Birmingham City Council (202013007)

REPORT

COMPLAINT 202013007

Birmingham City Council

16 July 2021

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 of cracks in the walls of his property.

Background and summary of events

Policies and procedures

2. As per the landlord’s repairs policy, it is responsible for the foundations of the resident’s property, as well as for the internal and external walls there.
3. The landlord’s repairs policy also confirms a 30-day target for the completion of routine repairs. If special materials or arrangements are needed for larger repairs, the resident should be advised as to what timescale to expect for the completion of such repairs.
4. As per the landlord’s customer guide – your views’ procedure, when a complaint is made, it will “investigate it fully”.

Background

5. The resident is a tenant of the landlord, residing in a bungalow set in a terrace of four.
6. The resident has reported experiencing historical issues of a similar nature to the cracks in the walls of his property since 2017. While this is referenced below for contextual purposes, this investigation will focus on the events in his case from within six months of the submission of his stage one complaint to the landlord on 26 August 2020. This is because the Ombudsman will not investigate complaints about issues that were not brought to the landlord’s attention as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.

Summary of events

7. On 26 August 2020, the resident submitted his stage one complaint to the landlord, stating the following:
   1. He had been waiting for its contractors to complete repairs since 2017.
   2. A structural engineer had visited the property in 2018 and had completed a report for its contractor. However, another one of the landlord’s contractors had subsequently informed the resident that a further structural engineer’s report was required.
8. On 27 August 2020, the landlord issued its stage one complaint response to the resident, which is summarised as follows:
   1. It acknowledged that there did “appear to have been a significant delay” in completing the repair. The landlord apologised for the difficulties experienced by the resident and for the subsequent inconvenience that this had caused him.
   2. The contractor was currently awaiting a quote to fell the nearby tree, which was believed to be the cause of the issues with the damage to his property experienced by the resident. The landlord’s contractor would contact him once they had received the quote and could go ahead with felling the tree.
9. On 2 September 2020, the resident requested the escalation of his complaint to the final stage of the landlord’s complaints procedure, as summarised below:
   1. The contractor had not been in contact with him, leading him to feel that “he has not been communicated with sufficiently and has had to do all the running around for this.”
   2. He asked it to explain why “the decision to underpin the property [had] been reversed”, and why it now believed that the issues with the damage to this would be resolved by removing a tree.
   3. He wanted an update on the repairs to his property.
10. On 14 September 2020, the landlord issued its final stage complaint response to the resident, stating the following:
    1. Its contractor had “been unable to provide [it] with a detailed response” to the questions raised by him in his request to escalate the complaint.
    2. It confirmed that it was carrying out the recommendation to remove the tree and to carry out remedial repairs to his property.
    3. The contractor would contact him with further information once they had received the quote to remove the tree.
11. On 12 January 2021, the resident contacted the landlord to inform it that he had received no contact from its contractor in the four months since its above final stage complaint response. It replied to him by explaining that, although the next course of action would be for him to refer his complaint to this Service, it would seek an update from its contractor and advise him accordingly.
12. On 3 February 2021, the landlord provided a further response to the resident. It understood that a structural engineer was due to visit his property on 4 February 2021, and that any work that they identified would be carried out. It also passed on apologies from its contractor to him for the delay in completing the repair. This appointment was later recorded by the landlord as being an initial visit and not a structural report, with the previous report having been carried out by a company that it no longer used and the fact that the situation may have changed since then meaning that it sought a new report for this.
13. The landlord’s contractor’s structural engineer visited the resident’s property on 16 April 2021 to inspect the internal and external masonry cracks there, when the contractor also advised that “possible underpinning may adversely affect the attached neighbouring properties…recommending remedial repairs as opposed to major structural works.” The engineer’s subsequent report for this of 28 April 2021 reported the following:
    1. The foundations of the property were 400mm below the external ground level; to present standards, this would need to be a minimum of 900mm. For frost protection, the “normal absolute minimum” was 450mm. Therefore, the property was poorly founded. In addition to this, it was “highly probable that the ground floor throughout the property is of poor construction.”
    2. They had assessed that the property had suffered from seasonal expansion and shrinkage, resulting in the cracks in the resident’s property. However, none of the cracks represented significant structural issues.
    3. It was considered likely that, to improve the property to modern standards, it would be more economic to demolish the property and re-build it. For an interim solution, they listed the following remedial work:
       1. Install stitching to the diagonal cracking.
       2. Repointing of all open-jointed bed and perpend joints, including raking out and repointing of the diagonal cracks.
       3. Linear drains required at the front and rear of the property, and to be linked to storm water systems in the front and rear gardens.
       4. Refurbish or replace the existing rear drainage gulleys.
       5. Install stitching to the cracked internal walls and replaster using boards.
    4. They did not guarantee that the above measures would stop the seasonal movement within the property, but that these might reduce the movement to a degree.
14. On 24 June 2021, the landlord wrote to this Service to provide an update on the progress of the above works to the resident’s property. It reported that its contractor had confirmed that they had completed their initial works there, and that they had raised further jobs for plastering to the property’s kitchen and lounge that would be booked in due course. 

