Birmingham City Council (202119872)

REPORT

COMPLAINT 202119872

Birmingham City Council

15 May 2023

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:
1. handling of a rat infestation, and;
2. handling of a neighbour blocking access to the resident’s storage unit.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident is a leaseholder at the property of the landlord. The landlord is a local authority. The property is a two bedroom first floor maisonette with its own private front entrance door. The resident’s property is directly above the neighbour’s property, which also has its own private front entrance door.
The resident’s lease agreement states that she has full rights of way for all purposes connected with the property as shown within the lease.
The lease also states that she must not do “any act or thing to the damage or annoyance of….the occupiers of any part of the building or of any adjoining or neighbouring premises.” The resident’s neighbour’s lease agreement contains the same provision.
The landlord’s leaseholder handbook states that if residents break any conditions of their lease, it will take action to make them put things right.
The landlord operates a two stage complaints policy. The policy notes that it will provide a stage one response within 15 working days of a formal complaint. It will provide a stage two response within 20 working days of an escalation request. Stage two investigations will be carried out by an “independent complaints champion.”

Summary of events

On 7 June 2020, the resident reported that a neighbour’s back garden was overgrown. She queried if the landlord could take action to address this. The landlord responded saying it would contact the neighbour about this.
The resident made contact again on 21 July 2020 and said that the neighbour’s garden was still overgrown and had a rat infestation. The landlord responded that it had contacted the neighbour about this.
On 29 July 2020 the resident asked if the neighbour had been given a deadline to clear the garden as the rat infestation was “worrying”. The landlord responded there was no timescale for the garden to be cleared as this would be hard to enforce because of the COVID-19 pandemic.
On 24 March 2021 the resident reported that her neighbour had made an unauthorised structural change by building a porch. She said that within the porch area was a storage unit she owned but could not gain access to. She asked the landlord to instruct the neighbour to clear out the storage unit and return the key to her. The resident chased a response on 6 and 9 April 2021.
On 13 April 2021 the landlord contacted the neighbour about the porch and storage unit and confirmed to the resident that it had done this.
The resident asked for an update on 27 April 2021 and the landlord confirmed that it had e-mailed the neighbour again about this. The resident asked when the key for the storage unit would be returned to her and the landlord told her to speak to her neighbour about this. The resident responded that she would not interact with the neighbour as she had been verbally abused by them in the past.
On 8 June 2021 the landlord contacted the neighbour and said this matter was now urgent and provided a link to its website with details of pest control services. The neighbour responded two days later with an update.
The landlord updated the resident on the same day and she responded asking if a deadline could be set for the neighbour to resolve these issues. In response to this the landlord set a deadline of 25 June 2021 and e-mailed the resident and the neighbour to confirm this.
The resident requested an update on 18 and 25 June 2021.
On 29 June 2021 the resident made a stage one complaint to the landlord. Within the complaint she said:
1. She had been reporting the overgrown garden and rat infestation since June 2020 and the landlord had done nothing other than send e-mails.
2. The neighbour had installed a second door in March 2021 to make a porch area. The porch area blocked access to her storage unit. She had reported this and a deadline was given but nothing had happened and the landlord should enforce the lease.
3. She was unable to sell or transfer the lease as the storage unit had been taken over by the neighbour.
On 30 June 2021 the landlord asked the neighbour to confirm in five working days when the issues would be resolved and updated the resident about this.
The neighbour responded the same day and the landlord provided an update to the resident on 2 July 2021.
The resident asked for updates on three occasions in July 2021. On each occasion, the landlord responded and in its final response on 14 July 2021 it confirmed that all three issues had been referred to its civil litigation team. Within this update it said that it could not provide timescales for action to be taken.
The landlord issued its stage one complaint response to the resident on 14 July 2021. It confirmed that all issues had been referred to the civil litigation team.
In July 2021 the neighbour told the landlord that pest control for the rats should be going out. There is no record that any follow up checks were done in response to this.
On seven occasions between July 2021 and February 2022 the resident asked for updates, including a plan of action with timescales. The landlord responded on each occasion that there was no update and that it could not provide this information.
On 2 August 2021 the resident asked for a review of her complaint. She chased this on 3 and 16 September 2021 and on 17 September 2021 the landlord issued its stage two complaint response, which said:
1. There had been delays and it had fallen short of the expected service delivery in this matter. It said this was because of the COVID-19 pandemic and the impact on its services.
2. The issues were with its civil litigation team and legal action would be taken in due course but it could not give a timescale for this.
In November and December 2021 the resident contacted this Service about her complaint. She said that:
1. She had reported the issues to the landlord but it had not resolved them.
2. She had made a complaint but this had been closed with no action taken to resolve the issues.
3. She was living in fear with mental stress.
4. She wanted the issues resolved and compensation from the landlord for “losses incurred”.
On 10 December 2021 the landlord contacted its civil litigation team. This team replied on 15 December 2021 and said:
1. No progress had been made on the case and it would be unlikely to take any action on this until the end of January 2022.
2. It had to prioritise cases where there were court and tribunal proceedings underway with pressing deadlines.
In February 2022 the landlord told this Service that no legal action had been taken.
In April 2023 the resident told this Service that the landlord had taken no action and were not responding to her contact or requests for updates.

