Vivid Housing Limited (202209862)

REPORT

COMPLAINT 202209862

Vivid Housing Limited

23 June 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

The complaint is about the resident’s concerns of asbestos in the property.

Background

The resident held an assured tenancy with the landlord, who is a housing association. The tenancy started on 17 December 2019. The resident has informed the landlord within her complaint correspondence that she suffers with chronic, treatment-resistant obsessive compulsive disorder (OCD).
On 1 December 2020 a contractor for the landlord attended the property to install a new extractor fan within the resident’s bathroom. The resident contacted the landlord as the contractor reported that there was an old water tank in her loft which contained asbestos. The landlord said it would wait for the report from the contractor.
No further records are available to this Service until 2022, when the property was due to have a new roof fitted as part of the landlord’s planned works program. On 1 June 2022 the landlord emailed the resident to inform her that an appointment had been made to check for asbestos.
The resident contacted the landlord on 1 and 7 June 2020, where she explained that she has OCD and was concerned that her property contained asbestos. The landlord advised her to speak to the contractor when it attended on 8 June 2022.
On 8 June 2022 the resident contacted the landlord again as she had been told that asbestos found in the kitchen, and a tile within the airing cupboard, had been reported to the landlord in September 2019 and that it should have been monitored and managed by September 2020. The resident also asked the landlord to inform her if there was any more asbestos in her property, as she had previously been informed that there was asbestos in the loft.
The landlord responded on 9 June 2022 and informed the resident it had arranged for a full survey to be carried out on the property and raised an order for the tile in the airing cupboard to be removed.
On 14 June 2022 the resident raised a formal complaint with the landlord. The resident said that:
1. She would not have moved into the property if she had known it contained asbestos.
2. Why had the old asbestos tank not been removed from the loft when the property was vacant.
3. Due to her health issues she would not be able to live in the property when the asbestos was removed and needed to move property.
4. She had spent a considerable amount of money on the property and wanted to know what her options were.
The landlord provided its stage one response on 24 June 2022 where it confirmed that following a telephone conversation with the resident, it had put the order to remove the tile in the airing cupboard on hold until she was happy to proceed. It also confirmed that most older properties contain asbestos and that it carries no risk unless damaged. Furthermore, it would look to provide more information to residents regarding the removal of asbestos in the future. It was also noted that the resident had spoken with the landlord and discussed the options available if she wished to move.
On 14 July 2022 the resident emailed the landlord to escalate her complaint to stage two. She explained that she should have been informed that the property contained asbestos at the start of her tenancy. On 18 July 2022, the landlord responded to the resident’s email and asked her to clarify what part of her complaint remained unresolved and what could it do to resolve it.
On 26 August 2022, the resident contacted her local MP to seek help with escalating her complaint to stage two of the process. Following contact from the MP, the landlord contacted the resident and again asked her to confirm what part of her complaint remained unresolved and what could it do to resolve this. It also responded directly to the MP on 22 September 2022.
On 21 September 2022 the resident emailed the landlord and confirmed that she wanted to escalate her complaint to stage two as she felt she should have been informed of the asbestos in her property, namely the water tank in the loft and the tile in the airing cupboard. The resident said that she should have been told not to go near specific areas. The resident requested compensation for the money she had spent on the property, for the landlord to pay for her removal costs and further compensation due to the distress caused.
On 23 November 2022 the landlord provided its stage two response, in which it said:
1. It could encapsulate the asbestos tile in the airing cupboard and water tank in the loft, rather than remove.
2. It offered to decant the resident when the asbestos encapsulation took place, but understood that this would not be a viable option due to the resident’s anxiety.
3. That the resident had submitted a mutual exchange application so did not want to proceed with the work at present.
4. Although it was not a legal requirement for residents to be informed of existing asbestos within its properties, it was looking for a way to share documents with customers and this was being considered as part of a project.
On 7 December 2022 the resident informed this Service that she remained dissatisfied with the landlord’s response as she felt that she should have been informed of the asbestos in her property and is seeking reimbursement for money she had spent on the property.

