London Borough of Barnet (202102335)

REPORT

COMPLAINT 202102335

London Borough of Barnet

11 September 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:
1. The landlord’s response to the resident’s reports about polystyrene ceiling tiles in her property.
2. The landlord’s failure to provide the resident with information about the presence of asbestos in her property at the start of the tenancy and subsequently.
3. The landlord’s response to the resident’s request to be decanted.
4. The landlord’s complaint handling response in respect of the resident’s report that asbestos tiles were broken at the start of the tenancy.

Background and summary of events

Background

At the time of the events relating to this complaint, the resident was a non-secure tenant of the landlord, occupying a two bedroom ground floor maisonette with her two children. The resident had a temporary accommodation tenancy agreement with the landlord which commenced on 8 May 2017.
The landlord has provided copies of its relevant policies and procedures applicable at the time.
The landlord’s void properties procedure sets out the process to be followed by the landlord when a property becomes void and before it is re-let. The procedure provides for the landlord’s voids surveyor to attend the property to ascertain the level of work needed to bring the property up to a lettable standard.
The landlord’s asbestos policy applicable from May 2016 explains its approach for the assessment, management and removal of asbestos within its housing stock. Among other things, this explains that:
1. Asbestos survey reports for properties surveyed since April 2012 are available to staff and service providers via the landlord’s web portal.
2. In respect of works, the policy recognises that the provision of information on the presence of asbestos is important where asbestos is likely to be encountered and may be disturbed. This would normally be on works which involve the disturbance, refurbishment, demolition or alteration of the structure or fabric of a building.
3. Where the landlord is planning to undertake works where asbestos containing materials (ACMs) may be encountered, the Risk and Compliance (R&C) team of the landlord should be consulted prior to any works commencing on site. The information provided can be used to assist those involved in the works to manage them.
4. Where a repair is required at a property, the service provider must ensure that they have reviewed the landlord’s asbestos web portal to ensure that they are familiar as to where asbestos may be located in that property type.
5. The landlord expects all service providers to undertake risk assessments appropriate for the works they are to undertake. Risk assessments should consider the possible presence of asbestos and the level of risk that may be present, regardless of whether information pertaining to the possible location of asbestos has been provided.
6. Where service providers or staff suspect that materials known or suspected to contain asbestos may have been damaged within occupied premises, they are required to request a survey of the property or order remedial works assuming that the material contains asbestos.
7. Generic information about asbestos is made available to tenants. An information leaflet is part of the information provided on sign up of new tenants.
8. The landlord was looking to develop a process whereby all of its void properties were inspected and any relevant asbestos information pertaining to that property was provided to the new tenant.
The landlord’s repairs policy sets out the minimum standards applicable to a property which was being re-let. This includes that all health and safety and security works would be completed prior to the incoming tenant moving in, while some other repairs might be carried out following the occupation of the new tenant.
The landlord operates a two stage complaints procedure. The landlord aims to provide a Stage 1 response within 10 working days of receipt of a complaint. Where a resident is not satisfied with the landlord’s response at Stage 1, and there is evidence that the issues have not been resolved or there have been substantive errors in the handling of the complaint, the resident may request that the complaint is escalated to Stage 2. Where a complaint is escalated to Stage 2, the landlord aims to review the complaint and provide a Stage 2 response within 10 working days.

