Birmingham City Council (202011666)

REPORT

COMPLAINT 202011666

Birmingham City Council

29 March 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

The complaint concerns the landlord’s actions following a flood at the property caused by a fire sprinkler system in relation to:
1. Repairs.
2. Staff conduct.
3. The decant.
4. The compensation claim.
The related complaint handling.

Background and summary of events

The resident is a secure tenant. The tenancy started on 8 July 2013. The property is a two-bedroom flat on the fifth floor of ten storey block.
On 17 October 2020, there was a fire at the flat above the property causing the sprinkler system to come on. The fire brigade attended after the fire alarm activated. This caused flooding to the flats below including the resident’s property. The landlord’s Duty Housing Officer (DHO) attended the property shortly afterwards.
The landlord’s repair records show it raised work orders on 19 October 2020 to ‘clean up’ the flat, to provide a dehumidifier and to carry out an “air test following fire” which were all completed on 20 October 2020. On 27 October 2020 it raised redecoration works to address the “water penetration” which were completed on 11 November 2020 and “a deep clean to property” was completed on 9 November 2020.
The landlord provided the resident with temporary accommodation from 21 October 2020 until the 13 November 2020 whilst the property dried out and works were carried out.
On 4 November 2020 the resident complained to the landlord that its DHO did not do a proper inspection of the property after the flooding from the sprinkler system. The fire service advised her that she could not move back in for at least five days, however its DHO said she would be back in the property within two days. She said he was “unprofessional” and advised her that he had been doing that job for 20 years.
The resident said it had been three weeks and that she was still not back in the property. She advised that she checked in to a hotel following the flood and she advised that her belongings were damaged and the property was damp.
The resident raised a second complaint on 4 November 2020 regarding the lack of drainage on the balcony. She said due to this her property was the most affected by the water.
The landlord replied on the same day advising it would investigate and provide a response within 15 working days.
On 19 November 2020, the landlord received a letter before action in respect to a section 82 Statutory Nuisance claim from the resident’s solicitors. This included an expert report which concluded there was a Statutory Nuisance in the property in relation to both the damp and deficient heating.
On 20 November 2020, the resident submitted a compensation claim form to the landlord in relation to the flooding incident including for loss of earnings and damage to possessions.
The landlord’s internal communications dated 26 November 2020 show that it called the resident and spoke to her about repairs and her compensation claim. The communication noted that the resident had said she wanted to pursue the complaint about the DHO and that this should be looked into, and a response sent to the resident.
On 26 November 2020 the landlord provided a stage one complaint response advising the resident that her compensation claim had been investigated and after careful consideration it had been decided that there was no evidence of negligence on its part. The water ingress to the property was due to the activation of the sprinkler system in the property above due to a fire. It was not liable for the actions of its residents. It said that as a resident it was her responsibility to hold adequate home insurance. It was unable to pay compensation where there was no legal liability and it regrets, therefore, that it was unable to make payment in respect of the claim.
In a letter to the resident also dated 26 November 2020, the landlord advised that if she was unhappy about how her complaint was handled, she could request a review of her complaint.
The resident called the landlord on 27 November 2020 advising she was not happy at all with the level of service received from the complaints team. She had not received any direct response to her complaint although she had seen, by logging into her account with it, that it intended not to uphold her complaint. She had been waiting for a response and this was unacceptable. She asked for someone to contact her as soon as possible.
On 30 November 2020, the resident advised the landlord that she was unhappy with its complaint response. She reiterated that the property did not have adequate drainage for the water from the sprinkler system to exit the building. It was six weeks since the sprinklers were activated, and her kitchen and bathroom ceilings were still damp and there were issues with her light switches. The kitchen was still “dripping” and she and her child were asthmatic. Further, in regard to her compensation, it had previously told her that she would be compensated for her electric costs and hotel expenses as the dehumidifier was still in use at her home.
On 30 November 2020, the landlord called the resident regarding her complaint raised about the DHO and told her it had been passed to the Housing Manager.
On 17 December 2020, the landlord advised the resident that her complaint would be reviewed by a Senior Manager and a response provided by 30 December 2020.
On the same date the landlord advised the resident that due to the amount claimed, her compensation claim had been passed to its Legal Services team to investigate if its insurance fund would reimburse her for costs and damage in respect to the flooding on 17 October 2020.
