Birmingham City Council (202008000)

REPORT

COMPLAINT 202008000

Birmingham City Council

30 June 2021

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 residents reports of:
1. Mould and damp within the property and the installation of extraction fans.
2. Damage to the resident’s belongings from mould and damp.
3. Its complaints handling.
4. The effects of the mould on the resident’s physical and mental health.

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 39 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

The effects of the mould on the resident’s physical and mental health.

Part of the complaint to the Ombudsman includes a claim that the landlord is liable for damages to the complainant’s physical and mental health, for which the complainant requests compensation.
Paragraph 39 (i) of the Scheme says that: “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
The Ombudsman does not have the authority to determine liability or award damages in the way that the courts can in relation to physical and mental health. If the complainant wishes to pursue this aspect of the complaint, he should seek independent legal advice.

Background and summary of events

Background

The resident is a secure tenant of the landlord at the property, a one bedroom flat. The resident is subject to the terms and conditions contained in the tenancy agreement. The landlord is a local authority.
The landlord has provided a copy of its repair policy. This details the landlord’s statutory repair responsibilities and its general approach to undertaking repairs. It states:
1. All responsive repairs will be carried out by appointment.
2. The target completion timescale for routine repairs is within 30 days of an issue being reported. Some repairs may need special materials and arrangements to be completed. In these cases, a new timescale will be advised.
Under section 3.11 of the conditions of tenancy the landlord has ‘no responsibility to install, extend or improve existing ventilation’ at the property.
Under section 11 of the Landlord and Tenant Act 1985, the landlord is obligated to keep in good repair the structure and exterior of the premises, except where the tenant or persons living with the tenant or the tenant’s visitors have caused disrepair by failing to use the property in a reasonable manner.
The landlord has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a category one hazard and therefore the landlord is required to consider whether any mould problems in its properties amount to a hazard and require remedying.

