Birmingham City Council (202225222)

REPORT

COMPLAINT 202225222

Birmingham City Council

18 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

The landlord’s handling of repairs to the kitchen following a leak in the bathroom.
The landlord’s complaint handling has also been investigated including the resident’s request for compensation.

Background

The resident holds a secure tenancy for a two bedroom house which began on 18 December 2006. The landlord is a local authority. The resident informed the landlord that there are seven people living in the property.
The resident had been experiencing issues with leaks in the bathroom for multiple years. In 2022 the resident reported that the leaks from the bathroom caused water to come through the kitchen ceiling for multiple years, which the resident reported to the landlord. The resident says that as a result of the leaks from the bathroom, it had affected a number of items within the kitchen, including the white goods.
On 25 and 27 January 2022, the resident contacted the landlord to report water leaking from her bathroom into her kitchen. On 27 January 2022, the operative identified that the bathroom flooring required replacing and that the kitchen ceiling required substantial work. On 31 January 2022, work was also carried out to repair leaks on the flush pipe, cistern and wash hand basin and a follow on appointment for the bathroom floor and kitchen ceiling was booked for 10 February 2022.
On 7 February 2022 the resident reported that the kitchen ceiling was loose and bulging. The operative attended on the same day but cancelled the order and said that ‘no work needed/ tenants responsibility. leak from above needs to fixed so tenant is to report this. Kitchen ceiling is cladded with upvc which the tenant has had done privately so informed that if the damage is only this then it is there responsibility to repair’.
On 10 February 2022 repairs were completed in the bathroom, including renewing the bath panels, tiles, skirting, and bathroom floor boards.
On 11 February 2022 the resident contacted the landlord to report that a layer of the kitchen ceiling had fallen down and the landlord raised an emergency appointment to make safe the ceiling. Following this repair, the landlord arranged for a sample of the ceiling to be tested for asbestos.
On 3 March 2023 a further repair was raised for the kitchen ceiling, which shows that an asbestos test was conducted and the landlord received the results on 23 March 2022. On 8 April 2022 three layers of the ceiling were taken down and the kitchen light and smoke alarm were fitted.
On 29 March 2022 the resident reported another leak from the bathroom. The operative attended on 12 April 2022 and cancelled the order stating ‘tenant spilling water when bathing no sanitary leak. I’ve advised to get a shower curtain bcc may need to be involved due to water damage already a new ceiling has been fitted and timber flooring’.
The resident raised a stage one complaint on 31 March 2022 because the leak was still ongoing. The resident asked the landlord to carry out the repairs again and replace the bathroom. Furthermore, the resident requested that bathroom be moved to accommodate health needs.
On 5 April 2022, the landlord provided its stage one response, where it said:
1. That it apologised for the delays the resident had experienced.
2. The repairs were delayed due to asbestos concerns, but dates had been arranged.
3. The bathroom and kitchen replacement program had been put on hold as it had to reprioritise its capital improvements budget.
4. It could not move the bathroom and the resident should contact the adult social care team in relation to this.
5. The repair to the kitchen ceiling would be carried out on 8 April 2022.
On 5 September 2022 the resident called the landlord to ask for an update on the complaint as the water leak had damaged the walls and white goods within the kitchen. This was logged as stage two complaint, and the landlord provided a stage two response on 20 December 2022, which said that:
1. The contractor had attended the resident’s home on several occasions regarding the leak and determined that the ‘cause of the leak stems from ritual bathing and no repairs are required at this time’.
2. The housing team had been in touch to discuss the cause of the water damage and that a housing officer and contract works officer would visit in the new year in order to complete an inspection and supply a letter of recommendation for alterations/refurbishment of the bathroom (due to poor health conditions).
3. Any repairs required to the kitchen ceiling would also be addressed at that time.
The resident contacted the Ombudsman on 19 January 2023 as they remained unhappy with the landlord’s response. The resident said that the landlord took a long time to attend the home and that the issue had affected items within the kitchen.

Assessment and findings

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
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.

