Notting Hill Genesis (NHG) (202200827)

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REPORT

COMPLAINT 202200827

Notting Hill Genesis (NHG)

31 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

The complaint is about the landlord’s handling of:
1. The level of service charge.
2. The resident’s concerns about a breach of her tenancy agreement.
3. The resident’s service charge account management.
4. Communal door repairs.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42(d) of the Scheme notes as follows:

42. The Ombudsman may not investigate complaints which, in the Ombudsman’s opinion:

d) concern the level of rent or service charge or the amount of the rent or service charge increase.

As part of her complaint to this Service, the resident raised concerns about the level of the service charge she was asked to pay. While this investigation has considered the landlord’s communication and responses to the resident in relation to her service charge, an assessment of the level has not been considered. A binding determination on the level of a service charge is more appropriate for the First-Tier Tribunal (Property Chamber).
After carefully considering all the evidence, in accordance with paragraph 42(d) of the Scheme, the complaint about the level of the service charge is outside of the Ombudsman’s jurisdiction.
Additionally, paragraph 42(f) of the Scheme notes as follows:

42. The Ombudsman may not investigate complaints which, in the Ombudsman’s opinion:

f) concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal, or procedure.

Throughout the complaint, the resident has raised concerns that the landlord’s attempts to add and remove services to the Service charge is a breach of her tenancy agreement. The interpretation of the provisions of her tenancy agreement and whether the landlord is legally entitled to vary the service charge is in dispute. A legal interpretation of these provisions is beyond the expertise of this Service and is more appropriate for the courts or the First-Tier Tribunal (Property Chamber).
After carefully considering all the evidence, in accordance with paragraph 42(f) of the Scheme, the complaint about the resident’s concerns about a breach of her tenancy agreement is outside of the Ombudsman’s jurisdiction.
The resident has the option to seek legal advice if she wishes to pursue these concerns. Any reference to these elements of the complaint below are for context only.

Background

The resident lives a one-bedroom flat under an assured tenancy which began on 16 March 1992.
The resident has not declared any vulnerabilities to the landlord or this Service.
The complaint centres around 3 overlapping elements:
1. A proposed repair or upgrade to a communal door within the block of flats in May 2021 and whether the landlord was entitled to recover this via service charges.
2. The landlord’s general management of the resident’s service charge account, including whether it attempted to change the resident from a fixed to variable service charge, and whether services had been added (and charged for) or removed without the resident’s consent.
3. Poor complaint handling, including delayed and collated responses and a failure by the landlord to fully consider the issue despite numerous complaints.
The resident raised 5 formal complaints. These were made on 12 March 2021, 4 May 2021, 8 November 2021, 14 December 2021, and 5 January 2022. Throughout these complaints, the resident said:
1. The landlord was attempting to alter her tenancy agreement, including making changes to her service charge by changing it from a fixed charge to a variable charge.
2. That any changes to her tenancy agreement or service charge arrangements required “proper consultation” and that the landlord had not completed this. The resident said the method of returning feedback regarding the changes along with the timescale allowed was not sufficient.
3. The landlord had added services (and charges) to the resident’s service charges without her permission. Additionally, she said that other services had been denied or withdrawn by the landlord.
4. The landlord was responsible for repairing the communal door, and any associated costs, because it was in a state of disrepair. She said the door did not offer suitable security, particularly given that the building had been subject to burglaries in the past.
5. The landlord had not progressed complaints in line with the timescales and processes in its complaints policy. This included not responding to all complaint points or giving each complaint a separate reference number.
The landlord issued stage 1 responses on 24 May 2021, 25 May 2021, 16 November 2021, 24 December 2021, and 20 May 2022. Within these responses the landlord said:
1. It apologised for delays in issuing the complaint responses.
2. It confirmed that the resident was on a fixed service charge.
3. The resident had not been denied any of the services shown in her tenancy agreement.
4. It had added some charges to the resident’s service charge account in error. It apologised for this and removed the charges.
5. It confirmed that the communal door was a fixture that it was responsible to repair. It said its surveyor had assessed the communal door and found it was “strong and fit for its purpose”.
6. It had formally consulted with residents to gain views on whether to upgrade the communal door and to identify residents who did not agree to contribute to this via the service charge. It said that this consultation did not intend to vary the resident’s tenancy agreement.
7. It had offered a range of options for consultation feedback, including an option for written feedback via email.
The resident escalated each of the complaints and the landlord issued stage 2 responses on 15 October 2021, 31 May 2022, and three responses on 23 May 2022, in which it said it:
1. Apologised for the delay in responding to complaints.
2. Had not denied any services under the tenancy agreement and had removed any charges that had been added in error.
3. Was responsible for repairs to the communal door. It had instructed its surveyor to assess the door, and it had been found to be fit for purpose. On this basis, any changes to the door would be an upgrade, which would be chargeable to the residents.
4. Had tested the security of the door during a site visit in November 2021 and found it was sufficient due to the door having a ‘security hood’ fitted to the letterbox.
5. Had not made any variations to the resident’s tenancy agreement.
6. Had completed a full consultation related to the communal door and had first advised of this via hand delivered letters to residents.
The resident said that she did not receive 3 of the stage 2 responses in a “readable format” until 9 June 2022 and that she remained dissatisfied with the responses. The resident escalated her complaint to the Ombudsman on 3 August 2023.

