Notting Hill Genesis (NHG) (202302462)

REPORT

COMPLAINT 202302462

Notting Hill Genesis (NHG)

28 June 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

The complaint concerns the landlord’s handling of the resident’s reports of sewage discharge into her property.

Background

The resident is a secure tenant of the landlord, a housing association. She moved into the three-bedroom ground floor flat in July 2014. The resident lives in the property with her partner and three children.

Landlord’s obligations, policies and procedures.

The landlord’s responsive repairs policy sets out the landlord is responsible for amongst other things:
1. Gutters, down pipes and drains.
2. Showers (where provided by us), sinks, toilets and baths.
3. Persistent issues with drainage/removal of waste water.
In terms of responsive repairs these are categorised by the landlord as either an emergency repair or as routine repairs. An emergency repair is one “where there is an immediate danger to a persons safety, major damage to the property, flooding, major electrical fault, heating (during October to March only) or hot water failure, or the property is not secure”. The landlord’s repairs policy included as an example of an emergency repair “serious sewage and drainage problems”.
Under the Housing Act 2004, the Housing Health and Safety Rating System (HHSRS) is the main system used by local authority environmental health officers for assessing and enforcing housing standards in residential housing. The HHSRS is used to assess hazards to the health and safety of occupants or visitors. Hazards fall into two categories: category 1 hazards are the most serious and require the local authority to take enforcement action, such as serving an Improvement Notice. All other hazards are category 2 hazards, which may also be subject to enforcement action by a local authority, but each case is individually assessed. Failure by a landlord to carry out the required works in an Improvement Notice is a criminal offence.
The Regulator of Social Housing requires social housing providers to ensure their homes meet Decent Homes Standard and in order to meet the standard, dwellings must be free of category 1 hazards (as assessed through the HHSRS).
Section 11 of the Landlord and Tenant Act 1985 states the landlord is responsible to keep in repair the structure and exterior of the property including drains, gutters and external pipes.

