Birmingham City Council (202006454)

REPORT

COMPLAINT 202006454

Birmingham City Council

9 August 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

1. The complaint is about the landlord’s handling of the resident’s concerns about asbestos containing materials at his property and related repairs, and its response to his subsequent formal complaint.

Background

2. The landlord’s Tenant’s Handbook document sets out the following: ‘Asbestos in the home is not dangerous unless it is disturbed. If the asbestos is in good condition and not likely to be damaged, it is safest to leave it where it is. If we find asbestos in a tenant’s home, we will inspect and monitor the condition of it at appropriate intervals…The asbestos will only be removed if it is disturbed or damaged and is assessed as being a potential risk to health.’
3. The Handbook also states that the landlord would repair and maintain the structure of the property, and that residents were responsible for repairing any floor covering they had fitted themselves.
4. The landlord’s repairs policy sets out the service standards to be expected for repair timescales, with urgent repairs responded to within one, three or seven days, and routine repairs within 30 days.

Summary of events

5. To assist with this investigation, the Ombudsman requested copies of the landlord’s records pertaining to the resident’s complaint. While it has provided some records, they are not particularly comprehensive, and it is difficult to construct a chronology of events based on these. The following therefore is a brief summary based on the limited information available.
6. Around May 2020 concerns were raised about asbestos containing materials (possibly in relation to an old warm air heater) at the property following an unrelated repair appointment for the boiler. The landlord attended soon after and carried out asbestos testing. Further concerns were raised about asbestos containing floor tiles.
7. On 9 June 2020 the resident emailed the landlord saying he was just letting it know that an operative had attended and carried out an inspection at the property on 4 June 2020. The outcome of this was that an asbestos test was ordered, which had taken place that day (9 June 2020) and found that ‘everything is within allowed parameters and that no significant levels have been picked up today.’ He stated that this did not mean that the levels had not been higher in the past and noted that a report was being prepared on the findings.
8. The resident emailed the landlord again on 16 July 2020 stating that there had been a ‘no show’ of its operatives that day in relation to the floor tiles, and raised concerns that tests that the landlord had ordered had already been done, and that there was confusion about the matter. The resident stated that there were also other asbestos related works required at the property, which he detailed as removal of an asbestos ceiling in the boiler cupboard and the removal of the old warm air heater, which he believed contained asbestos.
9. The resident emailed the landlord on 21 July 2020, referring to works that had now been carried out to remove floor tiles and the ceiling in the boiler cupboard, but said that the works had not been completed, with the ceiling left unrepaired and an electrical light hanging, so he was unable to return his belongings to the cupboard. He stated that no one had come back to sign off the job or contacted him to say when the work would be completed. He explained that the incomplete works meant that he was unable to return to the boiler cupboard the items he usually stored there, or access the loft space. The items were all in his bedroom making it difficult to sleep there. In addition, the old warm air heater still needed to be removed.
10. The resident said ‘To Top it all for some reason the other Jobs, Bedroom and Hallway have been cancelled …with no answer to my request for a report or copy of Findings.’ The Ombudsman understands that this related to broken floor tiles in the bedroom and hallway. He asked the landlord to resolve all the issues with asbestos and explained how stressful he was finding the situation, and his concerns for his health. 
11. On 30 July 2020 the resident emailed the landlord asking it to respond in writing to explain how it intended to replace the ceiling and flooring in the boiler cupboard, stating that electrical wires had been left hanging. He asked for the landlord’s reasons for not removing the old warm air heater, which contained asbestos lining and was falling apart.
12. An internal email in the landlord’s records dated 4 August 2020 states that operatives had carried out the relevant asbestos process with no underlying concerns found. Only broken or displaced floor tiles would be replaced as per policy.
13. A further internal email dated 7 August 2020 acknowledged that the resident had asked that all floor tiles were removed, especially in the bedroom, and that he was concerned about asbestos fibre release from the tiles and also the adhesive. The resident had been made aware of the scope of the works that the landlord would carry out, these being remove broken floor tiles and carry out an air test. Works that were then completed were removal of floor tiles and ceiling in the boiler cupboard. The warm air unit was not removed as it was sealed.
14. It seems that the resident made a formal complaint, presumably on the 12 August 2020, as this is the date that the landlord stated on its acknowledgment letter of the same date. However, the Ombudsman has not been provided with a copy of the complaint itself.
15. The landlord provided a stage one response also dated 12 August 2020. It stated that the resident had been made aware of the scope of the works, and that the broken tiles and boiler cupboard ceiling had been removed. As the old warm air unit was sealed, it did not need to be removed. Asbestos tests had been carried out and no concerns were found.
16. The resident wrote to the landlord on 18 August 2020 asking for the matter to be escalated. He said that the works had not been completed and asked that a housing officer visit to carry out inspection, in particular of his bedroom and the decaying floor tiles, and also the works that had been carried out to date. He said that no one had attended to post-inspect the works or advised him when the ceiling and floor was to be replaced in the boiler cupboard. He also said that the warm air heater was not sealed, and was in fact falling apart in places, and needed to be removed. The resident concluded that the floor in the bedroom and boiler room needed to be repaired, replaced and sealed. He also noted that he had not had a response to his request for a copy of the asbestos report/tests that had been carried out.
17. The landlord sent both an acknowledgement of the complaint (saying it had received it that day) and a final response on 21 August 2020. In this it said that as previously advised, it would only replace damaged floor tiles, not the whole floor. Regarding the warm air unit, when it replaced these with boilers and radiators, a decision was made to leave the old units in place. It referred the resident to the Ombudsman.

