Birmingham City Council (202121450)

REPORT

COMPLAINT 202121450

Birmingham City Council

26 April 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

1. The complaint is about:
   1. The landlord’s response to reports of a defective window.
   2. The landlord’s handling of the associated complaint.

Background

2. The resident has a secure tenancy of a two-bedroom flat on the third floor.
3. The property had new windows installed on 15 January 2019, under a planned capital works programme.
4. The resident raised a repair to the window. The landlord’s position is that on 15 February 2020, this was repaired. This is not in dispute.
5. On 23 September 2020, the resident reported that the lounge window would not close. A job was raised on the same date, with a target completion date of 4 November 2020. The repairs records indicate the job was cancelled on 2 November 2020. The landlord stated this was because the windows were still under warranty, and so that this should be pursued as opposed to a repair. It is important to comment here that this was the winter months.
6. The resident reported the same issue on 7 January 2021 and a job was raised with a target date of 18 February 2021. The landlord advised that an operative attended on 18 March 2021, but the repair was not completed as the resident refused the work.
7. On 27 April 2021, the repair was raised again. The landlord closed the order on the basis that the windows were under warranty.
8. The resident raised the issue again on 12 July 2021. An operative attended on 9 August 2021, and advised that it needed a specialist to complete the work. The repair log states the work was completed at this time.
9. The resident raised a formal complaint on 12 July 2021. The resident said that no one had updated him regarding the repair to the window he raised on 23 September 2020. The complaint was acknowledged by the landlord on 20 July 2021. The landlord promised to respond within 15 working days.
10. The landlord raised questions with the contractor on 30 July 2021. It asked why the repair had not been returned to be completed under the warranty or completed by the contractors. The contractor responded on 14 September 2021 to say the repair had been completed. The landlord queried when this had been completed. The contractor advised on 15 September 2021, that the job remained outstanding because the resident had refused the repair.
11. The landlord wrote to the resident on 15 September 2021 and stated ‘the supervisor has attended the property several times, and the resident had not mentioned window repairs. It further alleged the resident had refused the repair.
12. The resident remained dissatisfied and escalated his complaint on 7 October 2021. The landlord acknowledged the complaint on 8 October 2021 and said it would respond by 4 November 2021. The stage two response was issued on 9 November 2021 and stated:
    1.  An operative attended on 9 August 2021, and determined that a specialist was needed to take out the window and realign.
    2. A contractor attended on 23 August 2021 and completed the job.
    3. If the resident remained unhappy, they would need to raise another job.
13. The resident raised the same concern with the window on 15 November 2021, as the issue was still outstanding. The records indicate the job was completed on 29 December 2021.
14. The resident remained dissatisfied with the landlord’s final response. He brought his complaint to the Ombudsman, as he was not happy that the landlord said he refused the work. He disputes that any work was conducted to resolve the issue and said that the window not closing made his property cold, as there are gaps. The resident said that he would just like the window to be fixed.

Assessment and findings

The landlord’s handling of the repair to the window

The landlord’s duties

15. The tenancy agreement is a legally binding document that both the resident and the landlord are bound by. Under paragraph 3.3 of the terms, the landlord is responsible to keep in repair the structure and exterior of the property. There is a further duty on the landlord under section 11(1)(a) of the Landlord and Tenant Act 1985.
16. Where a repair is raised, the law states that a landlord must inspect to determine if it is responsible to repair. Where the landlord is responsible, it must conduct a repair within a reasonable time. What is a reasonable time will depend on all the facts, including the type of repair. In most cases, landlords have repairs policies which set out when repairs ought to be completed. In this case, the repairs policy states routine repairs will be completed within 30 working days. The policy further states that all responsive repairs were to be agreed upon by appointment.

Did the landlord comply with its obligations?

