Westminster City Council (202309206)

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REPORT

COMPLAINT 202309206

Westminster City Council

5 September 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 response to the resident’s concerns about asbestos in his property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The resident has a fixed term secure tenancy with the landlord in a 1 bedroom second floor flat in a block, and his tenancy started in December 2018. The landlord recorded the resident as vulnerable, but it is unclear what vulnerability it recorded. The resident confirmed with this Service that he has a mental health condition.
  2. Prior to the start of the resident’s tenancy the landlord conducted an asbestos survey in August 2018, while the property was empty. The landlord completed works to remove asbestos and a ‘certificate for reoccupation’ was approved in September 2018.
  3. In April 2023, the resident made a complaint to the landlord and expressed a concern about the information it had provided him about the asbestos works/inspections it had done. He said he had received “no explanation” about the reports or actions it had taken, and was concerned that asbestos in the property would pose a risk to his life. It does not appear the landlord responded to the complaint at the time.
  4.  Following contact from the resident, this Service contacted the landlord on 28 June 2023 and asked it to respond to the resident’s complaint about asbestos. The landlord contacted this Service on 13 July 2023 and said it had provided the resident with information about the asbestos works it had completed “which resolved the query”, and it considered the matter “closed”. On 1 November 2023, this Service issued the landlord with a Complaint Handling Failure Order (CHFO) for failing to respond to the complaint, and asked it to send a stage 1 response within 5 working days. It does not appear the landlord did so. As a result of its failure to respond to the complaint, we determined the complaint was ‘duly made’ to this Service on 1 November 2023.
  5. On 19 February 2024, the resident contacted this Service and asked us to investigate his complaint. He said that he did not believe the landlord’s explanation of the issue was “accurate”, and he wanted a “full explanation” of what works were carried out. The resident also stated that he wanted an “independent” inspection of the property to reassure him the property was “clear” of asbestos.

Assessment and findings

The landlord’s response to the resident’s concerns about asbestos in his property

  1. The landlord’s asbestos policy states that it will manage, repair, or remove any material containing asbestos, depending on the likelihood of disturbance, and its location or condition. The policy states that where construction or building work is to be carried out and asbestos has been positively identified in areas relative to the work, asbestos will be removed as part of that project.
  2. The resident reported various concerns about asbestos works that took place prior to start of his tenancy, in 2018. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made.
  3. Therefore, taking into account the availability and reliability of evidence, it is considered fair and reasonable for this assessment to focus on the landlord’s handling of the events from April 2023 onwards, when the resident asked for more information about the asbestos works. Reference to the events that occurred prior to 2023 is made in this report to provide context.
  4. This report has not assessed the asbestos works the landlord completed in 2018, due to the passage of time. It is also worth noting that this Service does not have the expertise to assess the appropriateness/quality of the asbestos works completed. Instead, this investigation has focused on the landlord’s response to the resident’s queries raised in April 2023. It is worth noting that it is reasonable for a landlord to rely on works/assessments of appropriately qualified contractors for assessing and removing asbestos from its properties.
  5. Given the landlord did not provide a formal complaint response, a failing that is assessed in greater detail below, it has not been possible to determine the landlord’s position on the issue. We have instead assessed the evidence provided and drawn reasonable conclusions of the actions taken, based on what was available.
  6. As part of his complaint, of April 2023, the resident raised a concern that the landlord’s actions in relation to the asbestos had meant that it had “pois[ened]” him. The serious nature of this is acknowledged, and we do not seek to dispute the resident’s comments. However, this aspect of the resident’s complaint ultimately requires a determination of liability for personal injury.
  7. Claims of personal injury, including damage to health, can be considered via a landlord’s public liability insurance or in a court of law. Such claims will take into consideration medical evidence and allegations of negligence. These matters fall outside of the Ombudsman’s remit. The resident may wish to seek independent advice on making a personal injury claim, if he considers that his health has been affected by any action or lack thereof by the landlord.
  8. We have seen no evidence to indicate that the landlord responded to the resident’s complaint of April 2023, or September 2023, about its handling of the asbestos works. This was unreasonable and a failing in its handling of the matter. It is noted the evidence shows it did supply the resident with asbestos reports, and details of the associated works. However, the fact it did not respond to the complaint left the resident not knowing its latest position on the matter. The resident was evidently distressed about the potential presence of asbestos in his property, its lack of response did little to try and reassure the resident.
  9. The landlord had recorded the resident as vulnerable, and was aware he was distressed about the issue. Its dismissive approach to his complaints about the issue is concerning. The evidence shows the landlord had completed asbestos inspections and works to remove asbestos. That it did not provide an explanation of its position on the matter is evidence it did not have due regard for the distress the resident felt about the matter. Formally setting out its position on the asbestos issue would have helped build trust that it was taking his concern seriously. Its failure to do so is evidence that it did not have due regard for the resident’s vulnerability and the distress its lack of response was causing.
  10. While the landlord provided evidence of the works it had completed, that it did not formally set out its position was unreasonable. The lack of response was dismissive of the resident’s concerns, which did little to alleviate the distress he felt. As such we have determined there was maladministration in the landlord’s handling of the matter, and made a series of orders below.

