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Birmingham City Council (202310402)

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REPORT

COMPLAINT 202310402

Birmingham City Council

13 May 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. This complaint is about the landlord’s handling of the resident’s concerns about the condition of her kitchen.
  2. The Ombudsman has also considered the landlord’s handling of the associated complaint.

Background

  1. The resident is a secure tenant of the landlord. The landlord is a local authority. The property is a 2-bedroom flat. The tenancy started on 18 May 2009.
  2. The landlord told this Service it has no known vulnerabilities recorded for the resident. The resident informed this Service that she has several medical conditions, including epilepsy, diabetes, hypertension, depression, and osteoporosis.
  3. In August 2022, a councillor wrote to housing complaints with a copy of a letter from the resident about her kitchen not being safe. The resident said an occupational therapist attended and told her there was nothing it could do, and she should contact her landlord about her request for a replacement kitchen. The local authority responded to the councillor directly to clarify the position with adult social care and housing. It is not clear which department responded.
  4. The resident complained to the corporate director of the adult social care team on 14 February 2023. She said:
    1. She had been told work would be done to her kitchen since she moved in in 2009.
    2. She cannot reach the kitchen cupboards as they are too high, which means the only way to use them is to stand on a ladder.
    3. She has epilepsy amongst other illnesses.
    4. She only has one worktop which was unhygienic to use, and she has nowhere to store her pots and pans.
  5. Adult social care contacted the resident on 24 February 2023 to confirm the subject of her complaint.
  6. On 13 March 2023, system records show housing contacted adult social care following a call with the resident. Housing noted it was unauthorised to open the casefile and asked adult social care to contact the resident.
  7. Adult social care issued its initial complaint response on 5 April 2023. The resident escalated her complaint to stage 2 on 21 April 2023. She said that when she moved into the property in 2009, the landlord told her she would get a new kitchen. Had she known this was not going to happen, she would not have moved into the property.
  8. Records show adult social care asked the housing team to provide its comments regarding the complaint. Housing said it had tried contacting the resident to discuss matters, but it was unable to reach her. It said it wanted to complete a stock condition survey to assess the condition of the kitchen. It asked adult social care to obtain dates the resident would be available, so it could arrange this.
  9. Adult social care issued its final complaint response on 26 May 2023. Within its response, it asked the resident to provide dates that she would be available for housing to complete a stock condition survey. It said housing had opened a new file (reference 55483485) and upon receipt of the resident’s information, housing would contact her directly. Referral rights were provided to the Local Government and Social Care Ombudsman (LGSCO).
  10. This Service wrote to the landlord on 6 July 2023 asking it to address the resident’s complaint about the condition of her kitchen and the landlord’s response to her request for this to be renewed.
  11. An Ombudsman co-ordinator from the local authority wrote to the resident on 11 July 2023. It said in response to contact from the Housing Ombudsman Service, it was reissuing the complaint responses from its adult social care team, and the complaints process had been exhausted.


Assessment and findings

  1. We provide a dispute resolution service which is an alternative to a legal route. We frame our approach by three principles – be fair, put things right and learn from outcomes.

Relevant policies, procedures, and laws

  1. The landlord’s empty property repair standard sets out that kitchens will have a minimum of a sink unit, another base unit, and a wall unit. There will also be a worktop.
  2. The landlord’s repair policy states a repair shall be undertaken in all cases. Only where it is not practical or uneconomic to carry out a repair shall a renewal or replacement be carried out. It confirms the landlord is responsible for the kitchen units and work surfaces.
  3. The landlord’s repair policy says residents are responsible for reporting any repair needed to the property for which the landlord is responsible. The landlord should complete urgent repairs within a maximum of 7 working days and routine repairs within 30 days.
  4. The landlord provided a copy of its 3-stage complaint procedure (undated). It sets out the following complaint stages and response times:
    1. Stage 1 – where the landlord can settle the complaint “on the spot”.
    2. Stage 2 – the department that provided the service will investigate and respond within 15 working days.
    3. Stage 3 – an independent officer will respond within 20 working days.

