Birmingham City Council (202220689)

REPORT

COMPLAINT 202220689

Birmingham City Council

8 March 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

The complaint is about the landlord’s handling of damp and mould.
The Ombudsman has also considered the landlord’s complaint handling and record keeping.

Background

The resident is a secure tenant. The property is a 3-bedroom house.
The resident raised a stage 1 complaint on 14 February 2021 about damp and mould. The resident said that her walls were covered in mould in every room despite opening her windows and heating the property. The resident indicated that the mould was not good for her family’s health, and she wanted the matter dealt with as soon as possible. The landlord acknowledged the complaint on the same day.
The landlord provided its stage 1 response on 24 February 2021. The landlord said that:
1. The resident had not reported any issues about damp and mould between January 2020 and January 2021, therefore its contractor had not been aware of any ongoing issues in the property.
2. Following the resident’s new reports about damp and mould in January 2021, it had made arrangements to inspect the property on 5 March 2021. It would try to attend sooner if it could. Its contractor may carry out some repairs to address the damp and mould on this day but follow on works may be required.
3. Its contractor had attended to various leaks and window repairs at the property in the past, which may have contributed to the damp and mould issues.
4. It hoped that the appointment on 5 March 2021, would begin to address some of the damp and mould problems in the property. It mentioned that some of the issues could be caused by condensation. The landlord detailed several steps that the resident could take to reduce condensation in the property.
5. If the resident remained dissatisfied with its response, she could escalate the complaint to the next stage of its internal complaints process.
The resident raised a new stage 1 complaint concerning an unrelated matter on 31 May 2022. The landlord responded on 10 June 2022.
The resident escalated her complaint concerning the unrelated matter on 3 February 2023. Within her complaint escalation request, the resident mentioned that there was “damp everywhere” and a smell of damp in the property. The resident contacted the landlord on 1 March 2023, since she had not received a response to her complaint.
The landlord provided a stage 2 final response on 3 May 2023. In relation to damp and mould it said:
1. It had treated the mould in the 3 bedrooms, living room, landing and kitchen on 5 March 2021.
2. Its contractor had acknowledged rising damp to the damp proof course and suggested that the resident request a bricklayer. It said that its contractor should have reported this itself and requested further repairs. It apologised that the resident was inconvenienced by the need for further reporting.
3. It noted that the resident was concerned that a lack of insulation was a contributory factor to the damp in the property. A works order had been raised on 25 April 2023, and a property inspection would be carried out on 9 June 2023. The complaint handler committed to speaking with senior officers to ensure that the matter was addressed by its contractor prior to completion of the repair.
4. If the resident remained dissatisfied with its response, she could escalate the complaint to the Ombudsman.
The resident told the Ombudsman on 5 March 2024, that she continues to experience damp and mould in the property. Although the landlord had painted the walls in August 2023, the mould had returned 3 weeks later. The resident said she had not reported this to the landlord.

Assessment and findings

The landlord’s obligations

The landlord has a statutory obligation under Section 11 Landlord and Tenant Act 1985, to keep the structure and exterior of the property in repair. This includes external and internal plasterwork, walls, ceilings, and the roof. The landlord must also keep in repair and working order any installations that it owns, controls, or that indirectly serves the property. This includes installations for the supply of water, sanitation, space heating, and water heating.
The Housing Act 2004, introduced a system for identifying hazards arising from faults or deficiencies in a property which could cause harm, called the housing, health and safety rating system (HHSRS). The Department of Communities and Local Government issued HHSRS guidance for landlords and property related professionals in 2006. The guidance sets out a range of preventative measures that landlords should consider, to prevent the likelihood of harm being caused to a resident from hazards like damp and mould. The courts have held that a property is not reasonably fit for habitation if the state of repair means an occupier might be injured or experience injury to health as a result of ordinary use of the property.
The landlord has a repairs policy, which sets out its approach to dealing with responsive repairs. Its aim is to attend to urgent repairs, concerned with protecting the health and safety of a resident, in either 1, 3 or 7 working days. It aims to complete routine repairs in 30 days of a repair being reported. The resident will be informed of the timescales to be expected where jobs are large and where special materials or arrangements are required.
The landlord’s repairs policy also states that its surveyors and repairs partner should be aware of the basic principles relating to the HHSRS. The resident should take reasonable steps to avoid moisture (condensation) building up in the property and causing damage.
The tenancy agreement sets out the contractual obligations of both the landlord and the resident:

