Notting Hill Genesis (202111991)

REPORT

COMPLAINT 202111991

Notting Hill Genesis

4 February 2022

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. repairs following a water leak.
2. the resident’s stay in temporary accommodation following a leak.
3. The resident’s reports about the behaviour of its staff.

Background and summary of events

The resident is a tenant of the landlord.
On 13 July 2021, the resident informed the landlord that severe weather had caused a flood into her property. The landlord arranged to provide her with temporary accommodation in a hotel. The landlord records showed that it raised a repair to clear a blockage to the guttering and drainpipes of the property which was thought to be the cause of the flooding.
The landlord contacted the resident on 19 July 2021 to arrange an inspection of the property. She informed it that she had contracted corona virus and it extended the hotel accommodation for a further ten days.
The landlord contacted the resident on 23 July 2021 to arrange an inspection. It attended the property on 26 July 2021 and identified a small patch of damp carpet in the living room. The landlord noted that the remainder of the property was dry and did not smell of damp. It could not complete an inspection of the bedroom of the property as a pet snake was kept there and the staff member had to leave the room due to a phobia of snakes.
The landlord arranged an appointment to inspect the property on 2 August 2021 but the resident cancelled this.
The landlord arranged a further inspection on 4 August 2021 but the resident informed it that she had corona virus symptoms again and cancelled the appointment as she could not leave the hotel.
The resident and the landlord engaged in correspondence between 6 and 9 August 2021 in which the resident expressed dissatisfaction with the suitability of how her food allowance had been provided while she was at the hotel and the landlord requiring her to vacate the hotel to return to the property on 9 August 2021 to provide access for an inspection. She also requested that the landlord pay for transport for her to return to the property. The resident contended that the landlord could not know if the property was now habitable, as its inspection on 26 July 2021 had not been completed.
The resident confirmed to the landlord on 9 August 2021 that she had tested negative for corona virus. The landlord confirmed that it would no longer pay for the hotel accommodation and requested an inspection of the property at 2 pm that day. The resident said that she could not provide access for an inspection of the property until 4.30 pm that day.
The landlord proposed to inspect the resident’s property at 10.30 am on 10 August 2021 but the resident said that she could only do this if it agreed to provide another night’s stay in the hotel or pay for a long-distance taxi journey from her relative’s house.
On the same day, the landlord wrote to the resident, through its solicitor, to confirm that it had no obligation to pay for her transport to the property to attend the inspection. It asserted that it had covered her reasonable expenses at the hotel for the last 28 days, which included a food allowance. The landlord said it had made several requests to inspect the property but the resident had failed to allow access. It said the property was habitable and its last inspection showed “minor damp” at the property which was drying out. The landlord advised that any follow on works such as decoration would be carried out in “a reasonable period of time”.
The landlord confirmed that it would not pay for any further hotel accommodation and the resident should return to her property that day. It asked her to confirm that she would provide with access to the property at 3pm the following day. The landlord advised that failure to provide it with access to the property would result in it considering tenancy enforcement action.

