Birmingham City Council (202224840)

REPORT

COMPLAINT 202224840

Birmingham City Council

28 May 2024

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 response to the resident’s reports of:
1. Repairs to the porch of the property resulting in water ingress.
2. Broken floorboards and floor joists in the living room.
3. Damp and mould.
This report also considers the landlord’s complaint handling and record keeping.

Background

The resident has lived alone in the property, a 2-bedroom end-terrace house, since 25 April 2022. He is a secure tenant of the landlord which is a local authority.
The landlord has acknowledged that the resident has disclosed several disabilities and health conditions. He is registered blind, has hearing loss, and is wheelchair dependant due to paralysis of one side of his body.
On 4 May 2022 the resident reported water ingress from under the front door. The landlord raised a repair for a “rotten” fascia board on 17 June 2022.
On 9 May 2022 the resident reported that an area of the flooring in the living room had “dipped”. The repair log stated that he had fitted laminate flooring in the living room. The landlord raised a repair on the same day.
The resident made a stage 1 complaint (Complaint 1) on 3 November 2022. He said:
1. The porch roof had leaked since he had moved into the property.
2. When it rained it caused a puddle inside the property.
3. The landlord had arranged to carry out a repair to the leaking roof on 13 October 2022 between 8am and 1pm.
4. The contractor had attended after 2pm.
5. He had rearranged the appointment for 3 November 2022 but no one had attended.
6. He had called the landlord who said the repair had been cancelled due to no access on 13 October 2022 and had been closed.
7. The flooring was also “unacceptable”.
8. The landlord had previously suggested that he had caused damage to the property. It had since acknowledged that, due to his disability, he could not have caused the damage.
The landlord provided its stage 1 response to Complaint 1 on 11 November 2022. It said:
1. Its contractor attended the property on 13 October 2022 and spoke to the resident via his video doorbell as he was not home.
2. The contractor said it had advised the resident the appointment would be closed due to “no access” and that he should rebook within 3 working days.
3. As he had not booked an appointment the repair was automatically cancelled.
4. The resident would need to ring and raise a new repair.
5. The contractor had no information in relation to a suggestion that the resident may have been responsible for the damage. It apologised however it its operatives had “falsely accused” the resident of damaging the property.
The resident replied to the landlord on the same day and said that he had gone out because the contractor had not attended at the appointed time. He said he had spoken to the contractor and booked a further appointment for 3 November 2022 so the repair should not have been cancelled. The landlord recorded this as the resident’s request to escalate the complaint to stage 2 of the complaint process. It acknowledged the stage 2 complaint on 14 November 2022.
The landlord provided its stage 2 response to Complaint 1 on 11 January 2023. It said the cancellation of the repair to the leaking porch roof was a “system error”. It appreciated this was not a satisfactory explanation but given the volume of repairs the landlord dealt with “these things [could] happen”. It apologised for the inconvenience and said it had raised the repair again and this was completed on 21 December 2022.
On 19 January 2023 the resident made a new complaint (Complaint 2). He said the floor in the living room dipped and had done so since he had moved into the property. He said the landlord’s contractor had told him he should not have had laminate flooring installed but he needed the flooring and did not realise it was dipped until after the laminate was installed. The resident said he was not willing to sign a disclaimer regarding the flooring as he felt the landlord should have completed the floor repair before he moved into the property.
The landlord wrote to the resident on 6 February 2023 regarding Complaint 1. It said a repair had been raised in relation to the roof of the property and its contractor would make an appointment with the resident and arrange the scaffolding. It confirmed that once the roofing repair was complete an inspection would be carried out to determine what remedial repairs were required to the inside of the property. The landlord advised that if the resident remained unhappy, he could refer his complaint to this Service.
The landlord provided its stage 1 response to Complaint 2 on 26 April 2023. It said that no work had been carried out to the floor as the resident had refused to sign a disclaimer.