Summary of events

On 30 March 2017, during the void period prior to the commencement of the resident’s tenancy, the landlord instructed its specialist surveyors to conduct a full management survey of the property to determine the ACMs which may exist within it.
The property was surveyed on 4 April 2017 by the landlord’s specialist surveyors and a report issued on 6 April 2017. The survey noted the presence of chrysotile type asbestos in floor tiles throughout the property. Chrysotile type asbestos was also found in the textured coating to the kitchen and living room ceilings.
The report allocated a risk assessment category to the ACMs, having regard to the likelihood of the ACMs releasing fibres upon air disturbance in its locality and the risk to building occupants due to the presence of the ACMs. The risk assessment category was rated as low in each location. The action recommended by the specialist surveyors was to manage and monitor the ACMs.
The report noted in its comments section that there were polystyrene tiles to the ceiling of the first bedroom, living room, stairs, landing, and hall although the report made no recommendations in respect of them.
The landlord’s records show that a works order was raised on 4 April 2017 for void works to be carried out on the property. The description of the works to be carried out included the removal of polystyrene ceiling tiles, although the location of the tiles is not specified.
The resident’s tenancy at the property commenced on 8 May 2017.
It is not in dispute that polystyrene ceiling tiles remained in the property at the start of the resident’s tenancy.
By way of background and context, the resident raised a complaint with the landlord on 4 January 2021 regarding various outstanding repairs required at her property. This was separate to the complaint which is the subject of this investigation.
On 18 January 2021, the landlord’s repair log recorded that a repair was raised to renew polysafe flooring in the bathroom of the resident’s property.
On 23 January 2021, the resident obtained a report from a firm of fire and safety specialists which she had instructed regarding the polystyrene tiles on the ceiling of her property. The report advised that:
1. polystyrene was highly flammable;
2. polystyrene tiles were no longer allowed under several building codes as they emit fumes and polystyrene will begin to soften at relatively high temperatures and at that point begin to shrink and drip;
3. under the Housing Health and Safety Rating System, older polystyrene ceiling tiles that were identified in rented accommodation inspections as being a fire risk, could be subject to an Improvement Notice served by the Local Authority, requiring their removal;
4. in the professional opinion of the author of the report, the polystyrene tiles within the resident’s property should be replaced for a more fire safe product immediately.
According to the resident, on 24 March 2021, the landlord’s operative attended her property to lay the new bathroom floor but was unable to complete the job due to the suspected presence of asbestos. The landlord’s repair log shows that the job raised to fit the new floor was cancelled. No reason is stated in the repair log for the cancellation. However, the landlord’s notes relating to the complaints process confirm that the order was cancelled as possible asbestos was found on site and meant that the new bathroom floor could not be laid.
On 27 March 2021, a specialist surveyor privately instructed by the resident confirmed to her that the floor tiles in her bedroom contained chrysolite asbestos.
On 29 March 2021, the resident sent an email to the landlord. This referred to the flammable polystyrene ceiling tiles throughout her property on which she stated she was still awaiting correspondence from the landlord. She also notified the landlord in this email that on 27 March 2021 it had been identified that there were asbestos floor tiles in the bedroom which had been exposed and interacted with for the past 3 years. She asked that someone call her to discuss how to proceed as a matter of urgency.
On 30 March 2021, the resident called the landlord and raised a Stage 1 complaint. She requested an asbestos inspection. She recorded she had had her own asbestos survey which had found asbestos in the floor tiles in her bedroom. She was unhappy that she was not made aware that the property contained asbestos which could be a hazard to her. She also stated that she had been in contact with the landlord’s regeneration service manager in recent weeks regarding a fire safety issue and she was unhappy that there were flammable ceiling tiles throughout the property.
On 31 March 2021, the resident submitted a Freedom of Information request to the landlord’s regeneration service manager for the asbestos survey which she understood would have been obtained prior to the property being re-let to her. She provided a copy of the report relating to the polystyrene ceiling tiles with the request and reported that asbestos tiles had been discovered in her bedroom. She stated that there was a heavy smell of mould in her son’s bedroom and that he experienced frequent respiratory infections which she was concerned may be linked to the asbestos tiles. She stated that she had requested a lung capacity test for herself and her son.
According to the landlord’s Stage 1 response, the landlord’s regeneration surveyor inspected the property on 31 March 2021. The outcome of this inspection is not recorded in the landlord’s records produced to this Service.
The landlord’s repairs log records that several orders were raised between 15 and 19 April 2021 for works to the property; to secure a boxing in panel above the bath; to reinstate a fan in kitchen and bathroom; and to remove polystyrene ceiling tiles in the bedroom.
On 19 April 2021, the landlord’s complaints officer provided a Stage 1 response to the resident’s complaint:
1. It summarised that the complaint was in relation to the resident’s concerns that asbestos and polystyrene tiles were in the property when it was let to her.
2. It stated that the complaints officer had investigated the matters raised.
3. It confirmed that the polystyrene tiles should have been removed before the resident moved into the property and apologised for this.
4. It confirmed that the asbestos report obtained before the resident moved into the property recommended that the landlord ‘manage and monitor’ the asbestos in accordance with HSE guidelines and asbestos regulations. The landlord reassured the resident that asbestos which was not disturbed would pose no health and safety risk to her.
