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Birmingham City Council (202229682)

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REPORT

COMPLAINT 202229682

Birmingham City Council

20 June 2025


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:
    1. Repairs following a leak into the property.
    2. The resident’s associated complaint.

Background

  1. The resident is a secure tenant of the property, a flat owned by the landlord. He lives with his wife and young child.
  2. On 14 December 2022, the resident reported a leak entering his property from the flat above. It attended on the same day but could not access the privately owned property above. A private plumber isolated the water to this property on 16 December 2022, and the landlord moved the resident to temporary accommodation so it could complete repairs.
  3. The resident complained to the landlord on 29 January 2023 because he returned to the property from temporary accommodation to find outstanding repairs, including water in the walls, broken heating, and damp. After this, he sought the help of a solicitor as part of the Pre-Action Protocol for Housing Conditions Claims.
  4. The landlord sent its stage 1 complaint response to the resident on 13 March 2023. It explained the works it completed after the leak and that it could not access the property for planned works to inspect the cavity walls on 1 February 2023 and a planned damp inspection on 2 March 2023. It provided new dates for works.
  5. The resident requested escalation of his complaint to stage 2 of the landlord’s process on several occasions between 17 July and 4 September 2023. He said the repair issues remained ongoing, and the landlord had overlooked his solicitor considering the property to be uninhabitable. It confirmed internally on 28 September 2023 that it fully settled his pre-action claim via his solicitor, including a £2,500 compensation payment for “disrepair and inconvenience”.
  6. On 10 November 2023, the landlord sent its stage 2 complaint response to the resident. It noted that he confirmed no further leaks had occurred during a conversation on 8 November 2023. It disputed that the property was uninhabitable and explained that it had awarded compensation to him on completion of the Section 11 repairs under the Landlord and Tenant Act 1985. It offered compensation of £75 for complaint handling failures and apologised for the distress and inconvenience caused.
  7. The resident remained concerned about damp in the property and brought his complaint to the Ombudsman for investigation.

Assessment and findings

Scope of investigation

  1. This investigation will not consider the adequacy of the compensation offered for the repairs and the proposed timescales for the works, as the landlord settled these matters with the resident via an agreement under the pre-action protocol on 28 September 2023. We will however look at how the landlord responded to his complaint, and whether it was reasonable in the circumstances. We will also assess matters occurring between this date and the landlord’s final complaint response of 10 November 2023. This is because any settlement agreed by the parties within the protocol claims related to the works and the inconvenience faced by the resident but could not have contemplated any future issues.
  2. The resident may wish to consider seeking legal advice on whether the claim was sufficiently dealt with. Our position is in accordance with the Housing Ombudsman Scheme (the Scheme) which states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal, or procedure. 
  3. The evidence provided shows that the resident has been reporting numerous issues with water ingress from the flat above between 2011 and 2012 and again from 2018 to 2019. The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 12 months of the matters arising. As such, we will not consider anything prior to the most recent leak in 2022 in this report.
  4. The resident told the Ombudsman on 17 October 2023 that there had been further issues relating to mould since his complaint. We will not investigate these matters, as we have not been provided with evidence that they have been dealt with as a formal complaint by the landlord. Our position is in accordance with the Housing Ombudsman Scheme which says that we may not consider complaints which are made prior to having exhausted a member’s complaints procedure.
  5. The resident has raised concerns that the condition of the property may have impacted his and his family’s health and safety. The courts are the most effective place for disputes about personal injury and illness. This is largely because independent medical experts are appointed to give evidence. They have a duty to the court to provide unbiased insights on the diagnosis, prognosis, and cause of any illness or injury. When disputes arise over the cause of an injury, oral testimony can be examined in court. Therefore, this element of his complaint is better dealt with via the court.

