Birmingham City Council (202009260)

REPORT

COMPLAINT 202009260

Birmingham City Council

24 March 2021

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 request to replace the kitchen.

Background and summary of events

The tenancy conditions

2. The tenancy conditions set out the responsibilities and obligations of both the resident and the landlord. In relation to the landlord’s obligation to repair, it provides:

“3.2 We will keep in repair the structure and exterior of your home (including drains, gutters and external pipes).

3.3 We will keep in repair and proper working order the installations in your home for the supply of water, gas and electricity and for sanitation (including basis, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity.

3.4 We will keep in repair and proper working order the installations in your home for space heating and heating water.

3.11 We have no responsibility to install, extend or improve existing:

• Ventilation
• Heating
• Insulation
• Internal plasterwork
• Electrical appliances and fittings within your home, unless we are required to do so to abate a statutory nuisance or to satisfy any statutory provisions.

3.12 We are not responsible for condensation or the effects of condensation, unless it arises from a breach of our repairing responsibilities or as a result of a statutory repairing obligation.

3. The tenancy conditions provide that the resident is responsible for repairing “surface damage to internal plasterwork” (7.2); and that the resident must also take reasonable steps to avoid moisture building up (condensation) within the property and causing damage (7.5).
4. The tenancy conditions lists items that will be provided at the start of a tenancy, but are the resident’s responsibility for repairing or maintaining. This includes sealant around basins, baths, showers and kitchen work surfaces (7.3).

Summary of events

5. The resident is a tenant of the landlord, and the tenancy began in January 2018.
6. The resident emailed her councillor on 7 July 2020 to request help with her kitchen. She said that she had requested repairs to the kitchen several times before for issues related to damp and mould. She added that the kitchen units were “unfit for use”. The resident said that the repairs had not been done to her satisfaction and contributed to an “unsafe environment for [her] and [her] children”. She attached pictures of damp and mould and contended that this, and deteriorating sealant coming away from the kitchen sink, made the kitchen unsafe.
7. The resident stated that the age of the kitchen cabinets made them unfit for modern appliances as they did not fit and there was no cabinet high enough to prevent her child, who had additional needs, from reaching it. She requested that an inspection of the kitchen be carried out and remedial work carried out to modernise it and bring it into statutory compliance. The councillor referred the matter to the landlord who raised it as a stage one complaint.
8. The resident sent the landlord further correspondence, and the landlord’s Contract Works Officer visited the property on 28 July 2020 to inspect the kitchen.
9. The landlord issued a stage one complaint, via the councillor on 29 July 2020. It said:
   1. that its technical officer had investigated the matter and it was able to advise that the property was a post-1974 house. The landlord explained that it had approximately 60,000 properties; however, owing to budget constraints it was not possible to issue investment work for the full housing stock in any one year.
   2. to make sure it was carrying out programmes to properties with the “highest priority” it had a team who was carrying out stock condition surveys on a rolling. The team was currently targeting older housing stock as those had the poorest kitchen layout and flooring. However, the next phase was to concentrate on pre-war properties, and they would be followed by early to late  post-war properties.
   3. it acknowledged that the situation was frustrating; however, it aimed to upgrade those properties “most in need as far as possible with the funding available”.
   4. when the resident’s property was due to be surveyed, she would be notified and would have the opportunity to arrange a convenient appointment. As the surveys were planned in advance, it was not possible to carry out surveys on request.
   5. the technical officer had reviewed the photographs and noted some “minor mould spotting evidence to the kitchen sealant and hinge areas”. It explained that the replacing of the sealant was her responsibility under the tenancy conditions; and that the mould spotting could be removed with a mild fungicidal or bleach-based solution.
   6. the repairs service would maintain the property and any repair issues could be raised accordingly.
   7. if the resident’s child had specific needs due to a medical condition, these would be best considered through an occupational therapy assessment. Details were provided accordingly.
10. The resident replied to the landlord on 29 July 2020 to question the source of its information. She said that the officer who had visited the property said that he “did not see” why the landlord would not replace the kitchen. The resident added that her neighbours and the previous tenant had told her that the kitchen was 44 years old and she therefore disputed that it was targeting older properties first.
11. The landlord responded to the resident on 25 August 2020 to relay that it had spoken to the staff member who attended the property on 28 July 2020. The landlord said that he had disputed the resident’s comments. The landlord added that he had advised that the kitchen units were “in a reasonable condition and did not warrant any repairs at present”. The landlord noted that one repair was required to provide a new shelf to the sink base and advised the resident to report this repair “in the usual way”.
12. The landlord stated that there was adequate storage in the kitchen but acknowledged that there was discussion over a wall unit which had previously been removed. It concluded that this had been removed as a non-standard item prior to the resident moving in. The landlord stated that the kitchen was not 44 years old, as the units in place were not available then, and was “more likely completed when the property was void”. It advised that its policy was to repair items until it became unviable to continue doing so. The landlord confirmed that this was its final response.
13. The resident responded to the landlord later that day to contend that the staff member was not being truthful and had agreed with her that the kitchen should be replaced. She maintained that the kitchen was in fact 44 years old which she had confirmed with her neighbours.
14. The landlord emailed the resident on 2 September 2020 to confirm that the complaint had exhausted its internal complaints procedure; but that she could refer the matter to this Service if she remained dissatisfied.

