Birmingham City Council (202114280)

REPORT

COMPLAINT 202114280

Birmingham City Council

15 December 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

1. The complaint is about the landlord’s handling of:
   1. The resident’s reports of a leak into the property’s bathroom from the flat above.
   2. The associated formal complaint.

Background

2. The resident is a secure tenant of the property which forms part of a building owned by the landlord.
3. In early 2020, the resident reported a leak coming from the property above into the property’s bathroom. The landlord’s contractor on assessing the issue stated that nothing could be done until the leak had dried. A further leak occurred in August 2020. Over the next two years, the resident reported many further leaks coming from the same location.
4. The resident first complained formally to the landlord in October 2020. She said that the bathroom had been damaged by several leaks and the landlord’s contractor had offered no help. The contractor said she would have to do her own painting as it did not decorate. She received no response to her reports and had continued to contact the landlord about repeated leaks.
5. The resident complained formally again on 17 July 2021, stating that she had already complained in August 2020. Since then, on one night in July 2021, she had had to contact the landlord’s out-of-hours emergency repairs service as water was pouring into the bathroom. A contractor arrived and said the leak was coming from the upstairs flat. The contractor went upstairs but the tenant of the upstairs property refused to admit them. Four days later, a neighbourhood officer from the landlord’s estate management team attended but did not visit the upstairs tenant and took no action.
6. The landlord said, in its response to this Service provided on 10 August 2022, that it gave a stage 1 response on 10 August 2021 in which it apologised. It said it explained that the tenant upstairs had not admitted its contractors so it would have to arrange forced access which was proving difficult as it required cooperation with other agencies such as the police and mental health professionals. The resident said she did not receive it. She wrote to the landlord on 12 August 2021 saying she had still had not received a complaint response and intended to take legal action.
7. The resident informed this Service in September 2021 that she had received no response to her complaint. We contacted the landlord in October 2021and it sent the stage 1 complaint response to her in November 2021. By this time, the landlord had made a forced entry into the flat upstairs and repaired the leak, but further leaks had occurred since. The resident was unhappy with the stage 1 complaint response and asked the landlord to escalate her complaint to stage 2 of its internal complaint procedure. In December 2021, the landlord sent the resident a further complaint response which was virtually identical to the stage 1 response she received in November 2021. She requested a review but received no response thus, in February 2022, wrote to this Service to ask for assistance in requesting a stage 2 decision.
8. On 30 May 2022, the landlord sent a stage 2 response, apologising for the late response which it said was delayed by the Covid-19 outbreak. It said it had entered the upstairs flat on 30 July 2021. It said it had sent a report to its repairs service coordinator 3 days later. The repairs service had advised that it would not carry out repairs to the property but said that the resident make a claim through her own insurance. The landlord further advised her to make a compensation claim to its insurer if she felt that the damage was caused by its own action.
9. The resident contacted this Service again in June 2022 saying she was not satisfied with the landlord’s response. Her flat had still not been repaired and she had now applied to the court for an order requiring the landlord to carry out the repairs.

Assessment and findings

Scope of the investigation

10. Under paragraph 41(c) of the Housing Ombudsman Scheme, this Service cannot consider complaints which were the subject of court proceedings where judgment on the merits was given. Additionally, under paragraph 42(f) of the Scheme, this Service may not consider complaints where a complainant had the opportunity to raise the subject matter of the complaint as part of legal proceedings.
11. In this case, in June 2022, the resident successfully applied for a court order under s.82 of the Environmental Protection Act 1990 to compel the landlord to carry out repairs on her property. Before issuing the order, the court had to consider the merits of the resident’s application. For that reason, this Service cannot investigate the resident’s complaint from June 2022 onwards. However, the court’s decision did not mention any delays in repairs that had occurred up until that point. For that reason, this Service will investigate the landlord’s handling of the resident’s reports up until June 2022 and the impact on her of the issue. We have not, however, considered the actual completion of the works as this was the focus of the court decision.
12. If the resident experiences new occurrences of the same issue after the landlord has implemented a court order, she may wish to make a new formal complaint to the landlord or pursue the matter through the courts as she had done previously.

