Southwark Council (202004464)

REPORT

COMPLAINT 202004464

Southwark Council

29 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 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 resident has complained about the landlord’s handling of asbestos in her home.

Background and summary of events

The resident has a secure tenancy with the landlord for a two-bedroom flat.

Policies, procedures, and agreements

Asbestos Management Policy:

This sets out the general duties the landlord is bound by in its handling of asbestos e.g. it will confirm the presence of any Asbestos Containing Materials (‘ACM’) in all its premises; it will ensure that a management plan is in place to deal with any risks; it will carry out asbestos surveys and removal works in line with Health & Safety Executive (‘HSE’) guidelines. It states that where asbestos removal is necessary it will do so using approved licenced contractors and dependant on priority or as part of a planned refurbishment scheme.
The Council will provide information to occupiers of its premises of any ACM and it will provide advice on the dangers from disturbance of asbestos.

Compensation policy:

This sets out the levels of compensation awards depending upon the severity of the delay and distress. This should take into account the severity, length of time suffered, number of people affected and vulnerability.
It also allows for compensation for time and trouble and costs incurred by a resident.

Complaints policy:

The complaints policy allows for consideration of compensation and it states that compensation should be appropriate and proportionate. It is not an automatic payment and compensation should only be considered where the complaint investigation has identified maladministration (a mistake or delay that has caused a customer to suffer an injustice) and the landlord, or those working on its behalf, are wholly or partially at fault.