Summary of Events

The resident contacted the landlord on 29 September 2022 to explain that there was dirty water coming through into her kitchen sink. The landlord arranged for an emergency job to be raised. The resident sent a further message later on the same day to explain that the situation had got worse and that faeces was now coming through into the sink. The landlord reassured the resident that someone would attend within 4 hours.
The landlord attended on 29 September and again on 30 September 2022. Despite the two visits the resident phoned the landlord on 3 October 2022 to explain that the issue had not been resolved and that the landlord’s contractor had explained that further work was needed. The landlord’s notes of the two visits indicated it was having trouble in identifying where the soil stack was in the property. In addition the landlord had also not found the manhole in the property as it had wanted to insert a camera into it to undertake a survey to try to identify where the blockage was occurring.
The resident emailed the landlord on 4 October 2022. A copy of the email was also sent to the landlord’s chief executive officer (CEO). The resident explained:
1. That since 29 September 2022 faeces from other properties had been coming through her sink. Whilst she had reported the matter, some 6 days later the issue was still occurring and she had been having to empty the sink every hour as it was overflowing.
2. The service received from the landlord had been ‘appalling’. She stated she had called the landlord the previous day and had been informed that a contractor would be attending the property. As no one had attended the resident had called the landlord again and been informed that she needed to raise a new job as the previous call that day had not been listed as an emergency but rather as ongoing works. The resident had been unsuccessful in speaking to a manager.
3. Overnight on 3 October 2022 the toilet upstairs had overflowed and leaked through her ceiling. In addition there was faeces from other properties which had been flowing up into her toilet. The resident explained that her partner had an underlying health condition and the well being of the whole family including her children had been affected. The resident had called the out of hours service as there was water in the lighting. The plumber who had attended did not have the right equipment.
The resident received an acknowledgment from the CEO’s office on 4 October 2022. This explained that the email had been forwarded to the resident’s housing officer to be dealt with as a matter of urgency. The resident replied on the same day to the CEO to explain that the housing officer had been in touch. She added that the waste was still coming up into the property and she wanted the issue dealt with as soon as possible.
The resident was decanted on 4 October 2022 into hotel accommodation. The resident had agreed with the landlord that she would be provided with a payment of £20 per person per day for food costs and a total weekly payment of £20 in respect of laundry costs. This made a total weekly decant payment of £720.
The landlord’s contractor attended the property on 5 October 2022. It managed to locate the manhole cover in the kitchen of the property beneath the vinyl flooring and “identified the faulty lateral connection exhibiting the blockage”. It cleared the blockage with jetting hoses and noted that urgent follow up work was required.
The resident moved out of the hotel accommodation on 18 October 2022 as she explained the landlord had not continued the hotel booking going forwards. As a result the resident opted to move back to the property. This was despite the cooker and the washing machine at the property having been disconnected pending the repairs following on from the sewage issue. The landlord had agreed with the resident that despite the resident moving back to the property at that time that it would continue to pay the decant payments on the same basis as it had done previously.
After an environmental clean of the property, follow on works were identified by the landlord included replacing the laminate flooring and changing the worktops and sink in the kitchen. The landlord’s internal correspondence on 28 October 2022 noted that it requested someone to check the work which had been completed at that point.
The landlord’s internal correspondence on 3 November 2022 noted following a check on the work carried out that there were some outstanding issues including the light fitting in the living room. It also noted that the resident had requested the return of their items, which had been placed in storage whilst the works to the property were carried out.
The resident emailed the landlord on 8 November 2022 to chase it for the weekly decant payment, which was payable in arrears that had not been received. The resident explained there had been previous issues with receiving the payment and she had found the manager dealing with this unsupportive.
The landlord’s internal correspondence on 8 November 2022 confirmed that a £30 supermarket gift voucher had been issued to the resident as a gesture of goodwill for compensation. The landlord emailed the resident on 11 November 2022 to explain that it understood that the housing officer had been in touch with the resident since her last contact and that a payment had been “expedited” by the finance team. The email accepted that “we have not always got things right and we need to learn from this moving forward”.
The resident emailed the landlord on 14 November 2022. She explained that the payments from the landlord were being made from the landlord to support them for the lack of cooking and laundry facilities. Despite items being returned to them on 11 November 2022 they were still unable to use the cooker or the washing machine. The worktop for the cooker had been cut incorrectly meaning the cooker could not be fitted correctly into the space. In terms of the washing machine, this had not been reconnected as the contractor was unavailable and it had been rescheduled to 14 November 2022. The resident wanted confirmation that the weekly payment from the landlord which had previously been paid up to 7 November 2022 would be extended to 14 November 2022.
The resident sent the landlord a further email on 16 November 2022. She explained that she was still without a cooker at that time and she had still not received any payment from the landlord.
The landlord spoke to and emailed the resident on 24 November 2022 with the stage 1 response. It explained:
1. It had checked with the finance team and confirmed that the resident would be receiving a payment of £720 on that day. The landlord has informed this Service this was a payment for the period 15 to 21 November 2022. It accepted that the resident should not have needed to have chased this several times.
2. A further £300 was also due (in relation to the period 22 to 24 November 2022). This payment had been processed by the finance team and it asked the resident to check if she had received this payment.
3. In terms of the service failures it had made, it proposed a compensation figure of £700. This was made up as follows:
  1. £350 for the initial call and response from the landlord
  2. £50 for the stopping of the decant payments
  3. £100 to represent one week of delay in misdiagnosing the manhole cover location
  4. £50 for the cooker not fitting back to the worktop
  5. £50 for the washing machine not being connected
  6. £100 for the hotel not being extended by it
The resident emailed the landlord on 25 November 2022 to explain that she would consider the landlord’s offer. She added that the payment of £720 had been received on that day but not the further £300.
The resident emailed the landlord on 8 January 2023. She apologised for the delay in replying to the landlord, and wanted to check if the landlord’s offer was per person or a total offer of compensation. The landlord responded on 16 January 2023 confirming that the offer was a total payment. It explained that it could speak to the resident and proposed a date of 18 January 2023.
Following a telephone conversation with the resident on 18 January 2023 in which the resident set out that the compensation offered had not reflected the disruption to her family the landlord escalated the complaint to stage 2. The landlord sent the resident an email on 19 January 2023 confirming this escalation. The landlord noted the resident had reported repairs for her window and the stairs outside which it confirmed it would escalate internally.
The landlord emailed the resident on 7 February 2023. This had followed on from a call with the resident the previous week. The landlord confirmed:
1. That having reviewed the matter, it proposed increasing the award of compensation offered from £700 to £1,150. This amount was made up as follows:
  1. £350 for the initial call and response from the landlord
  2. £150 for the decant payments having stopped
  3. £200 to represent 1 weeks delay in misdiagnosing the manhole location
  4. £50 for the cooker not fitting correctly
  5. £50 for the washing machine not being connected
  6. £150 for the hotel not being extended
  7. £150 for having to chase up the manager, dealing with the issue on behalf of the landlord
2. Whilst it noted the resident’s concerns with the manager and having to chase him up on several occasions for a response, it added he had used his discretion as well. It explained this had been following the resident moving back to the property when the manager had continued to make the decant payments of £720 per week. This was instead of the loss of facility payments of £52.19 per week for having no kitchen and £34.79 per week for having no living room. It added the difference received between 18 October 2022 to 11 November 2022 amounted to £2,532 more as a result of the decant payment.
The landlord sent the resident a formal stage 2 response on 15 February 2023. Its correspondence contained the same offer as it had made the previous week to the resident. It had however added a little more detail to the circumstances than its previous email. The resident emailed the landlord on 15 February 2023 asking it what her options were if she did not agree to the increased offer. The landlord confirmed that as the response was the landlord’s stage 2 offer, she could refer the matter to the Housing Ombudsman.

