Barnsley Metropolitan Borough Council (202305828)

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REPORT

COMPLAINT 202305828

Barnsley Metropolitan Borough Council

19 July 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

The complaint is about the landlord’s handling of the resident’s reported concerns about:
1. artex and asbestos;
2. damp and mould;
3. the condition of the kitchen and bathroom.
The landlord’s complaint handling has also been investigated.

Background

The resident is a secure tenant of the landlord, her tenancy started in 2012. The property is a 2 bedroom first floor flat. The resident has asthma and anxiety, including health anxiety.
In 2016 the landlord surveyed the resident’s area with the aim of bringing properties up to the “Barnsley Homes Standard.” Following this, an electrical upgrade took place at the resident’s property. The resident requested that the kitchen and bathroom be renewed but this was turned down.
In 2018 the landlord carried out an asbestos management survey on the property which identified that there was asbestos in the textured coating of the ceilings in both bedrooms. The ceilings were recorded as having low damage with the lowest risk code. Asbestos was not identified anywhere else in the property. No evidence has been seen that the survey results were shared with the resident at the time.
On 20 June 2022 the resident complained about:
1. artex wall covering that had not been removed from the bedroom walls, ceiling and doorway;
2. mould on the bedroom walls;
3. the condition of the bathroom and kitchen, including the toilet not working properly, damage to the floor of both rooms, and broken kitchen cabinets.
The landlord responded under stage 1 of its complaints procedure on 1 September 2022. It stated that the resident had refused repair works to the kitchen and bathroom. It would only reskim plaster if it was damaged. It had not been able to gain access to repair damaged plaster in the living room. It would re-inspect the property on 21 September 2021 and consider whether further works were needed.
The resident requested escalation to stage 2 on 20 October 2022. As the request mentioned asbestos, which had not been explicitly mentioned in the initial complaint, the landlord decided to reconsider the whole complaint at stage 1. The landlord issued a second stage 1 response on 18 November 2022, having inspected the property 2 days earlier. This acknowledged the resident’s health concerns in relation to asbestos and mould. It stated that “historical asbestos information” showed there was no asbestos in the walls, and it would only repair artex if damaged. It stated there was no evidence of mould or damp. It would replace the fronts of the kitchen cabinets, and renew the kitchen and bathroom flooring.
On 2 December 2022 the resident again requested escalation to stage 2.
The stage 2 response, on 22 December 2022, referred to the asbestos management survey in 2018, and said there was no asbestos in the walls or living room ceiling. Although asbestos was present in the bedroom ceilings this was in good condition and, as such, it was safer not to remove it.
Mould treatment works had been ordered as a “precautionary measure” in September 2022, but the landlord had not been able to gain access for this. The inspection in November 2022 showed there was no mould and no moisture in the walls or atmosphere. The kitchen and bathroom had not met the criteria for replacement under the Decent Homes Scheme and there was no evidence that this was due to racial discrimination. Works had been ordered to replace the fronts of the kitchen cabinets, and renew the kitchen and bathroom flooring.
The resident was dissatisfied with the stage 2 response and asked this service to investigate. She stated that there were ongoing issues with damp/mould and asbestos, as well as a “rotting” toilet and kitchen cupboards. The resident stated that the landlord had inspected for damp/mould in the living room but refused to look elsewhere and denied there being any damp/mould present. The landlord reviewed its complaint handling on 20 February 2024, after conclusion of the internal complaints procedure. It apologised for delays in complaint handling, said that it would skim the plaster in the stairs, hall, landing, living room ceiling and 1 bedroom wall. It had not been able to gain access to replace the fronts of the kitchen cabinets. It offered £520 compensation in recognition of failures in complaint handling and outstanding works.

Assessment and findings

Scope of the investigation

In her correspondence, the resident has stated that she is dissatisfied with the landlord’s response to her requests for works on her property since the start of her tenancy. She is dissatisfied that her kitchen was not replaced during Decent Homes Scheme works in 2016/17 and 2020/21. When a complaint is referred to the Ombudsman, we must consider what is fair in all the circumstances.
We must also consider whether the matters should have been escalated to our service at an earlier stage to receive a determination. This is to ensure that events can be clearly recalled, and that appropriate evidence will still be available to support the investigation.
For this reason, it is not fair to either party to consider matters that have not been escalated previously over this extended period. In this case, the determination will only consider matters raised in the 6 months prior to the formal complaint being raised. This is in line with the Ombudsman’s Scheme current at the time. Any reference to events prior to 6 months before the stage 1 complaint was made, or after the stage 2 response was issued, is made for contextual purposes only.