5. The landlord’s regeneration surveyor had inspected the property on 31 March 2021 and several orders had been placed to carry out work. The tiles would be removed as a matter of urgency. It is assumed from the context that this was a reference to the polystyrene ceiling tiles.
6. The landlord assured the resident that she did not need to be moved out of her home for the work to be carried out and it could be done while she was in the property albeit in a different room. The landlord’s regeneration surveyor would be in regular contact to provide advice on the appropriate preparations to be put in place prior to the work being carried out and would keep the resident updated on the progress of the work.
7. The landlord partially upheld the complaint on the basis that the polystyrene tiles should have been removed for which it reiterated its apologies. The landlord stated that the asbestos remaining in place was in line with HSE guidelines and asbestos regulations.
On 19 April 2021, the resident requested an escalation of the complaint to Stage 2. In her email, she raised various issues:
1. She had concerns regarding the planned works and that the landlord had stated that she did not need to be moved out. She pointed out that there was no way to block off the ground floor entrance and landings which is where the polystyrene tiles were located throughout the whole house. The dust and dirt which would be caused was not appropriate to be inhaled by her 9 month old and 5 year old children.
2. With regard to the asbestos tiles, the resident stated that the tiles were broken when she moved into the property. She and her son had been exposed to the asbestos tiles for two and a half years. The tiles had been cracked and broken for some time and she had been unaware of what they were. She queried why the landlord had not shared the information that it should manage and monitor the asbestos.
3. The resident did not know what health implications may occur further down the line. She wanted to know what the landlord was going to do to hold themselves accountable for what had happened.
4. She queried the rationale of carrying out the works rather than decanting her. The property was due for demolition in the next 12 months.
5. The resident had received a letter on 29 March 2021 from the regeneration team stating that a housing assessment would be carried out so that she could be rehoused. If this was the case, she queried why the works were being carried out.
6. The ceiling tiles had been an issue which the resident had flagged several times over the years but had not been acknowledged until a formal complaint was made.
7. The resident asked that the landlord reconsider the current course of action. She asked to be decanted.
According to the resident, she received a call on 20 April 2021 from the landlord asking to attend the following day to remove the polystyrene tiles. She declined this due to the short notice.
On 21 April 2021, the landlord’s surveyor attended the property to look at a loose unit in the bathroom. According to the resident, while at the property, the surveyor noted the presence of asbestos beneath the polystyrene ceiling tiles, by peeling the polystyrene tiles back. This is not recorded in the landlord’s records produced to this Service.
On 6 May 2021, the landlord’s senior contracts manager provided a Stage 2 response:
1. This identified two main concerns raised by the resident, namely, the removal of the ceiling tiles and the disruption this would cause and the asbestos tiles present in the property.
2. With regard to the polystyrene ceiling tiles, these had been inspected by the regeneration surveyor and an order raised to remove and make good the ceiling. The ceiling would be either over boarded or plastered. The landlord would be providing decoration vouchers or would decorate the property.
3. With regard to the resident’s query at the works taking place when the block was being decanted in 12 months’ time, the response explained that the repairs department had no say over the decant process but still had obligations to ensure the property was safe and to the required standards. That meant, regardless of whether the property was going to be empty in the future, it was important that the landlord completed any work that remained outstanding. A decision may be taken to decant early if there was significant investment in the property but as the works were minor in nature, it was decided to progress them.
4. On the question of whether the work could be completed with the resident and her family in occupation, the response outlined the range of factors the landlord considered when making this decision, including the impact on the resident and her family. The senior contracts manger noted that the surveyor had stated that work could be done with the resident in occupation and he agreed that this was usually the case with this sort of work. He stated he would like to visit the property and assess whether it was feasible to do the works with the resident living in the property or whether he would recommend a decant.
5. The response noted as a concerning aspect that the property was let with the polystyrene tiles in-situ. The response acknowledged this was a clear breach of its policies as these should have been removed when found. It stated that it showed that the landlord’s post inspection process had failed and staff did not follow explicitly clear guidelines over letting standards. The landlord apologised for this oversight and assured the resident that the matter had been taken seriously.
6. With regard to asbestos tiles, the response referred to a monitor and manage protocol being in place at the property. It explained that this meant that asbestos was present but would not pose any threat to the resident as long as it was not disturbed.
7. The response described as a concerning factor that the resident had stated that the tiles had been broken for some time. The landlord referred to the asbestos survey report which was carried out when the property was void. The condition of the property would have been assessed and this was where the monitor and manage outcome was listed. The photos from this report showed some damaged kitchen tiles which were encapsulated with the new kitchen flooring under the upgrade works and all other floors were listed as in good condition without damage. This therefore negated the need to remove or encapsulate the flooring further than how it was let.
