Birmingham City Council (202103998)

REPORT

COMPLAINT 202103998

Birmingham City Council

11 February 2022

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 response to the resident’s reports of missing doors in his property.

Background and summary of events

Background

The resident became a tenant at the property in question, via mutual exchange, on 22 October 2012.
The property is a 2-bedroom non-parlour semi-detached house.
The resident is elderly and disabled. The landlord has no registered vulnerabilities on its system, however.

Summary of events

On 25 March 2021 the resident wrote to his local councillor. He advised:
1. He had contacted the Estate Management Office (EMO) on 24 March 2021 following a visit from the fire brigade who checked the fire alarms in his home. He explained that the fire brigade were surprised to find that there were no fire doors from the hallway to the kitchen, or from the hallway to the lounge. He advised that these doors had never been in place.
2. He had been advised that the Neighbourhood Officer (NO) would visit his home on 25 March 2021, and he had waited in his home all day, however nobody turned up. He contacted the EMO and advised that he would be making a complaint if he was not contacted.
3. He was called by the NO shortly after, however the NO was hostile and advised that he would no longer be visiting due to COVID-19. The NO stated that he found it impossible to believe that a Housing Officer (HO) would permit a tenant to move to a property without fire doors. The NO advised that he would report the matter to the repairs department and that there could be a fee to pay. Contact would be made in a few weeks, nonetheless.
4. He asserted that there should be no fee and that as this was a safety issue, a few weeks was unacceptable. He highlighted that he had no sense of smell, had a poor voice box due to cancer, and was disabled. He stated that the level of service was unacceptable.
The resident’s local councillor forwarded this to the landlord on 25 March 2021 and requested a suitable response.
On 15 April 2021 the landlord provided the resident with a stage one response. It stated:
1. Its inbound service records confirm that a request was assigned to the NO on 23 March 2021 with matters concerning a missing door, following a fire service assessment.
2. Due to COVID-19 restrictions, all non-essential face-to-face visits were prohibited and therefore the service was delivered by telephone on 25 March 2021. It noted regret that there had been confusion and a misunderstanding that the NO would be visiting.
3. The NO investigated this and asked the resident questions to establish why the doors were missing. It noted that legitimate questions were asked such as why the resident had not reported the missing doors at the point of accepting the property in 2012. It stated that any missing fixtures or fittings upon occupation should have been reported 8 years prior. It noted that the NO had advised that any missing fixture/fitting would be subject to a recharge.
4. It would look into the missing doors as this had been identified by the Fire Services.
5. It was satisfied that the NO acted professionally and provided the appropriate advice. There was no evidence to suggest that he had acted unprofessionally.
6. There was no obligation to apply building regulations retrospectively. Building regulations stipulated that fire doors were required in two-storey houses which had a door leading from an integral garage into the house, or a new build or renovated domestic properties which had three or more storeys.
The resident responded to the landlord on the same day. He asserted:
1. The NO had never questioned why he had not raised the missing doors in 2012. Instead, the NO stated that the landlord would never let the property with missing doors, implying that he had removed them. He subsequently requested a copy of the call transcript.
2. There was no confusion, he was given a reference and told that he would be visited at his home. He questioned why he was told this if visits were not allowed.
3. The NO stated that he would order the doors, yet nothing was done. He also had not made contact until the EMO were called.
The landlord acknowledged this on the same day and advised the resident that he could expect a review response by 14 May 2021.
On 16 April 2021 the resident wrote further to the landlord, stating that he wished to add:
1. Due to his conditions, it took him a lot longer than normal to get from any upstairs room to the hall, meaning that with these missing doors, any fire in the lounge or kitchen would block the stairs before he could get clear.
2. The landlord would have known that these doors were missing as the previous tenants had said that the doors were not there when they took over the tenancy. The property should have been inspected before and during any change of tenancy.
On 21 April 2021 the resident wrote to his local councillor again. He explained that an inspection of his property had taken place on 20 April 2021, in relation to the missing doors, and it was confirmed:
1. The doors would be replaced and the cost would be recovered from the previous tenant if required.
2. The kitchen door would be prioritised, however both doors could be done at the same time. He would be provided with further details (e.g., the repair reference) at the end of the day.

The resident advised that the operative had not called him back as promised, however.