Assessment and findings

Scope of the investigation

The resident raised the issue of the flooring in Complaint 1 but the landlord failed to address the issue in its stage 1 response. As the resident’s concerns went unaddressed, he raised the issue again in Complaint 2. The landlord logged this as a stage 1 complaint. Although the resident did not escalate this element of the complaint when escalating the Complaint 2, it is clear that he remains dissatisfied with the landlord’s response to his concerns. This Service considers that the landlord had reasonable opportunity to respond to the resident’s complaint, but failed to do so. Therefore, this Service considers that the complaint has reasonably exhausted the landlord’s internal complaints procedure and the issue will be considered within this report.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 (a) of the Housing Ombudsman Scheme, the following complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s reports of damp and mould.
Paragraph 42 (a) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
In correspondence to this Service, the resident has raised concerns about damp and mould within the property. While the serious nature of the resident’s concerns are acknowledged, the evidence does not suggest that this has been raised as a formal complaint with the landlord.
This investigation has therefore not considered the resident’s reports relating to damp and mould as the landlord has not been given the opportunity to consider the issue within its internal complaints process.
If the resident remains unhappy with the landlord’s handling of this issue he may raise his concerns as a formal complaint now. If he remains dissatisfied after the landlord has exhausted its complaint process, he may then escalate these issues to the Ombudsman.

Response to the resident’s reports regarding a leak to the porch of the property resulting in water ingress

The landlord’s repairs policy states it aims to respond to:
1. Emergency repairs where there is a danger of injury or damage to the property within 2 hours.
2. Urgent repairs which impact the health and safety of the tenant or security of the property within 1 to 7 working days.
3. Routine repairs within 30 days.
The landlord’s policy states all responsive repairs will be carried out by appointment and that its operatives must keep any appointments made.
The resident first reported water ingress through the front door approximately 1 week after he moved into the property.
The resident reported the leak on 4 further occasions between May 2022 and August 2022. On each occasion the landlord raised a repair which its records state was “completed” but it is unclear from the evidence provided by the landlord what the repair work involved.
The landlord’s contractor attended the property on 13 October 2022 but the resident was not home. It spoke to the resident via his video doorbell and told him the appointment would be closed due to “no access”. The resident booked a further appointment for 3 November 2022 but the contractor did not attend as the repair job had been automatically closed on its system. The resident raised Complaint 1 on 3 November 2022.
The landlord’s contractor failed to attend the property within the appointment time provided to the resident. This was a failure to adhere to the landlord’s repair policy. The resident then booked a further appointment which was cancelled automatically but he was not advised of this. This was therefore a further missed appointment and a further failure to adhere to the repairs policy.
On 18 November 2022 the resident emailed the landlord and reported that he continued to experience water ingress. He said that several official documents had been damaged by the water and attached photographs showing certificates drying on a radiator and a puddle on the floor inside the front door.
The landlord raised a new repair for the leaking porch roof on 7 December 2022 and an appointment was arranged for 21 December 2022 between 8am and 10am. It is not clear from the evidence available whether the contractor attended and whether any repairs were completed.
The landlord raised a repair on 6 January 2023 for the “main roof”. The landlord attended on 9 February 2023 and its notes state that there was no issue with the main roof or porch roof.
On 23 March 2023 the landlord raised a further repair to the roof. A plumber attended on the same day and the resident said this was not necessary as he had reported that the water was coming from the porch enclosure, not pipework. The contractor’s note stated that no works had been raised for a leak to the porch.
The records of 26 April 2023 state that the water ingress coming from “under the bottom of the damaged threshold”.
The landlord has stated in response to an evidence request from this Service that there are outstanding works to address the leaking porch with a target date of June 2024.
This Service has found the landlord’s repair records to be unclear. It has referred within its records to the porch roof, fascia, and main roof. It is clear from our investigations that often the repairs have been described and recorded incorrectly leading to wasted repairs visits.
Clear record keeping is a core function of a repairs service and assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the condition of the property, enable outstanding repairs to be monitored and managed, and enable the landlord to provide accurate information to residents and to this Service.
The evidence provided by the landlord in this case does not clearly demonstrate what repairs it carried out to resolve the water ingress from the porch. This is a failing.
In January 2023 the Ombudsman published a special report into the landlord. The report highlighted weaknesses in its record keeping which were the cause of repeated failures in service. The report recommended that the landlord develop a framework and an action plan to ensure better external and cross-departmental communications. The landlord’s engagement with this recommendation is being monitored by this Service.
The landlord’s record keeping practices were also highlighted in a previous case (202222264) and the landlord was issued a wider order under paragraph 54 (f) of the Scheme to carry out a self-assessment against the recommendations within the Ombudsman’s Spotlight Report on knowledge and information management. As the landlord has recently complied with this order, the order will not be made again but this Service continues to monitor cases involving the landlord to ensure it has made the required improvements.
Overall, the landlord has failed to evidence that it has carried out repairs to the leak reported by the resident within a reasonable timeframe leaving the resident to experience water ingress for a period of more than 2 years. The landlord’s repair records have been unclear and this Service has had to seek clarification from the landlord. This raises concerns regarding its knowledge and information management. Therefore there was maladministration in the landlord’s response to the resident’s reports of water ingress.

