Lambeth Council (202215719)

REPORT

COMPLAINT 202215719

Lambeth Council

25 January 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:
1. Handling of asbestos related repairs at the property.
2. Handling of the resident’s request for a permanent decant, not a temporary one.
3. Handling of the complaint.
The Ombudsman has also investigated the landlord’s record keeping.

Background

The resident is a secure tenant of the property which is a house. The resident has informed the Ombudsman that she has asthma.
As part of the investigation the landlord provided an asbestos survey report for the resident’s property dated 23 December 2015. The report identified asbestos within the property; however, it was categorised as either low risk or very low risk. No remedial action was required, other than to inspect again the following year. The Ombudsman was not provided with any other survey reports from the landlord.
On 12 October 2021 the resident raised a formal complaint regarding the outstanding work in her property. She stated that there were 3 outstanding jobs for which she was waiting for contractors to attend, this included the bedroom ceiling which she said had been ongoing for 2 years. She said there had been 3 asbestos checks with no work carried out. The resident said she had requested a home visit to discuss the work required, as well as possibly having to decant and take time off work. She said no one contacted her regarding this. The Ombudsman understands the resident also complained about her thermostat and requested anticlimbing paint on her garden wall. The resident said the service had been appalling and that she wished to move forward as a matter of urgency.
On 7 April 2022 the landlord raised a job to carry out a “full R & D asbestos survey”. The landlord then raised a job on 28 April 2022 for the removal of asbestos on the bedroom ceiling. On 3 May 2022 the contractor informed the landlord that the resident wanted to speak to it prior to the works taking place. An appointment was made for the 26 May 2022 for the landlord to discuss the resident’s concerns regarding the asbestos removal.
On 26 May 2022 the landlord stated in an internal email that it could not proceed with the works. It said that the resident was refusing the works to be carried out in her bedroom as she could not undergo the stress of moving her belongings out of the room or sleep elsewhere. It said the resident declined being temporarily decanted to allow for the works to be carried out and that she had requested to be permanently rehoused.
The landlord provided its stage 1 response on 13 June 2022 and apologised for the delay in responding. It stated that the resident had refused the asbestos removal works in the bedroom and declined the prospect of being temporarily decanted while the works were carried out. The landlord provided details for the gas servicing team regarding the thermostat valve, and it said applying anti-climbing plaint was not a service it could provide. It apologised for the frustration, inconvenience and upset the resident experienced. It partially upheld the complaint.
The resident escalated her complaint to stage 2 on 15 June 2022. She said the landlord’s response took over 8 months which was unacceptable and it was only sped up with intervention from her MP. She said she had been misquoted and did not refuse the asbestos removal works. She said she did not have alternative bed space if she remained in the property or the physical space to move her furniture to. She said she did not want to temporarily decant as her son was adopted and would not cope well with change. She continued that she would have to move her dog and cats, and that she required a virtual private network (VPN) to work from home. She said that she could not deal with the disruption of moving twice.
The resident said that the original job for asbestos removal was raised on 16 July 2019 and that the landlord had omitted that from its investigation. She said that the landlord had not taken the complaint seriously or resolved the issue. She felt the landlord had tried to cover up its failings and had left her in a property which was hazardous to her health. The resident provided a timeline of the occasions that she had contacted the landlord regarding the outstanding work. The resident said that the investigation was not thorough as it should have known that it had completed the repairs regarding the thermostat and garden wall.
The resident’s MP contacted the landlord on 21 June 2022 and asked it to consider the concerns raised by the resident. The landlord provided its stage 2 response on 19 July 2022. It said it had agreed to carry out the works and provided her with the option of completing the works while she remains in occupation or a temporary decant. It said it appreciated her concerns and personal circumstances for why the temporary decant would cause disruption, but it could not provide a permanent decant. It said it remained committed to carrying out the required works in the property and asked the resident to reconsider the options set out.
The resident was dissatisfied with the landlord’s response as she felt that the landlord had ignored her reasons for wanting to be moved permanently. She said it had not responded to her contact to arrange a date to move since the stage 2 response. She said that she would like to be compensated for it not completing the work and for the stress caused. She said she also wanted the landlord to re-house her.

Assessment and findings

Scope of the investigation

The resident has referred to her health and that the landlord’s handling of the repairs could have had an impact on this. It is beyond the remit of this Service to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. The resident may wish to seek legal advice on making a personal injury claim if she wishes to pursue this. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to the distress and inconvenience which the resident experienced as a result of the situation affecting her property.

Handling of asbestos related repairs at the property.