8. The response reassured the resident that the presence of asbestos in a property did not automatically pose a risk. It referred to HSE guidelines on the management of asbestos and that encapsulation was one of the recommendations. The floors would normally be covered by the customer which limited the risk of exposure to asbestos and significantly reduced the risk of damage being caused. Asbestos was not normally automatically removed unless the risk had been identified.
9. The response confirmed that when the property was let, the resident should have received a summary version of the larger asbestos report. This highlighted where asbestos was present in the property and was something the landlord supplied as part of the new tenant pack. This allowed the customer to understand where asbestos existed so that any future maintenance took this into account.
10. The history of repairs raised did not show any notification of an issue with flooring since the property was let. Given the resident had reported issues with the asbestos tiles, the landlord was going to organise as a priority an additional survey to assess the condition of the property. This would re-evaluate the property in its current condition and advise the landlord if any risks existed, with recommendations being provided. If works were required, this would be taken into account, in conjunction with the ceiling works, and may add weight to the argument that the resident be decanted, but it would wait to understand the outcome of the survey.
11. The senior contracts manager had liaised with the regeneration manager over the future of the block and the resident’s particular circumstances. He understood that they were currently working on the housing need assessments where decants would closely follow. This was due to vacant possession being in place in June the following year.
12. The decant process was described as complex and that it could sometimes be instant or could take significantly longer. This was due to the need to match the resident with a suitable property sometimes in specific locations. The landlord wanted to manage expectations about how quickly a move would be facilitated, if a decant was required. The important part of the visit was therefore to assess the urgency of works required to see whether any health and safety risks may require any temporary accommodation prior to a permanent move.
13. The senior contracts manager hoped that the visit would provide clarity and a bit of direction. He assured the resident that he had taken the complaint seriously and would continue to support the resident until the landlord had found an appropriate solution.
On 7 May 2021, the resident responded to the Stage 2 response:
1. She pointed out that on 21 April 2021, the landlord’s surveyor had discovered that there was asbestos underneath the polystyrene ceiling tiles which was previously unknown to the resident. The resident expressed concern that if she had allowed the landlord’s repairs team to remove the ceiling tiles on 20 April 2021, she and her children would have been exposed to asbestos dust. She queried whether the senior contracts manager had been made aware of this. She felt that this added to the complexity of the ceiling tiles being removed while she and her family were in occupation. She assumed that when the landlord’s surveyor had stated that the works should be carried out whilst she was in occupation, this was prior to the finding of asbestos under the ceiling tiles.
2. With regard to the asbestos tiles, the resident stated that the affected area of broken tiles had been carpeted in April 2020 but when walking on the carpet the uneven broken floor tiles could be felt underneath.
3. With regard to the landlord’s statement that there had been no maintenance report of broken asbestos tiles throughout her tenancy, the resident was not aware of what the tiles were until 24 March 2021. The landlord’s operative had come to fit a new bathroom floor and was unable to carry out the job as he believed he had come across asbestos. On 27 March 2021, a private surveyor had confirmed to the resident that the tiling in her bedroom was chrysolite asbestos tile.
4. The resident complained that she had not received a copy of the asbestos report when she moved in. Had she received this she would have carpeted straight away.
5. She had requested a Freedom of information asbestos survey for the property on the 31 March 2021 as she was still unaware where the ACMs were located in the property.
6. She believed her son’s ongoing viral/respiratory issues had a direct correlation with the condition of the property and damp/mould issues.
The contemporaneous emails produced to this Service indicate that the landlord’s responsive repairs manager attended to inspect the property on 19 May 2021. The resident was informed at this visit that she was to be decanted and rehoused. The resident was advised that the paperwork would be completed on 24 May 2021 and would take 4 weeks to process.
On 24 May 2021, the resident contacted her MP for assistance in identifying a timescale for the move. She was concerned that she was still living in a property with hazardous materials.
On 2 June 2021, the landlord confirmed in response to an enquiry made by the resident’s MP that it was unable to provide a specific date when the resident could be moved. It anticipated that it would take another 2 weeks. It also confirmed that the landlord’s repairs manager had not produced a report following his visit on 19 May 2021 as it was not a formal inspection.
It is unclear from the records provided as to exactly when the resident moved out. However, the landlord’s records show that the tenancy of the property terminated on 2 August 2021.
On 6 February 2022, the resident referred her complaint to this Service. She remained unhappy with the landlord’s response in that:
1. It failed to address that the asbestos floor tiles had been cracked when she moved in.
2. She had not been provided with an asbestos report when she moved in.
3. She had still not been provided with this information despite requests and no justification as to why.
4. There were polystyrene ceiling tiles throughout the house. Despite the landlord realising they were highly flammable, it allowed the resident and her children to remain in the property for the duration of the tenancy and throughout the complaint.
5. There was no acknowledgment or apology for this, or offer of compensation.
6. The landlord disregarded core issues on health and safety and left her family in a hazardous situation.
7. The outcome sought by the resident was an acknowledgment of what had occurred; investigation of the landlord for maladministration; financial compensation; and a written apology.

