Birmingham City Council (202334867)

REPORT

COMPLAINT 202334867

Birmingham City Council

28 October 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:
   1. Handling of a mice infestation.
   2. Complaint handling.

Background

2. The resident is a secure tenant of the landlord and has lived in the property, a 3-bedroom second-floor flat, since 1983. He lives with a sensory impairment, mobility issues, and a long-term medical condition.
3. The resident has representatives who helped him in his dealings with the landlord and Ombudsman. The Ombudsman refers to them as the resident for the purposes of this report.
4. The resident wrote to the landlord on 27 July 2023. He explained that he had severe problems with mice in the property. He said he was 92 years old, and it was unacceptable that he was living in such conditions. He told the landlord that there were several other flats in the block that also had issues with mice. He said this should come under the landlord’s statutory obligation to deal with infestations in blocks. He asked it to investigate the matter urgently.
5. The landlord completed an inspection of the property on 1 August 2023. It explained its results internally and found:
   1. The main problem for the resident was the infestation of mice. He was trying his best with traps and poison. It still needed to see evidence of the presence of mice in the property.
   2. He was extremely elderly and had tried to get its pest control team to attend. They would treat for rats but not mice in domestic situations.
   3. It had requested a repair for full proofing works in the hope that it could prevent access, but this may not be fully possible due to the presence of his belongings within the property.
   4. If the resident took out a “section 82” (This is in relation to the Environmental Protection Act 1990 and allows residents to act against their landlord through the courts for issues of statutory nuisance), it had to meet its statutory duty, and its pest control team would help him.
   5. It asked if there was any other way it could arrange to pay for pest control. It believed the issue must affect other flats within the block.
6. The landlord apologised to the resident on 3 August 2023 for the inconvenience he experienced, and the delay in updating him. It explained the findings of its inspection and said it had raised an order to carry out baiting and remedial works. It would complete these within the next 4 to 6 weeks. It said this was in line with the normal timescales for carrying out baiting. It told him it would monitor the repairs to ensure completion as agreed and update once finished. It said it would ensure the actions would resolve the problem.
7. The resident raised his complaint on 9 August 2023 to the landlord. He said:
   1. When its contractors visited the property, there was evidence of mice in the flat. This included traps and mice droppings. The landlord said that there was no evidence of mice present in its email and this was surprising.
   2. A number of other flats in the building were also experiencing mice infestations. As such, it needed to treat the issue urgently as a block wide issue.
   3. He asked for someone to urgently attend to his property. He wanted the landlord to arrange for someone to eradicate the mice within the next few days.
   4. That morning, he had found a mouse in the toilet and another one ran through his legs in the kitchen. He was elderly and vulnerable and it was unacceptable that the situation had continued for so long.
8. The landlord provided its stage 1 response on 21 August 2023. It said it had fully investigated the complaint and:
   1. Its pest control team had carried out baiting and proofing work at his property. They would visit again within 2 to 3 weeks.
   2. It found the resident’s complaint justified.
   3. It apologised for the difficulties he had, and the subsequent inconvenience caused by any delays with the work.
   4. A member of the local housing management team visited the address the previous week but there was no reply. They would contact him to offer any added support needed.
   5. It would monitor any scheduled appointments about the rodent proofing and ensure completion as agreed.
   6. It apologised again for any inconvenience experienced and would ensure the actions would resolve the problems.
9. The resident escalated his complaint to stage 2 on 25 August 2023. He said there was another visit arranged for that day. A contractor who attended the previous week mentioned they thought the mice were in the wall cavities. As such the poison and traps would not prevent them from coming into his flat. He asked the landlord to treat the wider block, including within the internal fabric of the building. He said that this meant that the landlord could treat the infestation at the source. This was the only way to deal significantly with the issue otherwise the mice would keep returning to his property and causing significant issues.
10. The landlord acknowledged the resident’s stage 2 escalation on 4 October 2023 and apologised for the delay. It said it aimed to provide its final response by the end of the week. It provided him with an update on 9 October 2023, and said:
    1. Baiting and proofing took place on 14 September 2023. There was still evidence of droppings in the lounge and other areas of the property, and this could take a while to be completely clear. The resident also continued to buy humane sticky mice traps which he placed all over the property.
    2. It was contacting the housing officer involved in raising the job to see if they planned any follow up works. This was also to see if they had considered the wider block, as mentioned in the stage 2 complaint.
    3. It apologised for an unannounced visit on 17 August 2023. It explained that because of the initial complaint, it had requested for an officer to visit him to discuss support options for his living arrangements and conditions.
    4. It would request for an officer to make another visit at a convenient time.
    5. It had agreed to contact him on 16 October 2023 with a further update.
11. The landlord provided its stage 2 complaint response on 13 December 2023. It apologised for the delay in its final response and the distress and inconvenience caused. It found:
    1. The issue had been ongoing since August 2023.
    2. It had liaised with the local housing and pest control teams. They said that both teams had been working with the resident to treat the infestation. They used both bait and traps, and environmental health also completed a site visit where they replenished baited areas.
    3. It carried out an initial inspection on 10 August 2023 and its pest control team baited the property at all points of ingress.
    4. It inspected on 8 September 2023 and noted that a private company had also carried out treatment. During the visit, it replenished the bait.
    5. As of 17 November 2023, it alerted the local housing team that the infestation remained. It arranged a site visit for 20 November 2023 where it noted that the mice had eaten the bait in the airing cupboard.
    6. On 27 November 2023, its pest control team were re-engaged to contact him and arrange to carry out further treatment and bait for mice.
    7. It carried out further treatment on 29 November 2023 and replenished all the bait as needed. Another contractor had also been treating the site. It would complete a further visit in the new year to the site.
    8. It had also arranged for completion of proofing works to the kitchen as it appeared to be the main point of ingress. It also requested for its operative to inspect the property and carry out proofing to any other areas that they found. It had scheduled a visit for 13 December 2023.
    9. Based on this it found the complaint “justified”.
    10. As a goodwill gesture, it said it would provide a cheque for £80 broken down as £40 for the delay in proving a response and £40 for the inconvenience caused.