Under section 11 of the Landlord and Tenant Act 1985 the landlord is responsible for keeping in repair the structure and exterior of the property. The landlord’s obligation to do so is confirmed in the resident’s tenancy agreement which states the same.
The landlord’s repairs policy outlines the response times for different types of repairs. It aims to attend to emergency repairs within 2 hours to make it safe and then 24 hours to fix the repair, urgent repairs within 3 working days, non-urgent repairs within 7 working days, routine repairs within 28 working days, and planned repairs within 90 working days.
The Housing Health and Safety Rating System, (HHSRS) assesses 29 different types of housing hazards and the effect that each may have on the health and safety of occupants. Asbestos is one of the 29 hazards set out in the HHSRS. Under the HHSRS, the landlord needs to identify the location of any asbestos in the property, assess how vulnerable it is to damage, and identify any current damage or potential fibre release.
The landlord’s repairs manual has a section on asbestos. It states that “Asbestos-containing materials in good condition are not a risk to people’s health. In our properties we try to make sure that anything that may contain asbestos remains in good condition, is sealed with paint, and has a warning sign against it. If you suspect that materials containing asbestos have been damaged, contact us immediately”. It stated that by law it must maintain an asbestos register and that the resident could request information from the register about their home.
The asbestos survey report dated 23 December 2015 identified asbestos throughout the property, including the bedroom ceiling in question. From the findings within the report, there was no obligation for the landlord to repair or remove the asbestos. However, the landlord did not provide any evidence to support that a further inspection took place in the following year or any other years since. The lack of reports suggests the landlord had overlooked its obligation in managing the asbestos and assessing how vulnerable it was to damage.
From the records provided it is difficult to determine when the issue was first reported and what the landlord did in response to it. The resident stated that a job was first raised in relation to the asbestos on 16 July 2019. While the Ombudsman does not dispute the resident’s comments, there are no records in the repair log to evidence this. Besides the 2015 survey, the landlord’s records first refer to asbestos on 28 October 2020 where it stated “asbestos growing on bedroom ceiling. TNT is v worried. Please attend and amend”. In such instances, a landlord would be expected to inspect the issue as soon as possible to satisfy that its obligations were being met. There were no additional notes added to the repair log and there is no evidence that the landlord attended the property. This was not appropriate.
The next record from the landlord is on 3 August 2021 where the resident called the landlord for an update and the landlord advised the resident of a target date. The landlord’s records do not state what the target date was. From 28 October 2020 to 7 April 2022, the evidence does not sufficiently show that the landlord took action to determine if the asbestos had been disturbed and if urgent removal was required. While there are brief notes which refer to an asbestos report in July 2021, it does not outline what the findings of the report were, nor does it show if the resident was kept informed. This is not in line with the HHSRS or its repairs manual. This is a significant failing which was likely to have caused the resident considerable distress.
In her formal complaint on 12 October 2021, the resident stated that there had been 3 asbestos checks with no work carried out. She said she had requested a home visit to discuss decanting and no one had been in contact with her. The Ombudsman requested copies of any inspections or surveys conducted in relation to the asbestos but other than the asbestos report dated 2015, none have been provided.
In its stage 1 response on 13 June 2022, the landlord does not acknowledge or provide an explanation for the delays in carrying out the work. It also does not address its lack of communication with the resident. It would have been reasonable to explain the reasons why it did not raise the repair to carry out the removal sooner. The landlord solely referred to the recent contact with the resident on 26 May 2022 and stated that she had refused the works. The landlord did appear to consider the resident’s reasons for why the work could not be carried out at the time. As such, it apportioned the blame for the delays to the repair to the resident, rather than taking any responsibility.
In this case, it was difficult to determine the exact course of events due to the lack of evidence. The Ombudsman has not been provided with a comprehensive record of the decisions which were made in this case and why. When there is no audit trail, we may not be able to determine that an action took place or that the landlord acted fairly and in line with its policies. As such, the Ombudsman cannot conclude that the landlord pro-actively engaged with the resident up to the date of the stage 2 response. A separate finding has been made in relation to the landlord’s record keeping.
Asbestos risk management is an important duty which can potentially have a significant impact on the resident. There were considerable unexplained periods where the landlord did not demonstrate that it took any robust action to progress the repairs. It was unreasonable that the resident had to contact the landlord on numerous occasions to prompt any action. It is concerning that the landlord has not demonstrated that it gave adequate regard to the safety of the resident. It is also concerning that the landlord had not evidenced how and when the decision was made to remove the asbestos. As such, a finding of severe maladministration is made, along with orders for redress.

