Birmingham City Council (202233239)

REPORT

COMPLAINT 202233239

Birmingham City Council

28 June 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 reports of leaks into his property and anti social behaviour (ASB).
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident is a secure tenant of the landlord, the tenancy began on 12 September 2016. The resident lives in a 1 bedroom ground floor flat in a block with communal areas. The property directly above is also owned and managed by the landlord.
4. The resident disclosed to the landlord he was “struggling” mentally throughout its investigation, the landlord was also made aware of historical substance misuse by the resident. As no support was in place at the time of the landlords investigations, a referral to adult social care was made in June 2023 with the residents consent.
5. The landlord’s records show a neighbour dispute which dated back to October 2021. The dispute was between the resident and the neighbour in the property directly above, for ease in this report the neighbour will be referred to as neighbour A. The historic ASB can be described as noise and harassment type behaviour where there is not 1 clear perpetrator.
6. The resident contacted the landlord on 3 May 2022 to report noise from the neighbour above, the landlord had noted this to be “domestic noise”. The resident later reported an additional issue of leaks coming into his property from the flat above on 19 May 2022, which he believed was being caused on purpose by his neighbour. No further reports of leaks were made until 26 August 2022, although the resident told the landlord he had about “25 – 26 leaks in his bathroom” up to that point. On this occasion the leak had affected the residents lighting, he later stated to the landlord on 30 August 2022 that it had “been a year since he had lights”. The landlord struggled to gain access to the property above to complete the required repairs until neighbour A was decanted out of the property and subsequently moved in June 2023.
7. The resident contacted the landlord on 28 September 2022 to complain that he had reported numerous leaks from the above property and nothing had been done. The landlord’s system notes detailed neighbour A as not cooperating in granting access.
8. The landlord provided its stage 1 response on 28 October 2022. Within this response it apologised for the fact the resident was experiencing the leaks. It detailed the notes from a recent works order to rectify the leak which stated the property above needed to be “cleaned up” for works to be carried out.
9. The landlord received the residents request to escalate his complaint on 24 January 2023. The resident informed the landlord he had recorded “26 more leaks” between 12 September 2022 and 2 November 2022. He advised he had been told that his neighbour had caused the leaks “intentionally” and in total there had been over 80 leaks he had recorded on video. He stated he had lived in a damp environment with no lighting for over a year and a previous complaint had been closed with no contact or acknowledgement from the landlord.
10. The landlord did not escalate the resident’s complaint and provided a further stage 1 response on 18 May 2023 after being contacted by the Ombudsman. It advised in this response that it planned to take legal action against the neighbour and obtain an emergency injunction. It also stated that the initial stage 1 response issued on 28 October 2022 did not provide relevant information allowing the resident to move to the second stage of its complaints process, it therefore treated this response as stage 1.
11. The resident requested a stage 2 review on 3 June 2023, which the landlord acknowledged on 5 June 2023 and provided a final response on 1 August 2023. Within its final response the landlord confirmed the resident’s bathroom light had been cleaned and restored. It said its only concern had been to clean both properties and “work towards establishing peaceful living environments for both parties”. The landlord advised it had a responsibility to both parties and whilst neighbour A had breached his tenancy, the landlord found “retaliatory acts between two opposing parties to be a fairer assessment of the matter”. It said it had decided to not proceed with court action against neighbour A as recent developments had “averted the need for an injunction”. It apologised for any disappointment the decision may have caused and apologised for the slow progress and lack of communication when the resident initially raised concerns. It had given the resident a compensation claim form for recording damage to personal items and personal injury.
12. The resident requested the Ombudsman investigate his complaint on 15 August 2023. He requested the landlord to make good the repairs to his light and that it environmentally cleans his airing cupboard. He would also like the “mounds of soil at the bottom of the waste pipe in said cupboard to be tested for pollutants, as per environmental health and safety”.

Assessment and findings

Scope of the investigation

13. It is acknowledged that the resident had been reporting ASB prior to making a formal complaint, the landlord has provided evidence to show a long standing neighbour dispute between the resident and neighbour A. However, the matter was not subject to the landlord’s internal complaints procedure until 28 September 2022.
14. The Ombudsman considers that the landlord deemed the resident’s complaint being made on 28 September 2022 as the start of its complaint process. This report has therefore focussed on the events that occurred from April 2022 onwards. This is in accordance with the Ombudsman’s Scheme, operated at the time, which stated that the Ombudsman will not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising.
15. Evidence has been seen which suggests the situation has directly impacted the residents wellbeing. The Ombudsman does not doubt the resident’s comments. However, it is beyond the authority of the Ombudsman to make a determination on whether there was a direct link between the complaint and the resident’s physical or mental wellbeing. The resident therefore may wish to seek independent advice on making a personal injury claim if he considers that his health has been adversely affected by any action or lack thereof by the landlord. Whilst we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident reports that they experienced because of any errors by the landlord.