Assessment and findings

18. It is important to note that it is not the role of this Service to determine, for example, whether the floor tiles or the old warm air unit at the property contained asbestos and required removal. Rather, it is the Ombudsman’s role to determine, with reference to the information and evidence available, whether or not the landlord responded to concerns reported to it in a fair and reasonable manner.
19. The resident has explained in his complaint to this Service that the landlord had carried out two asbestos tests at his home. The first did not find any issues, but the second resulted in an asbestos contractor attending to remove the ceiling from the boiler cupboard. Floor tiles were also removed from the boiler cupboard. The resident has explained that the asbestos contractors left plastic sheeting in place of the ceiling that they removed, along with exposed hanging electrical wiring. Despite his complaints, the landlord has still not repaired this over a year later. Further, while the landlord removed floor tiles from the boiler cupboard, it did not replace them. As a result of these issues the resident reports that he has not been able to use the storage space in the boiler cupboard or to access the loft area.
20. The resident has also said that damaged floor tiles and adhesive in the bedroom and hallway have not been addressed by the landlord (and he is now also concerned about other areas in the property), which has caused him stress and exposure to asbestos, and meant that items he usually kept in these areas could not be, restricting his movement about the property. Further, the resident asked the landlord for a copy of the asbestos report for his home, but states that this has never been provided.
21. He would like the landlord to compete repairs in the boiler room, put down new floor tiles, and remove and replace all floor tiles in the bedroom and hallway (and other areas if found necessary). If the landlord would only agree to repair the damaged areas rather than replace, he would like it to ‘…replace tiles and seal the complete flooring area in both Bedroom and hallway to prevent further decomposition and ‘Frapping’ of Tiles and the Adhesive used back in the day to secure the tiles.’ He would also like compensation ‘…to offset the inconvenience and stress caused to me and my day to day living, made more difficult by the recent COVID19 Pandemic which has rooted me to working from home, a home that’s currently in a mess right now due to the aforementioned issues.’
22. As part of this investigation, the Ombudsman asked the landlord for all records of repair, remedial, or monitoring work booked relating to the asbestos issue. In response, the landlord provided a repair record dated 14 May 2020 which notes that operatives carried out an asbestos check on the old warm air unit at the property. This is marked as completed, with a note saying ‘Air unit is sealed so no access as stated in report unit is in good condition…’
23. A further repair record dated 26 May 2020 sets out that an operative identified an asbestos risk, with the record stating ‘bedroom and hallway tiles broken asbestos risk.’ A job was booked ‘to remove damage asbestos floor tiles repair duct panel and replaced floor tiles’ for 17 June 2020. However, on 1 June 2020 the resident telephoned the landlord to say that he was unhappy with the plan to replace the broken tiles and wanted to know what type of asbestos the floor tiles contained, and a report on this.
24. A note dated 11 June 2020 records that the landlord spoke with the resident that day, who ‘informs that failing to seal or carry full works to the floors and not to remove and replace broken ones in his opinion is not good for his health and has been doing research out to suggest this.’ A record dated 17 June 2020 notes that the resident did not provide access to operatives for the booked appointment, stating that he had cancelled this.
25. The Ombudsman has not been provided with any other records, for example of the 4 June 2020 inspection or the 9 June 2020 air test that the resident referenced, or what the ‘no show’ appointment that the resident reported on 16 July 2020 was for. No evidence has been provided of an inspection/asbestos test of the boiler cupboard ceiling and floor tiles, or the works referred to in the landlord’s 7 August 2020 internal email (stating that operatives had removed broken floor tiles and ceiling in boiler cupboard and carried out an air test). The Ombudsman must assume from the resident’s explanation that the ceiling and floor tiles were removed by an asbestos contractor, that they were found to contain asbestos and needed to be removed.
26. This Service also requested copies of any advice, information or reports received from third parties such as asbestos specialists, but none have been provided, for example, there is no evidence of any outcome of asbestos inspections.
