Birmingham City Council (202204184)

REPORT

COMPLAINT 202204184

Birmingham City Council

31 August 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:
   1. Handling of the resident’s queries about the paint used within the property.
   2. Decision to keep the resident within his property during internal painting works.

Background

2. The resident has occupied the property since 1997 under a secure tenancy. The property is a one bedroom, ground floor flat.
3. In February 2022 the landlord painted the internal walls of the residents property. The resident contacted the landlord on 3 May 2022 to raise a complaint regarding the side effects he experienced as a result of the painted used. He advised that he had to sit outside to get breath for the four days of painting. He also advised that he should have been moved out of the property and a supervisor had advised him that he would be. He requested a call back from the landlord and asked to know what paint was used.
4. The landlord sent two stage one responses, the first on 16 June 2022. It stated that while it acknowledged the resident’s request to be moved out it had decided a move was not required and the painting contractor had been advised to make him aware of its approach to the work so it could be carried out with due care as to avoid any impact on his health. The landlord sent it’s second stage one response on 21 June 2022. It advised that the painting contractor had confirmed that all appointments for painting were arranged with the resident and it had been in touch with him numerous times to ensure he was happy. It confirmed the resident had been provided with the contact number of the painting contractor which he could use if there were any issues but no issues had been reported at the time. The landlord further confirmed that the painting contractor had not advised that the resident would be decanted as this is not something it would be responsible for.
5. The resident requested the complaint be escalated to stage two on 30 August 2022, as he disagreed with the landlord’s decision. The landlord provided its stage two response on 12 October 2022. It apologised for the delay in issuing the response and confirmed it had spoken with all teams involved and they had no further comments to add. The landlord further confirmed that the responsibility to decant a resident lies with it and not the contractor and in this circumstance a decant was not deemed necessary.
6. The resident remains unsatisfied and as way of resolution would like the landlord to confirm what type of paint was used and why a decant did not take place.

Assessment and findings

Scope of Investigation

7. In his complaint to this service, the resident reported that he suffered physical health issues which he thought were caused by the painting works within the property. The Ombudsman does not doubt the resident’s comments about his health. However, it is beyond the remit or this service to determine whether there was a causal line between the landlord’s painting works in the property and the impact on the resident’s health.
8. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts are able to rely on expert evidence in the form of medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so, should the resident wish to pursue this matter, he should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy/its legal obligations, and fairly in the circumstance.

The landlord’s handling of the resident’s queries about the paint used within the property

9. The resident made contact with the landlord on 3 May 2022 raising concerns over the paint used within the property. The resident stated he suffered blistered eyes, chest pains, difficulty breathing, and a racing heart as a result of the paint used within the property. He asked the landlord to provide him with the names of the paint used.
10. This service can see from both of the landlord’s complaint responses, however, that it failed to provide the resident with any details relating to the type of paint. This was completely missed from the landlord’s complaint responses.
11. The Ombudsman’s Complaint Handling Code (CHC) is a guidance document that sets out the Ombudsman’s expectations for how landlords should handle complaints. The CHC states “landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate”.
12. It is clear from the landlord’s responses, however, that it did not do this. As such, the resident was unable to satisfy for himself that the paint used was not harmful to him, and remained without a full response. This was inappropriate and in the Ombudsman’s view, a service failure.

The landlord’s decision to keep the resident within his property during internal painting works

13. This Service has seen no evidence of the resident requesting a decant prior to the painting works. However, the resident makes mention of it in his complaint and the landlord discusses it within its stage one and two response. We can therefore infer that this request was made, though the evidence suggests the resident made the request to the painting contractor who in turn passed it on to the landlord.
14. The landlord’s decant policy states “[the landlord] will provide temporary alternative accommodation to its tenants in the following circumstances… To allow repair works to be undertaken to the tenant’s substantive tenancy, that could not be completed with the tenant in occupation”.
15. The resident contacted the landlord on 3 May 2022 stating that he was unhappy he had not been moved out to allow the painting to occur and stating the paint had caused him to have health concerns.
16. In its stage one response the landlord stated it had considered the resident’s request for a decant but had decided the works could be carried out with him in situ. It further stated that it had asked its painting contractor to advise the resident of their approach to the work and to carry the works out with “due care” so as to avoid any impact to his health.
17. The landlord has failed to maintain adequate records of the events surrounding the resident’s request for a decant, which has impacted this service’s ability to establish how it arrived at its decision. There is no evidence to show that efforts had been made to understand the reasons for the resident’s request for a decant, and no explanation of its reason for refusing.
18. In the Ombudsman’s view, this was not in line with good practice. The landlord ought to have explored whether there were any exceptional circumstances which may have required it to have offered a decant while the works were ongoing.
19. Where a service request has been made by a resident, this Service expects the landlord to communicate the outcome of any decisions clearly with the resident directly. The landlord stated that a decision to decant the resident was not for the contractor to make, as such the decision to decline his request should not have been communicated through the contractor. This Service has seen no evidence to suggest the landlord made the resident aware of its decision not to decant him. This Service does acknowledge that the evidence suggests no formal request for a decant was made by the resident directly to the landlord. However, as discussed above, the landlords stage one and stage two responses indicate that it was aware of the resident’s request and ultimately conducted an investigation and made a decision, as such, this should have been appropriately communicated with the resident prior to the works taking place.
20. This is not a service failure and as such an adverse finding will not be made, however, the landlord is encouraged to take active learning from this situation to ensure it is not repeated.

Determination

21. In accordance with paragraph 52 of the Housing Ombudsman scheme, there was a service failure in the landlord’s handling of the resident’s queries about the paint used within the property.
22. In accordance with paragraph 52 of the Housing Ombudsman scheme, there was no maladministration in the landlord’s decision to keep the resident within his property during internal painting works.

Orders

Orders

23. Within four weeks of receiving this report, the landlord is ordered to provide the resident with details of the paints used during the internal works and to provide the resident with a written, formal apology for failing to address all aspects of their complaint.