Birmingham City Council (202200232)

REPORT

COMPLAINT 202200232

Birmingham City Council

27 February 2024

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 response to the resident’s report of a leaking waste pipe.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a secure tenant of the landlord, a local authority. The tenancy commenced on 5 September 2016. The landlord has no vulnerabilities recorded for the resident.
The property is a 2 bedroom terraced house. The resident lives in the property with her 2 children, who were primary school age at the time of the complaint.
The resident reported a blocked waste pipe on 8 December 2021. The repair was believed to be resolved on 11 December. However, when the resident noticed a foul odour the following day she contacted the landlord to report that she believed the toilet drain was leaking. Following visits to the property on 15 and 17 December the landlord identified a problem with the internal soil stack. Further investigation revealed that the living room floorboards were soaked in urine and faeces caused by a leak. Jetting of the drains was carried out on 22 December. An environmental clean was carried out on 7 January 2022 and the repair completed the same day.
The resident made a formal complaint on 28 December 2021 that:
1. When the specialist contractor attended it ripped up the flooring and floorboards but said another appointment would be needed. It left the property but did not put the floorboards back, leaving a hole in the floor.
2. A hygienist attended the property on 23 and 24 December 2021 to provide an odour spray, but did not carry out a clean.
3. Since 23 December 2021 the resident and her family had been left “with a huge hole in the living room floor with a visible open drain pipe with faeces and urine.”
4. Due to the condition of the property she removed herself and her children to stay with a relative. She was dissatisfied that she had not been offered temporary accommodation.
5. She felt her health had been affected by the stress associated with the issue.
The landlord issued its stage 1 complaint response on 15 February 2022, as follows:
1. It apologised for the delay in responding to the complaint.
2. Its records showed that a repair was raised for a water leak from the toilet on 13 December 2021. This was attended on 15 December and the operative located a problem with an internal soil stack. It requested that a specialist subcontractor attend.
3. On 17 December 2021 the problem was again diagnosed as an issue with the internal soil stack. The operative recommended that the specialist subcontractor carry out a CCTV survey.
4. At the same time a second subcontractor was asked to carry out an environmental clean which was booked for 23 December 2021.
5. The original subcontractor also attended on 23 December 2021 and carried out extensive jetting to unblock the soil stack. This was followed by the CCTV survey and a completed repair on 7 January 2022.
6. On 23 December 2021 a recall repair was raised for rectification works. This was because the resident was not satisfied that a full environmental clean had been carried out.
7. An appointment was scheduled for 19 January 2022 for the contractor to put the floorboards back. This was delayed while they carried out the full environmental clean that the first subcontractor “failed to complete adequately.”
8. The clean had been completed and the floorboards replaced.
9. It apologised for failure on the part of its subcontractor to carry out a full environmental clean and for the delays and inconvenience that this caused.
The resident asked for her complaint to be escalated. On 9 March 2022 she confirmed she was dissatisfied that the landlord had not considered the detriment caused. The landlord emailed the resident on 23 March to confirm that it had reviewed its stage 1 response. The stage 2 complaint response acknowledged that there had been a delay caused by the subcontractor not cleaning the property when it should have. It offered its “sincerest” apologies for the “difficulties” and “subsequent inconvenience caused.” It confirmed it had written a separate response to the resident’s claim for compensation.
The resident contacted this Service on 5 April 2022 to express her dissatisfaction with the landlord’s complaint response. In a further email to us, dated 17 July, she said that she felt “neglected” by the landlord.

Events post internal complaints process

In the landlord’s response to this Service dated 27 November 2023 it advised that all outstanding repairs were completed by June 2022.

Assessment and findings

Scope of investigation

The resident believes that the leak arose because a similar repair in 2018 was not carried out correctly. In the interests of fairness, the scope of this investigation is limited to the landlord’s response to the issue reported in December 2021. This is because there is not enough evidence on which to establish a causal link between the two events.

