Orbit Housing Association Limited (202001562)

REPORT

COMPLAINT 202001562

Orbit Housing Association Limited

23 February 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

The complaint is about the landlord’s handling of resident’s concerns about:
1. Asbestos in the garden at the property and the delay and amount of compensation offered.
2. The landlord’s complaint handling.

Background and summary of events

Background

The resident is a tenant of the landlord at the property, a two-bedroom house and resides at the property with her young daughter. The resident is subject to the terms and conditions contained in the tenancy agreement. The landlord is a Housing Association.
The landlord operates a two-stage complaints policy. The policy requires that the complainant is kept updated throughout the complaints process. If the resident makes a complaint at the first stage, the landlord should respond within 10 working days. If the resident is dissatisfied with the response, the resident can request a review of the decision and it aims to provide a response within 20 working days. Under the policy the landlord may refuse a review, where this occurs it will write to the resident to advise why the review was refused and the next steps.
The landlord provided a copy of its asbestos management policy which highlights that the landlord will take all reasonable steps to manage asbestos in accordance with the relevant legislation and approved codes of practices. The policy states that it will perform Asbestos Management Surveys to identify the presence of asbestos and to recommend how the asbestos should be managed ie if it requires remedial action or removal. If the material is low risk and unlikely to be worked on or disturbed, it will remain in place and be managed so that the risk to health is minimised. It advised that if the material is significantly damaged or poses a risk to health it should be removed or encapsulated.
Under the landlord’s compensation policy it may award compensation if the standard of service provided was considerably below the standard customers could reasonably expect. It will only pay it if the customer experienced financial loss or significant distress or inconvenience.

Summary of Events

The landlord provided evidence that in June 2019 the resident contacted it in relation to suspected asbestos debris to her rear garden. The resident claims to have contacted the landlord in March 2019. Asbestos contractors surveyed the property and advised that it remove a shed from the rear garden and the visible asbestos debris. The landlord gave permission for these works to be performed.
In December 2019, garden repair works including a new rear fence and path repair were performed by the landlord’s remediation contractors. During these works additional asbestos debris was found at a greater depth and was required to be removed. Major repair orders were raised with its asbestos contractor for additional asbestos removal and subsequent garden works were to be scheduled with its remediation team. The asbestos contractors attended and surveyed the property and attempted to complete the removal works however advised that it was unable to gain access due to a parked car in the driveway. Works were subsequently delayed due to the national lockdown and the repair works were suspended.
On 25 February 2020, the landlord performed an inspection of the resident’s garden and asbestos works. During the inspection further surface asbestos was found due to recent heavy rain. It advised that additional soil asbestos tests would be required which would cause further delays. The tests identified that type of asbestos found would not release fibres and therefore was not a danger to the resident. It is unclear if the report was provided to the resident.
On 6 March 2020, the landlord contacted the resident and apologised for the delay in completion of asbestos works. It advised that compensation would be discussed on completion of the works. It advised that a surface pick of the asbestos would be performed until the digger removal could be performed.
On 13 March 2020, the asbestos contractor advised that it had completed the removal of the surface pick of cement debris to the garden.
On 6 April 2020, the remediation contractor informed the landlord that it would not be able to complete the works due to the national lockdown as it required two operatives, it was not considered ‘emergency works’ and it was not able to get the materials.
On 21 May 2020, the resident contacted the landlord and advised that she had contacted the asbestos contractor and was informed that it had been open and working throughout the lockdown. The resident advised that the landlord had lied to her and said it was not open. She stated that she wanted the asbestos works to begin as soon as possible. She advised that she has not been able to use her backyard since March 2019 or open her windows due to potential asbestos exposure.
On 28 May 2020, the landlord contacted the resident and advised whilst the asbestos contractors were available the garden remediation contractors were unable to do the re-instatement of the garden due to the Covid-19 Guidelines. It stated that the works would remain on hold until they could be completed concurrently.
On 4 June 2020, the resident made a formal stage one complaint to the landlord in relation to the ongoing issues of asbestos in her garden. She said that she informed the landlord of the problem in March 2019 and it only started to look at the problem in November 2019. She advised that the asbestos contractors had only removed some of the asbestos and the garden was not safe for her daughter to use and that contractors refused to perform further works due to the amount of asbestos in the soil. She stated that she had contacted the asbestos contractor and was informed that it had been open and working throughout the lockdown. She advised that she wanted the works performed as soon as possible.
On 18 June 2020, the landlord acknowledged the resident complaint regarding asbestos in her back garden which was supposed to be removed. It advised that this was actioned previously but not all asbestos was removed.
On 30 June 2020, an appointment was missed by the asbestos contractors and a new date was arranged with the resident for 6 July 2020 which was attended.
On 16 July 2020, the landlord issues the resident with its stage one response and advised the following:
1. That the resident had reported asbestos rubble in the back garden previously and this was actioned by contractors who had it removed. It stated that some rubble was left in the garden and this resulted in further works being needed and a complaint being raised.
2. It acknowledged that the resident had experienced a failed appointment on 30 June 2020 and offered £25 compensation which contributed to the delay.
3. It also awarded an additional £25 for the amount of time taken to complete the works and for the time the trouble has been left in the resident’s garden.
4. It confirmed that the works had been authorised and were booked for 6 August 2020.
On 23 July 2020, the resident contacted the landlord and advised that the amount of compensation offered by the landlord was not acceptable. She highlighted that it took the landlord 8 months to have contractors assess the issue and there were a number of missed appointments and failed returned calls. She stated that it was not acceptable that the asbestos was left in her garden for such a long period of time. She said that she has not been able to open her windows or let her daughter play outside due to potential exposure but continued to pay full rent.
On 24 July 2020, the landlord contacted the resident and issued its final response and advised that it would not progress the resident’s complaint to the review stage under its complaints policy. It stated that the resident’s review request was based solely on the amount of compensation awarded which was not a ground for review. It said that it agreed with the resident’s complaint and provided compensation in line with its compensation guidelines.
On 18 August 2020, the works at the property were completed.

