Birmingham City Council (202104416)

REPORT

COMPLAINT 202104416

Birmingham City Council

14 January 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

1. The complaint is about the landlord’s response to the resident’s allegations about the removal of his belongings from the property by the landlord’s contractor.

Background and summary of events

2. The resident is a secure tenant of the landlord which is a local authority. The property is a two bedroom 15th floor flat in a building owned and managed by the landlord.
3. The resident’s conditions of tenancy says that the resident must take steps to store or protect his possessions while repair work is being done. The landlord may not be responsible if any of the resident’s property is damaged because he failed to take reasonable steps to store or protect it. If something is damaged as a result of the landlord’s repairs, the resident must notify the landlord in writing within a period of 28 days from the time it was damaged or from the time the resident first became aware it was damaged.
4. The landlord’s compensation policy lists a formula for calculating compensation for damage to a number of items. The list of items does not include items similar to the resident’s belongings that are the subject of this complaint. However, the policy says that for the listed items older than 10 years the landlord would agree a payment of 10% of the replacement cost.
5. On 28 November 2019 the landlord sent the resident a letter saying that work on the windows and doors to the balcony at the property would start during the week commencing 16 December 2019. In the letter the landlord said, “Could you please make sure the balcony is completely clear of all items, so the workmen can work safely.”
6. The landlord sent a further letter to the resident on 10 December 2019 about the commencement of the work to the balcony doors and windows. In the letter the landlord again said, “Could you please make sure the balcony is completely clear of all items, so the workmen can work safely.”
7. The resident maintains that when the landlord’s contractors started the work, they told him that he could leave various items which were on the balcony, and they would work around them. The items were a ladder, a bucket containing soil and a bag of soil, a mop and weights.  Once the work started the contractors took the resident’s keys to the balcony and he could not access the balcony.
8. The resident maintains that the workmen initially worked around his belongings on the balcony and then moved them onto scaffolding. The resident said that he spoke to the contractors saying that the belongings needed to be moved back from the scaffolding to the balcony and he was told someone would contact him.
9. The resident says that he subsequently noticed that his belongings had been removed from the scaffolding. He maintains that the contractors told him that a health and safety officer had told them to remove the belongings from the scaffolding and they had been disposed of in a skip.
10. On 15 January 2021 the resident submitted an online complaint form to the landlord complaining that the landlord’s contractors had removed his belongings and asking the landlord to investigate what had happened to his belongings.
11. On 20 January 2021 the landlord sent an email to the resident asking him to provide it with the date when the belongings were removed and the reasons why its contractors had been at the property.
12. The resident replied to the landlord on 21 January 2021. He said that he didn’t know the exact date when the belongings had been removed and that the contractors had been at the property as part of the refurbishment of the building. He also said that the work had been done in stages and during the initial stage the contractors had replaced the internal doors and windows and he had then been told by the contractors that it was fine for him to leave his items on the balcony.
13. Following enquiries from the landlord the contractor sent the landlord an email on 27 January 2021. In the email the contactor said that it was in contact with the resident about the missing items and was “in the process of investigating for [the resident] regarding his ladders, mop and bucket but we are not aware of any weights.” The contractor said that it had asked the resident that morning “regarding any evidence he has got to back up his claim”. The resident had informed the contractor that he didn’t have a receipt or photographs of the ladder, neither did he have home contents insurance. The contractor also attached copies of its letters to the resident dated 28 November 2019 and 10 December 2019 asking him to make sure the balcony was clear of items.
14. On 9 February 2021 the landlord sent the resident its response to the complaint. In its response the landlord copied the email to it from the contractor set out in the previous paragraph and said, “Please be assured that this matter is being investigated and [the contractor] will inform you of their findings in due course.”
15. On 9 February 2021 the resident telephoned the landlord to say that he wasn’t happy with its response to his complaint. He repeated that although he was asked to clear the balcony the workmen had told him it was fine to leave the items on the balcony as they would work around them. He also said that he did not have receipts as he had bought the items 15 years ago. He said that the contractor had taken photographs on site so should have pictures of the items. He asked that his items be returned or replaced.
16. On 10 February 2021 the resident sent the landlord an email again saying that he wished to escalate his complaint.
17. On 26 February 20221 the landlord sent an email with a further complaint response to the resident. In its complaint response the landlord said that the contractor had advised it that the resident had been requested to provide photographs or proof of purchase for the items removed from the balcony. The landlord understood that the resident had been unable to provide it with any supporting evidence of his claim, and the contractor had agreed to offer him £50. The landlord asked the resident to confirm that he was willing to accept the contractor’s offer.
18. The landlord’s email dated 10 February 2021 was its final response to the complaint, confirming that the complaint had exhausted its internal complaints process.
19. On 28 February 2021 the resident sent an email to the landlord saying that he did not accept the £50 compensation and wanted the items returned or replaced.
20. The resident has informed this Service during the course of this investigation that the ladder was valued at £160, and that the contractor raised its offer of compensation to £150 and then to £500. The resident accepted the £500 compensation in November 2021.