On 21 December 2020 the landlord advised it had reviewed her complaint. It said that it was sorry to hear that she had not received the level of service expected from the DHO that attended to carry out the inspection at her home. It advised that as the matter concerned the flooding which was the subject of a compensation claim it was unable to comment further. She had now exhausted all stage of its complaints process and could escalate to the Local Government and Social Care Ombudsman (LGSCO) if she was dissatisfied.
The resident contacted the Housing Ombudsman on 11 January 2021 regarding her complaint advising she was unhappy with the way it had been handled.
On 12 January 2021 the resident’s solicitors sent the landlord a pre-action protocol letter in respect of a legal disrepair claim. It set out events including works carried out by the landlord, the latest of which it stated had been on 21 December 2020. The letter requested compensation for damage to possessions setting out the basis of the compensation sought.
In a response to the resident from the landlord’s Legal Services team dated 15 January 2021, it advised that the landlord’s insurance fund could not meet her compensation claim for damage to contents as the fire was not due to any fault on the landlord’s part and the system installed to mitigate against the risk of damage by fire was reasonable, which worked as intended. It referred the resident to her own contents insurers. However, it also advised that it understood the landlord was willing to reimburse her for the extra cost of electricity incurred to heat the property and asked her to provide evidence of the cost.
Regarding her claim for a hotel accommodation, it said as the resident was offered alternative accommodation by the landlord whilst her flat was repaired but she chose to stay in a hotel which she paid for, the landlord would not reimburse her for hotel costs.
The landlord’s internal communications in February 2021 show it obtained a statement from the DHO’s line manager who said the DHO had discussed the inspection of 17 October 2020 with them at the time. The communication indicated that he offered the resident temporary accommodation but that she chose to stay in a hotel. The DHO’s line manager said at no time was the resident refused accommodation.
The Ombudsman contacted the landlord on 17 February 2021 acknowledging that the resident’s claim for compensation had been referred to its Legal Service team. However, it was advised that as the resident had raised additional concerns in the complaints process, it was reasonable to expect the landlord to fully address these in the complaints process.
The landlord advised the resident on 3 March 2021 that it would reimburse her for hotel expenses in the amount of £135.74 despite maintaining its position that it had offered and arranged temporary accommodation for her from 17 October 2020.
On 31 March 2021, the landlord asked the resident to provide her bill for the period of extra electricity used and her bill for the comparable period for the previous year.
On 6 April 2021, the landlord issued a final response to the complaint. It acknowledged the resident’s complaint raised with the Ombudsman regarding:
1. Its handling of the reports of a flood at the property caused by a fire sprinkler
2. Her concerns that there was no drainage in the property
3. Her concern that she was not offered a temporary decant at a reasonable time and was not offered reimbursement for the cost of the hotel
4. The conduct of a member of its staff
5. It said it was sorry it had not written to her about the complaint she had raised with the Ombudsman however she had raised a disrepair claim about the same issues and its Legal Services team had responded directly to her solicitors about this.
It said she had also made a Compensation Claim about the same issues, and as this claim was over £750, it was passed to its Legal Services team and she was recently provided with a response about this.
The landlord said all of the issues concern the fire in the flat above her property and the events following the fire. As she was aware, this fire caused the sprinklers to activate and water to penetrate her property. It reiterated that it was not responsible for the fire. The landlord had a duty to ensure that in the event of a fire within a block of flats, there was a sufficient suppression system to stop the spread of a fire. This was a Health and Safety matter, and the sprinkler system did the job it was required to do, and successfully put out the fire. It reiterated that tenants were advised in the Conditions of Tenancy to take out their own home contents insurance.
The landlord said that its DHO attended the property to assess the damage. If a property was unhabitable, the usual procedure was for the DHO to arrange for emergency temporary accommodation. He offered this to her because it was clear that the property would require a drying out period. However, she chose not to accept the temporary accommodation offered and stayed in a hotel. It said regardless of this, it had now offered to compensate her accommodation costs. The landlord’s internal records dated 31 March 2021 confirm this and indicate the amount of £135.74 was paid to the resident.
The landlord advised it did not understand her comment that there was no drainage in the property as all properties have sufficient drainage and pipework to ensure that water is successfully drained away.
The landlord confirmed that all of the repairs to the property were completed in December 2020.
Both parties confirmed to the Ombudsman in October 2021 that the legal claims raised by the resident were not submitted to court. Therefore, the Ombudsman has considered the complaints raised via the landlord’s complaints process.