The landlord states that it:

Will keep in repair the structure and exterior of the property.
Has no responsibility to install, extend or improve existing ventilation, heating, insulation, or internal plasterwork in the property, unless it is required to do so to satisfy any statutory provisions.
Is not responsible for condensation or the effects of condensation unless it arises from a breach of its repairing responsibilities or as a result of a statutory repairing obligation.
Cannot accept any liability to repair the property until the resident has reported it. If the resident does not contact the landlord, it will not accept that the resident has given appropriate notice to inspect and carry out works.

The resident:

Must contact the landlord as soon as the resident becomes aware of a repair for which the landlord is responsible.
Must allow access for inspections. It will give advance notice whenever possible. The resident must keep any agreed appointments to complete repairs. In the event that the resident is not at home, the landlord will leave a calling card asking the resident to make new appointment.

The landlord’s handling of the resident’s reports of damp and mould.

The resident raised concerns about damp and mould throughout the property on 29 January 2021. In response, the landlord raised a works order to inspect the property 25 working days later. Since the resident was reporting issues which may have been prejudicial to the resident’s health, the Ombudsman would have expected the landlord to have inspected the property in a timelier manner.
The landlord has not provided a copy of its inspection report from 5 March 2021. However, it is understood that on this date, the landlord’s contractor completed a mould treatment throughout the property. Its contractor told the resident to book an appointment for a bricklayer to inspect the brickwork and damp proof course for possible rising damp. She was also told to report a missing water deflector on the back door. The landlord accepted in its stage 2 response, that its contractor should have reported this themselves and made arrangements for follow-on works. The landlord recognised that this had caused the resident unnecessary inconvenience, for which it apologised. This suggests there was an issue with communication between the landlord and its contractor, and an inadequate level oversight by the landlord over repairs completed.
The Ombudsman accepts that it was unhelpful that the resident was not at home on 16 April 2021, when the landlord had arranged to attend to the loose pointing. The tenancy agreement states that residents must keep any agreed appointments to complete repairs. It was also unhelpful that the resident did not contact the landlord to rearrange the appointment in response to a calling card left by its contractor. While it may have been the landlord’s practice to cancel work orders when the residents did not respond to calling cards, this left repairs uncompleted which were required to prevent a reoccurrence of damp and mould in the property.
Despite its policy decision, the landlord was unable to absolve itself of its legal obligations to keep the property in repair, free from the risk of hazards, and safe from personal injury arising from a known defect. Yet, it was nearly 8 months before the landlord’s contractor completed repairs required to the pointing and concrete floor, prompted by the resident reporting a reoccurrence of mould. The landlord’s delay to complete these essential works was unreasonable.
After the resident reported damp and mould again on 23 February 2022, the landlord completed a further damp and mould inspection on 25 February 2022. The outcome of the inspection is unclear from the evidence seen. However, a note on the repairs log states that the landlord’s contractor had suggested that a lack of insulation was to blame for the mould, but this was not passed back to the landlord. This is further evidence of issues with communication between the landlord and its contractor. It also points to there being insufficient oversight over inspections and repairs completed by its contractor.
The landlord raised a rectification of works order on 13 April 2022, after the resident expressed dissatisfaction that works to resolve damp and mould were incomplete. It immediately booked an inspection and follow-on works for 19 May 2022. Again, in view of the potential risk to health, the Ombudsman would have expected this inspection to have been carried out in a timelier manner.
