Birmingham City Council (202104637)

REPORT

COMPLAINT 202104637

Birmingham City Council

 18 November 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 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 handling of:

a. Water leaks into the resident’s property prior to December 2019.

b. Repairs to resolve a water leak into the resident’s son’s bedroom from December 2019 onwards.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

How the landlord dealt with the resident’s reports of leaks prior to December 2019

3. During her correspondence with both the landlord and this Service, the resident explained that her property had experienced multiple incidents of leaks since 2003. She moved into the property in 2012 and began experiencing leaks the following year.
4. 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 whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which 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 to address those issues.
5. This is in accordance with paragraph 39(e) of the Scheme, which states that the Ombudsman will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. In view of the time periods involved in this case and taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to December 2019. The historical issues provide contextual background to the current complaint, but the assessment is focussed on the landlord’s actions in responding to the more recent events and, specifically, to the formal complaint made in February 2021.

Background and summary of events

Policies and procedures

6. Section 2.1 of the landlord’s repairs policy document confirms that it is responsible for repair and maintenance of the structure of the building, where it owns the freehold. This includes gutters, external pipes, window frames and drains and drainage.
7. Section 4.4 of the landlord’s repairs policy document confirms that it has a 30-day target for routine repairs. If it needed longer, it would advise the resident of the expected timescale for it to complete the repair.

Background

8. The resident lives in a flat and is the leaseholder. The landlord is the freeholder for the property.

Summary of events

9. In January 2020, the resident reported a leak from above, affecting her son’s bedroom. The resident complained that the gutters for the building and drainage system became blocked on a regular basis by leaves from the surrounding trees. This caused the ceiling crack in her son’s bedroom, as well as damp and mould. She did not feel that she should be responsible for fixing the leak, or the resulting damage to her property; therefore, she requested the landlord address the repairs, and offer her compensation.
10. During its investigation into the resident’s complaint, the landlord found that there was condensation in the property. The landlord considered that there were a number of factors which were contributing to the condensation. These included new windows which were installed without air vents, an inadequately ventilated tumble dryer, clothes drying on radiators and “many” items having been placed against external walls. The landlord’s records confirm that it upheld the complaint and awarded compensation to the resident. However, the Ombudsman has not seen details of the landlord’s response to this complaint or its offer of compensation.
11. The Ombudsman has provided a letter dated 23 January 2020 which explained that compensation would only be considered if there was evidence that the landlord had been negligent or if legal liability were accepted. The letter explained that a form had been attached for the resident to complete if she wished to make a negligence claim against the landlord. It is not clear from the information provided whether the resident completed the claim form, but the resident has told the Ombudsman that she has not received any compensation from the landlord to date.
12. On 3 February 2021, the resident raised her stage one complaint to the landlord in respect to “an ongoing continuous leak” from the balcony of the flat upstairs. She said this had caused damage and cracked the ceiling. She was aware that work had been carried out to seal the balcony “4 to 5 months ago”, however water was still leaking into her property. She had contacted the buildings insurance company for her own property, who had refused to come out until the leak had been repaired. Therefore, she wanted the landlord to identify and carry out suitable repairs.
13. On 8 February 2021, the landlord’s internal records said if there were no issues with the gulley and guttering, then condensation was the most likely cause of the damp.
14. On 15 February 2021, the resident’s MP passed on a complaint to the landlord which is summarised as follows:
    1. The resident had been experiencing leaks since 2003. She felt that the problem “may be unsolvable or take major works to rectify”. It had affected her and her family’s health and quality of life and had meant that she had lost the use of a whole bedroom.
    2. The resident had redecorated the bedroom after the landlord’s contractor confirmed that it had carried out suitable work to the property above following the leak in January 2020. However, after she redecorated, the leak continued. This had left deep cracks in the ceiling with evidence of dips and water pressure. She expected that the ceiling in her children’s bedroom would develop mould and could collapse, because this had previously happened in the property.
    3. The buildings insurer had refused to carry out any work in the room until the underlying issue causing the leak was resolved. As a result, she did not know what to do, and she was worried for her children.
    4. The landlord did not respond to this letter, resulting in the local MP writing further letters to request its response, on 16 April 2021 and 22 June 2021.
15. On 16 February 2021, the landlord’s records confirm it had carried out an inspection of both the resident’s property and the flat above, which is summarised as follows:
    1. In respect to the resident’s property, it had detected high moisture readings in a number of areas more particularly at the ceiling and window wall junctions. There was also evidence of condensation, along with soft plaster, which suggested that water may be coming from the balcony above. The bedroom ceiling, which had been replaced by the resident’s insurance company in 2017 following a historic leak was also cracked, and there did not appear to be any thermal boarding installed on the ceiling.
    2. In respect to the upstairs flat, the balcony area had appeared to be “relatively dry”, with no visible signs of damage to the flooring. The landlord did see some staining to the brickwork above the flashing and suggested replacing all of the flashing. It was unable to identify any further concerns which could contribute to the issues experienced by the resident.
    3. The landlord raised a repair work order to replace the asphalt and flashings on the balcony above her property. It confirmed that as a leaseholder, the resident would be responsible for resolving any condensation issues within her property.
16. On 26 February 2021, the landlord emailed the resident to confirm that a repair had been arranged for 17 March 2021 in respect of the balcony of the property above.
17. On 2 March 2021, the landlord raised a work order to replace the asphalt and flashings on the balcony above the resident’s property.
18. On 30 March 2021, the resident contacted the landlord to request confirmation that the work scheduled for 17 March 2021 had been completed. She also wanted compensation “following all the disrepair damage”, with her having only recently redecorated. She felt that the health of her children was at risk due to the state of her property.
19. On 6 April 2021, the landlord issued its final stage complaint response to the resident. It confirmed that it had raised a work order to repair the balcony of the flat above. It had also booked an appointment for 7 April 2021 to rectify the water leak affecting her property. It apologised for the inconvenience it had caused her and her family.
20. The resident subsequently referred her complaint to this Service regarding the “intermittent” leaks into her property which she believed to be coming from the upstairs balcony.
21. There were difficulties in the landlord gaining access to the upstairs flat to carry out the outstanding repairs between April and July 2021. However, the landlord’s records confirm that the repair work to the upstairs balcony was completed on 8 July 2021.
22. The resident had not reported any further leaks since July 2021 until November 2021 when she told the Ombudsman that water was coming through the bedroom ceiling again. It is not clear whether this leak has been reported to the landlord.