The landlord’s response to the resident’s reports about broken floorboards and floor joists in the living room.

The landlord is obliged under Section 11 of the Landlord and Tenant Act 1985 to keep in good repair the structure of the property. This covers the floor structures including joists and floorboards.
The landlord’s repairs policy and tenant handbook do not refer to the resident’s obligation to lift floor coverings prior to repairs. However, as the laminate flooring was purchased by the resident, this was his property. This Service reasonably considers that the flooring belonged to him and was therefore his responsibility to maintain.
On 16 December 2022 the landlord raised a repair for the floor joists and floorboards in the living room. It is unclear whether this was prompted by a report from the resident.
The landlord’s contractor stated that the joists had “gone” in the living room and this was causing the floor to “bounce”. The contractor noted that the resident was disabled and so could not remove the laminate himself. He had, however, refused to sign a disclaimer agreeing for the contractor to lift it as he said the repairs should have been completed before he moved into the property.
It would not generally be considered unreasonable that the landlord asked the resident to lift floor coverings prior to repairs. In this case however the landlord was aware that the resident was disabled and unable to complete the works himself. It was therefore reasonable for it to offer some assistance and suggest that its contractor could lift the flooring.
The resident refused to sign the disclaimer which would have permitted the contractor to lift the laminate as he said the landlord should have completed the repair before he moved into the property. The resident’s position on this is noted. This Service considers, however, that as the resident did not notice that the flooring was dipped until after the laminate flooring was installed, there is no evidence to suggest that the landlord should reasonably have identified the issue prior to being notified of it by the resident.
This Service has seen no evidence that the landlord made attempts after this time to come to an agreement with the resident which would allow it to complete repairs to the floor joists which were its responsibility.
This Service notes that the landlord is aware that the resident is reliant on the use of a wheelchair due to his mobility issues. It should therefore have reasonably considered that lifting the laminate would impact on his ability to move around the living room if the floor covering was not re-installed promptly after the repair.
As a minimum the Ombudsman would expect the landlord to have attempted to carry out an assessment to ascertain whether the resident’s disability requirements were being adequately met in the property. This would have reasonably helped to establish whether he was able to move around the property.
Overall, in light of the resident’s restricted mobility the landlord should reasonably have arranged to lift the flooring and have it professionally re-laid after the floor joists were repaired. It is accepted that the resident’s refusal to sign a disclaimer has delayed the completion of repairs to the flooring, this Service has seen no evidence that the landlord tried to come to an agreement which would allow it to carry out the repair. Nor did it demonstrate that it had considered the impact on the resident’s mobility. Therefore there was maladministration in relation to the landlord’s response to the resident’s reports about broken floorboards and floor joists in the living room.