On the day of the inspection, the resident stopped the landlord’s contractor from completing follow-on works. The resident said that similar works had been tried in the past without success and she intended to take the matter further. Since the landlord’s repairs records do not detail what works the landlord was proposing, it has not been possible to assess the reasonableness of the resident’s position. There is no evidence that the resident took her concerns up with the landlord, however, equally there is also no evidence that the landlord endeavoured to contact the resident to find a way forward. This was unreasonable and left the matter unresolved until March 2023, when the resident raised the stage 2 complaint. It was another 3 months before the landlord inspected the property, which further highlights the landlord’s lack of urgency to address the ongoing matter.
The landlord has provided the Ombudsman with a copy of its damp and mould inspection report dated 4 May 2023. The landlord has stated that the inspection was carried out by a member of its staff. It has not been possible to determine from the evidence seen if this member of staff was suitably qualified to carry out a damp and mould inspection. It has not been possible to determine based on fact, if moisture and humidity readings were taken at the time of the inspection, which would be standard practice when assessing a property with damp and mould and establishing a diagnosis. While the inspection methodology suggests that moisture readings were taken with a protimeter, the resident disputes this. If any moisture or humidity readings were taken, these were not recorded on the inspection form.
The inspection report shows that the property was in “good” condition, but the inspector observed mould in most rooms, paint peeling off the walls in the kitchen, and some issues with the pointing above the damp proof course. The inspector noted that the trickle vents throughout the property were all closed. The resident was told to ventilate the property by opening windows and trickle vents. She was asked to move some furniture away from the wall in one of the bedrooms. A works order was raised to complete identified works, which its contractor attempted to remedy in June 2023. However, the resident did not provide access and she did not rearrange the appointment upon being left a calling card.
It is understood from the resident that the landlord repainted the internal walls throughout the property on 31 August 2023, however, the mould returned 3 weeks later and remains unresolved.
It is unclear from the evidence seen if the pointing works were completed or if the landlord considered any other remedial action was required. The resident was obliged under the terms of her tenancy to report the recurrence of mould to the landlord as soon as she became aware of its return. However, it was also incumbent on the landlord to keep in regular contact with the resident following completion of works in August 2023, to monitor, and satisfy itself that a permanent solution had been found. If the landlord felt that the issues could not be resolved by structural or mechanical intervention, the landlord should have considered the best way to support the resident to avoid a further reoccurrence.
It is noted that the landlord is in the process of developing a stand-alone policy for dealing with damp and mould. However, in this case, there was a lack of proactive effort by the landlord to find a long-term solution. Communications between the landlord and its contractor were poor, which resulted in missed opportunities to bring about a timelier resolution to the substantive issue. There was an apparent lack of oversight over repairs completed and the landlord did not regularly communicate with the resident regarding actions taken. The resident was caused continued distress and inconvenience. While the resident’s engagement with the landlord was sometimes unhelpful, she was left uncertain as to the cause of the mould and how this could be remedied.
When considered cumulatively, there was maladministration in the landlord’s handling of damp and mould. As a remedy, the Ombudsman orders the landlord to pay compensation which reflects the resident’s distress and inconvenience, and the impact caused to the resident by the landlord’s lack of oversight over its contactor and required repairs. This calculation is based on the Ombudsman’s view that between 5 March 2021 (the date of its first inspection) and the date of this report, the resident has experienced a loss of use and enjoyment of the property. The Ombudsman considers it reasonable to compensate at a rate of £10 weekly for this period. The compensation awarded has factored in the resident not being present for an appointment and not making further reports of damp and mould. Ultimately, the landlord should have satisfied itself that the damp and mould was remedied.