The resident raised a stage one complaint with the landlord on 10 August 2021. She was dissatisfied with:
1. The length of time taken to arrange an inspection of the property after being moved into temporary hotel accommodation.
2. Repairs not being carried out to the property following the leak.
3. The landlord’s refusal to extend her hotel accommodation beyond 10 August 2021.
4. The landlord not reimbursing her for the time that she was moved into temporary hotel accommodation.
5. The conduct of the staff member who inspected her property originally, who felt had been “negligent”.
6. The staff member she had corresponded with who she felt had been “racist and discriminatory”.
The landlord issued its stage one complaint response to the resident on 26 August 2021. It asserted that it was not at fault for the delayed inspection of the property as aside from one inspection not being completed due to the staff member’s snake phobia, all other attempts to arrange an inspection had been unsuccessful because the resident did not allow access. The landlord relayed that it raised repairs on 13 July 2021 to repair the external gutters, which was still in progress, and deliver a dehumidifier, which was delivered the same day. The landlord confirmed that it was not responsible for repairing or replacing the flooring which the resident had installed. However, it had agreed to have the carpet professionally cleaned as a goodwill gesture. The landlord asserted that its decision to terminate the hotel accommodation was based on the resident’s property being habitable and therefore there was no requirement for temporary accommodation.
The landlord’s confirmed that its decant policy provided for £20 per day for food expenses when a resident was moved into a hotel temporarily. It had paid this direct to the hotel between 14 and 19 July 2021. Due to the resident not liking the food at the hotel, the landlord arranged to provide her with vouchers which amounted to £400 for 20 days, and a direct payment made to her for £156 to cover three days’ food expense plus £10 per weeks for running the dehumidifiers in her property and £16.05 towards travel costs on the day of the leak. It noted that it had not provided the food allowance for the last day of her hotel stay and confirmed it had arranged for this to be paid to her.
In response to the resident’s claim that the member of staff who aborted the inspection of her property had been negligent, the landlord explained that this member of staff had a phobia of snakes and was unable to continue the inspection with the knowledge that there was a snake present in the property. It apologised for the inconvenience this may have caused but said that it was unreasonable for it to expect a staff member with a phobia of snakes to remain inside a property where a snake was present. The landlord noted that the staff member reported the situation after leaving and it had attempted to arrange further inspections by another member of staff.
The landlord recounted that it had spoken to the resident on 25 August 2021 about her claim that a staff member had been racist and discriminatory against her. It noted that the staff member had enquired with her solicitor if she had permission to practice law and she believed that this was due to her solicitor’s name. The landlord also noted that the resident felt that the staff member’s reference to ‘English Heritage’ when discussing her property was evidence of racial discrimination. It confirmed that it had spoken to the staff member concerned who denied that either comment was racist. The landlord relayed that the staff member had questioned the resident’s solicitor because of their concerns over the advice provided to her. It also relayed that the reference to the ‘English Heritage’ organisation was because her property was a grade II listed property.
The landlord did not uphold the resident’s complaints, with the exception of the missing day’s food allowance, but acknowledged that its stage one complaint response was three days late. It offered her £50 compensation for this.
The resident escalated her complaint to the final stage of the landlord’s complaints procedure on 31 August 2021. In this, she contended that:
1. She reported her leak on 12 July 2021 and no one attended until the following day. The worker could not repair the crack in the ceiling which was leaking due to the gutters needing to be repaired first and this was not yet complete. The resident disputed that the landlord had extended the hotel stay due to her positive corona virus test, contending that it had already booked her into the hotel until 28 August 2021. She added that she had not cancelled inspections, but had been unable to attend due to not awaiting funds from it in order to travel or it had not accommodated her requested times.
2. The resident said that the dehumidifier was not working for the first two weeks of being moved into temporary accommodation as no one had been able to empty it. She also contended that the carpets needed to be replaced due to being damp for so long. The resident said that the ceiling and walls were stained from water and she would be seeking compensation for the damage caused to her possessions by the water.
3. The resident held that her temporary hotel accommodation was only to end once an inspection had confirmed the property was habitable. She said that the decision that it was habitable was only made on 13 August 2021, and therefore the landlord made her homeless for three days by ending the hotel accommodation on 10 August 2021.