Policy and procedure

The Housing Act 2004 ensures landlords are responsible for assessing hazards and risks within its rented homes. When assessing any such hazards and risks, the assessment should be considered in line with the Housing Health and Safety Rating System (HHSRS).
The landlord’s repairs policy (dated 2009) states that repairs fall into three categories:
1. Emergency Repairs – This type of repair applies where there is a danger of injury or damage to the property and a response is required within 2 hours of the instruction being issued to the contractor.
2. Urgent Repairs – This type of repair applies if there is an issue with the health and safety of the tenant or the security of the property. The completion period for these repairs should be one, three or seven working days based on the requirements of The Secure Tenants of Local Housing Authorities (Right to Repair) Regulations 1994.
3. Routine Repairs – This type of 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 repairs section of the tenancy handbook states tenants are responsible for a number of things, including:
1. Renewing wall tiles and seals around baths, basins, sinks and showers in bathroom and kitchen.
2. If the resident caused the damage, then the resident should get it repaired. If damage is caused by water leaking, they may be able to make a claim on their own home contents insurance.

The landlord’s handling of repairs to the kitchen following a leak in the bathroom.

After reviewing the information sent to this Service, it is clear that the resident has been reporting leaks from the bathroom since 2016, with at least 9 separate repairs being logged for water leaks between 2016 and 2021.
This investigation focuses on the landlord’s handling of the resident’s reports of a leak from the bathroom between January and March 2022 and subsequent damages within the kitchen.
The landlord has provided its repair records which confirm that the resident appropriately reported repairs to the landlord, which was in line with the tenancy handbook. Following the resident’s reports between January and March 2022, the landlord did attend the property within the timescales documented within its own repair policy.
The repair notes confirm that work was carried out within the bathroom to repair leaks to the flush pipe, cistern and wash hand basin, and also identified substantial follow on work was required on the bathroom flooring. The repair notes also confirm that the kitchen ceiling also required substantial work due to significant bulging. Whilst the work was completed within the bathroom by 10 February 2022, there were inconsistencies with the way the landlord handled the works required to repair the kitchen ceiling.
On 27 January 2022, following the resident’s report of an issue with the ceiling in the kitchen, an operative identified that the kitchen ceiling had ‘bowed quite bad’ and a follow on appointment was booked for 16 February 2022. A further repair was raised on 7 February 2022 for the kitchen ceiling which was loose/bulging, however this order was cancelled on the same day as the operative said it was it was the resident’s responsibility.
When receiving reports of repair issues, the Ombudsman expects a landlord to carry out a reasonable investigation of the reports, and subsequently carry out necessary repairs. Where it does not consider itself responsible for the repairs or chooses not to carry out a repair for any other reason, the Ombudsman would expect a landlord to clearly communicate this to a resident and give clear reasons. No information has been provided by the landlord to confirm that it took this action.
The landlord has a duty to meet its repair obligations. Should it leave repairs incomplete, it should have a clear and robust policy in order to make structured and reasoned decisions not to carry out repairs. It should assess whether leaving repairs incomplete puts the resident at risk. It is not evident that any risk assessment took place when it decided to leave the works incomplete or that any other communication was made to inform the resident of its decision to leave the works incomplete as the resident reported four days later that the kitchen ceiling had fallen down.
The landlord attended the property and an order was raised for the kitchen ceiling to be tested for asbestos. Whilst it was reasonable for the landlord to take steps to identify if the kitchen ceiling contained asbestos, this Service would have expected the landlord to ensure the area was made safe and that any suspected asbestos was appropriately encapsulated to ensure the risk to the residents were minimal. It is not clear whether the landlordtook any steps to make safe the ceiling, or reduce the risk to the residents who occupied the home.
The landlord was asked to provide the Ombudsman with repair records which show the exact date of when the repair to the kitchen ceiling was completed. The landlord provided two undated photographs of a plastered kitchen ceiling, and said that the repair was completed on 18 April 2022. The Ombudsman has not had sight of any repair record dated the 18 April, but there is a record from 8 April that show works to the ceiling were carried out on this date (in line with the information provide in the stage 1 response). A further record from the operative that attended on 12 April 2022 noted that the ceiling had been replaced. Therefore, it is assumed that the 18 April was a typo on the part of the landlord, and the ceiling was replaced on 8 April 2022.
