Notting Hill Genesis (NHG) (202302662)

REPORT

COMPLAINT 202302662

Notting Hill Genesis (NHG)

11 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 is about the landlord’s handling of the resident’s reports of:
1. The contractor causing damage to the windows.
2. The contractor accessing the property without prior notice.
3. Damage to her belongings and garden.
4. Debris and rubbish being left in the garden by the contractor.
5. Concerns about the associated complaint.

Background

The resident holds an assured tenancy of the property, a 2 bedroom flat. The tenancy started in July 2019 and the resident lives at the property with her husband and young daughter. She also has a dog at the property.
The landlord commenced planned works at the property in September 2022. The work included redecorating the windows and external areas of the property and meant scaffolding was erected in the resident’s garden. The contractor used the resident’s garden for access to and from the scaffold at times without giving the resident prior notice. The resident reported damage to her garden, her belongings and the internal walls where the contractor had brought its ladder through the property.
The resident made a complaint to the contractor and the landlord on 12 September 2022 because she was unhappy with the contractor’s handling of the issues. On 1 January 2023 she asked the landlord to open a complaint as she was yet to receive a response from the contractor and there had been further issues with rubbish and debris being left in the garden when the scaffolding had been removed. On 12 January 2023 the contractor issued a stage 1 response saying that the operatives who had entered her garden without permission had been spoken to and that the site manager had visited to apologise. The contractor further said that the debris had since been cleared. It offered £50 as a goodwill gesture for any damage caused to her belongings and asked for her availability to make good the damage to the walls and windows. In the meantime, the landlord opened a stage 1 complaint on 11 January 2023.
The resident was unhappy with the contractor’s response and asked to escalate the matter to stage 2. She requested that the complaint be investigated by the landlord and not the contractor and said she felt the landlord was blocking her access to make a complaint. The landlord issued a stage 1 response on 27 January 2023. The landlord outlined that the damage to personal belongings and unauthorised access to her garden had been responded to by the contractor and any further issues she had on these points should be directed to the contractor. It explained that contractors manage their own complaints and confirmed it wasn’t trying to block her access to its internal complaints process. It said that it believed the work to make good the damage to her windows had been resolved.
The resident remained dissatisfied as she felt the response did not cover all the points raised in her complaint and escalated the complaint to stage 2 on 30 January 2023. The landlord responded at stage 2 on 23 March 2023 and reiterated the findings from stage 1 and included the additional points she had asked it to investigate. It agreed the complaints process had been confusing and offered £25 for the damaged belongings and £50 for the distress and inconvenience caused. This offer was in addition to the £50 already offered by the contractor.
The resident referred the matter to this Service on 21 April 2023 and said she wanted an apology from the landlord and for the repairs to the damaged windows to be fixed. She also wanted to be compensated for the damage to her belongings, walls and garden, as well as the distress and inconvenience caused. The resident has not received the payment of the £50 offered by the contractor, but has received payment of the £75 offered by the landlord.

Assessment and findings

The resident’s reports of the contractor causing damage to the windows.

