Birmingham City Council (202101431)

REPORT

COMPLAINT 202101431

Birmingham City Council

30 June 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 the landlord’s response to the resident’s reports of disrepair at her property.

Background and summary of events

Background

The landlord has advised that the resident has been a secured tenant at its property since 24 July 2000. The landlord is a local authority.
The landlord operates a two stage complaints policy.
The landlord operates a responsive repairs policy. The policy notes that routine (i.e. non-emergency) repairs will be completed within 30 days. Should longer be needed, the resident will be notified.
The landlord uses a repairs contractor to carry out its repair obligations.

Summary of events

The resident has advised this service that prior to October 2017, she reported a number of repair issues to the landlord. This included intermittent boiler faults, the rear garden paving slabs being in a state of disrepair, and damp in the kitchen, hallway, bathroom, and living room. She also reported rotten floorboards in her living room.
On 27 October 2017, through her legal representative, the resident issued a ‘Section 82 notice’ (which is a notice made in accordance with the Environmental Protection Act 1990) to the landlord detailing the repair issues she was experiencing, and requested they be addressed.
Based on the landlord’s notes, its contractor attended an initial inspection on 14 November 2017. It then noted that the resident “refused” the proposed works on 15 November 2017.
On 12 March 2018, the resident advised that she was no longer using a legal representative, but that she still wanted the landlord to address the repair issues she had reported. Based on the landlord’s notes, its contractor attended again on 12 April 2018, but that the operatives were withdrawn following “aggressive behaviour” from the resident, and due to the “strong smell of illegal substances.”
It is evident that the resident also reported the issues she was experiencing to her local MP, who in October 2018, requested an update from the landlord regarding the outstanding repair issues. The landlord replied on 29 October 2018 and advised the above noted steps it had taken and the reasons its operatives had been withdrawn. It subsequently advised that “arrangements are being made for a joint visit between a Housing Officer and contractor to agree that works can be carried out.”
The resident’s MP forwarded to her the landlord’s response. On 30 October 2018, the resident replied to her MP and disputed the landlord’s version of events. She advised that the landlord’s contractors had attended in April 2018 but had caused additional damage and flooding to her property. Following her raising concerns about the quality of the works, the contractors did not return, and she did not receive any further updates.
The resident has advised this service that she has been affected by health issues which led to an extended period of time elapsing before she raised her concerns about the repair issues again. She contacted this service for assistance in 2021 and in or around August 2021, this service sought a formal complaint response from the landlord.
The landlord provided a stage one response on 20 August 2021. The landlord advised that based on its records, “all the repairs were completed at that time to your representative’s satisfaction,” and that it did not have any outstanding repairs on its system. It subsequently requested the resident provide further information regarding her complaint.
On 2 September 2021, the resident had a telephone conversation with the landlord in which she disputed any repairs were completed, other than repairs to her boiler. The remaining repair issues remained outstanding. She subsequently requested her complaint be escalated.
The landlord provided its stage two response on 9 September 2021. The landlord noted that it had carried out an inspection in November 2017, but that the resident had “refused” the works. It also cited her “aggressive behaviour” as the reason the works were not completed in April 2018. It advised that following its contractors being withdrawn, its housing officer had attempted to call the resident to discuss the issue, but that they had not been able to reach the resident. The landlord concluded that it was willing to reassess the remaining repair issues, but that a further inspection would first be needed. It advised that “you will be contacted and notified of when the officers will attend.”
It is not evident that the landlord subsequently contacted the resident to make any arrangements for an inspection. As part of the preliminary evidence gathering stage of this investigation, in December 2021, this service requested the landlord provide an update as to its plan regarding the remaining repair issues. The landlord replied that “no plan is necessary as no repairs reported.”
The resident has advised that she has since contacted ‘Shelter’ who have assisted her with her communication with the landlord. Following contact from this organisation, in early June 2022, the landlord carried out an inspection of the resident’s property. The outcome of this investigation remains pending.