The landlord’s response to the resident’s reports of leaks into his property and anti social behaviour (ASB).

16. In accordance with the Landlord and Tenant Act 1985, the landlord is responsible for maintaining the structure of the building, keeping all fixtures and fittings for the supply of gas, electricity, heating and hot water in repair and in proper working order. Once on notice, the landlord is required to carry out the repairs or works it is responsible for within a reasonable period of time, in accordance with its obligations under the terms of the tenancy agreement and in law. The law does not specify what a reasonable amount of time is; this depends on the individual circumstances of the case.
17. From the records provided the landlord attempted to access the flat above 5 times between the resident reporting a leak on 28 August 2022 and 16 September 2022 without success. On one of these occasions, neighbour A answered the door but refused access, the landlord was able to see the property was in an “unhygienic condition” and continued to pursue access by making a further attempt to access by appointment. Whilst it is appreciated the need for sensitive, compassionate and reasonable handling of the resident’s neighbour, there has been no evidence presented to the Ombudsman that the landlord considered any proactive action to gain, or enforce by means of legal action access to the property above from 16 September 2002 up to 2 March 2023. The resident advised the landlord had attempted entry again on 2 March 2023, this time with the fire service, but was still not granted access.
18. During this time, approximately 5 months, the resident described experiencing 80 leaks in his property due to neighbour A. When the landlord received reports of the leaks into the resident’s property, its repair records show it did attend on each occasion. The landlord recorded 11 works orders raised between 2 May 22 and 26 June 2023, all of which were completed within 1 or 3 working days, demonstrating it responded as per the priorities detailed in its repair policy. However, it is not clear what works were required at, or following each visit. Therefore, it is not evident that the landlord took the necessary steps to make safe the resident’s property within its target timeframe and take the necessary actions required to provide an enduring repair to the leak and make good the resident’s property.
19. Furthermore, evidence shows the situation started to escalate in March 2023 with the resident advising he had contacted environmental health due the “overwhelming stench of excrement coming from the flat above”, he did not feel his property was habitable and, neighbour A continued to “pour liquid, often urine” down his windows. No evidence has been seen to show the landlords response to this statement, which is not acceptable.
20. The landlord stated in its stage 1 response on 18 May 2023 that it intended to begin legal proceedings against neighbour A, but no evidence has been seen to support this statement. Internal emails in June 2023 show the landlord acknowledging the situation had potential for “rapid escalation” but also saying the situation was “six of one and half a dozen of the other”. This demonstrated a negative bias toward the resident and was not appropriate. Whilst the landlord failed to gain access to the property above, the resident continued to report leaks and the neighbour dispute escalating. Its complaint response on 1 August 2023 said it accepted the neighbour to be in serious breach of the tenancy, but it found that “retaliatory acts between two opposing parties to be a fairer assessment of the matter”. Evidence was provided that the landlord had witnessed what it said “looked like urine” being stored in the property above in September 2022, therefore it should have acted with more urgency to the resident’s reports, if it had done so, the escalation of the ASB could have been avoided.
21. The Ombudsman considers that, apart from being entirely unpleasant, urine being poured out of another individual’s property onto open windows is a defined hazard under the HHSRS. Within his communications to the landlord regarding the stench of excrement, the resident clearly stated that it was seriously affecting his health. Such a concern would undoubtedly have had a serious detrimental impact on the resident. The reported continual behaviour of neighbour A and lack of communication by the landlord cannot but have added to the resident’s distress surrounding the matter.
22. In this case, opportunities for an earlier resolution were missed due to a lack of oversight, cohesion and accountability between departments of the landlord. Specific examples include internal emails from February 2023 show the repairs department stating to a housing officer that more “stringent action may be required” to gain access. Another example was the landlord ‘recategorising’ the issue as a “housing management issue not repairs” on 10 May 2023. It is not clear what actions the landlord took leading up to or following this, or if this was an agreed action between different departments. It is however, not disputed that follow up actions were not undertaken in a timely manner following repeated no access to the flat above. This resulted in further avoidable delays and distress, extending the adverse impact on the resident.
23. In correspondence seen by the Ombudsman, there is evidence of the resident repeatedly contacting the landlord to report further issues and chase action, with little or no communication back from the landlord which is not reasonable in the circumstances. As repairs were required to another property but directly affected the resident’s property it would have been reasonable for the landlord to keep the resident updated on progress. No evidence has been seen that the landlord kept the resident informed on the progress of the issues with access from the property above and its plan of action to make sure it could carry out the repairs needed until June 2023. This was likely to have caused significant distress and inconvenience to the resident and it is evident that he also needed to spend time and trouble pursuing a resolution, and updates from the landlord himself.
24. Overall, the landlord failed to proportionally balance the need for agreed access to carry out repairs against taking appropriate formal legal action against the unreasonable behaviour of another resident and their failure to provide access as per the their tenancy conditions. It failed to provide any timely response to the resident who was experiencing ongoing leaks throughout and there is no evidence that the landlord explored ways to resolve the situation for the resident until 12 June 2023, when it offered temporary accommodation. The resident raised his complaint in September 2022 and the leaks were not resolved until June 2023, this period of 9 months is an unreasonable and avoidable delay. Taking all the above factors into account, a finding of severe maladministration has been made.

