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Birmingham City Council (202009772)

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REPORT

COMPLAINT 202009772

Birmingham City Council

30 September 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

  1. The complaint is about the landlord’s response to the resident’s request for a reduction in rent due to the removal of a garage within the boundary of his property.

Scope of Investigation

  1. Paragraph 39(g) of the Housing Ombudsman Scheme states the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, ‘concern the level of rent or service charge or the amount of the rent or service charge increase’.
  2. In this case the resident is not contesting a rent increase but is rather requesting a small reduction in his weekly rent following the demolition of his garage. It is noted that the solution the resident has sought regarding his complaint is for his rent to be reduced but the Ombudsman does not have the authority to make an Order of this nature. This is because the resident’s obligation to pay rent is set out in the tenancy agreement which is a legally binding contract between the parties. 
  3. The resident may be able to apply to the First-Tier Tribunal (Property Chamber – Residential Property) which may decide the level of rent decided and issue a binding decision. This matter will therefore not be covered within the scope of this investigation.
  4. The resident can find further information regarding the First-Tier Tribunal and contact the relevant Residential Property – Midlands Region office via: https://www.gov.uk/courts-tribunals/first-tier-tribunal-property-chamber.
  5. However, while this investigation will not consider the matter of the current rent level, the Ombudsman will consider how the landlord dealt with and handled the resident’s request and whether its responses were reasonable.

Background and summary of events

Background

  1. The resident resides in a three-bedroom, mid-terrace property. He has been a tenant of the landlord, a Local Authority, since he succeeded the tenancy in February 1988.
  2. The landlord has advised that the resident’s original tenancy agreement ‘cannot be obtained due to the time elapsed’. However, its current Conditions of Tenancy, which it states that the resident is subject to, states that it will ‘keep in repair any garage, shed, porch or outbuilding we have provided which is situated within the boundary of the property, as long as it is economic to do so’. It also states that ‘(we) reserve the right to remove these structures when, in our view, they are beyond economic repair’.
  3. Until its demolition in July 2020, the resident had use of a garage which lay within the boundary of his property and was maintained by the landlord. Information provided by the landlord indicates it decided to demolish the garage in May 2020 due to its poor condition. Following subsequent remedial works, the resident now has a specific parking space within the boundary of his property instead.

Summary of Events

  1. As above, the landlord has advised this Service that in May 2020, it decided to demolish the resident’s garage due to its poor condition. Although it is not disputed that the garage was in poor condition, this Service has not seen any records regarding inspections that were carried out or any assessments that were made regarding its condition, information regarding any historical repairs or its any audit trail related to the decision to ultimately demolish it.
  2. Landlord records show that, on 14 August 2020, the landlord responded to an enquiry from the resident regarding the level of rent he should be charged following the demolition of his garage. The landlord advised that, having investigated the issue, ‘the garage was integrated into the boundary of (his) property. This means there has never been a garage charge applied to your rent’. It went on to advised that it had ‘checked similar properties in your area and your rent is comparable to those properties who do not have a garage’ and that it would not consider ‘retrospectively recharging you a garage component to your rent and your weekly charges will remain the same in line with the other properties in your area’.
  3. Landlord records show the resident contacted it again on 31 March 2021. Although this Service has not seen details of his initial enquiry, landlord records note the resident had contacted it ‘regarding charges applicable to your property’. The landlord responded under Stage Two of its complaints procedure and noted the resident’s previous enquiry in 2020, to which it had already responded. However, it went on to state that it had again reviewed his rent account charges and reiterated the information it provided in its response from 14 August 2020.
  4. The resident contacted the landlord again on 7 April 2021 and asked that his complaint be escalated. He provided further information and advised that:
    1. After the garages had been built in 1968, according to his father, who was the tenant at the time, the rent had gone up ‘by a few shillings a week’.
    2. In its response to him in August 2020, the landlord had advised that use of the garage was included within his rent, which the resident believed indicated that there was a cost added to the rent for the garage and the overall rent should now be reduced as the garage had been demolished.
  5. The landlord provided its Stage Three review response on 15 April 2021, where it reiterated its position and advised that it considered its Stage Two reply had been reasonable. It acknowledged the garage would have been of benefit to the resident and stated that it was ‘regrettable’ it had been demolished. It further advised that a ‘separate garage charge was not levied within your full property rent’ and that his rent was ‘comparable to similar properties in your road and area who have never benefitted from having a garage…as you did’. The landlord added that, ‘in hindsight, the fact that you…did have the additional facility of a garage should have meant that your property rent should have been higher than those without that provision’ but again assured the resident that, having become aware of the anomaly, it did not intend to apply any charge retrospectively.
  6. The landlord concluded that it could not take any further action and that it did not agree the resident’s request for a rent reduction could be justified.
  7. On 23 April 2021, the resident made further contact with the landlord regarding his complaint and advised that he had sought initial legal advice over whether his parking space could be considered a garage and that he had also contacted the Advertising Standards Agency over the issue. The landlord responded on 25 April 2021 and advised that it had reviewed its Stage Three response and considered that his enquiry had been dealt with appropriately.

