Notting Hill Genesis (NHG) (202124552)

REPORT

COMPLAINT 202124552

Notting Hill Genesis (NHG)

31 October 2023

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 conduct during visits to the resident’s property.
The Ombudsman has also considered the landlord’s handling of the associated complaint.

Background

The resident and landlord have an assured shorthold tenancy agreement. The landlord provides rooms within a property for keyworkers, such as nurses and police officers. The resident rents a room within the landlord’s property. The room requires a key for entry.
The landlord visited the property on 11 May 2021 to conduct an inspection of vacant rooms. The landlord used a key to access the resident’s room while the resident was home. The landlord had confused the resident’s room with a listed vacant room.
The landlord contacted the resident on 11 May 2021 to apologise for its error. It said it had mistakenly accessed the room while checking if vacant rooms were in a “good condition”. The landlord said it knocked on the resident’s door and put the key in the door. The landlord said it had not opened the door when it heard the resident “shout something from inside”, so replied by shouting “sorry” and removed the key. The resident and landlord agreed that any future visits required the landlord to inform the resident prior to attending.
The landlord told the resident on 4 November 2021 that a data breach had occurred. The landlord said it had sent an email in which “several email addresses [including the resident’s] were left visible to other recipients”. The landlord apologised to the resident and said the email had been recalled immediately after being identified and it requested all recipients to delete the email. The landlord also logged a data protection breach with its data compliance officer.
The landlord advised the resident on 22 November 2021 that a mandatory fire alarm inspection which would require the landlord to access individual resident rooms. The landlord said it did not require the resident’s presence, but it would arrange for a member of staff to attend alongside maintenance staff if the resident had concerns about the safety of their personal belongings. The landlord and resident agreed an appointment for 24 November 2021 at 3pm.
The resident emailed the landlord on 23 November 2021 to say maintenance staff had attended and entered their room, despite the scheduled appointment due for the next day and the agreement in place to inform the resident prior to attending. The resident said this was the second time it had happened and that was unreasonable.
The landlord responded to the resident on 25 November 2021. The landlord said it understood how distressing the issues were and assured the resident it was taking them seriously. The landlord offered a “sincere apology” and said it had involved the “relevant managers/teams” when investigating the resident’s concerns, and it aimed to make the resident “feel safe”. The resident remained dissatisfied and said they felt “unsafe in their home” and lived in the fear that landlord staff would “enter their room at will”.
The landlord made the resident a subsequent offer of £250 compensation on 24 December 2021. The landlord said the offer was for service failure and the distress the resident had experienced. However, the resident remained dissatisfied and requested an amount equal to 2 months’ rent for the distress and inconvenience.
The landlord provided the resident with a stage 1 complaint response on 19 January 2022. The landlord said:
1. It had scheduled an appointment to visit the resident’s room but had attended one day earlier, when the resident had not been present.
2. Measures had been taken to prevent reoccurrence.
3. An apology had already been issued for the issue on 11 May 2021.
4. The offer of £250 compensation was the maximum amount according to the landlord’s compensation policy; therefore the offer would not be increased.
5. It would arrange for someone to attend to the resident’s concerns regarding damp in the property (this issue does not form part of the complaint being considered by the Ombudsman).
The resident requested that their complaint be escalated to the next stage of the landlord’s complaint process on 21 January 2022. The resident said parts of their complaint had been “negatively distorted” and reaffirmed their request for increased compensation.
The landlord logged the resident’s requested damp repair on 24 January 2022. and recorded that it “must arrange an appointment” with the resident.
The resident contacted the landlord on 3 February 2022 to explain that staff had attempted to enter her room again. The resident said they had “screamed” and had to physically stop them from entering their room. They said the incident had left them shocked and distressed, and that it was “the same habitual practices over and over again, with no changes”. The resident also requested that all appointments be cancelled for the time being. The landlord recorded this as a second complaint from the resident.
The landlord responded to the resident on 3 February 2022, providing an overview of events. The landlord apologised for not contacting the resident prior to attending. It said it was “unfortunate” that maintenance staff who attended the property had missed notes on the system which recommended prior communication with the resident. The landlord also said it was working on a “more functional” system.
The landlord provided the resident with a stage 2 complaint response on 7 February 2022. The response included:
1. The landlord had investigated the resident’s concerns regarding their personal data.
2. An explanation of the events of 11 May 2021.
3. An apology regarding the most recent events involving access to the resident’s room. The landlord explained that maintenance staff had not followed the prescribed process.
4. The landlord accepted the resident had been let down and experienced distress and inconvenience.
5. The landlord referred to the “access to rooms” clause in the tenancy agreement, which states “access to resident’s rooms may be required in emergency situations. 24 hours’ notice will be given for access requirements in relation to non-emergency situations, although in the instance of emergencies, access will be sought immediately by the landlord’s representatives.”
6. An offer to reimburse the resident for a door lock they had purchased, in addition to the £250 compensation, which would not be increased.
The landlord issued a stage 1 response to the resident’s second complaint on 16 February 2022. The landlord said that automated messages are sent to residents when a repair is logged and when a subsequent appointment is scheduled. The landlord acknowledged this had not happened for the resident and offered to investigate the issue. The landlord said the maintenance staff could not attend the original appointment but were on site the day before, so opted to attempt the repair. It said it understood the impact on the resident and that a note had been added to the system to contact the resident prior to all repairs/visits.
The resident responded and requested escalation to stage 2 of the landlord’s complaint process. They said the incident had been distressing and traumatic and that they did not understand how landlord staff could access their room freely. The resident requested compensation equal to 3 months’ rent.
The landlord and resident continued to communicate about the complaint throughout March and April 2022. The landlord provided a stage 2 complaint response for the resident’s second complaint on 12 April 2022. The landlord said:
1. Maintenance staff had attended outside of the agreed appointment as they were unable to attend as scheduled, but no rescheduled appointment or contact was made with the resident.
2. It had failed to adhere to the resident’s request and there was a “failing of consistency” with the process which needed to be worked on as a priority.
3. Measures had been put in place to mitigate future occurrences and ensure resident requests were easily identifiable.
4. Due to the failings it identified, it increased the offer of compensation to £500 plus the reimbursement for the cost of the lock purchased by the resident.
The resident remained dissatisfied and told the Ombudsman that they required “compensation in the form of reimbursed rent payments” because they believed the landlord had caused “exceptional and unnecessary hardships that could have been avoided”.

