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Birmingham City Council (202204968)

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REPORT

COMPLAINT 202204968

Birmingham City Council

19 September 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 response to the resident’s:
    1. reports of a leak within her property.
    2. associated complaint.

Background

  1. The resident is a secure tenant of the landlord and lives in a ground floor flat.
  2. On 19 August 2021, the resident raised a complaint with the landlord. She stated that over the past two years, a leak from the property above had been causing damage to the ceiling and walls in the bathroom, kitchen, and hallway within her property. She asked the landlord to investigate the leak from the property above and repair the damage that had been caused to her property.
  3. The landlord sent its stage one complaint response to the resident on 4 October 2021. It apologised for the delay in responding to her complaint and advised that it would book an appointment for a contractor to attend the resident’s property so that it could assess where the leak was coming from. However, it informed the resident that it could not instruct its contractor to investigate whether a leak was coming from the property above, unless the resident living in the property, reported a problem and booked an appointment with the landlord directly.
  4. On 5 October 2021, the landlord’s contractor attended the resident’s property and reported to the landlord that it had resolved the leak on the same day. On 11 November 2021, the resident emailed the landlord to ask it to assess the damage that had been caused to the ceiling and walls in the bathroom, kitchen, and hallway within her property, as a result of the leak from the property above. She explained that the walls within her property had mould, and that the walls in the bathroom were crumbling. She expressed that the disrepair was having an effect on her mental health, and that it was causing her to catch constant colds and headaches. On 13 December 2021, the landlord’s contractor attended the resident’s property and reported to the landlord that it had conducted a damp survey and carried out all associated remedial repairs.
  5. The resident emailed the landlord to escalate her complaint to stage two of its complaints process on 21 February 2022. She reiterated that she was still waiting for the damage to the ceiling and walls in the bathroom, kitchen, and hallway within her property to be repaired. She also sent photos of the damage for the landlord to review.
  6. On 3 March 2022, the landlord sent its stage two complaint response to the resident. In this it advised that it had confirmed with its contractor that all works relating to the reported leaks and plastering within the resident’s property had been completed. The landlord explained that if further work was required to the resident’s property, then she would need to book another appointment by contacting its repairs team directly.
  7. The resident raised another complaint on 11 May 2022. She advised that the reported leaks from the property above had still not been resolved, which had caused her property to flood over the previous weekend. She also disputed the landlord’s claim that remedial works had been completed within her property.The landlord issued its formal complaint response on 13 May 2022, stating that it had no record of the resident reporting any leaks from the property above since 4 October 2021, and that she should report her concerns to its repairs service directly.
  8. The resident contacted this service on 18 July 2022, to ask for the complaint to be investigated. She told this service that the repairs to her ceiling and walls in the bathroom, kitchen and hallway remained outstanding.
  9. On 7 November 2022, the resident reported to the landlord that her bathroom ceiling had collapsed, because it had failed to repair the water damage caused by the leak from the property above. She asked the landlord to repair the ceiling in her bathroom, along with the rest of the outstanding damage that had been caused to the rest of the property as a result of the leak from the property above.

Scope of investigation

  1. The resident has stated that the property above her has had an intermittent leak since 2019, which has been causing damage to her property. The Ombudsman does not doubt that the resident may have been experiencing a leak from the property above since 2019, however, we cannot consider complaints that were not brought to the landlord’s attention within a reasonable period, which would normally be within six months of the matters arising. This is because residents are expected to raise complaints with their landlords in a timely manner, so that the landlord and the Ombudsman has a reasonable opportunity to consider the issues while they are still ‘live,’ and while the evidence is available to reach an informed conclusion on the events that occurred. This Service has seen no records to indicate that prior to 19 August 2021, the resident raised any formal complaints with the landlord relating to a leak from the property above. Therefore, in the interest of fairness, the scope of this investigation is limited to the events that occurred from 19 August 2021 onwards.

