Birmingham City Council (202301194)

REPORT

COMPLAINT 202301194

Birmingham City Council

11 April 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 regarding the landlord’s response to a request for shed repairs.
2. The landlord’s complaint handling has also been investigated.

Background

3. The property is a 3-bedroom house, the landlord is a local council. The resident took possession of the property in 2013, at the start of the tenancy a wooden shed was located in the house’s garden.
4. The resident claimed he first contacted the landlord in 2020 regarding the condition of the shed, which was showing signs of age. He was advised that the landlord did not repair sheds.
5. On reviewing the landlord’s website, the resident again contacted the landlord as according to the repairs information, pre-installed sheds were the responsibility of the landlord. The landlord responded and advised the shed on his property was gifted to him at the start of the tenancy and therefore was his responsibility to repair. The landlord also advised the repair responsibilities listed on its website referred only to sheds made of brick, not wood.
6. The resident raised a complaint on 10 January 2023 as he claimed the shed was pre-installed which according to the landlord’s website would mean it was its responsibility to repair. In addition, the resident stated the website did not specify which material the shed should be constructed from. The resident stated that in response to his request for copies of the landlord’s policies supporting its position on the repairs he was advised to raise a formal complaint. The resident reported the condition of the shed had now worsened since first reported, the wood door had split and was sticking at the bottom, the felt on the roof was damaged which caused the interior roof to become wet and drip inside, and a plastic window pane was also cracked causing additional water to enter. As a resolution the resident wished the landlord to carry out the requested repairs.
7. The landlord provided a stage 1 response on 8 February 2023. It confirmed that the sheds were provided as a gift to the tenant and were therefore the resident’s responsibility to repair. The landlord apologised that this was not made clear when the resident contacted its repair team. On 28 March 2023 the resident requested his complaint be escalated to stage 2 of the landlord’s complaint procedure as the landlord’s website stated it did repair pre-installed sheds and the construction material was not specified.
8. The landlord’s stage 2 response of 8 April 2023 reiterated its findings at stage 1, that the sheds were gifted to the resident at the start of their tenancy. It apologised as this meant repair and maintenance of the sheds were the resident’s responsibility which should have been explained at the time. The landlord further explained the pre-installed garden sheds referred to as the landlord’s responsibility on its website were those constructed of brick and usually attached to the main building.
9. The resident referred his complaint to this Service on 11 April 2023 as he believed the landlord had not complied with its repair responsibilities.

Assessment and findings

The landlord’s response to a request for shed repairs

10. The Ombudsman is aware that the house was a newbuild when the resident took possession. It is not in dispute that the shed was in place when the tenancy began. The conditions of the tenancy state ‘We [the landlord] will keep in repair any garage, shed, porch or outbuilding we have provided which is situated within the boundary of the property…’.
11. The landlord’s repairs policy states the landlord ‘is responsible for the repair and maintenance of the following items, provided that the item was supplied by the [landlord] …and the disrepair has been reported…Sheds, greenhouses, garages, verandas, conservatories.’
12. Both policies make a distinction between items provided by the landlord and items acquired by the resident, which is reflected in the respective repair and maintenance responsibilities. Neither policy makes any distinction in regard to ownership and regardless of whether the shed was a gift, as it was provided by the landlord to the tenant the landlord is responsible for its repair and maintenance.
13. The landlord does not appear to have considered either the resident’s tenancy conditions or its own repair policies in reaching a decision on whether it would repair the shed. In addition, it is unclear how the landlord has obtained the information it relied on when making its decision on the repairs to the shed. The tenancy agreement and the repair policy place a clear repair responsibility for the shed onto the landlord. It was therefore unreasonable for the landlord not to act in accordance with its repair responsibilities by informing the resident that repair and maintenance of the shed was his responsibility.
14. The landlord’s final response asserted that its repair responsibilities with regard to sheds, referred only to sheds constructed of brick and that typically were attached to the main housing structure. As this Service has seen no evidence to support the landlord’s definition of a shed, we can find no reason to depart from the natural and ordinary meaning of the word, which would include sheds regardless of their construction material.
15. It is also noted, although outside the timeframe to be considered in this investigation, that according to both the resident and the landlord, repairs to the shed were requested by the resident and completed by the landlord in 2014 without issue.
16. Although the landlord’s complaint responses later advised the garden shed in the property had been gifted to the resident, this service has not had sight of any evidence that would support this assertion. There is no evidence that the resident was advised of this gift at the start of his tenancy, and no agreement that the resident would assume responsibility for this in the instance that repair was needed. This Service would expect any gift where the landlord also intends to pass on its repair responsibility to be clearly set out for the resident, and for the resident to be given the opportunity to decline such gifts.
17. During the resident’s contact with this Service, he advised that items stored in the shed, including a lawnmower and an office chair, had been damaged by the ingress of water due to the deterioration of the shed’s condition. It is outside the expertise of this Service to assess the validity of this claim, we therefore consider it appropriate for the landlord to raise a claim for the resident under its liability insurance, to consider the resident’s claim for compensation for the stored items.

The landlord’s handling of the residents’ complaint

18. This Service’s complaint handling code states that landlords must respond to stage 1 complaints within 10 working days. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further 10 working days without good reason. If an extension beyond 20 working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties, and the resident should be given this Service’s details to challenge the landlord if an agreement cannot be reached.
19. The landlord’s complaints policy at the time this complaint was raised stated that a stage 1 complaint response would be issued within 15 working days, and a stage 2 complaint response would be issued within 20 working days. It should be noted that since this complaint it has amended its complaints policy to bring it in line with the Ombudsman’s Complaint Handling Code, which sets out this Service’s expectations of landlords’ complaint handling practices.
20. The resident raised his complaint on 10 January 2023 and the landlord issued its stage 1 response on 8 February 2023. This is 21 working days after the complaint was raised, therefore, there was a failing by the landlord to respond to the resident’s stage 1 complaint within a reasonable timeframe, as set out in this Service’s complaint handling code, or its own complaint policy at the time.
21. As the landlord failed to recognise that there had been a delay in its stage 1 response it did not offer the resident redress for the delay. Where delays occur, the landlord would be expected to communicate with the resident and provide an update on when it expected the complaint to be completed. The landlord’s failure to do this impacted the resident, as it delayed his ability to escalate the complaint to this Service for independent adjudication.
22. When considering the above factors, it is the Ombudsman’s opinion that compensation of £100 would provide adequate redress. This is in line with the Ombudsman’s own remedies guidance for cases where there has been a failure by the landlord and it failed to fully recognise the failure or put it right.

Determination (decision)

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its response to the resident’s request for shed repairs.
24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there    was service failure by the landlord in its handling of the associated complaint.

Orders

25. The Ombudsman orders the landlord to, within 28 days of the date of this determination:
    1. To assess the condition of the shed and complete the requested repairs, or if it is found to be beyond economical repair, replace it with a similar structure.
    2. Pay the resident the amount of £300, consisting of:
       1. £200 for the resident’s time and trouble in pursuing the shed repair.
       2. £100 for the complaint handling failure identified in this report.
    3. Raise an insurance claim for the resident for any items stored in the shed that may have been damaged as a result of its poor condition.
26. The landlord must provide evidence of compliance with the above orders within 28 days of the date of this report.

Recommendations

27. The landlord should review its staff training needs regarding application of its repairs policies to ensure that responsive repairs such as the resident’s shed are promptly completed and fully remedied in every case with an emphasis on open and honest communication.