Aster Group Limited (202117925)

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REPORT

COMPLAINT 202117925

Aster Group Limited

13 June 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

  1. The complaint is about:
    1. The condition of the property when it was let, including health and safety issues raised by the resident.
    2. The landlord’s handling of the resident’s concerns about discrimination in relation to her race and culture.

Background

  1. The resident is an assured shorthold tenant of the landlord. The resident has a number of respiratory medical conditions.
  2. The resident viewed the property in March 2021 and raised concerns about the severe nicotine staining on the walls and ceiling from the previous tenant. After discussions with the landlord in April 2021 regarding its lettable standards procedure, the resident accepted the property and subsequently moved in.
  3. On 17 August 2021, the resident raised a complaint about the condition of the property. The resident remained unhappy with the severe nicotine staining and found this to be unacceptable. The resident also complained that the garden was unsafe as the patio was not level and she wanted the shed removed. The resident also stated that she had a private asbestos report completed on the property, and it found that asbestos was present and required removal. The resident felt that she had not been treated fairly due to her race and disabilities. The resident requested the landlord recognise the treatment of her as unfair and to offer compensation.
  4. The landlord provided its final response to the complaint on 6 October 2021. After visiting the property on 27 September 2021, it concluded there was still severe nicotine staining in the property. Although the lettable standards process was followed, it agreed there may have been inconsistencies in the application of the policy. It stated that the lettable standards were not explicit on how to deal with homes with severe nicotine staining, but that lessons would be learnt. The landlord stated that given it was aware of the resident having respiratory conditions, it should have redecorated the whole property to remove the nicotine staining. The landlord apologised for not doing this at the point of moving-in. The landlord also acknowledged the resident’s concerns regarding third hand smoking. The landlord acknowledged that its records did not contain the resident’s medical conditions, for which it apologised for and assured the resident that this was now rectified. It also informed the resident that it checked properties for asbestos every five years, and the recent report identified the property as having zero to low-risk of asbestos and, therefore, no work was needed. In regard to the resident’s complaint, that she had been subjected to discrimination based on race and culture, the landlord stated that the surveyor did not know who would be moving into the property when they assessed it as being fit to let and, therefore, it could not uphold this aspect of the complaint.
  5. As a resolution to the complaint the landlord offered a complete redecoration of the property, including woodwork; the removal and replacement of light switches, sockets, thermostat and radiators; the rear-garden path to be re-laid; £320 compensation to cover the cost of private cleaning and an additional £200 compensation for the inconvenience. However, it requested the resident decant (temporarily move out of) the property whilst the works would be completed.
  6. On 8 October 2021, the resident rejected the landlord’s request to decant the property stating she was not well enough to move again as she was undergoing medical tests and treatment. The resident felt that the landlord had not shown empathy for her circumstances. As an alternative resolution, the resident requested to be relocated permanently to another property.
  7. On 14 October 2021, the landlord emailed the resident to confirm its position. After conversations with the resident the day prior, the landlord stated it did not own properties in the area the resident wished to move to. It had discussed the resident’s move with a social landlord for that area, and informed the resident the other landlord had refused to add her to its waiting list as she was deemed to be adequately housed. The other option raised was that the landlord itself could attempt to move the resident to another property. However, further medical evidence would be needed to support this move. Whilst awaiting the medical evidence, the landlord enquired if it could do anything else to support the resident. The landlord also offered heaters for the property, as the resident would not use the radiators for fear of inhaling nicotine which had stained the radiators. The resident refused this offer.
  8. The resident escalated her complaint to this Service on3 November 2021. In her referral to this Service the resident requested a complete redecoration of the property and remedial works to be completed. However, in correspondence with the landlord, the resident also requested to be relocated to another property. This Service will look at both of the resident’s suggested outcomes.

Assessment and findings

Policies and Procedures

  1. The landlord’s lettable standards policy states that in general the property should be free of health and safety risks to the incoming resident, both internally and externally. Sheds, conservatories and greenhouses will be removed if in a poor or unsafe condition. In relation to pathways and ramps, if they present a health and safety hazard, they will be made good.

Scope of investigation

  1. The resident has accused members of the landlord’s staff of being discriminatory based on her race, culture and disabilities. In accordance with paragraph 39 (i) of the Housing Ombudsman Scheme, we will not investigate 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. This Service cannot determine whether discrimination has taken place in a legal sense of the term as this would be a legal matter which the courts would be best placed to decide. However, we have considered whether the landlord responded fairly and appropriately to the resident’s allegations of misconduct by its staff.

The condition of the property when it was let, including health and safety issues raised by the resident.

