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Notting Hill Home Ownership Limited (202002842)

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REPORT

COMPLAINT 202002842

Notting Hill Home Ownership Limited

21 December 2020


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 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.

 

Complaint definition

 

  1. The complaint is about:

 

  1. The level of compensation offered by the landlord relating to acknowledged service failures dating back to the beginning of the lease;
  2. The landlord’s response to fire safety issues raised by the resident;
  3. The landlord’s complaints handling.

 

Background and Summary of events 

 

Background 

 

  1. The resident is a leaseholder who purchased the property from the landlord in 2008 (new build, shared ownership). The property is a two-bedroom flat located on the sixth floor of the property building.

 

  1. The developer of the property and building in which it is contained (‘the builder’) had a responsibility to resolve any build defect issues identified (within the flat) during the first two years (the defects period) that ran until August 2010. After this it was for the resident to raise with the NHBC and remedy herself if not covered. 

 

  1. In respect to the communal areas, under clause 6.3 of the lease agreement, the landlord is responsible to repair, maintain, redecorate and (where deemed reasonable by the landlord) improve and renew common parts including: “the roof foundations and main structure of the building and all external parts….and the balcony and all parts of the Building which are not the responsibility of the leaseholder…” (clause 6.3:1) and “the pipes sewers drains wires cisterns and tanks and other gas electrical drainage ventilation and water apparatus and machinery in under and upon the Building…” (clause 6.3:2) and “the common parts” (clause 6.3:3).

 

  1. Section 8.0 of the landlord’s Compensation policy (v.2.0 as found on its website) states that it: “may pay compensation where the length of time to resolve the defect is excessive. This will be considered on a case by case basis, taking into account the contractual arrangements in place for individual schemes”. Section 8.0 of its Compensation Policy states: “We may pay compensation where the length of time to resolve the defect is excessive. This will be considered on a case by case basis…”.

 

  1. Section 3.0 of the landlord’s Complaints policy (v.1 April 2018 as found on its website) states that all complaints and compliments will be recorded and used to help improve its services. Further, when a complaint is made it will aim to resolve it as quickly as possible. Under Section 4 of this policy, it is stated complaints should be made within a reasonable period which would normally be within six months of the matter occurring but that in exceptional circumstances it may decide to respond to a complaint outside of this timescale. Furthermore, it is stated that where appropriate, compensation may be awarded in line with its Compensation policy. Under Section 5.1, it is stated if a resident is dissatisfied with its response, they can request a review which will be carried out by an independent reviewer within 20 working days.

 

  1. The resident’s complaint relates to issues experienced as a result of historic latent structural build defects, first raised with the landlord in or around 2009, soon after the lease commenced. Whilst the evidence suggests that the resident was in regular communication with the landlord since this time regarding the potential causes of the problems experienced, up to when rectification works began in 2018 to address the defects, this investigation will be limited to the considering the landlord’s handling of the concerns raised by the resident that progressed through its complaints process between 4 June 2019 and 10 October 2019.

 

  1. The Housing Ombudsman Scheme includes timescales within which a resident is expected to bring a complaint to a member landlord and to this Service.  There is evidence of the resident having raise formal complaints to the landlord on these matters prior to this recent complaints process. As such, the resident had the opportunity to escalate these complaints at the time, including progression to a formal Ombudsman investigation. Therefore, while information about these historic events will be referenced, complaints and reports about the individual issues will not be considered in this investigation and the focus will be on those issues considered as part of the landlord’s complaints process, including the resident’s request for compensation in relation to the issues experience over the past ten years.

 

Summary of events

 

  1. In 2008, the resident purchased the property from the landlord, with a lease start date of 18 August 2008.

 

  1. In 2009, the resident raised concerns about plumbing and pipework across the whole development. The evidence suggests this led to communications between the resident, landlord and builder, regarding low water pressure, damp and leak damage that led to the NHBC’s subsequent involvement.

