Birmingham City Council (202016076)

REPORT

COMPLAINT 202016076

Birmingham City Council

16 February 2022

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:
1. The landlord’s response to the resident’s reports of damp and mould at the property.
2. The landlord’s response to the resident’s request for compensation for items damaged by mould.
3. The Ombudsman has also considered the landlord’s record keeping.

Background and summary of events

The resident is a secure tenant of a property owned and managed by the landlord which is a local authority. The property is a ground floor flat.
The conditions of tenancy say that the landlord will keep in repair the structure and exterior of the property.
The conditions of tenancy also says that the landlord is not responsible for condensation or the effects of condensation, unless it arises from a breach of its repairing responsibilities. The resident must take reasonable steps to avoid moisture building up (condensation) within the property and causing damage. Reasonable steps include preventing damage to woodwork and plasterwork by regularly wiping down and drying any surfaces and windows where moisture settles. If mould growth develops, the resident must clean it off using a fungicidal solution.
In the conditions of tenancy the landlord advises residents to insure the contents of their home.
The landlord’s repairs policy says that repair workers must keep any appointments made and that routine repairs are targeted to be completed within 30 days of them being reported. Some larger repairs that may need special materials and arrangements to be completed. In these cases, the tenant shall be advised what timescale to expect
The landlord’s compensation claims policy allows for compensation to be paid where the landlord considers it has a legal liability. The policy does not allow payments that are that are ‘discretionary’ or ‘good will’ or payments for Inconvenience or distress.
The landlord’s compensation claims policy is a self contained process with its own appeal and re-appeal stages which, once completed, concludes an applicant’s opportunity to pursue compensation.
Paragraph 5.9 of the Ombudsman’s Complaint Handling Code says, “In awarding compensation, landlords shall consider whether any statutory payments are due, if any quantifiable losses have been incurred as well as the time and trouble a resident has been put to as well as any distress and inconvenience caused.”
On 3 November 2020 the resident reported damp and mould growth on the wall of the living room at the property to the landlord. The landlord attended the property on 10 December 2020 and treated the mould
On 16 December 2020 the resident contacted the landlord to report damp and mould growth on the bedroom wall at the property.
On 17 December 2020 the resident made a complaint to the landlord about its response to his reports of damp and mould at the property. The landlord responded to the complaint saying that it had addressed the damp and mould reported on 3 November 2020 within its target date for repairs. The landlord also said that the other report of damp and mould had only just been made so it was still within time to address it. The landlord enclosed a compensation claim form for the resident to claim for his items damaged by the mould and said that the resident should first refer a claim to his own insurance company.
The resident asked for the complaint to be reviewed as whilst the landlord had treated the damp no cause had been noted or investigated.
The landlord attended the property on 4 January 2021 and informed the resident that the following work needed to be carried out:
1. Bricks on the building needed repointing.
2. Some air bricks/vents needed blocking in as they were plastered on the inside which meant water was coming through into the property.
On 5 January 2021 the resident sent the landlord a compensation claim which was received by the landlord on 13 January 2021. The compensation claim was for £313 for damage to his belongings caused by the damp and mould.
On 13 January 2021 the landlord wrote to the resident declining his compensation claim as there was no evidence of negligence by the landlord and therefore no legal liability.
On 19 January 2021 the resident telephoned the landlord and asked to appeal the compensation claim rejection and for his complaint to be reviewed. The resident said that following the landlord’s visit on 10 December 2020 he had moved further furniture and realised there was more mould, some of which was growing behind wallpaper.
On 20 January 2021 the landlord wrote to the resident rejecting his appeal concerning his compensation claim. The landlord said that its reasons for rejecting the compensation claim had been set out in its earlier letter and added that mould did not grow overnight, and it was the resident’s responsibility to control the moisture level in the property that leads to mould growth.
On 20 January 2021 the landlord sent the resident a letter saying that it had reviewed his complaint and was not upholding it. In the letter the landlord said that its contractor had advised it that its area supervisor had visited the property to establish the cause of the ongoing problems the resident was experiencing and as a result an appointment had been arranged for 22 January 2021. The landlord said that “Operatives will attend to undertake work to the external brickwork and replace the airbricks that have been covered up on the inside. Once the internal areas affected by damp and mould have been given a chance to dry out, you will be contacted by [the contractor’s] planner to arrange a further appointment for these to be treated.”.
On 22 January 2021 the resident says that he received a voicemail message from the landlord saying that more urgent repairs had arisen, and it wouldn’t be carrying out the external work at the property that day. The works were rescheduled for 9 February 2021.
On 9 February 2021 the resident says that the landlord telephoned him saying that the engineer had Covid 19 and would carry out the works on 8 March 2021.
On 8 March 2021 the resident says that he telephoned the landlord to check it was still coming to carry out the works that day. The landlord informed him that the appointment had been changed to 13 April 2021.
On 8 March 2021 the resident made a further complaint to the landlord that whenever it rained water was coming into the property through the bricks that needed pointing and the air vents that had been plastered over. He said that there was large damp patch in the bedroom at the property and the appointment to carry out the works had been cancelled a number of times.
On 9 March 2021, in response to the landlord’s request for comments on the resident’s complaints, the landlord’s contractor informed the landlord that “the bricklayer for this area has been off sick and is due back in the business hopefully 15/03/21, it is very difficult to book in work and work has to be prioritised accordingly, this has been booked in for 13/04/21 (AM) and this is the earliest appointment … if any jobs go down in the meantime the planner will try and bring forward but we cannot guarantee a slot will become available at this stage, please pass on apologies regarding this matter.”
On 9 March 2021 the landlord sent the resident its response to his complaint. The landlord repeated the contractor’s comments set out in the previous paragraph and passed on the contractor’s apology. The landlord’s internal records listed the complaint outcome as “Partly justified.”
On 9 March 2021 the resident submitted a request to the landlord to review his complaint and sent the landlord numerous photographs showing the damp and mould.
On 15 March 2021 the landlord sent the resident its review response. In its response the landlord repeated the contents of its complaint response dated 9 March 2021. The landlord also attached a compensation form and said that compensation was only payable if there was evidence of negligence, or legal liability is accepted and that if the resident was insured, he should first refer his claim to his own insurance company.
The landlord’s letter dated 15 March 2021 was its final response to the complaint confirming that the resident’s complaint had exhausted its internal complaints process.
The landlord attended the property on 21 April 2021 and 2 June 2021 and treated further damp and mould. The landlord’s records indicate that damp inspections were carried out at the property on 2 June 2021 and 7 June 2021.
During the course of this investigation the resident has informed this Service that further damp has developed in the property and the landlord is due to attend the property on 14 February 2022.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s reports of damp and mould at the property

