Birmingham City Council (201910272)

REPORT

COMPLAINT 201910272

Birmingham City Council

4 August 2021

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. Complaint handling.
2. Response to the resident’s concerns regarding adaptation works undertaken in the property’s bathroom.
3. Response to the resident’s report that she sustained an injury as a result of the adaptation works undertaken.

Background and summary of events

Background

The resident is the tenant of the property (the property) which the complaint concerns. The landlord owns the property.

Summary of events

In mid to late 2018, exact date not known, the resident’s Occupational Therapist (OT) made a referral to the landlord for bathroom adaptations. The referral requested “remove the existing bath and provide a true level access shower, please re-position the toilet towards the shower to create space and allow better access in/ out of the bathroom”.
On 1 March 2019 the resident contacted the landlord regarding the bathroom adaption works. The landlord’s record noted that the resident reported:
1. As part of the adaptation works the landlord completed an asbestos check which involved removing tiles and taking the ceiling down.
2. The landlord did not reinstate the tiles and ceiling properly following the asbestos check which caused the ceiling to fall down on top of her.
3. As a result of the collapsed ceiling she experienced “severe injuries” which included a split to her head, fractured wrist and bruises.
4. Despite reporting the accident to the landlord “countless times” no one had helped or visited the property.
In response the landlord contacted the resident, exact date not known, confirming that it would visit the property and pass the complaint onto its contractor for a response.
On 6 March 2019 the contractor responded to the landlord’s enquiry regarding “the survey to the bathroom”. In summary the contractor said:
1. All walls and boxings in the property’s bathroom were timber clad.
2. To gain access to the substrate behind the cladding it was removed, which was agreed with the landlord and resident.
3. One ceiling panel, approximately 1 metre in length, was also removed to determine the presence of textured coating to the plasterboard.
4. The ceiling panel was put back in place and “taped both vertically and horizontally to ensure it stayed in place”. The contractor noted that the resident was informed that tape was to be used when “repairing and prior to works going ahead”.
5. On completion of the survey “every effort to repair all timber was made and any splinters or loose wood was removed”.
6. The survey was completed on 19 February 2019 and “only temporary repairs were made as agreed by all parties”.
7. The accident occurred “14 days later”.
The Ombudsman has not been provided with any evidence of further correspondence between the landlord and resident regarding the bathroom adaptations in early 2019.
In November 2019 the resident contacted this Service to complain about the service provided by the landlord in relation to bathroom adaptations undertaken in February 2019. In summary the resident said:
1. The bathroom adaptation “caused [her] to have an accident” as the work was “incomplete” and therefore the room could not be used safely. The resident stated that the landlord had not apologised for the accident and she would like compensation for her injuries.
2. Despite “ruining the walls and décor” in the bathroom when carrying out the adaptations the landlord had refused to make good. The resident stated that the landlord should make good the damage and offer compensation for the state in which the bathroom was left.
3. She was unable to use the bifold doors installed on the shower as they were “heavy” and therefore needed to be replaced.
4. The toilet was not moved as part of the works.
5. Electrical wires were left exposed by the sink.
6. The landlord had ignored her requests for the “bathroom to be looked at”.
On receipt of the referral the Ombudsman made enquiries regarding the status of the resident’s complaint. The Ombudsman asked the landlord to respond to the complaint if it had not already done so.
On 23 December 2019 the landlord responded to this Service confirming that there was no existing complaint in relation to the bathroom adaptations which had been completed by the contractor. Within its correspondence the landlord noted:
1. The contractor carried out an investigation into the accident and it found “no evidence of treatment for the alleged incident”.
2. The resident had made a claim in respect of the accident which was with the contractor’s insurers and was “on-going”.
On 10 January 2020 this Service spoke with the resident regarding her complaint. This Service explained that the resident should make a formal complaint to the landlord if she remained concerned regarding the service it had provided in relation to the bathroom adaptations.
On 18 February 2020 the resident contacted this Service to report that the property’s bathroom required repairs. The resident stated that, despite contacting the landlord regarding the matter, it was not communicating with her.
On the same day this Service contacted the landlord following the resident’s contact. This Service asked the landlord to respond to the resident’s concerns under its complaint procedure if it had not already done so.
On 18 March 2020 the landlord wrote to the resident following this Service’s contact. The landlord said that the resident’s “claim relating to an alleged accident in the bathroom… [was] being dealt with by [the contractor]”. The landlord confirmed that it had requested that the contractor provide an update to the resident. The landlord also provided the contractor’s contact number within its correspondence.
On 3 June 2020 the landlord wrote to the resident to provide an update to its letter dated 18 March 2020. In summary the landlord said:
1. The alleged incident concerned “a falling panel of wood in [the] bathroom following an asbestos survey”.
2. The contractor had carried out an investigation into the incident, concluding “no evidence of injury [to the resident] from the alleged falling softwood matchboard ceiling could be found”. The landlord confirmed that “as a result no further action [would] be taken with regards to [the] matter”.
3. It was sorry that the outcome of the investigation was not communicated to the resident sooner, for which it apologised.
4. The aids and adaptations work had been completed. The landlord noted that the resident had signed a customer satisfaction form on 2 April 2019.
5. A job to install a closomat toilet had been issued to the contractor, however would be delayed until Covid-19 restrictions were lifted.
6. If the resident required any further adaptations to the bathroom she should contact the OT.
On 10 August 2020 this Service wrote to the landlord following further contact from the resident expressing concerns regarding the adaptations undertaken in the bathroom. This Service asked the landlord to confirm if it had responded to the complaint formally under its complaint procedure.
On 12 August 2020 the landlord wrote to the resident following this Service’s contact. In summary the landlord said:
1. On 3 June 2020 it confirmed that the contractor had investigated the accident and concluded no evidence of injury to the resident and therefore no further action would be taken on the matter.
2. A work order to install a closomat toilet had been issued to its contractor. The landlord explained that installation had been delayed due to Covid-19 and due to the resident attending hospital.
3. It had visited the resident “two weeks ago” in relation to the closomat toilet to discuss the works which involved:
  1. Removal of the existing toilet and installation of the closomat toilet.
  2. Position the new toilet towards the shower to create a space to allow better access in and out of the bathroom.
  3. The work was due to be completed by the end of August 2020.
4. The resident’s complaint had “been investigated and dealt with at stage three of [its] complaint procedure”.
On 13 August 2020 the landlord confirmed that its letter dated 12 August 2020 was its final response to the resident’s complaint.
Following the landlord’s response, in November 2020 the resident requested that the Ombudsman investigate her complaint about the bathroom adaptation. Within her referral and subsequent updates the resident confirmed:
1. The closomat toilet had not been installed in August 2020.
2. The landlord had not completed make good works to address damage to bathroom decoration following the bathroom adaptations completed in early 2019.

