Birmingham City Council (202122983)

REPORT

COMPLAINT 202122983

Birmingham City Council

23 January 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:
   1. The landlord’s refusal to replace the resident’s kitchen.
   2. The landlord’s record keeping.

Background

2. The resident carried out a mutual exchange on 10 September 2018 and now holds a secure tenancy with the landlord.
3. It is beyond the expertise of this Service to make a determination on whether the kitchen needs to be replaced but rather to determine whether the landlord responded to the resident’s reports of problems in a reasonable and competent manner, in line with any relevant policies and procedures, and taken reasonable steps to resolve the complaint.

Summary of events

4. On 5 February 2021 the resident reported a leak in her garage which was affecting her electrics. She explained that the property had not had an electrical check since she moved in two years prior.
5. The resident contacted her landlord on 19 March 2021 to report disrepair to her kitchen and concerns relating to electrical safety. She included photos and said that:
   1. She carried out a mutual exchange, however the condition of the kitchen was “not how she viewed it”
   2. She raised concerns relating to electrical safety, saying there was no electrical safety check carried out before she moved in. Furthermore, an electrical socket came away from the wall in her daughter’s bedroom, although she had a friend re fit this for her.
   3. There was a hole in the kitchen wall that went to the outside, allowing heat to escape and affecting her financially.
   4. Kitchen cupboard doors were hanging from their hinges and nails were protruding out.
   5. The worktop area by the sink was not secure and there was a hole in the floor that was hidden by the dishwasher.
   6. There was no plug sited at the washing machine therefore she had to stretched the cord to the nearest plug.
   7. Due to the lack of kitchen cupboard doors, the food and plates were exposed to dust and cleaning products “exposed”.
   8. The floor was uneven by the cooker affecting the cooking of food and “leaking oils out the back”.
   9. Her daughter is vulnerable due to her disability.
   10. She wanted a surveyor to assess the condition of the kitchen and a new one be provided.
6. On 8 April 2021 a contractor visited the resident to assess the condition of the kitchen. An internal email was sent the same day detailing what was found, it noted:
   1. The kitchen was a non-standard kitchen with doors, drawer fronts and worktops being fitted by the previous resident.
   2. The current resident “should have signed a disclaimer” meaning it was her “responsibility” as the kitchen was non-standard.
   3. The broken light fitting in the garage had been repaired
   4. It observed the hole in the floor and would raise a works order to “have the hole checked”
   5. The email also included an attachment email regarding the electrics. It said, “there was no mention of tailing leads, but it will try and have an extra socket installed for the washing machine when it carries out planned remedial works”. However, it will require an “ad hoc request” which it rarely carries out.
7. The landlord sent it’s stage one response on 8 April 2021 and said that:
   1. A contractor visited the resident’s property on 8 April 2021 in relation to the broken light and kitchen units.
   2. It confirmed the resident carried out a mutual exchange “about two and half years ago”
   3. The kitchen was non-standard and had been fitted by the previous resident, including doors, drawers and worktops.
   4. The resident “should have signed a disclaimer for the kitchen” meaning it would be her responsibility as it was a nonstandard kitchen.
   5. The resident confirmed via telephone that the light fitting in the garage had been repaired.
   6. The contractor identified a hole in the floor by the water main and would raise a work order.
   7. The landlord said it would raise “capital remedial works” to rectify the “faults” which would be “approximately April/May time”.
8. On 13 April 2021 the resident contacted her landlord and requested her complaint be reviewed, echoing the issues details in her initial complaint of 19 March 2021.
9. The landlord sent its final response on 28 April 2021 outlining the following:
   1. A contract works officer visited the property and advised the resident that the kitchen was a non-standard kitchen, and she would have signed a disclaimer which meant it was her responsibility to maintain/repair.
   2. The broken light fitting in the garage has been repaired after the resident confirmed over the telephone.
   3. A works order would be raised regarding the hole in the kitchen floor by the water main.
   4. It said that all stages of the complaints procedure had been exhausted and directed the resident to contact the Local Government and Social Care Ombudsman (LGSCO); although it provided contact details for this service.
10. The resident contacted this service on 15 January 2022 explaining the condition of the kitchen made her feel “embarrassed to have guests over”. She would like her landlord to “take responsibility” as it is responsible “to ensure standards are kept to”.
11. This service contacted the landlord on 8 April 2022 to obtain a copy of the disclaimer.
12. On 19 April 2022 internal email correspondence from the landlord identified that it did not have a signed copy of the disclaimer relating to the mutual exchange repair responsibilities for the resident. It provided an unsigned copy of the disclaimer and an undated excerpt from its computer system saying:
    1. “Ensured that both parties for this MX signed and had the Deed of Assignment and Miss Byrne signed and had her copy of the disclaimer”.