Assessment and findings

Policies and procedures

  1. The landlord’s repairs policy states that it is responsible for the repair and maintenance of the ceilings and walls within the resident’s property.
  2. The landlord’s repairs policy explains that repairs fall within three categories:
    1. Emergency repairs – where there is a danger of injury or damage to the property.
    2. Urgent repairs – to protect the health and safety of the resident or the security of the property.
    3. Routine repairs – all other repairs.
  3. The landlord’s repairs policy sets out that repairs falling under category ‘a’ are attended to within 2 hours of an instruction being issued. Repairs that fall under category ‘b’ should be completed within one to seven working days of an instruction being issued, and repairs falling under category ‘c’ should be completed within 30 days of an instruction being issued.

The landlord’s response to the resident’s reports of a leak within her property.

  1. As part of this investigation, the landlord was asked for detailed records relating to reported leaks within the resident’s property, such as copies of any survey or inspection reports, feedback from employees or contractors, and an explanation of any work carried out. Very little of this has been provided, and if this information does exist, the landlord’s repair logs appear to be incomplete. On several occasions it records its contractor’s attendance to the resident’s property, but there is no information explaining what was investigated, where the leaks were assumed to be coming from, what or where the repairs were conducted, and there are no assessments to demonstrate the competency of the landlord’s decision to log each leak as resolved. The landlord’s poor record keeping has led the Ombudsman to question the integrity of its repair records and whether they can be relied upon.
  2. Record keeping is a core function of a repairs service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the condition of a property, enables outstanding repairs to be monitored and managed, and demonstrates that its decision to log a repair as complete is based on evidenced and sound information. As such, an order will be made for the landlord to create an action plan to demonstrate what improved processes and/or staff training it will implement to ensure it is capturing and recording comprehensive repair records when fulfilling its repair obligations.
  3. From the evidence available, the Ombudsman notes that on 19 August 2021, the resident reported a leak coming from the property above, affecting her bathroom and kitchen, and there was a delay of 33 working days by the landlord to instruct its contractor to attend the resident’s property to fix the leak. During this time, there is no evidence of the landlord acknowledging the resident’s report or providing her with an apology or explanation for its delay to respond. Following the landlord’s instruction for its contractor to attend the resident’s property to investigate the reported leak, the evidence shows that the contractor attended within one working day. In line with its repairs policy timescales, this would suggest the landlord considered the leak within the resident’s property as an ‘urgent repair.’
  4. Despite this, the landlord’s delay to instruct its contractor to investigate the reported leak, resulted in the resident being left with an unattended urgent repair within her property for over a month. This was inappropriate, as the landlord’s initial response to the resident’s report of a leak coming from the property above, was far in excess of the urgent repair timescales set out in its repairs policy. This would have understandably caused stress and frustration to the resident, as she would have been faced with the issue every day, not knowing when it would be resolved.
  5. For the landlord to repair a leak, it would first need to establish the source. In this circumstance, the landlord would have been expected to inspect the property above as part of its investigations. However, the landlord’s stage one complaint response informed the resident that it could not investigate whether a leak was coming from the property above, as the tenants of the property had not raised any concerns themselves. This information was incorrect, as in accordance with the landlord’s repairs policy, all residents are required to allow the landlord access to their property to inspect or carry out repair and maintenance work, so that it can meet its repair obligations. The landlord could have asked the resident’s upstairs neighbour to grant access to investigate the cause of the leak. Due to this inaccurate approach, the landlord’s contractor did not inspect the property above until 8 June 2022, which was almost a year after the resident had raised her initial report of a leak.
  6. While there is evidence of the landlord’s contractor attending the resident’s property on four separate occasions in the following three months after the resident’s initial report, it appears as though the temporary fixes being undertaken to resolve leaks in her bathroom and kitchen, were ineffective, and failed to identify the underlying cause, with no reasonable explanation why. The landlord’s delay to inspect the property above, paired with a lack of evidence to explain the purpose and outcome of its reoccurring visits to the resident’s property, demonstrates that the landlord’s actions did not go far enough to establish the source of the reported leaks within the resident’s property.
