Islington Council (202203216)

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REPORT

COMPLAINT 202203216

Islington 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 the landlord’s handling of the removal and replacement of the resident’s lounge ceiling, which included the removal of asbestos.

Background

  1. The resident has a secure tenancy with the landlord.
  2. On 27 November 2020, the resident reported a leak from the flat above his to the landlord. The leak was then traced and repaired by the landlord’s repairs team.
  3. A plasterer attended on 17 December 2020 and reported that the leak had caused artex to be blown off the lounge ceiling in the resident’s property. Because of this, the landlord asked its asbestos team to investigate further.
  4. On 6 April 2021, the landlord raised a work order for a contractor to reinstate the lounge ceiling. The landlord explained to the resident that this delay was due to the effects of the Covid-19 pandemic as its repairs team were carrying out a limited number of jobs at the time.
  5. On 16 June 2021 the contractor attended the property to begin work on the lounge ceiling.
  6. On 17 June 2021, the resident contacted the landlord and raised a stage one complaint. The resident said he did not know he would be left without access to the kitchen during the repairs, or that the protective plastic sheets in the lounge would be covered in white dust from the works. The resident said he was told by the contractor he should remove all furniture prior to the works starting. The resident thought that the works were due to be completed within a day, and as a result the furniture he had moved outside got wet from the rain.
  7. On 18 June 2021, the contractor completed the work to the ceiling.
  8. The landlord issued its stage one complaint response on 29 June 2021. It said there was no reason why the resident could not use the kitchen as it was not closed off during the repairs. The contractor had left polythene sheets up overnight with the resident’s permission to complete their work quickly the following day.
  9. Regarding the furniture, the landlord apologised that it got wet, but said it was assumed when the resident moved belongings for the works, they would have been ready and expecting to bring them indoors or protect them with temporary covering. The contractor would have provided a covering upon request. It also explained that damage to personal belongings was an insurance matter and outside of the remit of the repairs team. It explained if the resident wanted to make a claim, he would need to do so through his home contents insurance. If he did not have a policy in place the landlord said he could contact its tenancy services team for assistance.
  10. The landlord explained that the contractor had been in touch with the resident to schedule final painting works and the resident advised they were taking legal action and would not be scheduling the repairs. In conclusion, the landlord did not uphold the complaint because it identified no service failures by itself or the contractor.
  11. The landlord issued its review of the stage one response on 14 July 2021. It explained that because the resident did not want the contractor to return to the property, it had passed the issue on to its own team to arrange the reinstatement work. The resident confirmed they disagreed on the same day, and the landlord issued its stage two response on 8 December 2021. It apologised for the delay in responding, and recognised the response was outside of its own complaint timescales. It offered the resident £75 compensation to recognise this.
  12. The landlord recognised the contractor had initially told the resident that the works would take two days but that its asbestos team later advised the resident works could take two to three days. According to its notes, the landlord stated the resident was made aware of this change and was kept updated on the status of the works by the contractors on site. The landlord confirmed the resident was asked to move furniture to allow access to the work area. The landlord said the contractors offered to move the furniture back inside when rain was forecast and move it out again after the rain, but the resident declined this offer.
  13. The landlord confirmed that the white dust the resident had raised concerns about came from plastering works. It explained this was plaster dust and not asbestos because the asbestos was removed before plastering took place. It stated there was no need for the resident to vacate the property during the works.
  14. On 10 August 2022, the resident brought his complaint to the Ombudsman, as he did not think the landlord had dealt with the complaint properly or impartially. He wanted the landlord to accept its handling of the issue was wrong and to offer an apology for that and for delays in contacting him.

Assessment and findings

  1. 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: Be fair – treat people fairly and follow fair processes, put things right, and learn from outcomes.
  2. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation

  1. In his complaint raised with the landlord and his correspondence with the Ombudsman, the resident has mentioned that his health has been affected by the problems with repairs. The Ombudsman understands the resident’s concerns and anxiety about the asbestos, but the Ombudsman is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. The investigation of personal injury or damage to health and related compensation, is not usually completed within the complaints process; these matters are more appropriately addressed by way of the courts or liability insurers. The courts can call on medical experts, cross examine the parties and make legally binding judgements, including liability.
  2. This is in line with paragraph 39 (i) of the Housing Ombudsman Scheme, which states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to any concerns the resident raised about their health.

Repair delays

  1. The tenancy agreement states that the landlord is responsible for keeping the structure and outside of the property in repair.
  2. The landlord’s repairs policy sets out the response times depending on the type of repair needed. These range from 30 minutes to within 60 working days with the most urgent repairs given the highest priority.
  3. As mentioned previously, a plasterer raised the asbestos issue with the landlord on 17 December 2020. According to the information on file, a work order was not raised for this until 6 April 2021. The landlord has cited Covid-19 as a reason for the delay in works being carried out. However, a contractor did not attend the property to carry out repair work until 16 June 2021. The Ombudsman does recognise the impact Covid-19 had on services at the time, but it is not clear that a reason for the delays was communicated to the resident. Additionally, government guidance for landlords between December 2020 and June 2021 stated that landlords could take steps to carry out repairs under the national lockdown, provided they were undertaken in line with public health advice and the relevant Covid-19 legislation at the time.
  4. In total, the repair works took around seven months to start from when the problem was first reported. This is outside of the timescales in the landlord’s repairs policy, and it is not clear why the repairs took this long given the government guidance set out above. This caused a significant delay in getting matters resolved for the resident, who was understandably anxious about the presence of asbestos in the property.
  5. The landlord should pay the resident £250 compensation in view of the delays in repair work, lack of communication, and the subsequent distress caused to the resident while he waited for the work to be done. This is in line with the Ombudsman’s remedies guidance (published on our website) which suggests awards in this range where there have been errors by the landlord which affected the resident but there may be no permanent impact from these errors.