 

  1. In September 2011, the NHBC reported findings in relation to the communal areas of the building which made recommendations for repairs and also that dampness inside the communal areas be investigated.

 

  1. Between 2012 and 2017, various reports were produced by companies commissioned by the landlord focusing on the gas leak risk, (in December 2012), leaks at Flat 27 (the neighbouring property), the terrace and adjacent stairwell (in April 2014), on water ingress (in July 2016), and pipework/leaks (in January 2017).

 

  1. In October 2016, the landlord commissioned an investigation by Independent Surveyors to focus on the exterior of a neighbouring property (including the roof) that produced a Summary of Recommended works dated 25 April 2017 and a (Water Ingress) report dated 26 April 2017.

 

  1. In 2016, the landlord engaged the builder to undertake a more extensive, full review of building focusing on issues raised by the resident.

 

  1. On 11 May 2017, the landlord produced a report for the builder, setting out the history of the issues and its observations about the building generally.

 

  1. During 2018 and 2019 (for around 18 months), the builder undertook rectification and remedial works to the building.

 

  1. On 4 June 2019, the resident sent a complaint letter to the landlord regarding issues experienced over the past decade as a result of latent structural build defects. The resident said the problems (water ingress/damp in communal areas) were initially identified in the 2011 NHBC report that recommended further investigation of the communal areas.

 

  1. The resident set out the events since 2009 and detailed the issues experienced that she said had affected both her property and other properties within the building as well as the communal areas of the block. In particular, the resident claimed that the landlord “mismanaged” dealing with these issues and failed to “sufficiently engage” with the builder for a period of five years in relation to the issues. The resident complained that the landlord delayed with carrying out invasive investigations of the individual flats and building to ascertain the extent of the issues and damage caused. She said this in turn meant the timeframe taken by the landlord to rectify the issues, was “unacceptable”. The resident explained how the problems affected her and her family’s lives.

 

  1. The resident requested a meeting with the landlord to discuss the issues and also set out the redress she was seeking, including a refund of the service charge that was apportioned to repairs caused by build defects (that did not last), compensation for the costs incurred as a result of the build defects, as well as compensation for her time spent pursuing a resolution of the issues and for distress and inconvenience caused by the issues.

 

  1. On 21 June 2019, the landlord visited the resident at the property to discuss her complaint.

 

  1. The resident wrote a further letter to the landlord on 11 July 2019 in which she summarised concerns she raised at the (21 June 2019) meeting and explained why she felt the property it sold to her was “not fit for purpose”. The resident provided further details of the issues she encountered as a result of the structural build defects, the majority of which came under the following nine headings: Issues affecting the exterior of the building; Issues affecting the interior of the building; Solar panels; “Mismanagement”; “Woeful communication”; “Poor management”; “Lack of empathy”; “Lack of responsibility” and; “Fire Safety issues”.

 

  1. The resident also gave details of the remedies she sought to address the complaint including for the landlord to:

 

  1. acknowledge that she initiated the NHBC claim for the communal areas;
  2. provide a refund of the service charge that has been historically apportioned to repairs caused by build defects and;
  3. pay compensation comprising £6,825.00 for the cost of replacing her bathroom suite and tiles “riddled with mould caused by ineffective ventilation”, £9,544.00 for the cost of decommissioning “potential leak-prone” hot-water heating system and installing electric underfloor heating system and an (unspecified) compensation amount for stress and inconvenience.

 

  1. On 25 July 2019, the landlord issued a response to the resident’s complaint setting out its position (under nine corresponding headings) in relation to the concerns raised. In response to the redress requested by the resident, the landlord explained that it was unlikely to agree to her request for it to reimburse costs she incurred for a new bathroom (2014) and a replacement heating system (in 2015) due to no established link between the need to carry out the work and the building defects.  However, in relation to the request for a service fee refund, the landlord agreed it would review all historic repairs when the works were complete and offered the resident compensation of £2,000 for stress and inconvenience (a flat rate of general compensation offered to all residents on the development) and to carry out works to the resident’s solar panel.