Artex and asbestos

The landlord has a duty under section 11 of the Landlord and Tenant Act 1985 (LLTA) to keep in repair the structure and exterior of the property, including the walls, roof and ceilings. Internal and external plasterwork is part of the structure. The landlord does not have a legal duty to carry out improvements, renovation or decoration, although there is a duty to “make good” any damage to decoration as a result of repairs. The duty to repair under section 11 LLTA is acknowledged in the tenancy agreement, which states that tenants are responsible for decorating the inside of the property. The tenancy agreement states that the landlord (and its agents, contractors and subcontractors) has a right of access to the property to inspect, and to carry out repair work.
The landlord must give 24 hours notice in writing, unless it is an emergency, in which case it may enter immediately. However, tenants have a general obligation to co-operate with the provision of reasonable access and not to obstruct the landlord in carrying out inspections and repair work.
Asbestos was used in many buildings until it was banned in 1999. According to the Health and Safety Executive (HSE), asbestos is not dangerous for occupants if it is in good condition and not disturbed. In this case, asbestos may be left in place, monitored, and managed to ensure it is not disturbed.
The HSE advises not to remove asbestos unnecessarily, as doing so could release asbestos fibres into the air, which would likely be more dangerous than leaving it in place and managing it. This is reiterated by ‘The Housing Health and Safety Rating System Guidance for Landlords and Property Related Professionals,’ which states that asbestos that is in good condition and unlikely to be disturbed can be managed and monitored in situ, with a record kept of the location of asbestos in the building.
The presence of asbestos itself does not constitute disrepair under section 11 LLTA, but if it is damaged or has deteriorated the landlord should carry out a repair and ensure there is no risk of asbestos fibres being released.
The landlord also has an obligation under section 9A of the LLTA to keep the property fit for human 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 landlord’s asbestos policy acknowledges its legal duty to manage asbestos in its homes and buildings. It states that it will find out if there is asbestos present in these properties, keep an up-to-date record of the location and condition of any asbestos, and prepare and monitor an asbestos management plan. The landlord acknowledges that “good communication is essential” and says it will provide tenants with information about asbestos, will tell them of possible asbestos containing materials in their home, and provide an asbestos survey report when requested. The policy does not indicate when such information is to be provided.
The landlord has confirmed that no evidence regarding the presence of asbestos in the property was shared with the resident when the tenancy began. In 2018 the landlord carried out an asbestos management survey on the property which identified that there was asbestos in the textured coating of the ceilings in both bedrooms. The ceilings were recorded as having low damage with the lowest risk code. Asbestos was not identified anywhere else in the property. There is no evidence seen that the survey results were shared with the resident at the time.
On 20 June 2022 the resident emailed the landlord to say that an operative had attended her property that day, but she was dissatisfied with the work that had been done, and with the general condition of the property. She complained that the operative had only looked at the stairs, and had not “removed” the artex from the bedroom walls, ceiling and doorway.
The repairs history provided by the landlord records that on 20 June 2022 the landlord had inspected damaged artex on the stairwell and offered a patch repair, but the resident was adamant that the whole staircase and ceiling should be replastered. The landlord inspected damage at the back of the living room radiator on 8 July 2022 and, as a result, attended on 27 July 2022 to fill the hole, but could not gain access. No evidence has been seen if this was an agreed appointment, or if the resident was given 24 hours notice in writing.
The landlord’s stage 1 complaint response on 1 September 2022 acknowledged the resident’s report that the artex scratched her skin. Whilst the artex in the living room had been replastered due to damage, the landlord would not re-skim plaster where there were no repair issues. The only damage found on recent inspection was at the back of the living room radiator.
The landlord had attended to carry out this work but could not gain access.
It invited the resident to contact it to rebook the repair. It would re-inspect the property on 21 September 2022 and consider whether further works were needed.
Artex is a decorative feature, and the landlord was correct that it was not obliged to “remove” this or “re-skim” the walls to make them smooth.
The resident refused a repair on 20 June 2022 on the basis of wanting further works that the landlord was not obliged to provide. This was beyond its control. It is unknown whether the landlord gave the resident the required 24 hours written notice of the 27 July 2022 appointment. It was appropriate that the stage 1 response invited the resident to rebook the repair and offered to re-inspect for damage.
On 20 October 2022 the resident’s niece emailed the landlord on the resident’s behalf to request that the complaint be escalated to stage 2. The email expressed safety concerns about the artex, both because some of it had come off and so the artex was “injuring her body,” and because “the artex is asbestosis and it can cause cancer.” The email stated that a workman had told the resident that there was asbestos in the house and since then the resident got anxiety being in the house and was finding it hard to sleep in the bedroom.
The landlord raised a new complaint at stage 1 as asbestos and mould had not been considered as part of the previous complaint. This will be considered further in the complaints handling section of this report. The repairs history shows further “no access” appointments with a card posted, on 20 October and 24 October 2022 (to fill a hole at the back of the living room radiator), and 26 October and 4 November 2022 (to repair a crack in the living room ceiling). Again, no evidence has been seen that these appointments were agreed with the resident or that the landlord gave her 24 hours written notice. The landlord attended the property on 16 November 2022 to carry out an inspection and discuss the complaint.
The landlord’s second stage 1 response, dated 18 November 2022, said the landlord had reviewed “historical asbestos information” and stated that no asbestos had been detected in the walls. Whilst it was true that there was no asbestos detected in the walls, the 2018 asbestos management survey showed that there was asbestos in the bedroom ceilings. Whilst the landlord did offer to provide a copy of the survey report, it failed to inform the resident that asbestos had been detected in the bedroom ceilings. It would have been appropriate, given the landlord’s duty to manage asbestos in the property, and keep the property free of hazards, for it to re-insect to check that the condition of the bedroom ceilings had not deteriorated. It is a failing that this was not done. There is also no evidence seen that the landlord provided the resident with information about asbestos – for example that asbestos is not dangerous if it is in good condition and not disturbed – which may have reassured her. There is some indication – for example the resident’s niece’s statement on 20 October 2022 that “the artex is asbestosis” – that the resident was unclear about the difference between artex and asbestos, and there is no evidence that the landlord sought to support her understanding around this. No evidence has been seen that the landlord investigated who had incorrectly told the resident that there was asbestos in the walls. The resident was distressed by the advice, therefore it was a failure that the landlord did not explore why it was given and ways to prevent a recurrence. The landlord therefore did not act in accordance with its asbestos policy and missed opportunities to allay the resident’s concerns.
