Birmingham City Council (202219688)

REPORT

COMPLAINT 202219688

Birmingham City Council

11 March 2024

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 damp and mould in the property.
   2. Related complaint.

Background

2. The resident held a secure tenancy agreement for the property, a 1-bedroom ground-floor flat in a house, from 2017 to 1 May 2022. The landlord is a local authority.
3. The resident reported damp and mould in his kitchen and living room in September and November 2020, but the landlord said there was no access granted to complete the repairs. Damp was reported again in July and November 2021. The resident said he wished to complain in February 2022 and some replastering work was undertaken. He said that the work in the kitchen was not allowed to dry properly before units were replaced, and that the repair was just masking the problem.
4. The resident said the stress of the delay in the repairs being completed forced him to give notice on the property. He had lost possessions including his sofa and clothes due to the mould and that his health had suffered. The resident claimed damages, but this was refused by the landlord in November 2022, when it said it had no knowledge of the repairs to the kitchen.
5. The landlord said it took no responsibility for the delays or repairs done by the contractor and it had been given no records from the contractor about the repairs. The Ombudsman asked the landlord to respond to the resident’s complaints in December 2022 and a stage 1 response was issued on 21 February 2023. The landlord said it would consider compensation, but no further contact was made before the Ombudsman requested a final response which was issued on 28 March 2023.
6. The landlord said that the resident had not allowed access, delayed the start date of repairs and was unavailable when appointments were made. It said that the property was found to be habitable before the tenancy and after the resident left, there was no evidence of rising damp and no further complaints had been raised.
7. The resident seeks financial compensation as the repairs to damp and mould were not completed when he was in the property and his possessions were damaged. He also wants an apology and to be re-homed to a new property.

Assessment and findings

Scope of investigation

8. The resident has said that the repair work affected his health, and his children’s health when they visited. The Ombudsman does not doubt his comments; but must clarify that it is beyond the expertise of this Service to decide on whether there was a direct link between the repairs at the property and his family’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if he considers that the family’s health has been affected by any action or lack thereof by the landlord. It is noted that this process was started in the past but did not proceed.
9. The evidence indicates that some events occurred between 2017 to 2019, however, this report has only assessed issues occurring since September 2020. This is in accordance with paragraph 42(c) of the Housing Ombudsman Scheme which states that “the Ombudsman will not consider complaints which, in his opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.” These have become historical and cannot reasonably be investigated at this time. Any mention of past events in this report would be solely for contextual purposes.