Post complaint

12. The landlord’s notes state that it completed proofing works in December 2023. It filled holes in the resident’s living room, kitchen, hallway, cupboard, and bedroom. The resident however continued to see fresh mice droppings despite the numerous treatments and visits to the property. He told his MP that everyone who attended to inspect or carry out works “held the same opinion about the likelihood of success” (That unless it addressed the issue in the block the issue within the property would continue). He then referred his complaint to the Ombudsman.
13. The resident confirmed to the Ombudsman in February 2024, March 2024, June 2024, August 2024, and September 2024 that the issue with the mice remained ongoing. He wanted the landlord to resolve the issue with the pests within the building and his property.

Assessment and findings

Scope of investigation

14. The resident informed the landlord in July 2023 that he was experiencing problems with mice. He told the Ombudsman in September 2024 that the issue remained, and he had reported this to the landlord over the telephone. The Ombudsman approached the landlord for information about any further reports from the resident following its final complaint response. The landlord said it had no further correspondence of ongoing issues. As such, we are unable to determine whether it was aware of the ongoing issue. The Ombudsman’s investigation of the concerns in the resident’s property will focus on the landlord’s actions between July 2023 and December 2023.

Handling of a mice infestation

15. The tenancy agreement and landlord’s pest control policy both place responsibility for pests on the resident. This is when a resident’s actions lead to a pest issue. The pest control policy says the landlord will charge residents who have caused a pest or vermin infestation by not clearing away rubbish or dumping it in communal areas. It also states that it may carry out works but these are rechargeable.
16. The tenancy agreement also places responsibility for repairs to the structure and exterior of the “home” on the landlord. The Ombudsman would also consider that if a property is suffering from repair issues which allowed access for pests, the landlord is responsible for solving the issue. As such, the landlord appropriately exercised its discretion by deciding to fund the works needed to the resident’s property in 2023.
17. The resident reported his concerns to the landlord on 27 July 2023. The landlord arranged for an inspection of the property, 3 working days later. It raised concerns internally around the resident’s age following the inspection.
18. Two days later, it said it had raised works to carry out baiting and remedial works. It appropriately tried to establish the presence of the mice. Whilst the actions it took were reasonable, and it raised its concerns around the resident’s age, it did not show that it considered whether the situation posed any health and safety risks to him.  The landlord should have completed a risk assessment based on the resident’s vulnerabilities and its identified concerns. This would have been both a reasonable approach and in line with its duties under the Housing Health and Safety Rating System (HHSRS). This is because pests such as mice form part of the hazards that a landlord must keep a property free from. This would have allowed it to consider the potential risks and hazards of the pests on the resident. It should have assessed whether the vulnerability meant that it needed to take a different approach than usual to the situation.
19. The evidence shows that it was not until 9 October 2023 that the landlord began to consider the concerns in conjunction with the resident’s vulnerability. This is because it was aware that the resident was older and lived with health concerns. These potentially made him more susceptible to any risks posed by the pests. The failure to take such consideration promptly was unreasonable.
20. Whilst the landlord did consider additional support for the resident, this was more in relation to his living arrangements and conditions, rather than because of the pests. The failure to show that it considered additional support in relation to the pests was unreasonable.
21. The landlord said that it had attended the resident’s property on the week of 14 August 2023 but there was no answer. It said it had “carded” the property but there was no response. It also said that there was an unannounced visit on 17 August 2023. Given its concerns for the resident’s advanced age, it should have taken steps to ensure his wellbeing. It should have considered additional ways of contacting him. This would have allowed it to ensure his safety, and availability. It would have also allowed it to find out if he needed added support during the visit, and if so, ensure that this was available. The failure to do so was inappropriate and failed to consider the resident’s vulnerabilities.