Assessment and findings

15. The resident’s stage one complaint of 26 August 2020 raised concerns over the landlord having not completed the required work to address the issue of cracks in the interior and exterior walls of his property. It understood it to be necessary to understand the cause of the cracks in his walls, having previously obtained a structural engineer’s report to do so in 2018, and it recognised the fact that the previous report was carried out by a company that it no longer used and that the situation may have changed since then required a new report.
16. However, this new structural survey was not completed until 16 April 2021, without any explanation being provided by the landlord for this delay to the resident. It was therefore unreasonable for him to have waited almost eight months for the fresh structural report for the cracks in the property, particularly when he was not given any reasons for this by it, and so a failure has been found on its part for this delay.
17. This is because the landlord was required by its repairs policy, as detailed above in paragraph 3, to either complete the repair within 30 days, or to update the resident with the expected timescale for the completion of the repair. However, it failed to offer a timescale to the resident in its stage one and final stage complaint responses of 27 August and 14 September 2020, respectively.
18. Furthermore, it is noted that, although the landlord did provide the resident with a timescale in its letter of 3 February 2021, this was to advise him of an appointment for an initial structural engineer’s visit on the following day, and was therefore not sufficient to keep him informed on the expected timescales for their report or any subsequent repairs. It was inappropriate that it failed to do this, and this omission was not in accordance with its policy, and so failure has also been found on its part for not keeping him informed of the timescales for the repairs.
19. In the resident’s request to escalate his complaint to the final stage of the landlord’s complaints procedure on 2 September 2020, he asked for further information on the required work to the cracks at his property, including on its decision not to underpin the property. It was unreasonable for it to have been unable to provide him with a more detailed response to on this, and its failure to do so was not in accordance with its customer guide – your views’ procedure, as detailed above in paragraph 4.
20. This is because the property had already been subjected to an earlier structural inspection, with the only work carried out since this time being remedial plastering work. Moreover, the landlord’s contractor was subsequently able to confirm on 16 April 2021 that the above underpinning work might have adversely affected attached neighbouring properties, so that remedial repairs were recommended instead of such major structural works.
21. The landlord also failed to evidence that it had continued to monitor the progress of the outstanding repair work for the cracks at the resident’s property. For example, after its final stage complaint response of 14 September 2020, he had to inform it on 12 January 2021 that the repairs were still outstanding, some four months later. This added unnecessary time and trouble to the resident. This was additionally unfair towards him, as the landlord should have been monitoring and updating him on the progress of the repair, certainly once this was the subject of a formal complaint, and so failure has been found on its part for this too.
22. It is understood that the landlord’s contractor completed the necessary works for the resident’s property’s cracks by 24 June 2021, with plastering and redecorating works to the property’s kitchen and lounge to subsequently be booked completed and due course. This Service has not been provided with specific details of the completed work, however, to assess these against the repairs recommended by the latest structural engineer’s report, as detailed in paragraph 13 above. It would therefore be reasonable for the landlord to confirm whether the engineer’s recommendations were followed, and if not, to explain the reasons why.
23. As per this Service’s remedies guidance, compensation awards from £250 to £700 may be awarded where considerable service failure has been found, but there may be no permanent impact on the resident. Examples could include:
    1. The resident being given inadequate information, and having to chase the landlord to progress the complaint.
    2. Failure to address repairs in accordance with its policy.
    3. The landlord not taking responsibility for sub-contracted services.
    4. Repeated failure to meaningfully engage with the substance of the complaint, leading to considerable delay in resolving the complaint.
    5. The impact experienced by the resident could include distress, inconvenience, time and trouble.
24. Therefore, the landlord has been ordered below to pay the resident direct financial compensation, which is in accordance with this Service’s above guidance, and to reflect its above failings. It has also been ordered below to ensure that the plastering and redecorating works at his property have been completed, and to confirm whether it has carried out the works recommended in the structural report, and if not, to explain the reasons why.

Determination (decision)

25. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way it handled the resident’s reports of cracks in the walls of his property.

Reasons

26. There had been an unacceptable delay in carrying out the repair, and the landlord has failed to provide sufficient evidence of its monitoring of the progress of the required work.
27. The landlord failed to inform the resident of the progress of his repairs, as it was obliged to do. It also failed to provide an adequate response to his complaint about this.

Orders and recommendations

28. The Ombudsman orders the landlord to:
    1. Pay the resident total compensation of £500 within four weeks, compromising of:
       1. £250 for its delay in completing suitable repairs to address the cracks in the resident’s property’s walls.
       2. £250 for the resident’s resulting distress, inconvenience, time and trouble as a result of the complaint.
    2. If it has not done so already, contact the resident within four weeks to arrange for the plastering and decorating works to his property’s kitchen and lounge to be completed.
    3. Write to the resident within four weeks to confirm whether it has carried out the works at his property recommended in the structural report of 28 April 2021, and if not, to explain the reasons why.
29. It is recommended that the landlord:
    1. Review its record keeping processes for prolonged repairs and repair complaints, including for the retention of contact between it and its contractors, ensuring that there is a clear audit trail for these, which provides details of specifically when contact was made, what was said, what the agreed next steps, timescales and expectations were, and what actions subsequently took place.
    2. Review its staff’s training needs in relation to their application of its policies and procedures with regard to repairs, complaints and compensation, to seek to prevent a recurrence of its above failures in the resident’s case. This should include consideration of this Service’s guidance on remedies, at https://hos.dev.civiccomputing.com/about-us/corporate-information/policies/dispute-resolution/policy-on-remedies/, and the completion of our free online dispute resolution training for landlords, if this has not been done recently, at https://hos.dev.civiccomputing.com/landlords/e-learning/.
30. The landlord shall contact this Service within four weeks of this determination to confirm that it has complied with the above orders and whether it will follow the above recommendations.
31. The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.