Scope of investigation

  1. The resident said the situation was stressful and impacted her health. The Ombudsman empathises with the resident. However, as this Service is an alternative to the courts, we are unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on the health of a resident. Nor can we calculate or award damages. These matters are better suited for consideration by a court or a personal injury claim. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.
  2. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner – usually within 6 months of the issue occurring. As the substantive issues become historical, it is increasingly difficult for either the landlord, or an independent body to conduct an effective review of the actions taken to address the issues. Based on the above, the Ombudsman will not investigate the resident’s allegation that the landlord promised her a replacement kitchen in 2009.
  3. The resident’s complaint letter from February 2023 was addressed to adult social care. In the interest of fairness, the Ombudsman has considered matters which occurred from August 2022 onwards, when a councillor contacted housing directly about the resident’s concerns. Reference to historical events is to provide context only.
  4. Paragraph 42(j) of the Scheme states the Ombudsman may not consider complaints which fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body. As such, the Housing Ombudsman Service will not consider the resident’s complaints about the actions and decisions made by adult social care. These are matters for the Local Government and Social Care Ombudsman (LGSCO). This report solely considers the actions of the local authority acting in its capacity as a landlord.

The landlord’s handling of the resident’s concerns about the condition of her kitchen

  1. When a resident raises a request for a repair or concerns about part of the property the landlord is responsible for, the Ombudsman expects a landlord to manage this in line with the timescales set out in its repair policy.
  2. Within the landlord’s records, it is evident that historically, the landlord was in contact with the resident about her kitchen. Contractors reported that the resident refused kitchen repairs in 2021. However, there are also notes from another department stating the resident disputes this. The resident told adult social care that contractors were unable to complete works due to electrical issues.
  3. The Ombudsman has seen a copy of an email between adult social care and a councillor dated 10 August 2022. This email states the request for kitchen repairs was originally placed with housing but this was declined. It then submitted the request to the minor works team (which is for adaptation work under £1000). However, the contractor advised that to lower the units, the kitchen needed to be rewired which would exceed the budget. Therefore, it appointed an occupational therapist to assess the resident’s circumstances.
  4. In this case, the resident was dealing with two different departments, each with separate responsibilities and duties. The landlord has not evidenced that it told the resident directly what it was responsible for or explained what works it could/could not do. In these circumstances, it would have been appropriate for the landlord to set out its final position in writing, for the resident to refer to, and share with other parties involved. The Ombudsman considers this to be a communication failing which confused the resident and meant she spent more than a reasonable amount of time chasing for updates and trying to progress works to the kitchen. This was a service failure.
  5. The Ombudsman is aware that to resolve this complaint, the resident is seeking a replacement kitchen. It must be noted that as per the landlord’s repair policy, its starting position is to consider a repair. In this situation, we would expect the landlord to visit the property to assess the condition of the kitchen.
  6. The landlord evidenced that it attempted to contact the resident on multiple occasions to schedule a stock condition survey. The Ombudsman finds this was an appropriate course of action for the landlord to understand if the kitchen required any repairs that it was responsible for. Nonetheless, the shortcomings in the landlord’s communication throughout this case results in a determination of service failure.

