Canterbury City Council (202102194)

REPORT

COMPLAINT 202102194

Canterbury City Council

30 December 2021

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. The complaint is about the landlord’s response to the resident’s concerns about asbestos in the property.

Determination (jurisdictional decision)

2. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

4. The resident has been a secure tenant of the landlord, at the property, from 15 May 2017.
5. On 16 August 2019, a formal complaint was logged by the landlord, in respect of the resident’s dissatisfaction with its response to his concerns about asbestos in the property. Following completion of the landlord’s complaints process, the resident brought his complaint to the Ombudsman, who made a determination on 28 May 2020 and provided a revised determination on 12 November 2020, following the resident’s request for review.
6. The outcome from that revised determination was that there was service failure in respect of the resident’s concerns about asbestos in the property and the landlord’s handling of this and its complaints handling.  The landlord was ordered to pay the resident £75 compensation for delay in its complaints handling and instruct a new asbestos survey, writing thereafter, to the resident, as to how it intended to comply with the recommendations set out in the survey report.
7. On 4 February 2021, the landlord telephoned the resident, offering him the £75 compensation awarded by the Ombudsman but he refused this. 
8. On 17 February 2021, a further asbestos survey was carried out.  The survey re-confirmed that there was asbestos in the textured coating to the ceiling (Artex) which was considered to be a “very low risk”.  The presence of asbestos in the flooring could not be re-investigated due to carpet having been laid and the damage that would likely be caused by removing it. 
9. Despite previous minimal asbestos being found in the tile flooring, there was a recommendation to undertake further investigation only in circumstances where the floor covering would be disturbed and ongoing reinspection and assessment when refurbishment works were planned at the property.
10. On 24 February 2021, the landlord wrote to the resident, noting that he had refused the £75 compensation offered on 4 February 2021 and invited him to contact it in order to receive this, should he change his mind.  The landlord confirmed that the asbestos report from the 17 February 2021 inspection showed no asbestos beneath the floor covering (which was due to it not being checked on this occasion) but asbestos in the Artex which was considered very low risk, with a recommendation to monitor it.
11. On 5 March 2021, the resident contacted the landlord, expressing his continued dissatisfaction with its handling of his concerns about asbestos at the property.
12. On 11 March 2021, the landlord wrote to resident, explaining that the survey prior to moving in identified a small amount of asbestos in floor tiles and in the Artex ceiling and that the recent survey of 17 February 2021, had also identified very low levels of asbestos in the ceiling of the property, the lowest risk level possible.  It explained that asbestos could not be checked for the floor tiles as there was carpet overlaying it. The landlord advised that as long as the asbestos remained undisturbed, it would be perfectly safe and that it would be safe to paint the ceiling, but not to sand or otherwise disturb it.  The landlord also advised that if the resident should notice anything changing, to let it know.
13. On 12 March 2021, the landlord confirmed with the Ombudsman compliance with the orders made, which the Ombudsman was satisfied with.
14. On 18 March 2021, the resident complained to the landlord about it having not followed recommendations to monitor the asbestos in the property.  He was dissatisfied with its communication, feeling unclear as to the situation and dissatisfied with the fact that he had had to walk on tiles which contained asbestos when he moved into the property.
15. On 22 April 2021, the landlord wrote to the resident, advising that it had complied with the recommendations made by this Service and had complied with its duty to manage asbestos in accordance with the Control of Asbestos Regulations 2012.  It had nothing further to say about the issue, although highlighted the need for better communication on its part, in particular at the outset of letting a property and it was looking at its handbook in this regard.

Reasons

16. Paragraph 39(o) of the Scheme states that “the Ombudsman will not investigate complaints which, in its opinion, seek to raise again matters which the Housing Ombudsman or any other Ombudsman has already decided upon”.
17. The complainant is dissatisfied with the landlord’s response to his concerns about asbestos at the property – this is the source of the original complaint which came to the Ombudsman and was determined last year. The resident was dissatisfied with the Ombudsman’s decision in respect of his complaint, which was ultimately reviewed and he remained dissatisfied still, thereafter and has continued to pursue this with both this Service and the landlord.
18. The complaint raised, therefore, is not new – it is a continuation of dissatisfaction with the landlord having not initially disclosed that there was asbestos in the property; something it was not obliged to do and has been addressed in the previous Ombudsman’s determination.
19. It is also continued dissatisfaction with the landlord’s approach to monitoring the presence of asbestos at the property, which was also addressed previously by the Ombudsman and confirmed with its satisfaction of compliance with the Ombudsman’s orders. 
20. The landlord carried out the actions ordered by the Ombudsman – which was to commission a further, third, asbestos survey, which it did and conveyed the findings of this to the resident and advised him of circumstances of when the presence of asbestos would need to be re-investigated. The landlord is entitled to rely on the independent assessment of a specialist contractor, which it has done three times.
21. It is clear that the resident is worried about the presence of asbestos in the property and aggrieved that he was not forewarned of this prior to signing his tenancy.  These issues have been addressed by the Ombudsman’s prior report and findings and reassurance provided thereafter, with a further survey having taken place and with the landlord reassuring the resident that the presence of asbestos at the property is minimal and safe – with both the ceiling and floor remaining safe as long as they are not disturbed; in circumstances where they would need to be disturbed, further investigation is required, which has been made clear. 
22. While appreciative of the disappointment this decision may bring, the Ombudsman cannot reinvestigate or continuously investigate a landlord for matters which have previously been investigated and decided upon, even in circumstances where a complainant remains dissatisfied with the outcome.