17. The resident first reported his lounge window on 23 September 2020. Once the resident reported the issues with the windows, the landlord was then required to inspect and determine the cause of the problem, and repair within a reasonable time, under the express and implied terms of the tenancy. The Ombudsman understands that the repair remains outstanding.
18. It is the landlord’s position that the resident did not raise the issue with the windows with the supervisor, and that the resident refused a repair.
19. It is the Ombudsman’s view that the resident did not need to raise the repair to the window with the supervisor again. The landlord already had notice of the repair from September 2020. The resident was not obligated to keep raising the issue. Importantly, there is evidence on file that correspondence, including a report from the glass company who installed the windows, was sent to the supervisor for comment. There is no evidence that the supervisor responded.
20. Residents are under a duty to allow access to complete works. Where they refuse access or the works offered, that does not mean the landlord will no longer be responsible for the repair. It simply means the landlord will no longer be responsible for the delay from the date of the resident’s refusal. The resident denies he ever refused a repair offered by the landlord.
21. The evidence provided to the Ombudsman to demonstrate the resident refused the repair is an internal written record. It is important to summarise these records here, for the avoidance of doubt:
    1. The first entry states the landlord was referring the repair to be completed under the warranty. The record states the resident was extremely unhappy. This record does not specifically state the resident was offered and refused a repair.
    2. The next entry states that the supervisor was emailed to call back the tenant.
    3. The third entry confirms the repair had been sent to the original contractor to deal with under the warranty, following a call to the contractor. It does not state the resident declined a repair.
    4. The fourth entry states the job should be returned as a repair issue rather than a warranty issue. It does not state the tenant refused a repair.
    5. The fifth entry suggests the resident contacted the contractor to contact him, to arrange an inspection of the window.
    6. The sixth entry states: ‘feedback given to the tenant regards contractors’ response to the repair (now cancelled). The tenant is disputing the supervisor’s findings and insisting on a repair.’ This does not state the resident was refusing repairs, but states he was insisting on a repair.
    7. The seventh and eighth entries state that an email was sent to the supervisor chasing feedback.
    8. The ninth entry states that notes were sent to the supervisor. This was for their comment.
    9. The tenth and final entry states the repair was cancelled because the windows were fitted on a capital works programme.
22. The resident contacted the landlord for repairs on five occasions:
    1. 23 February 2020
    2. 7 January 2021
    3. 27 April 2021
    4. 12 July 2021
    5. 15 November 2021
23. On 21 November 2021, internal notes state that the landlord has spoken to the contractor and asked that they call the resident. There is no evidence of a call to the resident.
24. On 22 November 2021, the resident contacted the landlord to report a missed appointment due to take place that day.
25. The first time the allegation is referenced is when the landlord chased its contractor during the complaint procedure. The contractor initially said the works had been completed. When the landlord asked when the work had been completed, the contractor then alleged the resident had refused repairs.
26. On evaluation of the available documentary evidence, together with the resident’s position that he did not refuse a repair: there is no evidence upon which the Ombudsman could reasonably conclude, that the resident was refusing works as the landlord suggests.
27. The repairs records indicate that the repairs were cancelled by the landlord for the following reasons:
    1. That the repair needed to be passed back to the contractors that installed the windows under the warranty
    2. That a specialist contractor was required.
28. The same records also show some back and forth between the contractor and the landlord and the supervisor, and there was a report commissioned by the contractors that installed the windows. The Ombudsman has not seen a copy of the report or the supervisor’s response to it which was being sought.
29. That means that the landlord is responsible for an avoidable delay in completing the repair to the window from 15 September 2020 until 29 December 2021, which is approximately 15 months.
30. On this basis, the landlord is responsible for maladministration and so is responsible to pay compensation. As the resident has said the property was cold and the window was in the living room, it is likely the outstanding repair will have had an impact on his enjoyment of the home, for which he pays rent. On this basis, the landlord must refund 10% of the rent for the period the repair remained outstanding, namely between 23 September 2020 and 29 December 2021, which was 463 days or 66 weeks).
31. In addition, there will have been distress and inconvenience involved, given there were also missed appointments and that the resident was blamed for refusing work, without clear, cogent, and credible evidence. This would attract a compensation payment for distress and inconvenience of £350.00.