Complaint Handling

  1. The landlord operates a 2 stage complaints procedure. Its policy states that it will send stage 1 complaint responses within 1o working day, and stage 2 responses within 20 working days.
  2. The resident first expressed dissatisfaction with the landlord’s handling of the substantive issue in this complaint in April 2023, and then again in September 2023. That the landlord did not open a complaint at that time was unreasonable, and a failing in its complaint handling. The Ombudsman’s Complaint Handling Code (the Code) states that a complaint must be responded to in writing, with details of how to escalate the complaint if dissatisfied.
  3. The landlord decided to close the complaint, having sent the resident the information about the asbestos works it had done. This was unreasonable, and a failing in its complaint handling. Its failure to respond to the complaint inconvenienced the resident, and contributed to the detriment he experienced in its handling of the substantive issue. It is noted that due to the passage of time it would have been difficult for the landlord to assess its handling of the asbestos works in detail. However, that it did not provide a complaint response to set out its position at all was unreasonable and caused an inconvenience.
  4. That it did not open a complaint investigation at that time is evidence the landlord operated an unfair and hard to access complaints process. This inconvenienced the resident, and he was cost further time and trouble in needing to seek assistance from this Service to get the landlord to open a stage 1 complaint, in June 2023.
  5. We have seen no evidence to indicate that the landlord issued a formal complaint response, after we issued a CHFO in November 2023. This was a further failing in its complaint handling, and evidence the landlord operated an obstructive complaints process. The resident was caused a further inconvenience of not getting a formal response to his concerns, despite our intervention on his behalf.
  6. The landlord operated an obstructive complaint process, and did not respond to the resident’s complaint. This was unreasonable, caused an inconvenience, and impacted on the detriment of its handling of the substantive issue. The resident was evidently distressed about asbestos, that it did not respond to the complaint at all increased the distress he experienced. It is noted that the resident had made multiple complaints about different issues. Having a large volume of complaint communications from the resident can reasonably be concluded to have contributed to the difficulties in the landlord’s complaint handing. However, its failure to respond to this particular complaint amounts to maladministration. As such, a series of appropriate orders are set out below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s concerns about asbestos in his property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

  1. Within 4 weeks the landlord is ordered to:
    1. Apologise for the failings identified in this report.
    2. Pay the resident £350 in compensation, made up of:
      1. £150 in recognition of the distress and inconvenience caused by its handling of the resident’s concerns about asbestos.
      2. £200 in recognition of the inconvenience, time, and trouble caused by its complaint handling.
    3. Write to the resident to formally set out its position in relation to his concerns about asbestos. The landlord must provide an explanation of the works it has completed and its latest position on the presence of asbestos in the property.
    4. Remind its staff responsible for investigating complaints the importance of:
      1. Opening a complaint investigation, and issuing a formal response, even if the matter is resolved.
      2. A meaningful complaint investigation that seeks to learn from outcomes, and put things right for the resident.
      3. Offering appropriate redress for failings, including complaint handling delays.