On 17 November 2023 the resident informed the landlord and its contractor that she was unable to open the windows as they had been painted shut. It is not clear from the evidence when the windows were opened but the resident confirmed the contractor had opened them in an email dated 1 January 2023. She confirmed the contractor used a chisel and hammer to open the windows and that this had caused damage to the windows, specifically that the windows were chipped and the paint had been removed. She asked for this issue to be added to the complaint.
The landlord’s communal and external enveloping procedure notes that windows may be painted shut where access to properties cannot be obtained. It is not clear from the evidence whether access was sought for this appointment so a conclusion cannot be drawn on whether the landlord acted reasonably in doing so.
The contractor failed to acknowledge the issue in its complaint response of 12 January 2023 and the landlord’s stage 1 response of 27 January 2023 stated that it understood the issue was resolved. It asked the resident to confirm if this was the case. It is unclear from the evidence how the landlord concluded that the work had been completed as there is no evidence of it contacting the resident nor the contractor about this. It is unreasonable that the landlord failed to confirm this prior to issuing its stage 1 response.
In its stage 2 response of 23 March 2023 the landlord noted that an appointment to complete the repair had been booked for 9 March 2023 but that it had been cancelled due to adverse weather conditions. There is evidence of the landlord and contractor making attempts to organise a further appointment to resolve the issue.
In conclusion, the landlord explained to the resident in its stage 2 response that opening the windows with a chisel and hammer was the safest option and it is positive that the landlord acted promptly to open the windows after it was aware of the issue. However, it missed the opportunity to resolve the repairs to the damage caused through stage 1 of its complaints process by failing to confirm if the repair was outstanding. Had it done so, the issue could have been resolved more quickly for the resident. Although the damage to the windows has had a more minor adverse effect on the resident than the other elements of this complaint, the length of time it has taken to fully resolve the issue is unreasonable and therefore service failure has been found.
The resident has informed this Service that the damage to the windows remains outstanding, however the landlord confirmed this work was completed in May 2023. It is evident the resident remains dissatisfied with the state of repair of the windows and the landlord has not followed up to confirm the work has been completed to an acceptable standard. An order has been made below with regards to this.
The resident has also informed this Service that she has ongoing issues with a number of the windows not opening in her property however as this did not form part of her original complaint, this has not been further assessed as part of this investigation and a recommendation has been made about this.

The resident’s reports of the contractor accessing the property without prior notice.

In her initial complaint of 12 September 2022 the resident outlined 5 occasions on which the contractor had been in her garden without an arranged appointment. Despite the contractor’s reassurance that it wouldn’t happen again the resident reported that there had been at least 3 further instances of unauthorised access to her garden in an email to the contractor on 20 September 2022. The resident has informed this Service that there were several further occasions on which the same thing occurred. She detailed one instance where an operative was standing at her back door and she felt terrified and intimidated as she was not expecting any workers that day. She further reported that the operative was reluctant to leave and she had felt unsafe.
The landlord’s resident handbook notes that when carrying out planned works it will ensure the resident is notified and involved in the process from start to finish. The tenancy agreement outlines that residents must allow access for repairs to be carried out but that the landlord will provide 24 hours notice for any appointments. The landlord’s communal and external enveloping procedure notes that appointments for planned works will be made with at least 2 weeks notice or as per an agreement with the resident.
In the contractor’s stage 1 response of 12 January 2023 it confirmed the operatives in question had been “spoken to” and that the site manager had attended to apologise to the resident. It confirmed that it had arranged for different operatives to attend the property following these reports. The contractor then referred the resident back to a letter requesting that she remain at home on the day the scaffold was erected, suggesting the resident had been informed about the appointments. It was misleading for the contractor to have said this when the resident had not complained about the day the scaffold was erected, rather she was complaining about events after that.
The landlord is responsible for overseeing the actions of the contractor. Its Code of Conduct, which applies to all contractors, states that it expects staff to conduct themselves in a manner which promotes confidence and trust in the landlord, putting residents at the heart of everything. By accessing the property without the resident’s permission on several occasions, the contractor has failed to promote confidence and trust in itself and this is a failure in line with the Code of Conduct.
In its stage 1 response of 27 January 2023 the landlord stated this issue had been addressed by the contractor and it said the resident should refer any further issues directly to the contractor. In the stage 2 response it confirmed what the contractor had said in its initial response and did not offer any further investigation into the matter. There is no evidence of the landlord discussing the unauthorised access with the contractor at any stage of the complaint. It is unreasonable for the landlord to have supported the contractor’s response to this matter as the contractor did not adhere to its Code of Conduct or the policies under which it should be working. The landlord attempted to discharge its duty to investigate this part of the complaint onto its contractor and its approach to overall complaint handling has been assessed later in this report.
In conclusion, the landlord failed to operate in accordance with its policies and failed to ensure the contractor was operating in accordance with its policies. There is no evidence of it making attempts to confirm appointments with the resident in advance and no acknowledgement of this failure within any of the complaint responses. The landlord has also failed to acknowledge or apologise for the significant distress this caused the resident and therefore this investigation has found maladministration in this element of the complaint.

