Birmingham City Council (202222814)

REPORT

COMPLAINT 202222814

Birmingham City Council

17 July 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 conduct of the landlord’s staff.
2. A repair to the front door and boiler.
The Ombudsman has also considered the landlord’s record keeping and complaint handling.

Background

The resident has a weekly tenancy that started on 22 April 2019. He lives in a second floor flat. It was an introductory tenancy that became a flexible secure tenancy on 22 April 2020. The resident stated he lived with his 100-year-old relative.
On 1 December 2022 the resident reported to the landlord that his front door had suffered fire damage.
On 22 December 2022 the resident reported to the landlord that his boiler had stopped working. The landlord attended on the same day but was unable to fix the boiler.
The resident complained to the landlord on 23 December 2022 that a call handler had been unhelpful and cut him off. He also complained about the gas engineer that attended on 22 December 2022.
The resident expressed dissatisfaction that the landlord had left him with a “chip wood” temporary door on 22 December 2022. The resident complained on 30 December 2022 about having no heating or hot water since 23 December 2022.
The landlord provided its stage 1 response on 17 January 2023 and said:
1. it raised a job to replace the front door on 1 December 2022 and assessed when it attended on this date that a new door was needed
2. its contractor had tried several times to make contact but was unsuccessful
3. it could not access the property on 3 January 2023 when it came to fit a more secure temporary door
4. it raised a new job to fit a temporary door on 16 January 2023.
The resident escalated his complaint on 7 March 2023, he told the landlord that it did not provide him with a new door on the same day or repair his boiler on the same day.
The landlord provided its stage 2 response on 5 April 2023 and said:
1. it attended a reported boiler fault on 22 December 2022 but given the time it was unable to complete extensive repairs
2. its engineer noted that the boiler was tripping the electrics and it provided alternative heating
3. when it raised a repair it provides a target date for inspection which is not necessarily the same date as when the repair is completed
4. it may be necessary to return on another day to complete a repair and it apologised if it failed to explain this earlier
5. although the resident reported no heating or hot water on 7 March 2023 it needed to do an asbestos survey before it could replace the boiler
6. the asbestos survey was delayed because of miscommunication between the resident and its contractor
7. its contractor tried to contact the resident unsuccessfully
8. the resident refused the asbestos survey on 4 April 2023 and told the landlord of his intention to seek legal advice
9. it responded on the 1 December 2022 to secure the front door and agreed to replace it
10. the completed job status of the door related to its emergency response but not the replacement
11. it fitted a temporary door and ordered a fire door which could take up to six weeks to manufacture
12. its appointment for 30 January 2023 was unsuccessful
13. because the resident had threatened violence against its staff it would need to attend in pairs
14. it did not accept responsibility for the delays, and it was not its policy to rehouse where there are outstanding repairs.
The landlord has told this service that it replaced the resident’s door on 13 March 2023 and replaced his boiler on 18 May 2023. The resident disputed the landlord replaced the front door in March 2023 and alleged that the landlord’s staff had displayed racism and bigotry towards him.

Assessment and findings

Jurisdiction

What complaints the Ombudsman can investigate is outlined in its Scheme.
Paragraph 42(a) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure. This is unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not acted within a reasonable timescale.
The resident referred to the conduct of a call handler on 23 December 2022 and of an operative that attended his property on 22 December 2022. On 5 April 2023 the resident also accused a contractor of bigotry and racism.
While the Ombudsman has seen evidence the resident raised a complaint with the landlord about the call handler and operative that attended the property, there is no evidence that the resident pursued this complaint or that it had exhausted the landlord’s complaint procedure. The resident alleged that the landlord’s staff demonstrated bigotry and racism after the complaint process completed. These issues are therefore outside the scope of this investigation, under paragraph 42(a) of the Scheme. This is because there is no evidence these complaints exhausted the landlord’s complaint process.