Damp and mould

10. The landlord’s Conditions of Tenancy booklet at page 5 describes ‘repairs partners’ as the landlord’s contractors carrying out housing repairs on its behalf. Section 3.3 says the landlord will keep in repair the structure and exterior of the resident’s home (including drains, gutters and external pipes). Section 3.12 says the landlord is not responsible for condensation or its effects.
11. Section 7.2 says the resident is responsible for surface damage to internal plasterwork. 7.5 says the resident must take reasonable steps to avoid moisture building up (condensation) within the property and causing damage. 7.22.1 says that the resident must allow the landlord access for inspection and repair.
12. The repairs policy document effective 2009, section 2.5, lists the items to be maintained in repair. This includes walls, damp proof course and membranes, skirting boards, kitchen units, and internal stores. Section 4.4 says routine repairs are to be completed in 30 days of being reported.
13. In this case, the landlord’s repair log shows that the resident had reported damp and mould initially on 24 September 2020. The repair log for 25 September 2020 says that the appointment was missed by the operative and the resident was unable to wait in for longer, so a new appointment should be booked.
14. The repair log for 5 October 2020 says that there was no access, and the property was carded at 1.30PM. Further notes by a different operative at 3.10PM say “damp in property front bay also roofer required to clear the gutters on bay first floor see photos of damp in property bay.” An entry by a third operative at 3.15 says “completed, clean out front gutter.” These later entries suggest that the property was attended by 2 operatives after the first reported no access.
15. The landlord later told this Service that it was unknown who at the contractor undertook the inspection and how or why they concluded that there was damp on the bay window and there was no evidence that the contractor then followed up the recommendations. They quoted a reference annotated “damp inspection at this property…issued 5 October 2020.” This also supports that access was granted on 5 October 2022.
16. The next log dated 9 November 2020 said that the operative failed to attend the arranged appointment between 8 to 11AM and that the resident could not wait longer as he had to go to work. Later landlord notes ask why the contractor did not simply rearrange this appointment with the resident at the time.
17. The resident reported a repair relating to his wet room floor on 28 July 2021, more than 8 months after the previous damp and mould report. An inspection was carried out on 8 December 2021 when it was noted that the job was booked in, but the contractor had missed the first appointment. It also stated that a second had been booked for 28 August 2021, but no one attended, yet the job was closed as completed.
18. The inspection said that there was no barrier between the wall and garden, Thus, as a preventative measure, a job would be raised to instal gravel around the bay. The inspection said contaminated plaster would also be hacked off in the living room and a localised area in the kitchen. It is noted that the resident asked for this work to start after Christmas. The repair log shows that the repair to the damp and mould was closed on 24 January 2022.
19. The resident contacted the landlord on 9 February 2022 as he had received a text for feedback and was told by the call centre that work to the wet room was complete, but it had not started. An internal landlord email noted that a sub-contractor had been on site on 18 January 2022 and that the contractor originally attended in August 2021.
20. The landlord raised a further repair on 9 February 2022 and asked that the job not be closed until the work was completed. The contractor advised the landlord the following day that the flooring operative had carried out a satisfactory repair to the wet room flooring. The contractor said they were going out to inspect that day, after which they reported that there was no problem with the flooring, but they had viewed the damp which in their opinion was a much more important issue.
21. In March 2022, a notice seeking possession of the property and arrears of over £4,500 had been obtained and suspended awaiting a compensation claim. There were previous notices seeking possession suspended in 2017,2018 and 2019.
22. Emails between the landlord and the contractor on 25 March 2022 show that the contractor felt the wet room floor was in good working order, but it had agreed to repair it. The contractor said it was unable to match the exact colour and the resident had wanted the whole floor renewed which was not required.
23. The resident informed the landlord on 31 March 2022 that the repairs to the kitchen had taken place the previous week, when the old plaster was removed, the kitchen tanked, and new plaster applied, all in 6 hours. He said the kitchen units were fitted on top of wet plaster and that it was not possible to treat damp in that time. He was giving notice as, in a few months’ time, the issue would be back. The landlord had, thus, forced him to leave due to the stress.
24. The resident said that he was unable to remove the smell of damp from carpet which he bought new when he moved in, and had to throw away sofa, sideboard, and various clothes, which he said totalled approximately £1,500. He also said he had been ill with chest infections for over 2 years and his children had been ill when they stayed at the property. He had lost money when he had been off sick from work and this led to him not being able to pay his rent some months. The tenancy ended on 1 May 2022.
25. A surveyor attended the property in October 2022 when a new tenant was in situ and reported that there was some damp in a utility cupboard and to the skirting board by the front door. They said that the damage was similar to that seen where there was localised heating and no ventilation. The surveyor said there were no defects which would render the property uninhabitable, but it would be improved by further works which were raised at that time.
26. In response to the resident’s claim for damages, on 25 November 2022, the landlord stated that the contractor had not responded to its request for information. It said it did not authorise the contractor to tank the kitchen or fit new units, which were not required, and it had no knowledge of this work. A further letter from the landlord said that, as it had not given permission for the work in the kitchen, the repairs were the responsibility of the contractor.
