Kingston upon Thames Council (202002989)

REPORT

COMPLAINT 202002989

Kingston upon Thames Council

18 February 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:
   1. The landlord’s response to the resident’s concerns about an old heating box.
   2. Complaint handling.

Background and summary of events

Background

2. The resident has a secure tenancy with the landlord. The property is a two‑bedroom maisonette in a block. The landlord has no vulnerabilities listed for the resident. The landlord is a local authority.
3. The tenancy agreement says that the landlord is responsible for repairing the structure and exterior of the property and also for keeping in repair and proper working order the installations that supply water, gas and electricity and sanitation (baths, sinks and toilets). It is also responsible for keeping in repair and proper working order installations for space heating and heating water whether or not in the property.
4. The tenant has the right to carry out their own alterations or improvements with the landlord’s prior written permission. Internal alterations or improvements includes any changes to the fixtures, fittings or to the provision of services provided by the landlord.
5. The landlord has a two-stage complaints process. It defines a complaint as “an expression of dissatisfaction about the standard of service, action or lack of action or decision taken by the council, or the way in which the council’s staff carry out their duties.” Its complaint procedure says a complaint may, among other things, be a disagreement with a decision where the customer cannot use another procedure (for example an appeal) to resolve the matter.

Summary of events

6. On 1 December 2011 an asbestos survey was carried out in all areas of the property. The report explained that its purpose was to locate, as far as reasonably practicable, the presence and extent of any suspect asbestos containing materials in the building which could be damaged or disturbed during normal occupancy, including foreseeable maintenance and installation, and to assess their condition. The report notes that all areas of the property were included; there were no excluded areas.
7. This report identified asbestos in the property in the following places:
   1. Hallway and kitchen: textured coating on ceiling. Assessed as very low risk. Action to be taken: manage.
   2. Infill panel between hallway and lounge door. Assessed as medium risk. Action to be taken: requires encapsulation, label and manage.
8. A second asbestos report was carried out in 2013. While the landlord has provided a copy of it to the resident, this Service has only seen the 2011 survey.
9. On 1 June 2020 the resident asked the landlord for an appointment so that it could remove the heating box (the box) from the sitting room of the property. She said the box should have been removed when the heating system was upgraded and now prevented her from putting furniture in that area. She added she was concerned that the box contained asbestos.
10. On 17 June 2020, in response to an enquiry from the resident, the landlord told her that it would not remove the box as this was a cosmetic issue and not a repair. On 18 June 2020 the resident made a formal complaint to the landlord about its refusal to remove the box from her sitting room.
11. On the same day the landlord reiterated to the resident that it would not remove the box; it said this was not a repair issue. The landlord also said that treating her correspondence as a complaint would not change that.
12. On 4 August 2020 the landlord gave copies of the 2011 and 2013 asbestos surveys to the resident. It added that neither report identified asbestos material around the boxing that she had mentioned. The landlord said it hoped that provided the resident with reassurance regarding her safety concerns about the property.
13. On 5 August 2020 the resident told the landlord she wanted to make a stage two complaint because “just because they don’t mention it, doesn’t mean this box doesn’t contain asbestos. The people who wrote these reports might not even know this box exists”. In response the landlord said that it would not raise this issue as a complaint as it had already responded that it was a cosmetic issue and would cause damage to current decorations; it is not a repair. It said raising a complaint would not change that.
14. When the resident approached the Ombudsman, she said that the landlord had refused to investigate her complaint. She said she wanted the box removed from the property.

Assessment and findings

Old Heating Box

15. The landlord’s view that this issue is not a repair is appropriate because the box is not in need of repair. It therefore does not fall under the responsibility of the landlord in terms of its repair obligations in the tenancy agreement (paragraph 3).
16. The resident is concerned that the box may contain asbestos. The asbestos report from 2011 did not identify asbestos in the living room apart from the infill panel above its door (paragraph 7). It is reasonable for the landlord to rely on that expert view as to the extent of any asbestos in the property. The landlord acted appropriately by sharing the asbestos reports with the resident to try to reassure her about the safety of the box.
17. There is nothing in the tenancy agreement under which the landlord would be obliged to remove the box. Therefore, its refusal to do so is appropriate. It would be open to the resident to take steps to have it removed, should she wish to do so having first obtained the landlord’s written permission (paragraph 4). There is no evidence of any service failure by the resident in its decision not to remove the box.

Complaint handling

18. In June 2020 the landlord refused to open a complaint explaining that raising a complaint would not change its view that this was a cosmetic issue, not a repair (paragraph 10). It is clear that the resident was dissatisfied with that response because she asked for the complaint to be escalated in August 2020 (paragraph 13).
19. In refusing to accept a complaint from the resident, the landlord did not act appropriately because its decision was not in line with its complaints procedure. This is clear that a complaint includes disagreement with a decision where the customer cannot use another procedure to resolve the matter (paragraph 5). There was no other appeal route for the resident; therefore, it would have been appropriate for the landlord to have opened a complaint.
20. A landlord should not assume that a decision will not be changed while going through the complaints process – the point of which is to review decisions then escalate and review where appropriate. The landlord’s refusal to consider the complaint was a service failure and caused the resident inconvenience by having to pursue the complaint to this Service for a complaint response. In failing to progress a complaint the landlord failed to try to resolve matters at the earliest opportunity and therefore missed an opportunity to try to improve the landlord/resident relationship.

Determination (decision)

21. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about an old heating box.
22. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its complaint handling.

Reasons

23. The landlord acted appropriately by explaining this was not a repair issue and providing previous asbestos survey reports to the resident.
24. The landlord’s refusal to consider a complaint from the resident was not appropriate because it was not in line with its complaint procedures.

Orders

25. The landlord shall take the following action within four weeks of the date of this report:
    1. Apologise to the resident for the complaint handling failures identified in this report.
    2. Pay the resident the sum of £100 for the inconvenience caused by its complaint handling failures.
    3. Consider if staff training is appropriate to ensure that complaints are dealt with in line with the landlord’s complaint procedures.
26. The landlord should provide evidence of its compliance with these orders to the Ombudsman.