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Birmingham City Council (202320507)

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REPORT

COMPLAINT 202320507

Birmingham City Council

30 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

  1. The complaint concerns the landlord’s handling of the resident’s reporting of a mice infestation to her property as well as to the wider block.
  2. This report has also considered the landlord’s complaints handling.

Jurisdiction

  1. 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.
  2. After carefully considering all the evidence the following complaint is outside of the Ombudsman’s jurisdiction.
    1. The complaint concerns the landlord’s handling of the resident’s reporting of a mice infestation to her property as well as to the wider block.
  3. Paragraph 42 (e) of the Housing Ombudsman scheme says the Ombudsman will not investigate matters which “in the Ombudsman’s opinion, concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings”.
  4. The landlord has confirmed that the resident had made an application to a Magistrates Court under Section 82 of the Environmental Protection Act 1990 on grounds that activities on site relating to the pest infestation amounted to a statutory nuisance. The landlord confirmed that, following the court application, works in respect of pest proofing the resident’s property had been proposed and these works had been completed by the landlord in October 2023. In addition the court had made an award of costs and compensation to the resident.
  5. As the resident has raised issues around the mice infestation to her home and the block in which the property is in as part of legal proceedings. Accordingly and under Paragraph 42 (e) of the scheme, this aspect of the complaint is outside of the Ombudsman’s jurisdiction to consider further.
  6. Whilst the issue of the mice infestation is one the Ombudsman cannot consider the Ombudsman can look and has done so in this report at the landlord’s complaints handling.

Background

  1. The resident is a secured tenant and has lived in the property since May 2016. The property is a two-bedroom flat situated on the first floor. The resident lives in the property with her partner and her four children.
  2. The resident emailed the landlord on 20 January 2023 in relation to concerns about mice in the property and explained that her whole family was consequently living in one bedroom. The resident added that her partner had blocked up a hole from which the mice were noted as coming into the property however she stated there could be more entry points. The resident explained that she had tried to contact the landlord using its chat service but were informed that the landlord was not dealing with mice problems at that time. Because of the pest issue, as well as the issue of overcrowding, the resident explained that she wished to be moved and for the mice to be got rid of.
  3. The landlord emailed the resident on 23 January 2023 to explain that an appointment had been booked for 31 January 2023. The resident was unhappy with this as the issue was affecting her children’s health and that the mice were entering from the toilet pipes. The resident added the issue had caused her a degree of stress and she asked for an alternative day for the appointment.
  4. The landlord attended the property on 26 January 2023. Photos were taken and the landlord’s notes stated it had discussed the options to “eradicate the mice infestation”. This involved it identifying the holes, plugging them with wire wool and plastering over them. The landlord’s notes recorded that the resident’s sofas had been harbouring mice and the resident had, with the assistance of the local neighbourhood caretaker, removed the sofas.
  5. The landlord’s repair notes show that a repair in relation to the issue of pests had been raised on 3 April 2023. This related to both the bathroom and the kitchen. The landlord’s repair logs do not show whether the landlord had attended and carried out any work at that time.
  6. The resident’s MP emailed the landlord on 15 May 2023 on behalf of the resident. It explained that the resident had been experiencing problems with mice infestation and it asked the landlord to investigate the matter.
  7. The landlord’s repair notes from 17 May 2023 show that repairs in response to Section 82 of the Environmental Protection Act had been proposed. This was in relation to “rodent proofing”.
  8. The landlord acknowledged the MP’s email on 24 May 2023. It attempted to call the resident the following day however it was unable to speak to her. The landlord’s repair logs show that a job was raised on 25 May 2023 in relation to the issue of pests in the resident’s property.
  9. The landlord issued its stage 1 response to the MP on 25 May 2023. It explained that it had not seen any repairs had been scheduled to block the holes or to prevent access. The landlord explained that it had therefore scheduled repairs for the following day (26 May 2023) The landlord’s correspondence explained that mice treatment was a chargeable service by its pest control and this could be requested from environmental health. It offered, as an alternative, the option for someone to collect mouse poison from it to treat the matter themselves.
  10. The landlord’s repair notes for 26 May 2023 noted that the landlord’s operative could not gain access to the resident’s property. It added it had tried to call the resident and had been unable to speak to them. It had instead posted a card through the resident’s letterbox.
  11. The MP emailed the landlord on 30 May 2023. It explained that the infestation was a block wide issue and explained “it is incumbent on the Council to treat the whole block and not charge residents for treating individual flats”. The MP explained that other tenants living in flats above the resident had reported mice infestation in their property and added that the resident had complained about the issue since January 2023 and the landlord had done nothing to “rectify the situation”.
  12. The landlord emailed the MP’s office on 16 June 2023. It explained that “due to the issues that have been raised I have contacted the Environmental Health Pest Control Team to arrange for this to be treated and hopefully resolved for the resident in the block”. It apologised the matter had not been resolved for the resident sooner. It noted that the MP had requested escalation to stage 2 but explained that the issue had been registered as an enquiry and not a complaint. As a result it was unable to escalate the matter.
  13. The landlord’s internal correspondence on 16 June 2023 asked if there had been any reports of mice from other residents in the block. The response received on 21 June 2023 explained that the property had been treated under Section 82 and that multiple visits would be needed to resolve the matter.
  14. The MP emailed the landlord on 10 July 2023 to chase up the request for escalation to stage 2 of the landlord’s complaints process. A further email was sent on 8 August 2023 chasing up the matter. As no response was received the resident’s representative contacted the Ombudsman in relation to the matter.
  15. The Ombudsman wrote to the landlord on 19 September 2023 asking that it issued the stage 2 response by 26 September 2023.
  16. The landlord’s repair notes show that a job was raised on 26 September 2023 in relation to mice and concerned blocking holes in the kitchen to prevent future access.
  17. The landlord issued the stage 2 response directly to the resident and not to her representative on 26 September 2023. It offered £50 in terms of service failure and £75 for distress and inconvenience due to the resident’s restricted use of the property. It explained:
    1. It had at stage 1 offered an appointment to the resident on 26 May 2023 however when its operatives had attended they were unable to gain access. The operative had left a calling card and, since the resident had not responded within three days, the job had been cancelled on 31 May 2023. A new appointment had now been raised for 29 September 2023.
    2. A baiting programme had also been started inside the property since 17 May 2023 following a Section 82 claim made by the resident’s solicitor. This had noted that, whilst initially bait had been consumed and rodents were removed, there had been nothing noted since 16 June 2023.
    3. A follow up Section 82 works appointment for a contractor to attend was scheduled for 2 October 2023. It added that it would remove dead rodents as the resident had complained about bad smells and it would clear “debris and droppings and clean the kitchen and bedrooms”. It would also seal gaps.
    4. In terms of the resident’s assertion of rodents in communal areas, pest control had not seen any evidence of this. However it would arrange for a specialist subcontractor should it find evidence of rodents in the communal areas.
    5. That it understood a further settlement would be negotiated with the resident’s solicitor.
  18. The resident emailed the landlord on 27 September 2023. She stated:
    1. She had no recollection of anyone attending on 26 May 2023 nor of receiving any calling card.
    2. Other resident had issues with mice and she had pictures to show this.
    3. Her whole family had been sleeping in one room due to the issue and her children had been scared.
    4. She would speak to her solicitor to seek advice.
    5. Whilst she had been experiencing the issue since January 2023, action had only occurred following the resident involving her solicitor in respect of the matter.
    6. They had lost their sofas since the rodents had made their home in them. The resident also explained they did not have a viable kitchen to use at the time.
  19. The landlord emailed the resident on 28 September 2023 and it sent the resident a claim form for her disposed of personal belongings. It asked the resident to return the form as soon as possible.
  20. The resident emailed the landlord on 1 October 2023. She explained that someone had attended on 29 September 2023 and had blocked a hole in the kitchen. The resident explained that whilst some holes had been blocked there were other possible entry points and holes in the property. She attached a picture showing dead mice in the skirting board in the bathroom. The resident also mentioned the issue of overcrowding.