Summary of events

On 24 September 2019 the landlord carried out an asbestos survey of the resident’s flat in connection with planned refurbishment works to the kitchen, bathroom, and WC.
The asbestos report dated 4 October 2019 showed the following:
1. Purpose of report – The purpose of the survey was to locate the presence and extent of any ACMs in the building which could be damaged or disturbed during normal occupancy and which could be damaged or disturbed by the refurbishment works and to assess its condition.
2. Summary of findings – There were currently no urgent items requiring attention.
3. Bedroom 1 and 2 – ACM to be managed. This means that the ACM is found to be in a good to fair condition and is sufficiently sealed or encapsulated.
4. Material Assessment Score – ‘Very Low (3)’. This score refers to the ACM’s potential to release asbestos fibres. A score of 1-4 indicates that there is a very low risk from the asbestos.
5. Kitchen walls and floor tiles – ACM to be removed.
6. Bathroom and WC – no asbestos detected.
7. Lounge – no asbestos detected.
The resident has said that in October 2019 (the records are not clear on an exact date) the landlord’s contractor contacted her about refurbishment of the kitchen and bathroom. She says she was advised to clear the kitchen and bathroom to facilitate these works, which she duly did. She has also said that she took time off work to facilitate this.
On 1 November 2019 the contractors attended and were supposed to start the kitchen work but the resident has said that no work was carried out at this time, and that all she saw was ‘workmen in uniform in and out of my flat whispering among themselves in the kitchen’. The resident has said that he was only told that there might be a problem with the plastering in the kitchen and that this needed to be sorted out first before the kitchen refurbishment could be done.
The landlord’s records do not show what happened around this time and why no works were carried out.
The available evidence shows that on 4 December 2019 the resident logged a formal complaint with the landlord about the conduct of the contractors and the discovery of asbestos in her flat. She was unhappy that she was not told about the asbestos straight away and the asbestos report was not shared with her. She says that she emptied the contents of the kitchen and stored them in the living room and this was causing her inconvenience, especially for her son who uses the living room for studying.
The resident referred to possible health issues affecting her children as a result of the asbestos, and she asked that she be moved to a permanent new home immediately.
The landlord issued its Stage 1 complaint response on 27 December 2019:
1. It explained the findings of the asbestos survey and confirmed that the Artex and the floor tiles in the kitchen were to be removed as part of the planned kitchen works. It acknowledged that its contractors had advised the resident to clear out the kitchen and then failed to undertake any works on the agreed date or provide the resident with any updates. It apologised for this ‘unacceptable failing’.
2. The landlord asked the resident to provide details of the number of days she took off work and it said it would look into this further.
3. With regard to the ACM identified in the report, it said that this was of such a low-grade asbestos content that it was considered to pose no risk to occupants.
4. With regard to the resident’s request for immediate re-housing, it said that it was not possible to re-house her to enable the removal of the Artex and floor tiles because there was no risk to the resident or her family.
5. The landlord agreed to send the resident a copy of the asbestos report and it advised the resident that if she wanted her kitchen and bathroom renewed under the planned works the asbestos would need to be removed first.
The resident responded on 29 December 2019 and said that the time off work was the least of her inconvenience, and she was more concerned that she had not been able to have friends and family round for Christmas as the flat was still in a mess due to the kitchen items that were placed in the living room in readiness for the works.
The landlord acknowledged this on 30 December 2019 and it sent the resident a copy of the asbestos report on 7 January 2020. The resident requested that the complaint be escalated on 14 January 2020. She said that the flat was still in a mess with all the kitchen contents still in the living room and this was affecting her son’s schoolwork.
The landlord responded on 23 January 2020 and said that it understood the resident’s concerns about the asbestos but it maintained that there was no risk and the asbestos could be safely removed with the family in residence. It asked the resident to contact the contractors to agree appointments for the works to commence. It reminded the resident that the planned refurbishment works would be ending soon and it did not want her to miss out on the improvement works. It reiterated that it would not be possible to re-house her to do these works. The landlord also requested further details of the time off work.
The Stage 1 response also mentioned an unrelated issue with a report of damp made by the resident and it offered £50 compensation for a missed appointment is connection with this.
The resident responded on 26 January 2020 and reiterated that she was unhappy that she was not informed at the outset of the asbestos discovery and she maintained that she would not allow the asbestos removal to be done whilst she stayed at the flat.
The landlord responded on 27 January 2020 and explained that it can consider compensation for the days she waited in for the contractors when nothing was done. However, it needed the resident to first confirm the number of days she was off work waiting for the contractors. It also urged the resident to reconsider her stance regarding the kitchen/bathroom improvement works as she was at risk of missing out on the improvement works. The landlord maintained that it would be safe for the asbestos removal to go ahead without decanting the family.
The landlord issued its Stage 2 final complaint response on 31 January 2020:
1. It reiterated the original complaint and the Stage 1 response and summarised the further correspondence between the resident and the landlord.
2. It explained the findings of the asbestos report and why it did not require the ACM to be removed at this time.
3. It confirmed that the unrelated damp issue raised by the resident during the complaint had been passed to its Responsive Repairs team and a visit will be arranged to inspect this. It offered £50 compensation for a missed appointment in relation to an unrelated inspection for the damp.
4. With regards to the bedroom floor tiles it said that asbestos was noted as present in the floor tiles but no action needed to be taken at this time to remove these floor tiles.
5. It explained the process for specialist asbestos removal works and it said that the kitchen and bathroom refurbishment works cannot be completed unless and until the asbestos is correctly removed first.
6. It acknowledged the resident’s concerns and request to be moved out of the property whilst the asbestos works were being carried out. It explained that a decision on moving out could be made after the appropriate risk assessment is carried out prior to any asbestos removal works.
7. It explained that unless the resident allowed the asbestos removal contractors access, the landlord would not be in a position to refurbish her kitchen and bathroom.
8. As a result of this complaint it had asked the major works team to review how they communicate with residents regarding the presence of asbestos in their homes in order to alleviate any concerns that residents may have.
9. It apologised for the inconvenience caused when she was asked to clear out the kitchen and bathroom but no works took place. It also apologised for the poor communication from the contractors. It said that it had requested more information from the resident about her time off work but she had not provided this information. It said it would consider compensation if she provided this information.