Assessment and findings

The landlord’s actions following a flood at the property caused by a fire sprinkler system – Repairs

The landlord’s repair records show it carried out works between 20 October and 11 November 2020 which included a ‘clean up’ of the flat, providing a dehumidifier, carrying out an “air test following fire”, completing redecoration works to address the “water penetration” and a further “a deep clean to property”.
In her escalation request of 30 November 2020, the resident advised that her kitchen and bathroom ceilings were still damp and there were issues with her light switches. She advised that she and her child were asthmatic. It is reasonable in this circumstance to expect the landlord to return to the property to check if it had sufficiently dried out or if the flooding had caused any damp or mould issue.
It is noted that in November 2020 the landlord had received a letter before action in respect to a section 82 statutory nuisance claim from the resident’s solicitors regarding defects at the property as a result of the flood. It also received a pre-action protocol letter in respect to a disrepair claim on 12 January 2021 which set out the basis of the compensation sought by the resident. The Ombudsman does not consider that such legal claims would justify the landlord stalling with investigating further reports of damp or completing any works that were needed to resolve the issues caused by the flooding.
The landlord subsequently told the Ombudsman in April 2021 that all repairs from the flood were completed in December 2020. Whilst its repair records do not detail any further repairs carried out in the property in December 2020, it is noted that within the pre-action protocol letter of 12 January 2021 from the resident’s solicitors, there are further repairs referenced as being carried by the landlord on 21 December 2020. As such this supports the landlord’s position given in its final response that it returned to the property following the resident’s escalation request of 30 November 2020, however, it is unclear from the available evidence exactly what works were completed at this time.
The landlord’s repair records do show that on 24 February 2021 it raised a work order for electrics to be checked throughout the property and that repairs to the electrics were completed on 4 March 2021. Its repair records indicate these repairs were needed due to the damage caused by the flood but does not provide further details.
Therefore, it is clear from the landlord’s repair records that it carried out several repairs in the weeks that followed the flooding. It then returned to carry out further works to the property in December 2020 following the resident’s reports of dampness six weeks after the flood. However, the landlord delayed attending the property after she reported issues with the light switches/electrics which meant it did not identify the repairs needed to the electrics within a reasonable time of the resident raising her concern about this.
The landlord did not set out in its complaint responses the repairs it had undertaken to put right the damage caused to the flooding. It explained in its final response that this was because its legal team had responded to the resident’s disrepair claim. Nonetheless, it would have been helpful if it had detailed the works it had undertaken in its complaint responses.
Additionally, the resident said in her 4 November 2020 complaint that there was insufficient drainage on her balcony however there is no evidence of the landlord investigating this issue despite her raising this again later on in the complaints process. It only commented in its final response that all properties had sufficient drainage and pipework to ensure that water is successfully drained away. Its failure to investigate or take steps to ensure it understood this aspect of the resident’s complaint was unreasonable.

