Birmingham City Council (202121058)

REPORT

COMPLAINT 202121058

Birmingham City Council

25 August 2023

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:
   1. response to the resident’s reports of damp and mould.
   2. decision to place a risk marker on the resident’s tenancy record.
   3. complaint handling.

Background

2. The resident is a secure tenant of the landlord, and lives in a 1-bedroom ground floor flat.
3. In September 2021 the resident complained to the landlord about its handling of damp and mould repairs. She said she had reported this on 9 August 2021, and waited over a month for a damp inspector to arrive on 20 September 2021. However, the resident said the contractor who attended was a painter and decorator and had no experience treating damp and mould. The resident wanted the landlord to reimburse her for a lost day of work. She said she had lived in damp conditions for seven years, which was affecting her health. The resident was unhappy that the landlord had not addressed the root of the problem.
4. The landlord provided its stage 1 response. It said the contractor had until 21 September 2021 to attend, and did so in that timeframe. The landlord said the contractor carried out an assessment of the damp and mould and reported that a plumber was needed as plastering done in March 2021 had not dried out. Although an appointment had been arranged, the plumber was not able to access the property. The landlord said a new job had been raised on 8 October 2021. It thought the contractor had diagnosed the likely cause of the problem, and said appropriate action was then taken.
5. The resident remained unhappy. She maintained that the contractor was not qualified to carry out a damp inspection and did not make diagnosis of the problem. The resident asked for there to be an investigation into why she had suffered with damp and mould for seven years.
6. The landlord issued its stage 2 response and made the following points:
   1. It confirmed the contractor who attended the resident’s property was not a painter and decorator, and had been advised to carry out a damp inspection.
   2. The resident should have been told that more than one visit would be needed, and the first visit would only be for inspection purposes. The landlord said routine inspections take place within 30 working days of a repair being reported, and it had met this target. However, it apologised for the continued delays in drawing a conclusion to the matter.
   3. Its records showed that the resident had reported damp and mould in the hallway and bathroom on 3 occasions since September 2016 (prior to the recent reporting). It said that in July 2020, it was likely a site inspection had happened and its contractor was instructed to remove the bath panel and possibly the bath to investigate the problem. Though in September 2020, the resident had advised that the contractor had failed to investigate the source of the leak. The landlord said the recent damp inspection supported that a plumber would be needed to identify any leak and eliminate any further damp and mould.
   4. The landlord had made arrangements for a plumber to visit on 26 November 2021, but the resident said a plumber did not attend, only a contractor who had treated the area. It had therefore arranged for a plumber to attend on 17 December 2021.
   5. It provided the resident with a compensation claim form due to her assertion she had lost pay due to the contractor appointment.
   6. Regarding a risk marker that was on the resident’s account, it said the officer that raised this was no longer in post. As it could not substantiate any claims made regarding the resident’s previous conduct, it had removed the risk marker.
7. The resident brought her complaint to this Service. She said that different contractors attending had led to conflicting reports and the repair not getting done. She thought the landlord had failed to control and monitor the repair, which was why the repair was still not complete. The resident thought the delay in completing the repair was appalling, and said she had lived with the damp and mould for seven years, yet the contractors kept requesting the same repair. She explained that in 2020 it was found that a wall was saturated, and thought the landlord ought to have followed this up with a health and safety visit. Finally, the resident wanted an explanation about why a risk marker was put against her name when this was not discussed with her.

Assessment and findings

Scope of investigation

8. The resident has raised concerns about the landlord’s handling of damp and mould for the previous 7 years. However, the resident only complained to the landlord in September 2021. As the substantive issues become historic, it is increasingly difficult for an independent body, such as the Ombudsman, to conduct an effective review of the actions taken to address them. This report therefore mainly focuses on what happened after the repair was reported in August 2021, but still takes into account the long-standing nature of the repair.
9. The resident has said that the damp in the property has affected her health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim or through the courts. However, the Ombudsman can consider if any service failings have caused distress and inconvenience to a resident and does so here.
10. Finally, the resident has expressed concerns to this Service that the landlord did not accept her claim for compensation, as well as concerns about contractors attending without appointments and without identification. Paragraph 42(a) of the Housing Ombudsman Scheme explains that the Ombudsman will not investigate complaints which are made prior to having exhausted a landlord’s complaint procedure. If the resident wishes to complain about these matters, she has the option to progress these through her landlord’s complaint procedure and to refer them to the Ombudsman when she has received a final response.

