Birmingham City Council (202221487)

REPORT

COMPLAINT 202221487

Birmingham City Council

30 August 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:
1. The landlord’s response to disruption caused the resident, including loss of broadband and telephone services, during refurbishment works in the property below.
2. The landlord’s handling of the resident’s complaint.

Background

The resident lives in a one-bedroom flat. The resident is a tenant of the landlord, and the tenancy began on 30 August 2010.
On 21 September 2022 the resident made a complaint to the landlord and stated:
1. The landlord had employed a company to carry out refurbishment works to the property below his flat. The work started at or around the 3 August 2022 and had been ongoing until the date of his complaint – 21 August 2022.
2. Drilling had taken place every day coupled with loud banging.
3. On the 10 August 2022 his telephone line and broadband line went down.
4. On the 12 August 2022 he approached the workmen about his lack of facilities only to be met with a “nowt to do with us” and “we’re only doing our job” attitude.
5. On the 15 August 2022 a telecoms engineer attended his property, found no fault inside his property but did say there was a fault but could not find it.
6. On the 16 August 2022 another telecoms engineer attended his property and also visited the property downstairs. It found that the cable from the property downstairs leading to his property had been drilled through thereby breaking any connections and leaving him without a phone or broadband line.
7. Since then, the telecoms company had to dig up pavements outside his property on 20 August 2022 ready to lay a new cable into his property. The work at that point was still ongoing and, with permission, he was having to use his neighbours broadband via his bedroom wall and Wi-Fi. Sometimes he got a connection but other times not because of the distance.
8. It occurred on 10 September 2022 and every day had been a living nightmare. It did not matter which room in the property he was in the drilling and banging had been horrendous and his whole flat was shaken or appeared to have shaken.
9. He had no phone line or broadband service, was on the at-risk register and lived on a supported housing estate.
10. He requested an apology and compensation for the disruption he had to put up with.
The landlord issued its stage one response the same day and stated it was very sorry to hear of the difficulties he had experienced and noted his request for compensation. The landlord said compensation was only payable if there was evidence of negligence, or legal liability was accepted. In order that a decision could be made as to the existence of such liability, it was necessary for the resident to complete an attached claim form. The landlord informed the resident that if he was insured against such an event as his claim, he should first refer the claim to his own insurance company. If he was unhappy with the way it had dealt with his complaint, he could ask for a review, and it would look into his enquiry again and send a final response within 20 working days of the date it received his request.
On 28 September 2022 the resident escalated his complaint. The resident emailed the landlord and said he had contacted the landlord’s customer services team with his complaint but was dissatisfied with the response he received. That was because the landlord wrote to him on the 21 September 2022 of which he received the letters on the 28 September 2022. The landlord asked him to complete an attached claim form which had not been attached to either letter. The situation was very frustrating, and he wanted to move forward towards a solution.
On 12 October 2022 the landlord emailed the resident, apologised for the missing compensation form and attached a new form. The landlord’s records show it received the completed compensation form on 28 October 2022. The resident stated that he was claiming for damage to his telephone line and broadband line stating they were both broken. He included the timeline and incidents he had provided in his initial complaint including loud drilling and banging, that it took until 22 August 2022 to have the services restored but that was after telecoms engineers digging a trench and laying down new cables. The resident again said he lived on a supported housing scheme and needed the phone as he was classed as a vulnerable person.
On 16 November 2022 the landlord made enquiries internally and established it would need to know if the resident had any out-of-pocket expenses such as needing to pay the telecoms engineers to restore the connection. If not, it did not generally make inconvenience payments. If there was out of pocket expenses, to obtain them and forward to its contractor to investigate and agree/disagree any liability. As far as it could see the landlord had no direct liability.
On 23 November 2022 the landlord internally stated the resident had not stated an amount for how much compensation he wanted. As it stood the claim would be refused but it would say in its response that if it had more information, it would look into it further.
The landlord issued its response to the compensation claim on 24 November 2022. The landlord stated that the claim had been investigated and there was no evidence of negligence by the landlord. The reason for the decision was that:
1. The form was incomplete as for it to assess whether there was a valid claim for compensation it did need an exact figure and break down of exactly why the specific amount was being requested.
2. With the information that it did have, it contacted its contractors, it did know that the neighbouring property was a void property, and its team was assigned to carry out works at that property.
3. The contractors had confirmed that if as the resident stated in the form that the phoneline/broadband was broken on 10 August 2022 then the contractor could not have been responsible as the first work that they began in the vicinity of the property was on 17 August 2022.
4. If the resident appealed against the decision that he provide proof of any out-of-pocket expenses i.e. a call out charge to get the connection restored, then it could be investigated further.
5. It was not possible for the landlord to pay compensation where there was no legal liability, and it was unable to make payment in respect of the claim.
The landlord issued it stage two response on 5 January 2023 the landlord stated it had been contacted by this Service in relation to the matter. It noted the response issued to him on 24 November 2022 for his claim for compensation was rejected for the reason that “there was no evidence of negligence by the Housing Service”. It had reconsidered the facts of the case and provided feedback as follows.