The 18 November 2022 response repeated that the landlord would only repair artex if damaged, and would raise a repair job for damaged artex at the bottom of the stairs, which had been noticed on the 16 November inspection.
The landlord was correct to say that it did not have a duty to do work in relation to the artex that was purely decorative.
On 2 December 2022 the resident’s niece requested escalation of the complaint to stage 2. The niece stated that the resident had health anxiety and re-iterated that she had been told by the landlord that there was asbestos in the walls, this time naming a particular member of staff. The resident’s niece reported cracks in the ceiling and walls in the bedroom, some of which had appeared after the landlord removed a fireplace in the living room.
The complaint stated that the stairwell, whilst it had previously been
patch-repaired, was “falling apart.”
As the landlord knew the bedroom ceiling contained asbestos, and the resident’s niece had reported cracks to this, it should have inspected this as a matter of urgency, determined the extent of any cracks and their potential development, and then taken a risk-managed approach. No evidence has been seen that this was done, in breach of the landlord’s obligations to manage asbestos and prevent hazards. There is no evidence seen that the landlord spoke to the staff member named by the niece about the report that they had (incorrectly) told the resident that there was asbestos in the walls. As the resident had been distressed by the advice it would have been appropriate for the landlord to find out why it had been given and prevent a recurrence.
The landlord’s records show that it telephoned the resident on 8 December 2022 to discuss her complaint. The record of this discussion states that resident reported cracks in the walls and living room ceiling and that the bedroom wall is rough and cuts her skin. It is recorded that the resident had “extreme anxiety due to asbestos, feels she cannot sleep in her room, is worried she’ll get cancer.” There is no evidence that the resident mentioned cracks in the bedroom ceiling in this conversation, or that landlord raised this, following on from the niece’s report on 2 December 2022. There is no evidence seen that the landlord used this conversation as an opportunity to provide information to the resident about asbestos. This is disappointing, given the potential risk to the resident if there were cracks in the bedroom ceiling, and the landlord’s knowledge that the resident was extremely anxious about this.
There was a further “no access” appointment to “make good artex” on 21 December 2022. Given the pattern of “no access” appointments, it would have been reasonable for the landlord to review the situation and take steps to address this e.g. ensuring that 24 hours’ written notice was routinely given, and/or reminding the resident of her obligation under the tenancy agreement to allow access. It is disappointing that this was not done.
The stage 2 response, dated 22 December 2022, informed the resident about the asbestos management survey carried out in May 2018 and stated that no asbestos had been detected in the walls or the living room ceiling, but asbestos had been detected in the bedroom ceilings. As far as the landlord was aware, there was no damage to these and “[a]sbestos materials that are in good condition are usually best left where they are. Removing them can lead to fibres being released into the air.” It advised the resident to check the condition of the bedroom ceilings periodically and report any damage to it.
The landlord was correct that it was not under any obligation to remove asbestos materials in good condition, but especially given the niece’s report of cracks to the bedroom ceiling, it would have been appropriate for it to have
re-inspected the condition of the bedroom ceilings itself. The landlord stated in the stage 2 response that asbestos surveys “last” for 10 years. It is unknown what the landlord relied on for this indication. In failing to reinspect after reported damage the landlord did not act in accordance with its duty to manage asbestos and prevent hazards in the property. It is clear that the resident was extremely anxious about asbestos within the home. Whilst the landlord provided minimal information about asbestos in the stage 2 response, it was inappropriate that it did not go further to support the resident with her understanding of the risks about asbestos.
The stage 2 response reiterated that the landlord would repair damaged artex but would not replaster it smooth, as this is a decorative preference. It is appropriate that the landlord was clear about the extent of its obligations.
The landlord informed the resident that she could instruct her own decorator to replaster the walls, but this would be at her own cost. The resident was dissatisfied with the stage 2 response and asked this service to investigate on 17 May 2023. Following the stage 2 response, on 13 March 2023 the landlord ordered works to skim the plaster in the stairway, hall, landing, living room ceiling and 1 bedroom wall. It is unknown whether this has yet been carried out.
Considering the landlord’s handling of the resident’s reports regarding artex and asbestos overall, the landlord was correct that it did not have an obligation to “remove” the artex or “re-skim” it to make the walls and ceilings smooth.
Its communication with the resident around this was consistent, but there was a lack of creative endeavours to agree a way forward with the resident, who wanted works that the landlord was not obliged to carry out. Evidence has not been seen that the landlord made its legal and contractual obligations (and conversely, what it was not obliged to do) sufficiently clear, failing to manage the resident’s expectations. The landlord attempted to carry out repairs where there was damage, but had difficulty gaining access. There is no evidence that the landlord was proactive in terms of addressing the repeated instances of being unable to gain access. Turning to the landlord’s management of asbestos in the property, and its communication with the resident around this, failings have been identified. Following the resident’s reported concerns and anxiety about asbestos, the landlord failed to provide accurate information about the location of asbestos in the property, which was potentially dangerous, had the resident decided to carry out her own works to the bedroom ceiling.
The landlord also did not provide more general information to support the resident’s understanding, until the stage 2 response, on 22 December 2022. Even then, the extent of the information provided about asbestos was minimal and insufficient. This was poor communication on the part of the landlord, in breach of its policy standard, and cannot but have contributed to the resident’s anxiety around asbestos. The failure to repeat the asbestos management survey in response to the resident’s concerns and reports of damage to the bedroom ceiling was poor practice, with the potential to put the resident at risk. Cumulatively, the failures identified constitute maladministration on the part of the landlord.