Assessment and findings

Management of the resident’s service charge account

Section 18(1) of the Landlord and Tenant Act 1985 defines a service charge as: “an amount payable by a tenant of a dwelling as part of or in addition to the rent which is payable, directly or indirectly, for services, repairs, maintenance, improvements, or insurance or the landlord’s costs of management, and the whole or part of which varies or may vary according to the relevant costs.”
The resident’s tenancy agreement lists the following services that will be provided by the landlord: “lift, entry phone, communal lighting, cleaning of communal area, cooker/hob.”
The resident’s tenancy agreement includes the following provisions:
1. The resident is entitled, on notification that a service charge is increasing, to be provided with written details of how that charge has been decided.
2. The landlord may vary the agreement provided that “proper consultation” has taken place or otherwise with the consent of the resident. The agreement notes that this clause does not “affect the right of the [landlord] to vary the rent and other charges due from the tenant for the property.”
It is not disputed by either party that the resident is on a fixed service charge. This was also confirmed by the Leasehold Valuation Tribunal in a case brought by the resident on 28 August 2010. Fixed service charges are defined as a service charge which is set each financial year based on predicted costs and services provided. This does not vary based on actual costs incurred during the financial year by the landlord. The landlord’s position is that the charge can still be increased or decreased at the start of any accounting period, based on expected expenditure in the year ahead.
The resident said that the landlord had denied some of the services it was required to deliver via the service charge. In particular, the resident said that the landlord had withdrawn the provision of a cooker or hob. The landlord acknowledged in its correspondence with this Service that it “could have been better in consulting with [the resident]” about these changes. When the formal consultation concluded in February 2024, the landlord gifted all residents a one-off cooker or hob before the service was withdrawn.
The evidence shows that the landlord did undertake a meaningful consultation on this matter by allowing all residents an opportunity to raise feedback on the proposals. The landlord also communicated the outcome to all residents in a timely way. On this basis, while the landlord acknowledged the communication could be improved further, it nevertheless acted reasonably in its communication with the resident about this change.
Additionally, the resident said that the landlord had added further services (and charges) which she had not consented to. This was for gardening services and “specialist housing maintenance”. The landlord noted that the resident had been sent automated letters in error which indicated that these charges were due. Once this was identified, the landlord contacted the resident to advise her to disregard these letters and removed the charges from her account. While the initial incorrect letters would have been distressing, this was a reasonable and timely response from the landlord to the resident’s concerns.
The landlord asserted in several formal complaint responses and in other correspondence with the resident that it had not intended to vary the resident’s tenancy agreement or to change the resident from a fixed to a variable service charge. The evidence shows that the landlord acknowledged the resident’s concerns and provided its position within its responses. This was reasonable in the circumstances. It is noted that the formal responses were, on occasions, delayed and this would have caused additional distress and inconvenience for the resident. This is addressed in the complaints handling section below.
Overall, the evidence shows that the landlord considered the resident’s concerns and provided its position on these matters in its complaint responses. There were occasions where errors were made in assigning charges to the resident’s account that were not due. When these were identified the landlord addressed this appropriately and this was reasonable in the circumstances.
The Ombudsman notes that it took the resident expending time and effort bringing the landlord’s errors to its attention. These errors would have also caused her some distress. However, the landlord appropriately acknowledged these errors and corrected them. It also apologised for the errors. This prompt action and apology were proportionate to the impact of the errors, and in the Ombudsman’s opinion, amounted to reasonable redress in the circumstances.

