Birmingham City Council (202128474)

REPORT

COMPLAINT 202128474

Birmingham City Council

22 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

1. The complaint is about the landlord’s response to the resident’s request to amend the tenancy start date.
2. The landlord’s complaint handing has also been investigated.

Background

3. The resident has an introductory tenancy, with a tenancy start date of 8 February 2021. The property is a flat. The resident was pregnant at the time when the tenancy started.
4. The landlord’s records for the property when it was empty confirm a final clean was carried out on 27 November 2020.
5. The resident raised concerns about multiple repairs in the property including a blocked shower drain, hole in the wall and electrical issues at the start of their tenancy.
6. On 10 February 2021, the landlord contacted the resident’s support worker at her temporary accommodation to advise the resident was seeking to have her tenancy start date amended. This was because the resident felt she could not move into the property in its current condition. The landlord stated it would look into the matter, with a view of amending the tenancy start date. The landlord asked that the resident remain in her temporary accommodation until it could provide clarification on the matter.
7. The resident complained to the landlord on 24 September 2021. The resident was unhappy with the outstanding repairs in the property including the kitchen cupboards and work surfaces. The resident was also unhappy with the fact that her tenancy start date had not been amended. The resident advised she had not moved into the property because of its condition and due to the landlord’s lack of communication and updates.
8. On 10 February 2022, the landlord advised it had conducted a site meeting and investigation into the repair concerns raised by the resident. Following this, it determined the property had met the landlord’s empty property standard before the start of the tenancy. The landlord stated repairs were completed while the property had been empty and the property had then been deemed as fit to let. The landlord advised it would not be amending the resident’s tenancy start date because she could have moved into the property earlier.
9. In the landlord’s email to the resident dated 1 March 2022, it disputed the repairs regarding damp that had been reported by the resident. The landlord advised it had not found any evidence of the damaged worktops also reported by the resident, at the time the repair works had been completed. The landlord again advised it was unable to amend the tenancy start date because the property was considered to be fit for let at the completion of the repair works carried out when the property was empty.
10. The resident felt she should not be liable for the rent arrears on the property because she had been told to remain in temporary accommodation until the landlord had investigated her repair concerns. Due to this, the resident did not claim universal credit to cover the rent at the new property as she was still claiming this for the temporary accommodation and could not claim for two properties at the same time. The resident states she would have claimed universal credit on her new property at an earlier stage in order to prevent rent arrears, had the landlord not advised her to remain where she was. The resident also feels she would not have accrued the amount of debt in rent arrears on the property if the landlord had dealt with the issue earlier and had communicated with her effectively.

Assessment and findings

11. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes;
    2. put things right, and;
    3. learn from outcomes.
12. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse affect or detriment to the resident. If it is found that a failing did lead to an adverse affect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation

13. The resident stated in her complaint that her mental health and wellbeing had been affected by the stress of the situation. The Service does not doubt the resident’s comments about her health. However, it is outside our remit to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or liability insurance. The courts can call on medical experts and make legally binding judgements. The Services’ decision not to consider this aspect of the resident’s complaint is within accordance of paragraph 42(g) of the Housing Ombudsman Scheme, which says “the Ombudsman will not consider complaints which 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”. The Service has considered the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to the concerns she raised about her health.
14. The Service has not considered the complaint points raised about the condition of the property when it was let to the resident and the subsequent repair requests as part of this assessment. This is because this matter has been subject to a legal disrepair claim and as per paragraph 41 (c) of the Ombudsman Scheme, “the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion: concern matters that are the subject of court proceedings or were the subject of court proceedings where judgement on the merits was given”. Therefore, our investigation has focused on the landlord’s response to the resident’s request to change the tenancy start date rather than the repair issues she reported.

Policies and procedures

15. The tenant’s handbook confirms the landlord will inspect and carry out gas and electrical safety checks and do most repairs to bring the property up to standard before it lets a property to a new tenant. However, some specialist repairs may have to be done after a resident moves in.
16. The landlord’s empty property repairs standard requires a property to be ‘clean, safe and ready to move into’ at the point of letting.