Events since the end of the landlord’s internal complaints process.

The resident contacted the landlord on 16 July 2023 in relation to the drainage. The landlord’s repair logs noted that waste was surging through the drain in the garden. The landlord attended the next day and removed the blockage in the drain. The repair logs show the landlord had to re-attend the property on 19 July 2023 following the drain becoming blocked again.
The resident contacted the landlord on 30 January 2024 in relation to a blocked toilet. The landlord’s operative attended on the same day and cleared the blockage.

Assessment and findings

Scope of Investigation.

The resident has informed this service that due to the on-going drainage issues at the property she no longer wants to stay at the property and wants the landlord to re–house her. In terms of the 3 instances reported by the resident of issues with the drainage from September 2022 onwards, 2 of them occurred after the end of the landlord’s internal complaints process was completed in February 2023.
The Ombudsman is unable to investigate matters for which the resident has not yet raised with the landlord or if they have yet to complete the landlord’s internal complaints process. Whilst the resident has informed this Service that she no longer wants to stay at the property due to the issues of the drainage there is no evidence that she has raised this directly with the landlord to date. As a result the issue of the resident’s request to be re-housed is outside the scope of this investigation. However the Ombudsman has made a recommendation in respect of this issue which is at the end of this report.

The landlord’s handling of the resident’s reports of sewage discharge into her property.

