Hackney Council (202102440)

REPORT

COMPLAINT 202102440

Hackney Council

28 February 2022

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’s complaint was about:
1. The landlord’s response to the resident’s request for redecoration following a leak into her property.
2. The landlord’s response to the presence of asbestos in her property.
3. The landlord’s response to the resident’s request for a transfer.
4. The landlord’s complaint handling.

Background and summary of events

The resident occupied a three-bedroom property under a secure tenancy, together with her husband and four children. During the course of events, she gave birth to her fifth child. She occupied the property as a decant from her home, which site this report will refer to as an “estate”, which was being redeveloped as part of a regeneration programme. The estate was not due to be ready for the resident to return to until 2024. The resident reported suffering from an anxiety disorder during the course of events.

Legal and policy framework

Under the tenancy agreement, the landlord had an obligation to repair the structure and outside of the property (including drains, gutters and external pipes).
It also stated that it accepted only those duties in relation to repairs which were pursuant to section 11 of the Landlord and Tenant Act 1985.
Under section 9a of the Landlord and Tenant Act 1985, the landlord also had a duty that the property was fit for habitation in relation to asbestos. The landlord was not entitled to contract out of that duty. That section came into force on 20 March 2019 for new tenancies and on 20 March 2020 for all properties.
Under section 325 of the Housing Act 1985, members of the opposite sex who were not living together as a married couple or civil partners are entitled to their own bedroom. Children under the age of ten would be left out of account. Under section 326 of the same act, no account would be taken of a child under the age of one and a child aged one or over but under ten shall be reckoned as one-half of a unit. The act also had regard to room size.
Under the repairs policy, due to the coronavirus pandemic, the landlord was working through a backlog of repairs issues, therefore non-urgent repairs would take slightly longer to fix than usual.
The landlord categorised repairs into the following priorities.
1. It would attend to an immediate repair within two hours to make sure that there was no danger to residents or serious damage to property. Where further repair work was necessary, a follow-up visit would be arranged to complete the repair. Examples of immediate repairs include: flooding, danger to life and limb.
2. It would attend to an emergency repair within 24 hours to make sure that there was no danger to residents or serious damage to property. Where further repair work was necessary, a follow-up visit would be arranged to complete the repair.
3. It would attend to an urgent repair within 5 working days.
The landlord’s complaint procedure was a two-stage process. Under the landlord’s complaints policy, it aimed to respond at stage one within an average of 10 working days. However, in some cases, it might take longer. It would contact the resident to inform them of the outcome of the investigation and the action taken to resolve the complaint
It also had the option to investigate complaints that required a thorough investigation and a more detailed response. It would inform the resident of the need for an extension as soon as it could, usually within 5 working days of logging the complaint
If the resident was not satisfied with the stage one response, they could ask for the complaint to be escalated. At this stage, the complaint would be investigated by a team independent of the service complained about within the Chief Executive’s Office. It aimed to respond at the second stage within an average of 20 working days.
Under the landlord’s compensation policy, it paid financial redress for avoidable distress, harm, risk or time and trouble. The amount depends on the circumstances of the case.
1. Distress – A remedy payment for moderate distress was often a sum of between £100 and £300.
2. Harm or risk of harm – Where the landlord’s failure exposed a complainant to the risk of harm (rather than actual harm), a remedy payment of up to £500 would usually be an appropriate acknowledgement of the impact of the fault.
3. Time and trouble – generally related to where fault is found in the way the landlord considered a case or complaint and it had taken the complainant a great deal of time and effort to challenge a decision which was ultimately found in their favour. Where warranted, this was unlikely to be less than £100 or more than £300.
When awarding compensation, the landlord would take the complainant’s circumstances into account. A disability or health condition might make a complainant less able to cope with the impact of the fault it had identified. If so, its recommendations for the remedy should be considered and potentially reflect this.
Its guidance on compensation was aligned to the approach of the Housing Ombudsman. It cited compensation for avoidable inconvenience, distress, detriment or other unfair impact of maladministration or service failure i.e. time and trouble. It also referred to this service’s remedies guidance on awards of i) £50 to £250, ii) £250 to £700, and iii) awards of £750 and above.
The landlord did not provide to this service any policies in relation to decant or management moves. The landlord provided its transfer procedure to this service but not its transfer policy. Its transfer procedure warned of the scarcity of social housing and proposed alternatives such as exchange.