Repairs following a leak

  1. Under section 11 of the Landlord and Tenant Act 1985 the landlord is responsible to keep the structure and exterior of the property in good order.
  2. When the resident reported the leak from above on 14 December 2022, the landlord visited on the same day. It found the flat above to be privately owned and it could not gain access. It attended again on 16 December 2022 and found the private owner had arranged their own plumber.
  3. It is unclear when the landlord moved the resident into temporary accommodation, but he returned to the property in January 2023 after it had completed works from the leak. On 29 January 2023, he complained and raised concerns about outstanding repairs and issues, as follows:
    1. There was water in the walls.
    2. The gas heating was not working.
    3. It had not fully repaired the bathroom.
    4. There were “considerable” levels of damp all over the property.
  4. The resident also approached his MP about the ongoing issues and the MP contacted the landlord on 30 January 2023.
  5. The landlord raised repairs for all issues on 31 January 2023 and attended on the 1 February 2023 but could not gain access to the property. It noted on 2 February 2023 that an ongoing water leak was coming from behind a built-in cooker in the property. It said the resident had a third-party company fit a new kitchen and they left a valve uncapped on the pipework. It said it was the resident’s responsibility to remove the kitchen to allow the landlord access.
  6. On the 2 February 2023, the resident’s solicitor wrote to the landlord to begin the pre-action protocol for housing conditions claims. It listed the following issues:
    1. Damage to the kitchen, bathroom, bedroom, and hallway from a leak above.
    2. A defective front door.
    3. A defective heating system.
    4. Leak damaged flooring in the hallway and bedroom.
  7. It is unclear when the landlord received the letter from the resident’s solicitor. It continued to try and visit the property throughout February 2023 for works but could not gain access on most occasions.
  8. In its stage 1 complaint response to the resident on 1 March 2023, the landlord did not mention the ongoing pre-action protocol. It is unclear whether the complaint handler was aware of the ongoing process. However, it gave a history of works since his return and explained that it had been unable to access the property for works to treat damp and inspect the cavity wall. It apologised for the inconvenience leading to the ongoing situation.
  9. The landlord’s stage 1 response was factual and specific about the actions it had taken since receiving the resident’s complaint. However, it was seemingly unaware of the pre-action protocol despite this starting approximately 6 weeks before its response. He raised this with the landlord in a telephone call on 14 March 2023.
  10. The pre-action protocol included an expert witness report prepared by the resident’s solicitor and it subsequently raised works under section 11 of the Landlord and Tenant Act 1985.
  11. The resident’s MP shared the witness report with the landlord on his behalf on 17 July 2023. The MP asked it to accept the unresolved issues within the landlord’s formal complaints procedure as a stage 1 complaint. As it had already provided a stage 1 response, this should have triggered a stage 2 escalation.
  12. The resident made a further request for temporary accommodation on 1 August 2023, at which stage the landlord advised him to send any further correspondence via his solicitor due to the ongoing protocol. This was fair in the circumstances of ongoing legal proceedings.
  13. As of 28 September 2023, the resident and landlord settled the pre-action protocol claim with a payment of £2,500 compensation. The landlord checked the status of repairs internally and found that it had completed works, including paying to clear rubbish from the resident which it would not usually do. It said the compensation payment included disrepair and inconvenience to settle the claim in full and bring matters to a close. It confirmed his solicitor was no longer acting for him. It said it would agree to send an operative to post-inspect the works. This showed a good level of customer service as the resident agreed it had completed works as part of the settlement.
  14. On 8 November 2023, the resident reported a partial fault with the heating. The landlord logged this with a 3-day response time as per its repairs policy, which says it will complete urgent repairs within 1, 3, or 7 working days. It attended within a day and completed works to top up the air pressure in the affected radiator. This was a good response and within policy timescales.
  15. In its stage 2 complaint response of 10 November 2023, the landlord provided a thorough history of its communication with the tenant above the resident from 2011 to 2022 in relation to leaks in 2011 to 2012, 2018 to 2019, and the most recent leak of 2022. It said in a telephone call with him on 8 November 2023 he confirmed that there had been no further leaks into the property, and it explained that it has no repair obligations in a privately owned property.
  16. Also in its response, the landlord explained that it would not usually reimburse residents for repairs completed privately when it had already accepted responsibility for the repair in relation to the resident’s privately arranged bathroom repairs. However, it appropriately recommended that he approach its insurer to submit a claim for expenditure, including for repairs and privately sourced temporary accommodation. The landlord demonstrated good practice by giving this advice.
  17. Overall, while the landlord failed to acknowledge the ongoing pre-action protocol in its stage 1 response, its stage 2 response was fair and thorough. It offered appropriate information and explained its actions clearly. Its decision to refer the resident to its insurer was fair and its apology for the distress and inconvenience faced by the resident and his family was empathetic.

Complaint handling

  1. At the time of the complaint, the landlord used a 3-stage complaints policy, in which if it could not resolve a complaint immediately, it would aim to provide its first response within 15 working days and a second response within 20 working days of escalation.
  2. Following the resident’s complaint of 29 January 2023, the landlord did not respond at stage 1 until 13 March 2023 following intervention from the Ombudsman. This was a 31–working day response. It did not apologise for this delay, nor did it offer any remedy or redress.
  3. The landlord’s action was in line with its compensation guidance at the time of the complaint, which said it would not offer discretionary compensation or good will payments. However, it was not in line with the Ombudsman’s Complaint Handling Code (the Code) which states, where something has gone wrong a landlord must acknowledge this and set out the actions it has taken, or intends to take, to put things right. These can include:
    1. Acknowledging where things have gone wrong.
    2. Providing an explanation, assistance, or reasons.
    3. Apologising.
    4. Providing a financial remedy.
  4. As such, the landlord’s failure to offer any form of remedy in line with the Code was not appropriate.
  5. The landlord missed several opportunities to escalate the resident’s complaint to stage 2 between 17 July and 4 September 2023. It only began to investigate following further intervention from the Ombudsman on 17 October 2023. As such, it failed to adhere to its 20-working day policy response time.
  6. In the landlord’s stage 2 response of 10 November 2023, it apologised for not resolving the resident’s complaint in a timelier matter and acknowledge the adverse effects its excessive complaint backlogs were having on residents. It awarded compensation of £75 for the failures in escalating his complaint. This offer was fair when considering complaint handling only.
  7. Overall, there were and obvious failings in the landlord’s handling of the resident’s complaint. It did not offer appropriate redress at stage 1, nor did it acknowledge this in its stage 2 response. Its offer at stage 2 was fair for the delays in escalation. However, we will make a further order for compensation below in relation to its handling of his stage 1 complaint.

Determination

  1. In accordance with paragraph 53.b of the Housing Ombudsman Scheme, the landlord has offered redress to the complainant, which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the landlord’s handling of repairs following a leak into the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in respect of the landlord’s handling of the resident’s associated complaint.

Orders and recommendations

Orders

  1. Within 28 days of this report, the landlord is ordered to:
    1. Pay the resident compensation totalling £150, comprising:
      1. £75 for the failures identified in its stage 1 complaint handling.
      2. £75 as previously offered for complaint handling failures in its stage 2 response, if it has not done so already.
    2. Write an apology to the resident for the failures identified in its stage 1 complaint handling.
    3. Provide proof of compliance with the above orders to this Service.

Recommendations

  1. As the resident reported further issues with mould growth after the completion of the landlord’s complaints process, we recommended that the landlord contact the resident to ensure there are no ongoing issues.