The landlord’s handling of the complaint.

Stage one

32. The landlord’s complaints policy is a two-stage process. It says that it will investigate and respond to complaints within 15 working days of the date the complaint was received.
33. In June 2020, the Ombudsman published the Complaint Handling Code, which landlords were required to self-assess against by January 2021. The Code required the landlord to provide a response within ten working days of the date of the complaint acknowledgement.
34. In this case, the resident raised the complaint on 12 July 2021. The landlord acknowledged the complaint on 20 July 2021. As such, a response ought to have been provided:
    1. no later than 30 July 2021 under its own policy; or
    2. no later than 2 August 2021 under the Code.
35. The landlord provided its stage one response on 15 September 2021 – which was 45 working days after the date the complaint was raised. There is no evidence that this delay was unavoidable, or that the resident was informed there would be a delay. That was a failure by the landlord.
36. The stage one response gave minimal information about what the landlord had considered, and in short, accused the resident of refusing works and not raising the complaint.

Stage two

37. On 7 October 2022, the resident escalated the complaint. He states that he is unhappy at the implication that he is a ‘liar’ and that he refused the job. Under the landlord’s policy and the Code, it had until 4 November 2021 (20 working days) to respond.
38. The landlord completed a stage two response to the resident on 9 November 2021, which was four working days beyond the deadline.
39. Significantly, the stage two was investigated and responded to by the same officer who responded at stage one, it was not done by a senior manager, or a designated officer not previously involved in the complaint. This was contrary to the landlord’s own policy, and the Ombudsman’s Code.
40. The landlord did not acknowledge its delay in responding to the resident’s complaint at stage one, nor the inconvenience the resident may have experienced. In addition, the response did not evidence any investigation it had conducted to address the concerns or give any indication as to how it intended to put things right or resolve the complaint. The outcome letter again advises the resident to contact the repairs call centre to raise a new job if he remained unhappy.
41. Furthermore, the landlord’s compensation policy states that it does not provide compensation for distress or inconvenience, which is not in line with the Ombudsman’s Complaint Handling Code. The landlord should be aware of the Ombudsman’s approach to compensation and should be seeking to follow our approach to resolve complaints, without the need for our involvement.
42. This is a significant failure in complaint handling. Blanket policies which do not allow officers to consider exceptional or personal circumstances of a resident are a fetter on a landlord’s discretion. In this case, the failures identified in the complaint handling, and the lack compensation policy which was a fetter on the landlord’s discretion amounts to maladministration.
43. The landlord should pay the resident £250 compensation in view of the errors in its complaint handling. This is in line with the Ombudsman’s remedies guidance, as set out above.

Determination (decision)

44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in response to reports of a defective window.
45. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaint.

Orders

46. The Ombudsman orders the landlord to:
    1. pay the resident compensation, for the loss of enjoyment of his home based on 10% rent refund from 23 September 2020 (when the repair was reported) until 29 December 2021 when the repair was completed. The landlord must provide the resident and the Ombudsman with the figures (including rent level for the period) within 28 days of the date of this determination.
    2. pay the resident £600 as follows:
       1. £350 to recognise the distress and inconvenience caused by the missed appointments, lack of communication and the resident being accused of refusing repairs without suitable evidence.
       2. £250 for the distress and inconvenience caused by its poor complaint handling.
47. All payments must be made to the resident within 28 days of the date of this decision.

Calculation for compensation based on rent.

48. Work out the total rent paid by the resident between 23 September 2020 to 29 December 2021 based on the rent debits on the rent statement.
49. Multiply the amount by 0.12.

Example

* Based on average social rents in Birmingham for 2021/22: Live_Table_702_Jan_23.ods

**10% of the rent – worked out as multiplying the rent by 0.10