Bolsover District Council (202001223)

REPORT

COMPLAINT 202001223

Bolsover District Council

18 January 2022

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 was about the landlord’s responses to the resident’s reports in relation to the following:
   1. Repairs to the kitchen floor.
   2. The resident’s concerns in relation to asbestos in her property
   3. The resident’s request for a post-works inspection to her loft.
   4. Repairs to external brickwork and the resident’s garden path.
   5. The conduct by an operative of the landlord.
   6. The resident’s request for skimming of external walls and works to the external brickwork to be redone.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the resident’s complaint is outside of the Ombudsman’s jurisdiction.
   1. The resident’s request for skimming of external walls and works to the external brickwork to be redone.
4. The Housing Ombudsman Scheme, which gives the Ombudsman his investigatory powers, states that we are unable to investigate complaints that are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the landlord has not taken action within a reasonable timescale. There is no evidence of a complaint handling failure. The resident requested this service investigate her report that her property required brickwork redoing and skimming to prevent further holes appearing in the brickwork. However, the issue of redoing the brickwork and skimming of the walls was not raised in the resident’s complaint to the landlord. In the circumstances, the landlord has not had the opportunity to respond to the resident’s complaint and this part of the complaint is therefore not within the Ombudsman’s jurisdiction to consider further.

Background and summary of events

5. The resident occupied a three-bedroomed terraced house on two floors with her son and partner under a secure tenancy which began on 11 November 2013.
6. On 23 March 2020, England went into lockdown until 13 May 2020 during which time landlord were given guidance to only carry out essential repairs. While lockdown did not resume till 14 September 2020, there were severe restrictions in place regarding social distancing.

Legal and policy framework

Asbestos

7. Asbestos as a building material was banned altogether in the UK in 1999. Any building that was constructed on or before this year may contain asbestos. According to the Health and Safety Executive (HSE)in the UK, asbestos is not dangerous for the occupants if the building material is in good condition. In summary, if existing asbestos–containing materials are in good condition and are not likely to be damaged, they may be left in place, their condition monitored and managed to ensure they are not disturbed.
8. Under the tenancy agreement, the landlord had an obligation to replace and renew the structure and exterior of the property. Under section 9a of the Landlord and Tenant Act 1985, the landlord had an obligation to keep the property fit for habitation in relation to hazards, including asbestos.
9. 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.
10. The presence of asbestos itself does not constitute disrepair. However, if it is damaged or has deteriorated and there is the risk of asbestos dust, then the landlord should act to prevent disrepair arising.
11. In summary, there is no duty on the landlord to remove asbestos unless it had been damaged or it has deteriorated and presents a health risk to the occupier. The duty of a landlord also extends to carrying out risk assessments before work at the property is carried out. There is no legal obligation on the landlord to inform residents of where the asbestos is situated in their homes.
12. The repairs handbook explained the nature of asbestos and that materials containing asbestos were safe and will not be harmful, as long as they are intact and have not been damaged or tampered with in any way. Asbestos should be removed only in a correct manner and preferably by a licensed contractor.
13. The landlord’s leaflet “Asbestos in the Home” set out in detail information about asbestos and advice. It stated that “no social housing provider in the UK” had the money or staff to remove asbestos materials all at once. It kept a database of asbestos and properties that were affected, which properties would be reinspected from time to time, depending on the type of asbestos, and the level of risk. It set out a number of actions it would take after a survey, including recording and managing the asbestos which applied to items that were in good condition, sealed, and not in a vulnerable position.
14. A local authority has a duty to address hazards in the home under the Housing Act 2004 and under the Environmental Protection Act 1990 to address statutory nuisance, which asbestos may be deemed to be. However, a local authority cannot enforce legal obligations against itself as a landlord but it may have a duty to inspect a property for a nuisance.

Repairs

15. As above, under the tenancy agreement, the landlord had an obligation to replace and renew the structure and exterior of the property. The repairs handbook specified the exterior included main paths leading to the front and back doors.
16. The repairs handbook categorised repairs as follows:
    1. Emergency work to remove immediate danger to people with a response time of 24 hours,
    2. “Responsive” repairs, normally for internal work with a response time of up to 15 working days for an appointment.
    3. Non–urgent repairs would be completed within 30 working days. This applied to work such as roof repairs and plaster patching.
    4. Routine work would be completed within 60 working days and applied to work such as gutter repairs and extensive plasterwork which was not urgent.
17. The repairs handbook required that any operative be polite and patient with the resident and treat them with respect.
18. According to the landlord, it provided the two handbooks at the outset of the tenant.