On 14 May 2021 the landlord provided the resident with a review response. It noted:
1. It had reviewed the conversation and narrative from 23 March 2021. It found no suggestion that a home visit would be arranged on 25 March 2021.
2. On 25 March 2021 a routine desktop investigation was undertaken by the NO. Historic information was gathered and investigated to establish how the resident entered into a tenancy without internal doors to his kitchen and lounge. The NO made contact with the resident at the end of the working day.
3. It had considered the telephone transcript on 25 March 2021 and confirmed that the Contact Centre Advisor (the Advisor) had explained that the NO would be the contact officer dealing with the query. Again, no reference was made to a home visit. The Advisor confirmed that the resident would receive a call back on the same day, and this was done.
4. Due to the pandemic, any non-essential home visits had been curtailed, however to deliver the service remotely, officers were making phone calls to service users to discuss tenancy related matters. It noted that miscommunication may have caused a misunderstanding.
5. The NO had made a call note on 25 March 2021 which evidenced the conversation. The call note identified that the resident had not initially raised the issue about the lack of doors as this made it easier for him to move around the property with his disability. He was advised during the call that the issue would be reported to the repair team, but there would likely be a charge for replacing the doors.
6. It was satisfied that the NO had questioned why the resident had not raised the missing door when he took up occupation in 2012. A job had not been raised on 25 March 2021, but rather, the resident was advised that by reporting this to the repair call centre, any missing fixtures or fittings would be subject to recharge.
7. It had discovered that on 22 October 2012 the resident entered into a mutual exchange. It noted that there was a recording on the property inspection report drafted at this time, which indicated that the resident registered a preference to retain and accept the open plan kitchen and lounge in their current layout. Therefore, this was left in situ by the outgoing tenant once the exchange was completed. The absence of the internal door provided the resident with ample mobility throughout the duration of his tenancy to best accommodate his disability.
8. As a result of undertaking a legally binding assignment, the missing door was subsequently the resident’s responsibility to reinstate (as well as any other non-standard fittings and fixtures). The landlord highlighted that “A tenancy is a legal right to property which can therefore be assigned – but there are certain conditions to this assignment” and that “as far as tenancies are concerned, these benefits and burdens basically mean that the person accepts the tenancy as it is without further claim on the Council or the person who assigns it to them”.
9. It noted that the resident had also written to his MP before it had a chance to respond at stage one. It stated that this was then forwarded to another team which prompted the inspection on 20 April 2021, however as the operative was not aware of the mutual exchange, the wrong advice was given.

Assessment and findings

Due to gaps in the landlord’s records, the Ombudsman has been unable to verify the landlord’s assertion that the resident registered a preference, at the time of the mutual exchange, to retain and accept the open plan layout (without internal fire doors).
In accepting the property, however, and with no evidence that the resident raised this as an issue in the eight years before this complaint, it would appear that the resident was content with this. The landlord has also suggested that within its telephone conversation with the resident on 25 March 2021, he confirmed that he had not raised issue with this as due to his disability, the lack of doors made it easier for him to move around the property.
In any case, within the Tenant’s Handbook (the Handbook) the landlord explains that where a mutual exchange takes place, both tenants must be willing to accept the condition that the properties have been left in and will take responsibility for any alterations or improvements made by the tenants they are exchanging with. The landlord’s mutual exchange guidance also explains that before a resident exchanges, they must make sure that the tenant they swap with has not damaged the property or removed any fixtures and fittings, as the resident will likely be responsible for putting things right.
As such, where there is a need for fixtures or fittings to be restored / repaired, the cost for such work will fall to the resident. The Handbook explains that the landlord will recharge the resident for any costs it incurs in undertaking restorative work itself. This is also supported by the landlord’s Conditions of Tenancy handbook.
It was therefore reasonable that in this case, the landlord advised the resident that the repair team would likely seek to recover the costs, if fire doors were to be installed. As the landlord explained to the resident within its final response, in accepting the tenancy / property, the resident accepted the benefits and burdens of the property, and this included the responsibility to replace the doors.
It is understandable that while the resident accepted the alterations made to the property, upon discussing the safety of the property with the fire service some years later, he became concerned about the absence of the doors. He therefore emphasised the need to replace them and questioned why the landlord had not inspected the property where there was a change of occupancy.
The Ombudsman accepts, however, that as there is no obligation under building and fire safety regulations for the landlord to fit fire doors within a two-storey semi-detached house, it was not required to take any action to ensure that these were in place, irrespective of the findings of any inspection at the time of the change of occupancy, or upon rediscovering this on 23 March 2021. This Service can see that the landlord attempted to explain its obligations, in respect of fire doors, within its stage one response.
Furthermore, the Ombudsman has been unable to see whether any specific recommendations were made by the fire service to urgently install fire doors. While it does not appear that there was, the Ombudsman has not been provided with a copy of the fire service’s notes following the inspection.
With awareness that it had been raised by the fire service, however, and given the resident’s desire to promptly address the perceived safety risk, it would have been reasonable for the repairs team to have made contact with the resident to explore his options within a reasonable period of time. A reasonable period of time in this instance would have been within 30 working days of acknowledging the repair request, as per the timescale set out in the landlord’s repair guidance.
This Service notes, however, that while the NO indicated that he would make contact with the repair team on 25 March 2021, this did not happen. The landlord also failed to acknowledge this within its final response, denying that such arrangements had been proposed, despite the call notes suggesting otherwise. This was unreasonable.
It also would have been proportionate and practical, in light of the resident’s mobility issues and alleged inability to smell, for the landlord to have arranged for an inspection / assessment of the property. By using the Housing Health and Safety Rating System (HHSRS) as the basis of its inspection, the landlord could have assessed the safety of the resident’s home (e.g., by considering the impact of deficiencies in fittings / fixtures) and to establish the level of risk for the resident and itself. What’s more, the landlord could have arranged for an Occupational Therapist (OT) to have assessed the property, to establish whether any other adaptations or reasonable adjustments could be made to support the resident. A joint visit on or around this time would have been reasonable.
In respect of the resident’s interactions via telephone, the Ombudsman is unable to determine whether the landlord did or do not advise that a face-to-face visit would take place. This is as the landlord has been unable to provide this Service with a copy of the call recording, transcript, and / or call notes.
It was reasonable, nonetheless, given the COVID-19 concerns at this time, that the landlord took the decision to manage the appointment on 25 March 2021 via telephone. While the Ombudsman cannot comment on whether the landlord had explained this to the resident before the scheduled meeting (in the absence of records), the resident acknowledged that the reason for the freeze on non-essential visits was explained to him in the NO’s later telephone call.
Moreover, while the resident could have been provided with a call back at an earlier time in the day, the NO did make contact before the end of the working day. The Ombudsman appreciates that the resident still disputes the type of appointment this should have been.
Subsequently, however, it appears that the NO acted fairly. While the NO did not make arrangements to replace the doors at the resident’s property as it said it would, it did provide the resident with the appropriate advice regarding rechargeable repairs. It was also reasonable, that the NO attempted to establish how / why the property was without internal doors. The Ombudsman appreciates that the resident was concerned about the implications of the NO’s questions, but has not considered this to be a failing or unprofessional.
It has been noted that there was a clear issue with the landlord’s internal communication. This resulted in an inspection of the resident’s property being arranged on 20 April 2021 and the incorrect advice being provided. While the landlord explained why this had happened within its final response, it is noted that no apology was offered for the confusion or misinformation. In the Ombudsman’s opinion, as an offer of door replacements had been made without charge, an apology should have been offered as this would have raised the resident’s hopes. The absence of this apology within the final response was unreasonable.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was a service failure in respect of the landlord’s handling of the resident’s reports of missing doors in his property.