The landlord’s complaint handling

The landlord operates a 2-stage complaints process. It aims to respond to stage 1 complaints within 15 working days and to stage 2 complaints within 20 working days.
The Service has recently published a new version of our Complaint Handling Code (the Code). Which came into effective on 1 April 2024. We have assessed the landlord’s complaint handling against the Code 2022, given that it was in place at the time of the resident’s complaint. The timescales for responding to complaints are the same in both versions of the Code. However, reference has been made to the Code 2024, where relevant. It is noted that the timeframes outlined in the landlord’s complaint policy do not comply with the requirements of the Code 2024 which state landlords will respond to stage 1 complaints within 10 working days. The landlord will be expected to review this as part of its self-assessment against the Code 2024.
The Service acknowledges the landlord is a local authority and therefore has non-landlord functions. However it does not follow that this absolves it of its responsibility to resolve complaints regarding its landlord function within the timeframes outlined within the Code. The Service holds all member landlords to the same standard, and therefore local authorities should handle complaints about its landlord function by reference to the Code.
The landlord responded to Complaint 1 on 11 November 2022 which is within the timeframe outlined in the Code. The response consisted of a short email which did not contain the components identified by the Code as essential elements in a complaint response:
1. what stage the complaint had been considered at (eg stage one or two).
2. the details of the complaint.
3. the outcome of the complaint and the reasons for the outcome
4. details of any remedy to put things right
5. details of outstanding actions.
The landlord did not outline its understanding of the complaint. If it had done so it may have noticed that its investigation and response had failed to address all of the resident’s concerns. His initial complaint had mentioned that the flooring in the property was “unacceptable” but the landlord’s response failed to make any mention of this.
The stage 1 response to Complaint 1 did not acknowledge that, while the resident had not been home at the time the contractor attended, this was because the contractor attended outside of the appointed time. It also incorrectly stated that the resident had not booked a new appointment, he had done so but this was cancelled automatically by the system.
The purpose of the complaints process is to ascertain what occurred, whether there had been any failings, and offer redress. The landlord’s response failed to do this and this was a complaint handling failure.
The resident replied to the landlord’s stage 1 response to Complaint 1 and pointed out that he had gone out because the contractor was late. He added he had booked a further appointment for 3 November 2022. The landlord correctly recorded this as the resident’s escalation to stage 2 of the complaint process.
The landlord emailed the resident on 28 November 2022 in response to his email reporting damage to official certificates. It stated that if the resident wished to claim compensation for the damage, he would need to make a claim on its insurance. It attached a claim form. This Service considers that this was reasonable as this would have avoided the resident having to pay an excess or increasing the cost of his future premiums.
The landlord extended its complaint timeframe for stage 2 and stated that the delay was due to “the volume of complaints received…and staff absences”. The landlord failed to provide the resident with a timeframe for this extension stating only that it would provide a response “as a matter of urgency”. That it did not provide a timeframe and thereby manage the resident’s expectations was a failing.
The landlord provided its stage 2 response to Complaint 1 on 11 January 2023. This was 40 working days after the complaint was escalated which is unreasonable and not in accordance with the timeframe in the Code or the landlord’s own policy.
The landlord acknowledged that a “system error” had led to the repair being cancelled and that while it appreciated this was not satisfactory explanation, “these things [could] happen”. The language used by the landlord here was insensitive and gave the impression that the delays experienced by the resident were not serious. This was a failing.
While the landlord acknowledged failings in its handling of the resident’s reports of leaks from the porch, it failed to offer any redress beyond an apology. This was a further failing.
It took the landlord 68 working days to respond to the resident’s stage 1 complaint regarding Complaint 2. This far exceeds the timeframe outlined in the Code and was an undue delay. The response consisted of an extremely short email which simply stated that the floorboards and joists had not been repaired as the resident had refused to sign a disclaimer. As was the case with its response to Complaint 1, this failed to contain the components identified by the Code as essential elements in a complaint response. This was a serious failing.
The landlord failed to consider within its investigation into Complaint 2 that the resident was disabled and therefore the laminate may have been essential for allowing him to move around the property safely. It failed to attempt to come to any agreement with the resident which would have allowed the work to be completed.
The landlord’s guidance in relation to compensation claims states that it will not pay compensation for distress or inconvenience. This is not in line with the Code or the Ombudsman’s Remedies Guidance. Where a landlord is unable to restore the original position of the resident this Service would expect the landlord to consider financial redress. This would include compensation for distress, inconvenience, time, and trouble.
The special report referred to earlier in this report found that the landlord’s complaints policy did not allow for compensation to be paid for distress, inconvenience, time and trouble. It also said it could not make payments where the landlord decided there was no liability. This is incorrect.
The special report recommended that the landlord establish a new compensation policy so that a resident does not have to pursue a separate compensation claim. It is accepted that this recommendation was made around the time of the resident’s complaint and the landlord therefore had not made any changes to its policy at that time. It is noted however that the landlord’s website indicates that the problematic compensation policy is still in place.
This Service does not consider that the landlord offered reasonable and proportionate redress to the resident and therefore orders have been made for compensation.
The resident has paid approximately £412 per month (taking account some annual incremental increases) in rental payments during the period of the landlord’s maladministration, which the Ombudsman reasonably considers to have started in May 2022. The Ombudsman considers that, in the circumstances, it is appropriate for the landlord to pay compensation in recognition of the amount of time that the resident’s enjoyment of the property has been affected by outstanding repairs (24 months). Considering the rent paid by the resident over the period, the Ombudsman considers it appropriate for the landlord to pay £988 compensation. This figure has been calculated as approximately 5% of the total rent during the period in question. The Ombudsman acknowledges that this is not a precise calculation but considers this to a be a fair and reasonable amount of compensation taking all the circumstances into account.
The Ombudsman’s Dispute Resolution Principles state that the primary purpose of the complaints process is to “put things right”. Given that the resident remains unhappy with the quality of the remedial repairs completed and that sufficient financial redress was not offered, this Service does not consider that the landlord’s complaint handling effectively fulfilled this purpose.
The landlord’s complaint responses were slow, did not contain essential elements as outlined in the Code, offer proportionate redress or effect a timely resolution to the issues reported by the resident. Therefore there was maladministration in its complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in the landlord’s response to the resident’s reports regarding a leak to the porch of the property resulting in water ingress.
2. Maladministration in the landlord’s response to the resident’s reports about broken floorboards and floor joists in the living room.
3. Maladministration in the landlord’s complaint handling.
4. Maladministration in the landlord’s record keeping.
In accordance with paragraph 42(a) of the Housing Ombudsman Scheme the following complaints are not within the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s reports of damp and mould.