Assessment and findings

Scope of investigation

  1. Since making her complaint the resident has continued to contact the landlord in relation to several different issues. These include the issue of repairs to other parts of the property, the issue of overcrowding and a request to be moved, and in conjunction with the landlord seeking possession of the property because of rent arrears. The Ombudsman is unable to investigate matters for which the resident has yet to complete the landlord’s internal complaints process. Therefore these issues are outside the scope of this investigation.

The landlord’s complaints handling

  1. The landlord’s complaints policy sets out that a complaint is “an expression of dissatisfaction. It can be about the standard of a service provided, or actions the council have or have not taken, which affect someone using council services or those services provided on behalf of the council”. The policy explained that the complaints process comprised two stages and that, following the stage 1 response, if a resident remained unhappy they were able to review it and this would be a stage 2 complaint. The landlord would provide its response within 20 working days of receiving the stage 2 complaint.
  2. The resident’s representative had emailed the landlord on 30 May 2023 requesting that the complaint was escalated to stage 2 but was informed that the landlord could not do this as the matter had been “registered as an enquiry and not a complaint on our system”. This was not an appropriate response from the landlord. It had previously stated at the end of its stage 1 response “the above response completes stage 1 of the Council’s complaints process. However, if you are unhappy with the way we have dealt with her complaint, you can ask us to review it (stage 2) by contacting us”.  The landlord had not suggested in this initial response that it had been treating the matter as an enquiry and not a formal complaint.
  3. The landlord’s email of 16 June 2023 also explained to the resident’s representative that it would provide an update to it by 22 June 2023. This Service has not been provided with any evidence that the landlord provided any update at that time or that it had indeed responded to the further requests made by the representative on 10 July 2023 and 8 September 2023 to escalate the complaint. Instead it had only replied to the resident’s representative on 27 September 2023, which was around four months after the initial request for escalation. This had followed it being contacted by this Service about the matter. This was a failing by the landlord.
  4. The landlord in the stage 2 response did apologise for the delay in not escalating the complaint. It also made an offer of £50 for its service failure. However the amount offered was not adequate to recognise its failings in this case. The landlord did not follow its own complaints policy and its stage 2 response was provided considerably outside the 20 working days timescale as set out in the policy. Whilst the landlord’s stage 1 response had clearly set out that the resident could request an escalation, it had failed to accept this when requested, instead stating the matter had not been treated as a complaint. The landlord also failed to respond to several chaser emails from the resident’s representative. The impact of the delay on the resident was that it increased the distress and inconvenience experienced by her and ultimately delayed the time taken for the landlord to attend to the property and address the matter.

Determination (decision)

  1. In accordance with paragraph 42 (e) of the Housing Ombudsman Scheme, the complaint about the landlord’s handing of the mice infestation in the property and the block is outside the Ombudsman’s jurisdiction.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaints handling.

Orders

  1. Within the next four weeks the Ombudsman orders the landlord to:
    1. Arrange for a member of the landlord’s staff to apologise to the resident for the failings in how it dealt with the resident’s complaint, as identified in this report.
    2. Pay the resident an amount of £200, which replaces the £50 offered at stage 2 in relation to the issue of complaints handling.

Recommendation

  1. The landlord should undertake a review for its process in dealing with MP queries to ensure that it follows the correct approach in relation to complaints rather than enquiries made on behalf of residents.