Chronology

19. According to the landlord, the resident reported issues with her kitchen floor on 13 June 2019. It had tried to arrange an appointment for 21 June 2019 in order to level the kitchen floor but received no response. It attended on 28 June 2019. On inspection, the landlord’s operative or contractor identified suspected asbestos in  floor tiles under the then floor covering. According to the landlord, the tiles were removed and the waste safely bagged up for collection on 4 July 2019. The resident wrote to the landlord on the same day to report that the landlord had installed hardboard upside down and the wrong way round and provided photos.
20. An asbestos survey was carried out on 16 July 2019 which was signed off on 23 August 2019. In summary, the survey concluded that it only identified asbestos in specified tiles and adhesive within a specified area. The tiles were of low risk, medium condition, and the adhesive of very low risk. Its recommendations were to manage, monitor and inform maintenance personnel prior to relevant works. The survey also confirmed that the tiles presented a low risk if left undisturbed. No asbestos was identified in the roof void/loft.
21. Nevertheless, the landlord arranged to remove the tiles apart from a few tiles which were under the kitchen units and therefore inaccessible and which presented a low risk. The asbestos contractor documented the works as completed on 19 July 2019, which was countersigned by the resident. At the resident’s request, there was a further inspection on 24 July 2019. By 31 July 2019, all tiles apart from the inaccessible tiles had been removed from the property as had the bagged-up debris, and the remaining inaccessible tiles were deemed to be of low risk.
22. On 30 August 2019, a job was raised to level the resident’s kitchen floor with plywood. On 17 September 2019, plywood sheets were fitted to the kitchen floor, in order to even up the surface, ready for the resident to fit her own covering, which job was completed on 22 October 2019. In the meantime, on 20 September 2019, the kitchen floorboards were deemed to be in fair condition.
23. There is no evidence that the resident made any further reports that related to the issues in the resident’s complaint, until, according to the landlord, a report was logged regarding a cracked path on 19 February 2020.
24. On 1 May 2020, the resident wrote to the landlord with a formal complaint about its operative’s conduct. She stated that an operative of the landlord, who was attending the property on a repair, told her son to go and join his mother in another part of the house. She stated that she was not advised that all the occupants should gather in one room. She reported her son had a disability.
25. On 4 May 2020, the resident made a formal complaint that some of the kitchen tiles had not been removed by the landlord and were “damaged by asbestos”.
26. On 8 May 2020, the resident wrote to the landlord that the garden path was not level and there were holes in the brickwork.
27. On 17 May 2020, having alluded to this on 8 May 2020, the resident requested a health and safety inspection of her loft to ensure it was safe after works were carried out in the loft. The Ombudsman has noted that there was no referral to works in the loft in the landlord’s repairs records but there is reference to works on the roof with a completion date of 22 March 2019.
28. The landlord treated the resident’s emails received on 4 May, 8 May and 17 May 2020 as a formal complaint regarding the kitchen tiles, garden path and brickwork. On 19 May 2020, the landlord wrote to the resident with its complaint response. It set out a detailed chronology of events together with a description of steps it had taken, which it hoped would reassure the resident that the safety of her and her family was not at risk. It invited the resident to explain her concerns about the loft and informed her of her right to request a review of her complaint.
29. On the same day, it also wrote with its complaint response in relation to the incident concerning the operative who attended to undertake a repair to a blocked drain. It had understood she was concerned about how her son was spoken to when he went into the bathroom when the operatives were carrying out the work. It also apologised for any upset. It stated that repair works were only carried out when social distancing was being practised. It stated that it was the responsibility of the tenant to ensure all of the household maintain social distancing and, in the case of children, parents should ensure their safety by keeping them safely away from its operatives.
30. The resident replied the same day that she denied her son was going into the bathroom but was coming down the stairs.
31. Also on the same day, the landlord wrote separately to state it had noted the required repair for the brick work and had passed it on to the repairs team which would follow up when normal working practices had resumed.
32. On 16 June 2020, the landlord wrote with its “internal review” response to the resident as follows:
    1. Any external works (brickwork and garden path) would be carried out when the landlord resumed normal working practices after lockdown. The holes in the external brickwork were not classed as essential works, but they would be inspected and the appropriate work would be carried out.
    2. In relation to the hardboard in the kitchen being installed upside down and the wrong way around, the landlord stated that it would not have installed a hardboard floor covering.
    3. It referred to its leaflet “Asbestos in the Home” provided at the outset of the tenancy. The landlord was not under an obligation to inform tenants if any asbestos was present in their properties, in accordance with the Health and Safety Executive legislation. It had carried out an asbestos survey to confirm that the tiles were asbestos and to ensure they were not damaged. The asbestos survey confirmed they were safe, if left undisturbed. However, the landlord removed the asbestos floor tiles to allow the kitchen floor to be repaired and the asbestos had been removed safely by a licenced contractor.
    4. Works in the property were carried out safely and did not require a post-inspection. The landlord’s surveyor had checked the work whilst it was in progress and there no work carried out in the loft. The only asbestos was located on the roof verge which was removed using all the correct health and safety procedures and could not have contaminated the loft in any way. It also had the waste consignment note to say the asbestos was disposed of correctly.
33. On the same day, the landlord also wrote to the resident with its internal review response regarding the incident with the operative. It explained that it was only carrying out essential work during the Covid-19 pandemic and its chief priority was to protect the health and safety of its residents. It was sorry if she thought that the operative spoke sharply. His intention was to protect both the resident’s family’s and his own health and safety. The operatives were obliged to socially distance from each other. They were not aware that her son was in the house and when he came downstairs and approached the bathroom, the operative had to move quickly out of the way. The operative had a duty to protect the health and safety of its residents and it was the resident’s responsibility to ensure that she and her family were maintaining social distancing. The dangerous and “potentially fatal nature” of the spread of Covid-19, for the resident, her family, and the operatives had a bearing on the tone of his response. It apologised for any upset.
34. On 16 June 2020, the resident responded in relation to her complaint as follows:
    1. She was sure it was the landlord who had laid the floor.
    2. The kitchen tiles were cracked and sticky.
    3. Asbestos should not have been in the property from the outset.
    4. She had been informed by a landlord operative that a tile had fallen off in the loft but she was not aware of any holes in the loft.
35. The following day the landlord confirmed that the internal complaint process had concluded and the next step was a referral to this service.
36. The landlord repaired the cracks to the front path on 19 June 2020 and the brickwork on 23 September 2020, namely a repair to a crack in the front door.
37. The landlord has informed this service that there were no works carried out in the loft but contractors attended the property in March 2019 to carry out external roof works including to the soffit and fascias. It also informed this service that it had updated the resident and provided explanation of its actions by telephone.