The resident’s request to change the tenancy start date

17. At the beginning of the tenancy (10 February 2021) the landlord made it clear that the resident should remain in her temporary accommodation, while it investigated the repair concerns she had raised. The landlord’s internal communications in March 2021 indicate it had looked into the repair concerns and concluded the property had been fit for the resident to move into. It is not clear what actions the landlord took to investigate this matter. The landlord has provided the Service with photos taken after a final clean of the property was carried out in November 2020, while it was empty and disputed there were signs of damp and mould and damage to the kitchen counters. The landlord states the property had met its empty property repairs standard. The Ombudsman agrees that the photographs provided do not show clear evidence of damp and mould. However, we are limited in the extent to which we can rely on photographs as they capture a moment in time and it is not possible for the Ombudsman to determine what happened before or after the photographs were taken.  As above, the Ombudsman is not addressing the repair issues in our investigation, which is instead focused on communication between the landlord and resident about the tenancy start date.
18. In the absence of clear evidence, this Service can only conclude that the landlord did not inform the resident that her tenancy start date would not be amended until 10 February 2022. The landlord has not explained why there was a delay of almost one year in providing the resident with the outcome of its investigation into the condition of the property when it was let and its decision to not amend the tenancy start date.
19. The Service is concerned with the landlord’s conduct in this matter. The landlord’s internal correspondence details that the resident was vulnerable in her temporary accommodation because she was pregnant and she had raised concerns about her safety due to the shared nature of the temporary accommodation. The landlord was also aware the resident was accruing rent arrears on the new property and the resident was unable to claim universal credit for the new property while her housing benefit was still being paid on her temporary accommodation. The resident made it clear to the landlord she was unsure of what actions to take with regards to the rent arrears because of the outstanding repairs, and the landlords lack of communication regarding the amendment of her tenancy start date.
20. The landlord failed in its customer service to the resident by not providing the resident with an update on whether her tenancy start date would be amended in March 2021. The landlord had demonstrated poor customer service in its communication with the resident and had not acted reasonably or fairly towards her.
21. The Service has taken into consideration the distress and inconvenience caused to the resident and the unnecessary financial burden that was placed on her through accruing rent arrears for a property she was not living in. Had the landlord made it clear to the resident in March 2021 that the tenancy start date was not going to be amended, the resident could have opted to move into the property and start claiming universal credit for it. The arrears accrued on the property were preventable and had the landlord responded to the resident in a timely manner, the debts may have been avoided. The landlord should therefore write off the rent arrears accrued from the start of the tenancy (8 February 2021) until February 2022. This will put the resident back in the position she would have been in if the landlord had advised her to move into the property sooner.
22. The Service has considered the severity of the long-term impact, the distress, inconvenience and emotional impact caused to the resident as a result of the landlord’s delays in line with the Service’s remedies guidance (published on our website). In acknowledgement of the one-year delay and in recognition of its service failure in communicating with the resident, the landlord should pay the resident £500 in compensation.  In accordance with the Remedies Guidance, the Ombudsman may award compensation between £100-£600 where there was a failure which adversely affected the resident. This is also in recognition of the landlord’s failure to acknowledge its failings and not make any attempts to put things right.

Complaint Handling

23. The landlord failed to respond to the complaint in accordance with its complaints policy, which states it would provide a stage one response within 15 working days. It is of significant concern that the landlord did not provide a response to the resident’s complaint logged on 24 September 2021 until 4 March 2022, 133 working days later. This delay would have severely inconvenienced the resident because she was left without a response for a sustained period of time while the issues were on-going. Given the adverse effects the delay was having on the resident, it is concerning that the landlord did not address the matter at an earlier stage when it had every opportunity to do so. The landlord has not adequately explained why it took so long to respond to the complaint.
24. The landlord’s complaint response failed to explain why there was a delay with providing the resident with an answer regarding the amendment of her tenancy start date. The landlord also failed to address the resident’s complaint about its communication and the impact on her mental health and wellbeing.
25. The Service accepts the landlord may have determined there were aspects of the resident’s complaint that were excluded from its complaint process. Namely, the reported disrepair because it had been subject to a legal disrepair claim. The landlord’s complaints policy states under the heading ‘Exceptions’ that the following is not included, “A complaint that has already been settled in another way, for example by the courts, a tribunal, one of the Ombudsman organisations or the Information Commissioner’s Office”. As above, The Ombudsman would not look at the legal disrepair claim because it is outside of our remit to consider matters which are or have been the subject of legal proceedings.
26. The Service would have expected the landlord to provide the resident with a response explaining what aspects of the complaint it could not look into and why. The landlord should have also addressed the other complaint issues raised concerning its communication with the resident and the impact the on-going situation was having on the resident’s mental health and wellbeing in its response. The landlord’s failure to provide this response, meant it was not clear that the resident had fully exhausted the landlord’s complaints process and it led to delays with the complaint being progressed to this Service.
27. The Service contacted the landlord on 11 April 2022, asking it to provide the resident with a complaint response that was in line with the Ombudsman’s Complaint Handling Code (The Code). The Code states “If a landlord decides not to accept a complaint, a detailed explanation must be provided to the resident setting out the reasons why the matter is not suitable for the complaints process and the right to take that decision to the Ombudsman”. The landlord failed to provide the resident with a revised response that clearly set out its complaint position regarding the disrepair and addressed the other complaint issues raised.
28. The Service considers that the landlord had demonstrated poor complaint handling throughout and did not follow its complaints process or the Code. The landlord needs to apologise to the resident for the additional distress, trouble and upset it has caused by its complaint handling errors. In accordance of the Service’s remedies guidance, the landlord should also pay the resident £250 compensation in recognition of its failure to meet its service standards in complaint handling and its failure in addressing all concerns raised.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme (the Scheme), there was maladministration regarding the landlord’s response to the resident’s request to change the tenancy start date.
30. In accordance with paragraph 52 of the Scheme, was maladministration with respect to the landlord’s complaints handling.

Orders

31. The landlord to write off the arrears accrued from the start of the tenancy (8 February 2021) until February 2022. It should write to the resident confirming that the arrears have been waived.
32. The landlord to pay the resident £750 in compensation, broken down as follows:
    1. £500 for the service failures identified with its handling of the request to change the tenancy start date.
    2. £250 for the failures identified with its complaint handling.
33. The compensation awarded by this Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against any rent arrears.
34. The landlord to provide the resident with a written apology for delays and a lack of clear communication concerning changing the tenancy start date and for errors in its complaint handling.
35. The landlord is to confirm compliance with the above orders within four weeks of the date of this decision.

Recommendations

36. The Ombudsman recommends that the landlord to amend its Comments, Compliments and Complaints policy, so that its complaint response timescales are in line with the timescales set out in the Ombudsman’s Complaint Handling Code.