22. The landlord’s operative asked that it complete proofing works following their inspection on 1 August 2023. The landlord’s records show that it raised proofing works the following day which was a prompt and appropriate response. It then attended his property on 8 September 2023 and recommended proofing works again. It said internally on 9 October 2023 that it had not completed proofing works since 8 September 2023. On the same day, it also told the resident that it had completed proofing works on 14 September 2023. This is contradictory, however, what is clear is that the proofing works remained outstanding for at least 1 month and this was unreasonable.
23. The resident said that the landlord did not contact him as promised in its update letter on 16 October 2023. It was not until the resident told it on 24 October 2023 that it had failed to contact him that it provided him with an update on the matter 8 days later. This was unreasonable as it had created an expectation with the resident. If there was a reason which stopped it from being able to keep to its commitment, it should have communicated this clearly to him. Clear and prompt communication is important around such issues as it may have shown to the resident that it was taking the matter sufficiently seriously.
24. The landlord continued to discuss the necessary works to the resident’s property internally. It said in its stage 2 response that it attended on 29 November 2023 to complete further works. However, its records do not show this, and this raises concerns with the landlord’s record keeping. Between October 2023 and December 2023, it looked to identify if it raised works to address the ongoing issue with the resident’s property. Its records show that it delayed in raising the “urgent” proofing works it had requested in October 2023. It did not do this until 6 December 2023 and completed the works on 13 December 2023. This represents a delay of 2 months, which was unreasonable. The delay to carry out proofing works promptly was a fundamental failure to fulfil its commitments.
25. The resident initially informed the landlord that other residents within the block also had pest issues in July 2023. He told it in his escalation request that its contractor believed the concerns to be a wider block issue. Although it acted around the issues in the resident’s property, it has not shown that it has taken any action to determine if the issue was a wider issue within the block. It also has not shown that if it was taking any action it took steps to reassure the resident that it was. This is unreasonable, especially as it had discussed this internally.
26. The Ombudsman asked the landlord on 16 September 2024 to provide clarity on when it completed works in the block around the pest issue. It did not provide a response. The Ombudsman provided it with a further opportunity on 30 September 2024. It responded on 4 October 2024 and said it completed works to the block on 29 November 2023. The evidence provided however suggests the treatment was to the ‘property’ and not the block. The landlord has provided no evidence that it carried out any treatment in the block. This raises questions with the landlord’s record keeping.
27. As the landlord considered that there may be a pest issue in the block, this meant it may not be localised to the resident’s property. This also meant the issue potentially formed a wider environmental concern within the block. It also shows that the landlord did not take proper consideration of its responsibilities under the HHSRS. Its failure to show any proper action around this concern also represents a delay of 4 months, between August 2023 and December 2023 and this is unreasonable.
28. In summary, the landlord took a number of reasonable actions in its attempt to deal with the issue of mice in the resident’s property. It appropriately raised works for baiting and proofing the property. It considered at several points between August 2023 and December 2023 how it could support the resident. There were however delays in the landlord acting around the resident’s concerns and considering his vulnerabilities. There were also concerns with its communication and record keeping.
29. The landlord offered the resident compensation of £40 for the inconvenience caused to him. This was in line with its policy which says it may offer discretionary compensation payment to recognise the inconvenience caused by a service failure. It also says that it will always consider non-financial remedies such as the actions needed to put things right, such as carrying out a repair. It took both options in this instance. However, the Ombudsman believes this did not go far enough.
30. This is because the landlord has not considered the level of frustration and distress likely caused to the resident. It did not sufficiently consider his personal circumstances and any risks/hazards. Although it did complete works to try to address the issue, it did not do enough to satisfy itself that it had properly resolved the issue. It has not sufficiently demonstrated that it completed any investigations to the block to assure itself the pests were isolated to the resident’s property. Based on this, the Ombudsman finds that there was maladministration.
31. Due to the ongoing nature of the resident’s concerns, and the lack of evidence of action around the potential wider issue, the Ombudsman has ordered that the landlord take necessary action based on its findings. The Ombudsman has also ordered the landlord to pay the resident additional compensation.