  7. What is especially concerning, is that the landlord’s records confirm that when it eventually inspected the property above, its contractor identified a leak within the bathroom, conducted the necessary remedial works, and the resident made no further reports of a leak coming from the property above after this date.Due to the landlord’s poor record keeping, the Ombudsman cannot reasonably conclude that all the reported leaks within the resident’s bathroom and kitchen were linked to the property above. However, the landlord’s failure to provide any evidence to the contrary,suggests strongly that the leaks affecting the resident’s bathroom and kitchen would have been remedied much earlier than they were,had the landlord investigated the property above when it was first made aware of the potential issue. Over a 10-month period, this failing caused the resident significant distress, inconvenience, time and trouble each time she attempted to get the leaks within her property resolved.
  8. The resident has told this service that her bathroom ceiling collapsed on 7 November 2022, because the remedial works that were required to the ceiling and walls within the bathroom, kitchen and hallway were not completed by the landlord. She has advised this service that she was forced to contact the emergency services and that the entire ordeal caused her a great deal of distress. In line with a landlord’s repairs and maintenance obligations, when a landlord considers a repair concern as resolved, the Ombudsman expects the landlord to make good any damage caused to the property by that repair. Therefore, the landlord should have repaired the ceiling and walls which were affected by the leak, in line with its published timescales for repairs.
  9. The landlord’s repair records state that on 13 December 2021, its contractor conducted a damp survey and completed routine repairs throughout the resident’s property. However, without a copy of the damp survey or evidence of the routine repairs undertaken, the Ombudsman cannot reasonably rely on these records to make an assessment on how relevant or effective this visit was, in relation to the repair of the resident’s ceiling and walls. Following this, it was not until 18 November 2022, that the landlord raised a job relating to remedial works to the resident’s ceiling and walls. This was unacceptable as the resident had been requesting for the landlord to repair the damage the leak had been causing to her ceiling and walls, on 19 August 2021, 11 November 2021, 21 February 2022, and 11 May 2022. It is clear from the landlord’s repair records that from 19 August 2021, intermittent leaks were affecting the resident’s property, and there are no records prior to 18 November 2022, to evidence that the landlord repaired any damage caused as a result of those leaks. Therefore, it is reasonable to conclude that the landlord’s inaction over a period of fifteen months, caused avoidable damage to the resident’s ceiling and walls.
  10. Additionally, as the landlord’s repair records do not specify or evidence what remedial work was undertaken on 18 November 2022, the Ombudsman cannot conclude with reasonable certainty that the landlord has completed the outstanding remedial work. This is indicated further by the resident, who has told this Service that the damage to her ceiling and walls in the bathroom, kitchen and hallway remains outstanding. As such, the Ombudsman will make an order for the landlord to carry out a post-inspection of the resident’s property to determine what remedial works remain outstanding. It should then outline how it intends to make good on any damage identified, and it should evidence completion of the works by taking photographic evidence.
  11. In light of the landlord’s cumulative failings, the Ombudsman has determined that there was maladministration by the landlord in its response to the resident’s reports of a leak within her property. Additionally, the landlord has failed to recognise its failings or offer redress to the resident in acknowledgement of the distress and inconvenience caused because of its actions.
  12. The Ombudsman’s Remedies Guidance, which is published on our website, sets out our Service’s approach when seeking to resolve a dispute. Where there has been a determination of maladministration, which in the Ombudsman’s opinion, has significantly impacted the resident, the guidance states that landlords should offer resident’s a financial remedy of £600 to £1000 to put things right. As a result of the landlord’s poor recordkeeping, initial delay to respond to the resident’s report of a leak, delay to inspect the property above, and failure to evidence satisfactory completion of remedial works, the Ombudsman will order the landlord to pay the resident £600 compensation in recognition of the distress, inconvenience, time and trouble caused by its errors.
  13. The Ombudsman will also make an order for the landlord to provide the resident with an apology from a senior director and arrange for a senior management review to be conducted into this case to identify any additional learning and improvement, and report to this service the outcome.

 

The landlord’s response to the resident’s associated complaint.