Summary of events

This matter was previously considered by this Service and an Investigation Report was provided on 17 September 2020. It was determined that the landlord’s handling of the tenant’s reports of mould growth and damp had not completed its complaints process and therefore was outside the jurisdiction of this Service to make a decision. The issue has since come into remit of this service. The earlier investigation looked at the cause of the mould and damp, and service failure was determined in relation to the landlord’s handling of drainage issues and pooling water at the property. This Service ordered compensation and repair works to fix the cause of the damp and mould, these were completed in line with the orders. This report will not reassess those issues, but it may be raised for background and context.
On 8 January 2020, the resident made an unofficial complaint to the landlord that his property continued to suffer from damp and mould which had negatively impacted his health. The landlord acknowledged this complaint on the same day.
On 9 January 2020, the resident raised a formal complaint with the landlord regarding ongoing mould issues at the property. The resident advised the following:
1. That the mould and damp in the property had negatively impacted his health and caused damage to his bed and bed slats.
2. That the landlord attended the property and it was determined that vents would need to be installed in the bathroom and kitchen. He was advised that the works would be completed on 20 December 2019 however the contractor did not attend. A new date had not been set by the landlord.
3. The resident wanted the agreed works performed and the contractors to be held accountable for missed appointments and cancelled works.
On 9 January 2020, the landlord contacted its contractors in regard to the resident’s complaint and it was informed that the operative did attend at 12:40pm on 20 December 2019 and that the appointment was not missed, it said that follow up works were booked for 14 February 2020.
On 16 January 2020, the landlord issued the resident with a formal stage two response and said that the operative attended as per paragraph 15 above. It acknowledged that the resident disputed its attendance but assured him that a missed appointment would only need to be rebooked which was not an efficient use of time and resources.
In March 2020, the landlord’s repairs log show that appointments were scheduled to attend the property to assess the cause of the damp and mould issue.
On 27 July 2020, the resident raised issues with mould and damp at the property. The landlord Inspected the issue and it was deemed to be of ‘no significant risk’ to the resident and was being caused by condensation.
On 14 September 2020, contractors attended the resident’s property to fix a slab so that water would correctly run into a drain.
On 17 September 2020, the initial investigation report was issued by this service as per Paragraph 11 above.
On 18 September 2020, the resident contacted the landlord on advice from this Service and asked for his new complaint to be escalated to stage three of its complaints process. The resident raised that the outside drainage/flooding issue and the incomplete extractor fan installation jobs were both directly related to the mould issue at the property. The resident asked for the jobs to be completed and for financial compensation for the damage to his bed and slats and the negative impacts on his psychological and physical health.
On 18 September 2020, the resident made an updated complaint to the landlord regarding ongoing issues at the property. The resident advised the following:
1. The damp and mould had negatively impacted on his health and was ongoing since 14 January 2019. It had also caused damage to his bed and bed slats.
2. That the landlord had attended the property and it was advised that the solution was to install vents in the bathroom and kitchen. The landlord informed him that the works would be complete in December 2019 however the contractor did not attend. A new date for works had not been set by the landlord.
3. He wanted the extraction fans in the kitchen and bathroom installed as agreed and the contractors to be held accountable for missed appointments and cancelled works.
On 13 October 2020, the landlord issued the resident with its stage three final review. It confirmed that a contractor would attend the property on 15 October 2020 and that extraction fans would be installed in the kitchen and bathroom. It advised that it would not pay compensation unless there was evidence of negligence or legal liability and that he would need to complete a compensation form. It said that the resident would need to claim against his own insurance first.
On 21 November 2020, the resident contacted this service and the landlord and made a complaint that the contractors that were due to attend his property on 15 October 2020 but did not attend and he was informed that ‘the repair was cancelled in error’. He said he was contacted by contractors on 19 October 2020 about performing another damp and mould inspection rather than installing the extractor fans as agreed. He wanted the contractors held accountable and compensation for the missed appointment. The resident asked for £100 compensation for mould damage to mattress and slats and for the effects on his physical and mental health.
On 10 February 2021, the landlord wrote to this service and highlighted that there were no outstanding repairs at the property. It advised that although the final response letter makes reference to the extractor fans being installed and ‘that the resident had an appointment for these’, it had no record of this, and it did not have a responsibility to install fans as per the Conditions of Tenancy.
On 17 February 2021, the landlord wrote to the resident regarding the mould and ventilation issue and advised the following:
1. There were no outstanding repairs at the property.
2. That the resident had previously enquired about the installation of mechanical ventilators in the kitchen and bathroom. It informed the resident that as per Section 3.11 its conditions of tenancy that “We have no responsibility to install extend or improve ventilation”. It said consideration should be given to opening window when cooking or washing to prevent build up of condensation.
3. That the resident mentioned in past complaints that he was seeking compensation and a form was sent on October 2020. It said that it had not received any correspondence back and the 28-day period to claim for damage had now expired.
On 17 June 2021, this service spoke with the resident about the damp and mould issues at the property. He confirmed that the landlord had performed the required works that had been causing the underlying issue. The resident said that there continued to be ‘some mould’ in the bathroom.

Assessment and findings

Mould and damp within the property and the installation of extraction fans.