4. The resident said that the landlord’s decant policy provided for expenses of £50 a day if she were to stay elsewhere other than temporary accommodation and therefore contended that it should pay her £150 for the three days between 10 and 13 August 2021 when she lived away from the property and hotel accommodation was not provided to her.
5. The resident contended that the staff member’s phobia of snakes was not a valid reason for leaving in the middle of an inspection. She said that the snake posed no threat and therefore they had been negligent in terminating the inspection which delayed the inspection of her property. The resident also said that the landlord’s staff had been negligent by being unreachable when she was attempting to get money for food during her hotel stay.
6. The resident said that a staff member had sworn at her during a telephone conversation and had attempted to degrade her by describing the property as English heritage and referring to the property as “his” property. She took from this that these comments were to imply that she “shouldn’t be living in it because [she was] not English” and to make the point that she was not a homeowner. The resident disputed the explanation the landlord gave about the staff member’s use of the phrase “English Heritage” and their questioning of the ability of her solicitor. She maintained that the staff member had acted in a discriminatory way.
The landlord provided its final stage complaint response to the resident on 21 September 2021 after speaking to her on 3 September 2021. It noted that the resident “heavily disputed” the sequence of events up the final inspection of the property. The landlord acknowledged that a complete inspection was not carried out until 17 August 2021. It did not consider that the time between the resident being moved into temporary accommodation on 13 July 2021 and its first visit to inspect on 26 July 2021 was excessive. The landlord explained that this was because a large number of its properties in the area had been affected by severe weather and it would not have been able to attend her property prior to her positive corona virus test result on 16 July 2021. It said it was within its staff member’s rights to leave the property on 26 July 2021 because of their phobia of snakes.
Based on this partial inspection, the landlord considered that the property was habitable and planned to end the temporary hotel accommodation on 30 July 2021; this was extended until 2 August 2021. It noted that the resident acknowledged that she had delayed the full inspection until it had reimbursed her for food and travel costs to and from the hotel. The landlord said that it had been unable to inspect the property between 4 and 9 August 2021 as it was awaiting a negative corona virus test result from the resident. The hotel accommodation was eventually ended on 10 August 2021 and the property was eventually inspected on 17 August 2021 after unsuccessful attempts the previous week.
The landlord did not uphold this aspect of the resident’s complaint as it considered that she could have returned home after the partial inspection 26 July 2021 as the property was considered habitable.
The landlord relayed that there was a job raised to its contractor to unblock and repair guttering which it attributed to the water damage in the property. It had requested an update on this. Once this was complete, it would carry out stain blocking and patch painting to the affected area in the resident’s living room. The landlord relayed that its inspection had found that a small area of carpet had been affected by the leak and said it would arrange for this to be professionally cleaned as a gesture of goodwill.
The landlord responded to a concern raised by the resident on its telephone call with her on 3 September 2021 regarding her gas repairs. It relayed that it attended an emergency callout which left her heating and hot water safe and working. On 19 August 2021 it had attended to confirm that there was no gas leak. The landlord confirmed that neither of its contractors mentioned any drilling or damage to her cupboard, nor disconnecting her cooker. It asked her to report any repairs needed to her cupboard and confirmed that any repairs or reconnection of her cooker was her responsibility. The landlord did not uphold her complaint about repairs overall as it had attended these and was still working on them.
The landlord relayed that, when it spoke with the resident on 3 September 2021, she could not recall the specific comments which she had considered to be racist and discriminatory but noted that she had been upset by the staff member’s manner. From its review of email correspondence, the landlord considered that offence had been taken “on both sides without being deliberately caused”. The landlord said that it had cautioned the staff member concerned to be mindful of their tone in communications. It found no evidence that the staff member’s behaviour was racist or discriminatory but offered £50 as a goodwill gesture as it considered that the tone of some communication may “have provoked a reaction”.
The landlord confirmed that it did not uphold the resident’s complaint. It re-offered the £50 compensation it previously offered for its stage one complaint response and an additional £50 goodwill gesture for any offence caused by the tone of its communication.