  1. The landlord operates a two-stage complaints process. When a complaint is received, the landlord aims to provide a complaint response at stage one of its process within 15 working days. If the complainant is dissatisfied with the response, they can request escalation of the complaint to the next stage. The landlord will then undertake a review of the complaint and provide the resident with a stage two complaint response within 20 working days.
  2. The Ombudsman’s Complaint Handling Code (the code), which is published on our website, sets out the Ombudsman’s expectations for landlords’ complaint handling practices. It outlines that where a landlord is unable to meet a complaint response deadline, it should set out the reasons why it has been unable to do so and when the resident is likely to receive a response. It also states that landlords are expected to address all points raised in a complaint and provide clear reasons for any decisions.
  3. In this case, the landlord received the resident’s complaint on 19 August 2021, and failed to provide its response within the timescales set out in its complaints policy. Instead, the resident was provided with a complaint response on 4 October 2021, which was 32 working days after the resident had raised her complaint. This Service has seen no evidence that the landlord explained to the resident why there was a delay in its complaint handling, nor did it offer an apology or acknowledgement of the delay in advance of its complaint response.
  4. Although it was appropriate that the landlord offered an apology for its delay to respond within its stage one complaint response, the landlord should have also explained why the delay had happened. This would have understandably left the resident feeling as though the landlord had not understood the importance of her complaint, or the impact the leak within her property was having. Additionally, the landlord’s actions here were not in line with the Ombudsman’s guidance on complaint handling, set out in the code.
  5. The Ombudsman also notes that the landlord’s stage one complaint response failed to address the resident’s claim that the leak from the flat above had been affecting her property for two years. During the course of its stage one complaint investigation, the Ombudsman would have expected the landlord to have taken the opportunity to review its repair logs over the previous two years, to ascertain whether there had been and ongoing problem relating to a leak from the property above, and if the resident had been reporting this. From this, the landlord’s complaint response could have explained why it was deemed necessary to send another operative to resolve the resident’s reported leak, or it could have considered if a more specialist investigation was required. This would have demonstrated that the landlord fully considered the history and circumstances of the resident’s concerns, and whether it had fully met its repair obligations.
  6. The landlord’s complaints policy also explains that two separate people will respond to each complaint stage. This is good practice as it helps to ensure impartiality and brings in a wider perspective of the matters at hand. However, the Ombudsman notes that both the landlord’s formal complaint responses were issued by the same member of staff, which was not in line with its complaints policy, and acted contrary to complaint handling principles of fairness and impartiality.
  7. Regarding the landlord’s stage two complaint response itself, it did not contain the resident’s right to refer her complaint to this service. Instead, it directed the resident to escalate her complaint to the Local Government Ombudsman, which does not investigate complaints relating to the property conditions of social housing residents. By providing the resident with incorrect referral details, the landlord may have created an unnecessary delay for the resident in her attempt to escalate her complaint further. Its complaint response also demonstrated a lack of care and due diligence in its overall handling of the resident’s complaint.
  8. For the reasons set out above, the Ombudsman has concluded that there was maladministration by the landlord in respect of its complaints handling. Based on the Ombudsman’s remedies guidance, the landlord should pay the resident £300 compensation in recognition of the time, trouble, distress, and inconvenience caused to her in pursuing the complaint.
  9. An order has also been made for the landlord to review its complaints handling staff training to ensure its procedure is fully understood and to ensure the correct Ombudsman details are included in its responses.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of a leak within her property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.

Orders and recommendations

Orders

  1. Within four weeks of the date of this determination, the landlord is ordered to pay the resident:
    1. £600 compensation for its failure to appropriately respond to her reports of a leak within her property.
    2. £300 for its ineffective complaint handling.
  2. Within four weeks of the date of this determination, the landlord should:
    1. carry out a post-inspection of the resident’s property to determine what remedial works remain outstanding. It should outline how it intends to make good any damage identified, and it should evidence completion of the works by taking photographic evidence.
  3. Within 8 weeks of the date of this determination, the landlord should:
    1. provide the resident with an apology from a senior director and arrange for a senior management review to be conducted into this case to identify any additional learning and improvement, and report to this service the outcome.
    2. create an action plan to demonstrate what improved processes and/or staff training it will implement to ensure it is capturing and recording comprehensive repair records when fulfilling its repair obligations.
  4. The landlord is ordered to provide evidence of compliance of the above orders to the Ombudsman.

Recommendations

  1. The landlord should review its complaints handling staff training to ensure its procedure is fully understood and to ensure the correct Ombudsman details are included in its responses.