The resident’s reports of damage caused to her belongings and garden.

The landlord’s compensation policy states that it can make payments to residents for a direct loss where the landlord is at fault. An example it provides is to cover the cost of cleaning or replacing items damaged during cyclical works and states that the landlord would then seek to claim back the cost from the contractor. It details that a payment for direct loss can be made in addition to a payment for distress and inconvenience. The policy also notes that all residents are advised to take out an appropriate contents insurance policy to cover against accidental damage to their belongings.
The resident made the landlord aware of the following damage within the property caused by the contractors:
1. Damage to the walls caused by contractors bringing scaffold poles and ladders through her property when erecting the scaffold.
2. Damage to her plants and plant pots when accessing the scaffold through her garden.
3. Paint stains on the artificial grass and parasol umbrella base.
In its stage 1 response of 12 January 2023 the contractor said it would offer £20 as a goodwill gesture for the broken plants and pots. It later increased this offer to £50. It asked the resident for details of her availability to make good the damage to the walls and reminded her that it had been her responsibility to clear the area of personal belongings prior to work commencing. The landlord’s response offered £25 towards the damage to her personal items and did not acknowledge the damage caused internally. It reiterated that she was informed to clear the area of all personal belongings.
The resident rejected the responses on the basis that:
1. The amount of money offered would not cover the replacement of the damaged items.
2. The paint had stained her artificial grass which was not a belonging that could have been removed from the area. She said the contractor had made no attempts to protect the area, such as using protective sheeting.
3. She would have removed the belongings that she could from the area had she been informed of the appointments in advance.
The resident was clear in her request for reimbursement for the direct loss she had incurred. Although the resident did not make a request for a specific amount of money, she told the landlord that the amount offered was not enough to cover the costs she would incur replacing the damaged items. There is no evidence of the landlord requesting any evidence from the resident in terms of receipts, proof of purchase or costs to replace the damaged items like-for-like as outlined in its compensation policy. The landlord also failed to suggest the resident could make a claim on her insurance policy or explore any alternative options. It is unreasonable that the landlord did not appropriately consider her request for reimbursement and if it decided it was not going to reimburse her, it failed to formally outline its decision to her.
The landlord also failed to offer any compensation with regard to the distress and inconvenience of this matter. The resident told the landlord on numerous occasions that she felt the landlord and its contractor had not treated her with respect by causing damage to her personal belongings.
In conclusion, the landlord failed to appropriately investigate the resident’s claim for reimbursement of the cost of the damaged items. It was unreasonable of the landlord to apportion blame on the resident for not moving her items when it had not followed its own procedure for arranging appointments in advance. The landlord also failed to acknowledge or offer redress for the distress and inconvenience caused by this situation and therefore this investigation has found maladministration in this regard. An order has been made below in regard to this.

The resident’s reports of debris and rubbish being left in the garden by the contractor.

In an email dated 17 November 2022 the resident informed the landlord and the contractor that when the scaffolding had been taken down 2 days prior, rubbish and debris had been left in the garden. She said her dog had brought some of the debris inside the property and the items included large blades and nails. The resident was understandably concerned for the safety of her young child and her dog.
The contractor’s stage 1 response of 12 January 2023 noted that the debris had been cleared. The contractor apologised for the mess that was left and explained that it can take a few days to clear up after the scaffolding comes down. The landlord’s stage 1 response did not mention this part of the complaint and the stage 2 response simply stated that the debris had since been cleared.
As with the previous complaint elements, the failure to acknowledge the distress this may have caused the resident further demonstrates a pattern of unsympathetic behaviour towards the resident. There is no evidence of the contractor discussing the potential timescales for clearing up prior to taking the scaffold down and no evidence of it advising the resident to take caution after it had been completed. It is unclear from the evidence when the debris was cleared. However, even had it been done in a timely manner, it remains a service failure that the resident was put in that position in the first place and the landlord has failed to offer redress to put things right.
It is a further failure that the landlord has not demonstrated any learning from this issue. Its residents handbook states that the landlord expects contractors to pay particular attention to keeping resident’s homes clean and safe and the contractor failed to adhere to this on this occasion. There is no evidence of the landlord discussing the issue with the contractor and there is no evidence of the landlord considering if the reported issue was a potential health and safety incident or recording it as a near miss.
Ultimately, the landlord is responsible for ensuring its contractors work in a way that manages health and safety risks to residents and it missed the opportunity to demonstrate this. This investigation has found service failure in this regard.