Landlord’s obligations policy and procedure

The landlord must ensure that its homes meet the Decent Homes Standard. This was updated in 2006 to take account of the Housing Health and Safety Rating System (HHSRS) which lists sanitation and drainage as a potential hazard.
The Homes (Fitness for Habitation) Act 2018 (‘The Homes Act 2018’) requires the landlord to ensure that the property is fit for human habitation. Section 10(1) of the Landlord and Tenant Act 1985, as amended by the Homes Act, states that in determining whether a property is unfit for habitation, regard should be given to whether the property is so far defective in matters including repair, drainage and sanitary conveniences, that it is not reasonably suitable for occupation in that condition.
Clause 7.16 of the resident’s tenancy agreement says she is responsible for repairing and maintaining all improvements, fixtures, and fittings she has installed at the property.
The landlord’s decant procedure states that it will provide temporary alternative accommodation to its tenants if the property represents a serious hygiene or health and safety risk to the tenant and remedial action cannot be undertaken while the tenant is in occupation, and the tenant had no other alternative place that they could stay temporarily.
The landlord’s repairs policy says that urgent repairs are concerned with protecting the health and safety of the tenant and their family or the security of the property. The completion period of these works shall be 1, 3 or 7 days based on right to repair regulations. Routine repairs are to be completed within 30 days of them being reported.
The landlord’s complaints policy sets out a 3 stage process. It will try to resolve the issue on the spot, where this is not possible it will escalate the complaint to stage 2. It aims to respond to stage 2 complaints within 15 working days and to stage 3 complaints within 20 working days.
The landlord’s guidance note on compensation claims states that it should not make any payments that are discretionary or “good will”.