Damp and Mould

When damp and mould is caused by a problem with the structure and exterior of the property (e.g. rising or penetrating damp), or the installations that provide gas and electricity, heating and hot water, or water and sanitation (e.g. a leak), landlords have a responsibility under section 11 LLTA to repair the problem within a reasonable period of it being reported. Section 9A LLTA places a duty on landlords to remedy damp and mould where these cause health and safety issues, such that the property is not reasonably suited for human occupation. When a landlord receives a report of damp and mould it should inspect the property to determine the cause of this and what its duties are to remedy this.
The landlord did not have a dedicated damp and mould policy at the time of the resident’s complaint. The landlord’s ‘repairs clarification’ document ‘repairs element chart’ sets out steps the landlord will take to diagnose and remedy reported damp and mould. These include questioning the tenant as to the extent and location of the issue; conducting an inspection; and providing information and advice to tenants regarding condensation and mould.
The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) highlights the need for landlords to adopt a zero-tolerance approach to damp and mould interventions; ensure their responses are timely and reflect the urgency of the issue; act proactively, rather than re-actively; review the number of missed appointments and consider steps to reduce them; and clearly and regularly communicate with residents about actions to resolve reports of damp and mould. The Spotlight report also states that landlords should share the outcomes of all surveys and inspections with residents to help them understand the findings, and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner
It is not the role of the Ombudsman to make an independent, technical assessment of the damp and mould reported by the resident, but to assess the reasonableness and appropriateness of the landlord’s response to matters raised, considering whether it reasonably applied its policy and procedure, complied with relevant legislation, and followed good practice.
The resident’s initial complaint on 20 June 2022 stated that there was mould on her bedroom walls. On 23 June 2022 the resident emailed the landlord attaching photographs of her bedroom walls, showing orange marks/stains and small black/grey dots on two areas of wall, near the skirting board. The resident stated she had asthma, and this had got worse since sleeping in the bedroom with mould. The landlord’s maintenance surveyor carried out an inspection on 8 July 2022.
The landlord has not provided a contemporaneous record of the inspection showing which rooms/locations in the property were inspected, and the findings, but the maintenance surveyor stated after the event (within a landlord internal email dated 13 December 2022) that the marks on the bedroom walls were “more likely mould than grease in this specific location.” Following the inspection the landlord ordered a mould treatment wash to be completed within 25 working days. The landlord’s records seen do not specify in which rooms/locations the mould treatment wash was to be applied, but the landlord’s stage 2 response says it was to be applied to the ceiling and walls of the bedroom. There is no record seen of any advice to the resident.
The landlord’s repairs history shows that operatives attended the resident’s property to carry out the mould treatment on 19 September 2022, but were not able to gain access. The evidence is unclear as to whether there was no answer or whether the resident answered the door but refused to allow access. There is no evidence regarding whether the landlord had agreed the appointment in advance with the resident, or that she was given 24 hours written notice. Even if the landlord had been able to gain access, it did not attend within the 25 working day timeframe in its policy, taking twice as long.
On 10 October 2022 the resident’s niece emailed the landlord a GP letter, confirming that the resident has asthma and had reported breathing difficulties. The landlord attended again to complete the mould treatment wash on 17 October 2022, but the resident refused access. Again, there is no evidence that this was agreed in advance with the resident or that she was given 24 hours written notice. Offering a mould treatment wash combined with advice to the resident is an appropriate first-line remedy, where there is no immediate evidence of structural disrepair. However, no evidence has been seen that the landlord offered advice to the resident, or was proactive in its attempts to gain access so that the mould treatment wash could be carried out. Therefore, it is not possible to say that the landlord was fully compliant with its procedural requirements and expected good practice.
The landlord’s second stage 1 response, dated 18 November 2022, states that a further inspection of the property (which rooms were not specified) was carried out by a maintenance manager on 16 November 2022. The landlord has not provided this service with an inspection report, but the stage 1 response states that there was no evidence of mould; the suspected mould in the front bedroom was “some form of oil stain we wiped off with a damp cloth;” and the walls had been tested with a damp meter and showed no evidence of damp. The stage 2 response, dated 22 December 2022, clarifies that a hygrometer, protimeter and temperature ray gun were used to check for moisture in the walls and atmosphere (which walls/rooms not specified), but none had been found. These were appropriate steps for the landlord to take to investigate the resident’s reports.
The stage 2 response goes on to say that, as the November 2022 inspection showed no evidence of moisture or mould, no mould treatment was needed. However, if the resident was concerned in future she could call the repairs hotline. It is not clear that the landlord properly explained the findings of the maintenance surveyor’s inspection to the resident, as recommended by the Spotlight report, for example by providing and explaining the readings from the hygrometer, protimeter and temperature ray gun. This may have prolonged her uncertainty.
The landlord’s repairs history states that, after the conclusion of the internal complaints procedure, a “mould treatment wash to property” was carried out on 27 April 2023. The resident was dissatisfied with the stage 2 response and asked this service to investigate on 17 May 2023. The resident told this service that the landlord had inspected for damp and mould in the living room, said there was none present, but refused to inspect elsewhere. From the evidence seen the landlord focussed its efforts on the resident’s report of mould in her bedroom in the period up until the stage 2 response.
Considering the landlord’s handling of the resident’s reports regarding damp and mould overall, although the landlord did carry out at least 2 inspections during the period considered, attempted to carry out a mould treatment wash, and carried out appropriate tests to check for damp and moisture in the air, the landlord was not proactive in its attempts to gain access so that the mould treatment wash could be carried out, did not offer advice to the resident, and did not properly explain the findings of its inspections to the resident. Cumulatively, this constitutes service failure on the part of the landlord.