Despite the resident informing the landlord that they were unable to use the kitchen, no information has been provided which confirms that the landlord took appropriate steps to ensure that the kitchen ceiling was safe for the residents to use during this period. There was an unreasonable amount of time for the resident to be expected to occupy a property where the kitchen ceiling was a health and safety risk.
As part of the landlord’s stage two investigation and response, it says that the ‘contractor had stated that the cause of the leak stems from ritual bathing and no repairs are required at this time’. However, it is unclear how the landlord came to this conclusion, as the repair records show that leaks were identified and fixed in January and February 2022. It was not until a further leak, which was reported in March 2022, suggested that the cause was due to the residents spilling water when bathing.
Whilst this Service has been provided with repair records that show that operatives had noted the leaks were due to the resident’s actions from as early as 2016, there is no evidence from 2022, which shows that the landlord communicated with the residents at any point about its concerns about the way the bathroom was being used.
The Ombudsman would expect a landlord to make detailed notes documenting the events and how it came to its decision to not complete repairs within a resident’s home. The Ombudsman would also expect to see information which confirmed that the decision the landlord made regarding ritual bathing was correct and that it was in open communications with the resident. There is no evidence which shows that the resident told the contractor or landlord that the family used the bathroom in this manner, and therefore it is unclear how the contractor came to this conclusion. The landlord has not provided this Service with any information to confirm it did this.
Within the landlord’s final response, the landlord acknowledged that there was a delay in undertaking the repair work and apologised. However, the landlord did not acknowledge its failure to follow its own policy and procedures, or provide any acknowledgement/redress for items which the resident says were damaged because of the leak. As such, it has not taken sufficient action to ‘put things right’ for the resident. Neither had it detailed how it has ‘learned from outcomes’ and what steps it has taken to prevent a recurrence of the failings.
The Ombudsman draws the landlord’s attention to section six of the Housing Ombudsman Complaint Handling Code, which sets out what the Ombudsman considers are the best practice principles of “putting things right” where there have been failings. This includes the principle that any remedy offered by a landlord “must reflect the extent of any service failures and the level of detriment caused to the resident”. Therefore, the decision to not award compensation in recognition of its failings was not reasonable.
In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive, but to provide redress for the impact of any failings by the landlord on the resident.
The Ombudsman has first considered the distress and inconvenience suffered by the resident as a result of the landlord’s failure to attend to the repair in a reasonable timeframe or otherwise communicate its position regarding responsibility for the repair. The Ombudsman’s remedy guidance states that where there has been a failure which adversely affected the resident, but there has been no permanent impact, compensation of between £100 and £600 is recommended. The landlord knew that the kitchen ceiling was in need of repair and that it was significantly bowed. The landlord had a duty to ensure that the property was safe, even if it believed that the repairs were the resident’s responsibilities, it should have taken steps to ensure these were completed in a reasonable timeframe. In recognition of this, the Ombudsman has made an order for the landlord to pay the resident £500 compensation.
In relation to the items damaged due to the kitchen ceiling falling, the resident provided the landlord with pictures of the items that had been affected which the landlord did not acknowledge. Where the Ombudsman is satisfied that, on the balance of probabilities, a resident has incurred costs but it is not possible to provide a reasonable estimate, the Ombudsman can make an order that a landlord should pay an amount in recognition of the fact that the resident has incurred costs that would not have arisen had the maladministration not occurred.
Furthermore, if maladministration has been identified, the Ombudsman can also make an order for the landlord to pay compensation in recognition of the resulting distress and inconvenience caused to the resident. Although it is not clear what damage the items in the kitchen sustained, it is clear from the photos that the kitchen was affected by the leak. In recognition of this, the Ombudsman has made an order for the landlord to pay the resident £200 compensation.
It is noted from the repair records that a further repair was raised for a leak in January 2023, and an order has been made to reflect this.
In summary, a finding of maladministration has been made as the landlord failed to address the resident’s repairs within the kitchen within a reasonable timeframe.

The landlord’s complaint handling including the resident’s request for compensation.

