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Birmingham City Council (202227133)

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REPORT

COMPLAINT 202227133

Birmingham City Council

25 April 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

  1. The complaint is about the landlord’s handling of the resident’s reports of:
    1. A leak and associated damage.
    2. Maintenance of lifts within the building.
  2. The Ombudsman has also considered the complaint handling of the case.

Background

  1. The resident lives in a 3-bedroom flat on the 7th floor of the building. The building is served by 2 lifts. The landlord rents the flat to the resident on a secure tenancy agreement that began in 2017.
  2. The resident reported to the landlord that on 1 February 2023 she found water penetrating the bathroom walls. The resident did not know the source of the leak and the landlord therefore arranged a 2-hour priority call out. The resident said she had a note on her door to knock loudly, however, the landlord could not gain access. The resident chased the repair up with the landlord on 3 February 2023 because she thought the landlord had failed to attend as no card had been left. There was an increase in the amount of water which had penetrated the property and the landlord therefore arranged another call to the property the same day.
  3. The resident contacted the landlord on 5 February 2023 to make a complaint. She said she believed damage caused by the flood to her home could have been prevented if the landlord had fixed the leak quicker and she felt the landlord should accept liability for the leak.
  4. The resident explained to the landlord her mental health had been “massively impacted and the health and safety of her family had been put at risk”. The resident told the landlord the floor covering and sofa had been affected by the flood. She said the flood had been caused by illegal activity in the flat above her. The resident told the landlord the condition she was living in was “terrible, cold and damp”. She was concerned because of her children’s health living in damp conditions and she said she had to borrow money to stay in a hotel.
  5. The resident also complained to the landlord about the lifts at the property which she said were always broken. She struggled to carry 2 children plus a pushchair down 2 flights of stairs to get to another lift and she told the landlord this had caused her a shoulder injury. She said the condition of the lifts were “inhumane” when in operation and she said the landlord was in breach of the Human Rights Act 1998. The resident requested the landlord consider rehousing her as a solution to the issues.
  6. On 6 February 2023, the landlord arranged for the electrics to be checked at the property the same day and it disconnected the bathroom heater during the visit. It then reinstated the heater on 29 March 2023.
  7. On 7 February 2023, the landlord arranged a damp inspection to be conducted at the property and this was completed on 10 February 2023. The surveyor noted there was no mould, the ceilings and walls were ok but the flood had damaged a carpet in the bedroom and the laminate floor in the hallway and living room. It noted the floor should be lifted and replaced as the moisture retention would lead to damp. It is unclear from the landlord’s records whether this was communicated as an action for the landlord or resident. The landlord arranged other work associated with the leak to the windows, intercom handset and balcony and door.
  8. The landlord acknowledged the resident’s complaint on 11 March 2023 and advised her one of its officer’s would contact her.
  9. The resident sent an email to the landlord on 11 April 2023. She gave dates and times the lift had been out of service (15 times) from April 2022 to October 2022.
  10. On 13 April 2023, the landlord sent the resident its stage 1 complaint response. It acknowledged and apologised that it had failed to progress the resident’s complaint promptly. The landlord also apologised to the resident because it had delayed in acknowledging her separate compensation claim about damaged items from the leak. The landlord told the resident that any claim over £750 was handled by the council’s insurance team and it could take up to 12 months to conclude the investigation. The landlord provided the following response:

Leak

  1. It acknowledged the resident would have been significantly inconvenienced by the leak.
  2. During a telephone call on 4 April 2023, the resident had said there had been a leak on and off over a 1-year period that had affected the kitchen and bathroom areas. The resident said she had not always reported incidents to the landlord and on occasions she had visited the neighbouring property to try and find out where the leak was coming from.
  3. The resident said she did not hear an operative knock on the door on 1 February 2023 and a calling card had not been left. The landlord was unaware the leak was from a neighbour property at that point.
  4. On 3 February 2023, the resident had reported an increase in volume of water in the bedroom, hallway, bathroom, kitchen and airing cupboard, across the balcony and outside the front door. The landlord therefore responded as an emergency and forced entry into a neighbouring property to contain the leak. A light switch and bathroom heater at the resident’s home were isolated for safety.
  5. The landlord found the leak to be caused by criminal activity and called the police. As a result, the landlord had delayed in progressing the repairs due to this.
  6. The landlord acknowledged it failed to provide her with an adequate explanation in relation to her claim for damaged personal possessions from the leak and it apologised for this.
  7. An inspection of the property took place on 23 March 2023 to determine the damage and it made arrangements to decorate the bathroom ceiling and walls on 3 May 2023. The moisture readings from February 2023 had confirmed the property was sufficiently dried out and the landlord was satisfied no damp or mould had appeared.
  8. The landlord refused the resident’s request for temporary rehousing because it did not feel the damage was sufficient to warrant a move.
  9. In summary, the landlord did not accept negligence of the leak.  It apologised it had failed to provide feedback in a timely manner and it acknowledged the distress and inconvenience of the leak and offered the resident £250 compensation.

Lifts

  1. Both lifts had been renewed in June 2022. Since October 2022, the lifts had been out of service on 12 separate occasions; 9 of these were attributed to vandalism. Both lifts had not been out of service at the same time and were repaired within the landlord’s agreed timescales.
  2. The landlord inspected the lifts on a daily basis, cleaned and removed any items in the lift. It said there was no CCTV so it was difficult to identify the perpetrators who caused damage.
  1. The resident sent an email to the landlord on 14 April 2023 to decline the compensation. She was concerned the landlord had not followed its no access procedure by leaving a calling card at her home when it could not gain access to repair the leak on 1 February 2023. The resident explained the difficulties she had in getting associated repairs sorted for the electrics and intercom system and she had to contact the landlord on a number of occasions. The intercom had been damaged by water and the resident confirmed it was fixed on 6 March 2023.
  2. The landlord replied the same day to acknowledge the resident’s complaint and it said it would respond at stage 2 of its complaints policy by 16 May 2023.
  3. The landlord’s records showed in June 2023 it produced a newsletter for residents to tell them a lift was out of order through vandalism. This was not the lift that served access to the resident’s home. One lift served odd numbers and the second lift served even numbers. There were two flights of stairs that connect the floors. It said the damage was so extensive it had caused the motor to burn out and it had damaged the circuit board. The landlord said it was awaiting parts and the work was expected to be completed by 16 June 2023.
  4. The resident sent another email to the landlord on 7 June 2023. She described how her mental health had been affected by the stress of the issues she had complained about and her son had “severe eczema” which she believed to be triggered by stress caused by damp and mould at her property. The resident described the condition of the lifts to be “inhumane” and she wanted to move home.
  5. The landlord sent its stage 2 complaint response to the resident on 14 June 2023 as follows:
    1. The landlord reiterated to the resident it did not accept legal liability for the damage to the resident’s personal items and it said it would write to her separately about the compensation claim.
    2. The landlord gave an overview of its repairs history in relation to reports of leaks. It said there had been 1 report in 2018 when it was unable to locate the source of the leak from the flat above. The second report was in 2020 that was cancelled as the resident told the landlord the leak had stopped.
    3. The current leak was under investigation with the police as criminal activity.
    4. Once the landlord had gained entry to the neighbouring flat, the leak was quickly rectified.
    5. The landlord said the damage to the resident’s carpet and laminate floor was minimal. The landlord had been unable to inspect all of the damaged items as it said these had been left on the balcony. This Service has not seen a record of the items left on the balcony. 
    6. The landlord said it had arranged the following:
      1. Reinstate the electrics on 6 February 2023;
      2. Damp inspection on 10 February 2023;
      3. Resealed the bath on 27 February 2023;
      4. Repainted the bathroom walls on 9 June 2023;
      5. It had arranged another damp inspection at the resident’s request for 7 July 2023.
    7. The landlord also arranged the following work associated with water damage:
      1. Kitchen and living room window repairs;
      2. Intercom handset – The landlord said it would arrange for its specialist contractor to contact the resident as it was unclear if the intercom had been fixed;
      3. Balcony and door repairs – appointments had been arranged for 4 and 21 July 2023.