Assessment and findings

Repairs to the kitchen floor, including the removal of kitchen floor tiles.

38. The landlord responded appropriately to the resident’s report of an uneven floor well within the timescale set out in its repairs handbook. The resident’s report that the hardboard was laid upside down was not explained or clarified in its complaint response, but given the landlord laid plywood in order to provide a suitable surface, by 22 October 2019, the matter was resolved in any event. While it took four months for the levelling of the floor to be resolved overall, it is reasonable to conclude that the landlord was awaiting the finalised asbestos report and to check the floorboards were in good condition and therefore the job required being carried out in two stages.

The resident’s concerns in relation to asbestos in her property

39. The resident’s concern and anxiety regarding asbestos is understandable. Asbestos tends to create concern and anxiety in residents, however, it is not necessarily dangerous in itself.
40. While the landlord is not obliged to remove asbestos where it does not pose a risk, the Ombudsman’s role is to consider the landlord’s responses to those concerns, including whether it acted in accordance with its legal obligations and its policies. Even where the asbestos presented little or no risk, the Ombudsman may consider whether it would have been reasonable in the circumstances of the case to alleviate the resident’s concerns by removing all asbestos. However, the Ombudsman would not expect the landlord to take steps that were disproportionate to the risk, in terms of time, costs and disruption, for example undertaking complex works with little practical benefit.
41. As set out above, the landlord did not have a “duty to manage” asbestos. However, it was under a duty to repair or if necessary, remove, any damaged asbestos–containing materials in the property. It was also required to ensure that any works involving asbestos–containing materials were carried out safely and did not expose the resident to any risks.
42. The landlord took appropriate action in that it carried out an inspection of the kitchen floor and arranged for an asbestos management survey to be carried out on the property. It also removed the suspected kitchen floor tiles and in response to the resident’s concerns, it re-inspected and took proportionate steps in allying the resident’s concerns by removing as many tiles as it was able to. Its explanation that it could not remove all the tiles was reasonable, given that they were inaccessible and they were of low risk, as long as they were not disturbed.
43. The landlord’s decision not to remove the all the asbestos containing tiles in the kitchen was in line with the findings and recommendations of the asbestos–management survey and the landlord was entitled to rely on the advice contained within this as it was carried out by a suitably qualified asbestos management consultant. This decision was also in line with the landlord’s asbestos management protocol, the guidance issued by the Health and Safety Executive and the approach outlined by the Housing Health and Safety Rating System, all of which confirm that asbestos which is in good condition can be left in situ. 
44. In the circumstances, the landlord acted in accordance with its legal obligations and own policy, as well as seeking to reassure the resident by carrying out a fresh inspection and removing as many tiles as it was reasonably able to do. There is no evidence as to whether the landlord reassured the resident it would record and re-inspect the asbestos in line with the survey and its leaflet on asbestos and the Ombudsman will make a recommendation in that regard.