The landlord’s complaint policy, dated March 2021, states that the landlord operates a two stage complaints process. A stage one complaint will be acknowledged within two working days and a response will be provided within 15 working days. If a resident remains unhappy with the decision at stage one, a resident can ask the landlord to review the decision and must explain why they feel the decision is incorrect. The stage two complaint will be looked at by an independent council officer and a response will be provided within 20 working days.
When the resident raised her complaint on 31 March 2022, the landlord appropriately acknowledged the complaint within its published timescales.
On review of the stage one response from the landlord, it is the Ombudsman’s view that the landlord did not carry out a reasonable investigation of the full history of the complaint and use its formal responses as an opportunity to explain its actions in this case. Information provided by the landlord shows that the investigating officer emailed the contractor to ask for details relating to the two recent repairs which remained outstanding and then provided a vague response to the resident.
The landlord missed an opportunity to conduct a thorough investigation which would have identified its failure to adequately communicate with the resident and the inconsistencies in its handling of the resident’s multiple reports of a leak within her bathroom and subsequent repairs required within her kitchen.
The resident contacted the landlord on 5 September 2022 chasing a response to her complaint. The landlord’s complaint records show that this was registered as a stage two escalation request on 3 October 2022 and the landlord acknowledged the complaint on the same day and said it would provide a response by 4 October 2022. It is not clear from the information provided why there was such an unreasonable delay between the resident’s escalation and acknowledgement, nor why the landlord said it would respond the next working day.
Records provided by the landlord indicate that it was conducting a more detailed investigation between its internal departments, but did not provide its stage two response until 20 December 2022, which was significantly outside of its 20 working day published timescale. In addition to the landlord’s failure to respond within a reasonable timeframe, records show that the stage two complaint was investigated by the same staff member who responded at stage one and was not investigated by an independent complaint officer.
Furthermore, it is clear that the landlord was not applying the Ombudsman’s dispute resolution principles and failed to treat the resident fairly. The resident had a right to escalate her complaint and for the investigation to be conducted by another member of staff, as detailed within the landlord’s complaint policy. Additionally it is the Ombudsman’s view that the landlord failed to acknowledge or respond appropriately and that the landlord’s responses were in such a manner that it treated the resident personally in a heavy-handed and unsympathetic manner. For example, within the landlord’s final response it said that the ‘contractor had stated that the cause of the leak stems from ritual bathing and no repairs are required at this time’ despite not having any definitive proof that this was the case.
Paragraph 4 of the Code states the steps that landlords should take to ensure fairness in complaint handling. By taking the above approach, the resident was denied the opportunity in having the ‘stage one’ response reviewed fairly. Furthermore, the landlord missed the opportunity to resolve the resident’s complaint and take the necessary steps to conduct a fair and impartial investigation. This amounts to maladministration and as such would attract a level of compensation.
In addition to the way in which it handled the resident’s stage two complaint, the landlord also failed to acknowledge the resident’s request for compensation. In line with point 3.14 of the Code, the landlord should have addressed the resident’s request for compensation. This did not happen and amounts to service failure by the landlord and a compensation payment is warranted to resolve this aspect of the complaint.
The Ombudsman has considered the impact on the resident regarding the delay that he experienced in the complaint handling, and also the missed opportunity by the landlord to put things right. In line with this Service’s remedy guidance, where there has been a failure which has adversely affected the resident and the landlord has made no attempt to put things right, payments of between £100 and £600 are recommended.
In recognition of the time and trouble and distress and inconvenience the resident has experienced, as well as the poor complaint handling by the landlord, the Ombudsman has made an order for the landlord to pay the resident an amount £400.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration with the landlord’s handling of repairs to the kitchen following a leak in the bathroom.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration with the landlord’s complaint handling.

Orders

The landlord is ordered to pay the resident a total of £1100 within four weeks of the date of this report for the reasons identified above comprised of:
1. £500 in recognition of distress and inconvenience caused as result of the delay in repairing the kitchen ceiling.
2. £200 in recognition of distress and inconvenience caused as a result of the damaged items within the kitchen.
3. £400 in recognition of the distress and inconvenience caused as a result of the complaint handling.
The landlord should provide a written apology to the resident for the failings identified in this report within four weeks of the date of this report.
The landlord should carry out a post inspection of the resident’s bathroom and kitchen within four weeks of the date of this report and complete any works identified within eight weeks of the report.

Recommendations

The landlord should look to review the resident’s kitchen and bathroom based on its current age which is detailed within its stock condition report. The decent homes standard states that a property should be assessed under the HHSRS and the criteria for having reasonably modern facilities and services requires kitchens to have adequate space and layout and to be 20 years old or less, and bathrooms to be appropriately located and under 30 years old.
The landlord should continue to work with the resident to ensure that any issues regarding the use of the bathrooms are addressed and recorded.