Birmingham City Council (202219790)

REPORT

COMPLAINT 202219790

Birmingham City Council

28 March 2024

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 handling of the resident’s:
1. Reports of leaks and related damp and mould repairs.
2. Request for a rent adjustment.
3. Formal complaints.

Background and summary of events

The resident has a secure tenancy with the landlord which commenced fully in September 2022. The landlord is a local authority. The property is a 3 bedroom ground floor flat. The resident’s children are vulnerable, as they have asthma and autism, although the landlord did not have any vulnerabilities recorded.

Leak and related damp and mould repairs

On 23 July 2022 there was an uncontainable leak causing flooding into the property from the flat above (reported to the landlord by the upstairs neighbour). The resident returned home to find that her flat was flooded and the electrics were not working. Her daughter fell and broke her collar bone. The landlord attended within 4 hours. It stopped the leak in the flat above and made safe the electrics in the property.
The resident raised a complaint to the landlord on 26 July 2022, stating that if it had attended sooner than it did, the flooding could have been avoided. Electric repairs were also not completed as the electrician had removed parts and not replaced them. There was damage to wallpaper and she asked who was responsible for rectifying this. She explained that she was staying at her mother’s house with her 3 children who were vulnerable.
The landlord investigated the electric repairs and found that the contractor would sometimes wait for a resident to re-raise a repair before it completed the works, after the initial make safe job. The repairs were raised following the residents complaint on 26 July 2022 and completed on 28 July 2022, leaving all power points and smoke alarms in working order.
On 8 August 2022 the landlord raised work to address the damp and mould to be completed on 5 September 2022. The resident advised that she could not wait that long as she had vulnerable children with disabilities and she was unable to stay in the property due to health concerns. The repair was brought forward to 16 August 2022 but the contractor rebooked it for 26 August 2022. However, it did not confirm this with the resident who was not available on the day. The work was again rebooked for 13 September 2022, when the resident’s partner provided access for the inspection.
On 9 August 2022 there was another leak into the property, coming from another (privately owned) neighbouring property. A 24 hour repair was raised. The plumber attended the same day, and the reports have been conflicting, with the contractor notes stating that there was no access but other records stating that access was granted the next day. The correspondence indicates that access was ultimately granted and the leak was fixed within 24 hours. The private owner advised they were taking steps to arrange a plumbing repair. In its submission to this Service the landlord advised that it could not evidence whether repairs were done due to them being a private owner.
The resident chased the landlord’s complaint response 4 times in August 2022 and complained again on 16 August 2022. She said that no one had checked on them since the flood and she reiterated her family’s current circumstances. The landlord acknowledged the complaint on 23 August 2022 and gave a timescale for its response of 10 working days.
The resident reported ongoing issues on 7 September 2022, including a new leak, and repeated her complaint on 8 September 2022, saying she wished to be rehoused due to the upheaval and repairs. The landlord said it would incorporate all of her concerns into her original complaint and provide its stage 1 response once repairs were carried out on 13 September 2022.
The contractor attended on 13 September 2022 and carried out mould treatment work. Following the visit, the resident raised another complaint that the contractor: said there was no damp or mould but still treated the house; had left some areas untreated; and failed to put things back properly such as a panel that had been removed in the bathroom and an unscrewed box.
The landlord raised a work order for 16 September 2022 to other flats, but these works appear to have been cancelled. A repair was raised to remove wallpaper and check for mould in the property on 22 September 2022 but this was rebooked for November 2022. Works were also raised to check the bathroom floor on 24 November 2022.
An inspection was carried out on 30 September 2022 when the landlord assessed the additional areas which the resident reported to be missed in the previous inspection. It found that the leaks were resolved and the areas were dry, and there was mould but no damp as per meter readings. The resident agreed to remove the wallpaper herself for the mould treatment. The floor did not show mould. The carpet which was starting to smell was to be moved by the resident to allow the area to dry.
Following the Ombudsman’s intervention the landlord issued its stage 1 response on 14 October 2022, as follows.
1. The landlord apologised that it had taken several months to sort out the issue with the damp and mould and to put in place the appropriate repairs to get these resolved.
2. Once the repairs to rectify the damp and mould were completed the property was liveable and if the resident wanted to be rehoused she may apply through the housing register and could request an assessment on medical grounds. It signposted her to the local authority’s housing options website.
3. It detailed the chronology of repairs since July 2022, acknowledged that there had been some delays and communication failures, and apologised for these.
4. It noted the steps the resident had been asked to take to improve the conditions within the property and confirmed that an environmental clean was not required.
5. It asked the resident to complete a compensation form for damaged items such as the wallpaper. The form allowed it to deduct any outstanding debt from any compensation payment.
The resident escalated the complaint on 18 October 2022, highlighting inaccuracies in the landlord’s account of events/repairs (with supporting screenshots) which indicated a greater level of service failure than had been identified in the stage 1 response.
The landlord acknowledged the stage 2 request and gave a target date of 20 October 2022. In October and November 2022 the landlord investigated with the contractors what had happened and established the circumstances of the leaks and repairs in both of the other properties. On 15 November 2022, the landlord told the resident its stage 2 response would be delayed.
In the absence of a response, the resident chased the landlord in January 2023. The landlord apologised, explaining that there had been staff absence and it was not clear yet what had happened. On 10 February 2023 the landlord was still making enquiries with the contractor.
The landlord ultimately issued its stage 2 response on 17 March 2023. It apologised that there had been failings in its contractor’s repairs service, including a delay in logging the first leak and carrying out subsequent repairs, failing to carry out appropriate due diligence, and failing to update the resident about the rescheduled appointment in August 2022. It acknowledged that some of the repairs information in the stage 1 response (particularly regarding the electrician’s attendance) had been incorrect and it apologised for this. Finally, it invited her to complete the compensation form so it could assess claims for her belongings.
In her escalation to the Ombudsman, the resident explained that she remained dissatisfied with the landlord’s failure to resolve the repairs to the bathroom, wallpaper and mould. She also advised she was in rent arrears for rent and council tax. She was stressed due to the risk of future flooding and wanted to move close to her mother who could offer her support. The landlord’s offer of compensation remained open, pending receipt of its compensation form.