Staff conduct

This service will consider whether the landlord adequately investigated and responded to the complaint, and took proportionate action based on the information available to it. For staff conduct complaints, landlords are expected to carry out an investigation, including interviewing and gathering evidence from all parties before making an informed decision based on its findings.
In her formal complaint the resident raised concerns about the DHO who attended on the day of the flooding. She said his manner was unprofessional and her concerns also related to the advice provided about the length of the likely decant. This complaint was not addressed by the landlord at stage one of its complaints process. Following further communication from the resident, the landlord’s internal communications show it did identify that it needed to investigate and respond to this element of the resident’s complaint. In its subsequent complaint response of 21 December 2020, the landlord said it was sorry to hear that the resident did not receive the level of service expected from the DHO that attended to carry out the inspection at her home but that because she had made a compensation claim in respect to the incident it could not comment further. This was an inadequate response from the landlord and indicates it did not properly investigate this concern at this stage.
Following the Ombudsman advice to the landlord that it was reasonable to expect it to fully address concerns raised by the resident in the complaint process, it issued a final response to the resident which responded to her staff conduct complaint. It advised that the DHO had discussed the inspection with his line manager at the time when he said he had offered the resident temporary accommodation but that she chose to stay in a hotel. The landlord also said that its DHO refuted the allegation that he was unprofessional and said he was very experienced. The landlord’s internal records show it had obtained this account from the DHO’s line manager in February 2021 during its investigation of this complaint.
Landlords are expected to keep records of its interactions with residents, and it is reasonable to expect the DHO officer to have made notes of the inspection on 17 October 2021 to reflect what had been said. The absence of this means it could not adequately address her complaint about the service provided by its DHO at this time. This issue together with the delay by the landlord in investigating this complaint, is a failure in the service provided by the landlord. It did not acknowledge or apologise for its delay in responding to this complaint in its complaints process

The decant

The Conditions of Tenancy says the landlord will decant residents to alternative temporary accommodation where repairs require it. If repairs fall into this category, it will inform the resident and they must vacate the property. The notes to this paragraph state the landlord will try to find temporary accommodation that is nearby, but it cannot guarantee this. It also says if an offer of temporary accommodation is not accepted the resident must inform it their decision not to accept temporary accommodation.
When the landlord’s DHO attended the property on 17 October 2020 following the flooding, he assessed that the damage was such that the resident needed to temporarily move out of the property whilst it dried out and for repairs to be completed. This was appropriate. In accordance with its policy, it is reasonable to expect the landlord to have offered the resident alternative temporary accommodation in this circumstance. There was a short delay in the resident moving into the landlord’s temporary accommodation until 21 October 2020.
In her formal complaint, the resident complained that she had to check herself into a hotel until the landlord provided alternative accommodation suggesting the option of decant was not immediately available.
The landlord did not address this aspect of the complaint at stage one of its complaints process. In its communication dated 15 January 2021, the landlord’s Legal Services team advised the resident that it was not willing to reimburse her for hotel expenses as she had declined its offer to house her in alternative temporary accommodation. Nonetheless, despite the landlord disagreeing with the resident’s position about not being offered a decant, it subsequently agreed to reimburse the resident’s hotel costs for two nights in the amount of £135.74. This was a reasonable approach to take as it demonstrates a willingness by the landlord to resolve her complaint. Therefore, as it provided alternative accommodation from 21 October 2020 onwards and covered the cost of her hotel expenses, overall, it acted reasonably.