Assessment and findings

When receiving reports of repair issues, the Ombudsman expects a landlord to carry out a reasonable investigation of the reports, and subsequently carry out necessary repairs. Where it does not consider itself responsible for the repairs or chooses not to carry out a repair for any other reason, the Ombudsman would expect a landlord to clearly communicate this to a resident and give clear reasons.
This service has not been provided with copies of the communications in which the resident initially reported the repair issues, nor has this service been provided with any records from the landlord relating to the initial reports. The resident’s subsequent communication in October 2017 through her legal representative made it clear such previous reports had been made and that the landlord did not take action. The landlord has not disputed this position in any of its subsequent communications.
The landlord did not address the resident’s initial reports in its formal responses, or why investigations/repairs did not occur prior to her issuing a Section 82 notice. The Ombudsman would expect a landlord to carry out a reasonable investigation of the full history of the complaint and use its formal responses as an opportunity to explain its actions, which it did not do in this case.
Following the resident’s Section 82 notice, the landlord appropriately arranged for an inspection of the property, however, based on a much later communication from the landlord’s contractor, its proposed works did not go ahead due to the resident refusing the works. The resident has denied that she refused any works, and this service has not been provided with any contemporary evidence to suggest the works were refused. In such circumstances, where a landlord has identified necessary works that were subsequently refused, the Ombudsman would expect detailed contemporary internal notes explaining what works were required and that they were not being carried out due to the resident’s refusal. The Ombudsman would also expect a landlord to follow up such a refusal to formalise each party’s position in writing. It is not evident this occurred.
The resident chased up the issue in March 2018, following which, the landlord once again appropriately arranged for an inspection. It is evident that at this inspection, the landlord’s contractor identified multiple necessary works. This service has been provided with photos of a four-page document produced by the landlord’s contractor detailing the works required throughout the property following the inspection.
It is not disputed that works began in April 2018, but that they were not completed. The resident has advised the works stopped following her raising concerns at the quality of the works (the resident has advised that a pipe was not correctly capped, causing a flood, and that a wall was damaged). The resident has advised that following her concerns being raised, she received no further communications from the landlord or contractor, despite the works being incomplete.
The landlord’s position is that the works were stopped following aggressive behaviour from the resident, and due to the smell of “illegal substances.” It is evident from the document detailing the necessary works that the landlord was aware that works needed to be completed and that it had stopped the works prior to them being completed.
The landlord has a duty to meet its repair obligations. Should it leave repairs incomplete, it should have a clear and robust policy in order to make structured and reasoned decisions not to carry out repairs. It should assess whether leaving repairs incomplete puts the resident at risk, or whether it should consider legal action in order to gain access to complete the repairs.
Additionally, where a landlord restricts services on the basis of a resident’s behaviour, the Ombudsman would expect a landlord to have a clear policy and procedure in place. This should include providing very clear examples of the behaviour, clearly explaining how a resident could appeal this decision, and for how long any measures are to remain in place.
It is not evident that the landlord has any such policies, or that any risk assessment took place when it decided to withdraw its services and leave the works incomplete. Additionally, aside from the landlord’s assertion in its stage two response that its Housing Officer attempted to call the resident, it is not evident that any other communication was made to inform the resident of its decision to leave the works incomplete.
Similarly, it is not evident that the landlord had any policies in place to restrict its services on the basis of its operatives believing they can smell “illegal substances,” especially without any further investigation. Its decision to withdraw from the works on this basis was therefore unreasonable.
In addition to communicating a decision to restrict services, the Ombudsman would also expect a landlord to make detailed notes documenting the events and its decision. The landlord’s source that the withdrawal of works was based on aggressive behaviour and the smell of illegal substances came from a statement given by its contractor in October 2018 in preparation of the landlord’s response to the resident’s MP and was not made at the time of the events. This service has not been provided with any notes or records from this time. Based on the landlord’s internal communications, the only other evidence relating to these events was its repair log, which either indicated that the works were “complete,” or were otherwise noted as “cancelled” without any further context recorded.
Following the enquiry from the resident’s MP, the landlord acknowledged that works remained outstanding and advised that it was arranging a further inspection. It is not evident, however, that the landlord made any attempt to contact the resident to arrange an inspection.
Following this point of the complaint, it is not disputed that an extended period of time elapsed without either party making any further communications. While the Ombudsman expects a landlord to be proactive in resolving complaints or attending to reports of repairs, it is also necessary for residents to progress communication when necessary. The resident has advised this service that she has been impacted by her health issues which led to this period of no communication from her. This is entirely understandable, however, it is not evident the landlord knew the extent of these health issues. The Ombudsman has taken this into consideration when considering compensation.
Following communication from this service, the landlord provided a stage one response in August 2021. The Ombudsman would expect a landlord to carry out a reasonable investigation into a complaint as part of its stage one response. This would include consulting its own records and communications, as well as making further enquiries with the resident if necessary.
The landlord’s stage one response suggested that its records indicated all repairs were completed “to your representative’s satisfaction.” The landlord’s own communications from March-October 2018 noted that the resident was no longer represented at the time the works were begun. It had also previously acknowledged that the works had not been completed, but that they have been cancelled on the basis of behaviour/illegal substances. The stage one response therefore demonstrated a failure to adequately investigate the history of the complaint, leading to the inaccurate conclusion the works had been completed satisfactorily.
The Ombudsman considers it best practice for a landlord to seek to clarify points with a resident should it be unclear, as part of a reasonable investigation prior to a formal response. In its stage one response, however, the landlord sought further information from the resident following the response, instead of having sought this information as part of its investigation prior to the response. This demonstrated a poor initial investigation by the landlord, and a subsequently incomplete formal response.
In its stage two response, the landlord included a summary of the events which had occurred. It did not address, nor offer an apology for its failure to acknowledge these events in its stage one response. It additionally omitted that the smell of “illegal substances” had led to it cancelling the works in April 2018. Having acknowledged it had not successfully communicated with the resident following withdrawing from the works, the landlord did not comment on its subsequent failure to reinvestigate or progress the works further in any way (despite having promised to do so in October 2018). Given that the resident had specifically requested that the landlord include its initial actions as part of her complaint, this failure to provide any sort of conclusion as to whether it considered its actions to have been appropriate would have been frustrating.
The landlord concluded its stage two response by appropriately committing to contact the resident about a further inspection for the works. It did not, however, provide a timeframe for when this would occur, and based on the evidence provided to this service, it did not communicate again with the resident, despite having promised to do so.
The landlord once again demonstrated inadequate record keeping in its response to this service in December 2021, in which it advised there was “no plan necessary as no repairs had been reported,” despite this being in direct contrast to its stage two response.
In summary, the number of failings in this case regarding poor communication, failing to provide services, and failing to follow up on promised actions would have caused significant distress for the resident, and in the circumstances, amount to severe maladministration, for which compensation is appropriate.
When considering compensation, the Ombudsman considers the length of time works remain outstanding, however, as noted above, the landlord was not solely responsible for the significant period of time between communications following the April 2018 works. Significant distress was nevertheless caused by the other elements of its severe maladministration.
The Ombudsman orders compensation in the amount of £850, being £300 for its failure to carry out a reasonable investigation as part of its stage one response, £350 for its failure to provide adequate information as to why the works in April 2018 were withdrawn, and £200 for failing to arrange a further inspection despite multiple promises to do so.
An order has also been made that the landlord ensures it has procedures of guidance in place relating to instances where its contractors report that a resident’s behaviour has impacted the provision of any service.
Additionally, given the number of failings relating to record keeping in this case, the Ombudsman considers it appropriate to make a separate finding of maladministration in relation to the landlord’s poor record keeping. An additional £200 compensation is ordered to reflect these failings and the impact caused to the resident.
A further order has been made that the landlord reviews its current record keeping procedures and ensures that its repair records include detailed information in instances where repairs are suspended or withdrawn.
The Ombudsman notes that the landlord has recently carried out an investigation at the resident’s property but is yet to provide its position on any subsequent works. A further order has been made below that the landlord provide an update to the resident and commit to a timeframe for it to complete any necessary works.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was severe maladministration by the landlord in respect of its response to the resident’s reports of disrepair at her property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its poor record keeping.