Asbestos removal

  1. The landlord’s corporate asbestos policy details its general approach to dealing with asbestos in the home. It confirms that works on asbestos will only be undertaken by a Health and Safety Executive (HSE) licensed asbestos removal contractor. The contractor the landlord used is licensed according to the HSE website.
  2. It is important to note from the outset of this investigation that it is not the Ombudsman’s role to decide exactly how works were carried out, whether cleaning was adequate, or otherwise determine if the asbestos was dealt with appropriately. The Ombudsman does not have the expertise to do so as this would fall more appropriately under the role of the HSE as the HSE can carry out investigations into safe working practices, including the removal of asbestos. The role of the Ombudsman is to determine whether the landlord acted in line with its relevant policies, the law and best practice. As part of this we would consider whether the landlord responded appropriately and fairly to the concerns raised by the resident, and his subsequent formal complaint.
  3. When the contractor began work at the property, they set up an asbestos enclosure. An asbestos enclosure is defined by the HSE as a physical barrier employed around the asbestos work area which will contain asbestos dust and waste arising from the work and which will also prevent the spread of asbestos materials to the surrounding environment. It is designed to prevent the spread of airborne fibres and dust and also to prevent the spread of surface contamination during all the activities associated with asbestos removal, including waste handling and bagging, and cleaning.
  4. It is important to note that there is not automatically a legal obligation for a landlord to rehouse a tenant during the removal of asbestos. There may be a legal obligation in some circumstances if the asbestos is in a location which means it cannot be safely removed without risk to the resident, or if the nature or extent of the repair work would mean the property was uninhabitable whilst the repairs were carried out. The Ombudsman has not seen evidence to show that it would have been unsafe for the resident to remain in the property whilst the asbestos was removed, provided all the relevant procedures for removing asbestos were followed correctly by the contractors.
  5. An air test was carried out inside the enclosure to ensure it was airtight and sealed appropriately. This was then checked on site by the landlord for reassurance. The landlord has provided a copy of the air test report, and it confirms the enclosure was secure and safe for asbestos removal.
  6. The resident had raised concerns about white dust at the property, and the contractor confirmed this was caused by the plastering works. It explained this was plaster dust and not asbestos because the asbestos was removed before plastering began. The landlord was entitled to rely on the information provided by its licensed contractor and the Ombudsman has not seen any evidence to suggest this information was incorrect. Therefore, it was reasonable for the landlord to decide not to move the resident while the asbestos was being removed as it appears that the dust the resident saw was plaster dust rather than asbestos.

Furniture damage

  1. The landlord’s complaints policy states it will investigate all complaints with the exception of claims for damages which should be dealt with as a home contents insurance claim. The policy goes on to state that residents are responsible for insuring themselves against loss or damage to contents, and that the landlord strongly advises residents to take out their own insurance cover. It also states that the landlord provides its own home contents insurance scheme that the residents can pay for if they do not have a policy in place.
  2. The landlord would not be expected to pay for damaged items unless it or its contractors were responsible for causing the damage. According to the contractors’ notes, the resident moved some furniture outside of the property so work could be carried out. Once some works had been completed, the contractor has recorded that it told the resident he could bring furniture back inside, and that the operatives would help him move it back out the following day to finish the works. No damaged furniture was presented to the contractor or the landlord, and it is not possible to say whether any damage was the direct result of the contractor or landlord’s actions. Therefore, the landlord was not obliged to reimburse the resident for the cost of their damaged items.
  3. In its stage one response, the landlord explained the need for cover to the resident and gave contact details for its tenancy services team if he needed assistance with contents insurance. This is in line with its own repairs policy as set out in paragraph 32 of this report. So, it was reasonable for the landlord to reiterate this to the resident in its complaint response.

Kitchen access

  1. The resident has stated that he had no access to his kitchen while the repairs were ongoing. The contractor has said that this was not the case but has then confirmed that there was a polythene sheet covering the kitchen entrance. It has also provided pictures of the work area, but it is unclear from these whether or not access was restricted. However, it is not in dispute that the resident allowed the contractors to keep these coverings in situ overnight. While this was potentially inconvenient for the resident, no concerns seem to have been raised with the contractor on site, or with the landlord at the time. Had they been raised, the landlord would have been expected to tell the contractor to make sure the resident had the necessary access to the kitchen. The landlord would only be expected to take action once it was made aware of the problem.

Outstanding repair works

  1. The resident told the landlord he does not want the contractor to return and complete outstanding repair work, including the replacing of blinds that had been removed to allow access to the affected areas. The landlord told the resident that if he did not want the contractor to return, he can call or email its repairs team to arrange the works. If the resident does this, it is not clear whether the repairs team would send the same contractor or a different one to finish the work. It is clear from the information provided that the resident’s relationship with the contractor has broken down. So, it would be reasonable for the landlord to send a different contractor to complete the repairs. If the landlord is unable to do this due to contractual obligations with the contractor, it should explain this to the resident and look at any other measures which could be taken to improve the situation for the resident, such as agreeing for a member of the landlord’s staff to be present during the repairs or to carry out an inspection once the repairs are finished to ensure the work has been completed to a reasonable standard.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its delay in carrying out repairs at the resident’s property.
  2. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s handling of the removal and replacement of the resident’s lounge ceiling, which included the removal of asbestos.

Orders

  1. Within one month of the date of this report, the landlord must:
  2. Pay the resident a total of £250 to recognise the repair delay.
  3. Contact the resident to confirm who will be attending to complete the outstanding repair works at the property. The landlord should then arrange for the outstanding repairs to be completed in line with the timescales listed in its repairs policy.