Birmingham City Council (202109066)

REPORT

COMPLAINT 202109066

Birmingham City Council

12 April 2022

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 to a leaking roof and the damage this caused to the inside of the resident’s property.
   2. The associated complaint.

Background

2. The resident is a leaseholder and the landlord is the freeholder for his property. The property is on the top floor of a block of flats. The resident sub-lets his property to tenants. The resident has assigned a representative to speak on his behalf; for clarity, both the resident and his representative will be referred to as ‘the resident’ in this report.
3. The resident reported in December 2020 that the building’s roof was leaking and due to his property being on the top floor, it was leaking into his property and causing damage internally, with damp and mould occurring as a result.
4. The resident submitted a complaint to the landlord in February 2021 because the leak had not been repaired. The landlord said work would commence in March 2021. The resident escalated his complaint in May 2021 as the work had still not been completed and further damage was occurring as a result of the prolonged leak.
5. In the landlord’s final response to the complaint, it said that its contractors had requested the resident remove a shed in the communal garden to allow access so the repairs to the roof could take place and that this needed to be completed within four weeks. The resident informed the landlord that this shed did not belong to him and, therefore, he could not remove it.
6. The leak had not been repaired at the time when the complaint was referred to this Service. In his complaint to the Ombudsman, the resident said he wanted the leak to be repaired and for the damp and mould in his property to be rectified. The roof repairs were subsequently completed in September 2021; however, it is not known whether the damp and mould has been rectified by the landlord, based on the information provided to the Ombudsman.

Assessment and findings

Policies and Procedures

7. The landlord’s repairs policy states that emergency repairs should be attended to within two hours. Urgent repairs should be attended to within one, three or seven days depending on the severity of the repair issue, and routine repairs should be completed within 30 days. The landlord would be expected to keep the resident regularly updated on the progress of the works, explain any delays and provided expected timescales for when the repair would be completed.
8. The landlord’s leaseholder repairs guidance states that the landlord is responsible for arranging repairs if the problem affects the structure of the building. This may include repairs to the exterior of the building such as roof, wall, or window frames.
9. The landlord’s leaseholder handbook states that where damage to decorations is caused by water penetration as a result of a defect to the structure, leaseholders may claim on the landlord’s building insurance for the damage to their decorations.
10. The landlord’s complaints policy states that it has a two-stage formal complaints process. An initial response should be sent within 15 working days. If a resident remains dissatisfied, they can escalate their complaint to be reviewed at the final stage of the landlord’s complaints process. The landlord should provide its review response within 20 working days. The policy confirms that the initial response would be issued by the department responsible for providing the service. The review response would be issued by an independent officer (unrelated to the complaint issue). If, at any stage, there is likely to be a delay, the landlord would be expected to contact the resident, explain the reason for the delay, and provide a new timescale in which the resident would receive a response.