Asbestos

The landlord’s asbestos policy stated its overall aim is to prevent, or to minimise to as low a level as reasonably practicable. An incident that gave rise to immediate emergency action was limited to circumstances where an uncontrolled release of asbestos had taken place or where exposure reached a specified criteria. Remedial works would include encapsulation. Removal would be where it was not practical to repair, seal or encapsulate the relevant areas.
According to the Health and Safety Executive (HSE) in the UK, asbestos is not dangerous for the occupants if the building material is in good condition. In summary, if existing asbestos-containing materials (ACM) are in good condition and are not likely to be damaged, they may be left in place, their condition monitored and managed to ensure they are not disturbed.
In addition to the landlord’s duty under section 9a of the Landlord and Tenant Act 1985, the landlord had an obligation to keep the property fit for habitation in relation to hazards, including asbestos. Under section 4 of the Defective Premises Act 1972, the landlord owes a duty to occupiers to take such care as is reasonable, to see that they are reasonably safe from personal injury due to any defects in the premises.
The presence of asbestos itself does not constitute disrepair. However, if it is damaged or has deteriorated and there is the risk of asbestos dust, then the landlord should act to prevent disrepair arising. In summary, there is no duty on the landlord to remove asbestos unless it had been damaged or it has deteriorated and presents a health risk to the occupier.
The duty of a landlord also extends to carrying out risk assessments before work at the property is carried out. There is no legal obligation on the landlord to inform residents of where the asbestos is situated in their homes. A local authority has a duty to address hazards in the home under the Housing Act 2004 and under the Environmental Protection Act 1990 to address statutory nuisance, which asbestos may be deemed to be. However, a local authority cannot enforce legal obligations against itself as a landlord.
The Decent Homes Standard guidance (June 2006) states that “problems with the landlord’s stock should already be known to them – for example the extent to which radon affects housing in affected areas, or the presence of asbestos. Landlords should ensure that future surveys help them assess the extent of hazards typical in their stock”.

The coronavirus pandemic – Lockdown

England went into lockdown on 26 March 2020 until 10 May 2020. Lockdown recommenced on 5 November 2020 and ended 2 December 2020. It began again on 6 January 2021. Even once lockdown had ended, there were a number of restrictions in place in relation to social distancing. In addition, non-emergency repairs built up during the lockdown period, which created a backlog of repairs.