Leaking waste pipe

The resident reported blockage of waste pipes on 8 December 2021. When the toilet was flushed stool came up in the bath. The landlord’s contractor attended the same day, 8 December,to carry out a temporary repair. Works were completed on 11 December. The landlord’s response was in line with its repairs policy and was therefore reasonable.
Following a report from the resident on 13 December 2021 the landlord raised an order to repair a water leak from the toilet pipe. In its response to this Service on 29 November 2023 the landlord said that the works order was “incorrectly prioritised as a 3 day response, considering the contractor’s first visit on 15 December, uncovered problems with the soil stack.” This was because a soil stack leak would automatically warrant a 2 hour response on health and safety grounds. Therefore, the landlord’s response to the repair was inappropriate because it did not attend the repair as an emergency.
The landlord’s responses are confusing because its repair logs do not contain any entries relating to 15 December. However, both its stage 1 complaint response of 15 February 2022 and its response to this Service on 29 November refer to an appointment on 15 December. Furthermore, given that the visit took place on 15 December it could not have reasonably informed the landlord’s response to the repair raised 2 days earlier, on 13 December. This was a record keeping failure.
The repair logs show that the job raised on 13 December 2021 was completed on 22 December. However, in both its response to this Service, and its stage 1 complaint response, the landlord referred to the contractor attending the property again on 17 December. Its repair logs do not contain any entries relating to 17 December which is evidence of a further record keeping failure.
The landlord has not provided any evidence as to when the floorboards were taken up. However, given that it instructed its contractor to carry out an environmental clean on 23 December it had done so by this date. The resident’s stage 1 complaint of 28 December 2021 refers to the floorboards being taken up and not replaced. This is not disputed by the landlord. Therefore, by this point the resident had been living in the property with a hole in the floor and sewage visible underneath for at least 5 days. The landlord should have attended the repair as an emergency, attending within 1 day. Therefore, its response was inappropriate because it was not in line with its repair policy.
On 27 November 2023 the landlord told this Service that it received reports from the contractor that the resident had changed her mind about carrying out the full investigation because of the timescale involved. It said it advised her of the urgency of the repair but she requested an appointment for 27 December 2021. The landlord has not provided any evidence in the form of file notes or repair logs to support its position therefore, this investigation is unable to make a finding on this point.
The landlord believed that its contractor had carried out an environmental clean on 23 December. However, as set out in the resident’s stage 1 complaint of 28 December 2021, the clean did not take place. Instead, when it visited on 23 and 24 December, the contractor offered the resident odour spray. Rather than dealing with the substantive issue as instructed, it tried to cover up the smell. This was not acceptable and would have further damaged the landlord / resident relationship.
The landlord must ensure that its homes meet the Decent Homes Standard. This was updated in 2006 to take account of the Housing Health and Safety Rating System (HHSRS) which lists sanitation and drainage as a potential hazard. It therefore follows that it would have been appropriate for the landlord to closely monitor the works to ensure that they were carried out as quickly as possible.
There is no evidence of communication between the landlord and its contractor prior to the complaints process. Furthermore, there was a breakdown in communication between the contractor and its subcontractor which gave rise to the misunderstanding that the clean had been carried out when it had not. Given the nature of the repair and the landlord’s obligations this was inappropriate. Furthermore, the poor communication had a direct impact on the resident. This was because exposed sewage was left in situ causing a health hazard to the resident and her family.
The repair log shows that a works order was raised on 30 December 2021 for a follow on appointment which was completed on 6 January 2022, not 7 January as stated in the landlord’s complaint response. Having been put on notice on 30 December 2021 that the environmental clean had not taken place, it took the landlord a further 7 days to carry out the work. This was 15 days after the original appointment of 23 December. Given that the hole exposed the property to sewage under the floorboards this was an unacceptable delay which showed a lack of regard for the resident’s wellbeing.
The landlord’s stage 1 complaint response of 15 February 2022 said that an appointment made for 19 January to lay the floorboards had to be delayed while the full clean was carried out. It said that at the time of its response the clean had been carried out and the floorboards replaced.
This is at odds with its repair logs which show that a works order was raised on 20 June 2022 to rectify issues with “rotten” floorboards in the living room. It is shown as completed on 24 June. Furthermore, in its response to this Service on 27 November 2023 the landlord said that “ongoing issues with living room floorboards/laminate flooring delayed completion of these repairs until June 2022.” No further evidence has been provided as to why it took the landlord 6 months to replace the floorboards. The presence of a hole in the floor was a health and safety risk to the resident and her children. In line with its repairs policy the landlord should have attended as an emergency and completed the repair in a minimum of 7 days. Therefore, the delay was unreasonable.
The landlord’s poor record keeping and lack of communication had a direct impact on the service it provided to the resident. This is evidenced in her email to the landlord on 3 January 2021 when she said she was “really confused on what’s going on as it feels like no one knows how to do their job.” She said she was “constantly ringing every day” but could not get a clear answer on what the problem was, when it would be fixed and by whom.
This investigation is aware that following a special report on the landlord in January 2023, it has developed a framework for its record keeping standards. This includes the standards expected of contractors acting on its behalf. It has also provided the Ombudsman with an action plan as to how it intends to embed the use of the framework throughout its own staff and its contractors to have access to relevant information when needed, with an emphasis on complaint handling.
In its response to this Service on 29 November 2023 the landlord says that it only became aware that the resident had moved out when she raised it in her stage 1 complaint of 28 December 2021. Following the contractors visit to the property on 17 December the landlord should reasonably have known that sewage was leaking under the living room floor. It also should reasonably have known that the sewage later became exposed following removal of the floorboards. This was a health hazard which was exacerbated further by the fact that the resident had 2 young children.