1. It had rejected his claim on the basis that the resident had failed to quote ‘an exact figure and breakdown of exactly why the specific amount was being requested’.
2. The resident had made it aware of his living environment being a Sheltered Housing Scheme due to a vulnerability. It was not beyond the bounds of possibility for the form to be returned to him for further attention or for him to be contacted by phone to discuss that issue further.
3. His claim appeared to be in two parts – a claim for personal items reported as damaged which would require proof of purchase or ownership of physical items and a claim for distress and inconvenience. The latter being intangible and therefore he could not be expected to quantify an exact figure for hardships he likely would have endured during the stated period.
4. Void works began on 18 August 2022 allowing its repairs contractor to undertake all repairs necessary to restore the property with works ending on 15 September 2022. It confirmed that a Subcontractor carried out the majority of the void works and noted the anticipated target date for completion was 31 August 2022. In effect inflicting an additional 13 days of ‘horrendous drilling and loud banging where it appeared his, whole flat had shaken or appeared to have shaken’ and the resident had described his experience as a living nightmare.’
5. Regarding damage to his broadband and phoneline cables and resulting loss of services. During a telephone conversation on 4 January 2023 the resident advised that his dialogue with the service provider was conducted over the phone. He therefore had no documentation of proof of any transactions between the telecoms engineers and the service provider. He had also advised that repair charges were waived on that occasion as he were not held liable for damage to the cables.
6. As mentioned in the original complaint response, contractors had not gained access to the neighbouring property until 17 August 2022, and he had reported loss of services from 10 August 2022. The resident had made it aware that he approached tradesmen on the day he first lost service but did not receive acknowledgement nor advice. Telecoms engineers also attended his property on two occasions whilst works were underway and firstly, he reported the telecoms engineer found no fault inside his property and secondly, they visited the neighbouring property the following day and found a connecting cable had been drilled causing a disconnection in the broadband and phoneline.
7. The resident had reported loss of service from 10 August 2022 to 22 August 2022. It apologised for failing to address those matters at its earliest opportunity. Its stage one response only briefly acknowledged his concerns and issued a compensation claim form which he later reported as not received.
8. It acknowledged that the resident was subjected to an ordeal over a sustained period. Whilst essential repairs were unavoidable, it’s failure to communicate information about the duration of works, engage with the resident regarding loss of service and failure to give consideration to recompense for distress and inconvenience had resulted in his escalating matters to the Housing Ombudsman. On reflection, it did not appear to have given sufficient consideration to his complaint. It would refer his case to a senior officer to consider the comments and would notify him of the outcome.
9. The resident was advised that a reinvestigation of those matters should not be an assumption of legal liability. The landlord would consider:
  1. Prolonged and excessive noise levels that exceeded its service level agreement with the repairs contractor causing significant disruption to the resident’s living environment.
  2. Delay in responding to and initial rejection of his claim for compensation.
  3. Loss of telephone service vital to a vulnerable resident reported to be on the at-risk register living in supported housing.
10. The resident was informed he had exhausted the landlord’s complaint process
On the same day the resident emailed the landlord and informed it that he had phoned his service provider that day to confirm the dates he had used previously and had been informed by them it was in fact 10 September 2022 and not 10 August 2022 as he had previously stated. He apologised for getting the dates mixed up. The resident said the contractors were still doing work in the property before and after that date. The resident said:
1. He had recorded the telephone conversation with the service provider, and they clearly stated that a telecoms engineer visited the neighbouring property during that time and found the breakage in service had happened in that property and not his.
2. His telephone line and broadband line went through the neighbouring property from the living room to his living room.
3. The telecoms engineer could not repair the damaged cables. It advised him that they would arrange for telecoms workmen to attend and dig up the front of his property and lay new cables which would then require a further visit from the telecoms engineer to install a new cable line into his property via the front door area and up his staircase but it would have to have either trunking or cables to or through his doors. As he had only just had the majority of his property decorated including new carpets it would have meant disruption to his walls and skirting boards, so he declined and had the services reinstated in his upstairs hallway instead of the living room.
The landlord confirmed on 8 January 2023 it had received clarification of the dates from the resident, and it would forward the information to the relevant parties reviewing his claim for compensation.
The landlord issued a revised stage two response on 16 March 2023 the response contained the same assessment made in the initial stage two response and confirmed the resident had informed it of the error in the dates he provided initially. The response then informed the resident it had reconsidered the facts of the case, and its contractor could not consider reimbursing him as he did not incur any out-of-pocket expenses resulting from their presence onsite. The resident had also made it aware of persistent noise nuisance and loss of services resulting from the ongoing works at the neighbouring property over a sustained period. It had been advised that the landlord did not compensate for inconvenience and distress. It was aware the resident would be dissatisfied with that feedback as it may appear it had failed to acknowledge the impact the experience was likely to have had on his wellbeing, but he had now exhausted its complaints process.