Kitchen and bathroom

The landlord’s duty under section 11 LLTA is to repair, not to carry out improvements, renewals or renovation. When a landlord receives a report of disrepair it should inspect the property, determine whether there is disrepair, what its duties are, and remedy any disrepair within a reasonable period.
The landlord’s ‘repairs clarification document’ states that:
1. damaged kitchen units will be repaired within 25 working days;
2. damaged floorboards will be repaired or replaced within 25 working days, unless there is a health and safety issue, in which case the repair/replacement will be carried out with a higher priority;
3. blocked toilets will be repaired within 24 hours.
4. ‘Programmed replacements’ are defined as “items where a repair has failed to resolve a problem and the only course of action is to replace.” These include kitchen and bathroom fittings, including “Altro floor.” These will normally be ordered in the following month if a repair has been unsuccessful, and these are “batched” and released to contractors on rolling monthly cycles for efficiency purposes.
The landlord’s records show that it attended on 20 June 2022 and inspected a “broken kitchen unit,” and offered replacement kitchen doors and drawers as they had delaminated and some of the handles had started to corrode.
The resident is said to have refused the repairs as “after 12 years they should have a new kitchen.”
The resident’s initial complaint on 20 June 2022 stated that:
1. the kitchen cabinets were broken, the handles rusted;
2. there was a hole in the kitchen floor;
3. the toilet was “not working properly;”
4. the toilet floor was “rotten.”
5. She was dissatisfied that she could not have a new kitchen, and asked why she was not treated “the same as others”.
The landlord’s records show it attended the resident’s property to carry out repairs to the kitchen and bathroom on the following dates:
1. 26 June 2022 – to repair the bathroom floor – the landlord’s first stage 1 response says the resident refused the works as she believed the whole floor needed to be replaced;
2. 8 July 2022 – inspected the kitchen and bathroom and ordered work to refit the kitchen cupboard front, and install a new floorboard in the bathroom (25 day priority);
3. 2 August 2022 – to refit kitchen cupboard front – resident refused access;
4. 26 October 2022 – to refit kitchen cupboard front and install new bathroom floorboard – “not completed;”
It is beyond the scope of this investigation to consider matters not raised in the 6 months prior to the formal complaint being raised – in this case the landlord’s decision in 2016 not to renew the kitchen and bathroom. Therefore, for the purposes of this investigation the landlord’s duty was to repair, rather than to improve or renew the kitchen and bathroom.
It was beyond the landlord’s control that the resident refused repairs to refit the kitchen cupboard front and repair the bathroom floor on the basis of wanting further works that the landlord was not obliged to carry out. It is clear that there was a dispute between the resident and the landlord as to the need for repair or renewal. Ultimately, the repairs to the kitchen cupboard and bathroom floor were not carried out within the 25 working day target set by the landlord’s repairs policy. No evidence has been seen that the landlord inspected the toilet or the kitchen floor within a reasonable period, which was either a failing in record-keeping on the part of the landlord, or simply a failure to inspect within a reasonable period.
The landlord’s second stage 1 response, on 18 November 2022, says that a further inspection of the kitchen and bathroom was carried out on 16 November 2022, and because of this the landlord agreed to replace all of the kitchen doors and drawer fronts; renew the kitchen flooring; and replace the bathroom floor. These works would be “raised on our rolling programme of planned works which are released in phases….” The bathroom floor would be temporarily repaired until it could be replaced. This was a reasonable response by the landlord given that the resident had refused works to repair the kitchen cupboard and bathroom floor. However, no evidence has been seen that the promised temporary repair to the bathroom floor was carried out within a reasonable period, which is a failing on the part of the landlord.
On 8 December 2022, in a telephone conversation about the resident’s request to escalate her complaint to stage 2, the resident reported that her toilet was using a lot of water, she had been told a plumber would come, but this had not happened. She stated she wanted a new toilet and bathroom. The landlord’s stage 2 response, on 22 December 2022, repeated that it would replace all of the kitchen doors and drawer fronts; renew the kitchen flooring; and replace the bathroom floor as a programmed replacement. No evidence has been seen that the landlord inspected the toilet during the period considered by this investigation.
Considering the landlord’s response to the resident’s reports in relation to the kitchen and bathroom overall, the repairs to the kitchen cupboards and bathroom floor were not carried out within the 25 working day target set by the landlord’s repairs policy. No evidence has been seen that the landlord inspected the toilet or the kitchen floor within a reasonable period following the resident’s report of disrepair on 20 June 2022. There was a lack of creative endeavours to agreed an interim way forward (progressing repairs) while a final position regarding the dispute on the need for replacements was awaited. Evidence has not been seen that the landlord made its legal and contractual obligations (and conversely, what it was not obliged to do) sufficiently clear, failing to manage the resident’s expectations. This constitutes service failure on the part of the landlord.