Assessment and findings

Asbestos in the garden at the property and the delay and amount of compensation offered.

Landlords have a legal duty to manage asbestos in the common areas of their residential properties (under regulation 4 of the Control of Asbestos Regulations 2012). This requires landlords to identify any asbestos containing materials, to assess the risk, and to make a plan to manage that risk. There is, however, no ‘duty to manage’ or to maintain an asbestos register for domestic properties, and no legal obligation to inform residents of where the asbestos is in their homes. A landlord is not obliged to remove asbestos from a domestic property if it is in a sound condition and can be left undisturbed. However, if it is damaged or deteriorates and there is the risk of asbestos dust, then the landlord is under a duty to repair or if necessary, remove the damaged asbestos.
The landlord provided copies of asbestos management surveys for the property carried out between December 2019 and August 2020. The surveys confirmed that asbestos was found in the garden at the property and the risk was assessed as low, it was however recommended that the asbestos be removed due to remediation works being performed in the backyard of the property. Further asbestos was reported at the property in February 2020 and a survey was conducted and works approved for its removal which was appropriate and in line with the landlord asbestos management procedure.
The landlord’s decision to perform works in the garden was in line with the findings of the asbestos surveys and the landlord was entitled to rely on the survey findings as they were carried out by a suitably qualified specialist. From the information provided it is unclear if the landlord informed the resident of the low risk of the asbestos discovered. The resident raised concerns relayed from contractors in relation to the potential health side effects of the asbestos at the property which subsequently restricted her use of the garden. The resident has not provided any further details to the landlord or the Ombudsman about what was said, and therefore, it has not been possible to verify the resident’s claim in this regard. It would however have been reasonable to expect that if the resident was claiming she and her daughter were in danger the landlord could have provided the professionally performed surveys to reduces such distress.
The resident raised the issue of asbestos at the property in June 2019 and the landlord failed to take appropriate action to address the problem. The landlord’s stage one response failed to address the specifics of the resident’s complaint in relation to the delay however it awarded the resident £25 compensation ‘for the amount of time taken to complete the works and for the time the rubble has been left in the resident’s garden’. The landlord advised that a survey was performed in June 2019, 3 months after the issue was reported by the resident. Given the potential health implications of exposed asbestos and taking into account the residents daughter the landlord should have taken a resolution focused approach and performed an asbestos survey in line with its asbestos management policy much sooner than it did. The landlords delay caused the resident significant distress and inconvenience and the compensation offered was not sufficient to remedy the landlord’s failure.
There were further delays in the asbestos works at the property due to the national Covid-19 lockdown. The landlord incorrectly conveyed to the resident that the works could not be complete due to the asbestos contractors being ‘closed during the period’ when in fact it was due to the rejuvenation works not being able to be performed and therefore the asbestos works were delayed. The landlord should have taken a resolution focused approach and communicated with the resident in relation to the delay and not conveyed incorrect information causing further distress.
The landlord also failed to attend an appointment on 30 June 2020 which led to an additional 6-day delay, however, the landlord offered £25 compensation to the resident which was appropriate given the length of delay.
Overall, the landlord failed to take a resolution focused approach and inspect the asbestos and perform the recommended works within a reasonable timeframe. The landlord failed to convey accurate information and the delay caused the resident significant distress and inconvenience and the compensation offered by the landlord did not adequately reflect its failures.

The landlord’s complaint handling

The documentation provided shows the initial formal complaint was made by the resident on 4 June 2020 and the landlord supplied a formal response on 16 July 2020. This represents a one-month delay in the landlord providing the resident with its stage one response which is not appropriate or in line with its complaint policy. The landlord also failed to offer an explanation or an apology for the delay causing further distress to the resident.
The resident asked for a review of the decision in relation to the amount of compensation offered and a number of other issues on 23 July 2020. The landlord did not progress the resident’s complaint and stated that it was solely in relation to the amount of compensation offered. The landlord failed to acknowledge that it had taken eight months to first inspect the problem, that there were several missed appointments and several missed / non returned phone calls.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration in respect of:
1. Asbestos in the garden at the property and the delay and amount of compensation offered.
2. The landlord’s complaint handling.

Reasons

There was a significant delay in the landlord inspecting the resident’s property after reports of asbestos in the garden. The landlord failed to convey accurate information in relation to the delay of the works and this caused the resident significant distress and inconvenience. The amount of compensation offered by the landlord did not adequately reflect its failures.
There was a delay in the landlord issuing the resident with its stage one formal response and it failed to provide the resident with a reason or compensation for the delay. The landlord did not progress the resident’s complaint in relation to the amount of compensation awarded and in line with its complaint’s policy.

Orders

The Ombudsman orders the landlord to pay the resident compensation of £450 compromising:
1. £350 in respect of the distress and inconvenience experienced by the resident in relation to the delay in inspecting and performing asbestos works at the property, lack of communication and a missed appointment.
2. £100 in respect to delay in the landlord’s complaint handling.
This will replace all previous offers, the landlord is to make this payment to the resident within four weeks and to update this service when payment has been made.