The compensation claim

In its stage one response the landlord advised it was not liable for her compensation claim as its investigation found there was no evidence of negligence on its part and it was not liable for the actions of its residents. It added that it was the resident’s responsibility to hold adequate home insurance. It subsequently referred the resident’s compensation to its Legal services team when the resident disputed its response.
The Ombudsman cannot determine whether the landlord was negligent or liable, as these are matters for an insurance or legal claim to determine, therefore this investigation cannot consider the outcome of the compensation claim. However, as most of the claim was for damaged possessions and loss of earnings it was appropriate for the landlord to refer the resident’s claim to its Legal Services team to assess. Nonetheless, it was reasonable to expect the landlord to deal with the resident’s requests for reimbursement of her hotel expenses as the landlord had a responsibility to consider a decant in these circumstances, as well as the cost of additional electricity used to run the dehumidifier, within its complaints process as these relate to the substantive issues raised in her formal complaint.
The landlord did confirm to the resident on 15 January 2021 that it would reimburse her the cost of additional electricity incurred to dry out the property and it reiterated this offer in its final response. It is noted the resident told the landlord on 3 February 2021 that she had changed supplier to which the landlord said it would calculate the extra usage by comparing her bill for the period of extra electricity used with her bill for the comparable period for the previous year. On balance this was a reasonable approach to take.

Complaint Handling

The landlord operates a two-stage complaints process under which it says it will provide a response within 15 working days under stage one and within 20 working days under stage two.
Whilst the landlord issued a stage one and stage two response to the resident within the timescales set out in its complaints process, these responses did not address the issues raised by the resident in her formal complaint. It appears that this was because the landlord had referred the resident’s compensation claim associated with the flooding incident to its Legal services team and as a result believed it did not need to address the substantive issues.
This appears to be the case in relation to the repairs that were necessary following the flooding; whilst the resident raised the matter of repairs in the complaints process, because she had also raised legal claims in relation to these, the landlord did not address this issue in its complaint responses. Whilst these processes were taking place at the same time as the complaints process, it would have been appropriate for the landlord to also reference its handling of these matters in its complaint process. This is in accordance with the Ombudsman’s Complaint Handling Code (CHC) which requires landlords to address all points raised in the complaints process unless legal proceedings have started – this is described as when the Claim Form or Particulars of Claim have been filed at court.
Its failure to do so is evidence of it failing to identify and address the issues in the formal complaint in its complaints process. This resulted in the resident having to pursue the complaint via the Ombudsman. The landlord did then provide the resident with a final response which did provide a response to the issues. However, this was nearly four months later and as such meant the complaints process was prolonged. This caused the resident additional stress and inconvenience. The landlord also incorrectly referred the resident to the LGSCO in its 21 December 2020 communication rather than the Housing Ombudsman.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its actions following a flood in the resident’s property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s complaint.

Reasons

The landlord carried out several repairs to the property in the weeks that followed the flooding to put right the damage caused by the water ingress. It then returned to property to carry out further repairs following concerns raised by the resident about the property condition. These actions were appropriate. However, it did not investigate the resident’s concern about the balcony not having sufficient drainage. It also delayed attending the property after she reported an issue with the light switches/electrics which meant it did not identify the repairs needed to the electrics within a reasonable time. It did not keep a record of advice provided to the resident during its visit following the flooding and then it delayed with responding to the resident’s complaint about this matter. The landlord did subsequently respond to these complaints in its final response and agreed to reimburse the resident for two days hotel costs which was reasonable. However, it did not acknowledge or apologise for the failures in the service provided.
The landlord initially failed to address issues raised in the complaint process including repairs, its decant process and staff conduct. The landlord did subsequently provide a response that clearly set out its position in relation to her complaints, however it did not offer the resident any redress in recognition of the distress and inconvenience caused by its delay in addressing these issues.

Orders and recommendations

The Ombudsman orders that the landlord to:
1. Pay the resident compensation of £400 made up of:
  1. £300 for its service failures when dealing with the issues raised by the resident following the flooding incident at the property.
  2. £100 for failing to initially respond to her complaints within its complaints process.
2. Reimburse the resident the cost of additional electricity incurred to dry out the property as agreed in the complaints process, if it has not already done so.
3. Take steps to ensure its complaints team address all points raised in the complaints process unless legal proceedings have started. In the Ombudsman’s Complaint Handling Code, this is described as when the Claim Form or Particulars of Claim have been filed at court.