27. The landlord’s stage 1 complaint response on 21 February 2023 did not refer to unauthorised work in the kitchen. It apologised for the delay with the initial inspection, and for the resident having to re-report the repair. It said there was no evidence that the contractor gave the resident 48 hours’ notice of the appointment on 5 October 2020. It admitted that the living room repair reported on 30 November 2021 was cancelled in error. There was also no evidence of the removal of damp in the kitchen reported on 20 December 2021 until the job was closed on 18 February 2022, when it was recalled and then cancelled again in June 2022.
28. The landlord said that the resident should await further contact regarding compensation and this is discussed in more detail below. The Ombudsman prompted the landlord to issue a final response letter, which it did on 28 March 2023. The landlord said that it had responded and attended on 5 October 2020 when it established damp affected by an adjacent rainwater pipe. It said the resident did not grant access and did not respond to cards left by the contractor.
29. The landlord said it found damp by the cooker during its inspection of 8 December 2021, and planned to hack off and replace the plaster. Internal notes said that no compensation was awarded due to the repairs being responded to within agreed timescales and that there was no damp and mould in the property at the end of the tenancy.
30. The landlord is responsible for maintaining its housing stock. Its repairs service standards confirm that routine repairs should be dealt with within 30 working days. The landlord responds to repairs through third party repairs contractors but remains responsible for the timeliness and quality of repairs.
31. The landlord had previously told the resident that it was not responsible for work done by its contractors, in its letter of 25 November 2022. This was not correct but would reasonably lead the resident to believe he was unable to resolve the issues in his property with his landlord.
32. It is not known what effect the rent arrears and ongoing possession action would have had on the resident’s decision to vacate the property. The delay in the repairs being completed would reasonably have added to the resident’s distress. However, the repairs were finished by February 2022, some period before the resident gave notice. There is no evidence that the resident left the property wholly or mainly due to the delay in the repairs.
33. The resident mentioned possessions which were damaged by damp and mould but has provided no evidence of the items, or the damage and how and when caused, to enable this to be considered specifically. It is not reasonable for compensation to be included for these items without evidence that damage was caused, and if so, that it was the fault of the landlord and could not have been mitigated by the resident.
34. The Ombudsman cannot consider that the repair work to the kitchen may not have lasted, as the resident believed. We can only investigate how the landlord responded to issues reported to it, not matters which have not and may not occur in the future. That is not to say the Ombudsman does not appreciate the resident’s concern and the reasons for it.
35. The landlord’s surveyor visited the property after the tenancy ended and found no cause for concern in respect of the damp. There was no damp reported in the bay window area or the kitchen. This implies that the damp repair was successful, and the Ombudsman has no basis on which to come to a contrary finding.
36. In respect of the wet room flooring, it is noted that the resident wanted the floor replaced as the contractor was unable to get a colour match and had patched a repair. The resident’s preference for a new floor is understood but there is no obligation on the landlord to do this. The floor was inspected, and the work found to be acceptable.
37. It is noted that the resident had concerns about water from the shower running into the hall, but this was found to be because he was not using a shower curtain. The shower was tested with the curtain in place and was working correctly. There is no evidence to suggest that there was any further problem with the wet room flooring or shower beyond the delay in the repair.
38. The evidence shows that there was a delay between the damp being reported in September 2020 and repairs to the damp and wet room being finished in February 2022. This was a service failure by the landlord. The repairs were completed 16 months after they were first reported, when the landlord’s policy says that routine repairs should be completed in 30 days. It is noted that the resident initially asked to delay repairs over Christmas, which the resident has not disagreed with. This leaves a delay of 15 months which is the responsibility of the landlord.
39. There is a lack of evidence to support that the contractors were unable to gain access in the early months. The landlord has said it was unable to get information from its contractor, who it has since stopped working with. The initial complaint response said that the landlord had failed in this respect, therefore, its later findings that the resident had not given access are not compelling or supported by the evidence.
40. In this case, the repair log showed conflicting information and there was no firm evidence to support the no access claim. The evidence suggests poor liaison by the landlord with third party contractors, often taking a contractor response at face value rather than reviewing and challenging where necessary.
41. The landlord failed to accept responsibility for the work, at one point saying considerable work had been done for which it had no knowledge or responsibility. This was unacceptable and compounded the distress caused the resident’s by the events.
42. The Ombudsman is aware of changes since the Ombudsman’s special report on damp and mould. However, this complaint concerns matters prior to this, and the evidence shows that the repairs were handled poorly, with incomplete record keeping and poor oversight of the contractors by the landlord. The letters sent to the resident in respect of his personal injury claim were heavy handed and contrary to the landlord’s later acknowledgement of failings in the repairs’ handling.
43. In cases where there has been maladministration with no permanent impact, but the landlord has failed to acknowledge its failings, the Ombudsman will recommend a remedy of up to £600. In this case, the maximum of £600 would reflect the considerable delay in the repairs and the confusing and contradictory information given to the resident.