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. be fair- treat people fairly and follow fair processes
2. put things right, and
3. learn from outcomes
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident.
If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to put things right and learn from outcomes.
The resident had reported the issue of the foul water coming into her kitchen sink on 29 September 2022 to the landlord. The landlord had made arrangements for an operative to attend on the same day. This was an appropriate step for the landlord to take, in keeping with an emergency repair under its responsive repairs policy.
Whilst the landlord had attended the property on 29 September 2022, the operative’s notes set out that it had been unable to resolve the issue of the drainage during that visit. This was as it had been unable to identify where the soil stack was in the property. It thought the only place it could be was in the corner of the kitchen where there was boxing. However the operative had noted the resident did not want the boxing or sections of her wall cut to determine where the stack was. As there was no guarantee that this was where the stack was in the property, the resident was entitled to not allow the landlord’s operative to cut into that area.
As the landlord’s operative had noted that the flushing of other toilet’s in other flats were causing the resident’s sink to upsurge foul waste, it should have considered whether it was appropriate to temporary decant the resident at this time. This was as the resident and her family, which comprised five members only had one toilet which was not working. From a health and safety view the sewage was not flushing and would also return to the resident’s toilet and sink if other flats had flushed their toilets. This may have been assessed as a potential category one hazard under HHSRS. The landlord has a duty under the HHSRS to monitor and act reasonably to avoid potential hazards, and the above events represented a failure to comply with that duty.
The resident explained that she was left having to manually dispose of the sewage and foul water from the sink on a regular basis. It was unreasonable for the landlord to not consider what alternative arrangements it could offer once it had established that the works would not be resolved during that initial visit. This was a missed opportunity by it and it failed to comply with its obligations.
The landlord’s operative undertook a second visit on 30 September 2022. Its notes show that it was trying to locate the manhole in the property as it wanted to insert a camera with the aim to determine where exactly the blockage was occurring. The operative’s notes show that it considered that the manhole cover was located in the resident’s living room. As it did not have the right equipment it would need to arrange a further visit with the aim of removing the resident’s flooring to access the manhole. Again there was no indication in the operative’s notes that that it had considered decanting the resident since it had been unable to find the manhole cover and there was no evidence to suggest the upsurge in the sink and toilet had ceased or reduced at that time. Whilst the attending operative may have felt unable to make that decision, the Ombudsman would expect to see effective communication between the repairs team and the housing management team to assess the risk and consider alternative options. There was no evidence of this being provided. This would have been a distressing time for the resident who would not have been reassured by the landlord or the operative as it had been unable after 2 visits to determine where the manhole was in the property which it needed to access to resolve the draining issue.
The landlord has offered compensation of £200 for the misdiagnosis in determining the location of the manhole as well as £350 in its stage 2 response for the initial response to the resident. The Ombudsman remedies guidance suggests payments between £100 and £600 for each finding where there has been no permanent impact on the resident. Whilst the compensation offered by the landlord does go some way towards addressing the issues that occurred, the landlord has not apologised for the issues nor demonstrated that it had learnt from its failures. Therefore, whilst the amounts were in keeping with a high impact under its compensation policy, in the Ombudsman’s opinion the compensation offered by the landlord was not reasonable redress given the circumstances. The Ombudsman considers in addition to the amount of compensation offered of £200 and £350 respectively the landlord needs to in addition offer an apology to the resident as well as providing an explanation that in the event of similar circumstances, that it has a clear understanding of where the soil stack and manhole were in the properties for which it was the landlord.
The resident contacted the landlord on 3 October 2022 to explain that the issue with the drainage had still not been resolved and she understood from the contractor that it had requested further work be approved. The landlord stated that the resident had not allowed the operative to cut through the floor. This allegation was denied by the resident. Whilst the landlord has referred to this issue, the contemporaneous notes only showed the resident had refused the cutting into the boxing or into the walls on the first visit and not from the second visit. The resident has stated that it appeared that the landlord was only reacting each time that she had got into contact with it and that it was not acting on its own accord to resolve the matter. This is supported by the landlord’s notes which do not show any action following the visit on 30 September 2022 and over the weekend. Instead the next progress was only after the resident contacted it and there was no evidence that it had provided any updates to the resident. This was not appropriate as the landlord failed to communicate effectively with the resident, providing her with an idea of timescales in terms of what the next steps would be given the situation. There is no indication that the landlord considered the impact of the ongoing situation on the resident.
Positively the landlord agreed to decant the resident on 4 October 2022. However, there is no indication why it had waited until this time to do so and not acted sooner. By the time that it had assessed the risk and agreed to the decant the resident had been dealing with the sewage discharging into her sink and having to clear it on a regular basis many times a day. In addition by this time she also had a leak from her ceiling which was affecting the electrics due to an overflowing toilet. The landlord agreed to cover reasonable expenses which it based as £20 per person per day. This was reasonable and appropriate by the landlord and in keeping with the emergency decant procedure. In addition the landlord agreed to cover a laundry expense of £20 per week which was also reasonable as the resident and her family had no laundry facilities at the time.
The landlord’s emergency decant procedure set out that a named point of contact for the resident was “responsible for extending the hotel stay if required”. The resident explained that the landlord had failed to do this past 18 October 2022 and as a result she had returned to the property. The drains had been cleared by this time and the environmental clean had also been completed. Remedial work was still required which meant that whilst they had the use of most of the property the kitchen and the living room were out of commission. Whilst returning to the property was an option for the resident there is no indication that she had been happy to return to the property at that time, before all the works had been completed. Instead the resident’s return was the result of the hotel having not been extended by the landlord. Although the landlord offered £150 compensation at stage 2 there is no indication that it had apologised for the failure for it to extend the hotel or took ownership of the failing which meant the resident had to return home prematurely. This was a failing by it. However the landlord did inform the resident that despite moving back to the property that it would continue to make decant payments at the same rate as had been previously paid to her when she was in the hotel. Given this in the Ombudsman’s opinion the landlord has offered reasonable redress for this issue.
The landlord has explained in its stage 2 response that when the resident had returned to the property on 18 October 2022 it could have in accordance with its compensation policy paid her an amount in keeping with the loss of amenities instead of the decant payment. The policy sets out that for the loss of use of a living room the compensation amounted to 20% of the rent and for the loss of kitchen the compensation amounted to 30% of the rent.
Whilst the landlord’s compensation policy did allow for a payment for the loss of rooms and facilities the policy stated, “we will not pay compensation for loss of a room where the resident has been temporarily decanted by us”. As this what had happened in the resident’s case, the landlord acted appropriately by continuing to make the decant payments to the resident until the remedial works had been completed and the cooker and washing machine had been reconnected for the resident instead of payments for the loss of rooms and facilities. In addition to continuing with the decant payments the landlord also offered £50 for the issue of the cooker not fitting and £50 for the failure to reconnect the washing machine on 11 November 2022. The resident confirmed that the washing machine connection had been rescheduled for 3 days later. Given this, the amount of compensation offered by the landlord was appropriate in the circumstances for the impact the lack of a cooker and washing machine had on the resident.
The resident contacted the landlord on several occasions concerning delays in making the decant payments to her. The landlord’s compensation policy did not set out when the payments would be made. The resident explained that whilst she had received the initial payment on 7 October 2022 she had to wait a further 12 days for the second weekly payment. In terms of the decant payments the landlord has accepted that on occasions the resident did have to chase for the payments and it stated 2 of the payments were made one of 2 working days outside of the 5 working days that the resident could expect. In addition to releasing a supermarket voucher to help the resident in the short term, the landlord did offer compensation at stage 2 of £150 in relation to this aspect. This was appropriate in the circumstances and the Ombudsman does not intend to make a further award for this.
The resident also raised a complaint about the landlord in terms of the support she had received from one of the managers. She explained he delayed authorising the decant payments to her and she had to chase him for a response on several occasions. In terms of the matter the landlord has accepted that the resident having to chase up at what would have been a stressful time would have caused her a degree of distress. It has offered an amount of compensation of £150 for this, which the Ombudsman considers appropriate.
The resident has set out that in terms of the compensation the landlord has offered her at stage 1 and stage 2 she considers these to be inappropriate and that she would be prepared to accept the offer if it was per person and not as a total amount. Whilst the Ombudsman has noted the resident’s comments, the overall amount offered by the landlord at stage 2 was in keeping with its compensation policy, even being more than the maximum amount offered under it for some of the landlord’s service failures. The amount of compensation offered for each failing apart from the £50 offered for the cooker and washing machine not being available on 11 November 2022, was in accordance with the Ombudsman’s remedies guidance where there was no permanent impact on the resident. In terms of the amounts offered for the cooker and washing machine these were in keeping with a service failure where the impact was minimal and for a short duration.
The landlord has confirmed to this Service that its calculation of compensation at stage 2 was incorrect due to an error by it. The total amount by its failures was for £1,100. It has however confirmed that it is prepared to honour the £1,150 which it had offered in its communication to the resident.
In conclusion, the landlord acknowledged failings and made some attempt to put things right by offering the resident total compensation of £1,150.
Although the level of financial redress is in line with the Ombudsman’s remedies guidance, and it is clear that the landlord took some steps to attempt to put things right, it has failed to recognise the detriment caused to the resident, the distress and inconvenience caused by the delay to find a successful remedy to the sewage, the delay to its consideration of a decant and the failure by it to rebook the hotel accommodation in a timely manner. As a result, a finding of maladministration has been made for the landlord’s handling of the resident’s reports of sewage discharge into her property for the following reasons:
1. It failed to apologise for its failures including but not limited to it not responding promptly to the resident or failing to extend the hotel past 18 October 2022.
2. It has provided no evidence that it has learnt from this incident to ensure that it will know without an extended delay the location of the soil stack and manhole in any property for which it is the landlord.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of sewage discharge into her property.

