Birmingham City Council (202011032)

REPORT

COMPLAINT 202011032

Birmingham City Council

17 May 2023

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

The complaint is about the landlord’s handling of repairs to:
1. A leaking heating system at the property.
2. The presence of damp and mould at the property.
This Service has also considered the associated complaint handling.

Background

The resident has a tenancy agreement with the landlord.
This Service has previously investigated on issues relating to mould, heating and radiators at the property. Therefore, this Service will only be considering events which took place after that decision was issued in July 2020.
According to evidence provided by the landlord, the resident raised a complaint on 30 September 2020. Between September and December 2020, the resident contacted the landlord explaining that it had attended the property on two separate occasions without an appointment. The resident also stated that during one of those occasions, the person attending was told by the landlord not to complete any repairs as it was the responsibility of someone else. The landlord also recognised that additional work was required to identify the cause of the damp and mould.
On 30 November 2020, the resident submitted a claim for compensation from the landlord. This form set out the resident’s dissatisfaction with the landlord’s handling of reports of mould at the property, referring to a lack of action following this Service’s involvement. The resident detailed the impact this was having on their health. The resident stated that the mould was causing “asthma attacks, chest infections that lead to getting sepsis” and the subsequent anxiety it had caused. They explained they had been in hospital for over six months and saw improvements in their health, but this deteriorated after returning to the property. The resident also mentioned having a “weak” immune system.
The landlord provided a response in December 2020. This stated that it had found “…no evidence of negligence…” and it would not be making a compensation payment. The landlord directed the resident to the conditions of the tenancy, it stated that “…if mould growth starts to appear then it should be removed with an antifungal solution. Mould occurs when moisture builds up and it is not removed in a timely manner.”
On 28 December 2020, the resident contacted this Service. The resident stated:
1. The landlord had been at the property, but not for the required repairs relating to damp and mould.
2. The damp and mould had appeared in the resident’s bedroom, rendering it uninhabitable due to the impact on their health.
3. The landlord needed to identify what was causing the damp and mould and repair it.
4. The boiler was leaking and required regular resetting, due to the pressure dropping.
5. The damp was starting to impact belongings – the bed and wardrobe.
6. The landlord still owed compensation, following this Service’s previous investigation.
This Service contacted the landlord on 25 January 2021 and requested that it contact the resident to resolve the complaint.
The resident wrote to this Service on 10 September 2021, confirming they had not heard from the landlord. This Service contacted the landlord on 22 November 2021 requesting it to provide a written response to the resident.
The landlord responded to the resident on 23 November 2021. It stated that it had received correspondence about a “past complaint” regarding damp and mould and a leaking heating system. It also provided information regarding its internal repair log, specific to the issues raised. The correspondence stated:
1. “Damp/mould. The last report is dated 19 October 2020 and a repair completed on 27 November 2020. No repairs have been or remain outstanding on this matter.” It also repeated the information regarding the conditions of the tenancy and that residents are expected to use an “antifungal solution” to treat mould.
2. The landlord had reviewed repairs from January 2021 onwards. It had identified a fault in May 2021, attended the same day, ordered components and installed them in June 2021. There had been no further reports since May 2021.
To resolve the complaint, the resident requested compensation and for the repairs to treat damp and mould to be carried out to a satisfactory standard.

Assessment and findings

It is important to note that this Service has not considered any issues raised by the resident which were addressed in the Ombudsman’s previous investigation, including the associated compensation. Although the previous investigation provides context for the current complaint, we have now looked at events which took place after the decision was issued, in July 2020.

The handling of repairs relating to a leaking heating system

The landlord’s repair policy states “(4.2) Emergency repairs – This type of repair applies where there is a danger of injury or damage to the property. The repair service provides for a 24-hour a day, 7 days a week, 365 days a year emergency repair service for repairs where response is required within 2 hours of the instruction being issued to the repairs partner.”
The landlord has provided evidence to show that the leaking heating system was reported on 24 May 2021 and was categorised as a ‘same-day’ repair. Following an assessment of the issue, the landlord identified a replacement part was required and subsequently ordered. The part was fitted on 1 June 2021 and the repair was marked as ‘complete’.
In identifying it as requiring a ‘same-day’ repair, the landlord had an obligation to act within the timescales set out in its own policy. The repair log shows action was taken to identify the cause of the issue and provide a solution. It is not always possible to complete a repair in one visit and further visits may be needed as in this case where a part had to be ordered, leading to an unavoidable delay. Although the repair was not carried out on the same day, this Service is satisfied the landlord acted fairly and in line with appropriate policy when dealing with the leaking heating system. Given there were no reports of a leaking heating system prior to or after the report on 24 May 2021, it is reasonable to assume this issue was resolved at the time.