Assessment and findings

Scope

The resident complained to the landlord about the handling of their personal information, which they said had been shared with other residents. The Ombudsman’s remit in relation to complaints is set out by the Housing Ombudsman Scheme. Paragraph 42 (j) of the Scheme states “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.” The Information Commissioner’s Office (ICO) are an independent body set up to uphold information rights and, therefore, are better suited to investigate the resident’s concerns about the handling of their personal information. Should the resident wish this part of their complaint to be considered, they should refer it to the ICO if not already done so.

Staff conduct during visits to the resident’s property

The tenancy agreement between the landlord and resident provides information about the responsibilities and obligations of both parties. The agreement states the resident must “allow the landlord’s employees or contractors acting on behalf of the landlord access at all reasonable hours to inspect the condition of the premises or to carry out repairs.” The agreement also states, “the landlord will normally give at least 24 hours’ notice”, unless in an emergency. Therefore, it was reasonable for the resident to expect at least 24 hours’ notice from the landlord whenever it needed to visit their room. However, the landlord failed to provide notice on more than one occasion between May 2021 and February 2022, failing to follow the agreement terms.
The landlord identified an error when it attempted to access the resident’s room in May 2021 and apologised for the mistake made by staff. The Ombudsman accepts that this incident was a mistake and, in isolation, was resolved satisfactorily by the landlord when it apologised on the same day it occurred. There were two further incidents where the landlord/maintenance staff attempted access without the resident’s prior knowledge. After the first of these, the Ombudsman would expect to see that the landlord took appropriate action to prevent it happening again. However, maintenance staff attempted access to complete a repair in February 2022, without giving prior notice.
After the landlord had attempted access on 23 November 2022, it told the resident that it would give prior warning of intent to attend. The landlord also said it understood the impact of the incident and that it aimed to make the resident “feel safe”. Maintenance staff then attempted access again in February 2022, without informing the resident. This showed disregard of the agreement to provide notice of intent to attend, a failure to consider the impact it would have on the resident and a contradiction in aiming to make the resident “feel safe”. The landlord’s conduct when visiting the resident’s room demonstrated continued breaches of the tenancy agreement and a failure to learn from its errors.
The Ombudsman has also considered the fact that the landlord had access to a set of keys to the resident’s room. A tenancy agreement between a landlord and resident indicates a landlord’s willingness to provide the resident with “exclusive possession” of the property. Exclusive possession is a basic concept in tenant-landlord law. It is the resident’s right to stop other people, including the landlord, from entering the rented property without permission. The rented property does not have to be an entire flat or house, it can be tenancy of a single room.
The landlord has said it had been able to gain access to the resident’s room on multiple occasions by using a set of keys. These keys were seemingly readily available to the landlord and the maintenance team. In the Ombudsman’s opinion the landlord’s use of keys to access the resident’s room was a clear example of disregarding the resident’s right to exclusive possession and, ultimately, their privacy. This demonstrated a substantial failure by the landlord to follow the agreement it had with the resident.
While the landlord made attempts to put things right, offering the resident a total of £500 compensation plus the cost of a lock, the Ombudsman must consider whether that offer is fair and appropriate. The landlord failed to put substantive measures in place to prevent occurrences from happening again, despite the resident having made it clear how significant the impact had been on their personal wellbeing. The Ombudsman has also identified a significant breach of the agreement by not allowing the resident exclusive possession of the room.
The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The guidance suggests that awards of £600 to £1,000 may be appropriate for cases where there has been an error which had a significant impact on the resident. The Ombudsman has acknowledged the landlord made an offer of compensation, however the solution it offered fell short of being proportionate to the continued breaches of the tenancy agreement and the significant impact events had on the resident. Therefore, the Ombudsman has ordered an alternative amount of £800 compensation.
The Ombudsman has also considered whether the access issues involved in this case are specific to this case only, or whether similar issues but on a systemic scale are likely. With this in mind, the Ombudsman has decided to issue a wider order under paragraph 54 (f) of the Housing Ombudsman Scheme for the landlord to review its policies or practice in relation to the service failures identified in this determination, which may give rise to further complaints about the matter.

