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Birmingham City Council (202348410)

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REPORT

COMPLAINT 202348410

Birmingham City Council

31 January 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 the resident’s:

  1. Reports of leaks, and damp and mould within the kitchen.
  2. Concerns about damage caused by contractors to a wall and cupboard in the kitchen, and shower in the bathroom.
  3. Reports of leaks, and damp and mould within the bathroom.
  4. Concerns about asbestos within the walls of the property.
  5. Associated complaint.

Background

2.             The resident is a secure tenant of the landlord at the property, a 2-bedroom flat on the 6th floor of the building.

3.             In February 2023 the resident’s solicitor submitted a pre-action protocol letter in relation to disrepair within his property. The disrepair claim related to an on-going leak and associated water damage to the ceiling and walls within the kitchen. The resident had been reporting this leak since June 2020. The resident’s instructed surveyor provided a schedule of the outstanding works as part of this claim to the landlord on 15 May 2023.

 

 

 

4.             Between June 2023 and August 2023 the resident made several reports to the landlord about a leak, as well as damp and mould in his bathroom. The landlord carried out a treatment of the damp and mould in the resident’s bathroom during this period. The resident said that this treatment was unsuccessful. The resident also told the landlord that there was still a leak coming through the bathroom ceiling after its contractors had reported to have carried out the repairs.

5.             On 7 September 2023 the landlord’s contractor attended the resident’s property. The contractor told the landlord that the resident’s bathroom wall was in a poor condition due to the on-going leak in the bathroom. They said the leak was coming from the flat above, and down through the resident’s bathroom ceiling. The contractor advised the landlord and the resident that his bathroom ceiling would need to be tested for asbestos. In September 2023 the resident continued to chase the landlord for it to investigate the leak and carry out the repairs to his bathroom ceiling.

6.             On 11 December 2023 the resident’s member of parliament (MP) intervened. The MP asked the landlord to raise a stage 1 complaint about its investigation of the leak, the presence of damp and mould, and asbestos within the resident’s property.

7.             Between January 2024 and February 2024, the resident made several reports about the on-going leak within the kitchen of his property. His MP also chased the landlord for it to provide its stage 1 complaint response during this period. In April 2024 the Ombudsman intervened and advised the landlord to respond to the resident’s stage 1 complaint.

8.             In February 2024 the landlord’s contractors commenced works to install a new kitchen and a new bathroom at the resident’s property. It said it would aim to complete these works by 31 March 2024.

9.             On 14 March 2024 the county court issued a judgement for the landlord to pay the resident £400 in damages. The landlord was also ordered to carry out the works to the resident’s kitchen as per the schedule of works issued to it previously on 15 May 2023.

10.        The resident has stated that the installation of the new kitchen and bathroom was completed in May 2024. He has advised the Ombudsman the landlord’s contractors attended within a week of it completing the installation to carry out further works. The resident has said that during this visit the contractors caused damage to part of the wall in the kitchen and the kitchen cupboards. The resident has also said that the contractors caused damage to his shower which had also just been installed.

11.        The landlord provided its stage 1 complaint response on 13 May 2024. It apologised for its delay in responding to the resident’s complaint. The landlord accepted that the resident had been reporting the leak in his property for some time. It said that it had upgraded the resident’s bathroom and kitchen as part of its programme of works. The landlord explained that during these works it identified the leaks in his property had been due to damage within the soil and vent pipes of the building. The landlord accepted that in September 2023 its contractor had updated that the resident’s bathroom ceiling should be tested for asbestos. The landlord said the recent upgrade to the resident’s bathroom should have resolved his concerns about the asbestos. It awarded the resident £378 compensation for distress and inconvenience.

12.        Between May 2024 and June 2024 the resident and his MP told the landlord that there were still issues with leaks, and damp and mould within his property. They requested the landlord escalate the resident’s complaint. During this period the landlord’s contractor had carried out a further investigation and identified that the cause of the on-going leak into the resident’s property was coming from disrepair within his neighbour’s property, 2 floors above his.