Assessment and findings

The landlord’s response to the resident’s reports about polystyrene ceiling tiles in her property

The landlord’s specialist surveyor’s report of 6 April 2017 noted the presence of polystyrene ceiling tiles in the first bedroom, living room, stairs, landing and hall when conducting its full management survey prior to the start of the resident’s tenancy.
Under the landlord’s repairs policy, health and safety works should be completed prior to the incoming tenant moving in. It is not in dispute that the polystyrene ceiling tile were a fire risk and should have been removed during the void period. Whilst the landlord planned works to remove the tiles during the period of the void, for reasons which are unclear, the tiles remained in situ at the start of the tenancy on 8 May 2017.
The resident was concerned at the flammable nature of the tiles. According to the resident, she reported the tiles as a concern with the landlord on several occasions prior to bringing a formal complaint. These reports are not within the landlord’s records produced to this Service as part of this investigation.
On 23 January 2021, the resident obtained a report from a firm of fire and safety specialists which confirmed that the polystyrene tiles to the ceiling of her property should be removed immediately as they were a fire risk.
The resident followed up the issue of the ceiling tiles with the landlord by her email of 29 March 2021. It is clear from this email that she had been in previous contact with the landlord on the matter and was awaiting a response.
On 30 March 2021, the resident made a formal complaint. Part of the complaint was that she was unhappy that there were flammable ceiling tiles throughout the property.
From the landlord’s records, it appears that the landlord’s first substantive response to the resident’s concerns about the polystyrene ceiling tiles was in its Stage 1 response to her complaint dated 19 April 2021.
In its Stage 1 response, the landlord did not dispute that the polystyrene ceiling tiles should have been removed before the resident moved in to the property. The landlord offered an apology and agreed to remove the tiles as a matter of urgency. The landlord’s Stage 2 response of 6 May 2021 also acknowledged that it was a breach of its policy for the tiles not to have been removed as well as a failure of its post inspection process. It reiterated the apology.
Following the resident’s formal complaint on 30 March 2021, the landlord acted reasonably in raising an order promptly on 19 April 2021 to remove the polystyrene tiles, as it had agreed to do in its Stage 1 response of the same date. The resident declined an offered appointment for removal of the tiles on 20 April 2021 due to the lack of notice.
Thereafter, the proposed works to remove the polystyrene ceiling tiles became subject to other considerations related to the ACMs in the property and the resident’s proposed decant and rehousing. These aspects are considered further below.
It was appropriate for the landlord to acknowledge and apologise for its failure to remove the polystyrene ceiling tiles prior to the start of the tenancy and to agree to put matter right by removing them.
However, an apology alone does not fully reflect the detriment caused to the resident. The resident lived for 3 years in a property which contained ceiling tiles which were a known fire risk and this caused her distress once she became aware of the problem. The resident spent time and trouble in obtaining her own expert report in order to confirm that the tiles should be removed and raising a complaint. Under the circumstances, it would be appropriate for the resident to be awarded financial compensation for the detriment caused by the landlord’s admitted failure.