Complaint handling

32. The landlord’s complaints policy states it will acknowledge a complaint within 5 working days. The landlord appropriately provided its stage 1 response within the 10 working day timescales in its complaints policy. The resident escalated his complaint on 25 August 2023. The landlord did not acknowledge this until 4 October 2023. It did not explain the reason for the delay to the resident, and there was a delay of 28 working days in its acknowledgement. Although it apologised, its failure to appropriately communicate a reason for the delay was unreasonable and raises further concerns with its communication.
33. The landlord’s complaints policy states that it will provide a stage 2 response within 20 working days. This means that the complaint response was due on 22 September 2023. The landlord did not recognise that its response was late at the time of its stage 2 acknowledgement on 4 October 2023. This was unreasonable.
34. In the landlord’s acknowledgement email of 4 October 2023, it told the resident that it would provide him with a final response by the end of week. It failed to do so and provided an update on 9 October 2023. While proper that it provided an update, it has not shown that it kept in contact with the resident about the complaint. It has not shown that it explained the reason for any delays in providing its final response, or that it asked for any extensions, and this was unreasonable. The response then remained outstanding until 13 December 2023. This represents a delay of over 3 months, and this was inadequate.
35. The landlord apologised for the delay in its complaint handling. It offered the resident £40 in compensation. However, this does not go far enough. This is because the landlord’s offer does not adequately consider the level of delays involved in its handling of the complaint. It also does not consider its failure to appropriately communicate with the resident about the delays. Based on this, the Ombudsman finds that there was maladministration. The Ombudsman orders the landlord to pay the resident additional compensation.

Determination

36. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. Maladministration in the landlord’s handling of a mice infestation.
    2. Maladministration in the landlord’s complaint handling.

Orders

37. Within 4 weeks of this report the landlord must:
    1. Provide the resident with a written apology about the failings found in this report.
    2. Pay the resident compensation of £410, including its earlier offer of £80, broken down as:
       1. £250 for its handling of the mice infestation. This is based on the Housing Ombudsman’s remedies guidance. The amount is calculated on the basis that landlord has acknowledged some of its failings and attempted to put things right. It however failed to address the detriment to the resident properly, and its offer was not proportionate to the failings identified.
       2. £160 for its complaint handling. This is in line with the Housing Ombudsman’s remedies guidance. This is awarded on the basis that the landlord acknowledged some of its failings, but its compensation offer was not proportionate to the failings identified by the Ombudsman.
    3. Provide proof of compliance with these orders.
38. Within 6 weeks of this report the landlord must:

1. Complete an independent survey of the block and resident’s property to identify any treatments needed to help with the mice infestation. The survey must show that the landlord has investigated how widespread the infestation is within the block. It can achieve this by either surveying residents as a minimum, or by inspecting all the properties within the block if possible. The landlord must also explore the possibility of mice being inside the cavity walls.
2. Once it has completed the survey, it must then provide an action plan and schedule of works based on its findings in both the block and resident’s property, in writing to the resident and Ombudsman. This must include dates it proposes to carry out any works identified. It must identify if it needs to complete any further works to treat and proof the property (the resident’s flat) after completion of works to the block. It must also provide proposed timescales for the completion of these works.
3. The landlord must also complete a post inspection after it completes the works to satisfy itself that any treatments were successful.
4. Provide proof of compliance with these orders.