Lifts

  1. The landlord said it had arranged temporary accommodation for the resident while the lift replacement work was undertaken in 2022 and it had restored the lifts within its agreed timescales. However, the landlord has not provided the dates or timeframe involved.
  2. The landlord had found it difficult to prevent the continued acts of vandalism, however, it said it would always act promptly to reduce the impact on residents.

Rehousing

  1. The landlord said it was unable to offer rehousing for the resident as a solution to the issues as it was committed to complete the outstanding work. It explained the resident was on the housing waiting list and it recommended she continued to bid for properties and discuss any issues with the council’s housing options team.

Complaint handling

  1. The landlord accepted it had delayed in registering the resident’s complaint and did not respond on time and it offered the resident £50 compensation.

Compensation claim for personal items

  1. The landlord referred to its contractor’s visit on 18 April 2023 to discuss associated work from the leak to redecoration and window repairs. The contractor had reported to the landlord they had been unable to progress the repairs and described the resident’s conduct as “uncooperative and abusive”. The contractor stated the resident had refused their offer to complete the remedial work. The landlord said no further compensation could be offered and confirmed its total compensation offer to be £300.

Summary of events after landlord’s complaint process

  1. The resident contacted the landlord on 15 June 2023 and disputed the accusations that she had been “uncooperative and abusive” towards the landlord’s contractor. The landlord noted her recollection of events and advised this Service its contractor had been unable to substantiate the allegation. The landlord was satisfied with the resident’s recollection of events.
  2. The landlord arranged to conduct a damp and mould assessment at the property and this was completed 7 July 2023. The landlord has not provided the records of the assessment to this Service.
  3. The landlord provided records of 3 October 2023 that showed the availability of the two lifts from October 2022 to be 99% (lift 1 that served access to the resident’s home) and 98% (lift 2). The landlord said that when the new lifts were installed, notifications were sent to all residents and the resident requested and was granted an alternative property for the duration of the work. The renewal process was longer than anticipated due to COVID-19 and the lift contractor ceasing business.

Assessment and findings

  1. The resident mentions her mental health had been impacted by the property condition and she sustained an injury when the lift was out of service. She also referred to her child’s health condition of eczema that she felt had been affected by the property condition. The Ombudsman does not doubt the resident’s comments regarding her health or injury she sustained or that of her child, however, this Service is unable to draw conclusions on the causation of, or liability for, impact on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer as a personal injury claim.