There were several repairs that were raised at the property in 2019 to address the underlying cause of the damp and mould, these were considered in the Investigation Report issued in September 2020 and will not be further assessed.
The resident first made a complaint about the issue of damp and mould on 8 January 2020 and the resident raised that the landlord agreed to install extractor fans in the kitchen and bathroom however this was not confirmed by the landlord’s evidence. The landlord had an obligation under its repairs policy to inspect and complete routine repairs within a 30-day period. The landlord inspected the problem on 14 February 2020 and unspecified works were scheduled for March 2020 in line with its repairs policy. There was a significant unavoidable delay due to the national lockdown and Covid-19 pandemic and contractors did not attend the property again until 27 July 2020 inline with government regulations.
Contractors inspected the property on 27 July 2020 and it was determined that the mould and damp issue was of ‘no significant risk’ to the resident. The landlord was entitled to rely on the professional advice of its contractor and conclude that the mould was being caused by condensation. The landlord was not obliged by the terms of the resident’s tenancy agreement or Section 11 of the Landlord and Tenant Act to take steps to remedy the condensation. However, the landlord was required to consider whether the mould amounted to a hazard as defined by the HHSRS and whether it needed to take any steps to reduce it.
The evidence indicates that the landlord may have considered its responsibilities in this regard as it agreed to install extraction fans in its stage three final response and raised works for the installation of the fans on 15 October 2020. The resident informed this Service that the contractors failed to attend the appointment, the landlord informed the resident on 17 February 2021 that “We have no responsibility to install extend or improve ventilation”. This position directly contradicts what the landlord agreed to in its final response to the resident and constitutes a significant failure on its behalf. It is unreasonable having advised the resident that it would perform the works to then not complete them, the landlord then also failed to update the resident for 3 months about the reason for not installing the extractor fans.
Overall, the landlord’s failure to complete an action agreed upon in its final response was not fair or in line with good practice or procedure. The subsequent delay in informing the resident of the decision led to further distress and inconvenience to the resident which the landlord failed to compensate for. The landlord also did not offer an apology or compensation for the missed appointment on 15 October 2020.

Damage to the resident’s belongings from mould and damp.

The resident had requested £100 compensation for the damage to his bed and slats due to mould damage. In the landlord’s final response, it provided the resident with a copy of its compensation claim form and it asked him to complete it and return it in line with its compensation policy. The landlord’s policy states that ‘we must receive your form within 28 days of the damage taking place or from the time you noticed it’. The evidence suggests that the resident failed to complete the form and it was never returned to the landlord. Accordingly, the resident’s failure to submit the form meant that the landlord was not responsible to compensate the resident for the damage to his bed and slats and it acted appropriately and in line with its compensation policy by denying the residents claim.

The landlord’s complaints handling

The landlord operates a three-stage complaints policy, the policy requires that complainants are kept updated throughout the complaints process. If the resident makes a complaint at the first stage the landlord should attempt to resolve the complaint straight away. The documentation provided shows the initial complaint by the resident was made on 8 January 2020 and responded to on the same day by the landlord. The complaint was not able to be resolved and was escalated to stage two of the landlord’s complaints process. The landlord appropriately provided a written response on 16 January 2020 within the 15 days in line with its complaints policy.
There was a delay in the complaints progression as the matter was initially considered by this service but was found to be outside this service’s jurisdiction as it had not completed the landlord complaints process. The resident asked for the complaint to be escalated to stage three of the landlord’s complaint process on 18 September 2020 and the landlord provided a written response on 13 October 2020 in line with the 20-working day period required under its complaint policy. Overall, there was no failure by the landlord in responding to the resident’s complaints.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect to the complaint about mould and damp within the property and the installation of extraction fans.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect to the complaint about the landlord’s response to the resident’s reports about:
1. Damage to the resident’s belongings from mould and damp.
2. Its complaints handling.

Reasons

The landlord’s failure to complete an action agreed upon in its final response was not fair or in line with good practice or procedure. It failed to inform the resident of the decision which led to further distress and inconvenience. The landlord did not offer an apology or compensation for withdrawing the offer or for the missed appointment on 15 October 2020.
The landlord provided the resident with a copy of the form and acted appropriately and in line with its compensation policy in denying the residents claim as he failed to submit the claim form within the specified time period.
The complaints handling by the landlord was in line with its internal policies at all stages of the complaints process. There was a delay in the escalation from stage two to three of the complaints process as both parties waited for the outcome of a previously complaint. Upon receipt of a request for escalation from the resident the landlord provided a final response.

Orders

The Ombudsman orders the landlord to pay the resident compensation of £210 in respect of the distress and inconvenience experienced by the resident in relation to its failure to install the extraction fans and for any missed appointments.
The landlord is to inspect the mould and damp at the property within 28 days and if it has not already done so reconsider the installation of the previously agreed extractor fan.
The landlord is to make this payment to the resident within four weeks and to update this service when payment has been made and any repairs complete.