Assessment and findings

Policies and procedures

The landlord’s resident handbook confirms that it is a condition of the resident’s tenancy agreement that she grants access to the property when notice is given of repairs or inspections.
The landlord’s responsive repairs policy confirms that it is responsible for the repair and maintenance of the structure and exterior of the property including gutters, downpipes and drains.
The landlord’s decant policy states that emergency decants (temporary moves) may take place when an event makes the property uninhabitable. This also states that in the case of a short-term emergency decant, it may offer hotel or B&B accommodation which it will cover the cost of, and any agreed reasonable expenses.

The landlord’s handling of repairs following a leak

As confirmed by the landlord’s responsive repairs policy, it had a responsibility to repair the gutters, downpipes and drains at the property. It raised work to carry this out in a reasonable time after the resident’s report of a leak on 13 July 2021. When a landlord received a report of a repair, it is reasonable for it to carry out inspections to ensure that the work carried out rectifies the issue. In this case, the completion of a suitable inspection was delayed because the landlord was unable to gain access, following its initial inspection on 26 July 2021, to inspect the property.
It is a condition of the resident’s tenancy agreement with the landlord for her to allow access to the property for inspections. It was not disputed that the landlord made attempts to inspect the property, which were unsuccessful due to the resident being unable to grant access.
The resident has also argued that she was unable to grant access as the landlord refused to pay for her transport from the hotel to the property to attend an inspection. In line with the landlord’s decants policy, the landlord was expected to pay reasonable expenses incurred because the resident had to temporarily move away from the property. However, it would be reasonable for the resident to pay for her own transport cost to return to the property at the end of the decant and the landlord was not obliged to pay for this.
The landlord has argued that the resident could have moved back to the property after it had completed a partial inspection, which confirmed the property was habitable. The resident could not return to the property immediately after this inspection she was self-isolating in the hotel due to corona virus. Once the resident’s isolation period ended, it was reasonable for the landlord to conclude that she could return to the property based on the findings of the partial inspection. Therefore, the landlord cannot be held responsible for any subsequent delay to completing remedial works because of the delay in completing the inspection. There was no evidence that there was a failure by the landlord to carry out remedial works appropriately.

The landlord’s handling of the resident’s stay in temporary accommodation

It was appropriate for the landlord to move the resident into temporary accommodation once it found that her property had been made temporarily uninhabitable by a leak. The resident expressed dissatisfaction with the landlord requiring her to return to her property to provide access for an inspection. While the resident contended at the time that it was not possible for the landlord to know that the property was habitable, it had carried out a partial inspection of the property on 26 July 2021 and had inspected all areas apart from the bedroom. It was reasonable for the landlord to rely on the opinions of its suitably qualified staff regarding the condition of the property, therefore it was reasonable for it to conclude, after its inspection of the area affected by the leak, that the property was habitable.
It is noted that the landlord extended the temporary accommodation in light of the resident’s report of contracting corona virus, and it extended further this when she reported continuing to experience symptoms. It is also noted that it paid a food allowance to her for each day of her stay at the hotel and changed the payment method in light of her dietary requirements. This demonstrated that the landlord acted reasonably by taking account of her circumstances and providing suitable accommodation and a food allowance, in accordance with its decant policy above. There was no evidence of a failure by the landlord in its handling of the resident’s decant to temporary accommodation.

The landlord’s response to reports about the behaviour of its staff.

The landlord had a duty to protect the health and wellbeing of its staff. The resident has said that the staff member had who terminated the inspection on 26 July 2021 was ‘negligent’ however, it would not be reasonable for a landlord to expect a staff member to proceed with a task which may cause them undue distress due to a physical or mental health issue. Whilst the termination of the inspection was clearly inconvenient for the resident, it was reasonable for the landlord to assert that its staff member had not acted in a negligent manner in this regard.
Regarding the allegations of discriminatory and racist behaviour from another staff member, there was no definitive evidence provided by either party that the staff member acted in a discriminatory way. While it is acknowledged that the resident may have experienced distress, based on the evidence provided, it was reasonable for the landlord to advise that it could not conclude that the staff member’s actions were evidence of racist or discriminatory conduct. In situations such as this, where there are essentially two conflicting accounts with no supporting evidence to support either account, it is not possible for the landlord or the Ombudsman as an independent and impartial arbiter to confirm what happened with any certainty.
. Instead, it is this Service’s role to decide whether the landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it. It was reasonable for the landlord to review the correspondence between the resident and the staff member and discuss the behaviour with the resident. The landlord also spoke to the staff member concerned and gave them advice about how to conduct themself going forward to avoid similar issues. The landlord also offered a goodwill gesture to the resident, to acknowledge the distress she had experienced. Given that there was no evidence of a failure by the landlord, its offer of £50 was reasonable to resolve this aspect of the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of:
1. repairs following a water leak.
2. the resident’s stay in temporary accommodation following a leak.
3. reports about the behaviour of its staff.

Reasons

The landlord raised works to rectify the leak reported and made reasonable efforts to inspect the property to confirm it was habitable.
The landlord acted in accordance with its decant policy in moving the resident to temporary accommodation and paying her a reasonable food allowance. It took account of her circumstances by extending the stay to accommodate her report of contracting corona virus.
The landlord investigated the resident’s reports of staff behaviour reasonably and took appropriate steps to address this in light of the evidence.

Recommendations

The landlord should pay the resident the £50 it previously offered her for issuing its stage one complaint response outside its published timescales.
The landlord should pay the resident the £50 goodwill gesture it offered her for any distress caused by the tone of some of its communication with her.