The Ombudsman has also considered the landlord’s complaint handling.

25. The landlords “your views” procedure defines a complaint as “an expression of dissatisfaction. It can be about the standard od a service we have provided, or actions we have, or have not taken, which affect someone using our services”.
26. The resident clearly was unhappy with the lack of action and communication by the landlord on 28 September 2022 stating, “nothing has been done”. Although the landlord responded to this as a complaint, no evidence has been seen to show this was acknowledged to the resident until it issued its response on 28 October 2022. Furthermore, its response was inaccurate, it requested the resident give an update on the cleanliness of his bathroom, but the information contained within was relating to the property above requiring cleaning prior to repairs taking place, not the residents. This caused the resident further frustration and distress whilst still continuing to pursue a resolution.
27. In an update to the Ombudsman, the landlord has acknowledged the residents concerns on 2 December 2022 were dealt with under the ASB process and not its formal complaint process, so it did not record an escalation of the resident’s complaint at this time. Although, evidence has been provided that it recorded acknowledging a request to review the complaint on 26 January 2023. Following this, it failed to provide a stage 2 response as per its policy, which is not appropriate. Furthermore, the landlord failed to look into this when it reviewed the resident’s complaint, failed to investigate what had gone wrong and failed to apologise for any service failures in its complaint handling within its responses.
28. It is not clear when the landlord recorded the resident’s subsequent complaint, as numerous expressions of dissatisfaction were made but it would be reasonable to conclude it did so following contact from the Ombudsman on 3 May 2023. This prolonged the process for the resident to seek resolution and would have caused an extended period and elevated level of distress and inconvenience.
29. In accordance with the landlord’s “your views” procedure, it is required to respond with its stage 1 complaint response within 15 working days. When a complaint is escalated to stage 2 it is to respond within 20 working days. The landlord did not follow its policy in responding to the resident’s complaint once recorded at stage 2, it took 44 working days to provide its final response and no evidence has been seen to show the resident was kept informed of this delay and the reason why. The landlord also failed to apologise for this in its final response.
30. The Ombudsman must consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
31. In this case the inadequacy of the early stages of the complaint process caused the resident significant time and trouble pursuing the matter through a multi-stage process. The landlord did not evidence an adequate investigative approach or acknowledgement of its own failings. It failed to follow its complaints policy and respond to the resident when he requested a review of his complaint, despite acknowledging this request on 26 January 2023. It took the involvement from the Ombudsman for the resident’s complaint to be progressed. There was no independent review of the resident’s complaint at stage 2, the same officer responded at stage 1 on 18 May 2023 and stage 2 on 1 August 2023 which is not in line with Ombudsman guidance. The landlord failed to offer any form of redress to the resident for its service failures, again which is not in line with Ombudsman guidance. Taking the above into consideration a finding of severe maladministration has been made.

Wider investigation

32. The Ombudsman issued a special report on the landlord in January 2023 after concerns about the landlord’s complaint handling and compensation. The report made numerous recommendations to the landlord. Some of the issues identified in this case are similar to the previous cases in the review and so the learning from this complaint should be incorporated into the wider learning. We have not made any orders or recommendations as part of this case, which would duplicate those already made to the landlord as part of the special report.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in relation to its response to the resident’s reports of leaks into his property and anti social behaviour (ASB).
34. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in relation to its complaint handling.

Orders

35. The landlord is ordered to:
    1. Provide an apology in person by a senior officer at director level to the resident for the failures identified in this report.
    2. Pay the resident directly, in total £2000, to include:
       1. £1000 for the failures identified in its handling of the residents reports of leaks into the property, ASB and its adverse impacts upon the resident.
       2. £1000 for the identified failures in how it handled the resident’s complaint and its adverse impacts upon the resident.
36. The landlord should provide evidence to this service that it has complied with the above order within 6 weeks of this determination.

Recommendations

37. It is recommended the landlord update the information on its website to be inline with its new complaint policy.