It is noted that at all times the contractor was acting on behalf of the landlord in its dealings with the resident.
In its response to the complaint the landlord passed on its contractor’s apology that staff illness had meant it had not carried out the works at the property and confirmed that the first available appointment was 13 April 2021. The landlord recorded the complaint as being “partly justified”.
When there are failings by a landlord, as is the case here, the Ombudsman’s will consider whether the redress offered by the landlord (an apology) put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The resident first reported the mould on 3 November 2020 and the landlord identified that the works to the property were required on 4 January 2021 and said in its complaint response that it would carry out the work on 13 April 2021. This was 161 days after the resident had first reported the mould,97 days after the works had been identified and 131 days longer that the 30 days target set out in the landlord’s repair policy for routine repairs. The delay in carrying out the work was therefore significant, and an apology did not put this right.
A landlord should offer financial compensation in recognition of maladministration, which can include delays in completing repairs or failure to keep appointments. As set out in paragraph 9 above the Ombudsman’s Complaint Handling Code says that in awarding compensation a landlord shall consider the time and trouble a resident has been put to as well as any distress and inconvenience caused. The landlord’s compensation policy is therefore in breach of the Ombudsman’s Complaints Handling Code in specifically not allowing payments for inconvenience or distress to be made. The landlord also acted unreasonably in not making a payment to the resident to compensate him for the time and trouble and distress and inconvenience he experienced as a result of the landlord’s delays in carrying out the works to the property and the missed appointments.
The landlord has also provided no evidence that it has learnt from the outcome of the complaint by detailing what improvements it would be making to its service in the future.
The Ombudsman has not seen copies of the following that it requested from the landlord as part of this investigation:
1. Any records concerning the Landlord’s investigation into the resident’s reports.
2. Copies of any survey or inspection reports, or feedback from other employees or contractor.
3. Copies of any correspondence or notices sent to the resident concerning the landlord’s findings.
4. Information related to the repair(s) such as, repair logs, records of dates property attended, an explanation of works completed at each visit, details of any outstanding issues identified. Whilst the landlord has provided some repair log details there is no evidence of when the works scheduled to be carried out on 13 April 2021 were completed.
This is unsatisfactory and has limited the Ombudsman’s ability to thoroughly investigate the landlord’s response to the resident’s reports of damp and mould at the property and consider whether the redress offered by the landlord was fair and put things right, specifically:
1. Whether the contractor’s initial investigation into the reports of damp and mould was reasonable.
2. Whether the landlord put things right by completing the work on 13 April 2021.
The landlord has informed this Service that it does “not hold a survey report as the contractor that undertake the investigation attended the repair appointment and diagnosed the repair concerns.” This is unsatisfactory and evidence of problems with the landlord’s record keeping arrangements with the contractor. It is vital that appropriate records are maintained to demonstrate that the landlord has met its obligations under its repairs policy.
Therefore, there were failures and significant delays in the landlord’s response to the resident’s reports of damp and mould at the property and the landlord has not made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily. There was also maladministration by the landlord in respect of its record keeping.

