Birmingham City Council (202109631)

REPORT

COMPLAINT 202109631

Birmingham City Council

15 March 2022

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 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 about an external water leak.
2. This investigation has also considered the landlord’s complaint handling.

Background

3. The resident owns the leasehold for the flat in which she resides. The landlord owns the freehold of the building.
4. The resident reported flooding outside the front door of her property at the beginning of February 2021. The landlord raised various repair orders following this, but the repairs were not completed. It raised a further repair order on 28 April 2021 having identified that the leak was likely from a burst underground pipe, made worse by a blocked drain. The resident says that the landlord’s contractor failed to complete the repairs and they were instead completed by her water supplier.
5. The resident raised formal complaints with the landlord in April 2021 and escalated the complaints through the landlord’s complaints process. She was dissatisfied with how long the landlord was taking to repair the leak, the internal damage being caused to her property and the impact the damp and mould was having on her and her son’s health. The landlord said its contractor had failed to repair the leak despite attending on several occasions. It said that the resident would have to claim for the internal damage to her property on her insurance.
6. The resident also submitted a claim on the landlord’s liability insurance during May 2021, for damage to health and damage to her property. The resident has told this Service that she also claimed for the cost of the repair carried out by her water supplier, which has now been settled by the landlord’s insurer.

Assessment and findings

Scope of investigation

7. The resident has raised concerns over the effect the delayed completion of the repairs has had on her and her son’s health and wellbeing. This Service is unable to make a finding on this matter as we do not have the authority or expertise to assess medical evidence, or conclude that there was a direct causal link between the condition of the property and any detriment to the family’s heath. The resident raised a claim for this matter with the landlord’s insurer; however the claim was rejected by the insurer in October 2021. If the resident wishes to pursue this matter further then she should seek independent legal advice.
8. The resident has also raised concerns with this Service about the level of her service charge. Complaints that relate to the level, reasonableness, or liability to pay rent or service charges fall within the jurisdiction of the First Tier Tribunal (Property Chamber). The resident is able to seek free legal advice from the Leasehold Advisory Service should she require any advice in connection with this matter.

Handling of the leak

9. Under the terms of the lease, the landlord is responsible for maintaining the external areas of the building, including any pipework and drains serving more than one property in the building. The landlord’s repairs service standards confirms that urgent repairs are dealt with between one and seven working days, and routine repairs are dealt with within 30 working days.
10. The landlord accepted responsibility for repairing the leak and initially raised a repair order on 8 February 2021, categorising it as a routine repair. The leak was not repaired, and on 23 March 2021, the landlord raised an urgent one-day repair. Again, the repair was not completed and further repair orders were raised on 29 March, 28 April and 7 May 2021. The landlord’s records show a completion date of 10 May 2021.
11. However, the resident advised the landlord on 21 April 2021 that her water supplier would complete the necessary repairs to stop the leak if this was not done within 14 days, and they would bill those responsible. The resident has told this Service that the water supplier subsequently completed the repair on 4 June 2021. In support of her claim she has provided a settlement letter from the landlord’s insurer dated 14 October 2021, confirming that the insurer agreed to cover the invoice from the water supplier to fix the leak.
12. Therefore, the evidence shows that the landlord failed to complete the repair, despite upholding the stage one complaint and offering assurances that the repair would be completed. This is of serious concern given the extent of the leak (the resident had reported that water was leaking at a rate of 25 litres per hour), how long it was ongoing and the potential damage that was being caused to the building, including the resident’s property. 
13. While the landlord acknowledged that there had been a delay in completing the repair and offered an apology for this, it failed to offer any compensation for the resulting distress and inconvenience caused to the resident. In its initial response to the complaint dated 27 April 2021, the landlord stated that compensation was only payable if there was evidence of negligence or if legal liability was accepted. This approach is in contravention of this Service’s Complaint Handling Code which requires landlords to consider the time and trouble a resident has been put to as well as any distress and inconvenience caused, when awarding compensation in response to a complaint.
14. It is also of concern that the landlord told the resident in its final complaint response that she would need to claim for any internal damage to her property on her own insurance. This was inappropriate because damage to the structure of the property from a water leak should be claimed for under the buildings insurance policy, which in this case is arranged by the landlord as freeholder of the property.
15. Furthermore, the landlord should have considered whether it was appropriate to arrange the internal remedial works itself or at the least, meet the cost of any insurance excess for a claim under the buildings insurance policy, given that it failed to repair the leak within a reasonable timescale. The resident has confirmed that the internal remedial repairs remain outstanding and it is reasonable to conclude that this is a consequence of the landlord’s poor handling of the matter, including the incorrect advice it gave to the resident about claiming on her own insurance. This is of concern given that the resident has reported that there is damp and mould in the property and that she and her young son suffer from asthma.
16. The landlord’s failures in this case, in terms of both its response to the leak and to the resident’s claim for damage to her property, are so significant that a finding of severe maladministration has been made. In reaching this decision consideration has been given to the extent of the water leak and how long it was ongoing, the impact this was potentially having on the building and living conditions in the resident’s property, and that the landlord ultimately failed to meet its repairing obligations and complete the repair to stop the leak.

Complaint handling

17. The Complaint Handling Code sets out that landlords should acknowledge and apologise for any failure identified, give an explanation and, where possible, inform the resident of the changes made or actions taken to prevent the issue from happening again.
18. The landlord’s complaint responses failed to assess in enough detail what had gone wrong and why, therefore indicating that the investigation into the issues complained about was inadequate. The complaint response of 13 May only referred to repair delays from 23 March 2021 onwards, when it is evident the leak had been reported from the beginning of February. The final response of 1 July 2021, sent after the leak was repaired, failed to identify that the leak had been repaired by the water supplier and not the landlord’s contractor. This response also stated that the landlord’s contractor had attended on a number of occasions but it was difficult to locate where the leak was coming from. The response did not explore the adequacy of the contractor’s response any further, and there was no indication of any learning from the complaint to ensure that the same service failures did not arise again. The complaint responses also lacked proper consideration of the impact the outstanding repair was having on the resident. Taken altogether, these failings amount to maladministration in the landlord’s complaint handling.
19. This Service has other cases awaiting investigation which raise complaints about complaint handling and compensation. This Service intends to conduct a further investigation beyond this initial complaint, to establish whether there is any evidence of systemic failings in the landlord’s handling of these issues.

Determination

20. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in respect of its handling of the resident’s reports about an external water leak.
21. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaint handling.
22. In accordance with paragraph 50 of the Housing Ombudsman Scheme, this Service is concerned that, regarding the issues raised around complaint handling and compensation, there is presenting evidence of service failure that may be indicative of a systemic failing.

Orders and recommendations

Orders

23. This Service orders the landlord to:
    1. Apologise to the resident in writing for the service failures identified by this investigation.
    2. Pay the resident £800 compensation broken down as follows:
       1. £700 for the distress and inconvenience caused by its handling of the repair and claim for damage to the resident’s property.
       2. £100 for the distress and inconvenience caused by its poor complaint handling.
    3. Either arrange for the internal damage to the resident’s property to be repaired or refer the resident’s claim for this damage to the building insurer for assessment (any policy excess to be met by the landlord).
    4. Carry out a senior manager review of its handling of the repairs and formal complaint in this case and consider how it can ensure that the identified service failures do not arise again. The findings of the review should be provided to this Service.
24. Orders a, b and c should be completed within four weeks of the date of this report. Order d should be completed within six weeks of the date of this report.

Recommendation

25. This Service recommends that the landlord engages with it in conducting a further investigation into issues relating to complaint handling and compensation.