Request for rent adjustment

When the resident complained about the leak in July 2022, and in her follow up correspondence between August and September 2022, she informed the landlord that she was living with her mother and not in the property.
On 3 October 2022 the resident raised a complaint about the level of rent for this period. She said she was unable to live in the property from 23 July 2022 until she was told that she could return on 28 September 2022 so she felt it was unfair that she was charged rent for this period.
The landlord enquired with its contractors about the condition of the property from their visits in September 2022. It was established that they did not consider the property unfit for purpose and that the resident could have returned.
The landlord responded at stage 1 on 14 October 2022 and said that its repair team was on notice from 15 September 2022 of repair issues and inspected the property on 22 September 2022. It did not identify a need for the resident to move out at the time, and the resident did not ask the landlord to provide temporary accommodation so it could not adjust the rent for the period.
The resident escalated the matter from 18 to 21 October 2022 and said she had evidence to show that she could not live at the property. Her daughter, who is autistic, experienced difficulties with new environments which is why she did not want temporary accommodation. The landlord issued its stage 2 response on 10 November 2022 and reiterated the stage 1 position. It also said that, if temporary accommodation had been agreed at the time, the resident would have still been liable for the rent. Therefore it did not agree to deduct rent for the period of the repairs.

Assessment and findings

Scope of the investigation

As a result of the events detailed in this report, the resident made a personal injury claim which was settled by the landlord. While it is understood that this matter has been resolved, the Ombudsman would take this opportunity to confirm that it is beyond the remit of this Service to determine whether there was a direct link between the landlord’s actions and the resident’s health or well being. As a result, legal proceedings were the correct course of action and this aspect of the resident’s contact is not considered further in this report. However, consideration has been given to any general distress and inconvenience the resident experienced as a result of any service failure by the landlord.