The landlord’s complaint handling and record keeping.

According to the landlord’s complaint policy at the time of the complaint, it will endeavour to settle complaints immediately, at stage zero. However, where this is not possible, the landlord operates a 2-stage formal complaint process. The landlord aims to respond to stage 2 complaints within 15 working days and stage 3 complaints in 20 working days.
Under the landlord’s compensation policy at the time of the complaint, the landlord may award compensation if works carried out were insufficient to remedy the problem or fault, or there was a statutory duty to award compensation. It would not make an award for compensation for inconvenience or distress caused.
The Ombudsman notes that the landlord’s complaint policy was revised in April 2023, and more recently it revised its compensation policy. The landlord’s new complaint policy brings the number of complaint stages and response timescales in line with the Housing Ombudsman’s Complaint Handling Code. The landlord should consider updating the information provided on its website to reflect the changes it has made.
The Ombudsman notes that it was 2 years before the resident raised a stage 2 complaint about the landlord’s handling of her reports about damp and mould. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider the issues while they are still “live” and while the evidence is available to reach an informed conclusion on the events that occurred. As the substantive issues become historical, it is increasingly difficult for either the landlord, or an independent body such as the Ombudsman, to conduct an effective review of the actions taken by the landlord to address those issues.
Nevertheless, the landlord’s decision to consider the resident’s complaint about damp and mould was reasonable since this related to matters of health and safety. Furthermore, the resident was not bound by any time restrictions for bringing the complaint to the landlord’s attention under its complaint policy. However, the landlord’s decision to handle the resident’s complaint about damp and mould immediately at stage 2, denied the resident the opportunity for her complaint to be investigated and then reviewed by the landlord before the complaint was progressed to the Ombudsman. Had the landlord progressed the complaint through all complaint stages, it may have been able to resolve the matter for the resident in a timelier manner.
Having accepted the landlord’s complaint about damp and mould, the landlord’s stage 2 response was issued outside of the expected timescales set out in its complaint policy. This was inappropriate and left the resident uncertain as to how her complaint was being addressed.
Although the landlord did not clearly state whether the resident’s complaint was upheld, it did recognise some failings, and it set out the steps it was taking to put things right. However, the Ombudsman would have expected to have seen evidence that the landlord was tracking any outstanding actions and that it was endeavouring to keep in regular contact with the resident until the substantive issue was resolved. The Ombudsman has seen no evidence that this happened. The fact that the property continues to experience damp and mould suggests that there was an inadequate level of oversight in the landlord’s complaint handling. The landlord failed to monitor and track completion of the outstanding actions to ensure they achieved their aim.
The Ombudsman would expect a landlord to keep a robust record of contact and evidence of its actions relating to each casefile, which can be provided to the Ombudsman upon request. Landlords who fail to create and record information accurately, risk missing opportunities to identify its actions were wrong or inadequate and contribute to inadequate communication and redress.
While the Ombudsman was able to determine this case based on the evidence provided, there were noticeable gaps and omissions in the landlord’s records, as highlighted throughout this report. The landlord either did not keep a record of its actions, or it did not provide all of the evidence it held to the Ombudsman.
Overall, the landlord’s complaint handling fell short and delayed resolution of the complaint for the resident. There were gaps and omissions in the landlord’s records. The Ombudsman finds maladministration in the landlord’s complaint handling and record keeping.

Special report on Birmingham City Council

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 that the landlord independently review those areas and develop an action plan based on the findings.
While the landlord has engaged with the Ombudsman and progress has been made, similar failings have been identified in this report. Therefore, the landlord should consider the findings highlighted in this investigation against the recommendations in the Ombudsman’s special report of January 2023. A relevant order is made later in respect of this.

Determination

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was:
1. Maladministration in the landlord’s handling of damp and mould.
2. Maladministration in the landlord’s complaint handling and record keeping.

Orders

The landlord must write to the resident to apologise for the failings identified in this report.
The landlord must pay compensation of £1,720 directly to the resident. This has been determined in line with the Ombudsman’s remedies guidance and is broken down as follows:
1. £1,570 in recognition of distress and inconvenience caused to the resident by the landlord’s handling of damp and mould, and the impact on use and enjoyment of the property.
2. £150 in recognition of the resident’s distress, time and trouble, caused by failures in the landlord’s complaint handling and record keeping.
The landlord must:
1. Arrange a damp and mould survey of the property by a suitably qualified surveyor. The resident should provide access.
2. Upon receiving the survey report, the landlord must act on any recommendations made in a reasonable timeframe.
3. The landlord must endeavour to meet the resident to discuss the outcome of the damp and mould survey. The landlord should agree an action plan with the resident, setting out a timeline and the steps that both parties will take to resolve the ongoing issue of damp and mould in the property, including aftercare. If the survey identifies issues which cannot be resolved through structural or mechanical intervention, the landlord must consider how it may best support the resident.
4. A copy of the damp and mould survey, and action plan, should be sent to the resident for transparency.
Consider the findings highlighted in this investigation concerning repairs and the landlord’s oversight of its contractor, against the recommendations in the Ombudsman’s special report of January 2023. Thereafter, the landlord should assure itself that it has implemented corrective actions to ensure that repairs are appropriately managed. The landlord must share with the Ombudsman the actions that it has taken or will take.
The landlord must provide evidence to the Ombudsman that it has complied with the above orders, within 4 weeks of the date of this decision.

Recommendations

The landlord should consider amending the information on its website about making complaints, to reflect the revisions of its latest complaint policy.
The landlord should write to the Ombudsman with its intentions in regard to these recommendations within 4 weeks from the date of this report.