ForHousing Limited (202318004)

REPORT

COMPLAINT 202318004

ForHousing Limited

29 April 2024

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 resident’s request to replaster the full hallway and stairs, due to asbestos concerns.

Background

2. The resident holds an assured tenancy with the landlord, for a house. The landlord is aware that the resident has a number of health conditions. The resident has informed the Ombudsman that at the time of the compliant, her husband was being treated for cancer.
3. On 21 April 2023 the resident raised a stage one complaint to the landlord about the delays she was experiencing in relation to the removal of an old fuse box in the hallway and plastering works. The resident said that the works had not gone ahead because of the possibility of asbestos being present. The resident further said that she had been told that she would receive a callback about the works, but no one had contacted her so wanted to make a complaint.
4. On 15 May 2023 the landlord provided its stage one complaint response which said that:
   1. The works were delayed as a refurbishment and demolition survey (R&D) had to be carried out first. This had been booked for 18 May 2023.
   2. The plastering repairs were scheduled for 23 and 24 May 2023.
5. On the same day the resident contacted the landlord and asked to escalate her complaint. The resident said that she was unhappy that only half of the hallway was being replastered and wanted the work to be cancelled and someone to visit the property and review the decision.
6. On 30 May 2023 the landlord provided its stage 2 complaint response where it said:
   1. The earlier appointments had been cancelled, as the resident wanted the whole wall to be replastered.
   2. Following an inspection, it found that only 12 meters square needed to be replastered and not the whole wall. Its repair policy says that it would only replaster the area that needs repairing and not the whole wall.
   3. As the resident informed the landlord that further cracks had appeared, it had arranged for a further inspection to carried out.
   4. In relation to the presence of asbestos, there were instances when slightly damaged asbestos containing materials could sometimes be repaired by sealing or enclosing them, but this would be assessed by the asbestos team following the inspection.
7. On 30 May 2023 the landlord made internal enquires as the resident had refused the scheduled works. The landlord noted that the resident wanted the artex removed and all walls to the hall, stairs and landing replastered. It confirmed that it had only agreed to remove the stair wall and replaster, as this had loose handrails and an old electric meter cupboard. Furthermore, it would not remove any artex that may contain asbestos if it was not damaged.
8. On 18 August 2023 the resident contacted the Ombudsman as she remained dissatisfied with the landlord’s response. The resident said that she had moved into the property which had artex on the walls which were 50 to 60 years old. The contractors would not work on the property because of potential asbestos.
9. Furthermore, the landlord was leaving her and her husband, who had throat cancer, to live in a property which contained asbestos. In order to resolve her complaint, the resident wanted the landlord to remove the asbestos and replaster the stairs and walls.
10. On 27 February 2024 the resident informed the Ombudsman that the landlord had boarded and replastered one wall but refused to the do the other, even though it was old artex. The resident said that her husband had secondary cancer and that they had been left like this for the last 2 and half years.
11. In recent correspondence to the Ombudsman the resident has advised that her husband has sadly passed away.

Assessment and findings

12. 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.
13. The Ombudsman was sorry to hear of the resident’s husband’s illness and that he has recently passed away. We acknowledge that this has been a difficult time for the resident and her family.
14. As part of her complaint, the resident has said that her husband’s health was affected by the presence of asbestos in their home and they were both concerned about the potential effect of this, given his cancer diagnosis. It is widely accepted that asbestos can be damaging to health, particularly for those who have respiratory problems. However, it is outside the Ombudsman’s remit to establish whether there was a direct link between the landlord’s actions or inaction and the specific health conditions of the resident and her husband. Matters of liability for damage to health are better suited to a court or liability insurance process to determine. This is in line with 42f of the Scheme which says the Ombudsman may not consider matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure. The Ombudsman has considered any distress and inconvenience the resident and her husband experienced as a result of errors by the landlord as well as the landlord’s response to the resident’s concerns about her husband’s health.

