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Birmingham City Council (202210764)

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REPORT

COMPLAINT 202210764

Birmingham City Council

28 February 2024


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:

  1. Handling of the mutual exchange.
  2. Handling of leaks in the property and the associated repairs.

2.             The Ombudsman will also investigate the landlord’s complaint handling.

Background

3.             The resident is a secure tenant of the property, which is a 3-bedroom house. The resident moved into the property via mutual exchange in July 2020.

4.             On 26 April 2022 the resident submitted a formal complaint to the landlord. She stated that she had been complaining about the bath since she had moved in. She said it was not fitted properly by the previous tenant and that had caused constant leaking. The resident said that as a result there was damage to the staircase, porch, downstairs toilet, electrics, and that she had to mop every day. She said she was told she could have a new bath, but it had not been fitted yet. The resident also said that the plastering was yet to be done as the issues with the leak had not been resolved. She said that the bathroom also required a fan.

5.             The landlord provided its stage 1 response on 31 May 2022. It stated that as part of the mutual exchange, the resident signed a disclaimer accepting responsibility for all non-standard items in the property. It said that no work would be completed in the bathroom.

6.             The resident sent an email to the landlord on 7 June 2022. She said that she signed the mutual exchange on the basis that checks had been done properly. She said there was also no ventilation in the bathroom, causing mould. She questioned how she was liable for that. She said that every day the sink in the downstairs toilet overflowed because it was blocked with plaster and water which was pouring in from upstairs. She said the ceiling had a big wet hole. She asked how she and her children could continue to live like that where the only accessible bathroom caused damage to the whole house. She said it was causing her so much stress she had become ill and unable to work.

7.             The resident escalated her complaint to stage 2 on 8 June 2022. She said she did not have the chance to view the property due to lockdown. She said the pictures on the Home Swapper website were not close up and did not disclose the repairs needed. She said she had previously been told that something would be done about the repairs and felt the landlord was hiding behind the mutual exchange. She said she had lived in the property with her children for 2 years without proper use of the bathroom.

8.             The landlord provided its stage 2 response on 2 September 2022. It said that at the time of the mutual exchange, face to face appointments were not being conducted. It said that no documents were signed but the resident’s return email functioned as an “okay to the property.” It advised the resident to raise repairs in relation to the leaks, it said the repairs would be limited and if something was repairable, then it would not be replaced.

9.             Following the stage 2 response, the resident referred the complaint to the Ombudsman. She said that the landlord did not do any checks before she moved into the property, and she has had constant leaks since moving in. She said she had a hole in the ceiling, that the property had mould, and that no electrical checks were carried out before she moved in. She said she would like the repairs to be carried out.

Post internal complaints procedure

10.        The resident submitted a further complaint to the landlord on 9 February 2023 and the landlord provided its response on 13 February 2023. It said that it had been contacted by the Ombudsman and the local councillor in relation to her case. It said it had investigated the issues and her requests for repairs were rejected as she obtained the property through its mutual exchange process. It said she would have been notified at the start of the tenancy that she accepted responsibility for all fixtures and fittings not provided by the landlord. It acknowledged that she had not had the opportunity to view the property and said it was reasonable that she would not have been aware of leaking pipes until she moved in.

11.        The landlord said it had escalated her concerns to senior officers to consider the consequences of a persistent leak. It noted the leak resulted in damp and mould which was affecting her children’s health and increasing water damage to the joists. It apologised for not having the information available previously and said it would prefer that it had the opportunity to reconsider her complaint before being reviewed by the Ombudsman. It then listed its repair obligations for properties in mutual exchange which were:

  1. Pipework, heating systems, drainage, wiring, power, and lighting.
  2. Standard interior fixtures and fittings which are detailed in the conditions of tenancy.
  3. Exterior boundary fencing, wall, outbuildings and steps or paths deemed to be an essential means of access to the property.

12.        The landlord completed an inspection of the property on 16 February 2023. It is unclear whether the jobs raised from the inspection have been completed and resolved all the issues outlined by the resident.

Assessment and findings

Scope of the investigation

13.        The resident has referred to her health and that the landlord’s handling of the repairs could have had an impact on this. It is beyond the remit of the Ombudsman to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. The resident may wish to seek legal advice on making a personal injury claim if she wishes to pursue this. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to the distress and inconvenience which the resident experienced as a result of the situation.

Handling of the mutual exchange

14.        The landlord’s mutual exchange policy states that if all parties are considered suitable for an exchange the housing officer must arrange a home visit with the contracts works officer. It states the purpose of the visit is to ensure that any tenancy breaches are put right and to check the structure and repair of the property. It states that if the property is not satisfactory the tenant must be told any action they must take before the exchange can be approved. It says that the property will be re-inspected once the tenant has made good any damage.

