Birmingham City Council (202109815)

REPORT

COMPLAINT 202109815

Birmingham City Council

19 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:
   1. missed appointments after reporting repairs to the bathroom floor, following a leak; and
   2. the landlord’s handling of the complaint.

Background

2. The resident had a secure tenancy in a two-bedroom flat, in a converted house. This started on 2 January 2017. The resident has since left the property and moved to private rented accommodation.
3. The resident is partially sighted and registered blind.
4. The resident reported a leak in the bathroom on 25 January 2021. The leak resulted in the bathroom floor needing to be replaced. This required an asbestos survey to be done. The survey was completed and reported submitted on 18 March 2021. An appointment was booked for 28 June 2021 for the works to the floor to be completed. The landlord changed the appointment to 2 July 2021 and there is no evidence they notified the resident.
5. The resident logged a formal complaint on the 25 June 2021. He was disappointed that the appointment had been changed without anyone telling him. He said he had taken time off work to make the appointment. He advised the date the appointment had been changed to, was not convenient for him, and wanted to know why it had been changed. In response, the landlord said the planner had changed the appointment but could not give a reason why. It said that it had been fed back and addressed. The appointment was rescheduled with the resident for 13 August 2021.
6. The resident remained dissatisfied with the landlord’s response and escalated his complaint. He was unhappy with the lack of reason given to why his appointment was changed, and that the repairs remained outstanding (at that point). The resident wanted compensation for wasted time and loss of earnings, and for the repair to be completed. The landlord apologised for the poor service and for the appointment being changed without notice. They said that it had brought the complaint to the management team in the weekly service delivery meeting but could offer no further information as to why it had been changed.
7. The resident bought his complaint to this Service. He said that there had been further missed appointments and that he had missed work as a result. He also felt that the landlord had not provided a full response to his complaint, and the repair was still outstanding.
8. The outcome the resident is seeking, is compensation for the loss of earnings for the missed appointments, and for the stress, distress, and inconvenience the outstanding repair has had on him and his family.

Assessment and findings

The landlord’s duties

9. The tenancy agreement is a legally binding document that both the resident and the landlord are bound by. Under section 8 of the tenancy handbook, the terms, the landlord is responsible to keep in repair the structure and exterior of the property. There is a further duty on the landlord under section 11(1)(a) of the Landlord and Tenant Act 1985 to repair the structure and exterior of the property.
10. Where a repair is raised, the law states that a landlord must inspect to determine if it is responsible to repair. Where the landlord is responsible, it must conduct a repair within a reasonable time. What is a reasonable time will depend on all the facts, including the type of repair. In most cases, landlords have repairs policies which set out when repairs ought to be completed.
11. In this case, the landlord’s repairs policy states that for urgent repairs, it will respond within one, three or seven working days. A leak is an example of a one-day repair response. The repairs policy states routine repairs will be completed within 30 working days. The policy further states that all responsive repairs were to be agreed upon by appointment.

Missed appointments after reporting repairs to the bathroom floor following a leak.

12. The resident reported a leak in his bathroom on 25 January 2021. As per the repairs policy, the landlord responded within one day. The repairs history states the leak was stopped and repaired on 26 January 2021. This is in line with the landlord’s repairs policy for urgent leaks.
13. As a result of the leak, the bathroom floor needed to be replaced. The repairs history log this as being requested on 29 January 2021. Before the work could be started, the landlord required an asbestos survey. The repairs log shows that the asbestos report was uploaded on 18 March 2021. It confirmed that there was no asbestos in the floor tiles and their adhesive. Once this was established, the repair could be completed. It is not clear why there was a delay between 29 January 2021 and 18 March 2021.
14. An appointment to do the work was not scheduled until 28 June 2021, a further three months later. This was therefore not in line with the landlord’s repairs policy of 30 days.
15. The appointment was changed to 2 July 2021, but was not communicated to the resident and is the basis of his complaint. The implied terms in section 11(6) of the Landlord and Tenant Act 1985 require landlords to give at least 24 hours written notice of an appointment. The landlord failed to comply with this.
16. The resident was not able to make the rescheduled appointment. He had already taken time off work to attend the appointment on the 28 June 2021. The appointment had to be re-scheduled to 13 August 2021 and was agreed with the resident.
17. The repairs history logs the repair to the flooring as being completed on 13 August 2021.
18. This is not the case, and according to a further entry on the repairs log, the repair was not completed until 31 January 2022. The resident is unable to recall dates or how many appointments were missed. The landlord’s records are also not clear as to what further appointments were made and why, but does list some as ‘no access’.
19. This Service is unable to establish if, and how many appointments were missed or rescheduled. The landlord’s records do confirm that that there were further leaks in the bathroom, and that the landlord was responsible to complete further repairs, and that the repair to the bathroom floor was not completed until 31 January 2022, this is 12 months from the date it was raised. This Service considers that to be unreasonable.
20. In summary, whilst the landlord attended and repaired the leak in a timely way, the landlord took from 29 January 2021 to 31 January 2022 to fully rectify the repairs in the bathroom. Whilst there were some further leaks, the landlord has not shown that the time taken to repair the bathroom floor was totally outside of its control. This Service considers that the landlord did not fulfil its obligations to the resident and has not recognised its service failures.
21. On this basis, the landlord is responsible for maladministration and so is responsible to pay compensation. It is not clear if the bathroom could be used during this period. There is no evidence here that the landlord considered that the resident was partially sighted and how the flooring in the bathroom could have placed the resident at a risk of harm. The Ombudsman would expect landlords to consider this and document what steps it had taken to ensure the property was safe for the resident.
22. On this basis, the landlord must refund 12% of the rent for the period the repair remained outstanding, namely from 26 January 2021 to 31 January 2022.
23. In addition, there will have been distress and inconvenience involved given there were also missed appointments. The landlord’s internal records are not completely clear on what occurred with the appointments. Therefore, a compensation payment for distress and inconvenience of £150.00 is awarded.
24. I have carefully considered the resident’s request for loss of income. The resident was under a contractual obligation to give access for repairs and the tenancy agreement does not make provision for complying with this obligation. Even though there were missed appointments, there is no documentary evidence to show a loss of income, or the level of income lost. Lastly, it would be for the resident to mitigate his losses, and there is no evidence that it was totally necessary for him to lose income, and whether there was provision for someone else to wait in or arrange a key safe with the landlord, so income was not lost. In this case, the Ombudsman does not consider an award can be made for loss of income.