The roof repairs

11.  It is generally the case that a leaseholder is responsible for internal repairs within their own property, whereas the landlord would be responsible for maintaining the structure and exterior of the building and any communal areas. The Ombudsman has not seen a copy of the resident’s lease agreement and therefore, this Service has looked to the leaseholder repairs guide where it states that the landlord is responsible for arranging repairs, if the problem affects the structure of the building. Therefore, the landlord would be expected to investigate reports of a leak thought to be originating from the building’s roof, to determine its responsibility for completing repairs, as well as the nature and extent of the repairs required. In this case, the responsibility for the repair of the leak is not disputed by either party, with the landlord taking responsibility for the completion of the repair to resolve the leak in the roof.
12. In view of the above, when the resident reported a leak coming into his property, which was in turn causing damp and mould, the landlord should have responded in accordance with its obligations. Depending on the severity of the leak, the landlord should have categorised the repair as emergency, urgent or routine in line with its repair policy, which would then have provided the resident with a corresponding timeframe for repairs.
13. In this case, it has been difficult to establish the exact nature and severity of the leak; this is partly due to the landlord’s lack of effective record keeping concerning the repairs. Therefore, this Service has used the available evidence regarding the type of leak and concluded that the leak should have been categorised as an ‘urgent’ repair due to the potential health and safety risk the leak posed in regard to it being close to the lighting in the resident’s property.
14. Whilst this was not an immediate risk to the resident or his tenants’ health and safety and thereby would not constitute being categorised as an ‘emergency’ repair, it could have become a health and safety risk if left for an extended period of time and, therefore, this needed to be treated as an ‘urgent’ repair. In light of this, and in line with the landlord’s repairs policy, this should have been attended to within seven days. This Service has come to this conclusion based on the communication from the resident and the findings of a roofing contractor, who attended the property (date unknown), and concluded that:
    1. The leak was close to lighting in the property;
    2. The leak was ‘quite bad’;
    3. All rooms in the property were being affected.
15. In this case, therefore, the landlord did not act within its own timeframes for responding to an urgent repair. The resident first reported this in December 2020 yet the repair was not completed until September 2021, ten months after it was first reported. It is understandable that there may have been some unavoidable delays whilst the landlord sourced scaffolding and then subsequently awaited the removal of the shed. However, a delay of ten months was excessive and not in line with its repair obligations to complete the repair within seven days.
16. Moreover, the landlord did not keep in communication with the resident, it did not explain the reason for delays prior to the stage two complaint response, and it did not provide any timescales after the stage two response was provided, for when work would commence.
17. It is unclear why the landlord did not repair the roof between the period of December 2020 to February 2021, despite the resident saying he chased this on more than one occasion. As above, this is partly due to the lack of repair records provided to this Service by the landlord. It is also unclear why the landlord did not communicate with the resident between February 2021 and May 2021, to inform him that a shed needed to be removed in order for the repair to be completed. This lack of communication delayed the repair being completed as the resident was unable to confirm that he was not responsible for the shed until the landlord told him it needed to be moved.
18. When the resident informed the landlord in May 2021 that the shed did not belong to him and, therefore, he could not move it, the landlord should have taken ownership over the process to remove the shed, as per its leaseholder repairs guidance. Due to the lack of records provided, we cannot confirm the landlord acted proactively in asking the neighbour to remove the shed; but this Service can confirm that in August 2021 work to remove the shed began. It is understandable that the landlord may have needed some extra time to communicate with the shed owner to arrange for the shed be removed, but it should have updated the resident on this progress and kept him fully informed. The landlord could have taken action to remove the shed itself when it was still in place after it had given the neighbour appropriate notice to move the shed. There is no evidence that the landlord considered this.
19. In summary, there were significant unexplained delays and a lack of clear communication from the landlord which resulted in an unnecessary level of involvement by the resident, who needed to repeatedly chase repairs and handle the miscommunication about the responsibility of the shed.
20. In communication with this Service, the landlord said that it had not remedied the damp and mould reported by the resident, as the resident was a leaseholder and, therefore, it was the resident’s responsibility as per the terms of the tenancy to prevent such issues.
21. In general, it is a leaseholder’s responsibility to deal with the presence of damp and mould in their own property. However, it is expected that, if a resident reports damp and mould, which the resident believes occurred due to a repair obligation of the landlord, the landlord should investigate to see if the damp and mould is due to its failure to carry out repairs it was responsible for. If the landlord identifies that the damp and mould was caused by delays in the landlord fixing a leak elsewhere in the building, then the landlord should consider whether to offer compensation to the leaseholder for the damage caused to the interior of their property.
22. The resident reported the occurrence of damp and mould in the property in both stages of his complaint and requested that a damp specialist attend the property. The landlord and its contractor both acknowledged that there was damp and mould in the property but the landlord did not investigate this matter any further. As in line with good practice, the landlord should have attended the property again and investigated if the leak and delays in repairing it, had caused the damp and mould in the property or caused it to worsen and subsequently, remedy the damp and mould that it was responsible for.
23. In conclusion, the landlord failed to address the resident’s concerns of damp and mould which was believed to have occurred due to the leak and was likely made worse due to the length of time the leak was left unrepaired for.
24. The resident reported in his complaint escalation request that his property and possessions had being damaged due to the leak ongoing in the property. The landlord’s leaseholder handbook states that where damage to decorations is caused by water penetration as a result of a defect to the structure, leaseholders may claim on the landlord’s building insurance.
25. No further information was provided to this Service about the items damaged in the resident’s property. Nevertheless, the landlord did not offer the resident the solution of claiming on its building insurance, despite this being one of its obligations as per its leaseholder policy. Therefore, this amounted to a failure in the landlord’s services as it did not comply with its own policy.
26. If the resident considers that his personal possessions have been damaged due to the landlord’s negligence in not fixing the leak sooner, he may be able to make a claim a under the landlord’s liability insurance, if the landlord has such insurance. It is therefore recommended that the landlord provides the resident with details of its liability insurer if it has one. The Ombudsman would be unable comment on what the the outcome of such a claim might be as this Service cannot assess insurance matters.
27. It is important to be aware that when considering compensation for distress and inconvenience, this Service is not able to consider any distress and inconvenience experienced by the resident’s tenants as they do not have a landlord tenant relationship with the landlord. We can only look at complaints by those who have a landlord tenant relationship with a landlord who is a member of the Ombudsman’s scheme. However, we have assessed whether the landlord should pay compensation for the resident’s distress and inconvenience. Although the resident was not living in the property at the time, he was inconvenienced by having to chase the landlord for responses as well as by the worry caused by the damage to his property due to the delays in fixing the leak.
28. The landlord should pay £350 compensation to the resident in recognition of the inconvenience caused by its poor record keeping and delayed repairs. It is also recommended that the landlord conduct a review of its record keeping processes to ensure that it has adequate records of repairs and communication with a resident related to their complaint so that these can be used to resolve ongoing repair issues such as tracking the progress of repairs, and so they can be used if the service needs investigating by the landlord or the Ombudsman.
29. This compensation is in line with the Ombudsman’s Remedies guidance (published on our website). The guidance suggests that the Ombudsman may award between £250 to £700 for cases where the Ombudsman has found considerable service failure or maladministration by the landlord, but there may be no permanent impact on the resident. Examples could include: 
    1. Misdirection – giving contradictory, inadequate or incorrect information about a complainant’s rights
    2. A complainant repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that complainant.

