Birmingham City Council (202009576)

REPORT

COMPLAINT 202009576

Birmingham City Council

4 February 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 handling of the resident’s reports of damp and mould in his bathroom and about the condition of the bath/sink. 

Background and summary of events

2. On 12 August 2020, the resident’s MP contacted the landlord on his behalf. He stated that there had been mould present in the bathroom when the resident had moved into the property in May 2020 and that the problem had been reported to the landlord, but it had not been resolved. He asked whether the property had been inspected for mould before the property was let to the resident. The landlord responded the same day confirming that the property was inspected prior to letting and that work associated with damp/mould had been completed on 24 July 2020.
3. On 18 September 2020 the MP contacted the landlord again on the resident’s behalf referring to the mould problem and asking that the property be inspected again and that any mould found be treated. The landlord arranged an inspection for 22 September 2020. Following this visit, the MPs office contacted the landlord on 24 September 2020 to state that the resident had been told by the landlord’s inspector that they would not do the work to remove the mould. The resident was unhappy with this and wanted to make a formal complaint about it.
4. On 14 October 2020 the resident completed an online complaint form. He stated that he had had problems with damp and mould in his bathroom since the start of his tenancy in May 2020 and that decorating over the top of it would not cure the problem. He reported that his daughter, who has vulnerabilities, would not use the bathroom in that condition. His preferred solution was for the landlord to replace the bath and the sink and “remove infested plasterboard”. He received an auto-acknowledgement by return confirming that the complaint had been lodged and a response would be given within 15 working days.
5. In the landlord’s response of 4 November 2020, it stated that a site visit was needed to inspect the problem. However, its contractor had reported that it had tried to contact the resident on a number of occasions to arrange this, without success, and now needed to check whether a visit was possible under the lockdown rules which had recently been re-imposed. Consequently, the matter was “on hold” at present. The letter concluded that the resident could request a review if he remained dissatisfied with the action that had been taken.
6. The resident emailed back to say that no contractor had tried to contact him. The landlord therefore replied, asking whether the resident did, in fact, want a review and for the case to be re-opened to which he answered “yes please”. The complaint was therefore referred for review by the landlord the same day. It sent the resident an acknowledgement of his escalation request and stated that it would reply by 3 December 2020.
7. In the landlord’s revie response of 30 November 2020, it recorded its understanding that a site visit had now taken place. The outcome was that, in the landlord’s inspector’s view, the bath was fit for purpose and need not be replaced. Its inspector had taken protimeter readings which did not show any damp to the plasterboard below the bath line or to the timbers supporting the bath. The landlord noted that the readings had been shown to the resident at the time. Minor mould patches were witnessed between the pipework below the wash hand basin and had now been treated. It was already aware that the resident was not satisfied with this, but he should bear in mind that the conditions of his tenancy stated that if mould developed, it was his responsibility to remove it with a fungal wash. It confirmed that this concluded its complaints process.
8. The resident complained to this Service. The landlord was contacted, and in its response, it made the following representations.
   1. “The tenant would have viewed the property prior to accepting it and would have seen the condition of the bath/bathroom at that time.”
   2. “The resident has asked for the bath to be removed. It would not remove a bath unless it was damaged, or if an occupation assessment had been undertaken that identified that someone was unable to use the bath due to medical reasons. No faults with the bath have been identified.”
   3. “Mould is a common complaint, it does not mean that the property is damp. We often have to remind our customers about ventilating their homes, a copy of a leaflet entitled ‘controlling condensation and mould’ is attached. Mould is the tenant’s responsibility as referred to in the Conditions of Tenancy at 7.5.”
   4. “As can be seen from the inspection, protimeter readings were taken and the property was not found to be damp. Whilst (the resident) disputes this, we have to rely on the advice from professionals and their findings.”