The landlord’s failure to provide the resident with information about the presence of asbestos in her property at the start of the tenancy and subsequently

The landlord’s specialist surveyors identified the presence of ACMs in the property in their asbestos survey report to the landlord dated 6 April 2017, prior to the start of the resident’s tenancy. The ACMs were chrysotile type asbestos in floor tiles throughout the property and in the textured coating to the kitchen and living room ceilings. The specialist surveyors assessed the risk as low and recommended that the landlord manage and monitor the ACMs. It was appropriate for the landlord to rely on the assessment and advice of its specialist surveyors in this respect.
The landlord’s asbestos policy also required it to share information with the resident as to the presence and location of ACMs in the property prior to her moving in. This was to allow the resident to understand where asbestos existed so that any future maintenance at the property took this into account.
According to the resident, she was not provided with this information at the start of the tenancy and only became aware of it almost 3 years later on 24 March 2021 when the landlord’s operative attended to fit a new bathroom floor at the property and alerted her to the suspected presence of asbestos.
The landlord accepted in its Stage 2 response that it should have provided the resident with information about the ACMs in the property at the start of the tenancy. It is noted that the landlord did not dispute (or confirm) in its complaint responses that it had failed to do so but in subsequent correspondence with this Service, it stated that it had no record of the resident being advised of the presence of asbestos at the property when it was let.
It is reasonable to conclude that the landlord failed to provide the resident with the information it should have offered in relation to asbestos in her home either at the outset of the tenancy or at any time prior to 24 March 2021 when she became aware of it via the landlord’s operative.
The result of the landlord’s failure was that the resident and her family did not appreciate that there were ACMs present in the property or take them into account in their use and maintenance of the property over a lengthy period of almost 3 years.
Had the resident been aware that the floor tiles contained asbestos, she would potentially have taken steps to carpet the area sooner than she did, in April 2020. It is likely that the resident would have taken steps promptly to inform the landlord that the tiles in the bedroom were cracked, if she had been made aware of what they were.
The landlord’s failure to inform the resident of the presence of ACMs in the property caused detriment to her. Once the resident discovered that there were ACMs in her property, of which she had previously been unaware, she was caused anxiety and distress at the uncertainty as to any future health implications for her and her family due to the exposure to the asbestos tiles.
In its complaint responses, the landlord sought to reassure the resident as to the low risk presented to her by the ACMs. However, it did not acknowledge or offer redress for its breach of policy in failing to provide the resident with information about the ACMs in the property at the outset of the tenancy. Under the circumstances, it would have been appropriate for the landlord to do so.
After the resident became aware of the presence of ACMs in the floor tiles to her bedroom, as confirmed by her privately instructed specialist surveyor on 27 March 2021, she contacted the landlord on 31 March 2021 and requested a copy of the asbestos survey relating to the property, which she (correctly) understood the landlord would have obtained prior to the property being re-let to her.
It would have been reasonable for the landlord to provide the resident with a copy of the asbestos survey report as she requested. It should have been apparent to the landlord from the resident’s communications at this stage that she was unaware of the full extent of ACMs in the property. The report would have made clear to the resident where ACMs were located, consistent with the aims of the landlord’s asbestos policy. It would also have been reassuring to the resident to understand from it that the landlord’s specialist surveyors had assessed the risk presented by the ACMs as low.
For reasons which are not clear, the landlord did not provide a copy of the report to the resident or explain why it would not do so. The resident advised this Service on 6 February 2022 that she had still not received a copy of the report as at that date.
As a result, the resident remained in the dark that there were ACMs in the textured ceilings at the time she was communicating with the landlord between 19 and 21 April 2021, regarding the planned works to remove the polystyrene ceiling tiles.
In accordance with its asbestos policy, the landlord or its service providers should have checked on the asbestos web portal to ensure that it was familiar with the location of any ACMs in the property. A risk assessment should have been carried out prior to the works being conducted where ACMs may be encountered.
The landlord has not produced any records to this Service by way of evidence of these steps having been taken. It is assumed, however, that if they had been taken, the landlord would have noted from the asbestos survey report that there were ACMs present in the textured ceilings. The works would have been risk assessed and managed accordingly.
The landlord assured the resident in its Stage 1 response of 19 April 2021 that it was safe for her to remain at the property while the polystyrene ceiling tiles were being removed. However, the landlord made no reference to the fact that there may be ACMs present under the tiles. It would have been reasonable for the landlord to inform the resident of this, so that she could make an informed decision as to whether or not to remain in the property while the works were being carried out.
As matters turned out, the resident declined the appointment offered for the removal of the polystyrene tiles on 20 April 2021, due to lack of notice.
When the resident subsequently became aware from the landlord’s surveyor on 21 April 2021 that that there were ACM’s under the ceiling tiles, she was caused further distress. The resident was concerned that if she had agreed to the works proceeding on 21 April 2021, as the landlord had suggested, she and her family would have been exposed to asbestos dust.
The landlord’s continuing failure after 30 March 2021 to provide the resident with information regarding the ACMs in her property therefore caused detriment to her. This could have been avoided if the landlord had provided her with a copy of the asbestos survey and/or communicated with her regarding the ACMs in the property as part of the planned works to remove the polystyrene ceiling tiles, as set out by its asbestos policy.