Chronology

According to the landlord’s works order history, which is partially illegible, the landlord raised a repairs order on 2 December 2019 in relation to a leak under the bath into the living room underneath. The repair was cancelled. The resident reported a leak from the bathroom on 13 January 2020. The outcome was marked “unknown”. A job was raised on 5 March 2020 in relation to a “damaged” toilet. The job was cancelled. On 19 March 2020, the resident reported no water in the property. Again, the job was marked cancelled. There were no explanations for the jobs being cancelled.
The resident wrote to the landlord on 9 April 2020 stating that she was waiting for the landlord to redecorate after its plumber, when repairing the water tank after a loss of water in her property, had caused a leak that came through the ceiling and damaged the ceilings and surrounding walls. There was a leak under the bath that came through the living room ceiling and caused a hole in the ceiling which also needed repairing.
According to the landlord’s repair records, on 6 May 2020, the resident reported the water tank in the loft was leaking.
The landlord replied on 19 June 2020, stating that it had a limited repair services available and was attending emergencies and immediate jobs only.
The resident wrote to the landlord on 7 August 2020 asking to be placed on the bidding system for a transfer, or whether she had to return to her original estate. She would accept returning to her original estate if it was not an option to transfer elsewhere.
On 10 August 2020, the landlord replied that the resident would have to return to the original estate. On the same date, a housing advisor wrote to the landlord on behalf of the resident that she was concerned that, with a fifth child on the way and her stepson living there, there would not be a big enough property in the estate that she was to move back to in 2024. She suggested another scheme that would be readier sooner than her original estate.
The landlord replied on the same day that the resident’s stepson had been rehoused over a year previously. The prospective 4-bedroom unit on the redeveloped estate was a very generous size maisonette. It enquired whether the resident was willing to move to another estate or block and whether there would be a unit big enough to accommodate the resident’s needs, in which case the resident could apply. The housing adviser agreed that the property would be large enough. She checked there were seven bed-spaces but accepted that the fifth child would not be counted until it was a year old, which fitted in with when the resident would be moving in. The resident was currently in a three-bedroom property. In the circumstances, she considered that the resident would not get priority in bidding for an alternative home.
On 8 September 2020, the resident wrote to the landlord chasing the repairs to her redecoration.
The landlord arranged for a surveyor to attend the property which he did on 29 September 2020. A job was raised to renew the plasterboard, redecorate the living room and parts of the landing and ceiling. The records the landlord provided to this service were not complete.
On 17 November 2020, the resident wrote to the landlord that the contractor’s surveyor identified that the Artex in her ceilings contained asbestos. Plasterboard had concealed the Artex in the living room and was exposed as a result of the leak and was present in the Artex under the plasterboard. She felt she should have been notified of its presence and an asbestos survey should have taken place. She was very concerned, because she had cleared up the debris when the ceiling fell through. She was now aware it possibly contained asbestos which caused her a great deal of anxiety. She wanted information about an asbestos survey.
The next day, the landlord raised an order to remove textured coating (the Artex) beneath the plasterboard in the living room and remove the lounge ceiling. An asbestos report was already in existence. It stated there was no ACM present in the lounge. The landlord also noted that the Artex ceiling had been concealed and had not been evident.
The landlord wrote to the resident on 18 November 2020 to state that Artex was a low-risk ACM as there was only a small percentage of asbestos (3-5%) and the fibres were bonded into the paint. Given that the Artex was also covered by plasterboard, the risk to the tenants was minimal. It informed her that it was arranging for the removal of the ceiling.
On 26 November 2020, the resident forwarded to the landlord an email dated 25 November 2020 to her housing adviser. The email stated that the landlord should have provided the asbestos report to the contractors. She wished to know where she would be moved to while the works were carried out. She did not have the space to move her furniture. She was also concerned about the risks of staying in the property while asbestos was being removed. She asked whether the family could be moved permanently. She requested she be placed onto an “urgent” transfer list. She had been informed it would be a possibility if there was not a property large enough at her original block she was to return to. According to the landlord’s internal emails, the landlord spoke to the resident but there is no evidence of that conversation.
The resident wrote to the landlord on 12 January 2021 as a complaint. She had not been contacted about the removal of the asbestos. She was very anxious about the asbestos and suffered from an anxiety disorder. She also said she had written to the landlord requesting to be placed on a transfer list and that she had stated that she would give up her right to return to the previous estate and transfer to a permanent home rather than be moved to a decant and moved again.
On 14 January 2021, the landlord stated in an internal email that it had been unable to contact the resident due to her number being unobtainable. It had written to her on 3 December 2020 but had received no response. Another number was provided from the landlord’s records.
On 14 January 2021, the resident wrote to the resident stating that the contractors had contacted her regarding removing the living room ceiling. They had requested photos of her furniture in order to facilitate its removal which she provided on 18 January 2021. It was causing her a great deal of inconvenience and stress, and she again enquired about a transfer.
On 19 January 2021, the landlord wrote to the contractors to instruct them to only remove the damaged area and not the entire ceiling, in accordance with its surveyor’s advice. This would mean that only half of the room would need to be cleared out or furniture moved to one end of the room.
The resident wrote on 18 January 2021 asking whether having the asbestos exposed for this duration could have presented a health risk. She was anxious about this, particularly as she had five young children including a new-born baby.
The asbestos removal took place on 22 January 2021. A reassurance air test was carried out on the same day. An air test certificate was issued by an accredited specialist in accordance with guidance issued by the HSE dated 22 January 2021 which found that the outcome of the test was satisfactory.
The landlord wrote to the resident on 22 January 2021 to inform her that the asbestos had been removed and it was awaiting to hear regarding replacing the plasterboard and redecorating.