Assessment and findings

  1. It is not disputed that the resident had sole use of a garage that was within the boundary of his property until it was demolished by the Council in July 2020. While in his complaint escalation request the resident raised a query regarding whether the landlord still operates a ‘repair or replace’ policy, within the landlord’s Conditions of Tenancy document, it is noted that it will only ‘keep in repair any garage we have provided…as long as it is economic to do so’. The conditions also state that it has the right to ‘remove these structures (including garages) when, in our view, they are beyond economic repair’. Although this Service has not seen evidence regarding how the landlord reached the decision to demolish the resident’s garage, the fact that it was in disrepair does not appear to be in dispute. This Service acknowledges the financial restraints local authorities currently operate under and that it may have been considered uneconomical to repair the garage. In the Ombudsman’s opinion, the landlord’s decision to demolish the garage was not unreasonable and there is no evidence to suggest it did not communicate its decision, and the reasons behind it, to the resident.
  2. In the Ombudsman’s opinion, while the landlord noted in its response that it believed there should have been a charge added to the rent at the property following the installation of the garage in the 1960s, its decision to not seek any backdated rent regarding this was appropriate and demonstrated that it was seeking to be fair to the resident.
  3. However, while this Service is satisfied that the landlord’s actions in the context of its Conditions of Tenancy document were reasonable, in the Ombudsman’s opinion it is unsatisfactory that the resident’s original tenancy agreement is not available for scrutiny by either this Service or the landlord itself. It is of concern that the landlord has advised this Service that the original document is not available because of ‘time elapsed’. While it is acknowledged that there are sometimes challenges for services that move records from hard copy documents to digital systems, in the Ombudsman’s opinion, it should not be accepted that tenancy agreements are unavailable after a certain length of time. While there is no indication that the resident has been caused detriment as a result of this, it is important for landlords to maintain robust records so as to ensure that residents are treated fairly and that the terms and conditions of any original agreements can be referred to.
  4. Regarding the resident’s complaint, the landlord responded promptly and reasonably on each occasion. It acknowledged the complaints and escalation requests in a timely manner and escalated the complaint through its processes as per its policy and procedures. Its final response at Stage Three also went into further detail regarding the actions it had taken and the reasons behind them.

Determination (decision)

  1. In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration regarding the resident’s request for a reduction in rent due to the removal of a garage within the boundary of his property.

Reasons

  1. Under the terms of its Conditions of Tenancy, the landlord was entitled to decide to demolish the garage. While it was not able to provide the resident’s tenancy agreement, and therefore cannot fully establish whether there was any specific reference to a garage or associated charges within the original terms, it was consistent in advising the resident that it had not added any additional charge to his weekly rent while he had use of the garage and that other neighbouring properties that did not have use of a garage were being charged a similar rent to him. Having further acknowledged that this was likely to have been a historical error on its part, and the resident should in fact have been charged extra for the use of a garage, the landlord acted reasonably by seeking to reassure the resident that it would not seek any backdated charges relating to the period he did have use of the garage.

Recommendations

  1. The landlord should carry out further investigations to ascertain whether the resident’s original Tenancy Agreement can be located and, if it cannot, it should write to the resident to confirm this and set out the current Conditions of Tenancy. It should provide this Service with a copy of any letter it sends the resident in relation to this recommendation.