Assessment and findings

The Ombudsman’s role is to consider whether the landlord’s handling of the discovery of asbestos in the resident’s home was in accordance with its policies, procedures, and any agreements it had with the resident, and whether it acted reasonably, taking into account what is fair in all the circumstances of the case.
The resident’s concerns and anxiety about the finding of asbestos within her home are duly noted. However, the Ombudsman’s role is not to investigate the level of asbestos in the home, but rather, it is to provide an independent review of the landlord’s actions in its response to the resident’s concerns. It can be seen from the resident’s correspondence that she believes that the presence of asbestos in the property posed a significant health risk, which, in her view, the landlord has failed to adequately address.
The Ombudsman understands that the presence of ACMs in a property does not, in itself, automatically constitute disrepair or place any repair obligation on the landlord. However, if the ACM is damaged and there is the risk of asbestos particles/fibres being released, then the landlord should act to repair the damage in line with its asbestos management policy.
Looking at the facts and the available evidence on this case, the landlord carried out an asbestos survey on 24 September 2019. The resident would have been aware that the survey had been undertaken. However, the landlord’s records do not show when the landlord actually notified the resident of the survey findings. The landlord has told this Service that the resident was only told about the survey findings sometime after the contractors were in attendance to start the kitchen refurbishment works. It has said that it accepts that there was a delay between it receiving the asbestos report on 4 October 2019, and its contractor advising the resident of the findings sometime in November 2019.
The landlord’s Asbestos Management Policy states that the landlord will notify all residents of the presence of any ACMs and provide advice on this. The policy does not stipulate any timeframe, but looking at the facts of this case, the landlord clearly delayed notifying the resident of the survey findings for at least a month, and there is no reasonable explanation for this delay.
The failure to notify the resident of the survey findings resulted in confusion and concern on the part of the resident, and uncertainty about the kitchen works. It also meant that her expectations were not properly managed with regards to the kitchen works and she was left not knowing what was happening with this.
In addition, the landlord also accepts that not only was there a delay in notifying the survey findings, but its contractors also acted unreasonably in incorrectly advising the resident to clear out the kitchen contents without first explaining that asbestos removal works were necessary. Furthermore, once the kitchen had been cleared, it did not act in a reasonable manner in that it did not carry out any further work and nor did it properly advise the resident of the next steps.
These failures meant that the resident was unaware of what was happening with the kitchen works, and she was left to live with the inconvenience of the kitchen items being stored in her living room for several weeks – including over the Christmas period, which she said was very disappointing. She has also said that the living conditions were not ideal and were adversely impacting on her son’s ability to do his schoolwork in the living room.
Whilst the landlord has apologised for these service failures, it has not evidenced that it considered whether compensation was warranted for this. The landlord rightly requested more information from the resident about her time off work, but it must be noted that the landlord’s complaints policy and compensation policy allow for compensation for general distress and inconvenience caused by any maladministration.
The Ombudsman also has discretion to determine the most appropriate remedy given the circumstances of the complaint. The Ombudsman has considered the landlord’s failures noted above, and whilst the landlord’s apology is welcome, it is not, in itself, sufficient redress for the failures.
In assessing an appropriate level of compensation, for the service failures 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 also considers whether any redress is proportionate to the severity of the service failure by the landlord and the impact on the resident. In this case there was an acknowledged failure to notify the resident of the survey findings in a timely manner and this subsequently impacted on the poor handling of the kitchen works.
The resident believes that she and her family have been left at risk of exposure to asbestos. The resident’s concerns are duly noted, but there is no evidence to show that there was any such risk. As mentioned above, the presence of asbestos containing materials in the home does not automatically mean exposure to asbestos or any risk to health. It is only if the material has been significantly disturbed, such that would allow asbestos particles to be released, that gives rise to any potential health risk. The resident has mentioned the risk of particle release, however, the evidence available to the Ombudsman does not substantiate this. The evidence provided by the landlord, in the form of the asbestos survey and report, confirms that the risk is very low and there is no requirement for any urgent action to be taken in respect of the identified ACM.
With regards to the removal of the asbestos and the resident’s request to be re-housed, it is noted that the landlord has dealt with this appropriately. The resident’s concerns and dissatisfaction were appropriately acknowledged during the complaint investigation and the landlord has explained its reasoning in its complaint responses. The landlord acted reasonably when explaining to the resident that it will consider if alternative accommodation is required during the asbestos removal works, and that any decision on this would be subject to the appropriate risk assessment being done first.
The Ombudsman duly notes the resident’s feelings on the matter, but looking at the facts and the available evidence, there is nothing to suggest that the landlord’s position was unreasonable in the circumstances. Whilst the resident has raised concerns about the potential risks of asbestos within the property, the Ombudsman has seen no evidence to show that the resident and her family were left exposed to any health risk or that the family needed to be re-housed to enable the asbestos removal.
In light of the service failures identified above, and taking into account the impact on the resident, the Ombudsman considers that an award of £200 compensation would be appropriate in this case.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of asbestos in the resident’s home.

Reasons

The landlord is not obligated or required to remove any ACM within the resident’s home and nor is it required to re-house the resident following the discovery of ACMs. The presence of asbestos in itself does not automatically constitute disrepair. However, if the material is damaged or deteriorating, and there is the risk of asbestos fibres being released, then the landlord should act to prevent a disrepair arising. In this case the evidence shows that there was service failure in the landlord’s initial handling of the kitchen works in that it failed to notify the resident of the asbestos survey findings and it mis-managed the kitchen works. It has accepted responsibility for this and has apologised. However, its acknowledgement of its error and accompanying apologies is insufficient redress and it failed to consider appropriate compensation for its service failures.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. Pay the resident £200 compensation for any distress and inconvenience caused by the service failures identified in its handling of asbestos in the resident’s home.
Evidence of the payment of compensation to be provided to this Service within four weeks.