Notting Hill Genesis (NHG) (202321271)

REPORT

COMPLAINT 202321271

Notting Hill Genesis (NHG)

14 February 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 the resident’s concerns about:
1. the time it was taking to complete remedial works to the external walls of her building.
2. the protection of the external walls of the building.
3. its schedule of remedial works.
4. its compensation agreement in relation to the remedial works.
The Ombudsman has also assessed the landlord’s complaint handling.

Background

The resident is a leaseholder of the landlord. She lives in a second floor, 1 bedroom flat.
Following the Grenfell tragedy the government advised owners of high-rise buildings to remove any Aluminium Composite Material (ACM) from the external walls of their buildings. This was to ensure that their buildings were firesafe.
Following that advice, the landlord removed the cladding from the resident’s external walls in early 2019. The evidence suggests that it installed protective boards to the building’s exterior in 2020 and the remedial works started in 2021.
On 21 March 2023 the landlord shared a compensation agreement with the resident. This included compensation for the impact to the “thermal efficiency” of her property while the remedial works were ongoing.
On 23 May 2023 the resident made a formal complaint to the landlord. She said:
1. The landlord’s delay installing, inspecting and repairing the building’s protective boards in a timely manner meant there was a delay in starting the remedial works. It also meant that there may have been damage to the external walls.
2. The landlord had still not completed the remedial works. Therefore, it had failed to maintain and repair the external walls of the building within a reasonable period of time. This was a breach of its duties as per the leasehold agreement.
3. The building protective boards had been ripped in places and the landlord had failed to repair them.
4. It had not adhered to its published schedule of works between October 2021 and February 2023.
On 26 June 2023 the landlord issued its stage 1 complaint response. It said:
1. it continually evaluated the building protection, and it was inspected by its manufacturer.
2. the previous method of communication through its ‘4-week look ahead’ was insufficient. It had created a microsite which would provide residents with timely weekly updates.
On 17 July 2023 the resident escalated her complaint. She said:
1. the landlord did not address her concerns that it had breached the lease agreement because it had not maintained and repaired the external walls within a reasonable time period.
2. the landlord’s compensation agreement was not fair or reasonable.
3. she was not confident that the landlord would adhere to any future schedules as published on its microsite as it had not kept to the recent ones.
4. she did not agree that the building protection had undergone continuous evaluation. She reiterated that some of the boarding had ripped.
On 8 September 2023 the landlord issued its stage 2 complaint response. It said:
1. there had been various “iterations” of industry and government advice that governed the fire safety works since the initial removal of the cladding. This had affected the progression of works. It had worked within the constraints of the industry’s position. It said that therefore it had not breached its duties.
2. the progression of works was further impacted by “protracted developer negotiations”.
3. it considered its compensation offer was fair and reasonable.
4. if the works completion date extended passed the agreement deadline, it would amend the offer of acceptance to reflect the change in programme.
5. the compensation agreement did not pass on to the resident’s successor as it was “designed to recognise the impact on [the resident] as the legal owner in this time period.
6. the agreement did not restrict the resident from making a claim relating to other housing related matters.
7. it apologised that works “continued to deviate” from the communicated schedule of works. It said the deviations would have caused frustration and impacted on the resident’s arrangements to avoid being at home during noisy hours. It said this was a service failure and was committed to minimising the changes.
8. the rip in the protective board had been repaired in June 2023. It carried out regular visual inspections of the site and if the building protection was compromised it would replace it as soon as possible.
The resident told this Service that she was dissatisfied with the landlord’s response because:
1. the remediation works had not been completed.
2. she considers the landlord’s compensation agreement terms were unfair.
3. her mental health had declined due to the noise on the site and the “constant” change to the landlord’s deadlines meant that it had been “impossible” to plan her life.

Assessment and findings

Scope of the investigation

The resident told us that the “constant noise” and changes in the landlord’s deadlines affected her health. While the resident’s concerns are noted, we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer as a personal injury claim. Where the Ombudsman identifies failure on a landlord’s part, we will however consider the resulting distress and inconvenience on the resident.
It is noted that one of the outcomes the resident seeks is for the landlord to amend its compensation agreement to account for any changes to the works completion date. Our role is to assess whether a landlord has complied with it duties and obligations under an occupancy agreement, statute or relevant guidance. We can also consider whether the landlord has acted in a manner that is fair and reasonable in all of the circumstances. However, we cannot assess or comment on any agreement – legally binding or not – between a landlord and resident. If the resident is unhappy with the terms of the agreement or wishes to vary the terms, she should seek independent legal advice.