13.        Between July 2024 and August 2024 the resident and his MP continued to chase for the landlord to respond to his repairs. They also asked the landlord for it to provide its written response to his stage 2 complaint. During this period the landlord carried out an inspection of the resident’s property. The landlord accepted that the leak had been repaired but there were still water marks on the walls and ceiling within the kitchen and bathroom. The landlord carried out the outstanding repairs to the bathroom on 2 September 2024.

14.        On 25 September 2024 the Ombudsman intervened and advised the landlord to provide its final response to the resident’s complaint within 5 working days.

15.        The landlord provided its final response to the resident’s complaint on 9 October 2024. It apologised that it had not originally escalated the resident’s complaint. The landlord said that it would complete the outstanding works following the leak in the resident’s kitchen within 30 working days.

16.        The resident remained dissatisfied with the landlord’s final response to his complaint. The resident brought his complaint to the Ombudsman stating he wanted the landlord to acknowledge its failings in carrying out the repairs to his property as referred to above. He also wanted the landlord to acknowledge the detriment caused to him by its failings in its handling of these repairs.

 

 

17.        The landlord has said that in October 2024 it carried out a damp and mould survey within the resident’s property. Its contractors had treated the resident’s kitchen ceilings and walls with antimould paint. The landlord has advised the Ombudsman that some of the works within the county court order dated 14 March 2024 remain outstanding due to it being unable to gain access to the resident’s property.

Jurisdiction

18.        What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

The resident’s reports of leaks, and damp and mould within the kitchen.

19.        Paragraph 42.e. of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints, which in the Ombudsman’s opinion concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings.

20.        The resident told the Ombudsman that he had been reporting the leak in his kitchen to the landlord since June 2020. Information provided by the landlord shows that the resident filed a disrepair claim for this issue on 20 February 2023. This matter was settled within the county court on 14 March 2024. The landlord was ordered to pay the resident £400 in damages and carry out the repairs as highlighted in the schedule of works submitted to it on 15 May 2023. The Ombudsman cannot investigate this aspect of the resident’s complaint as it has been subject to legal action.

21.        Therefore, after carefully considering all the evidence, in accordance with paragraph 42.e. of the Scheme, the aspect of the complaint about the resident’s reports of leaks, and damp and mould within the kitchen is outside of the Ombudsman’s jurisdiction.

22.        The landlord has advised the Ombudsman that there has been a breakdown in communication and some of these outstanding works were placed on hold on 9 January 2025 due to its contractors being unable to gain access to the resident’s property.

 

 

 

The resident’s concerns about damage caused by contractors to a wall and cupboard in the kitchen, and shower in the bathroom.

23.        Paragraph 42.a. of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints, which in the Ombudsman’s opinion are made prior to having exhausted a member’s [landlord’s] complaints procedure, unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

24.        The resident has advised the Ombudsman that between February 2024 and May 2024 the landlord installed a new kitchen, and a new bathroom within the property. Whilst the contractors installed the new bathroom, they also fitted a shower which the resident had purchased separately. In May 2024, shortly after the installation of the kitchen and bathroom had been completed, the landlord’s contractors returned due to part of the kitchen being installed incorrectly. The resident has stated that as part of these further works the landlord’s contractors caused damage to part of a dry wall in the kitchen, some cupboards and broke his shower. The Ombudsman acknowledges what the resident has said, and we understand that he is keen for this matter to be resolved as soon as possible.

25.        However, there is no evidence that the resident or his MP raised these concerns as a complaint to the landlord. Therefore, in line with paragraph 42.a. of the Scheme, this complaint has not exhausted the landlord’s internal complaints process. If the resident wishes to pursue his complaint about damage caused by contractors to a wall and cupboard in the kitchen, and shower in the bathroom, he should contact the landlord to raise a new complaint. The resident can then refer the complaint to the Ombudsman if he remains dissatisfied with the landlord’s final response to the new complaint.

Assessment and findings

26.        When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. There are three principles driving effective dispute resolution: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.

27.        The Ombudsman must consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes.’

 

Scope of Investigation

28.        Section 42.c. of the Housing Ombudsman Scheme states that we may not consider complaints which, in the Ombudsman’s opinion were not brought to the landlord as a formal complaint within a reasonable period which would normally be within 12 months of the matters arising.