Assessment and findings

21. 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.
22. Under the terms of the conditions of tenancy a resident must take steps to store or protect their possessions while repair work is being done. The landlord was therefore under no tenancy obligation to pay the resident any compensation for possessions that he had failed to store or protect.
23. The resident accepts that he received the landlord’s letters dated 28 November 2019 and 10 December 2019 asking him to make sure the balcony was completely clear of all items, so the workmen could work safely. However, the resident maintains that he was told by the contractors that he could leave the items on the balcony, and they would work around them.
24. The resident says that once the work began, he was unable to move the items as the contractors had taken his keys to the balcony.
25. It is noted that the contractor was acting on behalf of the landlord at all times in its dealings with the resident.
26. The landlord has not provided this Service with any record of the contractor’s contact with the resident about the missing items, including:
    1. Any contact notes of the contractor’s discussions with the resident about the items on the balcony before work commenced.
    2. The original report from the resident concerning the missing items.
    3. Correspondence or contact notes regarding the resident’s concerns.
    4. Any records concerning the contractor’s investigation into the resident’s concerns.
    5. Any correspondence between the contractor and the resident concerning the compensation offered to the resident.
27. This is unsatisfactory and has limited the Ombudsman’s ability to thoroughly investigate the landlord’s response to the resident’s reports of the removal of his belongings from the property by the contractor, specifically:
    1. What the contractor told the resident about leaving his belongings on the balcony, prior to the work commencing.
    2. Whether the contractor’s initial response to the resident’s reports about the removal of the belongings was reasonable.
    3. How quickly the contractor responded to the resident’s reports about the removal of his belongings.
    4. What investigations the contractor carried out in response to the resident’s reports about the removal of his belongings.
    5. How the contractor calculated the amount of compensation offered.
28. The lack of evidence to support that the landlord’s response to the resident’s reports about the removal of his belongings from the property by the contractor was fair and reasonable represents a service failure by the landlord.
29. When there are failings by a landlord, as is the case here, the Ombudsman’s role is to consider whether the redress offered by the landlord 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 redress offered by the landlord via its contractor was £500 compensation and the reasonableness of this offer is assessed below.
30. The landlord has not provided any details about the compensation offered to the resident or how it was calculated. The landlord’s compensation policy does not provide details about how compensation for damage to items such as those in this case should be calculated. However, it is noted that the policy says that, for the items it does specify, if they were over 10 years old it would agree to pay 10% of the replacement cost. It is noted that both the ladder and the weight were at least 15 years old.
31. It is also noted that £500 is within the range of awards set out in the Ombudsman’s Guidance on Remedies for cases where the Ombudsman has found service failure but there may be no permanent impact on the resident. Examples could include serious failures, but which have already been recognised and resolved by the landlord, including redress for actual financial loss.  
32. Therefore, given the age of the belongings, the lack of receipts and the value of the ladder according to the resident, the compensation offered by the landlord was reasonable, proportionate to the impact that the landlord’s failures had on the resident and in line with the Ombudsman’s guidance on remedies. The landlord therefore has provided reasonable redress to the resident in respect of his complaint about the removal of his belongings from the property by the landlord’s contractor.
33. However, it is noted that the landlord has not provided any details to the resident about whether it has learnt from the outcome of the complaint. The Ombudsman has therefore made a recommendation that the landlord review its record keeping practices with the contractor to ensure that appropriate records are maintained to demonstrate that the landlord has met its repair obligations.

Determination (decision)

34. In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord has offered reasonable redress for the failures identified in its response to the resident’s allegations about the removal of his belongings from the property by the landlord’s contractor.

Reasons

35. The compensation offered by the landlord was proportionate to the impact that its failures had on the resident.

Recommendation

36. It is recommended that the landlord review its record keeping practices with the contractor to ensure that appropriate records are maintained to demonstrate that the landlord has met its repair obligations.