 

  1. On 22 August 2019, the resident responded to landlord in which she reiterated her request for compensation to cover the cost of works she says she incurred due to the build defects and asked for the amount of £6,400 in compensation for the stress and inconvenience caused by the problems (based on her estimated time spent pursuing a resolution charged at her current daily rate).

 

  1. On 6 September 2019, the landlord responded to the resident’s previous letter, setting out its version of events leading up to its decision to carry out an invasive investigation of the building (by the builder) in 2017 followed by remedial works to address defects identified. It admitted that it missed earlier opportunities to investigate these issues more thoroughly and one of these opportunities was to listen to what the resident had been saying about visible signs of defects. It responded to the issues raised by the resident in her complaint and set out its position in relation to these issues. This included an acknowledgement by the landlord that the building was not built to the correct standards or followed the original design in respect of fire safety. The landlord also provided an assurance that this was being put right by the builder now. Further, the landlord acknowledged that residents had been caused general disruption including to their use of the communal garden and by having to make alternative arrangements in respect to the bike store. The landlord stood by its previous offer of compensation that it said was reasonable and took into account the time and effort the resident has made in documenting and raising the issues over the years.

 

  1. On 9 September 2019, the landlord issued a (holder) letter to the resident advising that it will provide a response at Stage 2 after further investigation/input of an independent reviewer.

 

  1. On 13 September 2019, the landlord sent a (standard) letter to (all) residents offering £250.00 in compensation for the disruption caused during the 18 months of remedial works caused by “building wide, multiple defects from when the building was constructed”. Within this letter, it acknowledged the building had been shrouded in scaffolding for the majority of this period, obscuring light and ventilation and also that residents have had to contend with work being carried out in and around their homes. The landlord offered a further £100.00 to all residents for restricted access to the communal garden and other facilities including bike storage during the period of remedial works. 

 

  1. On 10 October 2019, the landlord issued a Stage two ‘review’ response to the resident, in which it reiterated its offer to pay £2,600 in compensation based on: £2,000 for stress and inconvenience (it said this was in accordance with its policy); £350 in compensation as offered to all residents and an additional £250 in acknowledgment of the resident’s efforts in supporting its Property Management Officers (PMOs). The landlord also reiterated its offer to carry out work to the resident’s solar panel. The landlord rejected the claim for costs of a replacement bathroom and heating system on the basis that the resident chose to undertake these works without first establishing their necessity (under-floor heating) or pursuing them through established channels available to her (NHBC for bathroom issues. However, the landlord acknowledged this action was taken in the wider context of a building containing significant defects but said it was not liable for costs of works completed in resident’s own home.

 

  1. Defects and remedial works to the property building were completed in October 2019.

 

  1. On 8 July 2020, the resident submitted an online complaint to this Service regarding the issues with the property condition and the landlord’s offer of compensation. The resident stated that the issues caused by build defects included years spent living with low water pressure, cracks in walls, mould in bathroom caused by incorrectly installed ventilation, unconnected kitchen extractor fan, leaks from the roof and unlagged pipes. Further, the resident said she has spent years living in a building shrouded in scaffolding obscuring light and causing reduced ventilation and increased dust and noise. Due to intrusive works inside and directly outside her flat, she said has not been able to use her balcony. The resident mentioned that there had been health concerns prompted by damp and mould and that the building work had had a negative impact on the potential sale of her property. 

 

  1. In correspondence to this Service dated 13 November 2020, the resident  identified aspects of her complaint that she felt the landlord had not followed up on after committing to do so in its responses, including a review of the cost of historic repairs made through the service charge.