Agreements, policies and procedures

9. The landlord produces a Customer Guide to Controlling Condensation and Mould to assist resident in understanding what causes condensation and mould and how to prevent/reduce it and/or treat it. The guide states: “To remove mould, wipe down or spray affected surfaces with a fungicidal wash that has a Health and Safety Executive approval number and ensure that you follow the instructions for safe use. Fungicidal washes are available in most supermarkets or DIY stores.”
10. The tenancy agreement and its conditions set out the legal relationship between the resident and the landlord. Those conditions set out the following:
    1. The landlord has no responsibility to install, extend or improve existing ventilation (clause 3.11);
    2. The landlord is not responsible for condensation or the effects of condensation unless it arises from a breach of its repairing responsibilities (clause 3.12);
    3. The tenant must take reasonable steps to avoid moisture building up (condensation) within the property and causing damage (clause 7.5).

Assessment and findings

11. This complaint raises three contested issues: whether the property was suffering from damp; who was responsible for dealing with any mould; and whether the bath and/or sink should be replaced. The resident takes the view that damp is affecting the property and specifically the timbers on which the bath is dependent. The landlord has taken meter readings and maintains that no damp was shown. The resident has not produced any evidence to demonstrate that the landlord’s assessment and/or readings were incorrect.
12. Whilst the resident clearly disagrees with the landlord’s position, it reasonable for the landlord to rely on the professional opinion of its suitably qualified employees and/or contractors, in deciding how to respond to a repairs request and any associated formal complaint. Accordingly, this Service is unable to conclude that the property is damp and the question of who would be responsible for resolving such an issue becomes irrelevant.
13. On the issue of mould, when the resident moved in, the landlord undertook some works to the bathroom, including redecoration. It states that these were completed in July 2020 but since then the resident has reported further mould growth. According to the tenancy conditions the resident is responsible for ensuring the property is properly ventilated to prevent/control the build-up of moisture and resulting issues (such as mould). This is the case unless the problem has been caused by the landlord breaching its repair responsibilities.
14. The landlord has arranged for appropriate inspections to be undertaken and no outstanding repairs were identified (by either the resident of the inspector). There is, therefore, no evidence in this case that such a breach of the landlord’s repairing obligations has taken place. As a result, it is reasonable to conclude that the mould is caused by moisture. Accordingly, it is this Service’s view that the resident is responsible for treating and managing it in accordance with the tenancy conditions and the guidance provided by the landlord.
15. It has been noted that by conducting works when the resident first arrived, the landlord has taken some responsibility for the situation, irrespective of whether it was obliged to do that work or not. The question of whether this amounts to any sort of admission on the landlord’s part about its obligations has been considered. Given the resident was new to the property, it was a reasonable response for the landlord to provide initial assistance to deal with problems at the start of the tenancy. However, going forward after that, it is reasonable for the landlord to rely on the tenancy conditions and enforce the tenant’s obligations.
16. With regard to replacement of the bath/sink, no evidence has been produced by the resident to show that the bath is not capable of being physically used (or is damaged), thus requiring its removal. Neither is there any evidence to show it (or the sink) are unfit for their intended purpose. Accordingly, this Service cannot find that the landlord’s service fell short by its refusal to replace these items.
17. In conclusion, the landlord has acted reasonably in dealing with the resident’s reports of damp and mould and on the question of replacement of the bath and/or sink.

Determination (decision)

18. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of its response to the resident’s reports of damp and mould in his bathroom and about the condition of the bath/sink. 

Reasons

19. There is no evidence of damp at the property to contradict the landlord’s assessment. There is mould at the property, but the tenant is responsible for the control of moisture build up and for dealing with the consequences of failing to ventilate the property. There is no evidence that the issue has been caused by repairs undertaken by the landlord. There is no evidence that the bath cannot be used or that the bath and/or the sink are not fit for their respective purposes.

Recommendations

20. The Ombudsman recommends that the landlord should, upon the resident requesting it, (and for his information to enable him to make informed decisions), provide him with a quotation setting out what it would charge him to (a) install a new bath and/or sink and (b) replace the plasterboard.