Assessment and findings

Scope of investigation

23. The resident has raised concerns over the effect of the complaint, and of the landlord’s failure to address the leak in a timely manner, on her and her children’s ill-health and wellbeing. The Ombudsman does not dispute her comments regarding her health, but we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing or award damages for these. This because we do not have the authority to do so in the way that a court or insurer might. However, we have considered the general distress and inconvenience which the situation has caused the resident and her family as well as the landlord’s response to her health concerns.
24. The resident is also seeking to claim for damage to her personal items caused by the leak and delays in fixing it. As with the resident’s concerns about her family’s health, this aspect of the complaint may be better suited being pursued as to a liability claim through the landlord’s insurer (if it has one) or a legal case. This is because it is not possible for the Ombudsman to establish the extent to which damage was caused to the resident’s possessions by delays in fixing the water leak from the balcony above, rather than any other factors.
25. The landlord’s handling of repairs to resolve a water leak into the resident’s son’s bedroom from December 2019 onwards.
26. In line with the terms of the lease, the landlord is responsible for maintaining the exterior and structure of the building. The resident is responsible for maintaining the interior of her own property, including the internal décor.
27. Following the resident’s stage one complaint on 3 February 2021 regarding the leak into her son’s bedroom, the landlord was obliged to carry out an inspection of both the resident’s and the upstairs neighbour’s property, to understand the nature of the leak. It has evidenced that it visited both the resident and the upstairs neighbour on 16 February 2021.
28. During its inspection, the landlord detected high moisture levels which suggested that the water may be coming from the flat above. It also found condensation, which it had explained was the resident’s responsibility to resolve. On inspection of the balcony above, it had noted that there was staining above the flashing, which it recommended for replacement. The landlord acted appropriately in arranging an inspection in the first instance to identify the cause of the leak. The inspection was carried out within a reasonable timescale, in line with the landlord’s repairs policy.
29. However, the repair work to replace the flashing on the balcony above, which had been requested on 16 February 2021, was not completed until 8 July 2021. This was significantly outside the landlord’s policy to complete repairs within 30 days; while there is some evidence of the landlord having communicated the revised appointments, it had failed to keep the resident suitably informed regarding the delays.
30. In addition to its delay in the completion of the repair, the landlord has also failed to evidence it has kept the resident informed. For example, it had failed to inform the resident that the appointment scheduled for 17 March 2021 did not go ahead and had been rescheduled. While it is recognised that the landlord had experienced issued in gaining access to the upstairs flat to carry out the repairs, it was still unfair for the resident, to have to request an update before being given further information on the repair. The landlord also had to spend unnecessary time and trouble experienced in progressing her complaint. The landlord did not respond to the MP’s letter of 15 February 2021, resulting in additional time and trouble prior to its response to the local MP in July 2021.
31. The landlord recognised in its final stage complaint response of 6 May 2021 that its poor communication had delayed a conclusion to the resident’s complaint and it’s work to repair the upstairs balcony. However, this did not resolve the complaint, as the work remained outstanding for a further three months from its final stage complaint response. As a result of this, its apology alone was not proportionate to correct these errors or to recognise the distress and inconvenienced experienced by the resident.