 

 

Assessment and findings 

 

Level of compensation

 

  1. It is not disputed by the landlord that the resident has reported multiple issues both with the property and communal areas of the building since 2009. It is also not disputed that over the years, many repairs have been made but that these did not last due to many of the issues being caused by latent build defects, the extent of which only came to light once the landlord commissioned for an intrusive investigation to take place in 2017 and 2018. The landlord subsequently engaged the builder in 2018 to carry out remedial works to address the structural defects found with the building, which were completed in October 2019.

 

  1. The lease, as mentioned above at paragraph 3, makes it clear that the landlord is responsible for repairing and maintaining the exterior of the building, communal parts and also for: “the pipes sewers drains wires cisterns and tanks and other gas electrical drainage ventilation and water apparatus and machinery in under and upon the Building…”. Based on the evidence, it appears that the vast majority of the issues including leaks, water ingress and cracks in the walls, stem from the defects with the parts of the building that the landlord is responsible for (which is accepted by the landlord).

 

  1. However, as mentioned above, this investigation will focus on the landlord’s handling of the resident’s complaint escalated through its complaints process between 4 June 2019 and 10 October 2019. This primarily concerns the remedies sought by the resident for the issues experienced, including compensation for costs she said that she had incurred as a result of the latent defects, for stress and inconvenience and her time spent pursuing a resolution to the issues during the timeframe in question.   This investigation will also consider matters that the resident says were agreed in the complaints process but have not been provided or fully addressed.

 

  1. It is evident that the landlord has acknowledged that it delayed in taking appropriate action to rectify the defects with the parts of the building it is responsible for repairing and maintaining under the Lease despite many opportunities do so over a period of at least five years. This resulted in issues with the property and building that clearly had a negative impact on the resident. However, the landlord has completed remedial works which has therefore ‘put right’ the issue. These facts are not in dispute and as stated above, this Service considers that the resident had the option of bringing these complaints to the Ombudsman at the time. It is emphasised that this investigation is limited to considering the landlord’s offer of compensation for its acknowledged failures over this period and its complaint handling between 4 June 2019 and 10 October 2019.

 

  1. The resident’s complaint correspondence of 4 June, 11 July and 22 August 2019 included her requests that the landlord reimburse her for costs she had incurred in installing a new bathroom suite (£6,825) and for a new heating system (£9,544). She also requested £6,400 in compensation related to the stress and inconvenience and her time spent attempting to get the issues resolved. In addition, the resident requested an apology from the landlord, a refund of service charges for ineffective repairs and for the landlord to acknowledge that she had initiated an NHBC claim for communal area issues. These are considered below:

 

  1. Costs for a new bathroom suite and new heating system –These works took place in 2014/15; as such, for the time reasons outlined above, this investigation is limited to consideration of whether the landlord responded appropriately to the resident’s request for reimbursement. The landlord refused the resident’s request on the basis that the resident had not sought a resolution for these issues through the established channels available to her and due to no link having been established between the need for this work and build defects. This was a reasonable response in the circumstances as the evidence shows that following issues with damp, the resident decided to  pay the costs of replacing the bathroom (in 2014) before the landlord had completed its investigations into the causes of the leaks (at the neighbouring property and in the communal parts of the buildings). The resident also made the decision to install the new heating system (in October 2015) before the landlord had received the report on pipework or completed its investigations into this matter.

 

  1. Review of service charges – the landlord agreed it would review all historic repairs when remedial works were completed (25 July 2019 response). This was reasonable in the circumstances, given the landlord’s acknowledgement of multiple service failures over the period of the lease. There is no evidence that this review has taken place. The Ombudsman expects member landlords to follow through on agreements made during the complaints process. This provides the resolution identified during this process and helps re-build trust in the landlord/tenant relationship. It is relevant to note here that it is not within the remit of the Ombudsman to make a finding that the service charges paid by the resident during previous years be reimbursed to her. Such a decision would be within the remit of the First Tier Tribunal (Property Chamber). The Ombudsman can consider whether a landlord has responded to reports that a chargeable service was not provided; it cannot make a finding about the level of that service charge. However, in this case where the landlord agreed it would review all historic repairs when remedial works were completed, due to a lack of evidence to show the landlord has either refunded any part of the historic service charges or provided any update about its promised review of these charges, the Ombudsman considers this is evidence of the landlord failing to follow up on actions it committed to, during its Complaint process. This constitutes evidence of the landlord unreasonably delaying with providing a promised action. This amounts to a service failure by the landlord.

