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Birmingham City Council (202204579)

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REPORT

COMPLAINT 202204579

Birmingham City Council

9 November 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 handling of repairs reported by the resident about a leak, and subsequent damp and mould.

Background

  1. The landlord and resident have a secure tenancy agreement. The landlord employs the services of a contractor to complete some repairs. The resident’s property is located next to a privately owned property.
  2. The resident first reported an issue with a leak on 15 June 2020. The landlord updated its records on 23 June 2020 to state the leak was “coming through from the neighbour’s flat roof”. The landlord said it advised the resident to discuss the repair of the leak with their neighbour, as the property is privately owned.
  3. The resident reported the same leak on 17 July 2020. The landlord recorded that it had previously inspected the issue via a ladder, but the leak was “ongoing”. The landlord also recorded that the issue was coming from the “joining flat roof” with the resident’s neighbour, which the landlord said was in “a very poor state”. The landlord updated the record on 21 July 2020 and said that the resident had informed them the neighbour was getting their roof fixed, through their insurance as soon as they could.
  4. The resident reported an issue with damp and mould on 6 August 2021. The landlord acknowledged that plaster was “falling off” in the property, and the leak from the neighbour’s property may have been causing the damage. The landlord updated the repair log entry with “no work required”, as it was waiting for the neighbour to repair their roof.
  5. The repair log shows another report of damp and mould was made on 10 September 2021. However, the contractor was unable to gain access on the scheduled date, so left a card for the resident to respond to. The resident reported damp and mould again on 21 October 2021 and 13 January 2022. The repair log states a damp inspection was completed on 10 November 2021.
  6. The resident raised a complaint to the landlord on 16 February 2022. They said the landlord had “failed to provide a repairs service” and requested the damp issue to be solved as a resolution. The landlord acknowledged the complaint on 16 February 2022 and provided a stage 1 response on 17 February 2022. The landlord said:
    1. Contractors had attended the resident’s property on multiple occasions to address the damp issue. However, had been unable to complete a repair due to the ongoing leak from the neighbour’s property.
    2. The relevant department had been made aware of the issue and would be handling contact with the neighbour.
    3. The resident should contact the landlord when the repair of the neighbour’s leak/roof is complete, to raise a job to address the damp and mould in the resident’s property.
  7. The resident continued to report issues with damp and mould, and on 26 April 2022 they reported an issue with plaster being impacted by the damp. The landlord recorded the repair as ‘complete’ on its repair log on 5 May 2022. It recorded that repair appointments had not gone ahead as the source of the issue related to a leak coming from the neighbour’s roof. The landlord also recorded that a letter had been sent to the neighbour regarding the issue and acknowledged the resident’s willingness to seek legal advice.
  8. The landlord acknowledged the resident’s request to escalate their complaint to stage 2 of the complaint process on 19 May 2022. The landlord provided the resident with a stage 2 complaint response on 20 May 2022. The response said:
    1. The landlord apologised that the stage 1 complaint response did not satisfy the resident’s concerns.
    2. The resident’s neighbour was a private owner, and this created “difficulties” with handling repairs.
    3. The landlord was waiting for a reply from the neighbour, having written to them and asked for the roof and leak to be repaired.
    4. The landlord was unable to resolve the issue immediately because the neighbouring property was privately owned and there was the potential for legal action. The landlord said it was also waiting for the local housing team to “alleviate the circumstances” and provide support.
    5. The landlord apologised for the continued distress and inconvenience.
  9. The resident remained dissatisfied with the landlord’s handling of the leak, and damp and mould. They contacted this service on 7 June 2022.
  10. The landlord said in an internal email on 11 July 2022 that the resident had asked if the landlord would be willing to complete the necessary repair work to the neighbour’s property. The resident said this was because the neighbour had been unable to find someone to repair the roof/leak.
  11. The resident reported damp and mould on 26 July 2022, which the landlord marked as complete on 26 August 2022 and said it had stripped paper in the living room and completed a stain block. The landlord confirmed to this Service that the damp and mould issue, and the leak coming from the neighbour’s property, were fixed as of August 2023. The landlord said the resident has reported no further water ingress since.

