Kirklees Council (202234428)

REPORT

COMPLAINT 202234428

Kirklees Council

28 June 2024

Our approach

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

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

The complaint

1. This complaint is about the landlord’s response to the resident’s complaint about its handling of asbestos in her home.

Background and summary of events

2. The resident is a tenant of the landlord. She started her tenancy in November 2022.
3. In September 2022, prior to the start of the resident’s tenancy, the landlord undertook a detailed asbestos survey of the property. It identified asbestos in the textured ceiling coatings throughout the property, and in some underfloor tiles. The survey concluded that the asbestos should be monitored but only removed if it would be disturbed by repair work.
4. Just prior to moving, the resident asked the landlord for a range of repairs or other work on the property. One of her requests was for it to remove disability hoists fixed to the ceiling.
5. The landlord’s contractors attended and removed the hoists on 10 February 2023. The following day the resident contacted the landlord to say that the contractors had found asbestos in the ceiling and she was concerned about it being elsewhere in her home.
6. On 22 February 2023 the resident complained to the landlord about the asbestos. The landlord acknowledged her complaint on 24 February. It explained it understood her concerns to be about the contractors not properly dealing with the asbestos when removing the hoists, and a possible impact on her health.
7. The landlord sent its complaint response on 31 March 2023. It explained that it had investigated the resident’s concerns and agreed that while the contractors had been appropriately qualified to assess asbestos, they had not followed the correct procedures when dealing with it. It said it had asked its contractor to investigate its failing. It explained that its surveyor has subsequently inspected the property and found the ceilings to be in an appropriate condition and safe. It gave details about asbestos risks, and how the specific circumstances of the work meant the resident was unlikely to have been exposed. Nonetheless, it offered to have an independent analysis of the air in her home to provide reassurance. It apologised for the distress caused, offered the resident £200 compensation because of it, and explained what changes it had made to avoid future failings of the same nature.
8. The resident asked to escalate her complaint in because she remained dissatisfied that the appropriate safety process had not been followed, and also because she felt the landlord’s complaint investigator had blamed her for “allowing contractors into the property.”
9. The landlord sent its final complaint response on 3 May 2023. It explained the further investigations it had made about the asbestos handling. It acknowledged again there had been a process breakdown, and explained how it had been working with its contractor to avoid repeating the same mistakes. It reiterated that its investigations had concluded the ceilings were safe, and there was no meaningful likelihood of her having been exposed to asbestos, but repeated its previous offer to have the air quality tested. It apologised again for the distress and inconvenience caused to the resident, and reoffered its £200 compensation.
10. The resident brought her complaint to the Ombudsman because she still felt the landlord had partly blamed her for the asbestos issue.

Assessment and findings

Investigation scope

11. In her complaint to the landlord and the Ombudsman the resident explained that her pre-existing health issues were affected or exacerbated by the circumstances around her asbestos complaint. It should be noted that the Ombudsman’s investigations consider the impact of any failings by a landlord, which can often include distress and inconvenience. However, the Ombudsman cannot consider allegations of personal injury resulting from a landlord’s actions. Such disputes can involve complex medical issues which are beyond the complaints process and the Ombudsman’s remit and expertise. They are more appropriately considered by way of court action, for which the resident would be recommended to take legal advice. Such impacts are not considered in this investigation.

The landlord’s response to the resident’s complaint about its handling of asbestos in her home

12. The landlord’s asbestos survey in 2022 confirmed its presence, and recommended not taking any action in regard to it unless work plans were made which would disturb it. The survey’s findings and recommendations were not unusual given the presence of asbestos in many UK homes, and the survey indicates no unusual aspects in this case.
13. The evidence and information provided for this investigation by the resident and landlord confirm that in response to the resident’s concerns the landlord worked with its contractor to establish how the hoist removal was done, sought the asbestos qualifications of the relevant operatives, and identified that the procedure had not been done in line with the appropriate asbestos process. It inspected the resident’s home to satisfy itself no other asbestos had been disturbed. It changed its processes to ensure the contractor had access to its asbestos database, and sought input from its asbestos team about the resident’s potential exposure and health risk.
14. The landlord identified the specific process steps which had not been followed, and committed to working with its contractor to ensure the errors were not repeated. It clearly explained the actions it had taken to investigate the resident’s concerns, what it had found, and what it was doing to correct the error. It explained why she was unlikely to have been at risk, but offered to provide further reassurance by testing the air for asbestos particles. The resident’s concerns were serious and wholly understandable, and the evidence shows the landlord took her complaint equally seriously. There is no clear evidence of further steps the landlord could reasonably have taken in response to its failing and the complaint.
15. The compensation offered to the resident was in line with the landlord’s compensation policy for circumstances involving service failure and a medium to high level of impact, but no permanent consequences. Given the seriousness of asbestos safety, the fact that this was a one-off failing, and there was no long term impact, the compensation was proportionate to the scale and nature of the landlord’s mistake.
16. In her complaint the resident stated she felt the landlord was passing blame on to the contractors rather than accepting responsibility itself. The landlord’s complaint responses and the facts of the case do not support that interpretation. It is clear that the contractors failed to follow the appropriate safety procedures when removing the hoists. The contractors were responsible for that and it was appropriate for the landlord to ask it to investigate what had happened. The contractors featured in its complaint response explanations because they had played a primary role, but the landlord gave no indication of passing blame or failing to accept its own responsibility.
17. One of the aspects of the resident’s escalated complaint (and a primary reason for her Ombudsman complaint) was that she believed the landlord had blamed her, at least partly, for the asbestos issue, because she had allowed the contractors into her home. There is no record of such an allegation, but it appears to have arisen in the discussion the resident had with the landlord about her first complaint. The landlord did not directly address this concern, and it would have been helpful if it had, given it was one of the resident’s specific points of dissatisfaction. Nonetheless, no evidence has been seen, either in the landlord’s complaint responses or in its internal records and emails, of the landlord ever believing the resident may have acted incorrectly in any way. From the point the complaint was received the landlord focused on what went wrong in its own and its contractor’s processes and procedures. There was no suggestion that the resident had contributed to what happened, and in its complaint response the landlord fully accepted responsibility. Accordingly, while the landlord did not directly address the point, its explanations made clear it did not hold the resident in any way responsible.

Determination (decision)

18. In line with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.

Reasons

19. Overall, the landlord fully accepted its failing with the asbestos issue, it thoroughly investigated what went wrong and why, explained its findings to the resident, and explained what changes it was making to eliminate the likelihood of a repeat. It attempted to provide reassurance that she was unlikely to have been exposed to asbestos, offered further testing, and offered compensation that was proportionate to the scale and nature of its mistakes and their impact. Its response to the complaint and the remedies it offered were appropriate and reasonable.