Assessment and findings

The landlord’s response to disruption caused to the resident including loss of broadband and telephone services whilst undertaking refurbishment work in the property below.

Section 7.22.6 of the resident’s tenancy agreement states if something is damaged as a result of the landlord’s repairs, the resident must notify it in writing within a period of 28 days from the time it was damaged or from the time first becoming aware of damage. The resident has evidenced he did notify the landlord within that timescale.
The resident’s complaint was made on 21 September 2022, and it is clear the dates provided in his letter were during the month of August 2022. It was noted by this Service that within the complaint, the resident stated the issues he was complaining about were up to “today 21 August 2022” despite the complaint being made on 21 September 2022. There was clearly a discrepancy in the dates the resident provided, and the landlord has not evidenced it identified the discrepancy or seek to clarify the dates provided with him before issuing its response.
The landlord stated as part of its stage one response on 21 September 2022 that it was attaching a compensation claim form. Despite the resident informing the landlord one week later the form was not attached, the landlord failed to reissue the form until 12 October 2022. This was an unreasonable delay and there was no evidence provided by the landlord why this delay occurred. Despite the resident returning the form to the landlord on 28 October 2022 the first evidence provided of the landlord conducting its investigation into the resident’s claim was on 16 November 2022. This added to the delay for the resident to receive a decision from the landlord.
The landlord in the stage one response informed the resident that if he was insured against an event such as his claim, he should first refer his claim to his own insurance company.
A landlord should initially consider if there is any evidence that it is at fault for claimed damage to property and belongings, rather than refer residents straight to an insurer. If a landlord disputes fault or a complainant is unable to evidence the level of claimed damages, it may be reasonable to refer a complainant to their or the landlord’s own insurer to establish negligence and liability. However, if a landlord accepts that it was or may have been at fault, it may not be reasonable to ask complainants to claim on their own insurance, since this may affect future premiums and require them to pay an excess. If liability is denied, a landlord should still investigate and respond as a formal complaint to reports that its actions or inactions have caused distress and inconvenience, consider if there was any service failure, and consider if any compensation is applicable.
It is noted that the resident stated in his compensation request dated 28 October 2022 that he did not have any contents insurance. Throughout the period covered in this investigation there was no evidence the landlord offered the resident the opportunity or information to consider making a claim through the landlord’s insurers and instead asked for the evidence directly for it to consider compensation.
The compensation form provided by the resident stated he was claiming for damage to his telephone line and broadband line stating they were both broken, that it took until 22 August 2022 to have the service restored and that was after telecoms engineers digging a trench and laying down new cables. The resident said he lived on a supported housing estate and needed the phone as he was classed as a vulnerable person. In addition to that the resident repeated the impact the works including drilling and banging had had on him.
Given the resident had informed the landlord he was vulnerable it would be expected for the landlord to at least make enquiries at the time including if the telephone and broadband was back working or if any further assistance may have still been required. There was no evidence the landlord considered the resident stating he was vulnerable and if there was any impact on the resident not having a working telephone line or internet connection or the impact the prolonged works had had on him.
The landlord’s records established on 17 November 2022 that it felt its contractor was not responsible for the damage to the phone and broadband lines due to the dates provided by the resident and when its contractors began the works. It took however until 24 November 2022 for the resident to be notified by the landlord of its findings.
This Service has seen no evidence of the landlord’s correspondence with the contractor or subcontractor in its attempt to establish if it may have been responsible for the damage to the telephone and broadband line. There is also no evidence the landlord made attempts to obtain information from the resident about the findings from the telecoms provider for it to consider as part of its investigation. This Service therefore cannot determine that the landlord took all reasonable steps to investigate the reported issue or establish the cause or reason for the loss of service.
None the less, the landlords initial stage two response acknowledged that the resident was subjected to an ordeal over a sustained period and although essential repairs were unavoidable, it’s failure to communicate information about the duration of works, engage with him regarding loss of service and failure to give consideration to recompense for distress and inconvenience had resulted in the resident needing to escalate the complaint to the Housing Ombudsman.
The landlord also acknowledged that it did not appear to have given sufficient consideration to his complaint, and it would refer his case to a senior officer to consider its findings.
Section 7.22.5 of the tenancy agreement states the landlord will try to warn the resident if it thinks any proposed repairs will inconvenience the resident. There was no evidence the resident was informed of the works being carried out in the property below or that he may be affected with noise while the works progressed. Although the landlord acknowledged this in its final complaint response, no offer of redress was made to the resident for any distress or inconvenience.
Following the initial stage two response the landlord was also made aware on 5 January 2023 by the resident of errors he had made with the dates he had initially provided as he had used the month of August instead of September in his reports. This would have therefore provided clarity to the landlord on all aspects of the issues raised for it to consider including if it needed to reinvestigate the time period provided with its contractors.
However, when the revised stage two response was issued, it stated that despite the landlord reviewing the amended dates provided by the resident it’s contractor would not be reimbursing the resident as he had not incurred out of pocket expenses and the landlord did not pay any compensation for distress and inconvenience.
While it is acknowledged that if the landlord determined the resident did not appear to incur any out-of-pocket expense in having the services restored, the landlord should have still offered the resident the option of pursuing a claim through its insurer and considered the distress and inconvenience for the failings it acknowledged in the stage two response.
It is acknowledged that the resident initially provided incorrect dates to the landlord but once those dates where clarified, the landlord has not evidenced it conducted a thorough investigation of the resident’s concerns or the impact the events had had on the resident and his vulnerabilities. Despite finding failings in its handling of issues raised by the resident the landlord then failed to offer any redress to the resident. This was a further failing by the landlord as it failed to put things right for the resident. This is maladministration by the landlord, and it should pay the resident £200 for the distress and inconvenience caused.