Assessment and findings

Scope of investigation

The resident has told this Service that the landlord’s handling of these matters has had a negative impact on her health. The Ombudsman does not doubt the resident’s comments. However, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or failure by the landlord. While we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.
Between March 2022 and October 2022, the Ombudsman carried out an investigation of the landlord’s handling of complaints under paragraph 49 of the Housing Ombudsman Scheme. The investigation reviewed 14 cases brought to the Ombudsman during the period and identified common points of failure and made recommendations for improvement. The report was published in January 2023 and can be viewed here: Birmingham-Special-Report-FINAL-January-2023-1.pdf (housing-ombudsman.org.uk). The events in this case took place before this period but some of the findings of the Ombudsman’s special report are relevant to this case and are referred to accordingly in this report. However, we have not made any orders or recommendations which would duplicate those already made to landlord in the Ombudsman’s special report.

Rat infestation

When the resident first reported the overgrown garden and rat infestation in June 2020 the landlord made contact with the neighbour to ask them to address this, which was reasonable. When the resident asked about a timeframe for this to be done, the landlord said that one had not been given and it would be difficult to enforce because of the COVID-19 pandemic. It is understandable that any works may have taken longer to complete because of the pandemic but it would have been appropriate for the landlord to set a timeframe with the neighbour and follow up on this to ensure the garden was cleared and rat infestation addressed. This was not done and the garden remained overgrown and the rat infestation untreated, which caused frustration and worry to the resident.
The resident reported the overgrown garden and rat infestation again in May 2021. In response to this the landlord made further contact with the neighbour to address the issue. It also provided the neighbour with a link to its pest control service and told them that this matter needed to be addressed urgently; all of which were appropriate things to do. It did not initially set a timescale for the neighbour to resolve this issue, which would have been reasonable but after the resident specifically asked for this, it provided one and continued to give specific timeframes for the neighbour to resolve these issue, which was appropriate.
When the neighbour failed to address and resolve the issue, the landlord referred the matter to its civil litigation team for action, which was appropriate. However, there is no evidence that it considered any other actions in order to address this issue, e.g. referring the matter to its environmental health team, which would have been appropriate. There is also no evidence that the landlord followed up with the neighbour in July 2021 after they told it that a pest control visit had been arranged.
Since referring the matter to its civil litigation team on 14 July 2021, there is no evidence that any action has been taken. In December 2021 the landlord said that it had not taken action due to an increased workload and having to prioritise other cases with pressing deadlines. It is reasonable that landlords have to prioritise cases and so there may be longer waiting times; however, as it is now 22 months since the referral was made with no evidence any action has yet been taken, this is an unreasonable delay.
The landlord acknowledged in its stage two complaint response in September 2021 that there had been an unreasonable delay. It identified the COVID-19 pandemic as the reason for the delay, saying its services had been “severely impacted” because of this. This is understandable and a reasonable explanation at the given time; however, as there is no evidence that any action has been taken to date by the landlord and the effects of the COVID-19 pandemic are now over, this is no longer a reasonable explanation for the ongoing delay.
When there are longer wait times or delays to landlord services, it is good practise that landlords provide regular pro-active updates to residents. In this case, there is evidence that the landlord responded to the resident’s requests for updates but no evidence that it provided regular pro-active updates to her. In a recent update the resident has told this Service that she has not had any updates from the landlord since October 2022 and this Service has seen no evidence of any recent updates provided. This lack of updates has been frustrating for the resident and resulted in her chasing the landlord but not always receiving a response.
The resident chased the landlord for updates on several occasions and asked it to provide an action plan and timescales, which was a reasonable request. The landlord said it could not do this as it was waiting on an update from its civil litigation team and this team did not work like that. The only record provided to this Service of the landlord contacting this team was in December 2021, which was five months after the referral was made. There is no record that the landlord asked this team for an action plan with timescales, which would have been appropriate. The landlord’s response that it could not provide the requested information was unreasonable. In December 2021 when the civil litigation team provided an internal update with a proposed timescale, the landlord failed to share this with the resident, despite her e-mailing the following day asking for this.
Overall there was maladministration in the landlord’s handling of the rat infestation caused by a neighbour’s overgrown garden. Despite first reporting this issue almost three years ago and chasing the landlord on at least 16 occasions, the resident is still waiting for the issue to be resolved. The resident has told the landlord that she finds the rat infestation “worrying” and the lack of action or plan of action has been understandably frustrating for the resident. An order has been made below for landlord to review this case and provide the resident with a written action plan on how it will resolve this issue, including timescales. A further order has been made for the landlord to pay the resident a total of £400 compensation; made up of £200 for the distress and inconvenience caused by the delay and £200 for the time and trouble taken in chasing updates on this issue.