The handling of repairs relating to damp and mould at the property

The landlord’s repairs policy states that:
1. “(3.1) The tenant is responsible for reporting to the City Council (or their agent) any repair that is needed to the property for which the City Council is responsible.”
2. “(4.4) Routine repairs are targeted to be completed within 30 days of them being reported. There are some larger repairs that may need special materials and arrangements to be completed. In these cases the tenant shall be advised what timescale to expect.”
The repair log provided to this Service shows that the only report of damp and mould was made and recorded on 19 October 2020. This was categorised as a ‘routine repair’. In doing so, the landlord should have resolved the issue within 30 days, as per the policy; however, it took a total of 42 days to mark the issue as ‘complete’ and, therefore, did not meet its response time obligation.
The repair log does not state what action was taken to repair the damp and mould issue; therefore, the landlord has not shown evidence it had been repaired correctly. The fact that the resident continued to report issues with damp and mould after the completion of the requested repair suggests that any repair was not successful.
Although the resident did not report further damp and mould directly to the landlord after 2020, they did raise a complaint with this Service about it. This would have made the landlord reasonably aware that there was a continuing issue with damp and mould which needed to be addressed. The onus was then on the landlord to contact the resident to clarify the issues raised in the complaint and take appropriate steps to investigate and resolve the damp and mould.
The repairs policy also states:
1. “All responsive repairs shall be carried out by appointment. Tenants shall be offered an appointment (a.m. or p.m. or avoiding school run or all day) at the time the repair is reported. In the cases where an inspection to diagnose the repair is required then an appointment for this inspection shall be given at the time of call.”
The resident has said they were not able to allow access to the landlord to carry out repairs on some dates due to medical appointments. Whilst the resident had legitimate reasons for not allowing access to the property, the landlord would not be at fault for delays this caused. However, the resident stated that on more than one occasion the landlord had attended the property without an agreed appointment. In doing so, it went against its own policy which requires ‘all responsive repairs to be carried out by appointment’. Residents are not expected to be available to allow access without a pre-arranged appointment. Therefore, some delays were due to lack of access were caused by the landlord and this was a failing in its repairs service.
This Service acknowledges that the landlord arranged an appointment to visit the property on 18 May 2022, which was not successful as the resident did not provide access. It has also identified an appointment had been arranged for 1 December 2020.
To resolve the issue the landlord provided the resident advice in its complaint responses, referring to the conditions of tenancy. It stated:
1. “Your Conditions of Tenancy reminds customers that if mould growth starts to appear then it should be removed with an antifungal solution. Mould occurs when moisture builds up and it is not removed in a timely manor [manner].”
This advice was provided in a response to the resident’s compensation claim of November 2020. The completed claim form provided a detailed account of the impact damp and mould had been having on the resident’s health. The resident stated they had a “weak immune system” and suffered from asthma.
Having received the report of damp and mould which the resident said had made one room uninhabitable and the impact it was having on the resident’s health, the landlord should have carried out an investigation. Instead, it recommended ‘an antifungal solution’ be applied. While antifungal solution can be effective in resolving minor damp and mould in some cases, this recommendation was inappropriate given the information the resident had provided, in view of the severity of the damp and mould reported.
There has been a lack of satisfactory completion of repair records and of evidence to show the landlord’s reasonable investigation into reports of continued damp and mould issues. The resident has experienced distress and inconvenience and the delay in resolving the damp and mould has meant a vulnerable resident has lived with health and safety hazards during the duration of the outstanding repairs. Therefore, this Service must consider an appropriate remedy which is proportionate to the impact on the resident.
The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The Remedies Guidance suggests that awards of £600 to £1000 may be appropriate for cases where there has been a failure which has had a significant impact on the resident. It is not for this Service to determine whether the damp and mould caused the health issues set out by the resident, this is beyond our remit to establish if there was a direct link between the resident’s health and the damp and mould. However, we have considered the landlord’s response to the resident’s health concerns and whether it took appropriate action in response to these reports. It is clear the landlord should have done more to resolve the issue and, by not doing so, it caused a serious failing. In view of all the circumstances, the landlord should pay the resident £1,000 compensation for distress and inconvenience caused by its errors in the handling of their damp and mould reports.
The landlord mustalso take action to address the damp and mould. When damp and mould is identified, particularly that which continues to return, the landlord should take steps to detect the cause. If the investigation identifies a repair is required, this should be addressed in line with the appropriate repairs policy and a permanent fix should be the landlord’s priority.

