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West Kent Housing Association (202127861)

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REPORT

COMPLAINT 202127861

West Kent Housing Association

27 March 2023

 

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 the landlord’s handling of asbestos in the resident’s property, including:
  1. The information provided at tenancy sign up; and
  2. The removal of asbestos from the property.

Background and summary of events

  1. The resident is an assured tenant of a ground floor flat. She has several health conditions including emphysema and asthma.
  2. On 18 October 2019, the landlord completed an asbestos survey on one of its void properties, as required by its policies and procedures. The report identified a number of areas within the property having very low risk asbestos contained within floor tiles. The report recommended that the asbestos tiles should be removed, if they were to be disturbed by any intrusive works.
  3. On 4 November 2019, the resident signed a new tenancy agreement for that property.
  4. On 16 December 2020, the resident advised the landlord that floor tiles in her hallway were cracking. The resident advised the landlord that she was concerned about asbestos given her health conditions. The information on file shows there was asbestos in the resident’s previous home (with the landlord) and this was one of the reasons why she wanted to move to the new property. The landlord made arrangements to have the tiles removed and discussed this with the resident on 23 December 2020. The removal works were complete on 22 February 2021.
  5. On 29 April 2021, the resident complained that the presence of asbestos in her property was not disclosed to her and that the contractors removed the asbestos while she was in the property. This landlord logged this as a stage one complaint. On 12 May 2021 the resident further advised the landlord that she was only made aware of the asbestos when the contractors attended to remove it. The resident raised concerns for her health as she was present during the removal of the asbestos.
  6. In its stage one complaint response the landlord upheld the complaint. It accepted that it did not advise the resident of the presence of asbestos as part of its sign-up process, as it should have. The landlord also explained that the removal was completed in a way which would not have exposed her to asbestos. As a resolution, the landlord apologised and offered to assist her in finding another property without asbestos. The resident was unhappy with this response as she believed that she had been exposed to asbestos and escalated her complaint to stage two on 17 May 2021.
  7. In its stage two complaint response on 21 June 2021, the landlord apologised again for not advising the resident of the presence of asbestos in the property as part of its sign-up process. The landlord advised that it made the resident aware of the presence of asbestos during a telephone call of 23 December 2020 when it arranged the removal works. The landlord also provided the resident with a copy of the asbestos removal report to show the work was completed in line with the Health and Safety Executive guidance. The landlord restated its offer to assist the resident in moving to another property.
  8. When the resident brought the complaint to this Service, she advised that she would not have taken the property had she been aware of the presence of asbestos. She asked for the landlord to offer her a new home. The resident has alleged that the landlord’s handling of asbestos removal has affected her health.

Assessment and findings

The handling of the tenancy sign up

  1. The landlord has an asbestos policy which states that it will provide new tenants with a copy of any asbestos survey report during the tenancy sign-up process. The landlord also has an asbestos management plan which sets out that it will alert customers about the asbestos in their homes. There is no evidence that the landlord complied with these obligations. Importantly, the landlord accepts that it did not comply with them. That was a failure by the landlord.
  2. As part of its sign-up process, the landlord is required to print off a copy of the asbestos survey report and provide it to the applicant or, alternatively, email the report to the applicant. There is no evidence this occurred and in fact the landlord accepts it did not.
  3. The landlord failed to follow its own sign-up process and failed to follow its own asbestos policy by not providing the resident with the asbestos survey report. As part of its complaint response the landlord apologised and made a reasonable offer to assist the resident in moving to a property without asbestos. However, the resident should have had an opportunity to consider the asbestos survey report to make an informed decision before the tenancy began. Based on the evidence provided, the landlord has not yet provided the resident with a copy of the asbestos survey report.
  4. It is convenient to note here that the resident had a previous complaint, regarding asbestos at her previous home. To this end, the resident advised this Service that she specifically asked the landlord if there was asbestos in the property during the sign-up process. The resident states the housing officer told her there was not.
  5. This Service has no reason to dispute this. However, had the resident declined the property had she been given the correct information, she was likely to have remained in the previous property (which also had asbestos) until another suitable home could be found. Therefore, there is no evidence that the resident would have been in any better position had the correct information been disclosed at the outset. That is not to say the matter was not distressing for her.
  6. This Service finds there was service failure in the landlord’s communication to the resident of the presence of asbestos in the property before the tenancy began. We order that the landlord provides the asbestos survey report to the resident and that it pays compensation of £200 to the resident for the distress and inconvenience she was likely caused.