The landlords handling of the resident’s complaint

The landlord’s stage one response was inadequate. It failed to state it was its formal response at stage one. The landlord failed to offer any assessment of the complaint the resident had made or provide any explanation or evidence of the investigations it made into his complaint. Given the response was issued the same day the resident made his complaint, any investigation undertaken would have been limited. The response would have failed to provide the resident with any assurance his complaint had been appropriately considered.
The stage one response also stated it would attach a compensation claim form which the resident stated was not attached. The landlord was informed of this on 28 September 2022, but it was not until 12 October 2022 that the landlord provided the resident with the form. This increased the delay in the resident receiving an outcome to his request for compensation by 22 days.
The resident requested his complaint be escalated on 28 September 2022 and the landlord issued the stage two response on 5 January 2023. This was 69 working days later and significantly beyond the timescales in the landlord’s complaints policy and was therefore a failing by the landlord. There is also no evidence the landlord kept the resident informed regarding the delay.
The stage two response letter acknowledged that the resident was subjected to an ordeal over a sustained period, it also acknowledged that it failed to communicate information about the duration of works, engage with the resident regarding loss of service, failed to give consideration to recompense for distress and inconvenience and that it did not appear to have given sufficient consideration to the complaint.
However, rather than attempting to put things right for the resident in the form of an offer of redress the landlord informed the resident its findings would be passed to a senior officer to consider. This was a further failing by the landlord as at the end of the stage two response it clearly stated that it was its final complaint response, and the resident had exhausted the complaints process.
The purpose of the landlord’s complaint process is to ensure the landlord provides a full and final complaint response that addresses the resident’s complaint and if determined, offer any appropriate redress. It was not appropriate for the landlord to issue a complaint response that stated the complaint had exhausted its complaints process but then proceeded to leave the outcome unresolved and state the case had been referred to a senior officer. It is also noted that the landlord did not provide an expected response date to the resident for the decision by the senior officer to be made.
This delay would have also delayed the resident in determining if he wished to refer his complaint to this Service.
The revised stage two response was provided two months later. Again, the landlord did not explain the reason for the delay. The response was also limited in any additional information provided to the resident. It referred to the revised dates the resident had provided but that it’s contractor could not consider reimbursing as the resident had no out–of–pocket expenses.
However, despite the acknowledgment of failings in the initial stage two response and that those failings would be considered by a senior officer, the revised response stated that the landlord did not provide payments for distress or inconvenience. It is unclear why, if the landlord did not pay for distress and inconvenience, that it did not explain why that was the case in the initial stage two response and therefore prolonged the complaint process for the resident.
This was maladministration by the landlord and for the distress and inconvenience caused to the resident by the landlord’s handling of his complaint the landlord should pay the resident £150.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its response to disruption to the resident including loss of broadband and telephone services due to refurbishment work in the property below.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s complaint.

Orders

Within four weeks of the date of this report the landlord must:
1. Provide the resident with a written apology for the failures identified in this report.
2. Pay the resident a sum of £200 for the distress and inconvenience caused by the landlord’s response to disruption caused to the resident including loss of broadband and telephone services whilst undertaking refurbishment work in the property below.
3. Pay the resident a sum of £150 for the distress and inconvenience caused by the landlord’s handling of the resident’s complaint.