Complaint handling

44. The landlord’s Customer Guide says that stage 1 complaints are dealt with on the spot. Complaints will be responded to within 15 working days at stage 2 and stage 3 complaints will be answered within 20 working days.
45. In this case, the issue was not resolved ‘on the spot’ so there were effectively 2 stages of the internal complaints’ procedure available for the resident. No copies of the initial formal complaint have been provided by either party. However, it is clear from internal landlord emails dated 9 February 2022 that the resident’s intention was to submit a formal complaint. This is mentioned in the landlord’s witness statements dated 25 October 2022 and elsewhere.
46. Emails between the landlord and the contractor discuss complaints submitted by the resident on 21 February 2022, 25 February 2022 and 21 March 2022. It seems that these were sent to the contractor to respond to. Despite this, no complaint response was issued before the Ombudsman contacted the landlord and requested it contact the resident on 13 December 2022. No complaint response was issued, so the Ombudsman issued a failure order on 18 February 2023.
47. The landlord issued a stage 1 complaint response on 21 February 2023 which apologised for the delay in the response and the repair. It apologised that the resident was not given notice for an appointment and said that the landlord had identified mould at the property on 29 November 2021. It said that little consideration had been given to the resident’s wellbeing and that he was likely to have felt excluded from the process and suffered distress and inconvenience. The landlord said it had closed repairs in error, and it asked the resident to await contact in respect of compensation.
48. The Ombudsman told the landlord to make contact with the resident regarding compensation on 27 February 2023, so he could know how to proceed with his complaint. The landlord issued the final complaint response on 28 March 2023
49. The final response apologised for unavoidable delays and said that it challenged the claims that the damp and mould repairs did not take place when the resident was at the property. It said that an inspection carried out after the tenancy ended found the property to be habitable. It made no mention of the previous reference to compensation.
50. The stage 1 complaint response was issued more than a year after the landlord had noted that the resident had submitted a complaint. The landlord made no offer of a financial remedy in respect of this delay and has not done so since. The delay in the response would reasonably add to the resident’s distress. The landlord was aware from the resident’s email of 31 March 2022 that he felt he had to leave the property due to the stress caused by the delayed repair.
51. The final response indicated a change in the landlord’s attitude as it said it had not delayed in responding to repairs. It did not mention the previous position or explain why it had changed.
52. As covered above, the landlord was responsible for delays in the repair and this should have been resolved and acknowledged and a remedy offered in early 2022. The landlord has compounded the service failure by initially appearing to accept responsibility for the repair and delays, and telling the resident that it was considering compensation. There is no evidence that the resident’s complaint was logged, or that there was any system in place to manage the complaint.
53. Taking the above into account, it is fair in all the circumstances that the sum of £600 is paid to the resident to reflect the landlord’s failings in its complaint’s handling process. This is the maximum remedy for maladministration, whilst causing no permanent impact, adversely affected the resident and the landlord has failed to acknowledge its failings and made no attempt to put things right.
54. It should be noted that in line with the Housing Ombudsman’s approach, the remedy (and that above in respect of repairs) should be paid directly to the resident, not offset against any rent arrears.

Determination

55. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s repairs and the related complaint.

Orders

56. Within 4 weeks of the date of this determination, the landlord should pay the resident:
    1. £600 in respect of the repairs.
    2. £600 in respect of the complaint handling, to make a total of £1,200.
57. The landlord should provide evidence to this Service that the above orders have been complied with, within 4 weeks of this determination.