Assessment and findings

  1. The landlord’s conditions of tenancy document provides information about the responsibilities for both the landlord and resident. The document states the resident has “the right to have certain repairs (known as qualifying repairs) done within set time limits”. The associated repair policy, applicable at the time, categorises repairs and outlines the expected response timescales. These are:
    1. Emergency repairs – This type of repair applies where there is a danger of injury or damage to the property and a response is required within 2 hours of the instruction being issued to the contractor.
    2. Urgent repairs – This type of repair applies if there is an issue with the health and safety of the tenant or the security of the property. The completion period for these repairs should be 1, 3 or 7 working days based on the requirements of The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994.
    3. Routine repairs – This type of repair is targeted to be completed within 30 days of being reported. There are some larger repairs that may need special materials and arrangements to be completed. In these cases, the tenant shall be advised what timescale to expect.
  2. The landlord also had a legal obligation, under the Landlord and Tenant Act, to carry out repairs in properties they rent out. Section 11 of the act requires landlords to make repairs to the structure and exterior, as well as to installations such as boilers, pipes and electrics. It is important to note the landlord also had the option to take court action against the neighbour for nuisance and/or negligence, relating to the ongoing leak. The landlord could have obtained an injunction this way, which would have empowered them to require the neighbour to fix the leak.
  3. The resident first reported a leak on 15 June 2020. The resident should have reasonably expected a resolution to the reported issue within 30 days, as per the “routine repairs” category of the repair policy. However, the leak and subsequent damp and mould remained outstanding until August 2023, the date which the landlord has confirmed completion of repairs. This meant the resident was living with the issues for a total of 1,142 days. This demonstrated a substantial failure to address the resident’s outstanding repair issues within a reasonable timescale, falling significantly outside of the policy’s 30 days for “routine repairs”.
  4. While there was a delay in addressing the resident’s concerns, the Ombudsman has considered what action, if any, the landlord was taking during those 1,142 days and whether it provided a reasonable explanation for the delay. The landlord was quick in its assessment of the cause of the leak, stating it was coming from the neighbour’s property 8 days after it was reported. The landlord was also when asking the resident to discuss the leak and required repair with their neighbour. Limited options were available to the landlord to resolve the root cause of the issue, and encouraging an informal attempt between the resident and neighbour to address the leak was reasonable in the circumstances to begin with. However, in isolation this was not enough for the landlord to fulfil its legal obligation to repair the issue.
  5. The resident made 10 separate reports of the leak or issues that had occurred because of it, such as damp and mould or damaged plaster. This should have demonstrated to the landlord that the leak continued to have a significant impact on the resident and their property. Although the landlord completed some remedial work, such as replastering, it knew from that outset that the efforts to permanently repair the issues would be unsuccessful. This was recorded on the landlord’s own repair log on multiple occasions and resulted in cancelled appointments.
  6. The landlord was proactive in the handling of the resident’s substantive issue only when they made a complaint, in February 2022. The landlord referred the issue to the relevant department, who later wrote to the resident’s neighbour asking for the roof and leak to be repaired. The Ombudsman understands the difficulties that can present themselves when the source of an issue, such as a leak, is in a privately owned property. From there the landlord’s role is to ensure the need for the repair was communicated to the neighbour, ensuring that they completed the work in a timely manner and then organising any follow-on remedial work to the resident’s property. If the repair was not completed within a reasonable amount of time, the landlord is able to take proportionate action, particularly if the issue continued to damage the property and/or causes distress and inconvenience to the resident.
  7. In the event the neighbour was unable or unwilling to make the necessary repairs, the remaining option for the landlord was to take enforcement action. This Service appreciates that once started, this would be a long process for the landlord to take and which could require legal advice and action to resolve the situation. However, the Ombudsman is of the opinion that the landlord did not start the process and should have acted sooner in this case. Had the landlord been more proactive in its approach, it could have been reasonably aware that the issue was not being addressed as early as July 2020. The resident’s neighbour had indicated that the roof was going to be repaired through an insurance claim in July 2020. The landlord failed to ensure matters were being progressed or resolved. This meant that over 12 months later the landlord’s repair log showed the roof remained damaged, and the leak continued to impact the resident’s property. The landlord could have referred the issue to the relevant department much sooner, but instead it took another 6 months and the resident to make complaint before it acted.
  8. The landlord indicated in its stage 1 complaint response that the issue with the leak coming from the neighbouring property had been passed to the relevant department to contact the neighbour. The landlord said it was still waiting for a reply in its stage 2 complaint response, around 3 months later. This further demonstrated a failure to act appropriately within a reasonable timescale. An internal email indicated the landlord had given the resident’s neighbour 28 days to respond to the landlord. The fact the landlord was still waiting to hear from the neighbour in May 2022 was a failure to enforce the deadline it had given and, as a result, a failure to provide the resident with an appropriate level of service.
  9. The Ombudsman has also considered the landlord’s communication while the substantive issue remained outstanding, particularly its stage 2 complaint response. The response refers to “waiting for the local housing team to alleviate the concerns and provide support”. The landlord did not provide any further information about the support it would be receiving or what “alleviate the concerns” meant for the resident. This was likely to have added to the distress and inconvenience experienced by the resident for a significant amount of time.
  10. The Ombudsman considers the landlord’s handling of the leak, and damp and mould to have fallen short of providing a reasonable level of service to the resident. This resulted in a significant amount of time where the resident was living with an ongoing leak, returning damp and mould, and the inconvenience of having to regularly report the same issue. The length of time the landlord took to take any appropriate action is likely to have continued to make things worse. The resident said it also created problems with condensation and the extractor fans in the property. While the landlord did take some action to provide temporary repairs, such as replastering and addressing the mould, the Ombudsman has determined the landlord must act to put things right.
  11. The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The guidance suggests awards may be appropriate for cases where the landlord has made an error which significantly impacted the resident, and the landlord has failed to appropriately address those errors. The Ombudsman acknowledges that the landlord identified delays and provided the resident with an apology during the complaint process. However, the solution it offered fell short of being proportionate to the substantial delays the resident experienced. Therefore, this service has determined compensation of £1,000 to be fair and proportionate. This amount considers the substantial delays the resident experienced, the distress and inconvenience, as well as the fact the landlord did act, albeit later than it should have.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found maladministration by the landlord in its handling of repairs reported by the resident about a leak, and subsequent damp and mould.

Orders and recommendations

Orders

  1. The landlord is ordered to pay the resident £1,000 compensation for the failings identified in this investigation when handling the resident’s requested repairs.
  2. The landlord must provide evidence of compliance with the above order within 4 weeks of the date of this report.

Recommendations

  1. The landlord should consider reviewing its approach to handling cases such as this one to ensure appropriate action is taken within a reasonable timescale – this could include ensuring referrals to relevant departments are done sooner and/or enforcing deadlines, where appropriate. The landlord should also ensure relevant staff are clear on how to deal with similar cases and the powers they have to act.
  2. The landlord should also consider its approach to repairs, where the repair/s are being reported regularly. The landlord should consider whether repeated requests to repair the same issue should trigger an alternative action and/or approach. At the very least, the landlord should ensure that instances of repeated repairs for the same issue are given additional attention to determine a permanent solution.