recommendations

  1. The landlord should work to resolve the resident’s outstanding service charge queries. It should make its offer of £150 compensation available to her should she wish to refer her queries to the First Tier Tribunal for adjudication.