27. There is no indication that following on from the no access appointment on 17 June 2020, any other inspection or works were carried out to the floor tiles in the bedroom and hallway. The resident himself noted in his 21 July 2020 email to the landlord that the works to the bedroom and hallway tiles had been cancelled ‘for some reason.’ While this Service acknowledges that the resident did not provide access for the planned works on 17 June 2020 (and understands that this is because he was unhappy with the plan to replace the broken floor tiles only, rather than all floor tiles) it is concerning that there appears to have been no follow up to these works, given that the landlord’s records indicate that the floor tiles in these areas were broken, and an asbestos risk. The resident continued to raise concerns about the floor tiles in the bedroom and hallway with the landlord, but there is no indication that the landlord responded to these or took any other action.
28. This Service also asked for any policy or procedure relating to management or removal of asbestos. The landlord has not provided any, although did state that ‘All works associated with asbestos are undertaken with all compliant regulations with specialist contractor’s.’ It is therefore not entirely clear to this Service what actions the landlord should have carried out to manage the asbestos which appears to have been identified in the floor tiles in the hallway and bedroom. However, the Tenant’s Handbook does state that if asbestos is found in a property, the landlord would inspect and monitor the condition of it at appropriate intervals. There is no indication that it has done so with the hallway and bedroom floor tiles.
29. Overall, the information and evidence that the landlord has provided is scant and appears to contain large gaps. Its responses to the resident’s formal complaint throw no further light on events. Both the stage one and stage two replies were extremely brief and failed to address in any way the resident’s concerns about the boiler cupboard ceiling and wires left exposed, or his concerns about the floor tiles in other areas of the property such as the bedroom. The stage two response did state that the landlord would only replace damaged floor tiles, but this did not address the resident’s concern that the tiles that were removed in the boiler cupboard had in fact not been replaced. Neither did it respond to the resident’s concern that the old warm air heater was not sealed and was in fact falling apart in places. The stage two response did not address the resident’s request for an inspection to be carried out, his concerns about the bedroom floor tiles, or his request for a copy of the asbestos report. Neither response have referenced the resident’s concerns about the floor tiles in his home containing asbestos, or his fears about the impact this might have on his health.
30. As part of the information that the landlord supplied to this Service in July 2021, it noted that the resident had asked for all the floor tiles to be removed but reiterated ‘…only the damaged ones were required to be replaced.’ It said that it would undertake this work. No explanation has been provided as to why this work has not been carried out to date, and no reference was made to the concerns about asbestos.
31. There is no evidence that the landlord responded to the resident’s emails in June and July 2020, as detailed in the background section above, and the Ombudsman has seen no reference in any of the information available to the policy that the landlord has referred to regarding replacement of floor tiles.
32. This Service is aware that the resident has continued to pursue these matters with the landlord through 2020 and into 2021, and that more recently, following a visit from a housing officer, some jobs were raised to address the ceiling of the boiler cupboard, and for repairs to floor tiles in the bedroom, hall and boiler cupboard. However, the resident has explained that these keep being cancelled, and have yet to take place. Further, it is not clear exactly what the repairs to the floor tiles will entail, or if this will address his asbestos concerns.
33. It is concerning that the Ombudsman has recently investigated a separate complaint against the landlord from around the same period, which found very similar issues to those identified here in relation to record keeping, information pertaining to asbestos containing materials, delayed repairs, and poor complaint responses. This suggests that the failings in this case were not ‘one off’ mistakes.
34. Also identified in the previous investigation was that the landlord’s compensation policy states ‘DO NOT make any payments that are ‘discretionary’ or ‘good will’. Any payments made where there is no liability are illegal and the person authorising such payments can be surcharged.’ It goes on to say ‘Do not pay for: Inconvenience/distress etc’. It is not clear on the legal basis the landlord is relying on and this Service frequently sees landlords offer compensation for failures to carry out a service, which include financial payments in recognition of inconvenience and distress. The Ombudsman’s own Remedies Guidance expressly states that compensation should be considered for these factors in relevant circumstances, and in this case, the Ombudsman finds that a compensation payment is warranted to ‘put things right’ for the resident.