Reasons

It is not evident that the landlord made a reasonable attempt to investigate or address the resident’s initial reports of repair issues and failed to provide any context of its initial actions (or lack thereof) in its formal responses.
The landlord failed to put its position in writing that the resident had refused its initial works, and also failed to put in writing or otherwise notify the resident that it had withdrawn the April 2018 works on the basis of her behaviour/illegal substances.
The landlord also failed to arrange a further inspection as promised in its communication to the resident’s MP, and in its stage two response.
The landlord’s stage one response demonstrated an inadequate investigation into the complaint, leading to the resident expending further time and effort pursuing her complaint.
Additionally, the landlord’s poor record keeping hampered its investigation and led to its erroneous findings that works had been satisfactorily completed.

Orders

The Ombudsman orders the landlord to pay compensation of £1,050, comprising of:
1. £300 for its failure to carry out a reasonable investigation as part of its stage one response;
2. £350 for its failure to provide adequate information as to why the works in April 2018 were withdrawn, leading to a significant delay;
3. £200 for failing to arrange a further inspection despite its promise to do so in both its communication to the resident’s MP, and in its stage two response;
4. £200 for the landlord’s inadequate record keeping.
This amount must be paid within four weeks of the date of this determination.
The landlord to contact the resident within four weeks of the date of this determination and provide an update following its recent inspection. Should any works be required, the landlord to provide a timeframe for these to be completed.
Within four weeks of the date of this determination, the landlord to:
1. review its current procedures or otherwise introduce guidance for instances where its contractors report that a resident’s behaviour has impacted the provision of any service;
2. review its current record keeping procedures and ensure that its repair records include detailed information in instances where repairs are suspended or withdrawn.
The landlord to provide the Ombudsman with evidence of compliance with the above orders within the timeframes noted.