Orders and recommendations

Orders

Within 4 weeks of the date of this report a senior officer of the landlord at director level or above to apologise to the resident in line with the Ombudsman’s Remedies Guidance.
Within 4 weeks of the date of this report the landlord to pay the resident compensation of £1,094 which comprises:
1. £494 for reduced use and occupation of the property due to the landlord’s response to the resident’s reports regarding a leak to the porch of the property resulting in water ingress
2. £300 for time and trouble, distress and inconvenience in the landlord’s response to the resident’s reports about broken floorboards and floor joists in the living room
3. £300 for time and trouble due to the landlord’s complaint handling.
Within 6 weeks of the date of this report the landlord to arrange a mutually suitable appointment to carry out a repair survey at the property. The landlord should:
1. Prepare a full list of all outstanding repairs at the property.
2. Draft an action plan and provide the resident with timescales for the completion of all repairs.
3. Ensure that appointments are agreed with the resident for each repair.
Within 8 weeks of the date of this report the landlord to contact the resident and arrange for its contractor or a specialist flooring contractor to lift and relay the laminate at no cost to the resident so that repairs can be completed to the floor joists.

Recommendations

The landlord to review its compensation policy so that residents do not have to pursue a separate compensation claim as recommended in the special investigation report into the landlord. The landlord should advice this Service of its intentions in relation to this recommendation within 4 weeks of the date of this report.