 

  1. Apology and claim to NHBC – the landlord has acknowledged and apologised to the resident for the building being poorly constructed and for the latent build defects which caused many problems until these were identified and rectified many years later. The landlord also accepted that it failed to act on reports and evidence presented by the resident personally and has also apologised to the resident for taking so long to correct these. The landlord has also thanked the resident for her time spent over the years highlighting the communal defect issues (including to the NHBC) and acknowledged how frustrating it must have been for her when it failed to progress these issues.  Based on the landlord’s comments, the Ombudsman is satisfied that the landlord has both acknowledged and provided a suitably worded apology to the resident for the issues encountered in response to her request for the same.

 

  1. Additional compensation – The landlord offered to pay the resident a total compensation of £2,600 (based on £250 for each year from 2008 to 2015 when it failed to act on information presented by the resident), plus additional amounts as detailed below but it stated that it would not base compensation on the rate of her income. Compensation for stress and inconvenience is not normally linked to a resident’s income but rather based on the extent of stress and inconvenience caused by service failures and the length of time a resident has suffered this. As mentioned above, the timeframe taken by the landlord to fully acknowledge and rectify the issues in this case, has been unreasonable. However, in reaching the figure offered of £2,600, the landlord has demonstrated that it has considered: the length of time that it failed to act on information presented by the resident and; the disruption caused by the building works including restricted access/use of communal areas for a period of at least 18 months (its offer of £350 reflects this).  It also offered an additional amount of £250 for the resident’s “efforts made” to support its PMOs. I am mindful that this amount is broadly in line with the Ombudsman’s remedies guidance, which provides for awards of £700 and above in its highest tier. Compensation within this bracket is for maladministration that has had a severe long-term impact on the resident. Given the extent and duration of the landlord’s acknowledged service failures in this case, it is both reasonable and proportionate that the total amount offered by the landlord amounted to a significant sum. 

 

  1. Therefore, taking into account all the above factors and the evidence, we consider that the landlord’s offer of compensation is reasonable in the circumstances and in line with our remedies guidance. We acknowledge the resident may be disappointed with this outcome, but the Ombudsman considers the offer of £2,600 in compensation, made in its complaints process together with the work offered to the solar panel, is sufficient redress in the circumstances.

 

Complaint Handling

 

  1. The landlord’s Complaint’s policy does not give specified timeframes except where a review is requested; it is stated this will be provided within 20 working days, otherwise it will aim to resolve complains “as quickly as possible”. It is acknowledged that it took more than four months to progress the resident’s complaint through its Complaints process, which is longer than usual. However, it is noted the landlord met with the resident on 21 June 2019 following her initial complaint of 4 June 2019 to discuss the issues, as per her request.

 

  1. The landlord then issued its first response on 25 July 2019, which was within 14 days of the resident’s second letter dated 10 July 2019.  The landlord’s second complaint response dated 6 September 2019 was also provided within 14 days of the resident’s next communication dated 22 August 2019. In light of the landlord’s email to the resident dated 26 September 2019, it is noted that she was initially advised a review response would be supplied by 3 October 2019 (based on a 15-working day timeframe). The review response however was not provided by the landlord until 10 October 2019 although it is acknowledged this response was still issued within the 20-working day timeframe stated in its Complaints policy.

 

  1. Therefore, whilst the resident’s complaint was not handled very quickly, this was, in part, due to the protracted nature of the communications and because the landlord initially met in person with the resident to discuss the issues.  Given the nature and number of issues raised, the Ombudsman considers this delay to be reasonable in the circumstance. In light of this and as there was only one instance of the landlord not doing what it said it would do, the Ombudsman considers the errors were not serious enough to constitute any service failure by the landlord when handling the resident’s complaint.