The resident reported on 23 January 2021 that water was leaking through a gap in the living room ceiling left from the asbestos removal. The asbestos had been encapsulated but she could see the water pooling underneath. She was concerned that the ceiling could collapse. She requested that the landlord attend to inspect.
On 27 January 2021, it arranged for a plumber to attend as an emergency. According to the landlord’s internal email, the leak was repaired the following day. The resident reported the leak was still continuing on 1 February 2021.
On 25 February 2021, the landlord wrote to the resident in response to her complaint of 12 January 2021 as follows:
1. It recapped the chronology of events.
2. The resident had requested to be placed on the urgent transfer list to be moved into a suitable property as soon as possible.
3. It summarised the desired outcomes as
  1. To be placed on the urgent transfer list.
  2. For the asbestos to be removed.
  3. Redecorations of the ceilings.
4. It concluded that:
5. The only work outstanding was the fitting of a new bath panel. This was delayed due to the pandemic.
6. The asbestos was removed on 21 January 2021.
7. The contractor had contacted the resident on 23 February 2021 to offer an appointment to carry out the remedial works and was in the process of arranging this.
8. It apologised for the delay which it said was due to lockdown.
9. It offered £50 compensation for her time and trouble.
10. It referred her to another team regarding her request to be placed on the urgent transfer list in order to carry out a full assessment of her housing needs.
On 25 February 2021, the resident requested a review as she was not happy with the level of compensation.
On 3 March 2021, the resident wrote to the landlord to say that she was concerned that there was only a partial removal of the asbestos and there was a large hole still waiting to be fixed once the leaks have been properly fixed. She was concerned that there was an opening to the ceiling containing asbestos underneath as the water weight pushed down the sealing tape around the plastic the contractor had fixed over the hole. On the same day, according to an internal email, the landlord considered that the resident did not have decant status so the landlord was unable to consider her request at that time but would liaise with the developers in order to ensure a four-bedroom property is built to rehouse her family back onto her original estate. It understood that no new homes would be delivered to an alternative estate for another 2 to 3 years.
The resident wrote on 11 March 2021 to request that the landlord clarified the risk posed to her and her family by the asbestos being left exposed and damaged for a prolonged period of time. She also requested a copy of the asbestos report. On the same day, the landlord arranged for contractors to attend the property to carry out repairs to the ceiling on 2 April 2021, to be monitored by a surveyor.
On 12 March 2021, the resident explained that her doctor needed to know what type of asbestos it was before they would be able to advise whether the asbestos was a potential hazard. On the same day, the landlord sent to the resident the asbestos survey report dated 25 July 2014 and the air test report dated 22 January 2021.
According to the asbestos report, the highest risk level of the asbestos in the property was “minor”. None was identified in the living room. As part of its generic recommendations, not specific to the property, it recommended that appropriate investigation works should be carried out prior to the commencement of any refurbishment or demolition works. If any suspicious materials thought to contain asbestos were found, and were not included in this report, they should be sampled and analysed by an accredited specialist laboratory.
There was an internal email exchange on 17 March 2021. The conclusion after reviewing the resident’s issue of a move was that the landlord had decided the resident would return to the original estate. However, she could be moved “due to the asbestos”, which the Ombudsman takes to mean the landlord would consider a move where asbestos or risk from asbestos was present. As the exposed asbestos had been removed and the ceiling was due to be repaired, the landlord felt the prospect of a management move was unlikely.
The landlord wrote to the resident on 17 March 2021 with its second stage response as follows:
1. It had sent her the reports she had requested.
2. Following the ceiling being damaged in “June 2020” due to a water leak, it had arranged an appointment on 2 April 2021 to carry out the necessary repairs.
3. It stated that the landlord was unable to make her a direct offer or give urgent band status as she was already occupying a decant property. It asked her to update it regarding any further update. It did not specify what update it was seeking.
4. It apologised for the leak in her property which she said had caused her ceiling to fall through.
5. The asbestos was removed on 21 January 2021.
6. It had sent the associated paperwork regarding the asbestos.
7. It apologised for the delay and that she had experienced avoidable inconvenience and distress.
8. It offered her £250 in addition to the £50 it had offered at stage 1.
On 17 March 2021, the resident replied that she felt the offer of compensation was minimal considering she was exposed to asbestos which caused her anxiety forthe future, in addition to the stress and inconvenience. The problems with the leaks were in addition to her wanting to be stable in a home. The landlord did not respond to her email regarding her being rehoused. She wrote further to state that her chest x-ray results were normal but she had been informed that asbestos could have effects that did not manifest themselvesfor 20-30 years.
The resident wished to clarify that, while asbestos was safe because it was behind the plasterboard, the asbestos debris fell and there was a very large hole which, if not covered, would leave the asbestos exposed until the plasterboard was to be replaced. She had stuck the tape back down over the covering plastic so it would be safe until it was fixed.
On 19 March 2021, the landlord’s asbestos officer stated that the ACM was originally applied to the ceiling plasterboard. It then appeared that rather than removing the textured coating, a contractor had applied another layer of plasterboard over the textured coating. Therefore, ACM was not behind the plasterboard, it was sandwiched between 2 layers of plasterboard. There was only 1% – 3% of asbestos in the textured coating, with the asbestos fibres firmly bonded, within the coating. As the textured coating was encapsulated by the layers of plasterboard, the risk was negligible. The officer pointed out that the work carried out by the asbestos contractor was deemed very low risk and was classified by the HSE as non-licensable work, meaning that work did not have to be carried out by a licensed asbestos contractor.
The resident informed this service that she was of the view that the landlord had been at fault and had caused a great deal of distress. Its operatives had caused the leak and missed appointments. She felt the landlord’s decision to only remove some of the asbestos was due to the difficulty emptying the room.