Neighbour blocking access to the resident’s storage unit

The resident first raised this issue with the landlord on 24 March 2021. There was a slightly delayed response from the landlord to this e-mail on 13 April 2021 but it said sorry and explained the reasons for the delay. The landlord confirmed it had written to the neighbour regarding these issues, which was appropriate but gave no timeframe for the issues to be resolved or when it would provide a further update to the resident. This led the resident to chase the landlord on 27 April 2021 for a further update. The landlord responded on 10 May 2021 confirming it had sent another e-mail to the neighbour but again, gave no timescale for the issues to be resolved. When the resident asked for a date that the neighbour would return possession of the storage unit, the landlord suggested that the resident should speak directly to her neighbour about this. In some circumstances, it is appropriate for a landlord to encourage residents to resolve issues between themselves; however, considering the nature of the issue, it was not an appropriate suggestion in this case. As the landlord was instructing the neighbour that they needed to give back possession of the unit, it would have been appropriate for it to provide a date by which to do this. When the resident challenged, the landlord’s suggestion, it appropriately set a date and followed up on this.
When the neighbour provided an update on their actions to resolve the issues, the landlord provided extra time for them to progress these, which was reasonable. When the neighbour then failed to resolve the issues within the timeframe given, the landlord referred the matter to its civil litigation team, which was appropriate. As with the rat infestation issue, there is no evidence that any action has been taken since the referral to this team in July 2021, which is unreasonable for the reasons set out above. As with above, it is also unreasonable that it said it could not provide an action plan with timescales.
Overall, there was maladministration in the landlord’s handling of a neighbour blocking access to the resident’s storage unit. Since she first reported this issue, the resident has chased the landlord for updates on at least 15 occasions but no detailed update on the proposed action has been forthcoming; which has been frustrating for the resident. Due to the lack of action taken to resolve this issue the resident has been unable to access her storage unit since March 2021 and has told the landlord that this has impacted on her being able to sell the property. An order has been made below for the landlord to review this case and provide a written action plan to the resident on how it will resolve this issue, including timescales. There is also an order for the landlord to pay the resident £400 compensation made up of £200 for the distress and inconvenience caused by the delay and £200 for the time and trouble taken by the resident to chase updates from the landlord.