Communal door repairs

The resident’s tenancy agreement states that the landlord is responsible for keeping in good repair the structure and exterior of the premises, including outside doors. In the cases of flats, the landlord must “keep common entrances … in reasonable repair and safe and fit for use by the [resident], members of his/her family and visitors.”
This obligation is also set out in law. Section 11 of the Landlord and Tenant Act 1985 says that landlords have a statutory duty to maintain the structure and exterior of its properties, which includes the roof, walls, windows, doors and external fixtures. Once notified of a defect, landlords must make a lasting and effective repair in a reasonable time.
The resident told the landlord that the communal door was in a “serious state of disrepair” in May 2021 and did not provide adequate security. She was particularly concerned about this given recent burglaries within the block. The resident supplied the landlord with a video showing another resident being able to open the communal door via the letterbox. The resident said that she felt the door required upgrading to be secure.
In response to this, the landlord’s surveyor attended the property and assessed that the door was “fit for purpose and did not require replacing”. It is unclear when the surveyor attended the property; however, the landlord wrote to the resident to confirm its finding on 25 May 2021. The landlord also said that it had tested the security of the door during a site visit in November 2021. It said it found that the door was sufficiently secure because the letterbox was protected by a “security hood” which prevented it being opened. These actions were reasonable and completed within the landlord’s repair policy timescale for ‘standard’ repairs (20 working days).
While the resident disputes the landlord’s findings, it was reasonable for the landlord to rely on the professional opinion of its surveyor and staff when assessing the door. The evidence shows that the landlord communicated its findings to the resident in a timely way. As such the landlord’s repair approach was reasonable in the circumstances.
The landlord hand delivered letters to all residents of the block on 5 November 2021. This was to seek their opinions regarding upgrading the communal door, as the resident had suggested. The letters gave a 7-day window for responses.
The resident said that this period of time was insufficient for a consultation because it was too short. She also said it did not provide an option for responses to be given in writing. The landlord said that this was not the consultation period, it was only to seek general opinions as to whether other residents supported the resident’s proposal that the door should be upgraded. The landlord also said that it did give an option to provide feedback in writing, as an email response was offered as a method.
The evidence shows that the landlord did not intend for this period to be the formal consultation exercise, as the full consultation began on 9 December 2021. This allowed a 28-day window for responses and residents were able to provide feedback in person to the landlord’s staff, by phone, in group sessions, or by email. Ultimately, the feedback indicated that the residents did not wish to complete the upgrade, and the landlord wrote to all residents with this outcome on 27 January 2022.
The Ombudsman notes that the landlord is obligated to keep the communal door in a good state of repair. However, the landlord also has an obligation to manage its funds effectively and is not required to complete improvements or upgrades where the door is confirmed to be satisfactory. It was therefore reasonable for the landlord to consult with all residents about the potential improvement and the associated cost.
Overall, the evidence shows that the landlord completed a fair consultation process on whether to charge residents (via the service charge) for the upgrade to the communal door. As this option was declined by the resident and other residents in the block, the landlord did not progress this option and no additional charges were incurred. Additionally, the landlord communicated its findings on the serviceability of the communal door with the resident in a timely way.
On this basis, there has been no maladministration in the landlord’s handling of the repairs to the communal door.