Determination (decision)

35. In line with section 54 of the Housing Ombudsman Scheme, there was maladministration on the part of the landlord in relation to both the handling of the resident’s concerns about asbestos containing materials at his property and related repairs, and its response to his subsequent formal complaint.

Reasons

36. The landlord did not respond to the resident’s emails in which he set out his fears about asbestos in his home. It has not provided evidence of asbestos tests carried out at the property to support its contention that no concerns were found.
37. After the asbestos containing ceiling and floor tiles were removed from the boiler cupboard, there is no indication that these were replaced. In accordance with the terms of the Landlord and Tenant Act 1985, and as set out in the Tenant’s Handbook, the landlord was responsible for replacing the ceiling.
38. As the floor tiles had not been fitted by the resident, it was responsible for these too. It is not clear whether these issues would fall under urgent or routine repairs under the landlord’s repairs policy, but even non urgent repairs should be completed within 30 days. It is over a year later and these matters remain outstanding.
39. Despite its own records noting that the floor tiles in the bedroom and hallway were an asbestos risk, there is no indication that this has been followed up after the June 2020 no access appointment. There is no further explanation from the landlord as to whether the floor tiles posed a risk or not, or any other communication with the resident around this issue.
40. The landlord’s response to the formal complaint was extremely brief at both stage one and two, seemingly written on the same day that the complaints were received, with little indication of any investigation into the issues raised. The responses failed to address or even reference all of the concerns that the resident had detailed.
41. The resident has explained that these matters have caused him a great deal of inconvenience, stress, and worry.

Orders

42. Within one month of the date of this report, the landlord must:
    1. Pay the resident a total of £550 (comprised of £150 for the failure to respond to his formal complaint in a reasonable manner, and £400 for the stress and inconvenience caused by the failure to reasonably respond to his concerns about asbestos contain materials and related repairs in his home).
    2. Complete all works required to repair/replace the boiler cupboard ceiling and boiler cupboard floor tiles.
    3. Carry out an inspection of the floor tiles in the remainder of the property, to determine whether these contain asbestos, and if so whether they require replacement or any other works to make safe.
    4. Carry out an inspection of the old warm air unit to determine whether it requires removal or any other works to make safe.
    5. A report should be produced in relation to items ‘c’ and ‘d’ above and shared with the resident (with a copy sent to the Ombudsman), clearly setting out the findings of the inspections, the reasons for any decisions made regarding repairs/removals, and if works are required, what these will entail, and when they will take place.

Recommendations

43. The landlord should take steps to ensure that it’s complaint handling is carried out in line with the Ombudsman’s Dispute Resolution Principles and Complaint Handling Code, and that it’s compensation policy also reflects these.
44. The landlord should ensure that its record repair keeping practices are satisfactory.