The landlord’s response to the resident’s request for compensation for items damaged by mould

The landlord’s compensation policy says that it is not responsible for condensation or the effects of condensation unless it arises from a breach of its repairing responsibilities.
Under the terms of the conditions of tenancy the landlord has repairing responsibilities for the structure and exterior of the property.
It is not in dispute that in response to the resident’s reports of damp and mould the contractor identified works that needed to be carried out to the structure and exterior of the building.
It is therefore not disputed that the mould was, at least in part, caused by structural damp and water ingress from the structure and exterior of the property. The landlord failed to carry out the necessary repairs within a reasonable time. The landlord was therefore in breach of its repairing obligations under the tenancy agreement and responsible for the damage caused to the resident’s possessions as a result of the mould.
The landlord also acted unreasonably in its communication with the resident about his compensation claim as:
1. It told the resident that there was no evidence of negligence by the landlord and therefore no legal liability. Questions of legal liability are ultimately decisions for a court. However, given the evidence available to the landlord at the time that repair works were required to deal with water ingress, and that these works had been delayed, it is difficult to see how it reached the conclusion that there was no evidence of any possible negligence and therefore no liability.
2. Despite knowing that there were outstanding repairs to deal with the water ingress it told the resident on 20 January 2021 that the mould ‘didn’t grow overnight’, and it was his responsibility to control the moisture levels in the property.
Therefore, there was maladministration by the landlord in its response to the resident’s request for compensation for items damaged by mould.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaints about the landlord’s:
1. Response to the resident’s reports of damp and mould at the property.
2. Response to the resident’s request for compensation for items damaged by mould.
3. Record keeping.

Reasons

The landlord delayed in carrying out repair works, and has not made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint satisfactorily, and the landlord’s compensation policy is in breach of the Ombudsman’s Complaint Handling Code.
The landlord was in breach of its repair obligations and therefore responsible for the damage caused to the resident’s possessions as a result of the mould. The landlord’s communication with the resident about his compensation claim was unreasonable.
The landlord did not keep appropriate records to demonstrate that it had met its repair obligations.

Orders

The landlord is ordered within four weeks of the date of this report to pay the resident £663. This is comprised of:
1. £250 for the distress and inconvenience caused by the landlord’s response to the resident’s reports of damp and mould at the property.
2. £100 for the distress and inconvenience caused by the landlord’s consideration of the resident’s claim for compensation for items damaged by mould.
3. £313 for the damage to the resident’s possessions.
The landlord must update this Service when payment has been made.
The landlord is ordered within four weeks of the date of this report:
1. To review its compensation policy to identify what changes it needs to make to ensure its policy is compliant with section 5.9 of the Ombudsman’s Complaint Handling Code.
2. To set out the steps and timescales required for making the required changes to its compensation policy and putting the changes into practice.
The landlord should keep this Service updated on the progress of its review of its compensation policy until the required changes are implemented.
The landlord is ordered within four weeks of the date of this report to inspect the property to establish whether further works are required to address any ongoing damp and mould at the property and if so, within 2 weeks of this confirm in writing to the resident and this Service what works will be carried out and the target date for these to be completed.