The landlord’s handling of the associated complaint

  1. A councillor sent the resident’s concerns to the landlord in August 2022. The landlord provided a copy of the letter to this Service, in which the resident describes refusal for works by an occupational therapist. She said she was directed back to the landlord. She appeared caught between two functions of the local authority. Within the letter, the resident said, “it needs to be taken further and to fight this all the way.” She also said the landlord had previously agreed to replace her kitchen.
  2. The Housing Ombudsman’s Complaint Handling Code (the Code) is applicable to all member landlords. It says a complaint is defined as an expression of dissatisfaction, however made, about the standard of service, actions, or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents. Based on this, the Ombudsman is minded that the resident’s letter ought to have been treated as a complaint by the landlord and responded to in line with its obligations under the Code.
  3. The Code specifies a stage 1 complaint should be finalised in 10 working days, with no more than a further extension of 10 working days. A stage 2 complaint should be finalised within 20 working days, with a further extension of 10 working days if required. A landlord should not exceed these timescales without good reason. The landlord’s omission in treating the resident’s concerns as a complaint and responding in line with the timescales set out above is a failing.
  4. The Ombudsman recognises that the resident did not send her letter of complaint dated 14 February 2023 to the landlord. The Ombudsman has seen a copy of the envelope, in which the resident addressed her letter to the director of adult social care. Adult social care is a separate department with a separate statutory function to housing. The two areas do not share systems and so it was reasonable for the landlord to be unaware of this letter. However, it is concerning that the landlord failed to investigate and address the resident’s concerns through its internal complaint procedure when adult social care contacted the landlord about the condition of the kitchen as part of its complaint investigation. The landlord did not act pragmatically here.
  5. In March 2023, a call note shows the resident called the landlord to discuss her kitchen. From the limited information available, the resident was dissatisfied kitchen works had not progressed and she had not been updated. In the Ombudsman’s view, it was inappropriate for the landlord to pass the enquiry to adult social care without establishing whether there were any outstanding kitchen repairs that it was responsible for. It also failed to check whether the resident wanted to raise a complaint.
  6. From the evidence available, the Ombudsman is satisfied the landlord was aware of the resident’s dissatisfaction about the condition of the kitchen due to the letter from the councillor and the phone call from the resident. Additionally, this Service later had made the landlord aware of the complaint.
  7. It concerns the Ombudsman that when we asked the landlord to respond to the resident, it reissued the complaint responses by adult social care and said that was its final response. This was inappropriate as the landlord had not formally investigated the aspects of the complaint that it was responsible for. This was neither fair nor reasonable and indicates the landlord did not take the complaint seriously. Additionally, the landlord did not provide the resident with referral rights to the Housing Ombudsman Service. This caused confusion and delays in the resident escalating her complaint.
  8. Within the final response from adult social care, it provided a case/complaint reference for housing – 55483485. When this Service asked the landlord what happened with this case, the landlord informed us that it closed it as a duplicate of the adult social care complaint. This was unreasonable in the circumstances as elements of the resident’s complaint were about the condition of the kitchen. This was not the responsibility of adult social care. Further, it did not evidence that it wrote to the resident to set out its final position.
  9. Despite several opportunities, the landlord failed to address the resident’s concerns through its formal complaint procedure. This is a complaint handling failure and not in the spirit of the dispute resolution principles. The landlord has a duty as a member landlord to record and respond to all complaints in line with the Code. Its failure to do so meant the landlord missed opportunities to remedy the resident’s concerns, address and resolve the wider aspects of the resident’s complaint, show empathy, and improve the landlord/tenant relationship. It also prevented the resident from accessing this Service and contributed to delays resolving the resident’s concerns.
  10. The Ombudsman notes that the complaint policy provided to this Service by the landlord is not compliant with the Code. In view of the publication of an updated Code in February 2024, we require all landlords to complete a self-assessment. We are engaging with landlords to complete this outside of any individual complaint. Therefore, we have not ordered a self-assessment or a policy review within this determination.
  11. Overall, the Ombudsman concludes the landlord did not use the complaints procedure as an effective tool in resolving the resident’s concerns but instead compounded the detriment caused. Considering the cumulative failings identified above, the Ombudsman has found maladministration.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the resident’s concerns about the condition of her kitchen.
  2. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s complaint.

Orders

  1. Within 4 weeks of the date of this report, the Ombudsman orders the landlord to:
    1. Pay the resident £150 compensation to recognise the impact of its complaint handling failures.
    2. Pay the resident £100 compensation for the distress and inconvenience caused by the communication failings identified.
    3. Contact the resident to arrange an appointment to survey the condition of the kitchen. If the landlord is unable to contact the resident by telephone, it must write to the resident with an appointment date, providing at least 10 days’ notice. The landlord must notify this Service of the appointment date. It should then write to the resident within 7 days of the survey, setting out its position regarding the kitchen. The landlord must also send a copy of this letter to this Service.
    4. Update its records in relation to the resident’s vulnerabilities, subject to any data protection requirements.