Assessment and findings

During the period of the resident’s complaint and in her correspondence, there was evidence that the resident had raised concerns about delays to the landlord attending to the loss of the water supply in the property and delays to repairing her toilet. The resident also raised concerns about the quality of the contractors’ works, specifically its plumbers both causing the leak and not repairing it. However, the resident did not raise these issues in her formal complaint considered by the landlord. In the circumstances, they do not form part of this investigation. It may be that the resident did not wish to raise those concerns in a complaints process but in any event, the landlord has not had the opportunity to consider those concerns. In the circumstances, they do not form part of this investigation. If the resident wanted these issues investigated, she would have to raise a fresh complaint.
This investigation has been somewhat hampered by the quality of the records provided by the landlord. However, it is noted that this may partly be due to a cyber-attack that occurred in or before October 2020. Some of the records, notably the repair records, have been difficult to interpret and were incomplete. However, other missing or incomplete documents, such as policies and events that took place after October 2020, cannot be attributed to the cyber-attack.
The Ombudsman bases its decisions on the documentary evidence provided to it by the parties and there is an expectation that the landlord, as the professional organisation with resources available to it, should be in a position to provide adequate evidence of its actions. The gaps in the information have been highlighted throughout this report. The landlord should therefore take steps to ensure that its record-keeping practices are adequate, and that care is taken to provide all necessary documentation requested by the Ombudsman for its investigations. Good record-keeping is vital in order to maintain a record of the landlord’s actions. It is also important in instilling confidence in the landlord in its management systems and information.

The landlord’s response to the resident’s request for redecoration following a leak into her property.

The evidence of when the leaks appeared is not clear. However, the initial report in relation to a leak from the bath through the ceiling into the living room appeared to have been made on 2 December 2019. A second leak occurred, according to the resident, when the landlord’s plumbers attended to the loss of water, which was on a date after 9 March 2020.
There was an inappropriate and unreasonable delay by the landlord in that it did not reply to the resident’s email of 9 April 2020 for over two months. While its explanation that it was only carrying out emergency repairs at the time due to the pandemic was reasonable, the landlord should have been more proactive in updating the resident. Moreover, it had from December 2019 to 26 March 2020 to carry out the remedial works prior to lockdown beginning. However, given the landlord would have encountered the issue of the asbestos, the remedial repairs would have been delayed in any event.
While the landlord signposted the resident to its website, there was no evidence that the landlord updated the resident individually at all, until, on being chased, it arranged for a surveyor to attend on 29 September 2020. The landlord then acted promptly to arrange for the works to be carried out. It was reasonable that the redecorations were delayed until the asbestos in the living room ceiling was addressed.
Once the asbestos was removed on 22 January 2021, there was a further unexplained and inappropriate delay to the remedial works being carried out. The overall delay lasted from December 2019 to April 2021, a delay of 16 months. A significant period was due to the pandemic and the requirement to address the asbestos, without which the delay would have been nine months, six of which were due to the pandemic. The impact of the pandemic would have occurred in any event, given the asbestos. The delay to addressing the asbestos will be dealt with below.
When considering disputes about the level of compensation, the Ombudsman takes into account a landlord’s own compensation policy and also this Service’s own Remedies Guidance when assessing whether an offer was reasonable. The Ombudsman’s compensation awards are not punitive, are generally moderate and take into account the landlord’s need to make the most effective use of its limited resources as a social landlord. In the circumstances, the Ombudsman finds that £300 was reasonable redress in relation to the delay in the remedial works and in line with the levels of compensation the Ombudsman would expect. If the landlord had not increased its offer of compensation to £300, the Ombudsman would have found maladministration in relation to the delays in carrying out the remedial works.

The landlord’s response to the presence of asbestos in her property.