In her email to this Service on 17 July 2022 the resident said she felt “neglected” by the landlord. There is no evidence of any communication between the landlord and resident with regards to her ongoing issue and the difficulties caused. Given the nature of the repair and the landlord’s obligations this was inappropriate. It would have been appropriate for the landlord to contact the resident to assess the extent of the problem for itself to see if the property was fit for habitation. This would have provided the opportunity to consider what additional support might be appropriate, including a potential decant in line with its decant policy.
The lack of communication seriously undermined the landlord and resident relationship. This was because it sent a message that the landlord did not take the situation seriously and was not concerned with the welfare of the resident and her family.
The landlord’s file note of 21 January 2022 acknowledges that there was a “delay in doing something” and that the outcome of the complaint was “justified”. There was a space to record the rationale for not awarding compensation which was marked “NA.” The landlord’s stage 1 complaint response of 15 February 2022 apologised for its failure to carry out a full environmental clean and for the “delays and inconvenience that this subsequently caused.” It went onto acknowledge that this was a “particularly traumatic time” for the resident and her family given the time of year.
Its stage 2 complaint response of 23 March 2022 apologised for the “difficulties” experienced by the resident and “subsequent inconvenience caused.” A file note, also dated 23 March, set out that the complaint was “justified” owing to “inadequate services provided by a third party.” Once again, the space to record the rationale for not awarding compensation was marked “NA.”
In her email to the landlord of 24 February 2022 the resident set out examples of out of pocket expenses she had occurred while she was not living at the property. This included paying for taxis to transport her children to school. In accordance with its compensation guidance in place at the time, the landlord said it would only pay compensation if there was “evidence of negligence, or legal liability is accepted.” The resident submitted a compensation claim dated 27 February 2022 requesting compensation for “trauma and stress” and damage caused to her laminate flooring.
The landlord provided a response to the compensation claim on 3 March 2022 which concluded there was “no evidence of negligence by the Council or contractor regarding the removal of the laminate flooring.” It said that as the laminate flooring was laid by the resident it was her responsibility to replace it, as per the conditions of her tenancy. This was appropriate because clause 7.16 of her tenancy agreement says she is responsible for repairing and maintaining all improvements, fixtures, and fittings she has installed at the property.
However, the landlord did not respond to the resident’s request for compensation for the detriment caused which was inappropriate. In any event, the landlord’s compensation procedure in place at the time was not reasonable because it did not allow for payments of compensation for distress, inconvenience, time, and trouble. Having acknowledged some of the failures, and subsequent detriment caused, it did not take steps to put things right which was unreasonable.
This investigation is aware that following a special report on the landlord in January 2023, it is currently drafting a new compensation policy which aligns with the approach to redress set out in its new complaints policy.
This investigation was hampered by the poor quality of the landlord’s records that were provided to this Service. The landlord’s repair logs lacked detail about the actual works completed. The records were therefore difficult to follow without cross referencing with other information. Although we were still able to determine this case using the information that was available, it is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
This investigation has identified a number of failures in the landlord’s response to the leak from the waste pipe, including:
1. The landlord’s responses refer to appointments which are not evidenced by its repair logs.
2. The repair logs do not provide any details of actual works carried out.
3. There was a lack of communication between the landlord and resident, the landlord and its contractor and finally, between the contractor and its subcontractor. This had a direct impact on the service provided to the resident who felt “neglected” by the landlord.
4. The landlord delayed in carrying out the environmental clean once it was put on notice that it had not been carried out as planned on 23 December.
5. The landlord’s repair logs show that the issue with the floorboards was not resolved by 15 February 2022. This did not take place until June 2022 however the landlord has not provided a satisfactory explanation as to why.
6. The landlord failed to put things right by offering compensation for the frustration, distress, inconvenience, time, and trouble caused to the resident.
The failings amount to severe maladministration. This is because there were a number of failures which had a serious detrimental impact, both physical and emotional, on the resident. The resident and her family had to move out of the property for just under 3 weeks to avoid the sewage exposed in their living room through a hole in the floorboards. The move caused emotional and physical distress. The lack of communication from the landlord caused frustration, distress, inconvenience, time and trouble. The floorboards were not fully replaced until 6 months later.
During 2021/22 the weekly rent was £98.26. The Ombudsman considers it appropriate to require the landlord to make a payment of compensation which recognises the impact of the failures on the resident’s use and enjoyment of the property.
In the circumstances the Ombudsman considers it reasonable for the landlord to:
1. Refund the resident’s full rent for the period 22 December 2021 to 19 January 2022, which is 2 weeks and 4 days (rounded up to 3 weeks). This amounts to £294.78 and covers the period the resident was not able to live at the property.
2. Refund 5% of the weekly rent for the 6 months (calculated as 24 weeks) it took to replace the rotten floorboards. £4.91 x 24 = £117.91.
While the Ombudsman acknowledges that this is not a precise calculation, this is considered to be a fair and reasonable amount of compensation taking all the circumstances into account.
This investigation also considers that the landlord’s failings caused additional distress and inconvenience to the resident. The Housing Ombudsman’s remedies guidance sets out that compensation of £1000 and above should be awarded where there was a failure which had a significant impact on the resident. In line with the guidance the landlord has been ordered to pay the resident £1500 for distress and inconvenience.