15.        The landlord’s guidance notes on mutual exchange inspections state that the inspection should identify any works of improvement/alterations carried out at the property and their current condition. It states that it should provide photographic evidence of the current condition of the property to support any potential re-charges or conditional agreement. The guidance also states that an electrical inspection should be carried out prior to the inspection of the property.

16.        The disclaimer provided to the resident stated that the resident “take on” repairs which were outside of the landlord’s repairs obligation. It said the disclaimer was for the bathroom suite, radiator and wall tiles, laminate flooring in the living room, front porch door, and rear conservatory.

17.        It is recognised that the mutual exchange happened during the COVID-19 pandemic. It is not disputed that the resident was not able to visit the property or that she electronically signed a disclaimer accepting responsibility for non-standard fitted items within the property. It is not the role of the Ombudsman to assess the standard of the property at the time, rather, it is to assess the landlord’s handling of the matter, and whether it acted reasonably and in line with its policy.

18.        It may have been reasonable for the landlord to advise the resident regarding the existing tenant’s non-standard fittings, and for it to make clear that she would be responsible for those fittings. However, it was not reasonable for it to do so without having inspected the current condition of the property. As per its policy, the landlord should have inspected any alterations carried out in the property and checked their current condition to see if they were fit for purpose.

19.        While it does appear an inspection of the property took place in March 2020, internal correspondence indicates that the existing tenant had to complete some works following the inspection and a reinspection was booked for 16 March 2020. No evidence has been provided to confirm that the reinspection took place and what the outcome was. Given the landlord had not satisfactorily re-inspected the non-standard fittings and confirmed the current condition, it was not appropriate for the landlord to make the resident sign a disclaimer for them. This meant that the resident was not clear of the responsibilities she was taking on, which was unfair.

20.        The landlord also has a statutory obligation to ensure that the gas supply and the electricity at the property is safe. A gas check was undertaken on 20 July 2020; however, a job was raised for the electrics on 10 July 2020 and was not completed. The Ombudsman recognises that the COVID-19 situation was challenging but it was the landlord’s obligation to adjust its policies in line with the changing circumstances. However, it does appear the landlord was able to visit properties at the time, as evidenced with the gas check. Considering the potential health and safety implications, it is not appropriate that the electrical checks were not carried out.

21.        The landlord has not provided any evidence to the Ombudsman or the resident which suggests it reinspected the property or outlined the condition of the non-standard fittings. As such, the landlord was unable to give the resident an accurate list of outstanding defects and condition of non-standard fittings, in accordance with its mutual exchange guidance. The request to sign the disclaimer was unfair given she would not be clear of the responsibilities she was undertaking. It also does not appear the landlord carried out the necessary electric checks to ensure the property was safe. The landlord did not put right this aspect of the complaint and it did not consider the impact that this had on the resident. As a result, the Ombudsman has found maladministration in the landlord’s handling of the mutual exchange.

The landlord’s handling of leaks in the property and the associated repairs.

22.        The landlord’s repair policy states that it is responsible for internal components including water pipes, ceilings, electrical wiring, sockets, light fittings, switches, and basins. It aims to respond to emergency repairs within 2 hours, urgent repairs within 1, 3 or 7 days and routine repairs within 30 days.

23.        Under the Landlord and Tenant Act 1985, the landlord is responsible for repairing the structure and exterior of the property and keeping installations for sanitation and water and electricity supplies in working order. This means the landlord is responsible for resolving water ingress and leaks.

24.        Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Sanitation, electrical hazards, damp and mould, and protection from ceiling collapse are potential hazards that all fall within the scope of HHSRS.

25.        Following a mutual exchange, a landlord is responsible for completing repairs that it is required to fulfil to meet its repairing obligations as a landlord. In accordance with this, the landlord was required to respond to the resident’s repair requests and to put right any issues it identified as its responsibility.

26.        From reviewing the landlord’s repair records and the resident’s complaints, it is clear the landlord repeatedly failed in its management and oversight of the investigation into, and repair of the leaks. The records show that the resident first reported the leaks on 21 October 2020 and the job was recorded as completed on the same day. Following this, the records show at least 8 further reports of water leaks from the bathroom until the resident submitted her formal complaint on 26 April 2022. At the point of providing its stage 2 response the leaks remained unresolved. This was not acceptable and falls significantly outside of the landlord’s repair policy for what should have been classed as an urgent or emergency repair. The repair notes do not outline how the leaks were made safe and whether follow on work was required. In absence of this information, the Ombudsman is not satisfied that the landlord satisfactorily completed the repairs or considered the detriment the prolonged repairs caused.