Leak and associated damage

  1. The resident reported a leak to the landlord at the beginning of February 2023. The landlord acted in accordance with its repairs policy by prioritising the repair as an ‘emergency’ and it attended within 2 hours. However, the landlord was unable to gain access to the property and it did not leave a card to notify the resident that it had called. Section 7.22.3 of the tenancy agreement states the landlord will leave a card at the property if it is unable to gain access. It was therefore inappropriate that the landlord did not leave a card. Given, the repair was an emergency and the resident stated they had placed a note on the door to knock loudly, it would have been reasonable for the landlord to telephone the resident while on site to try and gain access.
  2. The resident did not follow up the missed visit with the landlord until 3 days later when she reported an increased volume of water from the leak. The landlord attended the same day and forced entry to the flat above the resident’s home to find the source and contain the leak. It then followed up its concerns with the police that the leak had been caused as a result of criminal activity.
  3. While the landlord mishandled it’s attempt to gain access to the resident’s property following her initial reports, the landlord did respond promptly when the resident recontacted it about the leak some three days later. However, it is of concern the landlord did not follow up after the missed appointment or demonstrate it was being proactive in managing the reports of a leak in the interim period between the first and second call made by the resident. After the source of the leak had been stopped, the landlord then arranged the necessary work to ensure the electrics were safe at the property within a reasonable timeframe.
  4. The landlord delayed slightly in arranging all of its follow-on repairs which it said was because it involved the police. The landlord did not expand upon this rationale further, however, it is reasonable to assume a delay was necessary to categorise and record damage for evidential purposes related to any subsequent police investigation. However, it did arrange an inspection of the resident’s home 5 working days later and noted there was no mould at the property, but the floor coverings affected by the leak needed to be lifted and replaced as the moisture would lead to damp. It is unclear from the landlord’s records if this was an action for the landlord or resident. Further, it is unclear at this stage if the resident was given any advice about her damaged goods or if the landlord offered any assistance to help dry out the property and contents, such as providing dehumidifiers to the resident. The failure to communicate effectively at this stage has contributed to a delay in resolution for the resident.
  5. The landlord followed up from its assessment by arranging a mould treatment and decoration of the affected areas. However, it took the landlord 3 months to complete these works which is outside of the timescales stated in its repairs policy. Therefore, the length of time the resident had to wait for this service was inappropriate, and likely to have caused additional distress given the resident had concerns about the property and her family’s health.
  6. The landlord gives advice (via the tenancy agreement) for all residents to insure their homes to safeguard contents in the event of damage. It is unclear if the resident had her own contents insurance or whether the landlord discussed this with the resident, and if in this instance it was appropriate for her to make a claim via this route. However, the resident submitted a claim to the landlord for compensation for her damaged items in March 2023. The landlord acknowledged and apologised it had delayed in providing her with an adequate explanation of its claim process. While it is not for this Service to assess the viability of an Insurance claim, the landlord should have considered and appropriately advised the resident of all options in making a claim from the outset of the incident.
  7. Later, as part of the stage 2 complaint, the landlord told the resident the damage to the property was minimal. It confirmed with the resident further repairs had been arranged to the windows, the intercom handset and the balcony and door. It is unclear from the landlord’s records when the full works were completed. While the landlord did not accept negligence on its part for the leak, it offered her compensation of £250 to acknowledge the distress and inconvenience the incident had caused.
  8. In summary, while the landlord initially attended to the leak within its emergency repair 2-hour priority timescale, it did not go far enough to ensure it was successful in gaining access to the property. Based on the nature of the emergency response, it was inappropriate for the landlord to leave the property without either contacting the resident or effectively dealing with the reports of a leak affecting the resident’s property.
  9. The resident did not report further concerns for 3 days, and when she did make contact with the landlord to chase up the repair, the landlord visited the property promptly on an out of hours visit. This time, the leak was contained, and the landlord liaised with the police about alleged criminal activity. However, it was inappropriate that the landlord did not proactively attempt to resolve the incident from the onset of the resident’s first report.
  10. The landlord arranged follow on work including a damp assessment of the property within a reasonable timeframe. However, it did not complete a mould treatment and redecoration work for 3 months and this was outside of its repairs policy 30-day completion timescale for routine repairs and therefore this was inappropriate.
  11. When the resident complained to the landlord, it recognised the significant  inconvenience caused to her by the leak and offered her £250 compensation. While this went some way to put things right for the resident, it did not go far enough given the significant distress and inconvenience caused to her, and to acknowledge the landlord’s service failures and poor communication at key points of its response.  It is therefore more appropriate in these circumstances for the landlord to compensate the resident £500. This amount of compensation is aligned to the Ombudsman’s Dispute Resolution Principles.