Leaks and related damp and mould repairs

The landlord has not disputed its repairing responsibilities as set out in the tenancy agreement, which is that it must keep in repair the structure of the property, including pipes and keep in good working order installations for the supply of water, electricity and sanitation. The Repair Policy states that it must maintain and repair the walls and membranes and provide necessary damp proof courses, and maintain and repair internal components such as electrical wiring, sockets, light fittings and switches.
Emergency works should be addressed within 2 hours of instructions being given to the contractor, urgent works concerning health and safety or security risks should be completed between 1,3, or 7 days, and routine repairs should be completed within 30 days, according to the Repair Policy.
The original assessment of the repair service to the leaks and the electrical repairs was not accurate. The repair to the first leak and the electrics were not completed within 2 hours or 15 minutes, they were addressed in 4 hours and just under 2 hours, respectively. The landlord identified this as a failure and apologised. It investigated the discrepancies in its records of when repairs were raised and logged, and explained the failure of its contractor’s management of the follow up electric and damp and mould repairs.
There were delays in the damp and mould repairs, which were raised on 8 August and completed partially on 13 September 2022 and further on 30 September 2022. Following the original scheduled works booked in for 5 September 2022 under its routine repair timescale of 30 days, the resident asked the landlord for an earlier appointment due to the household’s vulnerabilities. The landlord took reasonable steps to assess the resident’s concerns and responded by bringing this forward to 16 August 2022.
However, the repairs were not then carried out. There were further delays caused by its contractor rebooking this again, and failing to communicate the new appointment to the resident, resulting in a missed opportunity for the repairs to be completed earlier. Further failures were established following the resident’s report of incomplete work on 13 September 2023. The landlord took reasonable steps to arrange another inspection on 30 September 2022 taking into account the resident’s reports of missed areas.
The landlord identified unreasonable practices by the contractors: not communicating about repair appointment bookings; not consulting their records to understand the scope of the repairs before attending a job; and not raising complete repairs after make safe jobs, but rather relying on the resident to chase works before booking these in. It acknowledged these failures and apologised, saying it would monitor the contractors, which was appropriate. However it failed to award proportional redress for the time and trouble, and distress and inconvenience, which the resident incurred as a result of the identified failings.
The landlord twice directed the resident to complete a claim form for compensation for her personal belongings. While this identified the need to put right the impact of its service failures, it did not take into account compensation for distress and inconvenience, or time and trouble. The landlord may refer to the guidance for redress set out in the Ombudsman’s Complaint Handling Code (‘the Code’) Section 6: Putting Things Right which states that remedies should reflect the extent of service failure and detriment caused to the resident, and landlords must consider time and trouble and distress and inconvenience, in addition to any quantifiable losses incurred The landlord’s offer of redress was limited to the loss of belongings, and this was not appropriate in the circumstances. Therefore, there was maladministration.
The resident expressed her anxiety over the repairs and the impact on her mental health and her children, whose vulnerabilities the landlord became aware of as a result of this complaint. An order has been made for the landlord to pay £300 compensation, in line with our Remedies Guidance, taking into account its acknowledged failures of missed appointments, miscommunication about the scope of works, delays of approximately 2 months for all works to be completed, and the cumulative distress and inconvenience and time and trouble. This sum also recognises the steps the landlord has taken to put things right, including its identification of failings, its early engagement with compensation and its apologies.
The landlord’s response to the reports of further leaks, including 7 September 2022, has not been clearly established. However, it said that all leaks were resolved at the time of its inspection on 30 September 2022. The resident said she feared future floods but there has been no evidence to suggest that there were still reports of leaks at the close of the complaint.
With regard to the finding of no damp in the property, it was reasonable for the landlord to rely on the opinion of its suitably qualified expert. However, there was outstanding work in relation to mould treatment behind the wallpaper at the close of the complaint. The communication has suggested that the resident offered to remove the wallpaper herself, but her escalation stated that this had not been done. An order is made in respect of this.
The resident has also requested to be moved. The landlord took reasonable steps to provide her with details of how to register her request to move on medical grounds. In so far as the local authority was acting in its capacity as landlord (which is under investigation here), this was appropriate advice which fulfilled its responsibilities to the resident.
The subsequent application and transfer process does not fall within the local authority’s landlord function and is therefore outside the scope of this investigation. If the resident has concerns about how any transfer application has been managed, she may wish to raise a new complaint in that regard and contact the Local Government and Social Care Ombudsman for assistance.