27.        In its stage 1 response the landlord stated that the resident signed a disclaimer accepting responsibility for all non–standard items and therefore no work would be completed in the bathroom. Even if it was reasonable for the disclaimer to be signed, the landlord’s response would still have been inappropriate. The disclaimer refers to the bathroom suite, not the whole bathroom.

28.        The landlord did not demonstrate that it had assessed the root cause of the leaks or what would assist a permanent resolution. Without this information, it is difficult to determine what work was required in the bathroom and how the landlord could determine who was responsible for it. The resident raised concerns about damage in other areas in the property which were not in the disclaimer and the landlord did not acknowledge or respond to them. The landlord did not follow its repairs policy when responding to the resident.

29.        Despite the number of visits to the property, the landlord did not take steps to make the property safe. The resident informed the landlord that she was concerned about the electrics, the damage caused to the staircase, front porch, downstairs toilet, and the lack of ventilation in the bathroom. It is concerning that she was having to mop up water every day, which suggested that a significant amount of water was leaking through the ceiling. It is more concerning that the landlord did not respond to the resident about these issues in its complaint responses. The resident also stated that she was told she could have a new bath, while no information has been provided to substantiate this, the landlord should have investigated this within its complaint responses.

30.        Following the complaint, a repair was raised for the leak on 26 April 2022 but no further repairs were raised until 16 August 2022. This was despite the resident’s stage 2 escalation highlighting that the issues remained and outlining the impact it was having. The repair log shows that on 16 August 2022 a job was raised for the ceiling, mould, floors, and stairs. It stated, “floor under bath is ruined from water leak and may give way.” The repair for the floor was completed on the same day, however, there were no notes to outline whether further work was required and whether other repairs were addressed. The Ombudsman finds that the landlord failed to treat the matter with the seriousness it required. This is considering the condition of the property, safety concerns, and how much distress was being caused to the resident and her children.

31.        Following the resident’s formal complaint, the landlord should have inspected the property to assess habitability considering the prolonged duration of the leaks and the growing percentage of the property that was affected. The resident repeatedly made the landlord aware of the distress, discomfort, and impact on her health, as well as the impact on her children. There is no evidence to demonstrate the landlord considered the vulnerability of the occupants, completed a risk assessment, checked whether the electrics were safe, offered interim support, or prioritised the repairs. An inspection of the property would have assisted the landlord in considering a decant until the leak and damage to the property were resolved. The landlord’s failing to consider this was a significant failure.

32.        Overall, the landlord did not treat the resident fairly in the way it handled reports of leaks within the property and the associated repairs. It acted with a lack of urgency and failed to take responsibility for the repairs required. It did not consider the impact on the resident and her children, nor did it assess whether the property was habitable. The Ombudsman has also considered the distress and inconvenience suffered by the resident to be significant over a prolonged period. Considering the above findings, this constitutes severe maladministration.

33.        The landlord will be ordered to compensate the resident based on a loss of use and enjoyment of the property due to the landlord’s delay in resolving the leaks. The compensation will be based upon the period of the second reported water leak on 22 February 2021 (which had no completion recorded) until the inspection which took place on 16 February 2023. However, as the present status of the property is not clear it is appropriate to order the landlord to conduct an inspection.

The landlord’s handling of the complaint

34.        The landlord’s complaints policy provides for a 2 stage complaints procedure. It is to respond to a complainant at stage 1 within 15 working days and within 20 working days at the final stage. It states that “We are committed to treating everyone fairly and consider equality and diversity positively. We strive to ensure that any specific needs are acknowledged in all our interactions.”

35.        The landlord’s compensation policy states that it will not pay for distress and inconvenience. It states that liability can only be accepted if:

  1. The landlord was informed, prior to the claim, of the disrepair (or could reasonably been expected to be aware of the need for repair, e.g. communal areas)
  2. Work that had been done was not sufficient to remedy the problem or proved to be faulty.
  3. The landlord has a statutory duty (e.g. Section 11 of the Landlord and Tenant Act 1985 and those under Section 82 of the Environmental Protection Act 1990).

36.        The Ombudsman has noted that the landlord’s complaint handling timescales are not consistent with the Ombudsman’s Complaint Handling Code, which sets out 10 working days to respond at the first stage and 20 working days at the second stage. The Complaint Handling Code will become statutory from 1 April 2024, meaning that landlords will be obliged by law to follow its requirements. Therefore, no order in relation to this has been made. The Code aims to achieve best practice in complaint handling and to provide a better service to residents.