The handling of the removal of asbestos

  1. On 16 December 2020, the resident emailed the landlord images of floor tiles in her hallway. The resident advised that the tiles were crumbling and that she had concerns about asbestos as she has a lung disease. On 18 December 2020 internal email correspondence shows that the landlord sought authorisation to raise an asbestos sample and removal as necessary.
  2. The landlord telephoned the resident on 23 December 2020 to discuss the condition of the floor tiles in the hall. This Service has reviewed the landlord’s note of that telephone call. The landlord states that before the call to the resident, it checked the asbestos register and confirmed that there was asbestos in the tiles. The landlord’s record of the call is that it advised the resident it would arrange for an asbestos contractor to remove the floor tiles.
  3. The resident’s recollection is different. She advised this Service that she was not made aware during this call that the floor tiles contained asbestos. It is not possible for this Service to determine what was said on this telephone call.
  4. The landlord raised a works order on 23 December 2020for the removal of the floor tiles by an asbestos contractor and for screed applied by another contractor.
  5. During its complaint investigation the landlord obtained records from the asbestos contractor. These records show that the contractor called the resident on 6 January 2021 to arrange the works however, the resident asked that they were postponed until after the Covid 19 lockdown measures had been eased. The records note that the contractor called the resident on 17 February 2021 and the scheduled the works for 22 February 2021.
  6. On 22 February 2021, the asbestos contractor carried out the removal of asbestos tiles from the property. This Service has reviewed a report which confirms the work was carried out in line with Health and Safety Executive guidelines. The report is signed by a supervisor confirming that the contractor had all relevant licence and certificates to remove the asbestos tiles. There is no evidence to contradict this report, that the works were carried out as required.
  7. The resident wrote to the landlord on the 29 April 2021 to query why the asbestos contractors removed the asbestos tiles while she was present in the property. On 12 May 2021, the resident further advised the landlord that she was only made aware of the asbestos when the contractors attended to remove it.
  8. When the resident brought the complaint to this Service she advised that the landlord put her health at risk. She advised that she was first made aware of the presence of asbestos in her home during the course of the removal of the tiles. The resident advised that her house was covered in dust after the works were complete.
  9. As part of this Services investigation we assess if the landlord followed its own policies and we will assess if the landlord followed its own policies and treated the resident fairly in the circumstances.
  10. When the resident notified the landlord of the damaged tiles in the hallway it should have applied its procedures set out in its asbestos management plan. Given the residents vulnerability, which was known to the landlord, it would have been reasonable to provide re-assurance that the asbestos in the property carried a very low risk. It would also have been reasonable to assure her that all removal works would be complete in a way that wouldn’t expose her to asbestos.
  11. From reviewing all evidence available to this Service the landlord did apply its procedures set out in the asbestos management plan. In line with its asbestos incident workflow it gathered existing asbestos documentation, it identified and established asbestos risks, it instructed a licenced contractor to ensure correct working methods, and it carried out the works as planned.
  12. It states in the landlords asbestos management plan that they are responsible for informing new tenants about the results of asbestos surveys carried out before they occupy the property. When applying its asbestos management plan the landlord should have identified that the resident was not provided with a copy of the asbestos survey report.
  13. All the evidence available to this Service shows that the landlord did follow its asbestos management plan. However, as the resident had known vulnerabilities including emphysema, it would have been fair and reasonable for the landlord to take steps to provide re-assurance to the resident of the risks to her health. At this point, the landlord should have provided the resident with the initial asbestos survey report which showed that the asbestos in her property posed a very low risk to her health.
  14. The landlord should have clearly communicated that the asbestos removal works would be completed in a safe manner. With this information the resident could have made an informed decision whether to remain in the property during the removal works.
  15. The landlord made a reasonable offer to address the complaint by providing the resident with the asbestos removal report and offering assistance to re-locate to a property without asbestos. However, this offer did not take into consideration the level of distress already caused to the resident.
  16. This Service finds that by not providing the resident with the appropriate information before the works began, there was service failure. This Service orders the landlord to pay compensation of £200 to the resident. This compensation reflects the worry and distress likely felt by the resident because of the perceived risk to her health, especially, given her underlying vulnerability.
  17. This Service notes that the resident said there was dust in her home. However, this issue was first raised on 17 May 2021, (almost 3 months after the removal works were complete) and so it was difficult for the landlord to assess the nature of the dust. It is not clear if the resident cleared this at the time.
  18. The resident also believes her illnesses have been exacerbated. This Service assesses complaints on the basis of documentary evidence. In this case, the resident alleges the landlord’s handling of asbestos removal affected her health. Often when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration. Without that evidence, this Service is not able to draw any conclusions on whether the residents health has been injured by the way in which the landlord handled the asbestos in her home. This question may be better for the courts to decide. This investigation has focussed on whether the landlord followed a fair and proper procedure and has considered the distress and inconvenience to the resident.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the information provided at tenancy sign up. This is because the landlord did not disclose there was asbestos at the property, and it should have.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlords handling of removal of asbestos from the property. This is because the landlord did not alleviate the resident’s worries about the removal when it knew the residents vulnerabilities.

Orders

  1. It is ordered that the landlord provide the resident with a copy of its asbestos survey report within 28 days of the date of this determination.
  2. It is ordered that the landlord pay the resident a total of £400 in compensation within 28 days of the date of this determination.

Recommendations

  1. It is recommended that the landlord considers staff training to ensure it provides correct information about the property condition during its sign up process.