Complaint handling

The landlord’s ‘your comments count’ policy (complaints policy) states that stage 1 complaints will be acknowledged by letter within 2 working days, informing the resident who is dealing with the complaint, how to contact them and when they can expect a response. An information sheet will be provided explaining the stages of the procedure. The landlord will provide a response to the complaint within 10 working days of acknowledgement. If the complaint is complex the landlord may agree an extension with the resident, which will be confirmed in writing. Such extensions are not to exceed 10 working days without good reason.
Stage 2 complaints will be investigated by the customer services team on behalf of the relevant executive director. The resident will be contacted within 2 working days of a request to escalate. The findings of the investigation are passed to the Executive Director who will provide a response within 20 working days of acknowledgement. If the complaint is complex the landlord may agree an extension with the resident, which will be confirmed in writing.
Such extensions are not to exceed 10 working days without good reason.
The resident must be regularly updated.
As part of the investigation at both stage 1 and stage 2 the landlord will visit the complainant wherever possible. If this is not possible it must speak to the resident to discuss the complaint in full and establish the outcome/s they are seeking. All responses must include a full explanation of the reason for the decision.
The resident’s initial complaint was sent by email to the landlord’s customer services inbox on 20 June 2022, but no evidence has been seen that this was acknowledged, and the complaint was not responded to until 54 working days after the initial complaint, with no extension of time agreed. This was a failure by the landlord to follow their own complaints procedure, and it has since acknowledged (in its complaints “review,” dated 20 February 2024) that it “delayed registering the complaint.”
No evidence has been seen that the landlord visited the resident, or attempted to discuss the complaint with her at all, as part of the stage 1 investigation.
The stage 1 response did not accurately capture all elements of the complaint, as it failed to mention the resident’s complaints about mould, the broken toilet, or the hole in the kitchen floor. Had the landlord have discussed the complaint with the resident this could potentially have been avoided.
The stage 1 response states that the resident had refused works/not allowed access for replacement of a damaged floorboard in the bathroom, and repair to damaged plaster at the back of the living room radiator. The landlord apologised that the resident felt that it would rather “patch up the job than fix it fully,” and stated that whilst it would always carry out repairs fully, but it would not replace a full floor if it was not necessary, and wouldn’t reskim the artex “for decoration preferences” only. The landlord invited the resident to contact it to rearrange the repair to the plaster at the back of the living room radiator. It was appropriate that the landlord clearly stated what work it would and wouldn’t do, but it did not make sufficiently clear the basis for its decisions in terms of what it was legally and contractually obliged to do. Had it done so it could have managed the resident’s expectations and may have prevented escalation of the complaint. It was appropriate that the landlord offered to reinspect on 21 September 2022, and discuss any further works needed with the resident. However, no evidence has been seen that this inspection took place.
The resident was dissatisfied with the stage 1 response and her niece contacted the landlord on 20 October 2022 to request escalation to stage 2. She expressed safety concerns about the artex both because it was “injuring her body,” and because “the artex is asbestosis and it can cause cancer.”
Since being told by a workman there was asbestos in the house the resident got anxiety being in the house and was finding it hard to sleep in the bedroom. She also stated that the mould was affecting the resident’s asthma and attached a GP letter regarding the resident’s asthma. Rather than escalate to stage 2, the landlord raised a new stage 1 complaint, as it said that the resident had not raised the asbestos or mould before. This was incorrect as the resident’s initial complaint on 20 June 2022 did mention mould on the bedroom walls. The niece’s statement that “the artex is asbestosis” suggests that the resident may have been unclear about the distinction between them. Had the landlord contacted the resident to discuss her initial complaint it could have identified her concerns regarding asbestos sooner and responded to these in the first stage 1 response. The landlord has since acknowledged (in it’s complaints “review,” dated 20 February 2024) that it “delayed registering the complaint.”
Whilst the landlord acknowledged the resident’s niece’s request to escalate, and informed her of its decision to raise a new stage 1 complaint, on 21 October 2022, no evidence has been seen that informed her who was dealing with the complaint, how to contact them, when she could expect a response, or provided an information sheet will be explaining the stages of the procedure. This was in breach of its own complaints procedure. The landlord wrote to the resident on 3 November 2022 apologising for the delay and saying that it required more time to investigate. It promised a written response by 18 November 2022. The landlord acted in accordance with its complaints procedure by informing the resident that it needed extra time to investigate, although it is unclear from the evidence seen whether the extension of time was agreed with the resident, as set out in its policy standards.
The landlord inspected the resident’s property on 16 November 2022 as part of its complaint investigation. This was appropriate. It provided its second stage 1 response on 18 November 2022, as promised, 21 working days after the 21 October 2022 acknowledgement email, but this was 109 working days after the original complaint. The response still did not accurately define the complaint as it failed to mention the resident’s complaint about the toilet being broken.