  1. In line with its lettable standards policy, the landlord was expected to inspect the property prior to the resident moving in to ensure it was fit to live in. The landlord’s records show that it carried out an inspection and determined that the property met its lettable standard, although it required a deep clean. The landlord carried out cleaning, although it is acknowledged that the resident did not find the standard of cleaning acceptable and arranged for the property to be professionally cleaned after she moved in. The landlord’s inspection identified that there was extensive nicotine staining in the property. The landlord carried out stain blocking treatment to the affected areas in an effort to stop the nicotine staining from coming through once the interior of the property was redecorated.
  2. In line with the tenancy agreement, internal redecoration is generally the responsibility of the tenant and therefore the landlord was not required to fully redecorate the property before the resident moved in, although there was nicotine staining on the walls and ceilings.
  3. Evidence provided to this Service shows that the landlord provided the resident with the option to reject the property, prior to moving in. Whilst it is noted that the resident felt she could not reject the property due to the length of time she had waited to be relocated near family members, and her health conditions, it was reasonable for the landlord to offer this as an option in view of her concerns about the property.
  4. The resident also raised concerns that the property was not habitable. The presence of nicotine staining would not generally be considered to mean that the property was inhabitable. Typically, a property would only be deemed inhabitable if it lacked basic facilities for sleeping, washing, cooking etc or was structurally unsafe to be in. Nicotine staining would generally be considered a cosmetic concern that does not pose an immediate or dangerous risk to health and safety. The property does not fit into either of these categories. Therefore, the landlord responded reasonably by informing the resident that the property was habitable. As explained above, it is acknowledged that the resident’s medical conditions may mean that she would be more affected by nicotine. However, the medical evidence the resident has provided does not specify that her conditions would be significantly affected by nicotine staining.
  5. The resident raised further concerns about the nicotine staining on 17 August 2021. The resident stated that she had a ‘continuous cough and headaches’ since moving into the property. The resident expressed her concerns that this had occurred due to a process called ‘off-gassing’. The process of ‘off-gassing’ is described as ‘nicotine continuously being re-emitted back into the air, as a result of contaminated surfaces.’ This Service does not have expertise in determining if the process of ‘off-gassing’ has had any medical effect on the resident and as above the medical evidence provided does not confirm this. The Ombudsman does not doubt the resident’s comments regarding her health, but as an impartial service, we can only base our decisions on the available evidence and as explained above, there is insufficient evidence to confirm how the nicotine staining affected the resident’s health.
  6. However, in view of the resident’s concerns about her health, it was reasonable for the landlord to offer to redecorate the property and a number of replacement options. The landlord also offered to reimburse the £320 which the resident paid for the private cleaning and an additional £200 compensation for the inconvenience. By offering this, the landlord went beyond its strict obligations set out in its lettable standards, in an attempt to resolve this complaint. It is the Ombudsman’s view that the steps taken by the landlord to address this aspect of the complaint were reasonable and proportionate.
  7. The resident raised concerns about an uneven garden path being a health and safety risk. The landlord’s lettable standards guide states that if pathways present a health and safety hazard they will be made good. In the evidence provided to this Service, during the voids inspection there was no identifiable health and safety concerns regarding the pathway. Therefore, the landlord would not be expected to repair the pathway at the time of moving in.
  8. The resident also stated she wanted a shed in the rear-garden to be removed. The lettable standards state that sheds, conservatories and greenhouses will be removed if in a poor or unsafe condition. There has been no evidence provided to this Service, that the shed in the resident’s rear-garden is in a poor condition or unsafe. Therefore, the landlord was reasonable in not removing the shed during the voids process, and the subsequent denial to remove it.
  9. The resident also raised concerns regarding potential asbestos in the property. From the evidence provided, it is unclear if the resident hired a private asbestos company to assess the asbestos, or if a friend who worked with asbestos provided the resident with an opinion. However, the landlord informed the resident that it has its own asbestos inspectors who provide reports every five years. Based on the last inspection, the property was described as a zero to low-risk property, with no action needing to be taken. Whilst this Service appreciates the resident’s concerns surrounding asbestos, there has been no evidence provided to this Service to suggest that the landlord urgently needs to remove the asbestos. The landlord can only act upon evidence it has provided to it from qualified contractors, and the resident did not provide the landlord with a copy of any report produced by her asbestos specialist. Therefore, the landlord acted appropriately in relying upon its own specialist’s report to conclude that there was unlikely to be any asbestos within the property which needed removing.
  10. It is noted that the resident requested to be moved into a different property as she was not happy in the property in view of what had happened. The Ombudsman can understand the resident’s reasons for wanting to move; however, the Ombudsman would not order the landlord to move a resident as part of our investigation. This is because we do not have access to information regarding the availability of suitable vacant properties owned by the landlord at any one time and therefore, we cannot say whether the landlord currently has any suitable properties available for the resident to move to. Also, there may be other tenants waiting to be rehoused who have an even higher priority than the resident. In general, the highest priority for housing is given to those facing homeless or fleeing domestic violence. The landlord acted reasonably by discussing the resident’s options for rehousing and agreeing to give her the option of a management move in view of her medical conditions.

The resident’s concerns about discrimination in relation to her race and culture.

  1. When receiving complaints regarding discriminatory behaviour the landlord should complete a full and thorough investigation into the resident’s claims. In this case, the resident believed that the landlord acted discriminatory towards her based on her race and culture, due to a neighbouring property being intensively cleaned. The resident felt that the landlord had cleaned that property intensively due to a different race family moving into that property.
  2. The landlord has evidenced to this Service that it carried out an investigation into these concerns. The landlord informed the resident that the surveyor who completed the void inspection, was not aware of who would be moving into the property and that it could not find any evidence of discrimination based on race or culture, during the voids process. Therefore, the landlord acted reasonably by completing a full investigation and informing the resident of the outcome. The Ombudsman has not seen any evidence to show that the surveyor would have been aware of the resident’s race or medical history when they inspected the property before it was let. Therefore, there is no evidence that this was a factor in the landlord’s decision to approve the property for letting without carrying out further cleaning first.

Determination

  1. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint regarding the condition of the property when it was let, including health and safety issues raised by the resident satisfactorily.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s handling of the resident’s concerns about discrimination in relation to her race and culture.

Recommendations

  1. This Service recommends the landlord pay the compensation offered to the resident through its complaints process, if it has not already done so.