The front door

On 1 December 2022 at 9.37 pm the resident reported fire damage to their front door. The landlord was responsible for repairing the front door under its repairs policy unless it was not economical or practical, in which case it needed to replace it. The landlord attended on 1 December 2022 at 11pm and fitted a chip wood or mdf door secured by a padlock. It assessed the fire damaged door as beyond repair and decided to order a new fire door. The landlord raised a follow-on job on 2 December 2022 to fit a more secure temporary door with a target date of 18 January 2023.
This was a reasonable first step as it responded in line with its repair policy by attending an emergency repair within 2 hours and arranging follow on work. The landlord’s decision to fit a more secure temporary door while it waited for the delivery of a fire door was reasonable. This was because this action served to improve the resident’s security while he waited for the fire door.
The landlord stated it tried to fit this temporary door on 3 January 2023 but could not gain access. The landlord’s contractor reported it had tried to get hold of the resident multiple times over several days, but their call went to voicemail. While this was within the target date for the follow on work the landlord has not provided evidence of the call attempts it made or whether it considered alternative forms of communication. Therefore, the Ombudsman is unable to assess the reasonableness of the landlord’s attempts.
The landlord also stated it made another appointment on 30 January 2023 to fit the temporary door, but this was unsuccessful. The landlord has not provided evidence to show what attempts it made to contact the resident to follow this up.
The landlord reported that it replaced the resident’s door on 13 March 2023 however this contradicts with the resident’s account. The resident reported on 5 April 2023 that he still was without a secure door. The landlord’s stage 2 response did not confirm that it fitted the door on 13 March 2023. The landlord’s repair records note it completed a “follow up door on order” on 5 July 2023. It is unclear what this related too. Given the conflicting evidence the Ombudsman cannot be satisfied of when the landlord fitted the front door.
There is no evidence the landlord effectively communicated to the resident or updated him on when it would fit the door. While it was reasonable to fit a chip wood or mdf door while it awaited a fire door the Ombudsman is unable to conclude the landlord made reasonable efforts to contact the resident or to monitor the job.

The boiler

The resident reported the boiler had stopped working on 22 December 2022 at 5.42pm. The landlord was responsible for providing the resident with a working boiler under Landlord and Tenant Act 1985, section 11. The landlord was required to repair the boiler within a reasonable time.
It was reasonable of the landlord to have attended at 7.20pm on 22 December 2022 as this was in line with its repair policy for an emergency response. The landlord’s evidence is that its operative could not repair the boiler on the day but left the resident with a source of heating. This was because the landlord could not repair the boiler as the contractor could not find any parts for it due to the boiler’s age.
The Ombudsman considers that providing an alternative source of heating is acceptable to mitigate the loss of heat from a broken boiler. However, the Ombudsman has not seen any evidence to explain what heating it provided and for what period. Therefore, the Ombudsman cannot be satisfied that the landlord provided adequate mitigation.
The contractor then made a referral for a new boiler and the evidence is that the landlord replaced this on 18 May 2023.
The landlord told the resident that the delay was partly due to a “miscommunication” between the contractor and resident. The landlord stated its contractor had tried to contact the resident but could not get through. The landlord’s contractor also stated that the resident had refused an asbestos survey that delayed the boiler installation. The resident disputed these claims, and the landlord has not provided details of the attempts it made to make contact.
The Ombudsman notes that the landlord’s evidence is that its contractor was unable to contact the resident by telephone. The landlord ought to have considered alternative methods to communicate with the resident however there is no evidence of this. Therefore, this service cannot be satisfied that the landlord made reasonable attempts to arrange the asbestos survey before 4 April 2023 when the resident is said to have refused it.
The landlord’s contractor noted that there were also delays in it installing the boiler as it alleged that the resident threatened violence against a gas engineer and against an asbestos surveyor. Threats of violence against landlords and its contractors are unacceptable and landlords are entitled to manage such behaviour in accordance with their relevant policies. The Ombudsman notes that the resident disputed these claims.
The Ombudsman has not seen evidence that the landlord investigated these claims to verify them or allow the resident to comment on them. The landlord told the Ombudsman that it gave the resident a warning, but that it took no further action as there was no independent corroboration.
While the disclosure of threats would likely affect service delivery, the Ombudsman notes the landlord was still under an obligation to repair or replace the boiler. The landlord told the resident that it would attend in pairs in future. This was a reasonable suggestion for the landlord to manage any perceived risk while allowing it to fulfil its repairing responsibilities.
However, the Ombudsman has not seen evidence that the landlord took reasonable steps to arrange this having regard to its repair records.
While the landlord’s repair policy allowed it to replace the boiler where it was not repairable the landlord has not confirmed what heating it left for the resident. The landlord has not provided evidence of any risk assessment it did. It would have been appropriate for the landlord to have assessed the risk for cold to the resident and the elderly relative he lived with. This was because the resident told the landlord he was without hot water or heating over a winter period which amounted to a health and safety risk.
Had it done this it may have offered the resident a decant or emergency accommodation. This is because the landlord’s decant policy allowed it to offer alternative accommodation where a situation made it unsafe for a resident to remain in occupation.