The landlord repeated that it would only repair artex if it was damaged, and it would raise a repair job for damaged artex at the bottom of the stairs as a 25 day priority. The landlord did not indicate what it relied upon in in taking a decision not improve or renew, nor did it cite the obligation under the tenancy agreement for tenants to carry out decorative works themselves.
Whilst it was appropriate that the second stage 1 response acknowledged the resident’s anxiety regarding asbestos, and apologised for this, it failed to properly respond to the resident’s concerns as it gave misleading information regarding asbestos in the property. The landlord stated that it had reviewed “historical asbestos information” which showed no asbestos had been detected in the walls. Whilst this was strictly true, it was an incomplete indication as it did not mention that asbestos had been detected in the bedroom ceilings. This was potentially dangerous had the resident have undertaken works to the bedroom ceilings herself.
The second stage 1 response went on to inform the resident that the 16 November 2022 inspection had found no evidence of damp or mould and that the suspected mould in the front bedroom was an oil stain. It stated that the fronts of the kitchen doors and drawers, kitchen floor and bathroom floor were all in poor condition and would be replaced. These works would be raised on a rolling programme of planned works and the landlord was unable to provide a specific completion date. However, the landlord failed to respond to the resident’s complaint about the toilet “not working properly.”
The resident was dissatisfied with the second stage 1 response and, on
2 December 2022, her niece requested escalation to stage 2, stating that the landlord had told the resident there was asbestos in the walls and mould in the bedroom; there were cracks in the bedroom ceiling, wall, and the stairwell; and the resident has health anxiety and her health was deteriorating (referencing the GP letter). The landlord wrote to the resident on 6 December 2022, 3 working days later (slightly outside target time in its complaints procedure), acknowledging her request to escalate to stage 2 and requesting a phone call on 8 December 2022 to discuss. In accordance with its complaints procedure the landlord informed the resident who was dealing with the complaint, provided contact details, and an expected timescale for a response. An information sheet was provided explaining the stages of the procedure. In accordance with its complaints policy, on 8 December 2022, the landlord telephoned the resident to discuss her complaint and the outcomes sought. The resident said that she believed she had been left out of the Decent Homes works in 2016 due to her race.
The landlord’s stage 2 response was provided 13 working days later, on
22 December 2022 (within the procedure target time of 20 working days).
This informed the resident that the 2018 asbestos management survey did not detect asbestos in the walls or living room ceiling, but did detect asbestos in the ceilings of the bedrooms. The landlord appropriately advised that asbestos in good condition is best left alone, but as stated above, it should have offered to reinspect to confirm the ceilings were still in good condition and no risk was present, rather than asking the resident to do this. The landlord said that it would not carry out purely decorative works in respect of the artex, but the resident was free to instruct her own decorator. It stated that mould treatment works had been ordered following the 8 July 2022 inspection “as a precautionary measure,” but the resident had refused access. The November 2022 inspection did not identify any mould so no treatment was needed.
Whilst the landlord reassured the resident that it had found no evidence that she was omitted from the 2016 Decent Homes works due to her ethnicity, it is beyond the scope of this investigation to comment on that finding, as it refers to matters more than 6 months prior to the initial complaint. The landlord repeated that works would be carried out to renew the bathroom and kitchen floor, and the fronts of the kitchen cabinets, as part of a rolling scheme of planned works. However, the response left the resident unclear as to why the position was taken, and given her expressed concerns regarding bias, this was a missed opportunity to explain and promote understanding.
An effective complaint process means landlords can fix problems quickly, learn from their mistakes and build good relationships with residents. In this case problems with the landlord’s complaints process meant that the resident’s concerns were not fully addressed, her expectations not appropriately managed, and the relationship with the resident was further damaged.
Considering the complaint handling overall, the landlord did not fully comply with its own complaints procedure and missed opportunities to manage the resident’s expectations and resolve the resident’s complaint at an early stage. The complaint was not accurately defined from the outset, meaning that all aspects of the complaint were not addressed within a timely manner, or at all. The progress of the complaint through the internal complaints procedure was delayed, meaning that the resident’s right to have her complaint investigated by the Ombudsman was held back. Misleading information about asbestos was given at stage 1, which was potentially dangerous. The landlord did not adequately explain its decision not to renew the resident’s kitchen and bathroom, failing to fully address her expressed concerns regarding bias. Cumulatively, these failings constitute maladministration on the part of the landlord.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s response to the resident’s reported concerns about artex and asbestos.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s reported concerns about damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s reported concerns about the condition of the kitchen and bathroom.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.