Policies and procedures

15. 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.
16. Under the tenancy agreement, the landlord has 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.
17. The landlord says that the resident was aware of the presence of asbestos in her property following her tenancy sign up, however there is a lack of evidence to confirm this either way. In this case the landlord’s records make it difficult to fully assess the actions it took prior to the resident’s complaint and afterwards, however the Ombudsman will make a determination based on the evidence received.
18. Based on the information provided, in approximately December 2022 the landlord identified that work was needed to the stairway plasterwork due to an old fuse board and redundant electric cupboard which was located within the wall.
19. In January 2023, the landlord agreed for a 12msq area to be scraped of asbestos and replastered and raised a repair, however on 24 February 2023 the resident said that she wanted all the walls replastered. It is not clear how the landlord responded to the resident’s request for all walls to be replastered, but the records show that an order was re-raised on 9 March 2023 to carry out the original work raised in January 2023.
20. Internal emails show that the landlord arranged for a specialist asbestos company to attend the property and remove the asbestos on 13 April 2023, but it could not go ahead as the electrics were not isolated. It is understandable that the resident was frustrated by these events, and it was following this that the resident raised a formal complaint about the delay in completing the works.
21. The landlord did not address this within its complaint response and there are no records to show why the failing occurred. The Ombudsman acknowledges that this delayed the works slightly, but the landlord has provided internal emails to show that it was actively arranging further appointments to try to put things right in May 2023. 
22. In May 2023, there is further evidence that there was extensive communication between the landlord and its contractor regarding the works that were outstanding at the property The landlord raised appointments to complete the works as agreed with the resident, but when the contractor attended the property, the resident cancelled the works. A further email suggests that this was because the resident wanted all walls to be replastered, which delayed the works further. While this was outside of the landlord’s control, there is no evidence to show that it took any action and discussed with the resident why she had cancelled the works. This is a failing by the landlord.
23. Following the landlord’s final complaint response, where it confirmed that it would only replaster areas that needed repairing, there is further evidence which shows that the resident refused the works as she requested that all walls were replastered. Again, it is not clear from the landlord’s records how it dealt with the resident’s request. As previously said, it is hard to determine exactly what action the landlord took to address the resident’s concerns, this may be because it took no action or there are issues with its record keeping.
24. The Ombudsman’s spotlight report on knowledge and information management states that “good knowledge and information management is crucial to any organisation’s ability to perform and achieve its mission…If information is not created correctly, it has less integrity and cannot be relied on. This can be either a complete absence of information, or inaccurate and partial information… The failings to create and record information accurately results in landlords not taking appropriate and timely action, missing opportunities to identify that actions were wrong or inadequate, and contributing to inadequate communication and redress. Incorrect information can also cause real detriment…[and] contribute to an increased risk to a resident’s health and safety…[Vulnerabilities] may also mean that reasonable adjustments are appropriate to actively prevent harm or distress.”
25. The spotlight report therefore recommends that landlords take steps to improve their knowledge and information management, including by implementing a strategy for this, benchmarking against other organisations’ good practice, reviewing internal guidance. However, it is of concern that there is no indication that the landlord has taken such steps to do so in light of its poor record keeping in the resident’s case, as outlined above.
26. The Service acknowledges the resident’s concerns and anxieties. The resident informed the Ombudsman that at the time of the complaint her husband was suffering with secondary cancer. The situation has clearly affected the resident and had an impact on her quality of living. The Ombudsman would expect to see evidence to show that the landlord spoke with the resident to discuss why it would not carry out the replastering works she requested. Had the landlord done this, it may have been able to work with the resident and alleviate any concerns she may have had about living within a property that contained asbestos and her husband’s illness.
27. The Ombudsman also acknowledges that the resident wanted the areas which contained artex to be removed and repaired, and the reasons why, but it was reasonable for the landlord to inspect the property and decide what areas needed repairing. It is also appropriate to note that social landlords only have limited resources and are only be expected to carry out necessary repairs which would not extend to removing all artex if it was undamaged. This is in line with asbestos guidance, as referenced above which confirms asbestos can be left in place if it remains undisturbed.
28. It is positive to see that the landlord was actively arranging appointments to carry out the necessary tests and book in the plastering works accordingly.
29. However, as previously identified, it is not clear what action the landlord took when the resident raised her concerns and requests for all walls to be replastered. There is no evidence that the landlord communicated with the resident effectively or that it took reasonable steps to set the resident’s expectations around the decisions it had made. This caused the resident unnecessary distress and inconvenience, at what was an already vulnerable time. 
30. Overall, the landlord was entitled to make the decision to not remove undisturbed asbestos, but failed to consistently communicate with the resident, particularly in response to her requests for full area to be replastered, which caused distress and inconvenience to the resident. 
31. The Ombudsman’s remedies guidance (published on our website) sets out our approach to compensation. In line with the remedies guidance, where there has been service failure by the landlord and it did not appropriately acknowledge the Ombudsman will consider awards of over £50 for distress and inconvenience. To put things right in this case, the landlord is ordered to compensate the resident £200.

Determination

32. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure regarding the landlord’s handling of the resident’s request to replaster the full hallway and stairs.

Orders

33. The landlord is ordered to pay the resident £200 for the distress and inconvenience caused by its communication failings identified in this report within 4 weeks of the date of this determination.

Recommendations

34. It is recommended that the landlord meet with the resident to discuss the presence of asbestos within her home and any concerns she may have. If the landlord decides following this visit that there are no further works needed in relation to asbestos it should explain this decision to the resident in writing, including the reasons for the decision.
35. It is also recommended that the landlord review its record keeping practices in relation to inspections and repairs, including in light of the findings of this report and the Ombudsman’s spotlight report on knowledge and information management.