Birmingham City Council (202008235)

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REPORT

COMPLAINT 202008235

Birmingham City Council

2 July 2021


Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case. 

The complaint

  1. The complaint is about the landlord’s response to the resident’s request for compensation for personal injury and damage to personal items resulting from a leak caused by roof works.

Determination (jurisdictional decision)

  1. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme.

Summary of events

  1. The resident is a tenant of the landlord and occupies a two-bedroomed flat on the 11th floor of a 13-floor building.
  2. The resident experienced water ingress into her property from above on 27 August 2020 as part of roof refurbishment works by the landlord. It attempted to access the property to assess the extent of the ingress on the day but was unable to complete an inspection.
  3. After the resident called the landlord on 28 August 2020, the landlord visited the property on 1 September 2020 to provide her with claim forms. It arranged for a decorator to attend the following day with instruction to “paint whatever the resident wanted painting”.
  4. On 3 September 2020, the resident submitted a compensation claim for personal injury and damage to personal belongings to the landlord. In this she detailed sustaining an injury from falling in her kitchen due to the floor being wet and listed damage to carpets and linoleum, wallpaper, paintwork, a vacuum cleaner, and a phone charger. The claim form specified that any damaged items should be retained until the claim was settled and requested receipts for any items claimed for. The resident attributed the water ingress to a leak from roof works being carried out by the landlord on 27 August 2020 and therefore held it responsible for the damage to her possessions and her accident.
  5. The resident raised a stage one complaint with the landlord on the following day in which she repeated her assertion that it was responsible for her accident and the damage to her decoration and belongings. She said that it had attended to her neighbours within 24 hours but took six days to visit her.
  6. The landlord acknowledged the resident’s complaint at stage two of its complaints procedure on 11 September 2020. It advised her that compensation was only payable if there was “evidence of negligence, or legal liability [was] accepted”, therefore further investigation was required, and it would aim to respond to her within 30 days.
  7. The landlord visited the resident’s property on 22 September 2020 to carry out an inspection. Its subsequent report confirmed that it did not dispute that there was water ingress into her property from above but it considered that the damage was “minor in comparison”. The landlord noted that there was evidence of water ingress but could not determine exactly the extent of the damage due to historical leaks. It did not identify any damage to the kitchen floor covering nor any water damage to the hallway and living room carpets.
  8. The landlord noted that the condition of the wallpaper in the rooms reported by the resident showed signs of general or excessive wear and tear, except the hallway which showed signs of the paper drying out and lifting. It recommended that this wallpaper be re-stuck down and it would consider the painting of one of the walls. It recorded that the vacuum cleaner the resident reported as damaged was in working order, and she had since disposed of the damaged phone charger she had claimed for. The resident did not provide any receipts at the time of the visit for any of the items in her claim.
  9. The landlord did not uphold any elements of the resident’s claim for compensation but noted that the kitchen and bathroom were due to be replaced in due course by its capital works team.
  10. The landlord issued a response from its legal department on 1 October 2020 in which it said that it had previously requested a “full list of items damaged, with photographs, and the cost of repair or replacement” but it had not received this from her. It referred to its visit on 22 September 2020 where it had observed that the damage from the water ingress was “not great”. The landlord informed the resident that this damage would be completed at no cost to herself. It asserted that there was no evidence of any damage to floor coverings or her vacuum, and she had not provided evidence of damage to her phone charger.
  11. The landlord considered that there was no evidence that sufficient water entered the property to cause the resident to slip or fall and therefore did not offer compensation for injury. It added that for further consideration of compensation for injury it would need her full medical history and instruct a medical examination.
  12. The resident emailed the landlord on 23 October 2020 to escalate her complaint. It issued a response to her later that day to confirm that there was no further right to appeal and its response on 1 October 2020 was final.

Reasons

  1. Paragraph 39(i) of the Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion: “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
  2. The resident’s complaint is essentially about her claims for compensation for damage to her belongings and personal injury, which she considers the landlord to be liable for. The resident is dissatisfied with the landlord’s refusal to settle her claims and pay compensation.
  3. This Service is unable to determine liability for such matters as we do not have the authority or expertise to determine liability for damages or to award damages in the way that a court might. Therefore, it would be quicker, fairer, more reasonable, and more effective for the resident to seek a remedy to her complaint through the courts, or through another tribunal or procedure (e.g. insurer), instead of the Ombudsman. For these reasons, the complaint is outside of the Ombudsman’s jurisdiction.