The landlord’s response to the resident’s request to be decanted

During the complaint process, the resident and landlord had various communications as to whether the resident should be decanted from the property.
The backdrop to these exchanges was that the resident’s property was earmarked for demolition. The resident was due to be moved in any event within 12 months.
In its Stage 1 response of 19 April 2021, the landlord confirmed that the polystyrene ceiling tiles would be removed as a matter of urgency and proposed that the resident remain in occupation while the works were carried out.
On 19 April 2021, when escalating her complaint, the resident requested that the landlord reconsider its proposal that it carry out the works while she remained in occupation. She pointed out that that it would not be possible to block off the areas containing the polystyrene ceiling tiles as they were throughout the house and that the dust and dirt which would be generated by this was not appropriate to be inhaled by her children. The resident asked to be decanted.
In the same email, the resident drew the landlord’s attention to the fact that the asbestos tiles in the property had been broken when she moved in and that she and her son had been exposed to the asbestos tiles for two and a half years.
It was reasonable for the landlord to review at this stage whether the resident should remain in the property, or be decanted, given the new information which she had provided as to the condition of the asbestos tiles and the concerns she had expressed at the dust and dirt which would be generated by the planned works.
The landlord considered the question of decanting the resident as part of its investigations into the Stage 2 complaint. It consulted with the regeneration manager over the future of the block and the resident’s particular circumstances.
In its Stage 2 response of 6 May 2021, the landlord addressed the issue of whether the resident should be decanted and set out the applicable considerations. It acknowledged the potential impact on the resident of having the works done to remove the polystyrene ceiling tiles while she was in occupation and proposed to visit the property and assess whether it was feasible to do the works with the resident living in the property or whether to decant. This was a reasonable response from the landlord to address the resident’s concerns.
The landlord also agreed, given the resident had reported issues with the asbestos tiles, that it would organise as a priority an additional asbestos survey to assess the condition of the property. This was in line with the landlord’s asbestos policy applicable to situations where ACMs become damaged within occupied property.
The landlord explained that if the result of the survey meant that works were required, this would be taken into account, in conjunction with the ceiling works, and may add weight to the argument that the resident be decanted.
It was reasonable for the landlord to obtain advice from its specialist surveyors with regard to the condition of the ACMs at the property and review whether the resident should be decanted in the light of it.
The landlord conducted its inspection of the property reasonably promptly thereafter on 19 May 2021 and decided that the resident was to be decanted, as advised to her on that date. It is unclear when the additional asbestos survey was carried out as this has not been produced to this Service.
The resident’s tenancy was terminated on 2 August 2021. Whilst there was a period of time between the decision to decant the resident on 19 May 2021 and her move out of the property, the senior contracts manager had appropriately sought in the Stage 2 response to manage the resident’s expectations about how quickly a move would be facilitated in the event that he decided that it was appropriate to decant.
There is nothing to suggest that there was undue delay by the landlord in processing the paperwork or the arrangements for the decant, once the decision had been made that the resident should be decanted.
Overall the landlord acted reasonably when responding to the resident’s request to be decanted.