Assessment and findings

The landlord’s complaint handling

The landlord defines a complaint as an expression of dissatisfaction about the standard of a service it has provided, or actions it has or has not taken.
On 1 March 2019 the resident wrote to the landlord expressing dissatisfaction regarding the survey undertaken in February 2019 to support the bathroom adaptation works. The resident stated that as a result of the works the bathroom ceiling had collapsed causing her injury.
On receipt of the resident’s expression of dissatisfaction the landlord confirmed that it would visit the property and pass the complaint onto its contractor for a response. In the Ombudsman’s opinion these actions were not unreasonable as a first response to the complaint, in order to investigate the issue and to provide the resident with an outcome to her concerns.
While the evidence shows that the contractor did consider the resident’s concerns regarding the survey it undertook, the Ombudsman cannot see that the resident was informed of the outcome of the contractor’s consideration of the matter. This is unsatisfactory. In the Ombudsman’s opinion the landlord was responsible for providing the resident with an outcome to her complaint, following the contractor’s response, setting out its position and addressing the issues which she had raised, in addition to providing details of how she may escalate her complaint if she was not happy with its response. This is because, as a tenant, her contractual relationship is with the landlord, not the contractor. In not providing a response, the landlord denied the resident an answer to her concerns and it was a missed opportunity by it to bring the matter to a close.
In November 2019 the resident contacted this Service stating that the landlord had failed to respond to or address her concerns regarding the bathroom adaptations, as detailed in paragraph eight. Following contact from this Service detailing the resident’s concerns, the landlord confirmed that the contractor had investigated the accident, the resident had made an insurance claim in respect of the accident and there was no complaint open in respect of the bathroom adaptations.
While the landlord’s position is noted, in the Ombudsman’s opinion it was unsatisfactory that the landlord did not register the resident’s concerns as a complaint in November 2019 in order to provide her with a formal response under its complaint procedure. This is because:
1. Within the resident’s referral to this Service she had raised additional concerns to those which she had raised in March 2019. This included:
  1. The landlord had not made good damage to the bathroom decoration following the adaption works.
  2. The shower bifold doors needed to be replaced as they were too heavy.
  3. The toilet was not moved as part of the works.
  4. Electrical wires were left exposed.
2. The Ombudsman cannot see that the landlord provided the resident with a formal response to the complaint which she made in March 2019.
Following further contact from this Service, in February and August 2020, regarding the resident’s on-going concerns regarding the bathroom adaptations the landlord issued a final response to the resident on 12 August 2020. While it was appropriate that the landlord eventually issued the resident with a formal response, including so that she could refer her complaint to this Service for adjudication, in the Ombudsman’s opinion the landlord’s response was unsatisfactory. This is because the landlord’s final response did not comprehensively address the complaint which the resident had raised. In responding to the complaint the landlord did not address the resident’s concerns regarding make good works, the shower bifold doors, relocation of the toilet or exposed electrical wires. Instead the landlord only focused on the reported accident in February 2019 and the additional bathroom adaption, closomat toilet, which had been recommended by the OT in July 2020. A good complaint response should fully address the complaint which a resident makes, which the landlord did not do in this case. The resident was therefore left without a comprehensive response to the concerns which she had raised.
The Ombudsman considers that the time taken for the landlord to accept the complaint under its complaint procedure, and to provide a formal response, was protracted. This would have added to the resident’s frustrations regarding the bathroom adaptations and resulted in uncertainty as to when her concerns would be addressed.