Complaint handling.

It may be helpful to first set out a timeline of the resident’s complaint for ease:
1. On 12 September 2022 the resident complained to the landlord about the contractor’s unauthorised entry to her property.
2. On 13 September 2022 the contractor sent the resident an apology letter in response to her complaint. A copy of this letter has not been provided to this Service.
3. On 20 September 2022 the resident requested the complaint was escalated as she was not happy with the contractor’s response. She made this request to both the contractor and the landlord.
4. The resident continued to chase the contractor and the landlord for a response in October 2022 and November 2022.
5. On 1 January 2023 the resident formally requested that the landlord open a complaint as she was yet to receive a response from the contractor.
6. On 11 January 2023 the landlord confirmed a complaint was opened and provided a case reference number.
7. On 12 January 2023 the contractor issued a stage 1 complaint response.
8. On 24 January 2023 the resident told the contractor and landlord she was unhappy with the response. She wanted the landlord to escalate the complaint and asked for the response to come from the landlord, not the contractor.
9. On 27 January 2023 the landlord issued its stage 1 response.
10. On 30 January 2023 the resident escalated the complaint to stage 2.
11. On 23 March 2023 the landlord issued its stage 2 response.
The landlord’s complaints procedure says that the landlord will log a complaint when a resident provides feedback about the conduct of a contractor working on the landlord’s behalf. Once a complaint is raised, the procedure states that the landlord will contact the resident to discuss the complaint within 2 working days and the stage 1 response will be issued within 10 working days.
The landlord’s communal and external enveloping procedure says there are a number of routes for residents to complain about planned works including to the contractor or to the landlord. It notes that wherever possible the teams will work together to achieve a quick fix but where a formal complaint is made, the landlord is expected to respond within the timescales set out in its complaints policy. The procedure outlines that the contractor should provide information to assist in responding to the complaint but that the landlord should not simply copy and paste the information and must consider the context in respect of the specific complaint.
The evidence suggests that the landlord sought to resolve the resident’s concerns outside of its formal process by placing the onus on the contractor to respond. While this Service’s Complaint Handling Code (the Code) encourages early resolution of issues, this is not to be at the expense of enabling easy access to the formal complaints process or the progression of a complaint.
The resident clearly expressed her dissatisfaction and requested a complaint be raised on both 12 September 2022 and 20 September 2022. However the landlord did not log a complaint until 11 January 2023. The landlord can use discretion to decide if it is appropriate for the contractor to deal with the complaint at stage 1. Paragraph 5.4 of the Code states that where a complaint is handled by a contractor, it must form part of the 2 stage complaints process and residents must not be expected to go through 2 separate complaints processes. It was inappropriate for the landlord to have investigated the complaint at stage 1 after the contractor had issued its stage 1 response. This is a clear failure against the Code and a significant service failure for the resident.
The resident had to ask the landlord to open a complaint multiple times, including in emails on 12 September 2022, 17 November 2022 and 1 January 2023. On 3 January 2023 the landlord explicitly told the resident that it would not be able to raise it as a complaint internally because it related to the contractor. It then opened a complaint on 11 January 2023 after the resident pointed out that its complaints procedure does not prevent it from investigating complaints about contractors. The landlord’s apparent reluctance to investigate the resident’s concerns within its internal complaints procedure placed an unnecessary burden on the resident to re-assert her wishes to gain access to the formal procedure.
Even upon logging the complaint, the landlord’s stage 1 and 2 responses redirect the resident back to the contractor for all matters in relation to the operative’s unauthorised access to the property and damage caused by the contractors. The landlord has not conducted an investigation of its own and has failed to abide by its own policies.
Paragraph 5.8 of the Code sets out that landlords must:
1. Deal with complaints on their merits, act independently, and have an open mind.
2. Give the resident a fair chance to set out their position.
3. Consider all relevant information and evidence carefully.
Through both stages of the landlord’s complaint process the landlord failed to contact the resident to discuss her complaint. In both its responses the landlord solely refers to the contractor’s account of the issues, including where it reports one of the issues as resolved when the resident confirmed it was not resolved. One of the resident’s reasons for escalating the matter to stage 2 was because the landlord had not fully addressed her complaint. Had the landlord confirmed its understanding of the complaint with the resident, as set out in paragraph 5.6 of the Code, this could have been avoided.
Regardless of whether the landlord or the contractor were responding at stage 1, it was the landlord’s responsibility to ensure the response was sent within 10 working days in accordance with its policy. The resident made her complaint in September 2022 and it is unreasonable that she did not receive a stage 1 response until 12 January 2023. Neither the landlord nor the contractor acknowledged or apologised for this delay in any of the complaint responses and this is a failing.
The landlord’s complaint investigation did not identify many of the failures outlined in this report. It also failed to offer a proportionate remedy for its failures. The Ombudsman’s approach to remedies is based on our dispute resolution principles which are:
1. Be fair.
2. Put things right.
3. Learn from outcomes.
The landlord’s failure to deal with the resident’s complaint in an appropriate manner delayed a resolution being found and ultimately hindered her access to this Service. It is unreasonable that the landlord failed to identify this within its complaints process. Its stage 2 offer of £50 for was not proportionate to the distress and inconvenience incurred by the resident as a result of its complaint handling failings. An increased offer would be deemed more appropriate given the number of failings and the length of time the issue went on for and an order has been made below with regards to this.
In conclusion, the landlord’s complaint handling was inconsistent with the Code and its own policy, placing an unnecessary burden on the resident to repeatedly raise her dissatisfaction. There were unreasonable delays in responding to the complaint and resolving the issues and the landlord failed to conduct a full and thorough investigation. This investigation has found maladministration in the landlord’s handling of the complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of the contractor causing damage to the windows.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of the contractor accessing the property without prior notice.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of damage caused to her belongings and garden.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of debris and rubbish being left in the garden by the contractor.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Orders