The resident’s concern and anxiety regarding asbestos is understandable, in particular as she cleared up the debris from the fallen ceiling. Asbestos tends to create understandable concern and anxiety in residents, however, it is not necessarily dangerous in itself.
While the landlord is not obliged to remove asbestos where it does not pose a risk, the Ombudsman’s role is to consider the landlord’s responses to those concerns, including whether it acted in accordance with its legal obligations and its policies.
Part of the resident’s complaint was that the landlord should have notified the resident there was asbestos present at the outset. While the resident’s concern was very understandable, the landlord had no obligation to inform the resident that asbestos was present in the property and in any event, no asbestos had been identified in the living room.
Once the artex was exposed, it was appropriate of the landlord, through its contractor, to identify the presence of ACM. While it was not clear why there was a gap between the landlord’s surveyor first assessing the decorations and the contractor’s inspector identifying asbestos, it was also reasonable that the landlord raised a job to remove the ceiling and also commissioned an air quality report.
It was also reasonable that the landlord tried to reassure the resident on her contacting them regarding the risks of the asbestos, made enquiries and that it sent her the 2014 asbestos report and air quality report.
There was an inappropriate delay to the removal of the living room ceiling. According to the landlord, this was due to not receiving a reply from the resident to a letter dated 3 December 2020. However, the evidence showed it was using the incorrect telephone number, given the correct number was in its records. There was a further delay in the contractor and the resident agreeing how to manage the works which was resolved by the decision to only remove the damaged section of the ceiling. There was no evidence that the landlord’s decision to only remove part of the ceiling was motivated by the practical difficulties posed by moving the resident’s furniture.
The resident was concerned that the landlord only removed part of the asbestos. Again, while the Ombudsman recognises and understands the anxiety caused by asbestos, any risk caused by asbestos arises when material is damaged. The remaining asbestos was contained by the structure of the ceiling. The evidence showed that the contractor removed the damaged sections of ceiling which presented a risk.
The Ombudsman would not expect the landlord to take steps that were disproportionate to the risk, in terms of time, costs and disruption; for example, undertaking complex works with little practical benefit. The landlord’s duty was to encapsulate or remove any damaged ACM in the property. There was no obligation to remove all asbestos in a building, in line with the guidance issued by the Health and Safety Executive and the approach outlined by the Housing Health and Safety Rating System, both of which confirm that asbestos which is in good condition can be left in situ.
In addressing the asbestos, the landlord acted in accordance with its legal obligations, as well as seeking to reassure the resident by carrying out a fresh inspection and removing as many tiles as it was reasonably able to do.
However, the Ombudsman finds service failure in the overall delay in addressing the asbestos from September 2020, when it was first suspected, to January 2021. The Ombudsman also accepts the resident’s evidence that the seal came away from where the asbestos was encapsulated, pending repairs. While the evidence shows the delay was not in all of the landlord’s making, it should have been more proactive, given its own policies and the anxiety asbestos creates, and the raised or perceived risk of the asbestos in the ceiling having been exposed and the seal coming away due to a further leak. It would have been appropriate to have made an offer of compensation, in particular as the landlord’s policy provided for compensation where its fault exposed a resident to the risk of harm. However, when considering compensation, the Ombudsman bears in mind that the risk of harm from the asbestos was low, even when it was exposed.
There is no evidence either way as to whether the landlord recorded the presence of asbestos in its database and re-inspected the asbestos in line with the 2014 survey and the Ombudsman will make a recommendation in that regard.

The landlord’s response to the resident’s request for a transfer.