29.        The Ombudsman has taken into consideration that the resident has said that there have been issues with leaks within the building for over 20 years. He has also said that he has been reporting issues with leaks within his flat for around 4 years. The Ombudsman does not doubt what the resident has said. However, in line with the Scheme, the Ombudsman has considered the landlord’s handling of the resident’s reports of leaks, and damp and mould within the bathroom of his property between December 2022 to the landlord’s final response, provided on 9 October 2024.

The resident’s reports of leaks, and damp and mould within the bathroom.

30.        The landlord’s repairs policy states that its repairs fall into the following categories:

31.        Emergency – The landlord states this is a repair where there is a danger of injury or damage to property. It will respond to this type of repair within 2 hours.

32.        Urgent – The landlord states this is a repair where it concerns protecting the health and safety of the resident and their family or the security of the property. It will respond within 7 working days to this type of repair.

33.        Routine – The landlord states it aims to complete these types of repairs within 30 days. Where the landlord needs longer due to the size of the repair or where it needs specialist materials, it will advise the resident what timescale they can expect for the repair to be completed.

The landlord’s repairs policy states that all responsive repairs will be carried out by appointment. It is responsible for the internal walls and floors within the property. The landlord is also responsible for surveys, providing advice and monitoring damp and mould within the property to help tackle the issue. Residents must allow the landlord or its authorised contractors access to their property, in order for it to inspect or to carry out repair and maintenance works. This would normally be between 7am and 8pm Monday to Friday, unless in an emergency.

 

 

34.        On 6 June 2023 the resident reported an emergency repair to the landlord about a leak coming through his bathroom ceiling. The landlord attended to this repair the same day and identified that the cause of the leak was coming from outside the resident’s property. The landlord’s contractor said they completed the repair the following day. This was an appropriate response by the landlord as it attended to the repair in line with its repairs policy, as set out above.

35.        On 22 June 2023 the resident raised a further emergency repair to the landlord of another leak coming through his bathroom ceiling. Records reviewed by the Ombudsman show that the landlord’s contractor visited the resident’s property 3 times between 27 June 2023 and 29 June 2023. On each occasion the contractor reported that they had not been given access to the property. The Ombudsman is not questioning the reasons why the resident did not allow access, but the landlord could not be held responsible for any delays arising from a lack of access during this repair. However, the Ombudsman has not seen any evidence that the landlord left a calling card on these occasions. It is recommended therefore that the landlord ensure that its contractors take photos and leave cards to demonstrate that they were not able to gain access when this happens. It is recommended that the landlord or its contractors proactively follow-up with letters and phone calls to rebook appointments when they have not been able to gain access. 

36.        On 17 July 2023 the resident told the landlord that he had issues with damp and mould in his bathroom. The landlord carried out treatment of the damp and mould in the resident’s bathroom 17 days later, on 2 August 2023. This was an appropriate response because this would have been considered to be a routine repair. The landlord’s repairs policy states it will carry out these types of repairs within 30 days, as set out above.

37.        On 23 August 2023 the resident reported that the bathroom wall was in a poor condition following the previous leaks in his bathroom. The landlord’s contractor attended the resident’s property on 8 September 2023. The contractor said that further works were needed to complete this repair including that the wall should be tested for asbestos. Records reviewed by the Ombudsman show that the landlord closed this repair without completing any of these further works. This was not appropriate. The landlord should have arranged with the resident to complete these further works to repair his bathroom wall within 30 days as per its repairs policy, as set out above. This is evidence of poor handling of its repairs processes.

 

 

38.        On 11 December 2023 the resident’s MP contacted the landlord and asked it to raise a complaint about the landlord’s handling of these repairs. The MP told the landlord that its failure to repair the bathroom wall had led to part of the bathroom wall to fall away. This was chased by the resident’s MP in January 2024. The Ombudsman has seen no evidence that the landlord communicated with the resident or his MP about the damaged bathroom wall during this period. This is evidence of poor communication.