Handling of the resident’s request for a permanent decant, not a temporary one.

Where appropriate landlords should consider at an early stage whether moving a resident out of a property to suitable accommodation is necessary, either on a temporary or permanent basis. This will ensure residents are not left living in unsatisfactory conditions for months before a decant is considered. The resident raised the possibility of decanting in her formal complaint, however, due to the significant delay in responding to the resident, the option to decant was not offered until 26 May 2022. It was reasonable for the resident to have questions regarding the decant and to raise the concerns she had with it.
In the meeting which took place on 26 May 2022, the resident provided reasons why she felt that she could not remain in the property while the works were undertaken. The resident also provided reasons why she did not feel she could temporarily decant. The landlord stated that she was requesting a permanent re-house and therefore, it could not continue with the works. Its stage 1 response repeated this to the resident but did not offer any options for how she could permanently move, or what it could do in line with its policies.
The resident escalated her complaint to stage 2 as she felt she had been misquoted and said she did not refuse the asbestos removal. In its stage 2 response the landlord maintained that it had agreed to carry out the works and would like the resident to reconsider the options provided to her. It said that it was unable to provide a permanent decant which was in line with its policies and allocation scheme. The landlord said only temporary decants were available and provided a link to its repair’s manual, specifically page 14, where it said further information was provided. The information in the manual stated, “If you cannot stay in your property while a repair is being completed, we will discuss moving you to another property temporarily”. The manual does not refer to a permanent decant and it remained unclear as to what should happen if the resident wanted to permanently move.
The evidence does not demonstrate that the landlord gave adequate attention to the resident’s needs and how it could accommodate them. If it could not offer a permanent decant, it would have been reasonable for the landlord to have provided reassurance to the resident by outlining an action plan for the works. The action plan could have included a timeframe for completion, what temporary accommodation was available, and how it could assist with moving furniture, if required. By not providing this information, this would have contributed to the distress already caused to the resident.
While the case may not have been suitable for a permanent decant, the landlord did not respond to the resident’s requests in a clear manner. It could have provided reassurance by providing an action plan for the works and explained further why its policies would not support a permanent decant in the resident’s case. As such, the landlord has found service failure in the landlord’s handling of the resident’s request for a permanent decant, not a temporary one.

Handling of the complaint.

The landlord’s complaint policy provides for a 2 stage complaints procedure where it is to respond to a complainant at stage 1 within 20 working days and within 25 working days at stage 2.
The resident submitted her formal complaint on 12 October 2021 and did not receive a response until 13 June 2022, 8 months later. The time taken for the landlord to respond was not acceptable and not in line with the landlord’s policy. The landlord apologised for the delay and partially upheld the complaint. It did not explain the reason for the delay or what corrective action it would take to ensure that it would not happen again.
In its stage 1 response the landlord referred to the resident’s issue with the thermostat and provided contact details for a gas servicing team. It did not acknowledge the impact that the issue would have had on the resident, especially if it was still unresolved 8 months later. It would have been reasonable given the considerable delay for it to have considered offering compensation.
The stage 1 response also referred to the resident’s complaint about the job raised for anti-climbing paint. The landlord stated that it does not carry out such a repair, however, it did not explain why the job was initially raised and what it would do to avoid this in future. The response also does not correlate with the repair log and the resident’s subsequent statement in her stage 2 escalation, which said that the repair was completed on 8 March 2022. The response provided is indicative of a confusing and disorganised internal approach. The landlord should ensure that it follows its repairs policy and maintains a consistent approach to repairs, to ensure the resident receives a cohesive service.
The landlord’s responses did not acknowledge or provide an explanation to the resident stating that she had waited 2 years for the work to be carried out. It referred to the visit which took place on 26 May 2022 and that the resident had refused the works to be carried out. It would have been appropriate for the landlord to have outlined the options for the resident in relation to progressing the repair and taken into consideration the individual circumstances. By not doing so, the landlord appeared unsympathetic to the reasons provided by the resident.
It would have been appropriate for the landlord to have offered financial compensation for the delays in conducting the repair and delays in responding to the resident’s complaint. This is in line with the Ombudsman’s remedies guidance (published on our website). The lack of remedy and compensation for the resident suggests that the landlord had not reflected on the impact of the omissions. The Ombudsman is therefore not satisfied that the landlord put right this element of the complaint.
Considering the above, there was maladministration in relation to the landlord’s handling of the resident’s complaint. The landlord did not demonstrate that it responded to the resident’s concerns regarding asbestos in a transparent manner. It failed to demonstrate that it took the residents concerns and safety seriously. The landlord is ordered to pay the resident a total of £200 compensation to account for the landlord’s delay in providing a stage 1 response and for not fully addressing the resident’s complaint.