Complaint handling

The landlord operates a two-stage complaint process in which it commits to responding to complaints in the following timescales:
1. 10 working days at stage 1.
2. 20 working days at stage 2.
The Ombudsman’s Complaint Handling Code (‘the Code’) sets out key principles that landlords are required to adhere to in the management of complaints. This includes the following:
1. Landlords must operate a 2-stage process without any additional or informal stages as this causes confusion and delay.
2. Landlords must respond to complaints within the timescales in the Code. This is 10 working days at stage 1 and 20 working days at stage 2. This is to avoid extending the complaint process or delaying access to the Ombudsman.
3. Landlords must not extend the timescales for responding to complaint by more than 10 working days. In cases of extensions this must be clearly explained to the resident and the Ombudsman’s details must be provided.
The landlord’s complaint process in this case included 5 complaints which it responded to at both stage 1 and stage 2 of its complaint process. The majority of complaints related to substantially the same or similar matters, as set out above.
The evidence shows that there were repeated and longstanding delays in issuing complaint responses at both stage 1 and 2 of the landlord’s process. This included:
1. 49 working days to issue a stage 1 response to the first complaint.
2. 16 working days to issue a stage 1 response and 87 working days to issue a stage 2 response to the second complaint.
3. 199 working days to issue a stage 2 response to the third complaint.
4. 79 working days to issue a stage 2 response to the fourth complaint.
5. 45 working days to issue a stage 2 response to the fifth complaint.
These timescales were in excess of the landlord’s policy and the requirements in the Code. Delays in issuing responses also caused additional time and trouble for the resident in having to pursue these matters to completion. In this particular case, given the compounding issues, having multiple complaints open and overlapping also caused additional confusion for both parties and complicated the complaint process.
Therefore, it would have been reasonable for the landlord to have identified the multiple complaints that contained similar issues and to have considered how it may have dealt with these in a streamlined manner. This would have mitigated the time and trouble of the resident in pursuing multiple complaints about similar issues.
There is evidence that the complaint process was further complicated by administrative issues, including:
1. The landlord not receiving a stage 2 escalation request from the resident in her second complaint. This required her to resend the complaint. This was not within the landlord’s control. However, its complaint response was then delayed by 25 working days over the timescale which added to the overall delays experienced by the resident.
2. The landlord not being consistent in its application of reference numbers. This caused confusion for all parties when assessing the complaint and providing accurate responses. The Ombudsman would expect the landlord, if it chooses to use a referencing system, to ensure that this is correct. It is acknowledged that the landlord offered £25 compensation to the resident in respect of this failing. This was reasonable in the circumstances.
3. The landlord repeatedly responding to similar issues raised in different complaints. This primarily related to whether or not the resident was on a fixed or variable service charge and the handling of the consultation processes around this. This matter was present in at least 3 of the complaints raised. It would have been reasonable for the landlord to refer the resident to previous complaint responses to ensure consistency and clarity. While it is not a failing, it contributed to the confusion in this case by providing multiple responses which all varied slightly in their determination or wording.
The evidence shows that the landlord apologised on several occasions for providing delayed complaint responses and offered a total of £125 compensation for this. Additionally, it offered £25 compensation for its inconsistent use of complaint reference numbers. The Ombudsman would expect the landlord to consider wider redress such as additional compensation for the repeated delays, alongside opportunities to identify and implement learning or process changes, in cases with repeated and significant delays.
Given the length and repeated nature of the delays in issuing complaint responses, and the failure to demonstrate learning, there has been maladministration in the landlord’s complaint handling in this case. This is because the redress it offered was not proportionate to the failures found in this investigation. The landlord must recognise its failures and pay the resident £350 compensation. It must also undertake a case review to identify the causes of the delays and appropriate learning to prevent a reoccurrence.

Determination

As noted above, in accordance with paragraph 42(d) of the Scheme, the complaint about the level of the service charge is outside of the Ombudsman’s jurisdiction.
Also as noted above, in accordance with paragraph 42(f) of the Scheme, the complaint about the resident’s concerns about a breach of her tenancy agreement is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 53(b) of the Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the resident’s complaint regarding its management of her service charge account satisfactorily.
In accordance with paragraph 52 of the Scheme, there has been no maladministration in the landlord’s handling of communal door repairs.
In accordance with paragraph 52 of the Scheme, there has been maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

Within 28 days of the date of this report the landlord is ordered to:
1. Pay the resident £350 compensation for the complaint handling failures identified in this report. If the landlord has already paid the £150 compensation offered in its complaint responses, it is entitled to deduct this from the total amount ordered.
2. Conduct a complaint handling review which:
  1. Identifies the reasons for the delays in responding to the resident’s complaints.
  2. Comments on appropriate learning or process changes that the landlord could undertake to prevent a reoccurrence.
  3. Sets out a schedule showing how this learning can be implemented in a period not exceeding 6 weeks.
  4. Must be shared with the resident and this Service.
The landlord must provide evidence to the Ombudsman of compliance with the orders shown above, within the relevant timescales.

Recommendations

The landlord should consider:
1. Reviewing its processes and documentation used for communicating around consultations. This is to ensure that it can clearly differentiate between seeking initial views and undertaking a formal consultation. This will prevent confusion for residents about the landlord’s intentions.
2. Adding written responses to its feedback options within consultations to ensure it provides robust methods that are accessible to all residents. This will help it to obtain the widest possible views from its residents to help it make informed decisions.