Rent adjustment

It is disputed whether the resident could stay in the property during the period between July 2022 and September 2022. The resident immediately moved to her mother’s house following the leaks and told the landlord of her reluctance to be in the property due to her mental health, the upheaval caused by the repairs, and her household’s vulnerability.
The landlord focused on progressing the repairs and told the resident to be on site during an inspection on 30 September 2022. Once it became aware of her concern about the rent, it made appropriate enquiries of its contractors regarding the condition of the property. It reasonably relied on its contractor’s opinion and found that the resident did not need to vacate the property. Further, it explained that, even if she had been temporarily moved, its policy was that she would still be liable for rent.
The Ombudsman has not taken a view on the condition of the property, but has considered the adequacy of the landlord’s response to the issue. Given that its contractor confirmed the repairs were not sufficient to warrant a temporary move and its policy is for residents to pay rent even in the event of a temporary move, the landlord’s response was reasonable.
The signed tenancy agreement states that the resident is responsible to ensure that the rent is paid (by whatever payment method they chose). The Decant Procedure states residents will remain liable for payment of rent at their substantive tenancy while living in temporary, emergency, or decant accommodation. The landlord’s decision is in line with the terms of the tenancy agreement and the Decant Procedure, and therefore there was no maladministration.

Complaint handling

The Code states that complaints should be responded to within 10 working days at stage 1 and 20 working days at stage 2, with limited exceptions for extended time.
Following the resident’s complaint about the leaks, damp and mould in July 2022, the landlord delayed the stage 1 response numerous times. The resident chased the landlord and repeated her complaint 6 times, and it was only after this Service intervened in October 2022, 3 months after the complaint had first been raised, that the landlord was prompted to issue the stage 1 response.
The resident experienced significant time and trouble and inconvenience due to these unreasonable delays. It was inappropriate for the landlord to postpone the stage 1 response and to adopt an approach which combined the complaint response with the completion of repairs. In those circumstances where repairs are outstanding the landlord may assess its service and provide an action plan for future repairs within the stage 1 response.
The stage 2 complaint was escalated on 18 October 2022 and while there were delays communicated to the resident in November 2022, the stage 2 response was not issued until 17 March 2023, almost 5 months later. This was not acceptable and this constitutes maladministration.
The complaint team took steps to highlight the complaint and the required internal investigations to the relevant departments and contractors, and it sought to find out information about what happened and what went wrong, and it chased responses several times. However, these were not always responded to on time.
The landlord explained the delays in its updates to the resident, including the delays caused by staff absence, but ultimately failed to award proportionate redress for the 8 month timescale for concluding the complaint. It would have been appropriate to offer compensation in the circumstances and an order has therefore been made in that regard. In line with our remedies guidance, £400 is awarded (£50 per month between the end of July 2022 to March 2023).
With regard to the second complaint about rent, the landlord responded at stages 1 and 2 within the timescales specified in the Code, engaged with the subject of the complaint, and clearly explained its decision making. As a result, this matter was dealt with appropriately and no further action or redress is required in that regard.

Determination (decision)

In accordance with paragraph 52 of the Scheme, there was:
1. Maladministration in the landlord’s handling of the resident’s:
  1. Report of leaks and related damp and mould repairs.
  2. Formal complaints.
2. No maladministration in the landlord’s handling of the resident’s request for a rent adjustment.

Reasons

The landlord did not take reasonable steps to put things right by offering redress that was proportional to the detriment, in time and trouble and distress and inconvenience, caused by its acknowledged service failures in respect of the complaint about the leaks, damp and mould.
The landlord did not handle the complaint about the leaks, damp and mould in line with the Code. There were significant delays and the landlord postponed its formal response until repairs were carried out, which was not reasonable. In those situations, the formal response can offer an action plan of future works.
The landlord’s decision about the rent refund was in line with its Decant Procedure which states that residents remain liable for rent while in temporary accommodation.

Orders and recommendations

Within 4 weeks of the date of this report the landlord is ordered to:
1. Pay the resident a total of £700 compensation comprised of:
  1. £300 for the distress and inconvenience and time and trouble for the delays in its leak and related damp and mould repairs
  2. £400 for the distress and inconvenience and time and trouble for the delays in its complaint handling (leak and related damp and mould repairs).
Re-confirm with the resident its offer of compensation for her loss of belongings following receipt of the completed claim from.
Confirm with the resident the status of outstanding work to the wallpaper and bathroom if this has not been completed.
Update all staff of the requirement to respond to enquiries from the complaint teams within the requested deadlines.
Confirm that it will instruct its contractor carry out a review of the case and take the following action:
1. Set a task on its system to ask contractors to consider if further repairs should be raised after attending an emergency ‘make safe’ job.
2. Confirm that all staff are aware of the need to communicate changes in appointments with the resident and also with the landlord.
3. Instruct contractors to read the jobs and confirm these with the landlord or resident if they need to, before they attend an appointment.