Complaint handling

The landlord’s complaint policy explains the process of making a complaint and the timescales in which it aims to respond to residents. The policy states “a resident doesn’t have to use the word complaint in order for [the landlord] to consider their contact to be a complaint.” The complaint policy describes the timescales as:
1. 1 working day to log a complaint.
2. 2 working days to contact a resident following a complaint being made.
3. 2 working days for a “quick fix”, if the landlord believes it can resolve the issue within that timescale.
4. 10 working days to investigate and issue a stage 1 complaint response.
5. 20 working days to investigate and issue a stage 2 complaint response.
The Ombudsman has acknowledged that the landlord recorded two separate complaints for the resident’s concerns about the same issue. The resident first contacted the landlord on 23 November 2021 explaining that they felt incidents had been unreasonable and they had experienced “a lot of distress”. The landlord responded to say it was taking the residents concerns “seriously”. The landlord has said it failed to log a formal complaint when the resident first expressed their dissatisfaction. Despite it making an offer of compensation, the landlord did not provide a formal stage 1 complaint response until 38 working days later, on 19 January 2022. The resident requested escalation and received a stage 2 complaint response within the appropriate timescale.
The second complaint was raised on 3 February 2022, when the resident informed the landlord of another incident of staff attempting to gain access. The landlord responded within the appropriate timescales at stage 1 of the complaint process. However, the resident requested escalation and did not receive a stage 2 response until 40 working days later.
The Ombudsman has considered the impact the delayed responses would have had on the resident on the substantive issue. The resident had experienced significant distress and inconvenience following the incidents they had reported, therefore it would have been important for the landlord to resolve things as soon as possible. The delayed responses meant the resident had to wait for their complaints to be resolved longer than the complaint policy dictates. This demonstrated a failure by the landlord to follow the policy timescales and missed an opportunity to put things right for the resident.
The Ombudsman has also considered the landlord’s decision to log a separate complaint for the incident which happened in February 2022. This is likely to have caused confusion for the resident and it would have been more efficient of the landlord to consider the additional incident within the existing complaint. The landlord issued its stage 2 complaint response 4 days after the resident reported the incident. In the Ombudsman’s opinion, this would have been enough time to investigate and include a combined outcome within its response. Alternatively, the landlord could have also communicated with the resident to request an extension to the response deadline. This approach would also have provided a robust complaint response that included all the resident’s concerns.
The landlord’s complaint handling added to the ongoing distress and inconvenience the resident experienced. Therefore, the Ombudsman has determined the landlord must act to put things right. The landlord is ordered to pay the resident £150 in additional compensation. This amount is in line with the Ombudsman’s remedies guidance, as referenced above.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found maladministration by the landlord in its conduct during visits to the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found service failure in the landlord’s handling of the resident’s associated complaint.

Orders and recommendations

Orders

The landlord is ordered to pay the resident £950 compensation, made up of:
1. £800 for continued failure to adhere to the tenancy agreement and the significant impact those failings had on the resident.
2. £150 for the delays and inefficient handling of the resident’s associated complaint.
If the landlord has already paid the resident the £500 compensation it offered during the complaint process, it should be deducted from the above amount.
The landlord is also ordered to ensure the resident has exclusive possession of the property. The exclusive possession of the property will only apply for the period the resident remains an assured tenant of the landlord. To achieve this, the landlord must review the working practice at the resident’s property and its applicable policies and procedures to ensure it is complying with obligations towards the resident, setting out any changes to the resident and the Ombudsman.
The landlord must provide evidence of compliance with the above orders within 4 weeks of the date of this report.
In accordance with paragraph 54 (f) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a review of its practice in relation to exclusive possession. It is unclear whether the landlord’s actions in this case were local practice, specific to the property, or if it has this approach when accessing rooms at other similar properties/arrangements. Therefore, for all similar properties/arrangements, and within 8 weeks of the date of this report, the landlord must:
1. Review the applicable policies and procedures.
2. Provide training for relevant staff.
3. Ensure residents have exclusive possession of their property throughout their agreement term, where the agreement requires it.

Recommendations

The Ombudsman has acknowledged that the landlord said lessons had been learnt when its complaint process had been exhausted. While it is unclear what lessons were learnt and what subsequent action, if any, has been taken, the Ombudsman has recommended:
1. The landlord should review the process and/or system of appointments that require attending the resident’s property to ensure prior notification is given, regardless of whether the appointment is being booked for the first time or being rescheduled.
2. The landlord should consider running refresher training on complaint handling for all relevant staff, specifically on identifying and logging complaint, efficient complaint management and responding within the appropriate timescales.