Leaks into the property’s bathroom

13. The resident’s tenancy agreement states, at paragraph 3.2, that the landlord has a duty to maintain the structure of the building.
14. The Landlord and Tenant Act 1985, as amended, says, at section 9A, that landlords have a duty to ensure that properties are fit for human habitation. Section 10 sets out a list of “hazards” which, if present, may indicate that a property is not fit for human habitation. Damp and mould are included in this list.
15. The landlord’s repairs policy sets out timeframes for the completion of repairs at its properties. Emergency repairs should be completed within 2 hours. Urgent repairs should be carried out within 1, 3 or 7 days, depending on the issue. Routine repairs should be completed within 30 days.
16. The resident first reported a leak from the flat above in March 2020. The landlord visited but the contractor did not carry out repairs saying it could not do so until the leak had dried. The resident says she contacted the landlord frequently over the next 2 years pressing for action on the bathroom. She says that, almost always, she received no response.
17. Records provided by the landlord show that the resident made at least 11 reports of leaks from the property upstairs between March 2020 and June 2021. There is no record of any action being taken to repair the bathroom. This was an inadequate response to the resident’s concerns. The landlord did not appear to have taken the reports seriously or to have considered its responsibilities under the terms of the tenancy and its repairs policy.
18. According to photographs provided by the resident there were mould bodies hanging from the ceiling in her bathroom. There were also black mould spores visible over the walls and ceilings and the paint had peeled. The landlord’s records indicate that the plaster was bowing and likely to collapse. Its records show that, in early 2022, there were repeated power outages in the resident’s property caused by the water short circuiting the electrics. The resident says this problem caused a loss of electricity in her bathroom and downstairs toilet for a year. The landlord’s records support her account of events. There is no evidence of the landlord considering the impact of this situation on the resident and offering any remedies at the time.
19. This Service accepts that the landlord was in a difficult position because the evidence indicates that the upstairs tenant had mental health difficulties and would not admit contractors to their flat. Any forced access to the upstairs property, therefore, required collaboration between various partner organisations such as the police and mental health teams.
20. Further, even after the landlord forced entry to the upstairs property, this did not solve the problem as the tenant of this property again refused access. They were later taken to a secure hospital under the Mental Health Act which allowed the landlord some freedom to repair the property, though the records show that it still found it difficult to access the property because it did not have keys.
21. Nonetheless, the landlord had a duty under the terms of the lease to carry out necessary repairs. It did not do so, and it has provided no evidence that it considered doing so. Instead, its contractor told the resident repeatedly that it would not do any repairs while the plaster was wet. The contractor told her it would not paint the walls so she would have to arrange this herself.
22. The records show that there was a lack of joined-up thinking from the landlord. It failed to consider the resident’s needs, focussing more on its own difficulties in meeting them. As a result, no action was taken to deal with her concerns. She lived with damp and mould in her bathroom, which had bowed plaster and no electricity for 2 years.
23. In the circumstances, the landlord should have given more consideration to the resident’s needs. It should have looked to repair her bathroom and, if repair was not possible, then it should, at the very least, have considered moving either the resident or the occupier of the flat above to alternative accommodation while it tried to solve the problem. This Service has seen no evidence that it did so.
24. The landlord did not offer the resident any redress other than an apology. In this case, given the length of the delay, it would have been appropriate to have offered the resident financial compensation.
25. The landlord does not currently have a compensation policy. Therefore, to decide what was a fair level of compensation, this report has considered the Ombudsman’s Remedies Guidance which suggests the level of financial compensation that should be offered in different circumstances. Factors which affect the level of compensation include the level and duration of any avoidable distress and inconvenience, the seriousness of any other unfair impact and the impact on the resident’s living arrangements.
26. In this case, the resident suffered increasing distress and inconvenience over 2 years. She had only one bathroom in the property, and this was mouldy and had no electricity. There was also damp and mould and no electricity in the downstairs toilet. In these circumstances, the Service’s guidance says that a compensation payment of more than £1000 would be appropriate.
27. The resident’s enjoyment of her property was affected by the fact that her bathroom and downstairs toilet were mouldy for a considerable period. Therefore, this Service has decided to calculate part of the compensation figure as a percentage of her rent at the relevant time. In this case, because the bathroom in particular and, to a lesser extent, the toilet, were affected by mould and a lack of electricity, the sum will be 15% of the resident’s weekly rent for the period during which this loss of amenity occurred.
28. The Ombudsman has not been provided the resident’s rent level for the relevant period. For that reason, we have had recourse to government data on rents, lettings and tenancies which is available on the GOV.UK website. The average weekly (social and affordable) rent for the resident’s area in 2021-22 was £83.50. Government guidance on calculating the average rent for a 3- bedroom property such as the resident’s is that the average figure should be multiplied by 1.1. This gives a figure of £91.85. We have treated this as the resident’s rent for calculating a suitable compensation figure.
29. The Ombudsman has decided that the period used for calculation of the sum will run from the date of the resident’s first complaint – 13 October 2020 until the date when she acquired the s.82 order – 24 June 2022. This is a period of 88 weeks and15% of £91.85 is £18.37, multiplied by 88 is £1,616.56. The Ombudsman therefore considers £1,616.56 to be a reasonable compensation period for the loss of amenity over the relevant period, given the problems the resident endured.
30. An additional sum has been included by this Service to the amenity loss calculated above. This means that the total amount in compensation for this aspect of the complaint would be £2000. This takes into account the distress caused by these problems and the time and trouble the resident was put to by the landlord’s failure to address her concerns.