The landlord’s response to the resident’s concerns regarding adaptation works undertaken in the property’s bathroom

The landlord’s failure to provide a formal response which comprehensively addressed the resident’s complaint has limited the Ombudsman’s ability to thoroughly investigate all aspects of the complaint. In responding to the complaint the Ombudsman would expect the landlord to provide adequate reason and explanation to support the decisions it made in relation to the matters subject of the complaint. Without knowledge of the landlord’s decisions, the Ombudsman is unable to properly assess the quality of its decision making upon the known circumstances at the time, and therefore whether its course of action was reasonable or not.
Notwithstanding the landlord’s complaint response, the Ombudsman has determined whether the landlord’s response to the resident’s concerns regarding the bathroom adaptations was reasonable or not, considering the available evidence.
On 2 April 2019 the resident signed the “completion of work sheet” confirming that the adaptation to “remove bath and install a [floor] level access shower” had been completed. The Ombudsman notes that the form did not refer to relocation of the toilet, despite the OT’s recommendation. From the evidence the Ombudsman has not identified an explanation to explain why the toilet was not relocated as part of the works or why it was not able to complete this work in line with the OT’s recommendations. This is unsatisfactory. The Ombudsman notes within the OT referral dated July 2019, for the closomat toilet, the OT noted that “previously recommended… to reposition the toilet but when adaptation completed in bathroom nothing has actioned for repositioning the toilet”.
On notification of the resident’s concerns in November 2019, regarding damaged decoration, heavy shower bifold doors and electrical wires, it is the Ombudsman’s opinion that the landlord should have inspected the bathroom in order to determine if the adaptations had been completed to a satisfactory standard or not. The Ombudsman cannot see that this occurred throughout the period under investigation. This is unsatisfactory. In not responding to the resident’s concerns via an inspection, or similar, the Ombudsman considers that the landlord failed to satisfy itself that it was meeting its obligations to the resident.
In respect of re-decoration the Ombudsman notes that the landlord’s repair policy sets out:
1. “If as a result of carrying out repairs for which it is obligated [the landlord] or its agents cause damage to the decor of the property, the tenant is entitled to have those areas affected redecorated. Alternatively, if they wish to redecorate those areas affected themselves, they are entitled to ask the Council to pay for the cost of materials.
2. It should be noted that it is not an obligation of the Council to restore whatever decor existed but to leave the property in a condition of decorative repair”.
The landlord’s repair policy further supports the need for an inspection to determine if make good repairs were required following the bathroom adaptations or whether the bathroom had been left in a condition of decorative repair.