The time it was taking to complete the remedial works to the external walls

The landlord has a legal obligation to complete repairs it is responsible for within a ‘reasonable’ timescale. Various factors can affect this, such as volume and complexity of required work, or the need for additional materials to be ordered and delivered. The landlord should be able to demonstrate that any delays were unavoidable, and that it did everything it reasonably could to resolve issues appropriately.
In her formal complaint, the resident said the landlord failed to inspect and repair the building’s protective boards in a timely manner at the early stages of the works. She said this had caused a delay in starting the remedial works.
From the evidence that is available, it has not been possible for us to establish whether the inspection was delayed. We have therefore ordered the landlord to investigate this now and provided the resident with a response.
It would have been reasonable for the landlord to have investigated the resident’s concerns and advised whether there were any delays – and if so, whether these were avoidable or not. That the landlord did not undertake such an assessment was a failure to engage with the complaint in a meaningful way
The resident also said that the landlord had not completed the remedial works within a reasonable time and they remained outstanding. In response, the landlord said the various changes to the industry and government advice had delayed the works and it had worked within those constraints.
While this is not disputed, the landlord’s response was vague. It is understood that it may have worked within the constraints of the changes in industry and government advice. However, the response was lacking in detail. As a result, the landlord failed to demonstrate that it remained proactive and was taking all action within its control to ensure that the works were progressed without undue delay.
The landlord said the “protracted” negotiations with its developer also delayed the progression of the works. This explanation was also vague. It would not be appropriate for the landlord to include sensitive information about its contractual negotiations. However, we would expect it to provide the resident with a proportionate level of detail to show what steps it had taken to mitigate those delays. As the landlord did not, it has failed to demonstrate that it had done everything it could to resolve any avoidable delays in its negotiations. That is unreasonable.
Overall, the landlord failed to:
1. address the resident’s specific concern that its failure to inspect and repair the protective boards contributed to the delay in starting the remedial works.
2. demonstrate to the resident and the Ombudsman that it managed changes of government and industry advice to mitigate any delays to the remedial works.
3. demonstrate that it took reasonable steps to mitigate the delays in its negotiations with its developer.
Therefore, there was maladministration in the landlord’s handling of the resident’s concern about the time it was taking to complete the remedial works to the external walls of her building.

The resident’s concerns that the landlord did not protect the external walls of her building

In her May 2023 complaint, the resident said that although the cladding had been removed in 2019 the landlord did not install the protection boards to the building until early 2020. She said that the landlord also failed to test the board to ensure that it was adequate in a timely manner. She said these issues would have caused damage to the external walls of the building.
The boards were in place at the time of the complaint. Therefore, the landlord could not reasonably have inspected the walls to investigate the resident’s concerns. However, there is no evidence that the landlord reviewed any historical records to check whether any damage had been noted at the time that the boards were installed. It would have been reasonable for the landlord to have checked this and to confirm whether or not any issues were noted at that time. That the landlord did not take such action was a missed opportunity and a further failure to engage in the complaint in a meaningful way.
The resident also raised concerns that at the time of her complaint, some of the protective boarding had ripped. The landlord failed to respond to the resident’s concern in its stage 1 complaint response. That was unreasonable. This meant she spent time and trouble reiterating her concerns in her escalated complaint. In its September 2023 stage 2 complaint response, the landlord provided evidence that it had repaired the board in June 2023. This was appropriate.
The resident stated that the landlord did not carry out continuous evaluation of the protective boards to ensure they were satisfactory. In response, the landlord said that it carried out regular visual site inspections to ensure the boards were adequate. Its response addressed the resident’s concerns, that was reasonable. The evidence provided also corroborates that it carried out site visits as it had stated.
Overall, while delayed, the landlord demonstrated to the resident that it had repaired the protective board that she had reported in her complaint. It also explained how it monitored the boards for any repairs. However, it failed to address the resident’s concern that its delay to install and inspect the protective boards would have caused damage to the external walls. That meant that her concerns went unanswered. It also failed to respond to her report that some of the protective boards had been ripped in its stage 1 response. This caused the resident time and trouble as she had to reiterate her concerns in her escalated complaint. Therefore, there was service failure in the landlord’s handling of the resident’s concern about the protection of the external walls of her building.

the schedule of remedial works

The resident said that the landlord failed to keep to its communicated schedules of works. She explained to the landlord that this meant that she was unable to plan her homeworking days in order to avoid the noise from the remedial works. She explained that this caused her distress and inconvenience.
In its response the landlord acknowledged that the frequent changes to the schedule was a service failing which had caused the resident frustration. It also said that it would have impacted the “arrangements [she] may have made to avoid being home during noisy working hours”.
While the landlord appropriately acknowledged its failing, it did not take steps to put things right. Given that the resident was inconvenienced as a result of its failing, it would have been appropriate for the landlord to offer some financial redress.
Given the circumstances we consider that the landlord should pay the resident compensation for its service failure. Owing to its lack of a meaningful investigation into the matter, the full impact of its service failure on the resident is unclear. This has hindered the Ombudsman’s ability to fully assess the compensation award. Nonetheless, we have taken into consideration the circumstances and the Ombudsman’s Remedies Guidance and have ordered the landlord to pay the resident £350 compensation. This is in recognition of the distress and inconvenience caused by its failure to adhere to its schedule and to investigate how that had impacted the resident.
Overall, we have found that there was maladministration in the landlord’s handling of the resident’s concerns about its schedule of remedial works.