Complaint handling

31. The landlord’s complaint process says it will acknowledge stage 1 complaints within 2 working days and respond to complaints at stage 1 within 15 working days. It says complainants can ask for a stage 2 review if dissatisfied with the complaint response and it will respond within 20 working days.
32. In this case, the landlord failed to comply with its own standards. The resident first complained in October 2020. There is no record of any response from the landlord to this complaint or any consideration of the complaint internally.
33. When the resident sent an updated version of her complaint to the landlord in July 2021, it investigated the complaint. However, its complaint response was inadequate. The landlord apologised but there is no statement as to whether it upheld the complaint and, if so, on what basis. There was no consideration or offer of any compensation. There was insufficient consideration of the resident’s stated concerns. Instead, the complaint response focused more on the difficulty the landlord had had in gaining access to the property above. While this was relevant information, it did not address the resident’s stated concerns which were, primarily, that she had no functioning bathroom.
34. The records show that, on receiving the complaint, the complaint handling team sent it to its contractor for comment. The contractor said it could not see why the complaint had come to it as the resident had stated that her main concerns focused on the actions of the neighbourhood officer who visited her flat in July 2021. The complaint handling team then sent the complaint to the estate management team for a response.
35. Overall, the way the landlord responded, resulted in an inadequate complaint response. The resident had concerns about the fact that the landlord had made commitments which it later broke. But her main concern was that the bathroom had grown increasingly damp and mouldy, and she wanted it repaired. The response did not address her request that this work should be done.
36. When the resident requested a stage 2 review of her complaint, she received no response. When she complained, she received a letter which repeated word-for-word in the stage 1 response. This was not a satisfactory stage 2 response. The landlord did not send a properly considered stage 2 response until May 2022. This failed to meet the landlord’s own timeframe by 6 months.
37. In the stage 2 response, the landlord again offered no recompense and again focused on its own difficulties rather than the resident’s concerns. The letter stated, without apology, that the contractor had informed it, in August 2021, that it would not carry out the repairs to the property.
38. In advising the resident to make a claim on her own insurance the landlord did not clarify whether this was with respect to damage to personal items or to the parts of the property which had been damaged by the leak. This is important as any structural damage was its own responsibility to repair and it would have been fair for it to recognise that any redecoration required to the property was due to the delays in resolving the issue.
39. Overall, throughout the complaint handling process, there were significant failures. The landlord made no response at all for almost a year and the resident did not receive a response until November 2021, more than 15 months after her initial complaint. The resident did not receive a stage 2 review response until May 2022, which was almost 2 years after the original complaint. These responses did not address her concerns or offer her compensation. For its investigations, the landlord failed to gather the information it needed to fully answer the resident’s complaint.
40. These failures were not only severe in themselves but also contributed significantly to the overall failure to deal with the resident’s concerns and to the bathroom repairs remaining uncompleted for a similar period.
41. The Ombudsman’s guidance on remedies says that, where there has been maladministration or severe maladministration which has had a significant impact at the lower end of the scale, a payment of between £600 and £1000 is appropriate. In this case, given the orders made for a compensation for the failures in the landlord’s repairs response, a payment of £800 is appropriate.
42. Since the events which led to this complaint took place, the Ombudsman has published a special report about the landlord’s operations. This report made recommendations to improve the landlord’s repair regime and complaint handling service. Because of this, this report does not make orders or recommendations which might otherwise have been made.

Determination

43. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the way the landlord responded to the resident’s reports of damp and mould at the property.
44. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to the resident’s complaints.

Orders and recommendations

Orders

45. Within 4 weeks of the date of this report, the landlord should:
    1. Write to the resident and apologise for the failures identified in this investigation.
    2. Pay the resident the total sum of £2800 in compensation comprising:
       1. £2000 for the delay to the repairs and the distress and inconvenience to the resident.
       2. £800 for its handling of the formal complaint.
    3. Provide evidence to this Service of compliance with all the above orders.