39.        On 13 May 2024, in the landlord’s stage 1 complaint response it said that the repairs to the resident’s bathroom had been resolved. Between May 2024 and July 2024, the resident, and his MP both told the landlord that the resident was still having issues with the leak, as well as damp and mould in his bathroom. Records reviewed by the Ombudsman show that the landlord raised a works order to carry out repairs to the bathroom, and that it liaised with the resident and his MP about this on 8 August 2024. The next day, the landlord also spoke with the resident who confirmed that the leak had been resolved but the damaged caused in the bathroom had not been repaired. The Ombudsman understands that this significant delay exacerbated the distress and inconvenience caused to the resident at that time.

40.        On 2 September 2024 the landlord’s contractor carried out repairs to the resident’s bathroom. They replastered the damaged wall and applied a stain block to the walls and ceiling.

41.        For the reasons described above, the Ombudsman makes a finding of maladministration in the landlord’s handling of the resident’s reports of leaks, and damp and mould within the bathroom. This includes the overall delays and poor communication during which the landlord failed to respond to the resident’s repairs in the bathroom for 6 months between August 2023 and February 2024, and again for a further 4 months between May 2024 and August 2024.

42.        The landlord is ordered to pay the resident £500 in compensation. This is in line with the Ombudsman’s remedies guidance (published on our website) which sets out the Ombudsman’s approach to compensation. This reflects that the resident suffered distress and inconvenience caused by the landlord’s delays and its failure to fully address and communicate with the resident over his concerns about the leaks, and damp and mould within his bathroom. Examples of this level of compensation in the guidance include where the landlord’s failures adversely affected the resident.

 

 

 The resident’s concerns about asbestos within the walls of the property.

43.        On 23 August 2023 the resident told the landlord that the wall in his bathroom was in a poor condition following an on-going leak. The landlord’s contractor attended to this repair on 7 September 2023. The contractor advised both the resident and the landlord that the ceiling would need to be tested for asbestos due to the ceiling being damaged. Records reviewed by the Ombudsman show that the landlord closed down this repair without carrying out any further works as recommended. The landlord should have carried out an inspection of the damaged ceiling for asbestos. It should then have shared the results of this survey with the resident. The landlord should have then completed any follow-on works within 30 days of its inspection, in line with its repairs policy, as set out above. This is evidence of poor handling of its repairs.

44.        On 11 December 2023 the resident’s MP raised a complaint to the landlord that the resident was still waiting for the landlord to update him about it testing his bathroom ceiling for asbestos.  On 13 May 2024 the landlord provided a response to the resident’s complaint. The landlord said that when it carried out works to upgrade the bathroom within the resident’s property that the landlord would have addressed this repair issue at that time. The landlord’s response was not appropriate in this circumstance. The landlord should have set out for the resident what it had done to address his concerns about their being asbestos in the walls and ceiling of his property. The Ombudsman understands that this poor communication by the landlord, as well as the delays to the repair, have exacerbated the distress and inconvenience caused to the resident at that time.

45.        The Ombudsman has seen evidence that the landlord investigated the resident’s complaint about there being asbestos within the walls of his property in May 2024. The landlord confirmed that 20 percent of the flats within the resident’s building had been tested for asbestos. The resident’s property had not been part of this sample test. However, the landlord confirmed that within 20 percent of the building that was tested, that none of the building had showed signs of having asbestos within it. The Ombudsman considers that it would have been reasonable for the landlord to have communicated this to the resident as part of its complaint response. The landlord failed to address this aspect of the resident’s complaint within its final response, provided to the resident on 9 October 2024. This is evidence of poor communication.

46.        For the reasons described above, the Ombudsman makes a finding of maladministration in the landlord’s handling of the resident’s concerns about asbestos within the walls of the property.

 

47.        The Ombudsman has considered our own remedies guidance as referred to above. The landlord is to pay the resident £150 compensation for distress and inconvenience. The Ombudsman has taken into consideration that the landlord did investigate this aspect of the resident’s complaint during its complaints process, although it showed poor communication with the resident about its investigation. The resident’s building did not show signs of asbestos. Therefore, although the resident was understandably worried out the asbestos, the detriment was minimal to him during this period, and this has been reflected within the level of compensation awarded to the resident.

The resident’s associated complaint.

48.        The landlord has a 2-stage complaints process. It will acknowledge a resident’s complaint within 5 working days. It will then provide a written response at stage 1 within 10 working days of its acknowledgment of the complaint. It will provide a written response at stage 2 within 20 working days. The landlord will provide a resident with an explanation if it requires more time to respond to a resident’s complaint, at either stage.