Landlord’s record keeping

When the Ombudsman contacted the landlord in relation to our investigation, we requested information, including:
1. Information related to any repair work such as, repair logs, records of dates the landlord attended the property, and an explanation of works completed at each visit.
2. Copies of any survey or inspection reports which had taken place since the refurbishment survey in 2015.
While the landlord provided some internal correspondence and some repair records, it failed to provide any copies of survey or inspection reports. The outcomes of the asbestos checks and surveys which would have assisted this investigation in understanding the decisions made. The lack of these records is concerning and a failure on the part of the landlord.
The landlord’s contractors are extensions of the landlord and as such there should be a system in place for the landlord to request that the contractors maintain accurate records of repair reports, logs, responses, inspections, and investigations. The landlord should also ensure that it keeps record of any communication with its contractors in relation to any repair.
Good record keeping is vital to evidence the action a landlord or its contractors have taken, and failure to keep adequate records indicates that the landlord’s repairs processes are not operating effectively. As the Ombudsman has not received adequate records, and for the reasons set out above, there was maladministration in the landlord’s record keeping.

Previous reports

In February 2022, the Ombudsman issued a special report about the landlord, highlighting concerns with its complaint handling. The report recommended the landlord review its complaint handling procedures to reduce the risk of similar failures in the future. We continued to identify problems with the landlord’s performance, reaching findings of maladministration and severe maladministration following investigations into 20 separate complaints from residents.
In June 2023 we told the landlord of our intention to carry out an inspection to find out the reasons for its ongoing failures in complaint handling. In December 2023 we issued a report setting out our findings with further recommendations for service improvement.
In this investigation we have identified failures similar to those that led to our special report in 2022 and subsequent inspection in 2023. We therefore order the landlord to consider the findings highlighted in this investigation against the recommendations in our inspection report of December 2023.

Determination

In accordance with paragraph 52 of the Scheme, there was:
1. severe maladministration in the landlord’s handling of asbestos related repairs at the resident’s property.
2. service failure in the landlord’s handling of the resident’s request for a permanent decant, not a temporary one.
3. maladministration in the landlord’s handling of the complaint.
4. maladministration in the landlord’s record keeping.

Orders and recommendations

Orders

Within 4 weeks and as a matter of urgency, the landlord must carry out a full asbestos survey within the property. Once this has been completed it must contact the resident to provide the outcome of the survey, along with a completed risk assessment and written action plan for carrying out the repair. The action plan should include an estimated timeframe for the works to be carried out, the resident’s options for temporary decanting or remaining in situ, and any other assistance it can provide in moving and storing furniture.
Within 8 weeks of the date of this report the landlord is ordered to take the following action:
1. The landlord’s chief executive to apologise in writing for the failings identified in this report.
2. The landlord is ordered to carry out a management review of the resident’s case and provide a copy of the review to the Ombudsman. This should consider:
  1. Any missed opportunities between 28 October 2020 and 7 April 2022 in which the landlord could have progressed the repair and why it did not do so.
  2. Its practices regarding how it deals with, responds to, and monitors reports of asbestos. This is to ensure that they are recorded, investigated, and responded to appropriately and in a timely manner.
  3. How the landlord will ensure its record keeping is in line with the Ombudsman’s Spotlight report on Knowledge and Information Management published in May 2023, and provide the Ombudsman with evidence of how it has considered the recommendations set out in the report.
  4. Consider the complaint handling findings highlighted in this investigation against the recommendations in our inspection report of December 2023.
  5. Any staff training that may improve its future response to similar cases.
3. The landlord is to pay the resident a total of £1,500 compensation comprising of:
  1. £800 for the significant delays in carrying out the repair and any distress and inconvenience caused as a result.
  2. £300 for the landlord’s failure to consider the individual circumstances of the resident and her family, and the full impact the ongoing situation would likely have had.
  3. £200 for the time and trouble to the resident of having to repeatedly chase the landlord for the repair to be completed.
  4. £200 in recognition of the failures in the landlord’s complaint handling.
The landlord is to provide compliance with the above orders within 8 weeks of the date of this report.

Recommendations

The landlord should consider whether it would be beneficial to develop a decant policy if it has not already done so. This could explain how it will carry out repairs when residents can no longer remain in occupation of their property. It could also set out the factors to be considered when considering whether a resident can move on a permanent basis. The policy could also acknowledge the stress experienced with moving out of a home and how the landlord may assist with that.