Orders

Within the next four weeks the Ombudsman orders the landlord to:
1. Arrange for a senior member of the landlord’s staff to apologise for the failings identified in this report.
2. Pay the resident an amount of compensation of £1,150. This is made up of:
  1. £350 in terms of the initial call and response from the landlord.
  2. £200 for the delay taken in locating the manhole in the property.
  3. £150 for the hotel not being extended past 18 October 2022 by the landlord.
  4. £150 for the decant payments having been delayed.
  5. £150 for the resident having to chase up the manager who had been dealing with the matter on behalf of the landlord.
  6. £50 for the cooker not fitting correctly.
  7. £50 for the washing machine not being connected.
  8. £50 due to the error in it stage 2 compensation calculation.
The landlord is ordered to within 8 weeks of receiving this report to review the learning on this case in response of its management of knowledge and information. The landlord should review and incorporate best practise highlighted in the Housing Ombudsman’s Spotlight report on Knowledge and Information Management (KIM) into the provision of housing services. In particular related to ensuring that it is aware of where the soil stack and manhole is located within each of the properties within its stock.

Recommendations

The landlord should contact the resident to obtain details of any further concerns following further drainage issues in 2023 and 2024, which it has not previously considered as part of its internal complaints process. It should then review the concerns and consider whether any further work is undertaken in respect of these issues.