49.        On 11 December 2023 the resident’s MP raised a stage 1 complaint about the on-going leak, and the presence of damp and mould within his property. Records reviewed by the Ombudsman show that between December 2023 and February 2024 that the resident’s MP continued to chase the landlord for it to respond to the resident’s complaint. The Ombudsman has not seen any evidence that the landlord responded to this request during this period. This is evidence of poor communication.

50.        On 30 April 2024 the Ombudsman advised the landlord to respond to the resident within 10 working days with its stage 1 written complaint response. The landlord provided its stage 1 complaint response on 13 May 2024. This was 106 working days later. This should have been provided within 10 working days as per its complaints policy, as set out above. This is evidence of poor complaint handling.

51.        On 30 May 2024 the resident requested for the landlord to escalate his complaint. He said this was because the repairs he had raised had not been resolved. In July 2024 the resident’s MP asked the landlord to confirm it had escalated the resident’s complaint. The Ombudsman has not seen any information that the landlord responded to the resident or his MP during this period, about the escalation of his complaint. This was not appropriate. The Ombudsman would expect a landlord to acknowledge a resident’s complaint within 5 working days, in line with the Ombudsman’s Complaint Handling Code (which sets out our service’s expectations for landlords’ complaint handling).

 

52.        On 25 September 2024 the Ombudsman intervened a further time and advised the landlord to provide its final response to the resident’s complaint within 5 working days. The landlord said it needed to extend its timescale to respond to the resident’s complaint. The Ombudsman would expect a landlord to communicate any extension within its initial response time of 20 working days. This request was 90 working days after the resident had escalated his complaint and was therefore not appropriate.

53.        The landlord provided its final response to the resident’s complaint on 9 October 2024. This was 95 working days after the resident originally requested the landlord escalate his complaint. This should have been provided within 20 working days as per the landlord’s complaints policy, as set out above.

54.        For the reasons described above, the Ombudsman makes a finding of maladministration for the landlord’s handling of the resident’s complaint.

55.        In line with the Ombudsman’s remedies guidance, as referred to above the landlord is to pay the resident £200 compensation for the distress and inconvenience for its significant delays, and poor communication in its handling of the resident’s associated complaint.

Determination (decision)

56.        In accordance with paragraph 42.e. of the Housing Ombudsman Scheme, the landlord’s response to the resident’s reports of leaks, and damp and mould within the kitchen, as set out above, is not within the Ombudsman’s jurisdiction to consider.

57.        In accordance with paragraph 42.a. of the Housing Ombudsman Scheme, the landlord’s response to the resident’s concerns about damage caused by contractors to a wall and cupboard in the kitchen, and shower in the bathroom, as set out above, is not within the Ombudsman’s jurisdiction to consider.

58.        In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s:

  1. Reports of leaks, and damp and mould within the bathroom.
  2. Concerns about asbestos within the walls of the property.
  3. Associated complaint.

 

 

 

Orders and recommendations

Orders

59.        The landlord is to apologise to the resident in writing. The apology is to be in line with the Ombudsman’s guidance that it acknowledges the maladministration for which it expresses a sincere regret for its handling of:

  1. Reports of leaks, and damp and mould within the bathroom.
  2. Concerns about asbestos within the walls of the property.

60.        The landlord is to pay the resident compensation of £850. The breakdown of this compensation is as follows:

  1. £500 for its maladministration in its handling of the resident’s reports of leaks, and damp and mould within the bathroom. This includes the £378 it awarded during its complaints process, which it may deduct if this has already been paid.
  2. £150 for its maladministration in its handling of the resident’s concerns about asbestos within the walls of the property.
  3. £200 for its maladministration in its handling of the resident’s associated complaint.

61.        The landlord is to pay the resident the £378 it awarded the resident in its stage 1 and stage 2 complaint response unless this has already been paid.

62.        The landlord should provide evidence of compliance with all of the above orders to the Ombudsman within 4 weeks of this report.

Recommendations

63.        The landlord should ensure that its contractors take photos and leave calling cards on each occasion to demonstrate when they are not able to gain access to a resident’s property.