The associated complaint handling

The landlord’s complaints policy states it will “send a full response or an update out within 15 working days, using the method of your [the resident’s] choice”. It also sets out the different stages of the complaint process. These are:
1. Stage one – attempt to settle the complaint immediately.
2. Stage two – investigate and respond within 15 days.
3. Stage three – investigate and respond within an additional (to stage 2) 20 working days.
This Service has been provided with evidence that shows the resident raised the initial complaint on 30 September 2020. The landlord later acknowledged a further complaint made on 20 November 2020 and stated a response would be issued within “15 working days”. This suggests the landlord treated the complaint made in November 2020 as ‘stage two’ of its complaint process. The landlord met the response time obligations set out in its policy by issuing its response five days later, on 25 November 2020. It stated that it was yet to attend the property and required a subcontractor to contact the resident to arrange repairs. The landlord apologised for the delays and lack of communication and suggested an appointment had been made to attend the property in December 2020.
Following the landlord’s response, the resident made a claim for compensation on 30 November 2020. This detailed the impact the damp and mould had been having and the fact no action had been taken to resolve the issue.
The complaints policy states “A complaint is an expression of dissatisfaction. It can be about the standard of a service we have provided, or actions we have, or have not taken, which affect someone using our services.” Therefore, it is reasonable to have expected the landlord to take the compensation claim as a ‘complaint’. This meant the landlord should have escalated the complaint to ‘stage three’ and issued a response within an additional 20 working days. The resident contacted this Service in January 2021 and, after a number of requests, the landlord issued its ‘stage three’ response 250 working days later, on 23 November 2021.
The landlord had acted in line with its policies and the Complaint Handling Code when handling the resident’s initial complaint; however, it failed to comply with its policies and the Code when dealing with the resident’s further complaint/escalation in November 2020. The landlord caused excessive delays acknowledging and/or responding to the resident’s concerns. In doing so, it failed to resolve matters at the earliest opportunity. It also gave incorrect referral rights to the Local Government and Social Care Ombudsman (LGSCO). The LGSCO can look at complaints about some activities carried out by local authorities but complaints by social housing tenants about damp and mould in their properties fall more properly within the remit of the Housing Ombudsman rather than the LGSCO to investigate. The reference to the wrong Ombudsman service may have caused confusion to the resident over how to progress their complaint further. The delay in dealing with this complaint was another significant failing.
There was no acknowledgement of the delay in the complaint response issued in November 2021. The landlord did not provide an apology, show consideration of the impact that a delay had on the resident and what it might do to address that; and/or evidence that the landlord had sought to learn from the events that led to such a delay. Therefore, this Service finds financial redress appropriate for the substantial delay and frustration caused to the resident.
The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The Remedies Guidance suggests that awards of £100 to £600 may be appropriate for cases where there has been a failure which adversely affects the resident but has no permanent impact. In view of this the landlord should pay the resident compensation of £300.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, this Service has found severe maladministration by the landlord in its handling of repairs to the presence of damp and mould at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, this Service has identified maladministration by the landlord in its handling of the associated complaint.

Orders and recommendations

Orders

The landlord is to pay the resident £1,300, made up of:
1. £1,000 for the failure to investigate and resolve the damp and mould resulting in a vulnerable resident living with health and safety hazards and the associated distress and inconvenience experienced by the resident.
2. £300 for the substantial delays experienced when handling the resident’s complaint.
The landlord should confirm compliance with the above orders within four weeks of the date of this report.
The landlord is to issue the resident with an apology for its handling of damp and mould and the subsequent impact this had on the resident.
The landlord should arrange a full investigation into the damp and mould issue at the resident’s property, to identify the cause and agree a course of action with the resident to resolve it.

Recommendations

The landlord should review the Housing Ombudsman Spotlight report on damp and mould – published on the Ombudsman’s website – and consider incorporating some of the recommendations made in the report into its policy/framework. For example:
1. Reducing over-reliance on residents to report issues by landlords being proactive identifying properties with, or at risk of having, damp and mould.
2. Adopting a “zero-tolerance” approach to damp and mould.
The landlord should share a copy of this report with its member responsible for complaints, along with an assessment of how it would have handled the repairs and complaint following the revisions it has made in response to the Ombudsman’s special report in January 2023. This includes the process for ‘completing’ and recording repairs, and the complaint handling. The landlord should identify any further improvements and/or actions which may be necessary as a result of this investigation. The landlord should update the Ombudsman within eight weeks of the date of this report.