Complaint Handling

The resident made a stage 1 complaint on 28 December 2021. The landlord acknowledged the complaint on 4 January 2022 and said it would reply within 15 working days. It said if it were unable to respond in full by that date, it would contact the resident to explain why it was taking longer. The landlord’s stage 1 complaint response was issued on 15 February 2022 which was 33 working days after the complaint was received. Its complaints procedure says it will respond to stage 1 complaints within 15 working days meaning its response was 18 working days out of time.
Section 5.1 of the Housing Ombudsman’s Complaint Handling Code (the Code) sets out that stage 1 complaint responses should not exceed a further 10 days without good reason. There is no evidence that the landlord contacted the resident to explain that the response would be delayed which was inappropriate. The complaint response apologised for the delay but failed to offer an explanation as to why which was also inappropriate. Furthermore, it failed to identify what had gone wrong and what it would do next time to prevent a reoccurrence.
The landlord’s guidance for compensation claims in place at the time said it would not make any payments that were ‘discretionary’ which was inappropriate. This was because the landlord failed to consider compensation as a means of putting right the frustration caused to the resident by the delay.
The Code states that an effective complaints process should enable a landlord to learn from the issues that arise for residents and to take steps to improve the services it provides. The landlord’s stage 1 and stage 2 complaint responses identified the failure in the delay in carrying out the environmental clean and apologised accordingly. However, it did not demonstrate that it used the complaints process as an opportunity to learn from its mistake. It identified that it was due to a breakdown in communication. However, it failed to reflect on what it would do differently to prevent a reoccurrence, which would have been appropriate in the circumstances.
The Code also says that good complaint handling promotes a positive landlord and resident relationship. In its stage 1 complaint response of 15 February 2022 the landlord said “my understanding is that this was due to the fact that you did not consider that Orbis had carried out a full environmental clean.” This suggests it was the resident’s opinion that the clean had not been carried out satisfactorily. However, as evidenced by the landlord’s internal records the complaint was justified because the clean had not been carried out. The landlord should be mindful of its language in its complaint responses so as not to infer blame on the resident. This will help to promote positive relationships.
Section 5.6 of the Code says that landlords must address all points raised in the complaint. In her stage 1 complaint of 28 December 2021 the resident requested compensation however the landlord’s complaint response did not offer a response. If its position at the time was that it did not make discretionary payments it would have been appropriate for it to have said so rather than stay silent.
The resident was caused inconvenience, time and trouble when she had the matter of compensation again in her request to escalate to stage 2. The landlord then asked her to complete a compensation claim but its response to the claim again stayed silent on her specific request for compensation for distress. Therefore, the landlord did not address all aspects of the resident’s complaint which was a further failure. Furthermore, it added to the resident’s feelings of frustration that she was not being heard by the landlord.
The landlord’s stage 1 complaint response was delayed. It failed to use the complaints process as an opportunity for learning and failed to respond to all the elements of the complaint. These failures caused frustration, distress, time and trouble to the resident which amount to maladministration. The landlord has been ordered to pay the resident £150.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration in the landlord’s response to the resident’s report of a leaking waste pipe.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this determination the landlord is ordered to pay the resident a total of £2062.69 compensation, comprised of:
1. £294.78 for the impact of the failures on the resident’s use and enjoyment of the property for the 3 weeks she could not live there.
2. £117.91 for the impact of the 6 month delay in replacing the rotten floorboards on the resident’s use and enjoyment of the property.
3. £1500 for the distress, inconvenience, time and trouble caused the landlord’s response to the resident’s report of a leaking waste pipe.
4. £150 for the adverse effect caused to the resident by the complaint handling failures.
Also within 4 weeks, a senior member of staff should apologise to the resident for the failings identified in the report. This can be offered in person or in writing in accordance with the resident’s wishes. A copy or file note should be provided to the Ombudsman, also within 4 weeks.
Within 6 weeks of the date of this determination, the landlord should carry out a review of the case to identify what went wrong. It should satisfy itself that the changes it has made in response to the Ombudsman’s special report will ensure that such failures will not reoccur. If not, it should develop an action plan. The landlord should write to the resident to set out the come of its review, including the action plan if relevant. A copy should be provided to the Ombudsman, also within 6 weeks.