32. The Ombudsman notes that the resident has reported leaks affecting the same area for several years. Although there is limited information concerning the earlier leaks, it appears that the most recent leaks between 2017 and 2021 were related to problems with the balcony of the flat upstairs. In November 2021, the resident reported to the Ombudsman that the leak had reoccurred in the same place. The landlord is expected to maintain the structure of the building, including the balcony of the flat upstairs. In view of the fact that the resident has reported leaks affecting the same area over several years, it would have been appropriate for the landlord to have prioritised repairs following further reports of leaks in 2020 and 2021. It is acknowledged that it can be difficult to identify and resolve the causes of leaks and in some cases initial repairs are unsuccessful and further work may be required to provide a lasting solution. However, where there have been multiple occurrences of leaks affecting the same area, it would be appropriate for a detailed survey to take place to identify the cause and provide a lasting solution. Therefore, the landlord should now arrange such a survey and it should carry out any repairs identified following the survey, as detailed further below.
33. The Ombudsman accepts that as a leaseholder, the resident would usually be responsible for any repairs needed to the interior of her property. However, on this occasion it would not be reasonable to expect her to claim under her own insurance policy for damage to the décor. Instead, the landlord should arrange for any areas of her property which have been damaged by the leak to be redecorated. The redecoration should take place once all necessary repairs have been carried out to resolve the cause of the leak. It would be reasonable for the landlord to arrange the redecoration in view of the fact that the problem has reoccurred several times without being resolved and that the long delays in carrying out repairs may have reasonably led to the damage becoming worse in the resident’s property. The Ombudsman has also taken into consideration the fact that the resident’s property was redecorated by her insurer following a previous leak only to become damaged again by most recent leaks.
34. The landlord has argued that the damage in the resident’s property has been caused by condensation due to lifestyle factors rather than the leak from above. It is reasonable to conclude that there would be some damage caused by the leak and the leak itself could have caused condensation. The landlord has not provided evidence to confirm the extent of the damage caused by condensation due to lifestyle factors rather than by the leak. Therefore, the landlord should redecorate any areas which could reasonably have been damaged due to the leak, although condensation due to lifestyle factors may have been a contributing factor.
35. The landlord should pay financial compensation for this, as detailed below, in line with this Service’s remedies guidance (published on our website) which suggests awards of £250 to £750 in cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant.
36. In this case, there was a significant delay in fixing the leak which would have caused considerable distress and inconvenience to the resident, partly because she was unable to have the interior of her own property redecorated until the leak itself was resolved. The fact that the leak has reoccurred would have added to her distress and inconvenience and this has been considered when awarding compensation.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of repairs to resolve a water leak into the resident’s son’s bedroom.

Reasons

38. Although the landlord carried out an investigation into the leak and recommended further work to the balcony of the flat above, it took five months for this work to be completed and the landlord has not given an adequate explanation for this delay. It would have been reasonable for the landlord to have prioritised repairs following the leak, in view of the fact that the resident had experienced repeated leaks over a number of years.
39. The landlord also failed to keep the resident suitably informed of the work, which resulted in unnecessary additional time and trouble for the resident in progressing her complaint and chasing for updates on the repairs. The landlord should pay compensation to the resident for the distress and inconvenience these errors caused her, as set out below.

Orders

40. The Ombudsman orders the landlord to carry out the following actions within four weeks:
    1. Pay the resident £500 compensation for distress and inconvenience caused by delays in miscommunication concerning her repair reports from December 2019 onwards.
    2. Arrange a comprehensive survey of the building to identify the source of any current leaks. The landlord should then set out a schedule of works for any repairs required as a result of the survey. The landlord should provide a copy of the survey and schedule of works to the resident and the Ombudsman.
    3. Once the repairs have been completed the landlord should arrange for the areas of the resident’s property which were affected by the leak to be redecorated. The redecoration be arranged within four weeks after the repairs are completed and the landlord should confirm to the Ombudsman when this has been done.