The landlord’s response to the resident’s report that she sustained an injury as a result of the adaptation works undertaken

The evidence shows that on notification of the accident in the bathroom following the adaptations from the resident, the landlord did refer the matter to the contractor. This was appropriate in order for the accident to be explored and to determine whether it was caused by an act or omission by the contractor. The Ombudsman has been provided with a copy of the contractor’s report, dated 5 March 2019, following the accident and notes the following points:
1. “Reinstatements will be carried out using and tape and polythene…
2. Prior to any intrusions being made [it] discussed… making good with the tenant.
3. [It] had carried out works in line with [its] standard operative procedures…
4. [It] was happy that the area was safe at the time [it] left the property.
5. This is an isolated incident… however… discussions regarding the following in order to prevent an incident of this type happening in the future”.
The findings from the contractor were that the accident was not caused by a failing on its part. In the Ombudsman’s opinion it was reasonable for the landlord to rely on the outcome of the contractor’s investigation into the issue.
While it was appropriate that the landlord did initiate an investigation into the accident, via the contractor as the attending party, it was unsatisfactory that the landlord did not communicate the outcome to the resident following the investigation – as commented on in the preceding section – following her complaint about it.
The Ombudsman can see that the resident submitted an insurance claim against the contractor in relation to the accident following the survey. The landlord confirmed the outcome of the claim was no further action. The Ombudsman cannot comment on the outcome of the claim as we cannot determine liability. However, in the Ombudsman’s opinion as the resident claimed that the contractor had acted negligently it was an appropriate route to explore the resident’s concerns, and request for compensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Maladministration by the landlord in respect of its complaint handling.
2. Maladministration by the landlord in response to the resident’s concerns regarding adaptation works undertaken in the property’s bathroom.
3. No maladministration by the landlord in response to the resident’s report that she sustained an injury as a result of the adaption works undertaken.

Reasons

The landlord’s complaint handling

The landlord failed to provide the resident with an outcome to her complaint dated 1 March 2019 following the contractor’s consideration of the concerns raised. This is unsatisfactory as the landlord was responsible for setting out its position and addressing the issues which she had raised. In not doing so the resident was left without a response to her concerns.
It was unsatisfactory that the landlord did not register the concerns which the resident raised via this Service in November 2019 as a formal complaint under its complaint procedure. This is because the landlord had not provided the resident with a formal response to her complaint dated March 2019 and the resident had raised additional concerns to those which she had previously raised.
While the landlord did eventually issue the resident with a final response, the response was unsatisfactory. This is because the landlord’s formal response did not comprehensively address the complaint which the resident had raised. In responding to the complaint the landlord did not address the resident’s concerns regarding make good works, the shower bifold doors, relocation of the toilet or exposed electrical wires. In responding to the complaint the landlord only focused on the accident in February 2019 and the additional bathroom adaption, closomat toilet, which had been approved by the OT in July 2020. The resident was therefore left without a comprehensive response to the concerns which she had raised.
The time taken for the landlord to accept the complaint under its complaint procedure, and to provide a formal response, was protracted. The resident had to seek assistance from this Service in order to get a formal response.

The landlord’s response to the resident’s concerns regarding adaptation works undertaken in the property’s bathroom

Despite the OT’s referral recommending relocation of the toilet the landlord did not provided an explanation as to why the toilet was not relocated as part of the adaptation works undertaken in early 2019.
On notification of the resident’s concerns in November 2019, regarding damaged decoration, heavy shower bifold doors and electrical wires, the landlord should have inspected the bathroom in order to determine if the adaptations had been completed to a satisfactory standard or not. In not responding to the resident’s concerns via an inspection, or similar, the landlord failed to satisfy itself that it was meeting its obligations to the resident.

The landlord’s response to the resident’s report that she sustained an injury as a result of the adaptation works undertaken

On notification of the accident in the bathroom from the resident, the landlord did refer the matter to the contractor. This was appropriate in order for the accident to be explored and to determine whether it was caused by an act or omission by the contractor. The findings from the contractor were that the accident was not caused by a failing on its part. It was reasonable for the landlord to rely on the outcome of the contractor’s investigation into the issue.

Orders and recommendations

Orders

The landlord should pay the resident the following compensation:
1. £250 in respect of its complaint handling.
2. £250 in respect of its response to the resident’s concerns regarding the bathroom adaptations.
The landlord should inspect the bathroom to determine if there are any repairs or make good works for which it is responsible for completing under the terms of the property’s tenancy agreement. The landlord should write to the resident confirming the findings of the inspection, and providing a timescale for any works identified, even if provisional. The Ombudsman considers that within its letter to the resident the landlord should also confirm the position of the works following the OT’s referral in July 2020.
The landlord should comply with the orders within four weeks or the date of this determination.

Recommendations

The landlord should share the Ombudsman’s Complaint Handling Code with its staff members who deal with complaints, to ensure that complaints are responded to in accordance with best practice.