 

  1. It is noted from the resident’s correspondence dated 13 November 2020 that she has contacted the landlord (since the complaints process) to follow up on the matter regarding the maintenance of another set of solar panels that serve a PRH (permanent rented housing) property. The resident complains that despite multiple requests made to the landlord for clarity on the matter of responsibility for these, the landlord has not responded to her requests. The resident’s concerns on this issue are understandable given the issues she has experienced with solar panels since the commencement of her lease. In the circumstances, it would be reasonable for the landlord to provide the resident with the clarity she is seeking surrounding this matter (which she first raised in the complaint process).

 

Fire Safety

 

  1. This is a concern raised by the resident in her complaint to the landlord dated 11 July 2019, though she also acknowledged that work was being carried out (at that time) to address Fire Safety issues within the block. In its complaint responses, the landlord confirmed that the building was not built to the correct standards or followed the original design in respect of Fire Safety. The landlord said however that the builder was now addressing this and carrying out other work to bring the building up to current building regulation standards. Whilst this is considered a reasonable response, in her letter to the Ombudsman dated 13 November 2020, the resident said multiple further surveys and inspections (since the date of the landlord’s responses) have shown that Fire Safety within building has not yet been brought up to the required standards, despite the landlord’s previous assurances given. The resident said an EWS1 form could not be issued after a survey carried out earlier this year, in May found the building does not comply with current government regulation on multiple points.

 

  1. In light of the resident’s comments, it appears that further work is required to make the building fully compliant with current Fire Safety rules and regulations. Given the serious nature of Fire Safety and as it made promises about this issue in its responses to the resident, the Ombudsman has made a recommendation below in regard to this aspect of the complaint. 

 

Determination 

 

  1. In accordance with paragraph 55(b) of the Scheme, there was a reasonable offer of redress by the landlord which, in the Ombudsman’s opinion, resolves the complaint regarding the level of compensation regarding issues to do with the property condition from the beginning of the resident’s lease.

 

  1. In accordance with paragraph 54 of the Scheme, there was a service failure by the landlord in respect of its complaints handling.

 

  1. In accordance with paragraph 54 of the Scheme, there was no maladministration with respect to the landlord’s response to the resident’s reports about fire safety issues.

 

Reasons

 

  1. The landlord unreasonably delayed with identifying and addressing latent defects with the resident’s property building despite opportunities do so over for more than five years. However, it acknowledged and apologised for this during its complaint process as well as for the disruption caused to the resident whilst it completed remedial works to rectify the issues. Its offer of work to the resident’s solar panel and £2600 in compensation made during its complaints process, is considered reasonable and proportionate to resolve the complaint satisfactorily.

 

  1. There is evidence that the landlord has failed to follow through with actions it agreed to during the complaints procedure.

 

  1. The landlord responded to the issues raised about fire safety, including confirmation that it was in the process of completing works to raise the standard of the building to meet current regulatory requirements.

 

Orders and recommendations 

Orders

 

  1. The Ombudsman orders the landlord to:
  1. Pay the resident £100 for any distress and inconvenience experienced as a result of it failing to follow up on actions promised during its complaints process.

 

  1. Provide to the resident (copying in this Service) with details of its review into a refund of historic service charges for repairs or, if it has not yet completed this, provide an update to the resident regarding the likely timeframe for this.

 

  1. The above remedies should be provided within four weeks.

 

 

Recommendations

 

  1. The Ombudsman recommends that the landlord:
  1. If it has not already done so, pay the resident £2,600 in compensation previously offered to her.

 

  1. Provide information and a timetable to the resident regarding intended Fire Safety improvements to the building.

 

  1. Provide a response to the resident in relation to her requests for clarity surrounding the issue of maintenance for a set of solar panels that serve a PRH property.