The landlord’s complaints handling response in respect of the resident’s report that asbestos tiles were broken at the start of the tenancy

Part of the resident’s complaint to this Service is that the landlord did not address in its Stage 2 response the fact that the asbestos tiles had been broken when she had moved in to the property.
The resident had informed the landlord of this in her email of 19 April 2021 when requesting an escalation of her complaint to Stage 2.
The landlord’s Stage 2 response addressed the condition of the ACMs at the property at the start of the tenancy. It did so by referring to the asbestos survey report carried out on 6 April 2017 and the assessment in it of the condition of the ACMs at that date and the recommendations made for the management of them. It was reasonable for the landlord to refer to the assessment and advice of its specialist advisers in this way as it demonstrated that it had satisfied itself that health and safety aspects of the ACMs had been addressed prior to the resident moving in.
Whilst the landlord’s Stage 2 response of 6 May 2021 did not refer to the resident’s statement that the asbestos tiles were broken when she moved in to the property, it did refer to the resident’s statement that the tiles had been broken “for some time” and described this as a concerning factor. In doing so, the landlord appropriately acknowledged that the resident was providing information that the condition of the asbestos tiles may be different to that described in the asbestos survey report of 6 April 2017. The landlord sought to address the issue and put matters right by agreeing to a reassessment of the ACMs by its specialist surveyors.
Under the circumstances, the landlord responded appropriately to this aspect of the resident’s complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its response to the resident’s reports about polystyrene ceiling tiles in her property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its failure to provide the resident with information about the presence of asbestos in her property at the start of the tenancy and subsequently.
There was no maladministration by the landlord in its response to the resident’s request to be decanted.
There was no maladministration by the landlord in its complaints handling response in respect of the resident’s report that asbestos tiles were broken at the start of the tenancy.

Reasons

In accordance with the landlord’s repairs policy, it should have removed polystyrene ceiling tiles at the resident’s property prior to the start of the tenancy. The landlord failed to do so. This caused detriment to the resident. She was caused distress at living in a property for three years with flammable ceiling tiles which were a known fire risk and was put to time and trouble in securing their removal.
In accordance with its asbestos policy, the landlord should have provided the resident with information as to the presence and location of asbestos at her property at the start of the tenancy. The landlord failed to do so. This meant that the resident did not take the asbestos into account in her use and maintenance of the property for a period of almost 3 years. She was caused anxiety and distress at the uncertainty as to any future health implications for her and her family of the exposure to asbestos tiles during this period. Subsequently, the landlord continued to fail to provide the resident with information as to the presence and location of asbestos in the property when reasonably requested by her and in line with its asbestos policy. This caused further distress to the resident who remained unaware that there was asbestos in the textured coating to the ceiling when communicating with the landlord over planned works to the ceiling.
The landlord acted reasonably in response to the resident’s request to be decanted, in agreeing to an on-site visit to assess the feasibility of works being conducted while she was in occupation and in agreeing to obtain further advice from its specialist surveyors as part of its decision making. The landlord promptly agreed to decant the resident thereafter.
The landlord responded appropriately to the resident’s report that the asbestos tiles had been broken at the start of the tenancy by referring to the asbestos survey dated 6 April 2017. This demonstrated that it had satisfied itself that health and safety aspects of the ACMs had been addressed prior to the resident moving in. The landlord took appropriate steps to address the information provided by the resident as to the broken condition of the tiles by agreeing to an additional asbestos survey.

Orders

Within 4 weeks of this report, the landlord is ordered to:
1. Write to the resident to apologise for the service failures identified in this report.
2. Provide the resident with a copy of the asbestos survey report dated 6 April 2017 or explain why it will not provide it.
3. Pay the resident the sum of £850, made up of:
  1. £550 for the distress and inconvenience caused to her by its failure to provide information relating to the presence and location of asbestos in her property at the start of the tenancy and subsequently when requested;
  2. £300 for the distress and inconvenience caused to her by its failure to remove polystyrene ceiling tiles from the property prior to the start of the tenancy.
The landlord should contact this Service within 4 weeks of the date of this determination to evidence its compliance with the above orders.

Recommendations

During this investigation, it was noted that the landlord failed on various occasions to record the outcome of its findings on repairs visits and inspections of the property: the reason for the cancelled repair on 24 March 2021; and the inspections of the property on 31 March 2021, 21 April 2021 and 19 May 2021. It is recommended that the landlord review its record keeping practices to ensure that all relevant information is recorded in a way that is accessible.
It is recommended that the landlord considers staff training to ensure it provides correct information about the property condition during its sign up process.
The landlord should reply to this Service within 4 weeks of the date of this determination to advise of its intentions in regard to the above recommendations.