The landlord’s handling of the associated complaint

30. The landlord did not meaningfully engage with the resident’s complaint and did not provide detailed responses to the issues raised. The landlord did not address some of the concerns the resident was raising such as the repeated phone calls to the landlord, the lack of effective record keeping and the damp and mould in the property causing damage. The incomplete responses from the landlord would have inevitably caused the resident distress and inconvenience. The landlord’s responses were also not in line with the Ombudsman’s Complaint Handling Code (published on our website) which sets out guidance for landlords on how to address complaints. The Code states that each response must confirm the decision on the complaint and the reasons for any decisions it made, the landlord did not complete this at any stage and the landlord’s position remained unclear throughout the complaints process, with information being relayed from contractors instead of being explained and explored by the landlord itself.
31. The Code also states that the person considering the complaint at the review stage, must not be the same person that considered the complaint at stage one (investigation stage). This is good practice, helps ensure impartiality, and brings in a wider perspective of the matters at hand.
32. Both formal complaint responses were issued by the same member of staff. As the review was conducted by the same person who had originally responded to the complaint, the landlord did not follow its complaints policy, and acted contrary to complaint handling principles of fairness and impartiality.
33. The landlord should pay the resident £150 compensation to the resident in recognition of the inconvenience caused by its poor complaint handling. This is in line with the Ombudsman’s remedies guidance, as set out above which suggests awards of £50 to £250 for cases where the Ombudsman had found considerable service failure or maladministration, but there may be no permanent impact on the resident. An example of this is repeated failure to meaningfully engage with the substance of the complaint, or failing to address all relevant aspects of complaint, leading to considerable delay in resolving the complaint.

Determination

34. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the repairs to a leaking roof and the damage this caused to the inside of the resident’s property.
35. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the associated complaint.

Orders

36. The Ombudsman orders that the following actions take place within four weeks:
    1. The landlord is to pay the resident £500, comprised of:
       1. £350 in recognition of the inconvenience caused by the delayed repairs and its poor communication.
       2. £150 in recognition of its poor complaint handling.
    2. Complete damp and mould treatment to the resident’s property, if it has not already done so. This includes, putting right any damage to the decoration that occurred as a result of the leak.

Recommendations

37. To reduce the likelihood of a similar situation occurring in the future, it is recommended that the landlord carry out a review of its record keeping practices for repairs, ensuring that detailed and accurate records are kept of any repair requests and appointments and that this information can be accessed by staff investigating complaints and can be provided to the Ombudsman upon request.
38. The Ombudsman recommends that the landlord provides the resident with details of its liability insurance for any personal items which he believes were damaged due to the leak.