Notting Hill Genesis (NHG) (202213047)

REPORT

COMPLAINT 202213047

Notting Hill Genesis

21 June 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:
   1. Response to the resident’s request for a repeat asbestos survey of the communal hallway.
   2. Handling of remedial work to the communal hallway following asbestos removal works.

Background

2. The resident is the leaseholder of the property of which the landlord is the freeholder. She occupies a flat with a shared communal hallway.
3. The landlord commenced work on 22 March 2022 to remove a cupboard, which contained asbestos, from the communal hallway. The resident was away from the property when the works went ahead. On her return to the property she discovered “grit and dust” on the window ledge of the communal front door and damage to the decorative finishes to the walls and ceiling of the hallway.
4. The resident raised a stage one complaint with the landlord, on 27 March 2022, in which she requested another asbestos test, as she suspected that there was asbestos in the particles she had seen. She also wanted the landlord to bear the costs of re-plastering and re-painting the hallway to remedy the damage.
5. The landlord issued its stage one response to the resident on 8 April 2022, which asserted that the particles on the door were sawdust. It provided a report from its independent asbestos assessors, which included a certificate of reoccupation, stating that the property was safe to occupy. The landlord also provided photographs to show that the front door had been removed during the works to allow the installation of an airtight enclosure and explained this had been reinstalled once it was confirmed that the area was asbestos safe. The landlord, therefore, asserted that another asbestos test was unnecessary.
6. The landlord explained that the damage to the communal hallway was the result of the removal of the airtight enclosure, which the contractor was not contractually liable for. Therefore, it proposed to carry out remedial decorative work to address the damage. The landlord asserted that, as the hallway was its repairing responsibility, it deemed that patch repairs were sufficient and it would not carry out a full redecoration of the hallway.
7. After the resident escalated her complaint on 28 May 2022, the landlord provided its final stage complaint response to her on 7 July 2022, which maintained that the area had been found to be free of asbestos, therefore it would not re-test for this. It confirmed that decorative work had been completed on 12 May 2022. The landlord said it had reviewed photographs and its operative’s report and considered the work was satisfactory. It offered £30 compensation to the resident for providing its final response late.
8. The resident informed the Ombudsman on 18 September 2022 that she remained dissatisfied as she continued to have doubts that the asbestos removal contractors acted properly. She was unhappy with the standard of decorative work in the communal hallway. To resolve her complaint, she wanted the landlord to redecorate the hallway and carry out another asbestos test.

Assessment and findings

The landlord’s response to the resident’s request for a repeat asbestos survey of the communal hallway.

9. The landlord had a duty to ensure that a property was free from hazards, in line with the Housing Health and Safety Rating System (HHSRS), introduced in the Housing Act 2004. Furthermore, it had a duty, in accordance with the Control of Asbestos Regulations 2021 to manage the presence of asbestos within the property.
10. Therefore, when a landlord is alerted to the possible presence of asbestos in its property, it should take reasonable steps to satisfy itself that any potential risk is addressed. It is reasonable for a landlord to rely on the opinions of its appropriately qualified staff and contractors.
11. In response to the resident’s concerns about the possible presence of asbestos remaining in the communal hallway, the landlord explained that the door, which the resident suspected had accumulated asbestos dust, had been removed during the works. It provided a photograph to evidence this. The landlord also provided the certificate from the asbestos air test carried out by an independent assessor which showed that there was no asbestos present in the hallway after the completion of the work. This documentation from the assessor also included a certificate of reoccupation which confirmed that the property was safe to re-occupy.
12. The resident’s contention was that, as damage was caused to the decorative finish of the walls and ceiling during the works, this called into question the standard of the contractor’s work during the asbestos removal process. Given that the resident was not present to witness the works and did not present any other evidence to show that the asbestos removal was conducted improperly, this would appear to be speculation. In any event, the air quality testing was carried out subsequent to the completion of the work. It would therefore follow that the testing would have detected any residual asbestos resulting from a lack of care by the asbestos removal contractors.
13. The landlord, therefore, provided a reasonable explanation and reasonable justifications to support its decision not to carry out further asbestos testing in the property. In the absence of any evidence to suggest that the contractor had acted improperly in the removal of the asbestos, it was therefore reasonable for the landlord to rely on the certification supplied by its independent assessor, and decline to re-test for asbestos.

The landlord’s handling of remedial work to the communal hallway following asbestos removal works.

14. The landlord’s lease agreement with the resident confirms that it will “maintain repair redecorate renew” the communal areas of the property; this would include the communal hallway. The agreement also confirms that the resident is responsible for paying a contribution towards any reasonable costs incurred by the landlord in carrying out work to the common areas of the building.
15. The landlord’s responsive repairs policy confirms that it “reserves the right to carry out some repairs to communal areas as part of its cyclical works programme, rather than as a responsive repair”.
16. The landlord’s contractor’s report on 12 May 2022 noted that the repairs comprised “Paint peeled in places. These didn’t require filling as less than 1mm gap.” This showed that the repairs were cosmetic rather than structural. The resident later informed the Ombudsman that she considered that the appearance of the hallway affected her chances of selling the property. No evidence was provided indicating there was a link between the property remaining unsold and the standard of decoration in the communal hallway.
17. In accordance with its responsive repairs policy it would have been reasonable for the landlord to schedule the works for its next cycle of cyclical works, given that there was no evidence of a direct detriment to the resident’s use of the communal hallway at the time. However, it exercised discretion to carry out remedial decorative work at its own cost. The landlord provided evidence to the Ombudsman to show that the cost of the work was not charged to the resident through her service charge. This demonstrated that the landlord made efforts to address the resident’s concerns.
18. The contractors report from 12 May 2022 also showed that, although the operatives did not find that filling of the walls was necessary, this was done at the resident’s request. This further demonstrated a commitment by the landlord to resolving the resident’s dissatisfaction.
19. The resident maintained that a full redecoration of the hallway was required. A landlord has a duty to make the most economical use of its finite resources. It was reasonable for the landlord to explain this to the resident in its stage one complaint response. The Ombudsman would not expect a landlord to carry out a full redecoration when patch repairs can be carried out practically. It was therefore reasonable for the landlord to only carry out repairs to the affected areas.
20. The landlord did not carry out a physical inspection of the remedial decoration work. In the circumstances, it was reasonable for it to review the photographs and operatives’ report to assess the standard of the repair work. This is because, a landlord’s actions should be proportionate to the circumstances. In this case, the repair work was of a small scale and there was no evidence of a need to investigate the cause of the defects. It may have been useful for the landlord to explain to the resident why an inspection visit was not necessary in the circumstances.
21. Overall, there was no evidence of a failure by the landlord as it acted reasonably to resolve the repairs.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in:
    1. Its response to the resident’s request for a repeat asbestos survey of the communal hallway.
    2. Its handling of remedial work to the communal hallway following asbestos removal works.