Assessment and findings

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure. 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:
1. Be fair – treat people fairly and follow fair processes.
2. put things right, and.
3. learn from outcomes.
Asbestos as a building material was banned altogether in the UK in 1999. Any building that was constructed on or before this year may contain asbestos. 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 are in good condition and are not likely to be damaged, it may be left in place, the condition monitored and managed to ensure it is not disturbed.
Under the tenancy agreement, the landlord had an obligation to replace and renew the structure and exterior of the property. 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 asbestos is situated in their homes.
The landlord’s website has a dedicated page about asbestos which details the landlord’s general approach to dealing with it in the home. It provides the advice and guidance to residents in the form of five important ‘things you need to know’:
1. If your home was built after 2000, asbestos is very unlikely to have been used.
2. Asbestos should always be treated with care but isn’t usually a problem unless it’s disturbed or damaged.
3. If it’s left alone and in good condition, generally it won’t be a problem as it cannot release fibres into the air.
4. Don’t disturb anything you think may have asbestos in it (disturbing it means things like drill, saw, scrub or sand).
5. There might already be an asbestos survey for your home. If you’re planning any works in your home, please contact the landlord and it would let you know if there is any asbestos there
The webpage further states that it is the landlord’s responsibility to deal with any asbestos found in a home but that doesn’t mean it would automatically take it out. Sometimes the removal process has more risk than leaving the it where it is.
Furthermore, the landlord states that it would often leave asbestos in place if it is:
1. In good condition and not damaged or deteriorating.
2. Its type, location and condition are shown to be ok.
3. In a part of the home which isn’t used much or isn’t easy to reach.
It is not the Ombudsman’s role to investigate the level of asbestos or the risk to the resident, but rather the landlord’s actions in its response to the resident’s concerns.
From the information provided, the resident was aware of the presence of asbestos in her property in December 2020 following a planned bathroom replacement. The resident called the landlord to inform it that that the contactors had identified a water tank in her loft that potentially contained asbestos. Records show that that the landlord said it would wait for the contractors report. No further information has been provided regarding this, so this Service is unable to identify what additional action was taken.
It was not until June 2022, when as part of a planned maintenance program, the property was due to have a new roof fitted and as part the landlord’s responsibilities, it arranged for an asbestos survey to be carried out before the work started. This prompted the resident to contact the landlord regarding the existing identified areas of asbestos in her home. Namely a water tank in the loft space and an area underneath her water tank, which was within an airing cupboard. The resident explained that she suffered with OCD and as a result was concerned about the risk the asbestos may have.
The landlord responded on 9 June 2022 where it acknowledged the resident’s concerns and said that it would arrange for the property to have a full asbestos survey and would raise an order for the tiles in the airing cupboard to be completely removed. Although there is no evidence to show that the asbestos in the cupboard needed to be removed, this shows that the landlord took appropriate steps to try and alleviate the resident’s anxiety.
The resident raised a complaint on 14 June 2022 where she explained to the landlord that she was unhappy with the its approach. She explained that due to her OCD she would be unable to return to the property if the asbestos was removed and wanted to know why she was not informed about the presence of asbestos prior to moving into the property, and what options were available to her with regards to moving.
Information provided to this Service shows that the landlord took appropriate steps to acknowledge the resident’s concerns and further try to alleviate the anxiety the resident was experiencing before issuing a stage one response. It explained that asbestos is present in most homes and that was safe as long as it was not disturbed. The landlord also provided the resident with a stage one response which confirmed the information that had been provided, that it had put the order on hold to remove the tiles until the resident was happy to go ahead, and options available regarding moving properties. This shows that the landlord was listening to the resident and allowing her time to make a decision as to how she wanted to proceed.
On 14 July 2022 the resident escalated her complaint to stage two. Although there was a delay in providing the resident with a formal stage two response, this Service is satisfied that the landlord was taking appropriate steps to try to resolve the resident’s complaint during this time.
When the resident continued to raise her concerns relating to the asbestos within the property, the landlord took appropriate steps to try and address the issues the resident was raising. The resident explained that she was dissatisfied that there was asbestos within her property. The landlord was aware that the resident was concerned about the risk involved with removing the asbestos and explained that it could encapsulate the identified asbestos rather than remove it. This was also set out in the landlord’s stage two response. This shows that the landlord was taking further steps to try to resolve the resident’s complaint and offer an alternative resolution.
The resident has informed this Service that that she is not having her roof replaced as it is not in need of replacement, so the offer of removal is not possible at this time.
The landlord was not under an obligation to inform the resident of the presence of asbestos at the start of the tenancy, but it has identified as part of its learning from the complaint that it would look to review its process regarding providing residents with more information regarding asbestos. The Ombudsman welcomes the landlord’s response as it shows that the it was following the dispute resolution principles and identifying any learning where appropriate.
This Service acknowledges the resident’s concerns and anxieties. The resident says that the options available regarding the asbestos are not viable due to her OCD. The resident’s concern and anxiety regarding asbestos is understandable as asbestos tends to create questions and worry. The situation has clearly affected the resident and has had an impact on her quality of living.
However, the information provided to this Service shows that the landlord took appropriate action when the resident raised her concerns regarding asbestos within the property. It reassured her that the asbestos was low risk, appropriately offered to carry out a full survey of the property, remove the identified asbestos, and furthermore also offered an alternative option of encapsulating the areas, when the resident expressed her concerns of removal. As the landlord acted appropriately, it was also reasonable for it not to offer compensation as requested by the resident as part of her stage two complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of concerns of asbestos in the property

Recommendations

The landlord should continue to work with the resident to seek a suitable resolution regarding the encapsulation of the identified asbestos.