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Birmingham City Council (202405899)

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REPORT

COMPLAINT 202405899

Birmingham City Council

10 January 2025


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. A leak from the flat above and the associated damp and mould.
    2. The associated complaint.

Background

  1. The resident is a secure tenant of the landlord. The property is a 3-bedroom ground floor flat. He has lived at the property since September 2008. He lives with his niece and 2 children who are both under 10 years old. He suffers with COPD.
  2. The resident has told the Ombudsman that he has reported leaks from the flat above to the landlord for around 4 years. In May 2022 he sought help from a solicitor who wrote to the landlord on his behalf. Both parties surveyed the property in July 2022 and recorded a leak coming from the flat above. The surveyors recommended treatment for mould growth and repairs to the plaster in the bathroom. Despite the recommendations, the resident continued to report leaks in the property. The records show that between 27 June 2023 and 27 February 2024, the resident reported 14 leaks into his bathroom from the flat above.
  3. The resident complained to the landlord on 26 September and 27 October 2023. The complaints referred to the time taken to resolve the leaks into the resident’s property from the flat above. The landlord acknowledged these complaints by text message on 11 October and 15 November 2023. There was no record available to the Ombudsman that the landlord responded to these complaints.
  4. On 28 February 2024 the resident complained to the landlord about the number of repairs raised. He was unhappy that the issues were unresolved. The landlord acknowledged the complaint on 6 March 2024 and said that it would provide a response within 15 working days. It sent a further letter on 22 March 2024 saying that it would be unable to provide a response within its timescales and sought an extension.
  5. The landlord issued its stage 1 response on 2 April 2024. It summarised the repair history from 11 January 2024 onwards. It said it had cancelled repairs after being unable to access the flat above. It found failures in its contractor’s actions to access the flat above. It apologised for the failures and inconvenience caused. It agreed to share its findings with its compensation assessment team to determine what, if any, compensation it should pay.
  6. The resident reported 3 further leaks in May and June 2024. On 31 July 2024 he contacted the Ombudsman. He said that rats had infested his home, damaging the downpipe which contributed to the leaks. He said the landlord repaired the pipes which he thought resolved the leaks, but it did not. We wrote to the landlord on the same day asking them to issue a stage 2 response by 5 September 2024.
  7. The landlord acknowledged the request for a stage 2 complaint on 2 August 2024. It issued its stage 2 response on 4 September 2024 which detailed the repairs from 7 September 2023 to 17 June 2024. It partially upheld the complaint for delays in conducting repairs. It did not uphold his complaint about its complaint handling. It said that it resolved the leak from the flat above on 17 June 2024. It planned to inspect the bathroom on 9 September 2024.
  8. The resident disputed the landlord’s findings at stage 2 by email on 6 September 2024. On the same day the landlord inspected the property and found the bathroom ceiling was wet in multiple areas. It was unable to access the flat above on 6 and 9 September 2024 but returned to conduct repairs on 18 and 19 September 2024.
  9. The landlord conducted a damp and mould inspection of the resident’s property on 27 September 2024. It found no evidence of damp or mould. It did record that the bathroom tiles were loose and leaks had damaged the wall. The resident disputed the landlord’s findings in October 2024 and escalated his complaint to the Ombudsman.
  10. During a call with the resident on 11 December 2024, he told the Ombudsman that the leaks were resolved by the landlord. He was unhappy with the quality of works done to repair the damage done to the bathroom after the leaks. To resolve his complaint, he wants the landlord to replace the ceiling, repair the wall, and replace the tiles.

Assessment and findings

Scope of investigation

  1. The Ombudsman has considered the resident’s reports from June 2023 onwards within this investigation. The resident said that he has been reporting leaks into the property from the flat above for around 4 years. However, there was no record that the resident raised a complaint to the landlord earlier than September 2023. In accordance with paragraph 42(c) of the Housing Ombudsman Scheme, we will only investigate matters that the resident raised as a formal complaint to the landlord within a reasonable period of the matter arising.
  2. Unlike a court, we cannot establish liability or award damages. As a result, the Ombudsman cannot determine whether the delays to complete repairs impacted the resident’s health. However, we can consider the overall distress and inconvenience that the issues in this case have caused. A determination relating to damages caused to the resident’s health and property is more appropriate for the courts. The resident may wish to pursue this in a legal setting.

Policy and procedures

  1. The landlord’s repairs and maintenance policy prescribes response times to conduct repairs dependent on the severity of the issue. It conducts emergency repairs within 2 hours, urgent repairs within 7 working days, and routine repairs within 30 days.
  2. The landlord operates a 2-stage complaints procedure. It acknowledges complaints within 2 working days. It responds to complaints at stage 1 within 15 working days and stage 2 within 20 working days.