Complaint handling

The Ombudsman’s special report highlighted the following common points of failure in the landlord’s handling of complaints which are relevant in this case:
1. The landlord’s complaint policy not being compliant with the Ombudsman’s Complaint Handling Code (the code) in respect of response timescales.
2. Delayed complaint responses.
3. Incomplete and inaccurate responses.
4. Missed opportunities to put things right at an early stage.
5. The same officer considering the complaint at stage 1 and stage 2 of the complaints procedure.
As noted in paragraph seven the landlord’s complaints policy sets out a timeframe for stage one complaints to be responded to within 15 working days. This does not comply with the Ombudsman’s complaint handling code which directs landlords to respond within ten working days. The Ombudsman’s special report included recommendations that the landlord update its policy and ensure compliance with the requirements of the code.
In this case, the stage one complaint response was issued in line with its committed timeframe but the stage two complaint was issued14 days over its committed response time. The landlord gave no apology or explanation for this delay and the resident had to chase the landlord twice before it issued its final response.
The stage one and stage two complaint responses were provided by the same person, who was also the person dealing with the substantive issue. This meant there was a lack of objectivity throughout the complaints process when reviewing what had happened. The landlord’s complaints policy indicates that the stage two review would be carried out by an “independent complaint champion” but there is no evidence that this was done in this case.
Both the stage one and stage two complaint responses lacked detail and gave the same response as had been given when dealing with the substantive issue. This suggests little or no investigation was done in respect of the complaints. The resident has told this Service that she was not happy that the complaints had been closed with no action being taken. It is reasonable that the landlord closed the complaints before action had been pursued; however, it would have been appropriate to provide more detail about the proposed plan of action, including timescales within the complaint response to offer reassurance to the resident. This was not done and the resident received the same vague response, which would have been frustrating for her.
Neither the stage one or stage two response were clear on the outcome of the complaint investigation, although the stage two response did admit service failure due to the delay in action being taken. Despite admitting service failure, there is no mention of what steps it would take to put this right or any learning it took from the issue, which would have been appropriate in the circumstances.
Overall, there was service failure in the landlord’s complaints handling and an order has been made below for the landlord to pay the resident £200 compensation made up of £100 for the time and trouble taken in chasing up her complaint and £100 for the distress and inconvenience caused by the delay and poor communication. It is also worth noting that The Ombudsman’s special report included recommendations that the landlord carry out better monitoring and scrutiny of its complaint handling to ensure compliance with its policy and the code.

Determination (decision)

In accordance with paragraph 52 of the scheme there was maladministration in respect of the landlord’s handling of a rat infestation.
In accordance with paragraph 52 of the scheme there was maladministration in respect of the landlord’s handling of a neighbour blocking access to the resident’s storage unit.
In accordance with paragraph 52 of the scheme there was service failure in respect of the landlord’s complaints handling.

Reasons

The landlord’s handling of the rat infestation was unreasonably delayed for 22 months, with no evidence of any action taken to date. When the resident initially reported this, the landlord failed to properly manage the issue through to resolution; inappropriately stating that the COVID-19 pandemic prevented them from doing so. It did not consider alternative actions when the neighbour did not resolve the issue and failed to provide detailed and meaningful updates to the resident on progress.
The landlord’s handling of a neighbour blocking access to the resident’s storage unit was unreasonably delayed with no evidence of any action taken to date. The resident had to repeatedly chase for updates on progress and at one stage was inappropriately advised to speak directly to her neighbour about a resolution date for the issue. It also failed to provide any detail around what action it would take, despite the resident asking for this on multiple occasions.
The landlord’s complaints handling was delayed with no apology or explanation given for this and resulted in the resident having to chase up a final response twice. There was a lack of objectivity in the complaint handling process as it was all dealt with by the same person. The responses lacked detail and were unclear on the final outcome. Despite admitting service failure due to a delay, the landlord failed to consider actions it could take to put this right.

Orders

The landlord is ordered to, within four weeks of this report:
1. Apologise to the resident for the delay in the handling of these matters.
2. Review this case and provide a written action plan to the resident on how it will resolve the rat infestation. The action plan must include estimated timeframes and escalation options if the initial actions do not resolve the issue.
3. Review this case and provide a written action plan to the resident on how it will resolve the neighbour blocking access to her storage unit. The action plan must include estimated timeframes and escalation options if the initial actions do not resolve the issue.
4. Pay the resident £1000 compensation made up of:
  1. £200 for the distress and inconvenience caused by the delays in the handling of the rat infestation.
  2. £200 for the time and trouble taken by the resident in chasing updates on the progress of action in relation to the rat infestation.
  3. £200 for the distress and inconvenience caused by the delays in the handling of a neighbour blocking access to her storage unit.
  4. £200 for the time and trouble taken by the resident in chasing updates on the progress of action in relation to a neighbour blocking access to her storage unit.
  5. £100 for the distress and inconvenience caused by the delay and poor communication in the complaint handling.
  6. £100 for the time and trouble taken by the resident in chasing a response to her complaint.
The landlord is to provide evidence of compliance with these orders to this Service within four weeks.