The landlord’s initial response on 10 August 2020 to the resident’s request to be placed on the housing register in order to transfer to another property other than in her previous estate was unreasonable. While the landlord has not provided its relevant policies to this service, the landlord should have considered the request or explained its decision. The term “right to return” implies an element of choice. It is reasonable to conclude that she no longer held a tenancy at the original estate but in the “decant” property, so it is difficult to see on what legal basis she would be obliged to return. However, the evidence shows that the resident did not set out her reasons for a move at that stage and stated she would accept the landlord’s decision to return to her original estate.
The landlord’s decision, that both the current accommodation and the property being built at the original estate was suitable, was appropriate, given the statutory and policy scheme regarding numbers of bedrooms per child and adult. The landlord acted appropriately in suggesting that the resident could apply to a different block or estate. The resident’s housing adviser did not consider the resident would get priority in bidding for any property, which would have been correct. It is therefore reasonable to conclude that the matter was not taken further, which was reasonable based on the evidence of the circumstances, and she would not have achieved an earlier move.
The resident’s email enquiry regarding a decant was sent to her housing adviser but she had forwarded it to the decant officer. While the resident’s email, referred to in her email to the landlord on 12 January 2021, was not provided to the Ombudsman, it is accepted that the resident sent it. There is not enough evidence to conclude whether or not the resident received a response to either. However, the condition of being placed on an urgent transfer list was that the property not being big enough, therefore she would not have had priority on the transfer list.
The later evidence showed that the landlord may have considered a management move due to the asbestos, by which time it was too late. However, the landlord, in considering a management move, would have borne in mind that the risk from the asbestos was low and the damaged ceiling was to be removed. Moreover, given the scarcity of social housing, it was unlikely the resident would have been able to avoid the asbestos works and move prior to the works taking place.
The resident’s desire to remove herself and her family from the property, given the asbestos and her desire for a stable home, was understandable. However, there was no service failure in not moving the resident given that she was at the time, and would be when she moved back to the estate, in a property suitable for her family needs. In any event, it was unlikely she would have been moved prior to the asbestos works being carried out, given the lack of suitable properties available at that time.
However, the landlord did not address the fundamental issue which was offering the resident a decant. While the resident did not frame her question as a request for a temporary decant, there is no evidence that the landlord considered a temporary decant. However, the resident’s emphasis was on a permanent home and a decant in the circumstances may not have been suitable or desirable. In the circumstances, there was no evidence of any impact on the resident of the landlord failing to consider a temporary decant prior to the works being carried out.

The landlord’s complaint handling.

There was an inappropriate delay between the date of the resident’s complaint of 12 January 2021 to the response, and equally from the date the complaint was escalated to the date of the second response of 17 March 2021. In addition, the landlord did not fully address the issues raised, including the delays to the works. Its response in relation to the resident’s request for a transfer was not clear. The landlord should have set out its reasoning for not offering a decant or move, rather than simply introducing a blanket statement that it would not do so as the resident was already in a decant, in particular as it had, in fact, considered the issue.
While the landlord investigated the complaint and rightly increased the amount of compensation, the complaint response did not take into account the resident’s circumstances as a mother of five children, which would have heightened her concerns, and her anxiety disorder.

Determination (decision)

In accordance with paragraph 55 of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress offered by the landlord’s response to the resident’s request for redecoration following a leak into her property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the presence of asbestos in the resident’s property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in relation to the landlord’s response to the resident’s request for a transfer.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaint handling.

Reasons

There was a significant delay to the remedial works to the resident’s property which caused her distress and inconvenience. However, in the opinion of the Ombudsman, the sum offered of £300 was reasonable redress, given the nature of the works and that fault was not entirely attributable to the landlord.
While the landlord identified the risk of asbestos, reassured the resident, and the risk was low, there was some delay to the addressing the asbestos.
While the landlord did not fully consider or explain its decisions regarding the resident’s request for a move, there was no evidence of any practical impact on the resident.
While the landlord investigated the complaint and rightly increased the amount of compensation, there was an inappropriate delay in the landlord’s response and it did not into account the resident’s circumstances.

Orders

The landlord is ordered to pay the resident compensation in the amount of £300, in addition to the sum the landlord has already offered, within 28 days as follows:
1. £200 in relation to the landlord’s response to the presence of asbestos in her property.
2. £100 in relation to the landlord’s complaint handling.
The landlord should confirm compliance to the Housing Ombudsman with the above orders within 28 days of this report.

Recommendations

The landlord should pay the resident the £300 compensation it previously offered to her, if it has not already done so, within 28 days.
The landlord should write to the resident to explain the position regarding the recording of the presence of asbestos in the resident’s property on its database and ensure that any operatives and contractors are aware of any presence of asbestos, given the recommendation of the survey.
The landlord to take steps to ensure that its staff maintain accurate and complete records, including of the repairs it undertakes and of telephone conversations, in order to keep track of its actions and decisions.
The landlord should ensure it updates its residents proactively of delays to carrying out repairs and remedial works.
The landlord should utilise its complaints procedure to explains the reasons for its decisions clearly and comprehensively.
The landlord should consider amending the terms of its tenancy agreements which appeared to limit its repairing duties to the implied duty under section 11 Landlord and Tenant Act 1985 and exclude any statutory duties that came into force subsequently.
The landlord should consider introducing policies in relation to decants, transfers and management moves.