The landlord’s response to the resident’s reports of damp and mould

11. The landlord’s repair records show that the resident has reported damp and mould in the hallway and bathroom since 2015. The historical records are incomplete and do not provide much detail in respect of the repairs attempted.
12. In September 2021 a contractor attended and said that plastering carried out in March 2021 had still not dried out in the hallway. The contractor said the bath panel needed removing and the matter investigating further. It is noted that a previous contractor had advised the same thing over a year earlier, in July 2020, and noted that no plumbing leaks had been found.
13. A plumber was required following the contractor’s September 2021 visit. It is understood that a plumber attended on 28 September 2021, but the resident was not at home. The resident says she was at work and an appointment in advance had not been made, however, the contracting company said they would have either called or left a voicemail to ensure the resident would be at home. It therefore cannot be established whether or not the contractor gave the resident notice of this appointment. In any event, a further appointment was made for 26 November 2021, yet a plumber did not attend on that occasion (only another contractor who treated the wall). The landlord missed an opportunity here to investigate.
14. The landlord’s contractor then inspected on 17 December 2021, as arranged in its final response. The inspection found that there were no leaks but there was a ‘filmy bacteria’ from a previous leak that had caused damp to seep through the wall to the hall. The inspection recommended a damp inspection of the hall wall. There is no evidence that this recommendation was followed up, before the hall wall was reportedly treated and painted again in early 2022. This is not satisfactory, as this was another missed opportunity to investigate. The landlord would also have been expected to monitor the outcome to the inspection, to ensure that the final response’s commitment to resolve the issue was met.
15. Following contact from the Ombudsman about the investigation, the landlord arranged for a surveyor inspection on 16 June 2022. This concluded that there had been a previous water leak, and when plaster was renewed, the brickwork had not been given time to dry out, thereby causing further damp issues. It said there was no mould within the property at that time, though the hallway wall showed evidence of salts to a height of 1 metre. It said it would arrange for dehumidifiers to be provided to dry out the wall, carry out a further inspection, and then complete some works to the hall and bathroom. The landlord accepted that each repair had been dealt with as a new issue and it was not picked up that this was a long-running issue that needed detailed investigation.
16. The landlord seemingly took appropriate steps in June 2022 to start to investigate the damp and address the underlying problem. However, this was 6 months after the inspection in December 2021 which recommended a damp inspection to the hall. The landlord accepts that it had not realised the damp and mould was a long-running issue, and if it had given more appropriate regard to this and the December 2021 inspection, it is likely that the matter could have been resolved far sooner.
17. The landlord should pay the resident £400 compensation to recognise the impact its handling of the reported damp and mould issue has caused her. This takes into account the length of time over which the landlord had the opportunity to address the matter but failed to do so. This amount is in line with this Service’s remedies guidance where a landlord has made some attempt to put things right, but has failed to address the detriment to the resident.

The landlord’s decision to place a risk marker on the resident’s tenancy record

18. The landlord placed a risk marker on the resident’s repairs record after she was allegedly verbally aggressive towards a contractor who attended her property in November 2020. The landlord says that the resident would have been informed about this at the time, though it has not provided evidence of that to this Service.
19. The landlord has provided a copy of the statement by the contractor which says that the resident swore at him. The landlord says the risk marker was there as it has a duty to protect its operatives, and to make them aware of any difficulties they might encounter when visiting residents. That does not seem unreasonable.
20. After the resident raised concerns about the risk marker, the landlord looked into this further and found that the staff member who had placed the risk marker on the resident’s record had left its employment. As the landlord was unable to discuss the matter with that person for further details, it made the decision to remove the risk marker. That was up to the landlord, but it appears to have made a reasonable decision here.

The landlord’s complaint handling

21. This Service notes that issues with the landlord’s complaint handling and compensation approach have been highlighted in the Ombudsman’s January 2023 special report and the Regulator of Social Housing’s May 2023 regulatory notice.
22. The landlord’s complaint policy states that it has a 2-stage formal complaints process. At stage 1, it should acknowledge the complaint within two working days and respond within 15 working days of receipt. If the resident is still dissatisfied with the landlord’s response, they can escalate their complaint to stage 2. At stage 2, the landlord should respond within 20 working days of receipt.
23. The landlord provided its stage 1 response within its timescale of 15 working days. However, the landlord issued its stage 2 response 44 working days after the resident requested this, which was outside its stated timescale of 20 working days. The landlord does not demonstrate that it appropriately acknowledged this.
24. Following our January 2023 special report, the landlord has confirmed it is taking steps in respect to its complaint handling and compensation approach, and so no orders are made for these.

Determination

25. In accordance with Paragraph 52 of the Scheme, there was:
    1. maladministration by the landlord in respect of its response to the resident’s reports of damp and mould.
    2. no maladministration by the landlord in respect of its decision to place a risk marker on the resident’s tenancy record.
    3. service failure in the landlord’s complaint handling.

Orders and recommendations

Orders

26. The landlord to, within 4 weeks, pay the resident £450 compensation. This comprises £400 for its response to the reports of damp and mould, and £50 for its complaint handling.
27. The landlord to, within 4 weeks, review the status of the proposed actions after its June 2022 inspection and the status of the damp issue in the property. If there are any outstanding actions it should confirm what these and their timeframes are, in writing to the resident.
28. The landlord to, within 6 weeks, review its processes for recommendations like those in the 17 December 2021 inspection, to ensure these are appropriately considered and followed up in an effective and timely manner.
29. The landlord should provide evidence to the Ombudsman of compliance with the above orders within the timeframes specified.