37.        The resident made her formal complaint on 26 April 2022 and the landlord responded on 31 May 2022, 24 working days after. The landlord did not apologise or provide an explanation for the delay in responding to the resident. The response provided was 1 paragraph to say that the resident had signed a disclaimer accepting responsibility for all non-standard items and therefore no work would be completed. Given the limited information provided in its stage 1 response and distinct lack of investigation into the resident’s concerns, the delay was not acceptable.

38.        The stage 2 response was provided 3 months after the resident escalated her complaint. Again, the landlord did not apologise for or explain the reason for the delays. The response provided was also limited in that it referred to the resident having sent a return email which functioned as an “okay to the property.” It did not outline what this meant in relation to the repairs she had raised. It advised her to raise repairs for the leaks and said in line with the conditions of her tenancy, a limited repair service would be provided. It did not explain why this was the case and it did not address any of the other repairs the resident had raised. The response was not in line with its policy which states it is committed to treating everyone fairly and ensuring any specific needs are acknowledged.

39.        In the Ombudsman’s opinion, the landlord’s complaint responses were dismissive in tone, lacked empathy, and attempted to minimise the failings of the landlord. It did not take any ownership of the failures and delays caused by its handling of the leaks. It failed to investigate all of the additional repairs raised by the resident, this included the lack of ventilation in the bathroom, damage caused, and the risk to the electrics. Additionally, the landlord did not fully consider the needs and impact on the resident with a young family in a property with significant disrepair. 

40.        The landlord provided a further stage 1 response to a further complaint submitted by the resident in February 2023. It is noted that the landlord referred to the previous complaint which was with the Ombudsman at the time and that it would like the opportunity to reconsider the complaint before being reviewed by the Ombudsman. It was not appropriate for the landlord to suggest this to the resident. The landlord had already provided its final response and the resident was entitled to take the complaint to the Ombudsman, as per its complaints policy.

41.        The landlord can continue to respond to repair requests and respond to new complaints which were not included in the previous complaint. However, by providing a further response after the complaint has been referred to the Ombudsman, the landlord has not demonstrated it will act fairly and consistently in all cases.

42.        The landlord did not respond to the resident in line with its complaints policy. It did not seek to compensate the resident for the delays in resolving the leak and responding to her complaint. It is a concern that the landlord’s responses at both stages of its complaint process were a reiteration of the resident “signing” the disclaimer and mutual exchange paperwork. There is no evidence to suggest that a wider investigation into the complaint was completed or that the full repairs and contact history were reviewed by the landlord. It did not address each aspect of the complaint, consider any learning points, or assess the impact its failures had on the resident. Altogether, the failures amount to severe maladministration by the landlord in its handling of the resident’s complaint.

Special Report on Birmingham City Council

43.        In January 2023, the Ombudsman issued a special report about the landlord highlighting concerns with its repairs, record keeping, complaint handling, and compensation. The report recommended the landlord independently review those areas and develop an action plan based on the findings.

44.        While the landlord has engaged with the Ombudsman and progress has been made, we have continued to identify problems with the landlord’s performance. This is evidenced in the recent findings of severe maladministration against the landlord and the similar failings which have been identified in this report. We therefore order the landlord to consider the findings highlighted in this investigation against the recommendations in our special report of January 2023.

Determination

45.        In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:

  1. Maladministration in the landlord’s handling of the mutual exchange.
  2. Severe maladministration in the landlord’s handling of the leaks and the associated repairs.
  3. Severe maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

46.        The landlord’s chief executive is to apologise in writing for the failings identified in this report.

47.        The landlord is to arrange a full inspection of the property with a surveyor, paying close attention to the structure of the property, and to assess if any further work is required, in line with its repair obligations. This should include work regarding any of the fittings which it had previously denied responsibility for in its disclaimer. It will then write to the resident setting out:

  1. what works have been carried out to date.
  2. what further works are required.
  3. a timeline for when those further works will be carried out and completed.

48.        The landlord is ordered to pay the resident a total of £4,780 compensation comprising of:

  1. £600 for the landlord’s failures in handling the mutual exchange.
  2. £3,080 for the loss of use and enjoyment of the property based on 25% of the weekly rent of £119.60 (2023 rate), for 103 weeks.
  3. £800 for the distress and inconvenience caused to the resident.
  4. £300 for the landlord’s failures in its complaint handling.

49.        The landlord is to provide compliance with the above orders within 4 weeks of the date of this report.

Recommendation

50.        The landlord should reflect on its record keeping in this case. It should ensure it maintains clear records of inspections and checks which take place via mutual exchange. This is to ensure it can satisfy itself that it has followed its guidance and carried out its statutory obligations.