Birmingham City Council (202010756)

REPORT

COMPLAINT 202010756

Birmingham City Council

6 December 2021

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

The complaint is about the landlord’s response to the resident’s reports of damage caused to:
1. The hot tub at the property whilst the landlord was undertaking adaptation repair works.
2. The Astro turf at the property whilst the landlord was undertaking adaptation repair works.

Background and summary of events

The resident is a secure tenant of a property owned and managed by the landlord which is a local authority. The property is a four bedroom end of terrace house.
The landlord’s repairs policy says that repair workers must take care of customer’s belongings, protecting them from damage, dust etc.
When repair work is in progress the tenant shall be advised by the repairs partner of action that is needed to protect possessions from damage or dust.
The landlord’s conditions of tenancy say a resident must take steps to store or protect their possessions while repair work is being done. The notes on the conditions of tenancy say that the landlord will take reasonable care when carrying out repair work but it may not be responsible if any of the resident’s property is damaged because the resident failed to take reasonable steps to store or protect it.
The conditions of tenancy also say that if something is damaged as a result of the landlord’s repairs, the resident must notify the landlord in writing within a period of 28 days from the time it was damaged or from the time the resident first became aware it was damaged.
The landlord’s compensation claims guide for tenants and leaseholders says that tenants are required to take out contents insurance and to pursue claims in the first instance through their own insurers.
Sometime prior to November 2019 the local authority’s occupational therapy team submitted a priority needs assessment to the landlord, requesting a bedroom extension be built as part of the aids and adaptations process. The landlord agreed to carry out the adaptation work to the property, funded from its housing revenue account.
The adaptation work was completed by the landlord’s contractor (“the contractor”) and its sub-contractors in May 2020.
Sometime following the start of the works the resident informed the contractor that it (or its sub-contractors) had damaged her hot tub and Astro turf. The resident maintains that the contractor visited the property to inspect the damage and that she provided it with photographs of the damage taken by the resident. The contractor offered to pay the resident £200 as a goodwill gesture, which the resident refused.
On 23 November 2020 the resident made a complaint to the landlord. In her complaint the resident said that:
1. Her hot tub had been collapsed and was ready to bring into the house whilst the works were being carried out. However, the contractor started work before she expected and started taking down the shed, parts of which fell on the top of the hot tub.
2. The contractor had dumped “tons of mud” on the Astro turf that she had left in the garden. The resident said that the Astro turf was two pieces of pet friendly Astro turf eight metres by two metres, which had cost £12 a metre (therefore a total cost of £768).
The landlord acknowledged the resident’s complaint on 23 November 2020.
An internal email between members of the contractor’s staff dated 27 November 2020 said that the hot tub was in the garden and got covered in dust when the asbestos company were removing the cement board from the roof. The email also said that the “tenants I believe were informed by the [contractor’s liaison officer] that works were commencing and that they should remove all effects from the garden. The same applies to the Astro turf within the garden area this should have been removed by the tenant.”
On 14 December 2020 the landlord sent the resident an email saying it had passed on her complaint to the contractor who would contact her regarding compensation about the damage. The landlord also said that if she was unhappy with the way it had dealt with her complaint, she could ask for it to be reviewed.
The resident requested a review of the complaint on 15 December 2020.
On 16 December 2020 the landlord sent an email to the resident with its review response. In its review response the landlord said that:
1. The contractor stated that the resident had been advised that the Astro turf would need to be taken up and the area in question cleared.
2. Prior to any work commencing the contractor’s liaison officer had visited the resident and advised her to ensure that all her belongings were safely put away.
3. The contractor disputed that any works that it carried out damaged the hot tub.
4. The contractor acknowledged that the Astro turf has been damaged by someone at some point. The contractor’s sub-contractors denied they were responsible.
5. In an attempt to resolve the matter, the contractor was offering to increase the goodwill gesture to £350.
The landlord’s email dated 16 December 2020 was its final response to the complaint, confirming that the landlord’s internal complaints process had been exhausted.
During the course of this investigation the resident has informed this service that she is experiencing problems with the works that were carried out to the garden at the property. However, these matters have not been raised as a complaint to the landlord. The Ombudsman’s role is to investigate complaints brought to it that have exhausted a landlord’s internal complaints process. This investigation report, therefore, concerns the matters which were the subject of the resident’s formal complaint in November 2020, and which were the subject of the landlord’s final response on 16 December 2020.