Reasons

The above determination has been arrived at as, while the Ombudsman is satisfied that the resident was responsible for the alterations that had taken place in the property because he had moved into it via a mutual exchange, and therefore in restoring / replacing the doors where required, the landlord did fail to arrange for its repair team to make contact with the resident to discuss the replacement doors, as it said it would. This was inappropriate. The landlord also failed to apologise for the incorrect advice which had been given, following its inspection, which would have raised the resident’s expectations that it would replace the doors in question.

Orders and recommendations

Order

The landlord should undertake a fire safety inspection / risk assessment or a HHSRS inspection to assure the resident, and for itself, that the property is safe. The Ombudsman appreciates that it may not be practical to undertake this as a joint inspection, but the landlord should also arrange for an OT assessment to take place, so that the findings of both assessments can be used to offer a practical and safe solution for the resident. This should be done within eight weeks of receiving this determination. The landlord should share its reports with the resident. The resident should keep in mind that the landlord may seek to recover its costs, should doors be required.
The landlord should also arrange for the repair team make contact with the resident to discuss his options for replacement doors, and the likely cost to him. This should be done after the above assessments have been carried out, but within the eight-week period.
The Ombudsman orders the landlord to award the resident £50 for its failure to arrange contact by the repair team. The landlord should comply with this order within four weeks of receiving this determination.
The landlord should write to the resident to apologise for the incorrect advice it offered, following its inspection on 20 April 2021. This should also be done within four weeks of receiving this determination.

Recommendations

The landlord should ensure that where it receives a complaint and / or a request for repair, its systems allow for cross-departmental communication so that all staff are fully updated and aware of the circumstances of a resident, before taking any action or offering any advice. This will enable it to avoid any misinformation.

Record keeping

Despite the Ombudsman’s request for information, the landlord was unable to provide a number of documents. This subsequently made it difficult for this Service to set out a clear position on some elements of the resident’s complaint. The Ombudsman is only able to base its decisions on the evidence provided by each party, and the absence of full records means that it is sometimes difficult to determine (or ascertain) what took place.
In this case, the absence of records did not result in a finding being made against the landlord. This is as in the Ombudsman’s opinion, there was enough information to fairly determine the case. The Ombudsman would, however, expect landlords to have a system to manage and retain records of any and all action undertaken in the delivery of its service. A full audit trail would enable the landlord to evidence for itself, and for the Ombudsman should it be necessary, that the appropriate steps have been taken. This will also enable it to reflect on its performance and to learn from outcomes, in line with the dispute resolution principles. The landlord should therefore ensure, if it has not already, that it puts such a system in place to avoid issues with accessing records in the future, and a potential finding being made against it.