The landlord’s record keeping

The Ombudsman expects landlords to maintain accurate and complete records of contacts and repairs. This is because this provides an audit trail and enables landlords to identify and respond to problems.
In the Ombudsman’s opinion the landlord has failed to keep accurate and complete records. This has affected this services’ ability to conduct a thorough investigation. This was a significant failure.
Due to the lack of adequate records, it is not possible to verify:
1. what attempts the landlord made in January 2023 to communicate with the resident about the fitting of the temporary door
2. the reason why the appointment for 30 January 2023 was unsuccessful and what attempts the landlord made to follow this up
3. when it fitted the front door as the landlord’s report conflicts with the resident’s account and the repair records
4. what heating, if any, the landlord provided the resident.

Summary

Overall, the Ombudsman cannot be satisfied that the landlord took reasonable steps to communicate with the resident over the work to replace his front door and boiler. The landlord also failed to:
1. show it made reasonable attempts to follow up the failed appointment on 3 January 2023 or 30 January 2023
2. show it monitored the job to fit the front door and that it completed this within a reasonable time
3. make reasonable attempts to conduct an asbestos survey or to complete the boiler replacement within a reasonable time
4. show that it provided the resident with heating or considered a decant during the period 22 December 2022 to 18 May 2023 when the resident said he was without heating and hot water.
These failures meant that the landlord left the resident without a secure front door for between three (until 13 March 2023) to possibly seven months (until 5 July 2023). This is dependent on when it fitted the door which is unclear from the available evidence.
The landlord also left the resident without a working boiler for five months (until 18 May 2023), this was over the winter months. The Ombudsman notes that the landlord stated that the delays in fitting a new boiler were because the resident refused an asbestos survey and threatened violence against contractors. The resident disputed this, and the landlord has not demonstrated that it took reasonable steps to meet its repairing obligations irrespective. Therefore, it is not possible to determine the level of responsibility the resident had for any delays.
The landlord’s handling of the front door and boiler repair was not appropriate and amounts to severe maladministration.
When deciding an appropriate remedy, the Ombudsman must take into account the extended delays in replacing the front door and boiler. While the landlord’s account is that the resident frustrated this by his actions, it has not demonstrated it took reasonable steps to deal with this.
When assessing compensation where the resident’s use and enjoyment of their property has been affected by the landlord’s failures the usual starting point is the rent paid. The weekly rent the resident paid up to 3 April 2022 was £72.40. The resident stated that he was without heating or hot water for around 20 weeks between 22 December 2022 to 18 May 2023 and the landlord has not disputed this. The Ombudsman has therefore made an order of compensation to reflect this.

The landlord’s complaint handling

The landlord had a three-staged complaint process. Stage 1 involved the landlord dealing with the complaint straight away or escalating it to stage 2 where this was not possible. The landlord was required to deal with stage 2 complaints within 15 working days and stage 3 complaint reviews within 20 working days.
The Ombudsman recommends a two staged complaint policy. The Ombudsman’s Complaint Handling Code states that landlords must respond at stage 1 within 10 working days and to complaints at stage 2 within 20 working days. The landlord’s complaint policy at the time was not in line with this. The landlord has since changed its policy to comply with the Code.
The resident complained on 23 December 2022 and the landlord provided its stage 1 response on 17 January 2023. This was effectively a stage 2 response as the landlord had been unable to deal with the resident’s complaint straight away. It took the landlord 14 working days which was within its policy.
The resident escalated his complaint on 7 March 2023, the landlord provided its stage 2 response on 15 April 2023. The landlord’s stage 2 was its stage 3 review as it stage 1 response was in effect its stage 2 for the reasons given above. It took the landlord 27 working days to respond against a target of 20 working days. This was not in line with its complaints policy and the landlord only provided this after the Ombudsman requested it. The delay in dealing with the complaint caused the resident a level of distress.

Determination

In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the complaint about the landlord’s staff conduct.
In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s repair of a front door and boiler.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s record keeping.
In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.

Orders

Within 28 days of the date of this determination the landlord must:
1. contact the resident to check that the front door has been replaced and log and complete any necessary repairs to this
2. pay the resident directly £1,498 made up of:
  1. £1,448 for the failures in replacing the boiler within a reasonable time (£72.40 weekly rent multiplied by 20, the number of weeks where the boiler was awaiting replacement)
  2. £50 for the distress caused by the delay in escalating the resident’s stage 2 response.
The landlord must provide evidence to this service that it has complied with the above orders within 28 days of the date of this determination.
Within 56 days of the date of this determination the landlord must:
1. conduct a senior management review of this case to identify
  1. what went wrong in its handling of the repairs and any changes or improvements that should be made to ensure it is able to fulfil its repairing obligations, including where a resident is not contactable or cooperative
The landlord must provide a copy of this review to this service within 56 days of the date of this determination.