Maintenance of lifts within the building

  1. The resident complained to the landlord about the lifts in the building being out of service early February 2023. She was also concerned about the poor condition of the lifts and said the landlord was in breach of the Human Rights Act 1998 in relation to “inhumane” conditions. It is not for this Service to decide on Human Rights Act matters, but where appropriate we will consider whether the landlord has had due regard to its responsibilities under the Human Rights Act as a public service provider.
  2. The landlord sent the resident its stage 1 complaint response mid-April 2023. As the resident’s concerns were about the condition of the lifts and were not specifically related to her human rights, the landlord provided a reasonable explanation to the resident by informing her of its proactive maintenance which included renewal of the lifts in 2022, its acknowledgement of the vandalism issue and how it was addressing this to ensure the lifts remained serviceable.  
  3. The landlord told the resident it was satisfied it had repaired the lifts in accordance with its agreed timeframes. The landlord has a contract in place to respond to lift faults within 30 minutes where there is a trapped person, 1 hour for general breakdowns and routine servicing and maintenance on a 28-day program. While this Service has not examined every breakdown call out, there is no evidence to suggest the landlord did not respond in accordance with its lift breakdown priorities. Further, the landlord told the resident it inspected the lifts daily, cleaned and removed items when required. It said that as there was no CCTV of the area it was difficult to identify the perpetrators of vandalism.
  4. The resident escalated her complaint mid-April 2023 and the landlord responded mid-June 2023 at stage 2 of its complaints procedure. The landlord had arranged temporary accommodation for the resident while works were undertaken to the lift to be replaced until it was back in service. The landlord therefore acted appropriately and responded to the resident’s individual needs by ensuring it considered and acted upon the impact of a prolonged lift outage upon the resident and her family. The landlord assured the resident it would continue to act promptly on any acts of vandalism to ensure the impact on residents was reduced.
  5. In summary, the landlord acted appropriately in accordance with its repair and maintenance responsibilities when responding to lift breakdowns and the level of service it provided, while at times was frustrating to the resident, the landlord’s actions were reasonable in the circumstances.
  6. However, while the landlord conducts regular inspections and responds to any issues promptly, it has recognised vandalism is an issue and the gathering of evidence to take appropriate action against the perpetrators is difficult. The landlord should therefore consider how it can gain the evidence on the perpetrators of vandalism to its property and liaise with the police to satisfy itself it is taking all appropriate measures to protect its property and reduce the impact on residents. 

Complaint handling

  1. The resident complained to the landlord early February 2023. However, the landlord did not acknowledge the resident’s complaint until mid-March 2023 and it sent its stage 1 complaint response to the resident mid April 2023; 9 weeks later. This was an inappropriate delay that was outside the 10 working day timescale set out in the landlord’s complaints policy. When the landlord responded to the resident it did acknowledge and apologise to her for its failure to progress the resident’s complaint on time. 
  2. The resident escalated her complaint mid April 2023 and the landlord sent a stage 2 complaint response mid June 2023; 8 weeks later and again out of the 20 working day target set out in the landlord’s complaints policy. This time the landlord did offer the resident £50 compensation, but this was for its delay in registering and responding to the stage 1 complaint on time. It did not acknowledge the additional stage 2 complaint response delay and this was inappropriate.
  3. In summary, it was inappropriate that the landlord was late in its response to the resident’s complaint at both stages of its complaints policy. There is no evidence it kept the resident informed of its delays and the landlord did not provide adequate compensation to the resident to recognise the full extent of its delay or the inconvenience caused to her. The Ombudsman’s Complaint Handling Code is prescriptive on response times and communications with residents. The landlord should therefore pay £150 compensation to put things right for the resident to reflect the inconvenience caused by its delay. This level of compensation aligns to the Ombudsman’s Dispute Resolution Principles.

Determination (decision)

  1. In accordance with Paragraph 52 of the Scheme, there was service failure with the landlord’s handling of the resident’s reports of a leak and associated damage.
  2. In accordance with Paragraph 52 of the Scheme, there was no maladministration in relation to the landlord’s maintenance of the lifts within the building.
  3. In accordance with Paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

  1. Within 4 weeks of this report, the landlord should write to the resident to apologise for the failures identified within this report.
  1. Within 4 weeks of this report, the landlord should pay compensation of £650 as follows:
    1. £500 for its handling of the leak.
    2. £150 for its complaint handling.
  2. Within 8 weeks of this report, the landlord should review this complaint in relation to how it dealt with the emergency leak and associated works. The landlord should provide its action plan of how it will improve its repairs service.

Recommendations

  1. The landlord should work with stakeholders to implement measures to deter and reduce instances of criminal damage and gather evidence against alleged perpetrators so as to lessen any subsequent impact upon residents.
  2. The landlord should reply to this Service with evidence of compliance with the orders within the timescales set out above.