Assessment and findings

In reaching a decision about the resident’s complaint we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

The landlord’s response to the resident’s reports of damage caused to the hot tub

It is noted that the contractor was acting on behalf of the landlord at all times in its dealings with the resident.
The Ombudsman has seen no evidence that the resident notified the landlord in writing within 28 days of the damage to the hot tub in accordance with the condition of tenancy (see paragraph 6 above).
Under the terms of the conditions of tenancy set out in paragraph 5 above a resident must take steps to store or protect their possessions while repair work is being done. The landlord was therefore under no tenancy obligation to pay the resident any compensation for possessions that she had failed to store or protect.
As set out in the landlord’s repair policy (see paragraph 4 above) when repair work is in progress the tenant shall be advised by the repairs partner of action that is needed to protect possessions from damage. The resident accepts that she was made aware that she needed to move the hot tub but says that the workmen did not knock on the door to tell her they were starting work that day. As the landlord had informed the resident that she needed to move the hot tub there was therefore no service failure by the landlord in respect of the damage to the hot tub.

The landlord’s response to the resident’s reports of damage caused to the Astro turf

The resident maintains that she had been told by the work men who attended the property in November 2019 that she could leave the Astro turf at the end of the garden, and it wouldn’t be damaged. However, the landlord maintains that prior to any work commencing the contractor’s liaison officer had advised the resident to ensure that all her belongings were safely put away.
During the course of this investigation the landlord has informed this Service that, “Unfortunately, both the sub-contractor and [the contractor’s] site manager at the time no longer work for [the contractor], however both our sub-contractor and our site manager both had a different version of events. As a result, the [contractor’s] contract manager at the time (also no longer working for [the contractor]) was unable to clearly establish if our sub-contractor was responsible.”
The landlord has not provided this Service with any record of the contractor’s visit to the resident to advise her about the works and the need to ensure that her belongings were safely put away. Neither has the landlord provided any record of the contractor’s visit to the property to inspect the damage to the Astro turf, nor copies of the photographs given to it by the resident. The Ombudsman has also not seen copies of the following that it requested from the landlord as part of this investigation:
1. Correspondence and telephone contact notes concerning the resident’s reports of damage to the Astro turf.
2. Any records concerning the landlord’s investigation into the resident’s reports.
3. Copies of any correspondence or notices sent to the resident concerning the landlord’s findings.
This is unsatisfactory and has limited the Ombudsman’s ability to thoroughly investigate the landlord’s response to the resident’s reports of damage to Astro turf at the property, specifically:
1. What the contractor told the resident about moving her belongings, specifically the Astro turf, prior to the work commencing and therefore whether the landlord acted in accordance with the provisions of its repair policy that it should advise the resident of action needed to protect possessions from damage.
2. Whether the contractor’s initial response to the reports of damage was reasonable.
3. How quickly the contractor responded to the resident’s reports of damage.
4. What investigations the contractor carried out in response to the resident’s reports of damage.
The landlord’s lack of evidence that its response to the resident’s reports of damage to the Astro turf was fair and reasonable represents a service failure by the landlord.
As the landlord has failed to evidence that it wasn’t responsible for the damage to the Astro turf and as the damage or replacement cost does not appear to be disputed, it would not be fair for the resident to have to make a claim on her own insurance policy. The Ombudsman will therefore be making an Order that the landlord pay compensation to the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaint about the landlord’s response to the resident’s reports of damage caused to the hot tub at the property whilst the landlord was undertaking adaptation repair works.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the complaint about the landlord’s response to the resident’s reports of damage caused to the Astro turf at the property whilst the landlord was undertaking adaptation repair works.

Reasons

The landlord informed the resident that she needed to move the hot tub prior to the works starting.
There is a lack of evidence that the landlord’s response to the resident’s reports of damage to the Astro turf was fair and reasonable.

Orders

The landlord is ordered within four weeks of the date of the determination to:
1. Pay the resident total compensation in the sum of £768, representing the cost of the damage to the Astro turf and made up as follows:
  1. The £350 goodwill payment previously offered, if this has not already been paid.
  2. The balance of £418.
2. Review its record keeping practices with the contractor to ensure that appropriate records are maintained to demonstrate that the landlord has met its obligations under its repairs policy.

Recommendations

It is recommended that the landlord contact the resident to discuss the issues she is experiencing with the works that were carried out to the garden at the property.