The resident’s request for a post-works inspection to her loft.

45. The resident’s concern about having a post-works inspection to her loft was in relation to the risk of asbestos. Again, her concern was understandable as asbestos was identified on the roof. However, the landlord had addressed the asbestos that had been identified. There was no evidence of works having been carried out in the loft. The works which had been carried out were external to the property and not within the loft. While the resident reported she was informed that  a tile fell into the loft, the asbestos survey carried out after the roof works showed there was no asbestos in the loft. Again, the landlord was entitled to rely on specialist advice. The landlord’s explanation that there was no need for a post-works inspection was therefore reasonable and in effect the survey fulfilled that function.

Repairs to external brickwork and garden path

46. The report of cracks to the garden path was logged on 19 February 2020 and repaired on 19 June 2020. The expected timescale according to the policy should have been 30 or 60 days rather than four months. There was no evidence that the resident had reported the brickwork prior to her complaint on 8 May 2020 which the landlord had classed as routine work with a timescale of 60 days. The work was carried out just over 90 days later, on 23 September 2020. The landlord’s explanation that the delays to the works were due to lockdown was reasonable, given they were not essential works.
47. It was appropriate that the landlord reassured the resident it would investigate and address any repairs to the brickwork and garden path when normal working practices resumed. The landlord did not explain, however, why lockdown would impact the works, given the works were external works and did not obviously require a contractor or operative to enter the resident’s property. However, the Ombudsman appreciates that working during the pandemic was problematic due to staff shortages. Moreover, the Government guidance to landlords at the time stated that landlords should only undertake essential works during lockdown.
48. While the resident referred to a tripping hazard for her son, which would have been worrying, the Ombudsman does find service failure for the delays to the repairs to the garden path and brickwork. However, there was no evidence that the landlord updated the resident. While, in the Ombudsman’s opinion, there was no evidence of a significant impact on the resident in relation to not updating her, the Ombudsman will make a recommendation in that regard.

The conduct by an operative of the landlord.

49. There is a dispute as to the exact events on 1 May 2020 the resident complained of. However, it was reasonable and appropriate that the landlord’s operative would take care about avoiding contact with the occupants of the household during the pandemic. It was reasonable of the landlord to expect parents to ensure all members of the household were practising social distancing, in particular inside the home.
50. However, it is understandable that the resident would be protective of her young son in particular as he had a disability. The landlord had assured residents in its policy that their operatives would be polite and respectful, which standard of behaviour the Ombudsman would expect in any event. It was appropriate that the landlord apologised for any upset, which apology, in the Ombudsman’s view, constituted reasonable redress, given the circumstances.

Determination (decision)

51. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was no maladministration by the landlord in relation to:
    1. Repairs to the kitchen floor.
    2. The resident’s concerns in relation to asbestos in her property.
    3. The resident’s request for a post-works inspection to her loft.
    4. Repairs to external brickwork and the resident’s garden path.
52. In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was reasonable redress in relation to:
    1. The conduct by an operative of the landlord.
53. In accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following complaint was outside the Ombudsman’s jurisdiction.
    1. The resident’s request for skimming of external walls and works to the external brickwork to be redone.

Reasons

54. The landlord undertook the repairs to the resident’s kitchen floor within a reasonable period. It covered the floor with plywood in preparation for the resident to lay her own floor covering which would have addressed any unevenness and any issue with any hardboard.
55. The landlord acted in accordance with its legal obligations in relation to the asbestos. The landlord arranged for a professional asbestos survey which stated that there was asbestos in the floor tiles in the kitchen. Although the asbestos survey deemed the tiles to be of low risk, the landlord removed all the tiles that it was able to. Its explanation for not removing all the tiles was reasonable.
56. The landlord’s explanation that a post-works inspection to the loft was not necessary was reasonable, given the relevant works had been carried out externally. In addition, the asbestos survey had not identified any asbestos in the loft.
57. The landlord carried out works to external brickwork and the resident’s garden path within a reasonable period, given the circumstances of lockdown.
58. The landlord acted reasonably in being concerned about social distancing during lockdown and it apologised for any upset its operative might have caused.

Recommendations

59. The landlord should write to the resident to explain the position regarding it recording the presence of asbestos in the resident’s property on its database and its reinspection plans, as set out in its leaflet “Asbestos in your Home”.
60. The landlord should consider confirming arrangements for carrying out repairs, updates and related explanations in writing so that it has a clear record of its actions and the resident can refer to those emails.
61. The landlord should ensure, if it does not do so already, that it keeps residents updated of any delays in its works, with a reasonable explanation and fresh timescale, in order to reduce the need for a resident to chase and to minimise frustration.