Orders

A senior officer of the landlord, at minimum director level, must apologise to the resident in writing for the impact of its failures, having regard to the Ombudsman’s apologies guidance. Evidence of compliance to be provided to this service within 4 weeks of the date of this report.
The landlord must:
1. ensure that an up-to-date asbestos management survey on the resident’s property is carried out by a suitably qualified professional;
2. any recommended remedial works identified must be carried out forthwith;
3. the landlord to attempt to agree dates/times for inspection and any resulting works with the resident, and must in all events provide at least 24 hours written notice, highlighting the obligation to allow access under the tenancy agreement;
4. provide a copy of the survey to the resident and this service, along with a full written explanation in terms of the level of risk to the resident, and appropriate information about asbestos to support her understanding around this;
5. offer the resident, and provide (if requested), a face-to-face meeting or telephone conversation to discuss the asbestos management survey and provide information and advice regarding asbestos.

Evidence of compliance to be provided to this service within 4 weeks of the date of this report.

The landlord must satisfy itself that the property is free from hazards and confirm to the resident in clear way why this is the case, in writing and with an explanation face-to-face or by telephone, should the resident wish. Evidence of compliance to be provided to this service within 4 weeks of the date of this report.
The landlord must engage constructively with the resident to set out a clear programme of repair works to deliver the already agreed repairs to the kitchen and bathroom, agree access arrangements, and clearly explain the distinction between improvement works and responsive repairs. Evidence of compliance to be provided to this service within 4 weeks of the date of this report.
The landlord must review the learning from this case with particular reference to:
1. ensuring clarity to all its residents in respect of its communication and provision of information about asbestos (including by its contractors), at the start of the tenancy and throughout;
2. ensuring clarity to all its residents in respect of its communication and provision of information about damp and mould (including by its contractors), at the start of the tenancy and throughout;
3. ensure adequate levels of clarity among its residents as to the distinction between responsive repairs and improvement works, and its respective responsibilities;
4. the adequacy of its capture and response to of all element of complaints made;
5. ensuring provision of information in suitable channels, including on its website, as to its planned works programme, and to refresh this information on at least an six monthly basis.

The landlord must share a written report of the review findings with the resident and this service within 6 weeks of the date of this report, and bring any identified improvements into its day-to-day operations within 3 months of the date of this report.

The landlord to pay the resident compensation of £550, broken down as follows:
1. £200 for distress and inconvenience arising from the landlord’s failures in response to the residents reported concerns about artex and asbestos;
2. £150 for distress and inconvenience arising from the landlord’s failures in response to the residents reported concerns about damp and mould;
3. £50 for distress and inconvenience arising from the landlord’s failures in response to the residents reported concerns about the condition of the kitchen and bathroom;
4. £150 for time and trouble experienced pursuing the complaint.

This amount to include the £520 already offered.

Evidence of compliance to be provided to this service within 4 weeks of the date of this report.