Within 4 weeks the landlord must:
1. Review the case with relevant staff members to identify areas for improvement and provide a summary of the review to the resident. A copy of this review should be provided to this Service.
2. Issue a written apology to the resident addressing the failings identified in this report.
3. Arrange an appointment to complete any outstanding repairs in relation to the damaged windows referenced in this complaint.
4. Contact the resident in relation to her claim for reimbursement of costs associated with replacing the damaged items. Upon receipt of any relevant evidence or documentation it requests from the resident, the landlord must provide a written response to the resident confirming whether or not it is willing to cover all or part of what the resident is claiming for.
5. In addition to the £75 compensation already paid, pay the resident £475, comprising:
  1. £50 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling the damage to the windows.
  2. £150 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling the contractor’s access to the property without prior notice.
  3. £75 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling her report of damage to her belongings and garden.
  4. £75 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in handling the debris and rubbish left in the garden.
  5. £75 for the distress and inconvenience incurred by the resident as a result of the landlord’s failures in complaint handling.
  6. £50 previously offered by the contractor.
The landlord is to pay the additional compensation ordered by this Service directly to the resident and not use it to offset any monies that she may owe the landlord. If the landlord or contractor has already made partial payment, it must provide evidence of this.
If the landlord seeks to recover any costs from the contractor, as outlined in its policy, this must be dealt with between the landlord and the contractor and must not delay payment to the resident.

Recommendations

The landlord should contact the resident regarding the other windows in the property which the resident reports are painted shut.