Leak from the flat above and the associated damp and mould

  1. Sections 11 and 9A of the Landlord and Tenant Act 1985 require the landlord to keep the structure and exterior of the resident’s property in repair. It must ensure that the property remains fit for human habitation throughout the tenancy. The landlord must look at the condition of its properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding or minimising potential hazards.
  2. Damp and mould are potential category 1 hazards that fall within the scope of HHSRS. The landlord should be aware of its obligations under HHSRS. Where it has identified potential hazards, it should conduct additional monitoring of the property. In this case, the damp and mould present in the property presented an increased risk of harm to the resident as he suffers with COPD. COPD affects the resident’s breathing and places him at increased risk when exposed to damp and mould. The landlord should have considered these risks appropriately and ensured that there was additional monitoring of repairs.
  3. The landlord broadly responded to the 14 leaks reported between 27 June 2023 and 27 February 2024 within its prescribed timescales. Its records show that its contractor at least attempted visits to both the resident and the flat above within 7 working days each time. However, between these dates, the contractor was only able to access the flat above 3 times. These were on 7 September, 21 September, and 3 November 2023. On 3 November 2023 the contractor identified a problem with the taps in the flat above. It did not return to complete the related repairs until 17 June 2024, which was around 8 months later.
  4. During this period the contractor recorded 5 failed attempts to access the flat above and 4 instances of the neighbour rescheduling the appointments. Although it is evident that the contractor was seeking to access the flat above, the delay was unacceptable. The landlord should have had more oversight of these repairs and recognised the repeat appointments and failed access. Had it done so, it could have acted sooner to ensure access was available to conduct repairs. Its failure contributed to the resident’s distress and inconvenience.
  5. The landlord appropriately apologised for its service failure, and the inconvenience caused, in its stage 1 response on 2 April 2024. It acknowledged the failures to access the flat above. Its decision to refer the complaint to its compensation assessment team demonstrated its intention to put things right. However, there is no record that the landlord took further action regarding compensation. It is important that the landlord maintains the commitments set out in its complaint handling.
  6. There was no record available to the Ombudsman to show that the landlord discussed the delays with its contractor until 2 August 2024. This was around 4 months after its stage 1 response in April 2024. There is no evidence that the landlord itself made any contact with the neighbour until 9 September 2024. During this period the resident continued to report repairs and chase appointments. It is clear from his reports to the landlord that he became increasingly frustrated by the failed attempts to access the neighbour’s property.
  7. The landlord appropriately apologised for the delays in resolving the leak in its September 2024 stage 2 response. Its acknowledgment of its communication failures and decision to share these with its contractor demonstrated its attempt to learn from outcomes. Its offer to inspect the resident’s bathroom tiles on 9 September 2024 evidenced that it was seeking to put things right. However, it did not reflect on its earlier offer of compensation at stage 1. It should have considered the resident’s time and trouble and distress and inconvenience. It did not put things right in the circumstances.
  8. The resident reported a further leak into the bathroom on 6 September 2024. The landlord arranged for its contractor to attend the same day. It was unable to access the flat above, but did return and complete the repairs between 18 and 19 September 2024. The landlord responded to this report within the timescales set out in its policy and procedures. It took remedial action to resolve the leak and shared its findings with the resident. The landlord delayed the planned damp inspection of the resident’s property until 27 September 2024 because of the leak. It was reasonable to delay the further works in the circumstances to resolve the cause of water penetration into the flat.
  9. The landlord’s records show that it found no evidence of damp and mould on 27 September 2024. It did find that the bathroom tiles were loose and the leaks had damaged the wall. The resident confirmed that the landlord covered or replaced the tiles but he was concerned that it had not repaired the damaged wall. In its emails to the resident on 15 October 2024, the landlord said that all works were complete. It is unclear from the records available to the Ombudsman if the landlord completed the repairs to the wall.
  10. The Ombudsman finds maladministration by the landlord in its handling of a leak from the flat above and the associated damp and mould. The landlord conducted a damp inspection once it resolved the leak into the property. However, it failed to appropriately consider the resident’s vulnerabilities when prioritising its works. It did not maintain proper oversight of the repairs, or coordinate with its contractor when there were apparent access issues into the flat above.
  11. In deciding an appropriate level of redress, the Ombudsman has considered the overall detriment caused to the resident during the period June 2023 to September 2024. We have also considered our own guidance on remedies. We recognise the landlord acknowledged the failings and made attempts to put things right. However, it did not address the detriment to the resident and the offers it made were not proportionate to the findings of our investigation. The landlord should pay the resident £400 compensation for the distress and inconvenience caused.

Complaint handling

  1. The landlord’s policy states that it will record an expression of dissatisfaction, however made, as a complaint. It is important for the landlord to ensure that it maintains its complaint handling commitments and complies with the timeframes set out in its policy.
  2. The landlord acknowledged the resident’s complaints in September and October 2023 but did not issue any responses. Each of its acknowledgements were outside of its 2 working day timescales (11 and 13 working days respectively).
  3. The Ombudsman sent the resident’s request to escalate his complaint to the landlord on 31 July 2024. The landlord acknowledged the complaint within its timescales but issued its response on 4 September 2024. This was around 23 working days later and outside of the timescales set out in its policy and procedures.
  4. In its stage 2 response on 4 September 2024 the landlord appropriately acknowledged that the resident had complained on 6 September 2023. It said that it closed the complaint after the resident said there was no ongoing leak on 22 September 2023. However, it was inappropriate to close the complaint without issuing a response. It should have provided a stage 1 response. Additionally, the landlord did not consider the resident’s complaint on 27 October 2023. Its failure to respond to the complaint caused the resident additional time and trouble later in the timeline.
  5. The Ombudsman finds maladministration in the landlord’s complaint handling. It failed to provide a response to the complaints in September and October 2023. It is important for the landlord to maintain its complaint handling commitments. The landlord did not use its complaint handling to effectively consider the earlier reports made by the resident. It should pay the resident £100 for its complaint handling failures.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
    1. Maladministration in the landlord’s handling of a leak from the flat above and the associated damp and mould.
    2. Maladministration in the landlord’s handling of the associated complaint.

Orders

  1. Within 4 weeks of the date of this report, the landlord must:
    1. Write to the resident and apologise for the failures identified in this report.
    2. Pay the resident compensation of £500, made up of:
      1. £400 for the distress and inconvenience caused by the failings in its handling of the leak from above and associated damp and mould.
      2. £100 for its complaint handling failures.
    3. Conduct an inspection of the resident’s bathroom tiles, wall, and ceiling. It should provide a copy of the inspection report to the resident and Ombudsman within 2 weeks of the inspection. It must complete any works identified within 4 weeks of the inspection.
    4. Provide evidence of compliance with the above to the Ombudsman within the timescales set out.