Assessment and findings

15. The landlord’s obligations under the tenancy agreement are to carry out certain repairs, as detailed above. There is no obligation on the landlord within the tenancy conditions – or otherwise – to carry out improvements within a property.
16. When a landlord receives a report of a repair its first response should be to inspect the issue and carry out remedial works if appropriate. From the evidence that has been provided to the Ombudsman, the landlord appropriately inspected the property in response to the resident’s initial report. With the exception of the new shelf to the sink base, no repair issues – that were the landlord’s responsibility – were identified.
17. The landlord acknowledged the resident’s concerns about mould spores and the kitchen sealant, and appropriately advised her that these were her responsibility to repair under the tenancy conditions. In addition, the landlord provided the resident with advice about how to treat the mould. This was appropriate. As well as the appearance of the kitchen, the resident had raised concerns about safety and her child’s ability to reach things within the kitchen owing to the height of the units. Reference was made to her child having additional needs. In response, the landlord appropriately explained that if any adaptations needed to be made it would be necessary for an occupational therapy assessment to be undertaken. The landlord provided the resident with information about this, if she wished to make further enquiries.
18. In relation to the installation of a new kitchen, the landlord explained its plan with regards to improving properties, but added that the kitchen was in a “reasonable condition” overall. The landlord reached this conclusion based on the comments of its Contracts Works Officer who visited the property. To reach a conclusion about the condition of the kitchen and/or its units falls outside of the Ombudsman’s remit. However, the landlord was entitled to rely on the opinion of its Contract Works Officer. Furthermore, as detailed above, there is no obligation on the landlord to carry out improvements, only to repair. The landlord explained to the resident during the course of the complaints procedure that it will carry out repairs until such a time that they are considered unviable.
19. It is acknowledged that the resident disputes the conclusion that has been reached by the landlord. The resident also informed the landlord that the Contracts Officer who had visited the property on 28 July 2020 was in agreement with her about the condition of the units, and had described them as “disgusting”.
20. In response to the resident’s comments that the officer had been in agreement with her about the condition of the units, the landlord investigated the matter internally. This was a proportionate step to take in the circumstances. From the evidence that is available, it was appropriate for the landlord to maintain its position and confirm its original conclusion when it issued its stage two response to the complaint. 
21. It is noted that some discussion took place regarding storage within the kitchen. Whilst the landlord advised that it considered there to be “adequate storage facilities within the kitchen”, it could reasonably have provided the resident with advice on how she could make improvements herself; and the process that would have to be followed. Furthermore, it would have been reasonable to provide the resident with more information about the age of the kitchen – for example, when its records show that it was installed – and a likely timescale for its replacement. That the landlord did not provide the resident with such information was a shortcoming in the circumstances.

Determination (decision)

22. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s request for it to replace her kitchen.

Reasons

23. The landlord appropriately inspected the kitchen in response to the resident’s reports and found that it was in a reasonable condition overall. This was in line with its obligations under the tenancy conditions.
24. In response to the specific concerns raised by the resident, the landlord provided appropriate advice about her repair responsibilities and what steps she could take if she considered that her child required an occupational therapy assessment.
25. The landlord could have provided the resident with more information about carrying out improvements herself, and the likely timescales for improvement works at the property. The landlord could also have advised what its records show in relation to the kitchen installation and when it was likely to have been undertaken. That such information was not given was a shortcoming in the service provided.

Recommendations

26. Within four weeks of the date of this determination, the landlord should write to the resident to confirm the age of the kitchen, provide more information on when she may expect a kitchen replacement, and advise her of her options should she wish to carry out improvements to the kitchen.