Assessment and findings

13. In relation to mutual exchange, the landlord’s website says a resident should ensure the property to be exchanged is not damaged or had any fixtures or fittings removed as the resident would “probably be responsible to put things right”.
14. Section 4 of the Repair policy: Tenants right to repair says that:
    1. Secure tenants of Local Authorities (Right to Repair) Regulations 1994 enables secure tenant to get urgent or minor repair that affect health and safety or security, carried out quickly at no cost to themselves.
15. Under the Housing Health and Safety rating systems landlords have a responsibility to ensure their properties are free from hazards, such as the hazard of Food safety. This hazard covers threats of infection resulting from inadequacies in provision and facilities for the storage, preparation, and cooking of food. It says:
    1. The food storage facilities should enable cooked and uncooked food to be kept separate to prevent cross contamination.
    2. Worktops should be securely fixed and capable of being readily cleansed and maintained in a hygienic conditions.
    3. There should be sufficient appropriate power sockets associated with the worktop as well as those provided for equipment such as fridges and washing machines.
16. The landlord’s repair policy 10.9 for kitchens says that:
    1. Repairs shall be carried out in the first instance, where one off replacement of units is required it shall be on a like for like basis.
    2. Where non-standard units are fitted, these shall be replaced with the council’s standard units.
17. 10.9.1 of the policy states the layout shall be such that it does not necessitate or cause there to be trailing flexes etc from the tenant’s appliance and if this is likely the layout must be changed, or additional outlets specified.
18. It was reasonable for the landlord to carry out an inspection in response to the resident’s complaint regarding the condition of her kitchen. The landlord carried out an inspection on 8 April 2021. The final response letter says during the inspection it found that the kitchen had been installed by the previous tenant and was therefore a non-standard kitchen. Further, it identified a hole in the kitchen floor for which it was to raise a works order to rectify this. The resident confirmed that this has been done.
19. The landlord says that the resident would be responsible for the kitchen as it is non-standard and was viewed as part of the mutual exchange process. As a result of this she would have signed a disclaimer taking responsibility for the kitchen repairs. The landlord’s own internal emails confirm it does not have a signed copy of the disclaimer. There has been no evidence provided to this service that the resident signed a disclaimer taking responsibility for the condition of the kitchen. The computer excerpt that was provided by the landlord, was not dated, therefore it cannot be reasonably relied upon as written at the time. This is because the landlord has not demonstrated that it has good record keeping practices by the lack of signed copies of such important documentation.
20. The landlord has not provided a detailed inspection report of the condition of the kitchen, unlike the photos provided by the resident. The landlord’s stage one and stage two response letters only make mention of the fact the resident is responsible for any repairs to the kitchen as it is non-standard.
21. This is inappropriate given the fact there is no signed disclaimer from the tenant to suggest she has taken responsibility for the repairs. As such, the landlord has a responsibility to carry out the necessary repairs/works in accordance with its obligations under Section 11 of the Landlord and Tenant Act (1985). Furthermore, the landlord also has a responsibility to ensure its property is free from any category one hazards under the Housing Health and Safety Rating system in accordance with the Housing Act 2004. Again, no detailed inspection report was provided to this service to demonstrate the property is free from disrepair.
22. The landlord’s repair policy paragraph 10.9 says that any non-standard (kitchen) units shall be replaced with the council’s standard units, however repairs will be carried out in the first instance, or if a one off replacement unit is needed it will be replaced on a like for like basis. Accordingly, the landlord has not followed its own policy in relation to the kitchen repairs which is inappropriate.
23. In its final response the landlord directed the resident to both LGSCO and Housing Ombudsman Service should she remain unhappy. This was incorrect and would have been confusing for the resident, despite contact details then being provided for this service only.

Determination (decision)

24. In accordance with paragraph 52 of the scheme there was maladministration by the landlord in its refusal to replace the kitchen.
25. In accordance with paragraph 52 of the scheme there was service failure by the landlord for it poor record keeping.

Reasons

26. Although the landlord responded to the resident’s complaint relating to the condition of her kitchen by carrying out an inspection, it failed to carry out its repair obligation in accordance with the Landlord and Tenant Act 1985 section 11. In addition, it failed to follow its own repairs policy and obligations by not repairing or replacing as necessary, the kitchen units. It also failed to rectify the trailing cables for the washing machine reported by the resident in line with its repair policy. Furthermore, the landlord repeatedly relied upon a disclaimer to demonstrate it had no repair obligations that it had no evidence of being signed.
27. As detailed above, the landlord failed to keep adequate records/copies of signed documentation that it relied upon when withdrawing its repairs responsibilities. Furthermore, it failed to provide a detailed inspection report that it further relied upon to demonstrate the condition of the kitchen and absence of disrepair responsibilities to the kitchen facilities.

Orders

28. The landlord shall take the following action within four weeks of the date of this report and provide the Ombudsman with evidence of compliance with these orders:
29. Pay the resident £100 in recognition for any distress and inconvenience arising from the landlord’s failure to further consider the condition of the kitchen despite not having a copy of the disclaimer it repeatedly referred to.
30. Instruct a surveyor to inspect the kitchen to determine whether it requires replacement or repair, providing a clear record detailing what criteria was used in determining this, and the outcome, and send a copy of this to the resident and this Service. Any repair should be carried out within eight weeks of this determination.
31. If it is found that the kitchen requires replacement, the landlord should confirm to the resident the timescale in which this work will be done. This should be no longer than four months from this determination date.
32. Carry out an UpToDate Electrical Installation Condition Report (EICR) and provide a copy to the resident and this service.
33. Review its recording keeping processes and provide staff training to seek to prevent a recurrence of its above failings in the resident’s case.

Recommendations

34. That it ensures staff are signposting residents to the correct ombudsman when responding to complaints.