The landlord’s handling of the complaint

25. The resident logged a complaint with the landlord on 25 June 2021. The resident was not happy that the appointment scheduled for 28 June 2021, had been changed to 2 July 2021 without him being notified. The resident stated he had taken time off work for the appointment and that he could not make the 2 July 2021. The resident wanted to know why the appointment had been changed.
26. The landlord responded on 19 July 2021. It confirmed that the appointment had been changed by the planner on the 2 June 2021. It confirmed that no one had notified the resident of the change and apologised for this. The landlord admitted it was not the correct process, and that it would feed this back.
27. The landlord had until 9 July 2021 to respond to the complaint under the Complaint Handling Code. There is no evidence it updated the resident to say the response would be delayed. That was a failure by the landlord.
28. The landlord however, was not able to answer why the appointment was changed. This would indicate that no notes were made or recorded on the landlord’s system. This Service would expect the landlord to have good record keeping in order to evidence its actions, it failed to do so, this is a service failure on the part of the landlord.
29. The complaint was escalated on 25 August 2021 and asked it to formally respond and complete the outstanding repairs to the bathroom. The stage two response was issued on 22 September 2022 – which was within the 20 working days as required by the Code.
30. The landlord stated that they continually remind the contractor of the process, and that they have raised this in the weekly management meeting. The response was fairly limited and did not advise on how it intended to resolve the outstanding repairs at that time. The Ombudsman’s Complaint Handling Code makes it a requirement to address all complaint issues and the complaint responses were defective in that regard.
31. In summary, the landlord’s handling of the complaint fell short of what this Service would expect. It failed to demonstrate adequately that it had investigated the complaint, and it did not have the records or notes to be able to answer the resident’s question about ‘why’ the appointment had been changed. The landlord did not take the opportunity to use the complaints process to put things right, and adequately address the service failings. The landlord should pay £150.00 compensation in view of the errors in its complaint handling. This is in line with the Ombudsman’s remedies guidance set out above.

Determination

32. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord for the missed appointments after reporting repairs to the bathroom floor following a leak.
33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the complaint.

Orders

34. The Ombudsman orders the landlord to:
    1. pay the resident compensation, for the loss of enjoyment of his home based on 12% rent refund from 26 January 2021 (when the repair was reported) until 31 January 2022 when the repair was completed. The landlord must provide the resident and the Ombudsman with the figures (including rent level for the period) within 28 days of the date of this determination.
    2. pay the resident £300 as follows:
       1. £150 to recognise the distress and inconvenience caused by the missed appointments and lack of communication; and
       2. £150 for the distress and inconvenience caused by its poor complaint handling.
35. The payment should be made within 28 days of the date of this decision.

Calculation for compensation based on rent.

36. Work out the total rent paid by the resident between 26 January 2021 to 31 January 2022 based on the rent debits on the rent statement.
37. Multiply the amount by 0.12.

Example

* Based on average social rents in Birmingham for 2021/22: Live_Table_702_Jan_23.ods

**10% of the rent – worked out as multiplying the rent by 0.12

Recommendations

38. This Service has already conducted a Paragraph 49 Investigation into the landlord. We strongly recommend that it uses this case, to reflect what it would have done differently with this complaint, had the recommendations of the paragraph 49 been in place at the time. This would support the learnings identified around complaint handling, compensation, record keeping and its handling of repairs.