the resident’s concerns about the landlord’s compensation agreement

In her escalated complaint, the resident raised concerns that the landlord’s compensation agreement was unfair and explained why she believed that to be the case. The landlord responded to her specific concerns. For example, it said that if the works extended passed the date in the agreement, it would amend the offer to reflect the actual completion date. It explained that the compensation agreement did not pass onto the resident’s successor. It also said that the agreement did not restrict the resident from making another housing claim for compensation in the future, that was not cladding related.
The landlord gave proportionate responses to the resident’s specific concerns. However, she was concerned about the terms of the agreement were unfair and it was clear in her complaint that her trust in the landlord had diminished. It would have been reasonable for the landlord to suggest that the resident seek independent legal advice in the circumstances if she was unhappy with the terms of the agreement. It is unclear why the landlord did not signpost the resident accordingly. Therefore, we have found that there was service failure in the landlord’s handling of the resident’s concerns about its compensation agreement.

The landlord’s complaint handling

The landlord’s complaint policy states that it would respond to stage 1 complaints within 10 working days and respond to stage 2 complaints within 20 working days.
The resident made a formal complaint to the landlord on 23 May 2023. The landlord acknowledged her complaint the following day which was in line with the Ombudsman’s Complaint Handling Code (the Code).
Given the date of the resident’s complaint, the landlord’s stage 1 response was due around 7 June 2023. However, it issued its response on 26 June 2023. This was approximately 13 working days passed its policy and the Code’s timescales. While the reason for the delay is unclear, that there was one is a failing.
Furthermore, the evidence shows that the resident chased the landlord for an update on the day its response was due. This caused her time and trouble. There is also no evidence to suggest that the landlord told the resident when she should expect its response after she had chased it for an update. That was a further failing. This could have been reasonably avoided if the landlord had notified the resident of the delay. Or, if in accordance with the Code, the landlord had agreed a new deadline with the resident. That the landlord did not do so was a failing which caused the resident trouble and inconvenience.
The landlord’s stage 2 response was due around 14 August 2023. It informed the resident on 11 August 2023 that its response would be delayed. It gave her a revised deadline of 25 August 2023 which was a 10 working day extension. That the landlord notified the resident that its response would be delayed approximately 3 days before it was due was reasonable. This gave the resident reasonable notice, managed her expectations, and avoided her incurring time and trouble chasing it for an update.
On 23 August 2023 the landlord explained to the resident that it required a further extension in order to fully respond to her complaint. The evidence shows that the landlord discussed the extension with the resident, and she agreed to the extension. While the landlord appropriately sought the resident’s agreement to the extension, a more realistic deadline may have avoided the need for a further extension.
The landlord issued its stage 2 complaint response on 8 September 2023 which was within its extended deadline. However, overall, its stage 2 response was issued within 40 days of the complaint being made. This was a significant deviation from its own policy timescales and that of the Code. Therefore, while it is acknowledged that the landlord informed the resident of its revised response timescales, it would have been reasonable to offer the resident financial compensation in recognition of the distress and inconvenience caused. That it did not was unreasonable.
Overall, the landlord failed to:
1. reasonably notify the resident that its stage 1 complaint response would be delayed. This caused her time, trouble and inconvenience as she had to chase it for an update on 7 June 2023.
2. demonstrate that it had advised the resident when she would expect to receive its stage 1 complaint response after she had chased it for an update.
3. issue its stage 2 complaint response within its own policy timescales and offer the resident financial compensation for that failure.
Therefore, there was maladministration in the landlord’s complaint handling.
On 8 February 2024 the Ombudsman issued the statutory Complaint Handling Code. This Code sets out the requirements landlord must meet when handling complaints in both policy and practice. The statutory Code applies from 1 April 2024. The Ombudsman has a duty to monitor compliance with the Code. We will assess landlords using our Compliance Framework and take action where there is evidence that the requirements set out in the Code are not being met. In this investigation, we found failures in complaint handling. We therefore order the landlord to consider the failings highlighted in this investigation when reviewing its policies and practices against the statutory Code examined under the duty to monitor remit.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s concern about the time it was taking to complete the remedial works to the external walls of her building.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s concerns about the protection of the external walls of her building.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s concern about its schedule of remedial works.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s concerns about its compensation agreement.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this determination, the landlord should:
1. apologise to the resident for the failings highlighted by this investigation.
2. pay the resident £1000 compensation, which is comprised of:
  1. £300 in recognition of distress and inconvenience caused by its handling of the resident’s concern about the time it was taking to complete the remedial works to the external walls of her building.
  2. £100 in recognition of distress and inconvenience caused by the resident’s concerns about the protection of the external walls of her building.
  3. £350 in recognition of distress and inconvenience caused by handling of the resident’s concern about its schedule of remedial works.
  4. £100 in recognition of distress and inconvenience caused by its handling of the resident’s concerns about is compensation agreement.
  5. £150 in recognition of distress and inconvenience caused by its complaint handling.
3. contact the resident to ascertain if she has any current concerns about the ongoing remedial works.
The landlord should consider the failings highlighted in this investigation when reviewing its complaint handling policies and practices against the statutory Code examined under the duty to monitor remit.